Opinion
No. 35886-7-II.
April 22, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 01-1-03468-7, Stephanie A. Arend, J., entered December 22, 2006.
Remanded by unpublished opinion per Bridgewater, J., concurred in by Houghton, C.J., and Hunt, J.
Keith Anderson appeals a Pierce County Superior Court order denying his CrR 7.8 motion to modify his sentence. He contends that the sentence exceeds the statutory maximum. We remand for clarification.
This matter was initially considered by a commissioner of this court pursuant to RAP 18.14, and subsequently referred to a panel of judges.
In 2002, Anderson pleaded guilty to two counts of third degree assault and two counts of unlawful imprisonment. The statutory maximum sentence for each of these crimes is five years. See RCW 9A.36.031, RCW 9A.40.040, and RCW 9A.20.021(1)(c). He stipulated to exceptional consecutive five-year sentences, and the court imposed 20 years of incarceration, plus 12 months of community placement.
His benefit from this bargain was reduction of the original charge to eliminate the possibility of a "strike" conviction.
Anderson filed this CrR 7.8 motion in 2006, relying on State v. Zavala-Reynoso, 127 Wn. App. 119, 124, 110 P.3d 827 (2005). In that case, Division Three of this court vacated a sentence in which the total of the defendant's terms of incarceration and community custody exceeded the statutory maximum. Division One addressed the same issue in State v. Sloan, 121 Wn. App. 220, 87 P.3d 1214 (2004), and also found the sentence erroneous. However, the Sloan court held that in the event the defendant earned sufficient good time, the actual sentence served would not exceed the maximum. Thus, the error in Sloan's sentence could be corrected by adding language that set forth the maximum sentence and stated that the total term of incarceration and community custody could not exceed the statutory maximum. Sloan, 121 Wn. App. at 223-24.
Anderson argues that the Sloan approach is incorrect because the term of community placement is required by RCW 9.94A.505(2)(a)(ii) and RCW 9.94A.700. Thus, he must be sentenced to the 20 years agreed to, minus 12 months. He is wrong. The legislature has not made community placement mandatory in all cases. In RCW 9.94A.705, it provided that for certain crimes "committed on or after July 25, 1999, but before July 1, 2000," like Anderson's:
Former RCW 9.94A.120, Laws of 2001, ch. 10 § 6.
[w]hen the court sentences the offender under this section to the statutory maximum period of confinement, then the community placement portion of the sentence shall consist entirely of such community custody to which the offender may become eligible, in accordance with RCW 9.94A.728(1) and (2) [pertaining to earned early release].
The legislature clearly intended the result accomplished in Sloan. Accordingly, we remand so that Anderson's sentence can be clarified to ensure that the combined term of incarceration and community placement does not exceed 20 years.
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., and HUNT, J., concur.