State v. Bruch

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IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
NO. 90021-3
Respondent,
v. ENBANC
MATTHEW BRUCH,
Filed - -MAR 1 9 2015
-----
Petitioner.

STEPHENS, J.-Matthew Bruch was convicted of two counts of second

degree child molestation and two counts of third degree rape of a child. The trial

court imposed a standard range sentence of 116 months of confinement and ordered

community custody for a period of "at least 4 months, plus all accrued earned early

release time at the time of release." Clerk's Papers (CP) at 7. Bruch challenges his

sentence, arguing that the court-imposed term of community custody is

indeterminate and may exceed the statutory requirement ofthree years of community

custody required under RCW 9.94A.701(1). The Court of Appeals rejected Bruch's

challenge. So do we.
 Statev. Bruch
 (Matthew),
    
No. 90021-3     

We hold that Bruch's sentence complied with all statutory requirements. The

trial court properly reduced the three-year term of community custody to a fixed,

four months so that the total sentence did not exceed the applicable statutory

maximum, consistent with RCW 9.94A.701(9). While the court recognized the

Department of Corrections' (DOC) authority to transfer Bruch to community

custody "in lieu of earned release time," as described under RCW 9.94A.729(5)(a),

this did not render the sentence indeterminate. The statutory scheme contemplates

that an offender might serve more time in community custody than imposed by the

sentencing court under RCW 9.94A.701 if he earns early release pursuant to RCW

9.94A.729. There is no need for the trial court to amend Bruch's sentence to limit

community custody to a maximum of three years. The statutes must be read together

to assure that the trial court's intended sentence-a total term of 120 months-is not

undermined by giving effect to the DOC's authority to transfer earned early release

into community custody. Even assuming that RCW 9.94A.701(1) limits the period

of community custody the DOC can supervise under RCW 9.94A.729(5), the

judgment and sentence remains valid; it need not direct how the DOC will exercise

its authority in accordance with all applicable provisions of the Sentencing Reform

Act of 1981 (SRA), ch. 9.94A RCW. We affirm the Court of Appeals.

FACTS AND PROCEDURAL HISTORY

On September 4, 2012, a jury convicted Bruch of two counts of second degree

child molestation and two counts of third degree rape of a child. These offenses

were committed sometime between January 26, 2007 and January 25, 2011. Then,

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 Statev. Bruch
 (Matthew),
    
No. 90021-3     

as now, child molestation in the second degree was a class B felony punishable by a

maximum term of 120 months, RCW 9A.44.086(2); RCW 9A.20.021(1)(b), and

rape of a child in the third degree was a class C felony punishable by a maximum

term of60 months, RCW 9A.44.079(2); RCW 9A.20.021(1)(c).

Bruch's standard sentence range for child molestation in the second degree

was 87 to 116 months. Consistent with the State's recommendation, the trial court

sentenced Bruch to high-end, standard range sentences of 116 months of

confinement for the child molestation counts and a concurrent 60 months for the

rape of a child counts.

In addition to these prison terms, as a felony sex offender, Bruch is subject to

a three-year term of community custody for his offense. RCW 9.94A.701(1).

However, at the time of Bruch's sentencing, as now, the SRA prohibited trial courts

from imposing a term of community custody that would, in combination with a

defendant's term of confinement, exceed the statutory maximum for the crime.

RCW 9.94A.505(5). Trial courts are required to "reduce[]" a term of community

custody that, in combination with the term of confinement, may exceed the statutory

maximum for the crime. RCW 9.94A.701(9). In order to avoid exceeding the 120-

month statutory maximum for the combined term of confinement and community

custody, the trial court sentenced Bruch to only four months of community custody:

120 months (the statutory maximum for a class B felony) minus 116 months (the

term of confinement imposed).

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State v. Bruch (Matthew), No. 90021-3

The State wanted Bruch to receive the longest possible term of community

custody in light of any earned early release time that he may acquire during his

confinement. It therefore asked the trial court to include language to fill any early

release Bruch earned on his 116-month term of confinement. Id. In its sentencing

memorandum, the State argued that the trial court should employ "the following

equation: Community Custody= [statutory maximum- (term of confinement -

earned early release as determined by DOC)]." CP at 31 (brackets in original). The

State argued that this would "result in a definite term of community custody," the

duration of which "will be calculated by DOC depending on how well the defendant

behaves in prison." Jd. The State argued this was an appropriate sentence because

(1) it is unknown how much early release time Bruch will earn and (2) such a

sentence complies with State v. Boyd, 174 Wn.2d 470, 275 P.3d 321 (2012).

With respect to the child molestation count, the trial court imposed a

community custody term of "at least 4 months, plus all accrued earned early release

time at the time of release." CP at 7. Bruch appealed, arguing, inter alia, that the

trial court erred when it "did not impose a definite term of community custody as

required by RCW 9.94A.701." Br. of Appellant at 28 (boldface omitted). He

maintained that the only authorized community custody period was a fixed, four-

month term. The Court of Appeals affirmed the trial court and held that transferring

earned early release into community custody did not render Bruch's sentence

indeterminate. State v. Bruch, noted at 179 Wn. App 1012 (2014). We granted

review to consider this issue. State v. Bruch, 180 Wn.2d 1014, 327 P.3d 54 (2014).

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 Statev. Bruch
 (Matthew),
    
No. 90021-3     

ANALYSIS

This case requires us to interpret multiple SRA provisions. Interpretation of

the SRA is a question of law that we review de novo. State v. Jones, 172 Wn.2d

236, 242, 257 P.3d 616 (2011). When we interpret a statute, our "objective is to

determine the legislature's intent." State v. Jacobs, 154 Wn.2d 596, 600, 115 P.3d

281 (2005). If the meaning of a statute is plain on its face, we "'give effect to that

plain meaning.'" !d. (quoting Dep't of Ecology v. Campbell & Gwinn, LLC, 146

Wn.2d 1, 9-10,43 P.3d 4 (2002)). To determine the plain meaning of a statute, we

look to the text, as well as "the context of the statute in which that provision is found,

related provisions, and the statutory scheme as a whole." !d.

