Personal Restraint Petition Of Peter Anthony Van Auken ( 2016 )

Filed
Washington State
Court of Appeals
Division Two
June 1, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the No. 48269-0-II
Personal Restraint Petition of
PETER A. VAN AUKEN,
Petitioner
UNPUBLISHED OPINION
BJORGEN, C.J. – Peter Van Auken seeks relief from personal restraint imposed following
his 2010 guilty plea to third degree rape of a child. The trial court sentenced him to 15 months of
confinement and 36 to 48 months of community custody. Van Auken argues that this sentence
exceeds the five-year statutory maximum penalty for his crimes. RCW 9A.20.030(1)(c).
The State concedes that for sentences of this nature imposed on or after August 1, 2009,
RCW 9.94A.701(1) requires the imposition of a 36-month term of community custody. LAWS of
2008, ch. 231, §§ 7, 55. Van Auken’s judgment and sentence is facially invalid because it exceeds
the prescribed 36-month term of community custody and for that reason is not subject to the time
bar contained in RCW 10.73.090(1).
No. 48269-0-II
Therefore, we grant Van Auken's personal restraint petition and remand to the trial court
to correct his judgment and sentence to the prescribed 36-month term of community custody.
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 in accordance with RCW 2.06.040,
it is so ordered.
BJORGEN, C.J.
We concur:
WORSWICK, J.
JOHANSON, J.
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