Opinion
No. 34111-5-II.
April 17, 2007.
Appeal from a judgment of the Superior Court for Wahkiakum County, No. 00-1-00007-9, Joel M. Penoyar, J., entered July 11, 2005.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Van Deren, J., concurred in by Houghton, C.J., and Quinn-Brintnall, J.
David Dominic Tarabochia appeals the trial court's denial of his motion to modify his sentence for conviction on two counts of first degree child molestation, one count of second degree child molestation, and one count of sexual exploitation of a minor. He argues that the trial court erred by imposing a prison term of 126 months plus an additional 36 months of community placement, thus exceeding the top of the standard range and violating Blakely.
Tarabochia's judgment and sentence reflect community placement for 36 months. For clarification, we note that the community placement statute, RCW 9.94A.700, refers to duration in terms of years, as opposed to months. This distinction does not change our analysis.
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
We accept the State's concession that the proper term of community placement for two of Tarabochia's convictions was two years, not three years, and that the matter should be remanded for correction of the judgment and sentence on those counts only. Because the trial court was required to impose a term of three years of community custody on the third count, we affirm the sentence on count III.
The trial court sentenced Tarabochia to "community placement" for 36 months. Clerk's Papers (CP) at 140. The underlying statute in effect at the time for the offenses described in counts I and II, former RCW 9.94A.120(8)(b) (1993), provided that the court should sentence the offender to "community placement for two years." In contrast, the underlying statute in effect at the time for the offense described in count III, former RCW 9.94A.120(10)(a) (1998), provided that the court should sentence the offender to three years of "community custody." RCW 9.94A.030(7) defines community placement as "that period during which the offender is subject to the conditions of community custody and/or post release supervision. . . . Community placement may consist of entirely community custody." RCW 9.94A.030(5) defines community custody as "that portion of an offender's sentence of confinement in lieu of earned release time. . . served in the community subject to controls placed on the offender's movement and activities by the department." Tarabochia does not assert error based on this distinction and we mention it solely to provide clarification.
We affirm the trial court's denial of his motion to modify the sentence in part and reverse and remand in part.
FACTS
Tarabochia pleaded guilty to two counts of first degree child molestation (counts I and II), one count of second degree child molestation (count III), and one count of sexual exploitation of a minor (count IV). In his statement of defendant on plea of guilty, Tarabochia asserted that the events constituting the crimes charged in counts I and II occurred in 1993 and the events constituting the crime charged in count III occurred in 1998. The trial court accepted Tarabochia's plea on October 9, 2000.
The trial court sentenced Tarabochia to concurrent terms of 126 months for count I, 126 months for count II, 78 months for count III, and 53 months for count IV. The trial court also ordered 36 months community placement on each of counts I, II, and III.
Tarabochia appealed his sentence in 2001, arguing that the trial court erred by rejecting his affidavit of prejudice and that his defense counsel provided ineffective assistance. We affirmed his convictions in an unpublished opinion, and the Supreme Court affirmed our decision. State v. Tarabochia, 150 Wn.2d 59, 74 P.3d 642 (2003).
State v. Tarabochia, 112 Wn. App. 1018 (2002).
On June 27, 2005, Tarabochia filed a motion to modify his judgment and sentence under CrR. 7.8(b)(5), arguing that the combined term of confinement and community placement or community custody exceeded the statutory maximum sentence, thereby violating Blakely. Additionally, he argued that the trial court abused its discretion by imposing 36 months of community placement or custody. The trial court denied the motion.
On motion and upon such terms as are just, the court may relieve a party from a final judgment, order, or proceeding for the following reason:
. . . .
(5) [a]ny reason justifying relief from the operation of the judgment.
CrR. 7.8(b).
Tarabochia appeals.
ANALYSIS
I. Standard of Review
"[A] criminal sentence imposed by a superior court is not subject to appellate review so long as the punishment falls within the correct standard sentencing range established by the Sentencing Reform Act of 1981." State v. Williams, 149 Wn.2d 143, 146, 65 P.3d 1214 (2003). We review sentencing issues under the law in effect at the time of the offense. RCW 9.94A.345; State v. Taylor, 111 Wn. App. 519, 523, 45 P.3d 1112 (2002), review denied, 148 Wn.2d 1005, 60 P.3d 1212 (2003).