Bruch argues that the trial court erred by imposing a term of community

custody that is indeterminate and may exceed three years, in violation of RCW

9.94A.701(1) and (9). Pet'r's Supp'l Br. at 4, 17. Relying on this court's decision

in Boyd, Bruch contends that the trial court should have imposed a fixed, four-month

term of community custody, rather than an indeterminate period tied to his accrued

earned early release. !d. at 10, 16.

In analyzing this argument, it is helpful to review the SRA' s recent history

concerning community custody. Before the SRA was amended in 2009, it expressly

required trial courts to impose range-based terms of community custody on certain

offenders. See former RCW 9.94A.710(1), .712(5), .715(1) (2008). Under the

former statute, trial courts were required to sentence offenders convicted of Bruch's

crimes "to community custody for the ... range established under RCW 9.94A.850

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 Statev. Bruch
 (Matthew),
    
No. 90021-3     

or up to the period of earned early release awarded ... , whichever is longer."

Former RCW 9.94A.715(1) (emphasis added). While trial courts were responsible

for imposing a range-based term of community custody, the DOC was required to

"discharge the offender from community custody on a date determined by the

department . . . within the range or at the end of the period of earned release,
whichever is later." Former RCW 9.94A.715(4) (emphasis added).

In some instances, the range specified by the trial court resulted in a combined

total term of confinement and community custody that exceeded the statutory

maximum for the crime. This court addressed this problem in In re Personal
Restraint ofBrooks, 166 Wn.2d 664, 668, 211 P.3d 1023 (2009), where it approved

what later became known as the "Brooks notation." The Brooks notation is a

provision in the judgment and sentence indicating that the combined term of

confinement and community custody "shall not exceed the statutory maximum." !d.

at 675. The Brooks court noted that former RCW 9.94A.715(1) required trial courts

to impose a variable term of community custody-the applicable statutory range or
the period of earned early release, whichever is longer-and that former RCW

9.94A.715(4) gave the DOC discretion to later specify the end-date of that term

"within the confines outlined by both the court and the SRA." Id. at 671-72.
In a separate holding, the Brooks court determined that a sentence is not

indeterminate under the SRA simply because an offender may earn early release
credits. !d. at 674. The court reached this conclusion for several reasons. Relevant

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 Statev. Bruch
 (Matthew),
    
No. 90021-3     

here, the court held that former RCW 9.94A.030(21), LAws OF 2008, ch. 276, § 309, 1

"specifically states that a sentence is not rendered indeterminate by the fact that a

defendant may earn early release credits." Brooks, 166 Wn.2d at 674. Further, the

court reasoned that the SRA made it impossible for a trial court to know at the time

of sentencing the exact amount of time to be served. !d.

In 2009, the legislature repealed former RCW 9.94A.715 and amended RCW

9.94A.701. LAWS OF 2009, ch. 28, § 42, ch. 375, § 5. This change eliminated the

range-based scheme and required trial courts to impose fixed terms of community

custody based on the offense committed. !d. It also eliminated the statute giving

the DOC authority to determine the date that an offender would be discharged from

community custody. LAWS OF 2009, ch. 28, § 42. Instead, the new legislation

provided that a "term of community custody . . . 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 .... "

LAWS OF 2009, ch. 375, § 5(8) (emphasis added). This provision is currently codified

at RCW 9.94A.701(9). The legislature, however, did not modify the DOC's

authority to transfer the earned early release of certain offenders into community

custody, 2 nor did it modify RCW 9.94A.030(18) ("The fact that an offender through

1
Former RCW 9.94A.030(21) has been recodified as RCW 9.94A.030(18). LAWS
OF 2008, ch. 230, § 2.
2
The 2009 amendments modified language in the statutes governing the DOC's
authority to grant earned early release, but they did not alter the DOC's ability to transfer
certain offenders to community custody in lieu of earned early release. See LAws OF 2009,
ch. 455, §§ 1, 3(5)(a).

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State v. Bruch (Matthew), No. 90021-3

earned release can reduce the actual period of confinement shall not affect the

classification of the sentence as a determinate sentence."). See LAWS OF 2009, ch.

375, § 3(21).

A. Determinate Sentence

Bruch argues that his sentence is indeterminate because the trial court "added"

a term of community custody "'for the entire period of earned early release.'" Pet'r' s

Supp'l Br. at 10-11 (quoting State v. Winkle, 159 Wn. App. 323, 327, 245 P.3d 249

(2001)). Bruch suggests that the phrase "shall be reduced" in RCW 9.94A.701(9)

means that the trial court, not the DOC, must determine the end date of any

community custody. Bruch has the potential to earn up to one-third of early release

on his 116-month term of confinement, which equals 387'3 months. RCW

9.94A.729(3)(e). 3 Under Bruch's view, he can serve no more than four months of

community custody, although he may earn up to 387'3 months of community custody

in lieu of early release from his 116-month term of confinement. We reject this

view. A sentence is not indeterminate just because an offender may earn early

release credits. RCW 9.94A.030(18). Because an offender may reduce his term of

confinement through earned early release, the exact amount of time he will serve on

community custody "can almost never be determined when the sentence is imposed

by the court." Brooks, 166 Wn.2d at 674. But, his total sentence is set at no more

3 At the time of Bruch's sentencing, subsection (3)(e) was codified at (3)(d). LAWS
OF 2014, ch. 130, § 4.

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 Statev. Bruch
 (Matthew),
    
No. 90021-3     

than 116 months of confinement and no less than four months of community

custody.

