Opinion
No. 38485-0-II.
October 20, 2009.
Appeal from the Superior Court, Pierce County, No. 07-1-00110-9, Vicki L. Hogan, J., entered October 20, 2008.
Affirmed in part and remanded by unpublished opinion per Hunt, J., concurred in by Houghton and Quinn-Brintnall, JJ.
The State has filed a motion for reconsideration of our opinion filed on August 13, 2009, in the above-entitled case.
We hereby grant the State's motion and withdraw said opinion. A new opinion will be filed in due course.
DATED this ___ day of ___, 2009.
PANEL: Jj. Houghton, Hunt, Quinn-Brintnall.
Charles Gerald West appeals his sentence for his guilty plea conviction for third degree assault. He argues that the sentencing court exceeded its statutory authority by recording ten years as his maximum potential sentence on the Judgment and Sentence because (1) the statutory maximum for this class C felony is only five years, RCW 9A.20.021(1)(c); and (2) if he served the full 43 months of confinement and 18 months of community custody, he would serve a total of 61 months, thus exceeding the 60-month (five years) statutory limit by one month. The State (1) concedes that the maximum sentence authorized for West's conviction is five years, (2) asserts that the judgment and sentence's reciting a 10-year maximum was a scrivener's error, and (3) agrees that we should remand to the trial court to correct this error. Accepting the State's concession, but disagreeing with West that the sentencing court exceeded its authority by imposing a sentence potentially greater than the statutory maximum, we affirm West's judgment and sentence and remand for the sole purpose of correcting of the scrivener's error.
Clerk's Papers (CP) at 38.
FACTS
Charles West pleaded guilty to one count of third degree assault. It is undisputed that his offender score is 8, his standard sentencing range is 43-57 months, and the statutory maximum for this crime is five years. These facts, including the statutory maximum, are accurately reflected in West's statement on plea of guilty.
The sentencing court sentenced West to 43 months of confinement, followed by 9-18 months of community custody, for a potential maximum total of 61 months of punishment. The sentencing court also noted on West's judgment and sentence that "under no circumstances shall the total term of confinement plus the term of community custody actually served exceed the statutory maximum for each offense." Clerk's Papers (CP) at 43. But elsewhere his judgment and sentence incorrectly recites that the statutory maximum for third degree assault is ten years. No one apparently caught this scrivener's error below.
West appeals his sentence.
analysis
West argues, and the State concedes, that the trial court erred when it recited ten years on the judgment and sentence as the statutory maximum sentence for West's third degree assault conviction. West also argues that because his total punishment, including imprisonment and community custody, may not exceed the five-year statutory maximum, his potential 61-month punishment term is erroneous. We agree and accept the State's concession that five years is the statutory maximum sentence. We disagree with West that his total punishment is erroneous.
State v. Sloan, 121 Wn. App. 220, 87 P.3d 1214 (2004).
A trial court may impose a sentence only as authorized by statute. In re Personal Restraint of Tobin, 165 Wn.2d 172, 175, 196 P.3d 670 (2008). A defendant may challenge an illegal or erroneous sentence for the first time on appeal. State v. Bahl, 164 Wn.2d 739, 744, 193 P.3d 678 (2008) (citing State v. Ford, 137 Wn.2d 472, 477, 973 P.2d 452 (1999)). The maximum sentence for West's third degree assault conviction, a class C felony, is five years. RCW 9A.20.021(1)(c). We accept the State's concession of scrivener's error on the judgment and sentence, which erroneously recites 10 years as the maximum sentence.
Under a recent Supreme Court decision, this scrivener's error does not require resentencing for several reasons. In re Personal Restraint of Brooks, 166 Wn.2d 664, 668, 211 P.3d 1023 (2009). First, the sentencing court noted on West's judgment and sentence that "under no circumstances shall the total term of confinement plus the term of community custody actually served exceed the statutory maximum for each offense." CP at 43. As in Brooks, this language limited West's punishment to the statutory maximum, five years in this case and prohibits the potential 61-month sentence that West suggests.
Second, as the Supreme Court held in Brooks, (1) when community custody may extend a sentence beyond the statutory maximum, the Sentencing Reform Act of 1981, chapter 9.94A RCW, requires the Department of Corrections (DOC) to release the offender before his combined custody and confinement exceeds the statutory maximum, former RCW 9.94A.505(5); and (2) a sentence is not indeterminate when the judgment and sentence has a defined range and a determinate maximum within which the DOC can set the amount of community custody to be served within that sentence. Former RCW 9.94A.030(18) (2006); Brooks, 166 Wn.2d at 668. As was the case with Brooks, West has the potential to earn early release credits and to serve the remainder of his sentence in community custody up to the statutory maximum. Brooks, 166 Wn.2d at 669. Thus, the amount of time West actually spends in community custody will depend on whether he earns early release credits from the DOC, which may be less than the 9-18 months of community custody specified on his judgment and sentence.
Brooks cites the current version of RCW 9.94A.030(21). The statute in effect at the time of West's offense is paragraph (18) of former RCW 9.94A.030.
Moreover, West's sentence is not indeterminate. We note that Division One of our court previously held in Linerud that a sentencing court is required to set an exact term of community custody within a range that would not allow the statutory maximum to be exceeded when added to the term of confinement. Disagreeing with Division One on this point, our Supreme Court held: "The only thing that can be determined at the time of sentencing is the maximum amount of time an offender will serve in confinement and the maximum amount of time the offender may serve in totality." Brooks, 166 Wn.2d at 674.
State v. Linerud, 147 Wn. App. 944, 197 P.3d 1224 (2008), overruled by In re Personal Restraint of Brooks, 166 Wn.2d 664, 211 P.3d 1023 (2009).
Here, the sentencing court imposed 9 to 18 months of community custody to follow 43 months of confinement, with the stipulation that the total time served could not exceed the statutory maximum. Thus, West's sentence has "both a defined range and a determinate maximum," which is all former RCW 9.94A.030(18) requires to classify a sentence as determinate. Brooks, 166 Wn.2d at 674.
Brooks controls here. West's sentence is both lawful and determinate. We hold that the sentencing court did not exceed its authority by imposing a term of confinement and community custody that potentially totaled 61 months of punishment because, as Brooks explains, the DOC could not set a period of community custody that, when added to West's period of confinement, could cause his total punishment to exceed the five-year statutory maximum for West's offense.
Accordingly, we affirm West's judgment and sentence. We remand solely for correction of the scrivener's error in West's judgment and sentence.
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, PJ. and QUINN-BRINTNALL, J., concur.