State v. Mitchell

Full title: STATE OF WASHINGTON, Respondent, v. ROBERT LEE MITCHELL, Appellant.

Court: COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

Date published: Sep 24, 2012

No. 65447-1-I (Wash. Ct. App. Sep. 24, 2012)

Opinion

65447-1-I

09-24-2012

STATE OF WASHINGTON, Respondent, v. ROBERT LEE MITCHELL, Appellant.

Per curiam.

UNPUBLISHED OPINION

Per curiam.

Robert Mitchell appeals from the judgment and sentence entered after a guilty plea of second degree assault. Mitchell's court-appointed attorney has filed a motion to withdraw on the ground that there is no basis for a good faith argument on review. Pursuant to State v. Theobald, 78 Wn.2d 184, 470 P.2d 188 (1970), and Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the motion to withdraw must:

[1] be accompanied by a brief referring to anything in the record that might arguably support the appeal. [2] A copy of counsel's brief should be furnished the indigent and [3] time allowed him to raise any points that he chooses; [4] the court--not counsel--then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous.

State v. Theobald, 78 Wn.2d at 185 (quoting Anders v. California, 386 U.S. at 744).

This procedure has been followed. Mitchell's counsel on appeal filed a brief with the motion to withdraw. Mitchell was served with a copy of the brief and informed of the right to file a statement of additional grounds for review. Mitchell has not filed a statement of additional grounds for review.

The facts are accurately set forth in counsel's brief in support of the motion to withdraw. The court has reviewed the briefs filed in this court and has independently reviewed the entire record. The court specifically considered the following potential issues raised by counsel:

1. Was Mitchell's plea made knowingly, intelligently and voluntarily?

2. Did the trial court properly calculate Mitchell's offender score?

Upon independent review, the court discovered an error in section 4.2 of the judgment and sentence, which imposes a term of community custody of "12 months – or 2 months plus the period of earned early release, whichever is less." Clerk's Papers (CP) at 17. Mitchell was convicted of custodial assault, a class C felony with a maximum term of five years. See RCW 9A.36.100(1)(b); RCW 9A.20.021(1)(c). The sentencing court imposed 58 months confinement. CP at 16. The judgment and sentence also states, "The combined term of community custody and confinement shall not exceed the statutory maximum." CP at 16. But RCW 9.94A.701(9) requires the sentencing court to reduce the community custody term "whenever an offender's standard range term of confinement in combination with the term of community custody exceeds the statutory maximum for the crime." In State v. Boyd, ___ Wn.2d___, 275 P.3d 321 (2012), the Supreme Court held that a trial court's failure to reduce the community custody term as required by RCW 9.94A.701(9) cannot be rectified by a notation stating that the total time served may not exceed the statutory maximum.

Since in all other respects, the potential issues in this case are frivolous, counsel's motion to withdraw is granted and the appeal is dismissed. However, the matter is remanded to the trial court to either amend the community custody term or resentence Mitchell consistent with RCW 9.94A.701(9). See Boyd, 275 P.3d at 323.