166 Wash. 2d 664 | Wash. | 2009
¶1 — In 2006, Jeffrey Brooks was convicted of three counts of first degree attempted robbery and was sentenced to 120 months of total confinement and 18-36 months of community custody. The statutory maximum sentence for attempted robbery, a class B felony, is 120 months. RCW 9A.20.021(1)(b). In 2007, Brooks filed a personal restraint petition (PRP) in the Court of Appeals arguing that the combination of confinement and community custody exceeded the statutory maximum and that his sentence was therefore invalid. The Court of Appeals denied the petition, and Brooks sought discretionary review in this court. The commissioner denied review on the condition that the State obtain an amended judgment and sentence clarifying that Brooks’s period of total confinement and community custody together could not exceed the 120 month statutory maximum. The State obtained the clarification from the sentencing court, and we are now asked to determine whether the amended judgment and sentence is facially invalid. We hold that the amended sentence is not invalid and deny further relief.
FACTS AND PROCEDURAL HISTORY
¶2 On October 4, 2006, a jury found Brooks guilty of three counts of first degree attempted robbery and one count of residential burglary. At the time, Brooks’s offender score made his standard range sentence 97-128 months of actual confinement and 18-36 months of community custody. Attempted first degree robbery is a class B felony carrying a statutory maximum term of 10 years (120 months) and a $20,000 fine. RCW 9A.20.020(1)(b). The trial court sentenced Brooks to 120 months of actual confine
¶3 In June 2007, Brooks filed a motion for relief from judgment in Whatcom County Superior Court, which was transferred to the Court of Appeals to be treated as a PRR Brooks argued that the combination of total confinement and community custody ordered by the court exceeded the statutory maximum sentence allowed for a class B felony. The acting chief judge of Division One of the Court of Appeals denied the petition upon the mistaken understanding that Brooks had been convicted of robbery in the first degree, a class A felony carrying a statutory maximum penalty of life.
¶4 Brooks then sought discretionary review in this court. Recognizing the Court of Appeals had misunderstood the classification of Brooks’s crime, the commissioner nevertheless denied review on the condition that the State obtain an amended judgment and sentence clarifying that Brooks’s period of total confinement and community custody together could not exceed the 120 month statutory maximum for a class B felony. The trial court entered an order amending the judgment and sentence consistent with the commissioner’s decision.
ANALYSIS
¶5 We are asked to determine if Brooks was given a lawful sentence under the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW. We review questions of law de novo. State v. Miller, 156 Wn.2d 23, 27, 123 P.3d 827 (2005).
¶7 Brooks argues that both the original and the amended judgment and sentence violate RCW 9.94A.505(5) by potentially imposing a term of confinement and community custody that exceeds the 10 year maximum allowed for a conviction for attempted robbery in the first degree. As Brooks correctly notes, were he to serve all 120 months of his term of confinement and the maximum of his 18-36 months of community custody, he would serve a sentence of 156 months, three years more than the statutory maximum. Though Brooks may earn early release credits allowing him to be released from confinement before 120 months has passed, he argues that a sentencing court may not take into account the possibility of early release when it imposes the terms of the sentence. Instead, he asserts that when a sentence imposes a term of confinement and community placement that has the potential to exceed the statutory maximum, the court must reduce the amount of either confinement or community custody.
¶8 In contrast, the State argues that the amount of community custody served by Brooks is “inextricably linked” to any early release time he earns pursuant to RCW
¶9 The different divisions of the Court of Appeals have taken divergent paths in resolving this issue. In 2004, Division One examined a case in which the defendant had been sentenced to the statutory maximum 60 months of confinement for a class C felony and an additional 36 to 46 months of community custody. State v. Sloan, 121 Wn. App. 220, 222, 87 P.3d 1214 (2004). In finding the sentence valid, the court held that a sentence that imposes both the statutory maximum term of confinement and the statutory range of community custody does not exceed the statutory maximum because defendants may earn early release time reducing their terms of actual confinement. Id. at 223. The court reasoned that even if no early release credits are earned, defendants would simply “be released [by the DOC] with no further obligation” before exceeding the statutory maximum, even if they had not in fact served their court ordered term of community custody. Id. While the court found the sentence
¶10 The approach taken by the court in Sloan was followed by Division One until 2008 when it decided State v. Linerud, 147 Wn. App. 944, 948, 197 P.3d 1224 (2008). Linerud was sentenced to 43 months of confinement and 36 to 48 months of community custody, making his potential total sentence more than the 60 month statutory maximum. Id. at 947. However, as the Sloan court directed, the sentencing court included a notation that the combined prison time and community custody could not exceed the statutory maximum of 60 months. Id. While recognizing that the sentencing court had followed the Sloan model, the court nevertheless vacated Linerud’s sentence and remanded the case for resentencing, holding that a sentence that requires the DOC to ensure that the defendant does not serve more than the statutory maximum is indeterminate and in violation of the SRA. Id. at 949-50. Specifically, the court found that the sentencing court must impose a determinate sentence within the standard range and may not leave it to the DOC to later decide how much community custody an offender will serve. Id. at 950. The court held that the sentence was invalid on its face and directed the sentencing court to resentence Linerud to a definite term that specified both the amount of confinement and the amount of community custody to be served under the statutory maximum. Id. at 951.
¶11 Division Three has likewise had an opportunity to address this issue. In 2005, the court determined that a sentence imposing a term of confinement and community custody that had the potential to exceed the statutory maximum was invalid on its face, vacated the sentence,
Does the sentence exceed the statutory maximum?
