State of Washington v. Brent Richard Smith ( 2021 )


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  •                                                                       FILED
    SEPTEMBER 16, 2021
    In the Office of the Clerk of Court
    WA State Court of Appeals Division III
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    DIVISION THREE
    STATE OF WASHINGTON,                        )
    )          No. 37646-0-III
    Respondent,         )
    )
    v.                                   )          UNPUBLISHED OPINION
    )
    BRENT RICHARD SMITH,                        )
    )
    Appellant.          )
    FEARING, J. — Brent Smith challenges his sentence because the length of his
    sentences for individual crimes when combined with his time in community custody
    exceeds the statutory maximum for his crimes. Smith’s judgment and sentence reads that
    the combined time in prison and in community custody must not exceed the statutory
    maximum for his crimes. Because such a notation no longer complies with statutory
    sentencing requirements, we remand for resentencing.
    FACTS
    On appeal, Brent Smith only challenges his sentence. The underlying facts of the
    crime are irrelevant.
    No. 37646-0-III
    State v. Smith
    PROCEDURE
    The State of Washington charged Brent Smith with one count of felony violation
    of a court order. The State alleged that Smith telephoned the victim ten times over seven
    days, while having incurred at least two earlier convictions for violating a no contact
    order. The State alleged the aggravating circumstance of domestic violence, because the
    victim was currently or formerly in a dating relationship with Smith.
    The State later amended its information by charging Brent Smith with seven
    counts, rather than one count, of felony violation of a court order. The seven counts
    represented the number of days during which Smith allegedly telephoned the victim,
    rather than the number of calls.
    After a bench trial, the trial court found Brent Smith guilty as charged of violating
    a valid no contact order. The trial court determined that all seven counts constituted
    domestic violence.
    At sentencing, the trial court sentenced Brent Smith to sixty months’ confinement
    on each of the seven counts, with all seven sentences to be served concurrently. The
    court also imposed twelve months’ of community custody. Section 4.2 of the judgment
    and sentence, the community custody provision, reads, in relevant part:
    Note: combined term of confinement and community custody for
    any particular offense cannot exceed the statutory maximum. RCW
    9.94A.701.
    Clerk’s Papers (CP) at 99 (emphasis added).
    2
    No. 37646-0-III
    State v. Smith
    LAW AND ANALYSIS
    On appeal, Brent Smith assigns only one error. Smith argues that the sentencing
    court exceeded its authority by imposing sixty months’ confinement and twelve months’
    community custody for each conviction, when the maximum penalty for each of his
    convictions is sixty months. Smith requests that this court remand to amend the
    judgment and sentence to strike the community custody provision. Alternatively, Smith
    seeks resentencing to ensure that his total confinement and community custody terms do
    not exceed sixty months. We agree that remand for resentencing is necessary, despite the
    notation in the judgment and sentence that reads: “combined term of confinement and
    community custody for any particular offense cannot exceed the statutory maximum.
    RCW 9.94A.701.” CP at 99.
    RCW 9.94A.505 governs sentencing and provides:
    [A] court may not impose a sentence providing for a term of
    confinement or community custody that exceeds the statutory maximum for
    the crime as provided in chapter 9A.20 RCW.
    RCW 9.94A.505(5) (emphasis added.) RCW 9.94A.701 governs community custody.
    RCW 9.94A.701(9) declares:
    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.
    (Emphasis added.)
    3
    No. 37646-0-III
    State v. Smith
    The combined impact of RCW 9.94A.505(5) and RCW 9.94A.701(9) restricts a
    trial court from imposing a combined term of confinement and community custody that
    exceeds the statutory maximum. In re Personal Restraint of McWilliams, 
    182 Wn.2d 213
    , 216, 
    340 P.3d 223
     (2014). When the trial court imposes a sentence in violation of
    the statutes, we remand to the trial court to amend the community custody term or to
    resentence consistent with the statute. In re Personal Restraint of McWilliams, 
    182 Wn.2d 213
    , 217 (2014).
    In In re Personal Restraint of Brooks, 
    166 Wn.2d 664
    , 673, 
    211 P.3d 1023
     (2009),
    our high court held that appellate courts need not remand to amend the judgment and
    sentence or resentence, if a notation in the judgment and sentence explicitly states that the
    combination of confinement and community custody must not exceed the statutory
    maximum sentence for the crime of conviction. The notation, dubbed the Brooks
    notation, in the judgment informs the Department of Corrections that it must modify the
    amount of community custody to conform to the statutory maximum based on the amount
    of confinement actually served. In re Personal Restraint of Brooks, 
    166 Wn.2d 664
    , 672-
    73.
    As of RCW 9.94A.701(9)’s enactment on July 26, 2009, our high court has held
    that the Brooks notation procedure no longer complies with statutory requirements. State
    v. Boyd, 
    174 Wn.2d 470
    , 472-73, 
    275 P.3d 321
     (2012); State v. Franklin, 
    172 Wn.2d 831
    ,
    839-41, 
    263 P.3d 585
     (2011). For defendants sentenced after RCW 9.94A.701(9)’s
    4
    No. 37646-0-III
    State v. Smith
    effective date, it is the trial court’s responsibility to reduce the term of community
    custody to avoid a sentence in excess of the statutory maximum. State v. Boyd, 
    174 Wn.2d 470
    , 473 (2012).
    RCW 9.94A.701(9) declares:
    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.
    (Emphasis added.) The Brooks notation is still an appropriate remedy, however,
    when an exceptional sentence is imposed. In re Personal Restraint of
    McWilliams, 
    182 Wn.2d 213
    , 218 (2014).
    Brent Smith was sentenced after RCW 9.94A.701(9) went into effect. He
    received a standard range sentence, not an exceptional one. Therefore, the use of
    the Brooks notation was inappropriate in this case. The trial court should have
    ensured that Smith’s total term of confinement did not exceed the statutory
    maximum of sixty months.
    CONCLUSION
    We remand to the trial court to resentence Brent Smith. The trial court may, in its
    discretion, amend the judgment and sentence by striking the community custody
    provision or otherwise ensure that Smith’s total confinement and community custody
    terms for any of his offenses do not exceed the statutory maximum of sixty months.
    5
    No. 37646-0-III
    State v. Smith
    A majority of the panel has determined this opinion will not be printed in the
    Washington Appellate Reports, but it will be filed for public record pursuant to RCW
    2.06.040.
    _________________________________
    Fearing, J.
    WE CONCUR:
    ______________________________
    Lawrence-Berrey, J.
    ______________________________
    Staab, J.
    6