Opinion
No. 57466-7-II
07-30-2024
STATE of Washington, Respondent/Cross Appellant, v. Zachary Ephrem GILILUNG, Appellant/Cross Respondent.
Richard Wayne Lechich, Washington Appellate Project, 1511 3rd Ave., Ste. 610, Seattle, WA, 98101-1683, for Appellant/Cross-Respondent. Prosecuting Attorney Pierce County, Pierce County Prosecuting Attorney, Teresa Jeanne Chen, Attorney at Law, 930 Tacoma Avenue S. Room 946, Tacoma, WA, 98402, for Respondent/Cross-Appellant.
Appeal from Pierce County Superior Court, Docket No: 19-1-04844-3, Honorable Grant Blinn, Judge.
Richard Wayne Lechich, Washington Appellate Project, 1511 3rd Ave., Ste. 610, Seattle, WA, 98101-1683, for Appellant/Cross-Respondent.
Prosecuting Attorney Pierce County, Pierce County Prosecuting Attorney, Teresa Jeanne Chen, Attorney at Law, 930 Tacoma Avenue S. Room 946, Tacoma, WA, 98402, for Respondent/Cross-Appellant.
PUBLISHED IN PART OPINION
Price, J.
¶1 Following an undercover operation by law enforcement, Zachary E. Gililung was charged with, and convicted of, one count of attempted commercial sexual abuse of a minor and one count of communication with a minor for immoral purposes. ¶2 Gililung appeals. He contends that his terms of community custody must be reduced because his sentence exceeds the statutory maximum.
¶3 Gililung also argues that he was entitled to an entrapment instruction and that a comment by a law enforcement officer about a search of his truck amounted to manifest constitutional error and was not harmless. In addition, Gililung argues that he is entitled to a new sentencing hearing because his two offenses amounted to the same criminal conduct and that the trial court should have considered an exceptional downward sentence because of a statutory mitigator. Finally, Gililung challenges the trial court’s imposition of numerous community custody conditions.
¶4 In the published portion of this opinion, we hold that RCW 9.94A.505(5) relating to statutory maximums should be applied to each count individually. Accordingly, Gilllung’s community custody term on his communication with a minor for immoral purposes count did not exceed the statutory maximum. However, because Gililung’s community custody term on the attempted commercial sexual abuse of a minor count exceeds the statutory maximum, we remand to the trial court to reduce this community custody term to 29.25 months.
¶5 In the unpublished portion of this opinion, we hold that community custody condition 5 is not crime related and remand for the trial court to strike the condition from Gililung’s judgment and sentence. We also remand Gililung’s community custody condition 8 (the consent to home visits condition) for the trial court to clarify that authority to search Gililung’s home requires reasonable suspicion of a violation and a connection of the home to the suspected violation. Otherwise, we reject Gililung’s arguments and affirm his convictions.
The State cross-appeals, arguing that the trial court erred in giving one of its jury instructions. Because we affirm Gililung’s convictions, we do not address this cross appeal. State v. Kelly, 19 Wash. App. 2d 434, 447, 496 P.3d 1222 (2021) (declining to address the State’s cross appeal where defendant’s conviction was affirmed), review denied, 199 Wash 2d 1002, 504 P.3d 827 (2022).
FACTS
¶6 On December 19, 2019, Gililung was arrested during an undercover operation run by the Washington State Patrol Missing and Exploited Children Task Force (MECTF). MECTF performs proactive operations designed to identify people who are looking to commit sexual abuse crimes against children.
¶7 The State ultimately charged Gililung with attempted commercial sexual abuse of a minor (count II) and communication with a minor for immoral purposes (count III). The case proceeded to a jury trial. The jury found Gililung guilty on both counts.
¶8 The trial court sentenced Gililung to standard range sentences of 30.75 months of confinement on the attempted commercial sexual abuse of a minor count and 16 months of confinement on the communication with a minor for immoral purposes count, to run concurrently. The trial court imposed 36 months of community custody on both counts.
¶9 Gililung appeals these terms of community custody.
ANALYSIS
Statutory Maximum
¶10 Gililung argues the trial court erred at sentencing by imposing terms of community custody on both counts that, when combined with the total sentence of confinement, exceed the statutory maximum of five years. Gililung requests that the terms of community custody on both counts be reduced so that the overall statutory maximum is not exceeded.
¶11 The State responds that we should remand for correction of the community custody term for only one count—the attempted commercial sexual abuse of a minor count—but that there is no error pertaining to the community custody term on the communication with a minor for immoral purposes count. We agree with the State. A. Legal Principles
[1–4] ¶12 Statutory interpretation is a question of law that we review de novo. Lakeside Indus., Inc. v. Dep’t of Revenue, 1 Wash.3d 150, 155, 524 P.3d 639 (2023). The goal of statutory interpretation is to carry out the legislature’s intent. Leishman v Ogden Murphy Wallace, PLLC, 196 Wash.2d 898, 904, 479 P.3d 688 (2021). We must give effect to the plain meaning of a statute as an expression of legislative intent where possible. Id. If the plain language of the statute is unambiguous, our inquiry is over. Id
[5] ¶13 A court may not impose a sentence providing for a term of total confinement or community custody that exceeds the statutory maximum for the crime. RCW 9.94A.505(5). When an offender’s standard range term of total confinement combines with the term of community custody to exceed the statutory maximum for the crime, the term of community custody must be reduced. See RCW 9.94A.701(10); State v. Boyd, 174 Wash.2d 470, 473, 275 P.3d 321 (2012). The remedy is to remand to the trial court to either amend the community custody term or to resentence consistent with the statute. Boyd, 174 Wash.2d at 473, 275 P.3d 321.