Here, the trial court followed RCW 9.94A.701(9) when it "reduced" Bruch's

term of community custody from three years to four months to ensure the total

combined sentence would not exceed the 120-month statutory maximum. Any

community custody Bruch earns in lieu of early release is the result of RCW

9.94A.729(5), which provides the DOC authority to transfer a portion of

confinement time into community custody in lieu of early release. It is not the result

of the trial court's community custody term imposed under RCW 9.94A.701.

While the community custody sentencing statute, RCW 9.94A.701, no longer

vests authority in the DOC to _set the end date for a community custody term, the

DOC still has significant authority to determine how long an offender will actually

remain in confinement. See RCW 9.94A.729(l)(a) ("earned release time shall be

for good behavior and good performance, as determined by the correctional agency

having jurisdiction"). Thus, trial courts still necessarily impose variable community

custody periods in the sense that terms of confinement may later be shortened, within

statutory limits, based on the offender's behavior and the DOC's policies. Id.

Bruch contends that under Boyd, 174 Wn.2d 470, the trial court, not the DOC,

was required to reduce his term of community custody. Boyd, however, involved

different circumstances. In Boyd, the trial court imposed a 54-month term of

confinement for a class C felony and a fixed, 12-month term of community custody

after the effective date ofRCW 9.94A.701(9), resulting in a combined sentence that

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 Statev. Bruch
 (Matthew),
    
No. 90021-3     

plainly exceeded the 60-month statutory maximum. Id. at 471. To prevent the

aggregate sentence from exceeding the statutory maximum, the trial court included

a Brooks notation in the judgment and sentence. I d. This court held that Boyd's

sentence violated RCW 9 .94A. 701 (9), notwithstanding the Brooks notation, because

in cases sentenced after the effective date of RCW 9.94A.701(9), such as Boyd's

case, the trial court is required to reduce the term of community custody at the time

of sentencing. Id. at 473.

The trial court's notation in Bruch's case, however, is not equivalent to a

Brooks notation. Unlike the notation in Boyd, it does not require the DOC to monitor

Bruch's sentence to ensure he does not serve a term of community custody that

exceeds the statutory maximum. The trial court reduced Bruch's term of community

custody and imposed a fixed, four-month term so that the sentence, in total, does not

exceed the 120-month statutory maximum. The trial court's notation, "plus all

accrued earned early release," CP at 7, references the DOC's distinct authority to

grant Bruch early release time, which by statute is transferred to community custody

under RCW 9.94A.729(5). Any community custody in lieu of early release Bruch

earns is a reduction from his confinement time, meaning his term may never exceed

the statutory maximum.
Bruch suggests that he may serve only four months of community custody in

total because the trial court's reference to early release in the judgment and sentence

is improper in light of dicta in State v. Franklin, 172 Wn.2d 831, 837 n.8, 263 P.3d

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 Statev. Bruch
 (Matthew),
    
No. 90021-3     

585 (2011). In Franklin, this court considered similar arguments but declined to rule

on the issue that was not before the court:

Franklin urges this court to overturn State v. Winkle, 159 Wn. App. 323,330,
245 P.3d 249 (2011), in which the Court of Appeals held that former RCW
9.94A.729(5)(a) (2010) allowed the trial court to impose a term of
community custody in lieu of earned release.
The plain meaning of the relevant statutes support Franldin' s
contention that RCW 9.94A.701 and RCW 9.94A.702-not RCW
9.94A. 729-govern the trial court's imposition of community custody at the
time of sentencing.

I d.

In Winkle, the trial court imposed the statutory maximum term of confinement

and a term of community custody "'for the entire period of earned early release

awarded."' 159 Wn. App. at 327. The Court of Appeals affirmed the trial court's

sentence, reasoning that "the SRA requires that a defendant convicted of a sex

offense must be transferred to community custody in lieu of earned early release."

!d. at 325.

Unlike in Winkle, here the trial court imposed a fixed term of community

custody under RCW 9.94A.701(1) and referenced the community custody in lieu of

earned early release that the DOC may supervise. We do not find that a trial court

is prohibited from referencing in the judgment and sentence the procedures under

RCW 9.94A.729(5). There is no indication that the legislature intended for

offenders such as Bruch to serve only the fixed, court-imposed community custody

term, as Bruch suggests. Supp'l Br. of Pet'r at 16. When the legislature enacted

RCW 9.94A.701(9) (requiring trial courts to reduce terms of community custody

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 Statev. Bruch
 (Matthew),
    
No. 90021-3     

that may exceed the statutory maximum), it did not modify the DOC's ability to

convert early release under RCW 9.94A.729(5). See supra n.2. There is no

indication that the amendments to RCW 9.94A.701 rendered the DOC's authority

under RCW 9.94A.729(5) inconsistent with the SRA or that community custody in

lieu of early release renders an offender's sentence indeterminate. 4

We hold that Bruch's sentence is not indeterminate merely because he may

earn early release in lieu of community custody.

B. "Statutory Maximum" Three-Year Term of Community Custody

Bruch further argues that the trial court violated RCW 9.94A.701(1) by failing

to ensure that his term of community custody did not exceed three years. He

construes the three-year period prescribed in subsection (1) as a statutory maximum

term of community custody, and relies on Franklin and Boyd to argue that the trial

court impermissibly passed on to the DOC the responsibility of determining his

community custody term. The DOC, as amicus, similarly construes the three-year

4
This is another aspect of Winkle that is not implicated here. In Winkle, the Court
of Appeals permitted the DOC to transfer an offender's earned early release to community
custody in the absence of the defendant receiving a court-imposed, fixed term of
community custody. The statutory framework ofRCW 9.94A.729 suggests that there are
two prerequisites to the DOC's ability to "transfer[] to community custody in lieu of earned
release time," RCW 9.94A.729(5)(a): (1) being convicted of a particular crime, i.e., certain
serious violent crimes or certain sex offenses, RCW 9.94A.501(4)(a), and (2) being
sentenced to a fixed term of community custody by a trial court. This issue arises, as it did
in Winkle, when a trial court imposes the statutory maximum term of confinement,
preventing it from imposing a fixed-term of community custody under RCW 9.94A.701(1).
Though it is hard to imagine the legislature intended no community custody in such an
instance, the statutory language needs to be addressed in an appropriate case. It is not
implicated here because Bruch was sentenced to 116 months of confinement-four months
less than the statutory maximum-and a fixed, four-month term of community custody
under RCW 9.94A.701(1) and (9).

