FILED
AUGUST 28, 2018
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
)
In the Matter of the Personal Restraint of No. 35768-6-III
)
AARON DONALD SMITH, )
) UNPUBLISHED OPINION
Petitioner. )
)
SIDDOWAY, J. — Aaron Smith has filed a personal restraint petition (PRP),
attacking his 2016 Spokane County judgment and sentence for third degree assault.
Because the imposed sentence exceeds the statutory maximum for the offense of third
degree assault, we grant relief from this sentence and remand for resentencing.
BACKGROUND
Mr. Smith pleaded guilty in April 2016 to one count of third degree assault in
Spokane County Superior Court. The court sentenced Mr. Smith, who had an offender
score of 9+, to a low-end standard range sentence of 51 months’ confinement and also
ordered 12 months of community custody.
On December 16, 2017, Mr. Smith filed a CrR 7.8 motion to amend the judgment,
asking the superior court to amend his sentence to 48 months’ confinement with 12
No. 35768-6-III
In re Pers. Restraint of Smith
months’ community custody. On December 21, 2017, the superior court transferred the
matter to this court for consideration as a PRP pursuant to CrR 7.8(c)(2).
ANALYSIS
To obtain relief in a PRP, Mr. Smith must show actual and substantial prejudice
resulting from alleged constitutional errors, or, for alleged nonconstitutional errors, a
fundamental defect that inherently results in a miscarriage of justice. In re Pers. Restraint
of Cook, 114 Wn.2d 802, 813, 792 P.2d 505 (1990). Since Mr. Smith filed this petition
more than one year after his judgment and sentence became final, it is barred as untimely
under RCW 10.73.090(1) unless the judgment and sentence is invalid on its face, the
court lacked competent jurisdiction, or the petition is based solely on one or more
exceptions set forth in RCW 10.73.100(1)-(6). Relevant to this petition, a sentence
imposed in excess of the court’s statutory sentencing authority renders a judgment and
sentence facially invalid. In re Pers. Restraint of Coats, 173 Wn.2d 123, 135, 267 P.3d
324 (2011).
Mr. Smith contends his petition is timely because his sentence exceeds the
statutory maximum term and is therefore facially invalid. The State concedes the
timeliness of Mr. Smith’s petition as well as the need for remand and resentencing.
A defendant’s combined term of confinement and community custody cannot
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In re Pers. Restraint of Smith
exceed the statutory maximum for his crime of conviction. RCW 9.94A.505(5); State v.
Boyd, 174 Wn.2d 470, 473, 275 P.3d 321 (2012). Accordingly, RCW 9.94A.701(9)
requires the sentencing court to reduce the term of community custody whenever the
combination of a term of community custody and “standard range term of confinement”
exceeds the statutory maximum sentence. When the sentencing court fails to act in
accordance with RCW 9.94A.701(9), the remedy is remand for resentencing or
amendment of the community custody term. See Boyd, 274 Wn.2d at 472-73.
Mr. Smith pleaded guilty to a class C felony. RCW 9A.36.031. His maximum
term of confinement is therefore 5 years (60 months). RCW 9A.20.021(1)(c). The court
sentenced Mr. Smith to 51 months of confinement along with 12 months of community
custody. This total term of 63 months exceeds the statutory maximum by 3 months.
Under RCW 9.94A.701(9), the sentencing court had a duty to reduce the term of Mr.
Smith’s combined sentence so that it did not exceed the statutory maximum, and its
failure to do so renders Mr. Smith’s judgment and sentence facially invalid.1
Because Mr. Smith received an illegal sentence in excess of the trial court’s
1
Although the court included a “Brooks notation” in the judgment and sentence,
this is insufficient to remedy the fact that the combined sentence exceeds the maximum
allowable sentence. Boyd, 174 Wn.2d at 473; In re Pers. Restraint of Brooks, 166 Wn.2d
664, 674, 211 P.3d 1023 (2009).
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In re Pers. Restraint of Smith
sentencing authority, he has suffered actual and substantial prejudice and is therefore
entitled to relief.
CONCLUSION
We vacate Mr. Smith’s sentence and remand to the trial court for resentencing in
accordance with RCW 9.94A.701(9).
A majority of this 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.
_____________________________
Siddoway, J.
WE CONCUR:
_____________________________
Lawrence-Berrey, C.J.
_____________________________
Pennell, J.
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