FILED
JULY 29, 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v. ) UNPUBLISHED OPINION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. We reject Smith’s challenges because his
judgment and sentence reads that the combined time in prison and in community custody
must not exceed the statutory maximum for his crimes.
FACTS
On appeal, Brent Smith only challenges his sentence. The underlying facts of the
crime are irrelevant.
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
No. 37646-0-III
State v. Smith
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).
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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 reject the assignment of error because of 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.)
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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). Nevertheless, this court need not remand to amend the judgment
and sentence or to 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. In re Personal Restraint of
McWilliams, 182 Wn.2d at 218; In re Personal Restraint of Brooks, 166 Wn.2d 664, 673,
211 P.3d 1023 (2009). This 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. We do not require the lowering of the
sentence because the offender may gain early release such that a full or partial year of
community custody becomes warranted.
Brent Smith interprets In re Personal Restraint of McWilliams to read that a
notation stating that the combination of imprisonment and community custody will not
exceed the statutory maximum is an appropriate remedy only in the case of an
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State v. Smith
exceptional sentence. Although Personal Restraint of McWilliams reviewed an
exceptional sentence, the Supreme Court did not limit its decision to exceptional
sentences. Instead, the court extended its earlier ruling in Personal Restraint of Brooks to
exceptional sentences.
Brent Smith’s sentencing court inserted the necessary notation in Smith’s
judgment and sentence.
CONCLUSION
We affirm Brent Smith’s sentence.
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.
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