-12-
  v. Bruch
State  (Matthew),
    
No. 90021-3     

period as a statutory maximum but argues that the judgment and sentence can be

corrected by adding a notation that the total period of community custody cannot

exceed three years.

We question the premise ofBruch's and the DOC's arguments. Neither points

to evidence in the SRA that RCW 9.94A.701(1) operates as a statutory maximum

comparable to the 120-month maximum that limits Bruch's total sentence. Where

the SRA contains an obligation to sentence within the "statutory maximum," it refers

to the maximum sentences set forth in RCW 9A.20.021. See RCW 9.94A.701(9).

In contrast, the requirement that a trial court sentence offenders such as Bruch to a

three-year community custody period establishes a fixed period, not a maximum.

RCW 9.94A.701(1). The statute allows for reducing this period only when

necessary to avoid exceeding the statutory maximum. RCW 9.94A.701(9). These

provisions of RCW 9.94A.701 are not cross-referenced in RCW 9.94A.729(5)(a),

which requires the DOC to transfer early release time to community custody for

certain offenders. When such a transfer is made, there is no risk of exceeding the

statutory maximum under RCW 9A.20.021 because the effect is to reduce the

imposed confinement time.

Bruch's reliance on Franklin and Boyd is misplaced. Those cases involved

sentences that plainly exceeded the statutory maximum, and the question was

whether, in light of the 2009 amendments to the SRA, the trial court could simply

include a Brooks notation. See Franklin, 172 Wn.2d at 839-41; Boyd, 17 4 Wn.2d at

472-73. We held that RCW 9.94A.701(9) required the trial court to reduce the term

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 Statev. Bruch
 (Matthew),
    
No. 90021-3     

of community custody it imposed under subsection (1) in order to avoid exceeding

the statutory maximum. Here, the trial court did just that. It reduced Bruch's three-

year term of community custody to a fixed, four-month term so that the total sentence

fell within the 120-month statutory maximum. The trial court's notation, "plus all

accrued earned early release," CP at 7, can be understood as acknowledging the

DOC's distinct statutory authority to grant Bruch early release time, which must be

transferred to community custody pursuant to RCW 9.94A.729(5)(a). This directive

has no effect on the 120-month statutory maximum, as it can reduce only the 116-

month term of confinement. 5

The SRA provides trial courts and the DOC with different sources of authority

with respect to community custody. The trial court imposes a fixed term of

community custody governed by RCW 9.94A.701. RCW 9.94A.729, on the other

hand, governs the DOC's authority to grant early release time and convert that time

into community custody for certain offenders. The statute generally describes how

the DOC has the discretion to reduce an offender's term of confinement by granting

early release for good behavior and good performance. Subsection (5)(a) requires

the DOC to transfer early release time-earned by offenders such as Bruch-into

community custody. The statute reads, in pertinent part:
5
The court's notation was not strictly necessary. The mandate to transfer early
release time to community custody in RCW 9.94A.729 is directed to the DOC, not the trial
court. See Franklin, 172 Wn.2d at 837 & n.8. The scope of the DOC's obligations under
RCW 9.94A.729 is not before us, but we will not presume that in fulfilling these
obligations, the DOC will act in a manner that is contrary to the SRA. See Brooks, 166
Wn.2d at 672-73 (noting the DOC's statutory discretion with regard to community
custody); Franklin, 172 Wn.2d at 843 (refusing to order amendment of judgment and
sentence where the DOC can act within authority consistent with the SRA).

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State v. Bruch (Matthew), No. 90021-3

A person who is eligible for earned early release as provided in this section
and who will be supervised by the department pursuant to RCW 9.94A.50 1
or 9.94A.5011, shall be transferred to community custody in lieu of earned
release time.

RCW 9.94A.729(5)(a). The referenced statute RCW 9.94A.501 governs the DOC's

authority to supervise community custody imposed by a trial court. RCW

9.94A.501, in turn, cross-references RCW 9.94A.701, the statute that provides trial

courts the applicable length of community custody terms. The statute reads, in

pertinent part:

[T]he department shall supervise an offender sentenced to community
custody regardless of risk classification if the offender:
(a) Has a current conviction for a sex offense or a serious violent
offense and was sentenced to a term of community custody pursuant to RCW
9.94A. 701, 9.94A.702, or 9.94A.507.

RCW 9.94A.501(4) (emphasis added).

The trial court is required to ensure that the offender's total sentence does not

exceed the 120-month statutory maximum for the crime committed and to impose a

term of community custody under RCW 9.94A.701. In turn, the DOC must

supervise the fixed term of community custody imposed by the trial court and

supervise community custody in lieu of any earned early release time it awards under

RCW 9.94A.729.

Under this statutory framework, the trial court has not passed on to the DOC

its obligation to direct Bruch's sentence because the trial court's judgment and

sentence ensures that (1) the combined total does not exceed the statutory maximum

of 120 months and (2) the term of community custody imposed meets the statutory

requirements under RCW 9.94A.701(1) and (9). Contrary to the

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 Statev. Bruch
 (Matthew),
    
No. 90021-3     

concurrence/dissent's characterization, the DOC has not assumed "sentencing

authority." See concurrence/dissent at 2. Even if Bruch earned all of his potential

early release of 38% months, the DOC's supervision of community custody in lieu

of that earned early release would not be improper. Here, the trial court's four-month

sentence of community custody does not exceed three years.

