Opinion
No. 62001-1-I.
May 26, 2009.
Appeal from a judgment of the Superior Court for King County, No. 08-1-04240-1, Michael J. Trickey, J., entered July 10, 2008.
Remanded by unpublished per curiam opinion.
UNPUBLISHED OPINION
Alexander Torrico appeals the sentence imposed following his guilty plea to one count of domestic violence felony violation of a court order and one count of second degree malicious mischief. He contends, and the State agrees, that the combination of 60 months confinement and 9 to 18 months of community custody exceeds the 60-month maximum sentence for his offense. Torrico contends we should remand for resentencing. The State contends we should remand only for the court to clarify that Torrico's total sentence may not exceed the statutory maximum.
We recently held in State v. Linerud, 147 Wn. App. 944, 197 P.3d 1224 (2008) that when the combination of confinement and community custody exceeds the maximum sentence, the sentence is indeterminate and must be remanded for imposition of a determinate sentence not exceeding the statutory maximum. This is true even if the judgment and sentence recites that the total sentence shall not exceed the statutory maximum. Linerud, 147 Wn. App. at 949-51. Accordingly, we must remand for resentencing and for the court to exercise its discretion regarding the terms of confinement and community custody. Linerud, 147 Wn. App. at 951. We note that "[i]f the trial court wants to impose the maximum terms of confinement and community custody, it may do so under the second option in RCW 9.94A.715(1), which permits it to impose a term of community custody equal to the earned early release time." Order Den. Mot. for Recons. And Amending Op. at 1, Linerud, No. 60769-3-I (Wash.Ct.App. Mar. 20, 2009), amendment to be published at Linerud, 147 Wn. App. at 950 at n. 17.
Remanded for resentencing.