Opinion
No. 36481-6-II.
November 12, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 92-1-00443-9, Vicki L. Hogan, J., entered June 15, 2007.
Remanded by unpublished opinion per Houghton, J., concurred in by Bridgewater and Armstrong, JJ.
UNPUBLISHED OPINION.
Carl Cunningham appeals his sentence for first degree manslaughter, claiming it exceeds 120 months' confinement, the maximum sentence allowed by statute. Having served 116 months, he argues that the State could sentence him to no more than an additional 4 months. The State correctly concedes, and we remand for correction of the judgment and sentence.
Facts
In 1992, Cunningham began serving several consecutive sentences for convictions of multiple counts of burglary, robbery, assault, and one count of felony murder, among other crimes. In 2006, pursuant to our Supreme Court's rulings in In re Pers. Restraint of Andress, 147 Wn.2d 602, 56 P.3d 981 (2002), and In re Pers. Restraint of Hinton, 152 Wn.2d 853, 100 P.3d 801 (2004), the sentence for felony murder was vacated. The Supreme Court had ruled that Washington's felony murder statute, passed in 1976, was inapplicable "when the underlying felony was assault." Clerk's Papers (CP) at 11.
The State then charged Cunningham with first degree manslaughter. Cunningham's sentences and conviction for his other crimes remained unaffected. He pleaded guilty and received the maximum sentence of 120 months' confinement, to be served consecutively to his other sentences.
Cunningham also received credit for 116 months as time served on the original felony murder conviction. At the State's request, the trial court further noted that he would serve an additional 395 days for the manslaughter conviction.
Cunningham appeals.
Analysis
Cunningham contends that the trial court miscalculated his sentence. He asserts that he will serve longer than the statutory maximum of 120 months' confinement on the conviction.
At argument, the State conceded that Cunningham is correct and we agree. On remand, the trial court should strike the second sentence of the judgment and sentence at section IV, paragraph 4.12(b)6, to read:
The State also advised us that the Department of Corrections had recalculated Cunningham's maximum sentence on the conviction as 120 months' confinement.
As mentioned above, THE SENTENCE ON THIS CASE, 120 MONTHS (3,652 DAYS), IS TO [BE] SERVED CONSECUTIVELY TO PIERCE COUNTY CAUSE NO. 92-1-01239-3 (ROBBERY 1). THEREFORE, WHEN THE DEFENDANT HAS COMPLETELY SERVED THAT 195-MONTH SENTENCE AND IS RELEASED ON THAT CAUSE NUMBER, HE HSALL SERVE THE REMAINING 395 DAYS ON THIS CAUSE NUMBER.
CP at 106. Without the deleted sentence in section IV, the judgment and sentence will accurately set forth Cunningham's maximum sentence on the manslaughter conviction.
Cunningham also seeks review whether he may withdraw his plea. As he has not sought to withdraw his plea, the issue is not before us. Thus, we do not address this contention, except to note that should he choose to raise this argument in the future, the claim is moot. We have already provided the remedy.
Remanded.
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.
BRIDGEWATER, J. and ARMSTRONG, J., concur.