The dissent and the DOC believe that Bruch's judgment and sentence must be

amended to specify that he will not serve more than a maximum three-year term of

community custody, whether imposed by the court under RCW 9.94A.701 or as a

result of transferred early release time under RCW 9.94A.729(5)(a). The DOC

suggests that the judgment and sentence could include any of the following

notations: "'four months or the period of earned early release, whichever is greater,

not to exceed three years"' or '"four months plus the period of earned early release,

not to exceed three years."' Amicus Curiae Br. of DOC at 5-6. Absent such a

notation, the DOC argues that "[s]upervision for longer than a court-imposed

community custody term is prohibited." Id. at 7. We disagree.

The effect of such a notation is no different from the practice under former

versions of the SRA, in which the trial court imposed alternative community custody

periods, "whichever is longer," and incorporated whatever period of community

custody in lieu of earned early release the DOC granted. See former RCW

9.94A.715(1). But here, instead of a Brooks notation not to exceed the statutory

maximum, the DOC would add a "Bruch notation" not to exceed the community

custody term prescribed in RCW 9.94A.701(1).

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  v. Bruch
State  (Matthew),
    
No. 90021-3     

The DOC's argument relies on RCW 9.94A.501(5), which reads:

The department is not authorized to, and may not, supervise any offender
sentenced to a term of community custody ... unless the offender ... is one
for whom supervision is required under this section ....

(Emphasis added.) This subsection, however, limits only the DOC's ability to

supervise offenders "sentence[d]" by a trial court to a fixed-term of community

custody under RCW 9.94A.701(1). It does not prohibit the DOC from supervising

a term of community custody in lieu of earned early release. The DOC does not

"sentence" Bruch to a term of community custody when it transfers his early release

under RCW 9.94A.729(5), and trial courts do not have the authority to "sentence"

offenders to early release in lieu of community custody. RCW 9. 94A.50 1(5) plainly

applies to court-imposed terms of community custody. 6

We hold that Bruch's court-imposed term of community custody does not

violate RCW 9.94A.701(1).

6 The State suggests that Bruch's judgment and sentence should be corrected to
expressly state that both types of community custody run concurrently from the date of
release. It believes this is what the legislature intended when it required an offender to be
"'transferred to community custody in lieu of earned early release time."' Supp'l Br. of
Resp't at 8 (emphasis added) (quoting RCW 9.94A.729(5)(a)). But, the meaning of
"transferred" in this context is not entirely clear. The same statute allows the DOC to
"transfer" an offender to partial confinement when he does not qualify for community
custody. RCW 9.94A.729(5)(d)(i). As noted, the limits of the DOC's authority under
RCW 9.94A.729 are not before us. For present purposes, it is enough to note that the trial
court's reference to "at least 4 months, plus all accrued earned early release time at the time
of release," CP at 7, is not inconsistent with running the court-imposed period of
community custody concurrently with the period resulting under RCW 9.94A.729, if that
is what the DOC is required to do. The trial court's language can be understood as
recognizing the separate statutory sources for community custody and reflecting its intent
that both will apply, i.e., that Bruch will be subject to the court-imposed term plus the
DOC-granted term.

-17-
 Statev. Bruch
 (Matthew),
    
No. 90021-3     

CONCLUSION

We affirm the Court of Appeals. We hold that Bruch's sentence is not
indeterminate merely because he may earn early release. We further hold that
Bruch's court-imposed term of community custody does not violate RCW
9.94A.701(1).

-18-
  v. Bruch
State  (Matthew),
    
No. 90021-3     

WE CONCUR:

~~
I'/I/ ; ,.
~V/ ~.&-.
r
. -=--
1.

I

19
             
State v. Bruch (Matthew), No. 90021-3
Gordon McCloud, J. (Concurrence/Dissent)

No. 90021-3

GORDON McCLOUD, J. (concurring in part and dissenting in part)-This

case presents several complicated questions of statutory interpretation; I agree with

the majority's answer to most of them. I agree that a trial court may impose a

variable term of community custody at sentencing and that such a term does not

render the sentence "indeterminate" under the Sentencing Reform Act (SRA), ch.

9.94A RCW. Majority at 6 (citing In re Pers. Restraint of Brooks, 166 Wn.2d 664,

674, 211 P.3d 1023 (2009)). And because I conclude that the SRA requires certain

offenders, including Bruch, to serve as much as three years of their earned early

release time in community custody, I agree that Bruch was not entitled to a fixed

four-month term of community custody.

I also agree with the majority's basic overview of recent amendments to the

SRA's community custody statutes. The majority is correct that the pre-2009 SRA

"required trial courts to impose range-based terms of community custody on certain

offenders," including those convicted of Bruch's crimes. Majority at 5 (citing

1
  State
 v. Bruch
 (Matthew),
        
No. 90021-3
Gordon McCloud, J. (Concurrence/Dissent)

former RCW 9.94A.710(1), .712(5), .715(1) (2008)). The majority is also correct

that the 2009 amendments eliminated this range-based community custody scheme

and replaced it with a requirement that trial courts impose a community custody term

of 3 years, 18 months, or 1 year, depending on the offense at hand, and then

"reduce[]" that term so that it does not combine with the term of confinement to

exceed the statutory maximum for the underlying crime. LAWS OF 2009, ch. 375, §

5(8); RCW 9.94A.701(1)-(3), (9).

But I disagree with the majority's interpretation of those amendments.

