Opinion
No. 38158-3-II.
September 15, 2009.
Appeal from the Superior Court, Pierce County, No. 08-1-01992-8, Lisa R. Worswick, J., entered August 8, 2008.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Houghton and Hunt, JJ.
Allen Brady appeals his sentence for failure to register as a sex offender. Brady argues that the sentencing court exceeded its statutory authority by sentencing him to 17 months confinement and 36 to 48 months of community custody because (1) the statutory maximum for this class C felony is 5 years (60 months), RCW 9A.20.021(1)(c); (2) if he served 17 months of confinement and 36 to 48 months of community custody, the sentence range is 53 to 65 months, in violation of the 60-month statutory maximum; and (3) the court's delegation of sentencing authority to the Department of Corrections (DOC) violates the separation of powers doctrine. The State (1) agrees that the maximum sentence authorized for Brady's conviction is five years; (2) argues that the judgment and sentence remedies this issue by stating that "[t]otal time in custody and or community custody [is] not to exceed 60 months (statutory maximum)," Clerk's Papers at 91; and (3) argues that the legislature did not violate the separation of powers doctrine by delegating discretionary authority to the DOC. We affirm.
FACTS
Brady has a prior conviction for second degree rape and, thus, is a sex offender required to register with the Pierce County Sheriff's Department under RCW 9A.44.130. Brady properly registered in 2002 and twice in 2006. Brady became a transient in December of 2007, and failed to register as a transient. Officers discovered his violation in January of 2008, and charged him with failure to register as a sex offender. A jury found Brady guilty as charged. It is undisputed that Brady's offender score is 5, his standard sentencing range is 17 to 22 months, and the statutory maximum for this crime is 5 years.
The sentencing court sentenced Brady to 17 months of confinement, followed by 36 to 48 months of community custody required under former RCW 9.94A.850 (2005) and former RCW 9.94A.715 (2006), for a potential maximum total of 65 months of punishment.
Brady appeals his sentence.
analysis
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)). A trial court may impose a sentence only as authorized by statute. In re Pers. Restraint of Tobin, 165 Wn.2d 172, 175, 196 P.3d 670 (2008).
Brady argues that the sentence violates former RCW 9.94A.505(5) (2006) by potentially imposing a term of confinement and community custody that exceeds the five-year statutory maximum for his offense. We disagree.
The Washington Supreme Court recently resolved this issue in In re Personal Restraint of Brooks, ___ Wn.2d ___, 211 P.3d 1023 (2009). Like Brady, Brooks was sentenced to a term of confinement and community custody that could potentially exceed the statutory maximum for his conviction. In an amended judgment and sentence, the court specified that his combined term could not exceed the statutory maximum. In re Brooks, 211 P.3d at 1024. The Sentence is Lawful and Determinate
The In re Brooks court held that (1) when community custody may extend a sentence beyond the statutory maximum, the Sentencing Reform Act of 1981 (SRA), ch. 9.94A RCW, requires the 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 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); In re Brooks, 211 P.3d at 1024-25.
In re Brooks cites to the current version of RCW 9.94A.030(21). The statute in effect at the time of Brady's violation is paragraph (18) of RCW 9.94A.030.
Our Supreme Court reasoned that Brooks could earn early release credits and serve the rest of his sentence in community custody up to the statutory maximum. Former RCW 9.94A.728(1)(c); In re Brooks, 211 P.3d at 1025. Here, as with Brooks's judgment and sentence, the sentencing court noted on Brady's judgment and sentence form that his term of community custody may not exceed the five-year statutory maximum. In addition, the amount of time Brady spends in community custody depends on whether or not he earns early release credits. The trial court sentenced Brady to 17 months of confinement and 36 to 48 months of community custody. Brady'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. In re Brooks, 211 P.3d at 1028.
In accordance with In re Brooks, Brady's sentence is both lawful and determinate. The Sentence Does Not Offend the Separation of Powers Doctrine
The separation of powers doctrine is not specifically enunciated in the Washington constitution, however it is implicitly recognized as a founding principle of our state and federal constitutions. State v. Blilie, 132 Wn.2d 484, 489, 939 P.2d 691 (1997). When a defendant raises a separation of powers challenge involving different branches of state government, only the state constitution is implicated. Blilie, 132 Wn.2d at 489. The separation of powers doctrine serves mainly to ensure that the fundamental functions of each government branch remain inviolate. Blilie, 132 Wn.2d at 489 (quoting Carrick v. Locke, 125 Wn.2d 129, 135, 882 P.2d 173 (1994)). The legislature may constitutionally delegate authority to an administrative agency to implement statutory directives if two requirements are met: (1) the legislature must provide standards to indicate the task and designate the agency to accomplish it and (2) impose procedural safeguards to control arbitrary administrative action and abuse of discretionary power. State v. Simmons, 152 Wn.2d 450, 455, 98 P.3d 789 (2004). The legislature did not violate the separation of powers doctrine when it delegated authority to the DOC to adopt rules governing inmate behavior. Simmons, 152 Wn.2d at 455. Our legislature authorizes the DOC to "discharge the offender from community custody on a date determined by the department, which the department may modify, based on risk and performance of the offender, within the range or at the end of the period of earned release, whichever is later." Former RCW 9.94A.715(4).
This issue is distinguishable from our decision in State v. Ramos, 149 Wn. App. 266, 202 P.3d 383 (2009), where we held that Ramos's sex offender classification violated separation of powers because the Thurston County Sheriff's Office determined Ramos's sex offender classification without input from other entities, contrary to RCW 4.24.550(6)(a), (b).
Brady neither argues that the DOC lacks the authority to designate earned early release credits to inmates nor that the earned early release system lacks adequate procedural safeguards. Rather, Brady argues that the trial court violated the separation of powers doctrine by delegating its sentencing authority to the DOC, an executive agency. Although the In re Brooks court declined to specifically review this issue, In re Brooks held that "[i]t is the SRA itself that gave courts the power to impose sentences and the DOC the responsibility to set the amount of community custody to be served within that sentence." 211 P.3d at 1028. We agree that by allowing the entity incarcerating the defendant to determine whether he has earned early release credits, the court did not delegate its sentencing power to the DOC. Sentencing courts have no authority to restrict or grant earned early release time. Former RCW 9.94A.728; In re Pers. Restraint of West, 154 Wn.2d 204, 213, 110 P.3d 1122 (2005). The court sentenced Brady to a determinate sentence of 17 months of confinement followed by 36 to 48 months of community custody. The DOC has limited discretionary authority to grant Brady earned early release credits from prison and to adjust the community custody term within the statutory range mandated by the sentencing court. Brady's sentence complies with the requirements of In re Brooks, which is binding on this court, and the separation of powers doctrine is not offended by allowing the DOC to award inmates earned early release credits. Accordingly, we affirm.
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, P.J. and HUNT, J., concur.