Opinion
No. 36180-9-II.
April 15, 2008.
Appeal from a judgment of the Superior Court for Kitsap County, No. 99-1-00752-1, Jay B. Roof, J., entered March 13, 2007.
Remanded by unpublished opinion per Van Deren, J., concurred in by Houghton, C.J., and Penoyar, J.
The unpublished opinion in this case was filed on February 20, 2008.
Upon reconsideration, the Court hereby withdraws the opinion filed on February 20, 2008 and substitutes the opinion attached. It is, therefore,
ORDERED, that the unpublished opinion in this case filed on February 20, 2008 is hereby withdrawn and replaced with the unpublished opinion attached.
DATED this ___ day of _____, 2008.
Thomas Rivera appeals the trial court's order denying his motion to modify his sentence. He argues that the court erred in denying his motion because his sentence exceeded the high end of his standard sentencing range. We initially considered Rivera's appeal as a motion on the merits under RAP 18.14. A commissioner of this court referred the appeal to a panel of judges. We hold that the trial court did not err in imposing a sentence exceeding the high-end of Rivera's standard sentencing range. However, we conclude that Rivera's judgment and sentence misstates the sentence for each crime. While that error does not affect the combined sentences for Rivera's crimes, it should be corrected. Therefore, we remand for correction of Rivera's judgment and sentence.
In his statement of additional grounds (SAG), Rivera reiterates the arguments he makes through his attorney. Because Rivera does not raise any additional arguments in his SAG, we only address his arguments made through counsel.
In 2000, a jury convicted Rivera of three counts of second degree assault, with a firearm enhancement on each count. The statutory maximum sentence for second degree assault, as a class B felony, is 120 months. RCW 9A.20.021(1)(b); former RCW 9A.36.021(2) (2000). Rivera's base standard range sentence was 53 to 70 months. Former RCW 9.94A.310(3)(b) (2000) required the sentencing court to impose a 36-month firearm enhancement to each of Rivera's three crimes. Former RCW 9.94A.310(3)(e) (2000) required the court to run the enhancement portions of his sentence consecutive to each other. The sentencing court imposed a base sentence of 70 months, plus three 36-month enhancements, for a total of 178 months of incarceration. It also imposed 24 months of community custody.
We affirmed Rivera's convictions in an unpublished opinion. We issued a mandate terminating appellate review on February 24, 2003. On March 6, 2007, Rivera filed a motion to modify his sentence under CrR 7.8, arguing that the community custody term exceeded the statutory maximum sentence for his crimes, in violation of Blakely and RCW 9.94A.505(5). In its written ruling, the trial court stated that Rivera was sentenced to 70 months of incarceration, the high end of his initial standard range. The court continued: "With firearm enhancements, the total amount of confinement and community custody ordered for [Rivera] was 94 months." Clerk's Papers (CP) at 56. It concluded that Rivera's sentence did not exceed the statutory maximum of 120 months. Accordingly, it denied his motion. Rivera appeals.
State v. Rivera, noted at 111 Wn. App. 1041 (2002).
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
RCW 9.94A.505 provides, in pertinent part, that a court may not sentence a defendant to a "term of confinement or community supervision, community placement, or community custody which exceeds the statutory maximum [sentence] for the crime as provided under chapter 9A.20 RCW." RCW 9.94A.505(5); Laws of Washington (2000), ch. 28, § 5.
We review a trial court's CrR 7.8(b) ruling for an abuse of discretion. State v. Littlefair, 112 Wn. App. 749, 772, 51 P.3d 116 (2002). CrR 7.8 motions are subject to RCW 10.73.090, which provides that a motion to modify a judgment and sentence must be filed within one year after it becomes final, unless certain exceptions apply. RCW 10.73.090(1). A judgment becomes final "[o]n the date the appellate court issues its mandate disposing of a timely direct appeal from the [defendant's] conviction." RCW 10.73.090(3)(b). Rivera's judgment and sentence was final on February 25, 2003. He moved to modify it on March 6, 2007, more than one year after it became final.
One of the exceptions to the one-year time bar imposed by RCW 10.73.090 is when the judgment and sentence is not "valid on its face." RCW 10.73.090(1); In re Personal Restraint of Stoudmire, 141 Wn.2d 342, 353, 5 P.3d 1240 (2000). Rivera argues that his judgment and sentence was facially invalid because the trial court violated Blakely when it sentenced him to 178 months of incarceration and 24 months of community custody. He contends that under Blakely, the trial court could not impose a sentence that exceeded the high end of his initial standard sentencing range.
Blakely does not apply to Rivera's sentence for two reasons. First, Blakely only applies to those sentences that were not final on June 24, 2004, the day that the United States Supreme Court issued that decision. State v. Evans, 154 Wn.2d 438, 447-49, 114 P.3d 627, cert. denied, 546 U.S. 983, 126 S. Ct. 560, 163 L. Ed. 2d 472 (2005). Rivera's judgment and sentence was final on February 25, 2003, well before the United States Supreme Court issued Blakely. Therefore, it does not apply to his sentence.
Second, after Blakely, "any fact other than that of a prior conviction, which increases the applicable punishment, must be found by a jury beyond a reasonable doubt (unless it is stipulated to by the defendant or the defendant waives his right to a jury finding)." State v. Hughes, 154 Wn.2d 118, 126, 110 P.3d 192 (2005), overruled on other grounds by Washington v. Recuenco, 548 U.S. ___, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006). Blakely held that "the 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely, 542 U.S. at 303 (quoting Ring v. Arizona, 536 U.W. 584, 592-93, and n 1, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002).
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed, 2d 435 (2000).
Here, the three consecutive mandatory firearm enhancements required the trial court to increase Rivera's standard range by 108 months. That additional punishment was based on the same facts that the jury found when it convicted him, not additional facts. The trial court found no additional facts in imposing 178 months of incarceration, so it did not violate Blakely.
But Rivera's judgment and sentence misstates the proper sentence for each crime. It states that for each crime, the base standard sentence range was 53 to 70 months of confinement. It states that a firearm sentencing enhancement of 36 months applies. It then states that the total standard range for each crime became 161 to 178 months. This was incorrect because the statutory maximum sentence for each crime is 120 months. RCW 9A.20.021(1)(b); former RCW 9A.36.021(2) (2000). For each crime, the correct total standard range was 89 to 106 months.
However, this error does not affect the combined terms of confinement that Rivera was ordered to serve. While the base sentences of 70 months are to be served concurrently, the three 36-month firearm enhancements must be served consecutively to the base sentence and to each other. Former RCW 9.94A.310(3)(g) (2000); see also State v. Thomas, 150 Wn.2d 666, 671, 80 P.3d 168 (2003). Therefore, the court did not err in imposing a total of 178 months of confinement (70-month base sentence plus three 36-month firearm enhancements).
Accordingly, we remand this matter to correct Rivera's judgment and sentence. The judgment and sentence must state that the total standard range for each crime is 89 to 106 months. It must also state that for each crime, the total of Rivera's terms of confinement and community custody must not exceed the statutory maximum sentence of 120 months. State v. Hibdon, 140 Wn. App. 534, 538, 166 P.3d 826 (2007); State v. Sloan, 121 Wn. App. 220, 223-24, 87 P.3d 1214 (2004); State v. Vanoli, 86 Wn. App. 643, 655, 937 P.2d 1166 (1997).
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, C.J., PENOYAR, J., concur.