According to the majority, the effect of the 2009 amendments was to cap the term

of community custody that the trial court may impose but not the term of community

custody that the Department of Corrections (DOC) may impose. Majority at 9.

The majority's interpretation of the 2009 amendments depends on the theory

that the DOC has independent sentencing authority-that is, authority to impose

terms of community custody beyond what the trial court specifies in the judgment

and sentence. Because I think that this theory is contrary to the relevant case law

and legislative history, I respectfully dissent.

1. The majority's conclusion that the DOC may independently impose terms
of community custody is contrary to our case law

The majority locates the DOC's sentencing authority m RCW

9.94A.729(5)(a), majority at 2, which provides that "[a] person who is eligible for

2
  State
 v. Bruch
 (Matthew),
        
No. 90021-3
Gordon McCloud, J. (Concurrence/Dissent)

earned early release as provided in this section and who will be supervised by the

department pursuant to RCW 9.94A.501 or 9.94A.5011, shall be transferred to

community custody in lieu of earned release time." (Emphasis added.) According

to the majority, this statute empowers the DOC to "transfer" or "convert" earned

early release time into a term of community custody. Majority at 7, 11.

This court discussed a similar issue in State v. Franklin, where the defendant

argued that RCW 9.94A.729(5)(aY "simply instructs [the] DOC as to when

community custody begins," whereas different statutes (RCW 9.94A.701 and .702)

"authorize the sentencing court to impose community custody in lieu of earned

release." 172 Wn.2d 831, 837 n.8, 263 P.3d 585 (2011) (emphasis added).

Ultimately, the Franklin court did not decide this issue, but it noted in dicta that

"[t]he plain meaning of the relevant statutes support[s] [the] contention that RCW

9.94A.701 and RCW 9.94A.702-not RCW 9.94A.729-govern the trial court's

imposition of community custody at the time of sentencing." I d. (emphasis added).

1
The statute at issue in State v. Franklin, 172 Wn.2d 831, 837 n.8, 263 P.3d 585
(2011), was a former version ofRCW 9.94A.729(5)(a), but the subsequent amendments do
not affect the question at issue here: whether that statute simply tells the DOC that
community custody begins at the time of earned release or actually confers authority on
some entity-either the DOC or the trial court-to convert earned early release time into
community custody time. See LAWS OF 2011, 1st Spec. Sess., ch. 40, § 4 (amending the
portion of the statute that refers to the categories of offender covered).
3
  State
 v. Bruch
 (Matthew),
        
No. 90021-3
Gordon McCloud, J. (Concurrence/Dissent)

The majority sees Franklin's dicta as support for its conclusion that "[t]he

mandate to transfer early release time to community custody in RCW 9.94A.729 is

directed to the DOC, not the trial court," majority at 14 n.5 (emphasis added) (citing

Franklin, 172 Wn.2d at 837 & n.8), but I read Franklin's dicta differently. I think

that it reflects a long-standing allocation of distinct duties under the SRA, whereby

the trial court imposes community custody terms-keeping in mind the DOC's

authority to grant early release time for good behavior-and the DOC implements

those terms-sometimes by transferring an offender to community custody status.

Thus, while I agree with the majority that RCW 9.94A.729 addresses the DOC (and

not the trial court), I disagree that this statute vests the DOC with sentencing

authority. Instead, I think that it does just what the defendant in Franklin argued: it

instructs the DOC to transfer an offender to community custody at the beginning of

the period of earned early release.

The majority's contrary conclusion conflicts with this court's precedent on

sentencing errors involving community custody. That precedent holds that the DOC

may not even correct an obvious error in the community custody provision of a

judgment and sentence-instead, the trial court must do so. 2 As this court held in

2See In re Pers. Restraint of McWilliams,_ Wn.2d _, 340 P.3d 223, 226 (2014)
(where trial court failed to include in the judgment and sentence a "Brooks notation" telling
the DOC that the community custody term may not extend the entire sentence beyond the
applicable statutory maximum, remedy was remand to the trial court to amend the
4
             
State v. Bruch (Matthew), No. 90021-3
Gordon McCloud, J. (Concurrence/Dissent)

State v. Broadaway, that rule applies even when the error involves an SRA provision

contemplating that the offender will be "transferred to community custody in lieu of

earned early release." See 133 Wn.2d 118, 135-36, 942 P.2d 363 (1997) (applying

former RCW 9.94A.120(9)(a) (1996), quoted above).

The defendant in Broadaway was convicted of first degree robbery while

armed with a deadly weapon-a conviction that made him eligible only for "transfer

to community custody status in lieu of earned early time." 3 The SRA required the

trial court to sentence him to "a one-year term of community placement beginning

either upon completion of the term of confinement or at such time as the offender is

transferred to community custody in lieu of earned early release." Former RCW

9.94A.120(9)(a) (1996) (emphasis added). But the trial court used '"boilerplate"'

language in the judgment and sentence, providing only that '"[c]ommunity

placement is ordered for a community placement eligible offense ... for the period

judgment and sentence); State v. Broadaway, 133 Wn.2d 118, 135-36, 942 P.2d 363 (1997)
(where judgment and sentence is insufficiently specific about the term of community
custody required by statute, remedy is remand to the trial court to amend the judgment and
sentence).

3
Fonner RCW 9.94A.150(2) (1996); Broadaway, 133 Wn.2d at 122 ("[a] person
convicted of ... any crime against a person where it is determined ... that the defendant
or an accomplice was armed with a deadly weapon at the time of commission ... may
become eligible ... for transfer to community custody status in lieu of earned early release
time").
5
             
State v. Bruch (Matthew), No. 90021-3
Gordon McCloud, J. (Concurrence/Dissent)

of time provided by law."' Broadaway, 133 Wn.2d at 135 (second alteration in

original) (quoting court record).