II. Statutory Maximum Sentence
Tarabochia does not contest his offender score of 7 or the standard range of 108 to 144 months on counts I and II. Tarabochia argues that the trial court unlawfully exceeded the statutory maximum sentence for a class A felony when it imposed 36 months of community placement as well as 126 months of confinement.
The sentencing statute in effect when Tarabochia was sentenced provided that "a court may not impose a sentence providing for a term of confinement or community supervision or community placement which exceeds the statutory maximum for the crime as provided in chapter 9A.20 RCW." Former RCW 9.94A.120(13) (1998). The maximum sentence for Tarabochia's class A felony offenses under chapter 9A.20 RCW is life imprisonment. See RCW 9A.44.083(2); RCW 9A.20.021(1)(a).
Effective July 1, 2001, RCW 9.94A.120 was recodified to RCW 9.94A.505. Laws of 2001, ch. 10, § 6.
Tarabochia argues that the term "statutory maximum" does not apply to the maximum sentence that a trial court may impose under a statute, but rather is the maximum that a trial court may impose without making additional findings. Br. of Appellant at 7. Although Tarabochia does not cite to specific authority, he is presumably referring to the definition of "statutory maximum" used by the Blakely court in reference to Apprendi. Blakely, 542 U.S. at 301.
In Apprendi, the United States Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490.
In Blakely, the Court clarified that the relevant "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." 542 U.S. at 303 (emphasis omitted).
Tarabochia relies on State v. Zavala-Reynoso, 127 Wn. App. 119, 110 P.3d 827 (2005). But Zavala-Reynoso is distinguishable. Zavala-Reynoso requested relief from his judgment and sentence under CrR 7.8(b)(4) and (5) because the trial court imposed community custody that, when added to the prison term, exceeded the statutory maximum term of 120 months. 127 Wn. App. at 124. Division III of this court agreed and remanded for resentencing. Zavala-Reynosa, 127 Wn. App. at 124.
RCW 9.94A.700 provides that a sentencing court must impose a term of community placement according to the seriousness and type of the underlying offense. As long as the combined total of incarceration plus community placement does not exceed the statutory maximum in chapter 9A.20 RCW, the sentence is lawful. Former RCW 9.94A.120(13) (1998). Tarabochia's combined prison and community placement term of 162 months is well below the maximum term of life imprisonment.
Nevertheless, the State concedes that "the correct sentence for Counts I and II was a Standard Range of confinement for 108 to 144 months plus community placement for two years or up to the period of earned early release, whichever is longer." Br. of Resp't at 3. Former RCW 9.94A.120(8)(b) (1993), the applicable statute at the time of the offenses in counts I and II, provided:
When a court sentences a person to a term of total confinement to the custody of the department of corrections for an offense categorized as a sex offense or serious violent offense committed on or after July 1, 1990, the court shall in addition to other terms of the sentence, sentence the offender to community placement for two years or up to the period of earned early release awarded pursuant to RCW 9.94A.150(1) and (2), whichever is longer. The community placement shall begin either upon completion of the term of confinement or at such time as the offender is transferred to community custody in lieu of earned early release in accordance with RCW 9.94A.150(1) and (2).
Contrary to this two year requirement, the trial court imposed three years of community placement on counts I and II. We agree that the proper length of community placement at the time of sentencing was two years.
The State alleges that this error was harmless because the trial court correctly imposed three years' community custody for count III. Former RCW 9.94A.120(10)(a) (1998) provided:
When a court sentences a person to the custody of the department of corrections for an offense categorized as a sex offense committed on or after June 6, 1996, the court shall, in addition to other terms of the sentence, sentence the offender to community custody for three years or up to the period of earned early release awarded pursuant to RCW 9.94A.150(1) and (2), whichever is longer. The community custody shall begin either upon completion of the term of confinement or at such time as the offender is transferred to community custody in lieu of earned early release in accordance with RCW 9.94A.150(1) and (2).
Accordingly, the trial court did not err in imposing three years of community placement on count III.
We remand to the trial court for correction of the length of community placement on counts I and II from three years to two years. Because the trial court correctly sentenced Tarabochia for count III, the correction of the length of community placement on counts I and II will not affect the amount of time Tarabochia actually serves on community placement.
We affirm the trial court's denial of his motion to modify the sentence in part and reverse and remand in part.
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. and QUINN-BRINTNALL, J., concur.