In re the Personal Restraint of McWilliams

Gordon McCloud, J.

¶10 (dissenting) — I agree with the majority that the trial court erred in sentencing Dante McWilliams to a combined term of imprisonment and community custody that exceeded the statutory maximum and that McWilliams is therefore entitled to relief. But I disagree that this relief is limited to remand for the addition of a Brooks5 notation. Instead, I believe that McWilliams is entitled to a full resentencing. I therefore respectfully dissent.

ANALYSIS

¶11 Not every error in a judgment and sentence necessitates a full resentencing — some errors can be corrected through remand for a “ministerial correction.” State v. Ramos, 171 Wn.2d 46, 48-49, 246 P.3d 811 (2011). That remedy is appropriate if the error does not implicate the trial court’s discretion. Id. at 49.

¶12 By remanding for the addition of a Brooks notation to McWilliams’s judgment and sentence, the majority treats the error in this case as a purely ministerial matter. But that is contrary to our case law on errors involving the length of a sentence, whether it is the length of the imprisonment portion of the sentence or the length of the community custody portion of the sentence.

¶13 Under that case law, a mistake regarding the period of community custody requires a full resentencing even if the correct term is fixed by statute (and thus not subject to the trial court’s discretion). State v. Broadaway, 133 Wn.2d 118, 135-36, 942 P.2d 363 (1997). This is so because the term of community custody and the term of incarceration are linked, so the trial judge must be allowed to “reconsider the length of the standard range sentence in light of the correct *220period of community [custody] required.” Id. at 136 (emphasis added).6

¶14 McWilliams was given an exceptional sentence of 120 months of incarceration plus 18 months of community custody. Under RCW 9.94A.701(2), the trial court was required to impose an 18-month term of community custody for McWilliams’s offense — second degree assault.7 But, as the majority recognizes, the trial court was also prohibited from imposing a combined term of incarceration and community custody that exceeded the statutory maximum of 120 months. RCW 9.94A.505(5); majority at 216. A Brooks notation is one way to correct the error and ensure that the combined term does not exceed the statutory maximum.

¶15 But that is not the only way. Another way to comply with RCW 9.94A.505(5) would be to reduce the term of incarceration by 18 months. Indeed, that approach is the only way to ensure that McWilliams will eventually serve the full 18 months of community custody — the mere addition of a Brooks notation leaves open the possibility that he will serve all 120 months in total confinement, having earned no early release time, and then be released to the community with no period of supervised transition.

¶16 The point is that the trial court, rather than this court, has a choice.

CONCLUSION

117 The remedy ordered by the majority — a Brooks notation — informs the Department of Corrections that the *221sum of the terms of incarceration and community custody cannot exceed the statutory maximum. But it does not fully address the error that occurred in this case. It does not allow the trial court to exercise its sentencing discretion “in light of the correct period of community [custody].” Broadaway, 133 Wn.2d at 136.

¶18 By restricting the trial judge’s discretion on remand, the majority diminishes the error at hand to a ministerial matter. Because I believe that this conflicts with our precedent on sentencing errors, I would remand McWill-iams’s case for a full resentencing.

In re Pers. Restraint of Brooks, 166 Wn.2d 664, 211 P.3d 1023 (2009).

To be sure, one recent decision — Ramos—contains language that is inconsistent with the rule Broadaway announced. Ramos, 171 Wn.2d at 49 (stating, in dicta, that remand for imposition of a particular term of community custody “would be purely ministerial[ if] the length of community [custody will be] dictated by statute”). But Broadaway thoroughly examined the issue and has not been overruled. We should endorse its well-reasoned approach.

RCW 9.94A.701(2) (trial court must impose 18-month community custody term when sentencing a person for “a violent offense that is not considered a serious violent offense”), .030(54)(a)(viii) (second degree assault is a “violent offense”).