Opinion
No. 36180-9-II.
February 20, 2008.
The unpublished opinion in this case was withdrawn by order of the Court of Appeals dated April 15, 2008. substitute opinion filed. See 144 Wn. App. 1002.
Thomas Rivera appeals the trial court's order denying his motion to modify his sentence. He argues that the court erred in denying his motion because his sentence exceeded the high end of his standard sentencing range. We initially considered Rivera's appeal as a motion on the merits under RAP 18.14. A commissioner of this court referred the appeal to a panel of judges. We hold that the trial court did not err in imposing a sentence exceeding the high-end of Rivera's standard sentencing range, but that it erroneously imposed a sentence exceeding the statutory maximum for Rivera's convictions. Therefore, we remand for resentencing.
In his statement of additional grounds (SAG), Rivera reiterates the arguments he makes through his attorney. Because Rivera does not raise any additional arguments in his SAG, we only address his arguments made through counsel.
In 2000, a jury convicted Rivera of three counts of second degree assault, with a firearm enhancement on each count. The statutory maximum sentence for second degree assault, as a class B felony, is 120 months. RCW 9A.20.021(1)(b); former RCW 9A.36.021(2) (2000). Rivera's initial standard range sentence was 53 to 70 months. Former RCW 9.94A.310(3)(b) (2000) required the sentencing court to impose a 36-month firearm enhancement to each of Rivera's three crimes. Former RCW 9.94A.310(3)(e) (2000) required the court to run the enhancement portions of his sentence consecutive to each other. The enhancements, thus, increased Rivera's total standard range to 161 to 178 months. The sentencing court imposed 178 months of incarceration. It also imposed 24 months of community custody.
We affirmed Rivera's convictions in an unpublished opinion. We issued a mandate terminating appellate review on February 24, 2003. On March 6, 2007, Rivera filed a motion to modify his sentence under CrR 7.8, arguing that the community custody term exceeded the statutory maximum sentence for his crimes, in violation of Blakely and RCW 9.94A.505(5). In its written ruling, the trial court stated that Rivera was sentenced to 70 months of incarceration, the high end of his initial standard range. The court continued: "With firearm enhancements, the total amount of confinement and community custody ordered for [Rivera] was 94 months." Clerk's Papers (CP) at 56. It concluded that Rivera's sentence did not exceed the statutory maximum of 120 months. Accordingly, it denied his motion. Rivera appeals.
State v. Rivera, noted at 111 Wn. App. 1041 (2002).
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
RCW 9.94A.505 provides, in pertinent part, that a court may not sentence a defendant to a "term of confinement or community supervision, community placement, or community custody which exceeds the statutory maximum [sentence] for the crime as provided under chapter 9A.20 RCW." RCW 9.94A.505(5); Laws of Washington (2000), ch. 28, § 5.
We review a trial court's CrR 7.8(b) ruling for an abuse of discretion. State v. Littlefair, 112 Wn. App. 749, 772, 51 P.3d 116 (2002). CrR 7.8 motions are subject to RCW 10.73.090, which provides that a motion to modify a judgment and sentence must be filed within one year after it becomes final, unless certain exceptions apply. RCW 10.73.090(1). A judgment becomes final "[o]n the date the appellate court issues its mandate disposing of a timely direct appeal from the [defendant's] conviction." RCW 10.73.090(3)(b). Rivera's judgment and sentence was final on February 25, 2003. He moved to modify it on March 6, 2007, more than one year after it became final.
One of the exceptions to the one-year time bar imposed by RCW 10.73.090 is when the judgment and sentence is not "valid on its face." RCW 10.73.090(1); In re Personal Restraint of Stoudmire, 141 Wn.2d 342, 353, 5 P.3d 1240 (2000). Rivera argues that his judgment and sentence was facially invalid because the trial court violated Blakely when it sentenced him to 178 months of incarceration and 24 months of community custody. He contends that under Blakely, the trial court could not impose a sentence that exceeded the high end of his initial standard sentencing range.
Blakely does not apply to Rivera's sentence for two reasons. First, Blakely only applies to those sentences that were not final on June 24, 2004, the day that the United States Supreme Court issued that decision. State v. Evans, 154 Wn.2d 438, 447-49, 114 P.3d 627, cert. denied, 546 U.S. 983, 126 S. Ct. 560, 163 L. Ed. 2d 472 (2005). Rivera's judgment and sentence was final on February 25, 2003, well before the United States Supreme Court issued Blakely. Therefore, it does not apply to his sentence.
Second, after Blakely, "any fact other than that of a prior conviction, which increases the applicable punishment, must be found by a jury beyond a reasonable doubt (unless it is stipulated to by the defendant or the defendant waives his right to a jury finding)." State v. Hughes, 154 Wn.2d 118, 126, 110 P.3d 192 (2005), overruled on other grounds by Washington v. Recuenco, 548 U.S. ___, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006). Blakely held that "the 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely, 542 U.S. at 303 (quoting Ring v. Arizona, 536 U.W. 584, 592-93, and n 1, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002).
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
Here, the three consecutive mandatory firearm enhancements required the trial court to increase Rivera's standard range by 108 months. That additional punishment was based on the same facts that the jury found when it convicted him, not additional facts. The trial court found no additional facts in imposing 178 months of incarceration, so it did not violate Blakely.
But Rivera's judgment and sentence is facially invalid because it violated RCW 9.94A.505(5). After the firearm enhancements were applied to Rivera's initial standard range, his total standard range became 161 to 178 months. Moreover, former RCW 9.94A.120(11)(a) (2000) required the trial court to impose a term of community custody because a jury convicted Rivera of second degree assault, which is a violent offense. Former RCW 9.94A.030(41)(a) (2000). Here, the sentencing court imposed a community custody term of 24 months. As a result, Rivera's total sentence was 202 months.
But Rivera's statutory maximum sentence was 120 months. RCW 9A.20.021(1)(b); former RCW 9A.36.021(2) (2000). Where, as here, a defendant's presumptive sentence exceeds his statutory maximum sentence, the statutory maximum will be the presumptive sentence. Former RCW 9.94A.310(3)(g) (2000). Thus, the trial court violated RCW 9.94A.505(5) when it imposed a sentence, of 178 months of incarceration plus 24 months of community custody, because that exceeded the statutory maximum of 120 months.
For this reason, we conclude that the trial court abused its discretion when it denied Rivera's motion to modify his sentence. We remand this matter for resentencing. Upon remand, the trial court must sentence Rivera to at least 108 months of confinement because of his three consecutive mandatory firearm enhancements. Former RCW 9.94A.310(3)(g) (2000); see also State v. Thomas, 150 Wn.2d 666, 671, 80 P.3d 168 (2003). The trial court may sentence Rivera to up to 12 months of additional confinement, for a total of 120 months, based on his standard sentence range. It may also impose a term of community custody, to be served in the event that Rivera is released from confinement before reaching his statutory maximum punishment of 120 months. However, his judgment and sentence must state that the total of Rivera's confinement and community custody must not exceed 120 months. See State v. Sloan, 121 Wn. App. 220, 223-24, 87 P.3d 1214 (2004); Thomas, 150 Wn.2d at 674.
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., PENOYAR, J., concur.