The defendant argued that this was deficient because "the Department of

Corrections lacks authority to impose community placement where the judgment

and sentence does not do so." Id. at 135. This court agreed and remanded to the

trial court to amend the judgment and sentence. Id. at 135-36.

If the DOC had authority to transfer offenders to community custody on its

own initiative-absent any directive in the judgment and sentence-the Broadaway

remedy would have been unnecessary. For this reason, I conclude that the majority's

holding in this case conflicts with our case law on sentencing errors involving terms

of community custody.

2. The majority's conclusion that the DOC may independently impose terms
of community custody is contrary to the relevant statutes' plain language
and legislative history

For the reasons given above, I believe that the majority's holding is contrary

to our case law on sentencing errors involving offenders who are eligible for

community custody in lieu of earned early release. I also conclude that the

majority's holding is contrary to the plain language and legislative history of the

relevant statutes in this case.

6
             
State v. Bruch (Matthew), No. 90021-3
Gordon McCloud, J. (Concurrence/Dissent)

Until the 2009 amendments, the SRA expressly required trial courts to

reference the period of earned early release when sentencing certain offenders,

including those convicted of Bruch's crimes (second degree child molestation and

third degree rape of a child). Former RCW 9.94A.710(1), .712(5), 715(1); Franklin,

172 Wn.2d at 835. For these offenders, as the majority correctly notes, the trial court

was required to impose a term of "community custody for the ... range established

under RCW 9.94A.850 or up to the period of earned release ... , whichever is

longer." Former RCW 9.94A.715(1) (emphasis added). The DOC had to specify

and implement that term at the appropriate time: former RCW 9.94A.715(4) required

the DOC to "discharge the offender from community custody on a date determined

by the department ... within the range or at the end of the period of early release,

whichever is later." (Emphasis added.) But the DOC did not independently impose

terms of community custody-the trial court did that in the judgment and sentence.

The pre-2009 SRA also provided that certain offenders-including those (like

Bruch) convicted of violent or sex offenses-were ineligible for early release.

Former RCW 9.94A.728(1), (2) (2008); In re Pers. Restraint ofMattson, 166 Wn.2d

730, 733, 214 P.3d 141 (2009). Instead, these offenders were eligible only for

"transfer to community custody status in lieu of earned release time." Former RCW

9.94A.728(2) (emphasis added). This meant that a person convicted of a sex offense

7
             
State v. Bruch (Matthew), No. 90021-3
Gordon McCloud, J. (Concurrence/Dissent)

could earn early release time for good behavior, but that "release" would always be

to community custody status for the duration of that earned early release time. Id.;

In re Mattson, 166 Wn.2d at 733.

Under the pre-2009 SRA, it was easy to harmonize the statutes governing

sentencing with the statutes governing community custody and earned early release.

The preamendment sentencing statutes required the trial court to impose a term of

community custody, but they also expressly required a variable term equal to or

greater than the period of earned early release. Former RCW 9.94A.715(1). This

accommodated the community custody statutes, which made certain offenders

eligible only for "transfer to community custody in lieu of an earned release time."

Former RCW 9.94A.728(2).

As noted above, the 2009 amendments did away with range-based terms of

community custody, replacing them with fixed terms of 12, 18, and 36 months.

LAWS OF 2009, ch. 375, § 5. But they maintained the SRA provision stating that

certain offenders-including those convicted of sex crimes-" shall be transferred to

community custody in lieu of earned early release time." RCW 9.94A.729(5)(a).

Under this short-lived scheme, the statutes governing sentencing did not necessarily

match up with the statutes governing community custody. Had Bruch been

sentenced under this scheme, the trial court would have been required to impose at

8
             
State v. Bruch (Matthew), No. 90021-3
Gordon McCloud, J. (Concurrence/Dissent)

most a three-year term of community custody, and yet RCW 9.94A.729(5)(a) would

have required that Bruch be "transferred to community custody in lieu of' an earned

early release term that might have been as long as 3 8% months. Thus, by the statute's

plain terms, Bruch could have been transferred to 38% months of community

custody even though he could have been sentenced to only 36 months of community

custody.

But m 2011 the legislature amended the provision in RCW 9.94A.729

requiring that certain offenders be "transferred to community custody in lieu of

earned release time." LAWS OF 2011, 1st Spec. Sess., ch. 40, § 4(5)(a). This transfer

now applies only to offenders who "will be supervised by the [DOC] pursuant to

RCW 9.94A.501 or [9.94A.5011]."4 Id. Offenders who "will be supervised"

pursuant to RCW 9 .94A.50 1 include those who were convicted of a sex offense or a

serious violent offense "and [were] sentenced to a term of community custody

pursuant to RCW 9.94A. 701, 9.94A. 702, or 9.94A.507." RCW 9.94A.501(4)(a)

(emphasis added). (This category of offender includes Bruch, who was sentenced

pursuant to 9.94A.701.) Thus, there are now two prerequisites to "transfer[] to

community custody in lieu of earned release time," RCW 9.94A.729(5)(a): (1) a

4
RCW 9.94A.5011(1) governs the community custody supervision of certain
offenders "convicted prior to August 2, 20 11, of a misdemeanor or gross misdemeanor
offense who is sentenced to probation in superior court." It is not relevant to the analysis
in this case.
9
  State
 v. Bruch
 (Matthew),
        
No. 90021-3
Gordon McCloud, J. (Concurrence/Dissent)

conviction of a particular crime (a serious violent offense or certain sex offenses,

including Bruch's) and (2) a sentence to a term of community custody.

This legislative history leads me to the conclusion that the DOC does not have

the authority to impose-as opposed to implement-a term of community custody.