¶14 In this case, both counts are class C felonies. RCW 9.68A.090(2); RCW 9.68A.100; RCW 9A.28.020(3)(c). The statutory maximum for a class C felony is five years. RCW 9A.20.021(1)(c).
B. Application
1. Attempted commercial sexual abuse of a minor, count II
[6] ¶15 Gililung first argues that the trial court’s sentence on the attempted commercial sexual abuse of a minor count exceeded the statutory maximum because the 30.75 months imposed plus the 36 months of community custody exceeds 5 years.
¶16 The State concedes that the community custody term on the attempted commercial sexual abuse of a minor count exceeds the maximum of 5 years. We accept the State’s concession. For this count, the 30.75 months of total confinement plus 36 months of community custody equals 66.75 months, which clearly exceeds 60 months. On remand, the community custody term for this count must be reduced to 29.25 months.
2. Communication with a minor for immoral purposes, count III
[7] ¶17 Gililung argues that his communication with a minor count exceeds the statutory maximum as well. For this count, Gililung received 16 months in total confinement and 36 months of community custody. Gililung acknowledges that totaling these months, by itself, does not exceed 60 months, but he argues that the confinement term for this count must be viewed together with the longer confinement term for the other count. Because this shorter 16-month sentence is running concurrently with the longer 30 75-month sentence on his other count, Gililung contends this community custody term would not start until he is released on the longer count. Viewed this way, he asserts his 36-month term for community custody on his shorter sentence must also be shortened to 29.25 months.
¶18 To support his position, Gililung relies on Division One’s unpublished decision in State v. Nord In Nord, the defendant was resentenced on remand to 10 years of total confinement for unlawful delivery and 2 years of total confinement for unlawful possession to run concurrently, plus 1 year of community custody for each conviction. No. 77435-2-1, slip op. at 2-3. Because the statutory maximum for the unlawful possession count was 5 years, Nord held that the defendant’s sentence was unlawful because the 10-year total term of confinement and the 1-year community custody condition exceeded the 5-year maximum sentence for unlawful possession. Id. at 9 (holding that by the time the defendant had completed serving his 10-year sentence for unlawful delivery, the 5-year maximum for the possession count would have expired).
No 77435-2-1, 2019 WL 296071 (Wash Ct App Jan 22, 2019) (unpublished), https://www.courts.wagov/opinions/pdf/774352.pdf Gililung also cites (with an accord signal) to our unpublished decision, In re Pers Restraint of Johnson No 50461-8-II, 2017 WL 6018077 (Wash. Ct. App. Dec 5 2017) (unpublished), https://www.courtswa.gov/opinions/pdf/D2%2050461-8-II%20Unpublished%20Opinion.pdf Because Johnson utilizes a similar rationale, with a similar result, as Nord, we do not separately discuss it.
¶19 The State asks us to reject Nord’s reasoning, suggesting it is cursory and flawed. The State argues that under the plain language of RCW 9.94A.505(5), the relevant unit of analysis is a single count. We agree with the State.
¶20 RCW 9.94A.505(5) states,
Except as provided under RCW 9.94A.750(4) and 9.94A.753(4), a court may not impose a sentence providing for a term of confinement or community custody that exceeds the statutory maximum for the crime as provided in chapter 9A.20 RCW.
(Emphasis added.)
¶21 Under the plain language of this provision, the State’s position that the relevant unit of analysis is a single count is more persuasive. The language of RCW 9.94A.505(5) suggests that the appropriate unit of analysis is a single count, not all counts included in a judgment and sentence, because it says "for the crime."
[8] ¶22 Here, the trial court imposed 16 months of total confinement and 36 months of community custody on Gililung’s communication with a minor count. When looking only at that single count, the sentence imposed on the communication count does not exceed the statutory maximum of 5 years because it amounts to only 52 months (16 plus 36). Thus, we hold that the trial court’s sentence on this count did not exceed the statutory maximum.
In so holding, we decline to follow Nord (and Johnson). We agree with the State that Nord’s analysis was flawed, and in any event, decisions of other panels are not binding on any other division or panel. Sound Inpatient Physicians, Inc. v. City of Tacoma, 21 Wash. App 2d 590, 600, 507 P.3d 886, review denied, 200 Wash 2d 1003, 516 P.3d 375 (2022)
CONCLUSION
¶23 We hold that RCW 9.94A.505(5) relating to statutory maximums should be applied to each count individually. Accordingly, Gililung’s community custody term on his communication with a minor for immoral purposes count did not exceed the statutory maximum. However, because Gililung’s community custody term on the attempted commercial sexual abuse of a minor count exceeds the statutory maximum, we remand to the trial court to reduce this community custody term to 29.25 months.
¶24 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06,040, it is so ordered.
We concur:
Veljacie, A.C.J.
Lee, J.