Filed
Washington State
Court of Appeals
Division Two
August 30, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 48144-8-II
Respondent,
UNPUBLISHED OPINION
v.
MARK DAVIS,
Appellant.
BJORGEN, C.J. — Mark Davis appeals his sentence of 60 months’ incarceration and 12
months’ community custody for custodial assault. He argues that his combined sentence of 72
months exceeds the statutory maximum of 60 months permitted under RCW 9A.20.021.1 The
State concedes the error. We accept the State’s concession and vacate and remand for
resentencing.
FACTS
Davis, an inmate at the Pierce County Jail, created a disturbance and bit a corrections
officer, David Shultz, who attempted to restrain him. Following trial, a jury found him guilty of
custodial assault. Custodial assault is a class C felony that bears a maximum sentence of 5 years,
RCW 9A.20.021(1)(c), and carries a mandatory 12-month term of community custody. RCW
9.94A.701(3). In October 2015, the court sentenced Davis to 60 months’ incarceration and 12
1
The statute was amended in 2015. The amendment does not affect the issues in this case.
No. 48144-8-II
months’ community custody with a notation that the combined time served cannot be more than
the statutory maximum.
Davis appeals.
ANALYSIS
We review issues of law in the sentencing court’s order de novo. See State v. Bruch, 182
Wn.2d 854, 859, 346 P.3d 724 (2015). Davis argues, and the State concedes, that the sentencing
court erred by imposing a combined sentence that exceeded the statutory maximum. We accept
the State’s concession because under RCW 9.94A.701(9), the judicial sentence must facially
comply with the statutory maximum.
In the past, sentencing courts could use a “Brooks notation” to note the statutory
maximum and to give the Department of Corrections authority to adjust the sentence as
necessary to ensure the actual sentence did not exceed that maximum. In re Pers. Restraint of
Brooks, 166 Wn.2d 664, 666 211 P.3d 1023 (2009); see also State v. Franklin, 172 Wn.2d 831,
834–35, 839, 263 P.3d 585 (2011). RCW 9.94A.701 was amended in 2009 to require the
sentencing court at the time of sentencing to impose a sentence that could not exceed the
statutory maximum. RCW 9.94A.701(9) (providing that a sentence “shall be reduced by the
court whenever an offender’s [combined sentence] . . . exceeds the statutory maximum”)
(emphasis added).
For all crimes committed after July 26, 2009—when the pertinent amendment to RCW
9.94A.701 went into effect—a sentencing court may only impose sentences that facially comply
with the statutory maximum and may not use a Brooks notation to ensure compliance. State v.
Boyd, 174 Wn.2d 470, 473, 275 P.3d 321 (2012). Davis was sentenced in October 2015.
Therefore, under RCW 9.94A.701(9) and Boyd, Davis is entitled to a sentence that complies with
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No. 48144-8-II
the statutory maximum term at the time of sentencing. Since the sentencing court erred in
imposing a combined sentence that exceeds the statutory maximum on its face, we vacate
Davis’s sentence and remand for resentencing.
Despite the State’s concession, there is a discrepancy between the parties’ requested
relief: the State requests the sentence be remanded to remove the surplus one year of community
custody, and Davis requests remand to reduce the term of incarceration or community custody to
less than 60 months. Following Boyd, 174 Wn.2d at 473, we remand for the sentencing court to
reduce the term of incarceration or community custody so that the combined total does not
exceed 60 months.
CONCLUSION
We accept the State’s concession, vacate the trial court’s sentence, and remand for
imposition of a combined sentence that does not exceed 60 months.
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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