¶12 Brooks argues that the sentence imposed exceeds the statutory maximum. Turning to the SRA itself, we note that while a sentencing court is required to impose a determinate sentence that does not exceed the statutory maximum, the community custody provisions of the SRA make it impossible to determine with any certainty how much community custody a defendant will actually be required to serve until well after the court imposes the sentence. RCW 9.94A.715(1) states, “[T]he court shall in
¶13 Here, Brooks’s sentence can exceed the statutory maximum only if we add the community custody range to the term of confinement and presume both that Brooks will earn something less than 18 months of earned early release credits and that the DOC will ignore the mandates of the SRA. But the legislature gave discretion to the DOC to set the specific amount of community custody within the confines outlined by both the court and the SRA. Not only did
Is THE SENTENCE INDETERMINATE?
¶14 Next we address whether the sentence is invalid because it is indeterminate. A determinate sentence is defined in the SRA as “a sentence that states with exactitude the number of actual years, months, or days of total confinement, of partial confinement, [or of] community supervision.” RCW 9.94A.030(21). “The fact that an offender through earned release can reduce the actual period of confinement shall not affect the classification of the sentence as a determinate sentence.” Id. Brooks suggests that the sentence does not state with any certainty how many years, months, or days he will remain in both confinement and community custody. The Court of Appeals agreed with this argument in Linerud and held that a sentence that left to the DOC the ultimate responsibility of ensuring an offender does not serve a sentence greater than the statutory maximum was indeterminate and in violation of the SRA. Linerud, 147 Wn. App. at 950. The court specifically found that the type of sentence at issue here allowed the DOC to impose the sentence rather than the court. The court stated that it was “within the trial court’s discretion to determine how much of [a] sentence is confinement and how much is community custody.” Id. at 951. It was the
¶15 The SRA specifically states that a sentence is not rendered indeterminate by the fact that a defendant may earn early release credits. RCW 9.94A.030(21). Under the current statutory scheme, the exact amount of time to be served can almost never be determined when the sentence is imposed by the court. The only thing that can be determined at the time of sentencing is the maximum amount of time an offender will serve in confinement and the maximum amount of time the offender may serve in totality. While the DOC was left the responsibility of ensuring Brooks did not serve more than 120 months of confinement and community custody, this responsibility stemmed from both the requirements of the SRA and the sentence that the court imposed. Here the court imposed a sentence that had both a defined range and a determinate maximum. It is the SRA itself that gave courts the power to impose sentences and the DOC the responsibility to set the amount of community custody to be served within that sentence. We hold that Brooks’s sentence is not indeterminate.
¶16 Brooks’s amended judgment and sentence is valid. We hold that when a defendant is sentenced to a term of confinement and community custody that has the potential to exceed the statutory maximum for the crime, the appropriate remedy is to remand to the trial court to amend the sentence and explicitly state that the combination of confinement and community custody shall not exceed the statutory maximum. Because the amended judgment and sentence in this case ensures that Brooks will not serve a sentence in excess of the statutory maximum, Brooks’s PRP is denied.
The order amending the judgment and sentence added the following language: “The total of the term of incarceration and the term of community custody for each counts I, II, and III shall not exceed the statutory maximum of 120 months.” Order Amending J. and Sentence at 1.
Attempted robbery in the first degree is a violent offense under the SRA. RCW 9.94A.030(54)(a)(i).
The 40 months of earned early release time would have exceeded the maximum community custody range imposed by the court. However, as noted above, RCW 9.94A.715(1) requires a court to impose a term of community custody of either the statutory range or the amount of earned early release, whichever is longer.
In his answer to the brief of amicus curiae, Brooks points out that the legislature has again amended the SRA. and has repealed RCW 9.94A.715, effective August 1, 2009. Substitute S.B. 5190, 61st Leg., Reg. Sess. (Wash. 2009); Laws of 2009, ch. 28, § 42(2); see also Pet’r’s Answer to Br. of Amicus Curiae at 1. Having reviewed the upcoming amendments, it appears the legislature has addressed the very questions we are asked to answer in this case. Engrossed Substitute S.B. 5288, 61st Leg., Reg. Sess. (Wash. 2009) amends RCW 9.94A-.701(8) to read:
The term of community custody specified by this section shall be reduced by the court whenever an offender’s standard range term of confinement in combination with the term of community custody exceeds the statutory maximum for the crime as provided in RCW 9A.20.021.
Laws of 2009, ch. 375, § 5. Despite the upcoming changes, we address the issues raised here in order to resolve the conflict between the divisions of the Court of Appeals and to give guidance to trial courts as they await the amendment to take effect.
The court later amended the opinion to state in a footnote that if “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, State v. Linerud, No. 60769-3-1, 2008 Wash. App. LEXIS 3047 (Wash. Ct. App. Mar. 20, 2009), amendment to be published in Linerud, 147 Wn. App. at 951 n.17. As amicus Washington Association of Prosecuting Attorneys points out, the court was under the mistaken belief that RCW 9.94A.715(1) allows a sentencing court to choose between two options when sentencing offenders to terms of community custody.
Brooks also argues that his sentence violates the separation of powers doctrine. We elect not to reach this issue as it is not sufficiently supported by relevant authority. See 1000 Friends of Wash. v. McFarland, 159 Wn.2d 165, 187 n.12, 149 P.3d 616 (2006) (citing In re Registration of Elec. Lightwave, Inc., 123 Wn.2d 530, 545, 869 P.2d 1045 (1994)).