I recognize that between the 2009 and 2011 amendments, RCW 9.94A.729(5)(a)'s

plain terms required certain "transfer[s]" to community custody, without also

requiring that a trial court impose a perfectly corresponding sentence. But I do not

think that this short-'lived discrepancy was intended to vest the DOC with

unprecedented sentencing authority. Indeed, the Final Bill Report that accompanied

the 2009 amendment indicates that the amendment's primary purpose was to reduce

the number of offenders that are subject to DOC supervision while serving terms of

community custody. FINAL B. REP. ON ENGROSSED SUBSTITUTE S.B. 5288, 6lst

Leg., Reg. Sess. (Wash. 2009). That report says nothing about changing the DOC's

traditional authority.

I also recognize that the DOC "has significant authority to determine how long

an offender will actually remain in confinement," majority at 9, because the DOC

awards early release time according to its own criteria. Thus, I recognize that when

the trial court imposes a variable term of community custody that is linked to the

period of earned early release, the DOC necessarily exercises a corresponding

10
  State
 v. Bruch
 (Matthew),
        
No. 90021-3
Gordon McCloud, J. (Concurrence/Dissent)

authority to determine the precise length of that term. But that is different from the

authority to impose a term of community custody. Based on the legislative history

of the community custody statutes and on this court's precedent, I conclude that our

legislature has vested that authority solely in the sentencing court.

3. Bruch's term of community custody may not exceed three years

Both Bruch and the DOC argue that the trial court erred by failing to include

a notation in the judgment and sentence specifying that Bruch may not serve more

than three years in community custody-the amount of time the trial court "shall"

impose pursuant to RCW 9.94A.701(1). Pet'r's Suppl. Br. at 4; Amicus Curiae Br.

of the DOC at 5-6. The majority rejects this argument because it finds no "evidence

in the SRA that RCW 9.94A.701(1) operates as a statutory maximum comparable to

the 120-month maximum that limits Bruch's total sentence." Majority at 12.

I agree with the majority that the SRA does not expressly prohibit terms of

community custody in excess of the periods contemplated in RCW 9.94A.701(1)-

(3). See majority at 13. But I disagree that this resolves the issue.

When we interpret a statute, we consider its plain language, the context in

which it is found, and related statutes, harmonizing different provisions whenever

possible and avoiding an interpretation that renders any provision superfluous. State

v. Hirschfelder, 170 Wn.2d 536, 543, 242 P.3d 876 (2010). In this case, we have

11
             
State v. Bruch (Matthew), No. 90021-3
Gordon McCloud, J. (Concurrence/Dissent)

one statute that requires the trial court to impose three years of community custody.

RCW 9.94A.70l(l)(a) ("[i]f an offender is sentenced ... for [second degree child

molestation or third degree rape of a child], the court shall, in addition to the other

terms of the sentence, sentence the offender to community custody for three years"

(emphasis added)). And we have another statute that requires the trial court to

reduce this three-year term but only when three years of community custody would

combine with the term of total confinement imposed to result in a total sentence that

exceeds the statutory maximum for the underlying crime. RCW 9.94A.701(9)

("[t]he term of community custody specified by this section shall be reduced by the

trial 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)).

Harmonizing these statutes, I conclude that the legislature intends an offender

like Bruch to serve a term of community custody that is as close as possible to, but

does not exceed, three years, and that does not combine with the term of confinement

to exceed the statutory maximum for the underlying offense. In this case, the trial

court can accomplish that goal by employing the type of equation it used in the

judgment and sentence, along with a notation capping the community custody term

at three years.

12
             
State v. Bruch (Matthew), No. 90021-3
Gordon McCloud, J. (Concurrence/Dissent)

Because I interpret the relevant statutes to require a three-year community

custody term, and because I conclude that Bruch's having been "sentenced to a term

of community custody pursuant to RCW 9.94A.701" is a prerequisite to his transfer

to community custody "in lieu of earned release," 5 I also disagree with the majority's

assertion that "[t]he trial court's notation, 'plus all accrued earned early release' ...

was not strictly necessary." Majority at 13-14 & n.5 (quoting Clerk's Papers at 7).

In the absence of that notation, there is no way to tell that the four months of

community custody imposed by the trial court must run consecutively to the period

of earned early release. And to achieve the legislature's intended effect-a period

of community custody as close as possible to the three-year maximum, even if Bruch

earns only a small portion of the early release time for which he is eligible-these

periods must run consecutively.

CONCLUSION

I agree with the majority on many of the questions presented in this case. ·I

disagree only with the majority's holdings that (1) the DOC may transfer offenders

to community custody for periods not authorized in the judgment and sentence, (2)

Bruch may serve more than three years in community custody, and (3) no remand to

the trial court is necessary here.

5
RCW 9.94A.501(4)(a), .729(5)(a).
13
             
State v. Bruch (Matthew), No. 90021-3
Gordon McCloud, J. (Concurrence/Dissent)

In this particular case, the practical effect of that disagreement might appear

minimal. Under the majority's interpretation of the relevant statutes, Bruch may

serve up to 387-j months of community custody time, assuming that he earns all of

the early release time for which he is statutorily eligible, and the judgment and

sentence need not be amended. Under my interpretation, Bruch may earn up to 387-j

months of early release time, but only 36 of these will be spent in community custody

and the trial court must amend the judgment and sentence to reflect that 3-year cap.

This difference of 2% months might seem negligible, especially in light of the 116-

month term of confinement imposed.

But in terms of the broader questions presented in this case-questions about

the relative authority of the trial court and the DOC-there is a significant difference

between the majority's holding and my opinion. The majority's decision that

remand is unnecessary here is, in my view, a radical revision of our case law on the

DOC's authority. And it is one that deprives the trial court of its traditional,

exclusive sentencing authority. I therefore respectfully dissent from that decision.

14
  State
 v. Bruch
 (Matthew),
        
No. 90021-3
Gordon McCloud, J. (Concurrence/Dissent)

15