Opinion
No. 62662-1-I.
October 19, 2009.
Appeal from the Superior Court, King County, No. 08-1-03788-2, Douglas D. McBroom, J., entered November 10, 2008.
Affirmed by unpublished per curiam opinion.
Eddie Grant appeals the sentence imposed following his conviction of felony failure to register as a sex offender raising two issues on appeal.
Grant contends that the combination of 43 months confinement and 36 to 48 months of community custody exceeds the 60-month maximum sentence for his offense even though the judgment and sentence recites that the total sentence shall not exceed the statutory maximum. Grant contends we should remand for resentencing. Consistent with State v. Linerud, 147 Wn. App. 944, 197 P.3d 1224 (2008), the State conceded error.
After the State conceded error, our Supreme Court addressed the identical issue in In re Pers. Restraint of Brooks, 166 Wn.2d 664, 211 P.3d 1023 (2009) holding that:
when a defendant is sentenced to a term of confinement and community custody that has the potential to exceed the statutory maximum for the crime, the appropriate remedy is to remand to the trial court to amend the sentence and explicitly state that the combination of confinement and community custody shall not exceed the statutory maximum.
Brooks, 166 Wn.2d at 675. When clarified in this manner, a sentence does not exceed the statutory maximum and is not indeterminate or otherwise invalid. Brooks, 166 Wn.2d at 673-74; see also State v. Sloan, 121 Wn. App. 220, 223, 87 P.3d 1214 (2004).
Grant's judgment and sentence expressly provides that the 36 to 48 months of community custody is "not to exceed the statutory maximum" satisfying the standard identified in Brooks. There is no error and no need to remand for further clarification.
Grant also argues that the trial court failed to recognize it had the discretion to impose a mitigated exceptional sentence. But Grant did not request an exceptional sentence down and the trial court did not rule that it lacked the discretion to impose a mitigated exceptional sentence.
At sentencing, the prosecutor noted the statutory maximum was 60 months and recommended 57 months of incarceration together with 36 to 48 months of community custody. The prosecutor observed that if Grant received no good time credit, there would only be three months remaining for community custody but if he received one third off for good time, he also would have the amount of good time credit for community custody. Grant's counsel expressed his concern whether DOC would accept any address Grant would propose at the end of the period of incarceration after credit for good time, so that Grant could end up serving the entire 60 months. The court responded:
What else can we do? . . . I have to sentence him between [the standard range of] 43 and 57 months. I feel that Mr. Grant is one of the lesser blamed of the people that I've come across on this failure to register. He didn't just blow it off: he went down to see his mother, who was dying; then he had no money to come back. You should have registered when you got there, but you didn't. I'm not trying to justify that. I am going to impose the 43 months. What the Department of Corrections does or whether they let him out after good time or not, I guess there's nothing I can do about that.
Grant's counsel followed up "Maybe the judgment and sentence can reflect that you don't have an objection to him being released to reside in Texas. I don't know if that would solve the problem." The court concluded the sentence would be 43 months with 36 to 48 months of community custody and added the provision "not to exceed the statutory maximum" to the judgment and sentence. Grant's concerns about DOC accepting a Texas address was not a request for a mitigated exceptional sentence and the trial court merely declined to comment upon whether a Texas address should be accepted by DOC.
The cases relied upon by Grant are not persuasive. In State v Davis, 146 Wn. App. 714, 192 P.3d 29 (2008), this court approved the sentencing court's grant of a mitigated exceptional sentence to reduce both the term of confinement as well as the term of community custody below the statutory maximum, but Grant did not request such a mitigated exceptional sentence. The defendant in In re Personal Restraint of Mulholland, 161 Wn.2d 322, 166 P.3d 677 (2007) sought concurrent sentences for his two convictions for first degree assault and the Supreme Court reversed because the sentencing court expressly concluded it did not have the discretion to impose concurrent sentences. But Grant did not request an exceptional sentence and the trial court merely declined to add language to the judgment and sentence commenting on what address would be sufficient for a release by DOC.
The existing judgment and sentence clearly recognizes that the combined term of incarceration and community custody cannot exceed the 60 month statutory maximum and the trial court did not misperceive its discretion.
Affirmed.