Opinion
No. 37604-1-II.
March 3, 2009.
Appeal from a judgment of the Superior Court for Clark County, No. 05-1-01826-7, Robert L. Harris, J., entered March 18, 2008.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Houghton and Hunt, JJ.
Sanford Simmet II pleaded guilty to two counts of vehicular homicide and one count of vehicular assault. He later moved to modify his sentence, arguing that his combined terms of confinement and community custody exceed his statutory maximum sentence in violation of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and State v. Zavala-Reynoso, 127 Wn. App. 119, 110 P.3d 827 (2005). The trial court denied his motion and he appeals. A commissioner of this court initially considered his appeal as a motion on the merits under RAP 18.14 and then referred it to a panel of judges. Concluding that the trial court did not err, we affirm.
Based on a stipulated offender score of 9, Simmet's standard sentence range for the vehicular homicide counts was 129 to 171 months of confinement. The trial court sentenced Simmet to concurrent terms of 160 months of confinement for the two vehicular homicide counts, to be followed by 18 to 36 months of community custody.
The vehicular assault count carried a standard range of 63 to 84 months. The trial court sentenced him to 75 months confinement plus 18 to 36 months of community custody, concurrent with the other counts. Simmet does not challenge this sentence.
Simmet renews his argument that the trial court violated Blakely when it imposed a sentence in which the combined terms of incarceration and community custody exceeded the top of his standard sentencing range. Zavala-Reynoso, 127 Wn. App. at 124. But we reject the argument that the top of the standard sentence range is the statutory maximum sentence for purposes of determining whether the combined terms of confinement and community custody exceed that maximum. The statutory maximum sentence, for that purpose, is the statutory maximum sentence defined in chapter 9A.20 RCW. State v. Thompson, 143 Wn. App. 861, 871, 181 P.3d 858, review denied, 164 Wn.2d 1035 (2008); State v. Vant, 145 Wn. App. 592, 605, 186 P.3d 1149 (2008).
In Zavala-Reynoso, both the top of the standard sentence range and the statutory maximum sentence under RCW 9A.20.021(1)(b) were 120 months. Thus, Thompson and Vant are consistent with Zavala-Reynoso.
Community custody is part of Simmet's punishment, making his total sentence longer than the high end of his standard range. State v. Sloan, 121 Wn. App. 220, 223, 87 P.3d 1214 (2004). But that additional punishment was based on the same facts that Simmet admitted to by pleading guilty. Former RCW 9.94A.715 (2003) required the trial court to impose the term of community custody because he pleaded guilty to a violent offense. The trial court found no additional facts in imposing the term of community custody, so it did not violate Blakely. So long as the combined terms of Simmet's confinement and community custody do not exceed the statutory maximum sentence for vehicular homicide, his sentence does not violate Blakely. Thompson, 143 Wn. App. at 871; Vant, 145 Wn. App. at 605-06. The statutory maximum sentence for vehicular homicide is life imprisonment. RCW 9A.20.021(1)(a). His combined terms of confinement and community custody, 178 to 196 months, do not exceed that statutory maximum sentence. Therefore, the trial court did not impose a sentence that violates Blakely.
We affirm the trial court's denial of Simmet's motion to modify his sentence.
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.