FILED
MAY 14, 2019
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. 36402-0-III
)
CHRISTOPHER BRYAN KELLEY, )
) UNPUBLISHED OPINION
)
Petitioner. )
KORSMO, J. — Christopher Kelley seeks relief from personal restraint imposed for
2015 Kittitas County convictions that included 17 counts of second degree identity theft.
The trial court sentenced him to 57 months of confinement and 12 months of community
custody on those counts. Mr. Kelley argues, and the State concedes, that the combination
of those terms exceeds the five-year statutory maximum sentence for the crime. We
grant the petition and remand to reduce the term of community custody.
Mr. Kelley was convicted in a jury trial of 38 counts, including count 1 (first
degree identity theft), count 2 (possession of stolen mail), count 3 (second degree
possession of stolen property), counts 4-20 (unlawful possession of payment
instruments), counts 21-37 (second degree identity theft), and count 38 (making or having
No. 36402-0-III
PRP of Kelley
burglar tools—a gross misdemeanor). The court imposed concurrent sentences totaling
84 months on counts 1-20, and concurrent sentences totaling 57 months on counts 21-38.
The court ran the two groups of sentences consecutive to each other as an exceptional
sentence, for a total incarceration term of 141 months. The court also imposed a 12-
month community custody term for count 1, and a consecutive 12-month community
custody term for counts 21-37.
Mr. Kelley argues, and the State concedes, that his total sentence for counts 21-37
exceeds the statutory maximum. A sentence imposed in excess of the court’s statutory
sentencing authority renders a judgment and sentence facially invalid under RCW
10.73.090(1), and warrants relief in a personal restraint petition. In re Pers. Restraint of
Coats, 173 Wn.2d 123, 135, 267 P.3d 324 (2011).
A defendant’s sentence cannot exceed the statutory maximum term for the class of
crime for which the offender was convicted. RCW 9A.20.021(1). Terms of confinement
and community custody are both included in the calculation of the statutory maximum
term, and the combination of the two cannot exceed the statutory maximum. RCW
9.94A.505(5); State v. Boyd, 174 Wn.2d 470, 473, 275 P.3d 321 (2012). Under RCW
9.94A.701(9), trial courts must reduce the community custody term “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 for in
RCW 9A.20.021.”
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No. 36402-0-III
PRP ofKelley
The statutory maximum for second degree identity theft, a class "C" felony, is 60
months. RCW 9.35.020(3); RCW 9A.20.02l(l)(c). Here, the combination of prison time
(57 months) and community custody (12 months) for the second degree identity theft
counts exceeds this limitation. This renders Mr. Kelley's judgment and sentence invalid
on its face. Under Boyd, the trial court was required to reduce his community custody
term for counts 21-37 to three months to avoid a sentence in excess of the statutory
maximum. Boyd, 174 Wn.2d at 473.
We therefore grant Mr. Kelley's petition and remand to the trial court for the sole
purpose of amending the community custody term for counts 21-37, consistent with
RCW 9.94A.701(9).
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.
WE CONCUR:
Fearing,�
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