Opinion
No. 35966-9-II.
October 16, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-1-01926-3, Stephanie A. Arend, J., entered January 29, 2007.
Affirmed in part and remanded by unpublished opinion per Hunt, J., concurred in by Houghton, C.J., and Bridgewater, J.
Raphel D. Holloman appeals his sentence for attempted second degree assault. He argues (1) he did not knowingly, voluntarily, and intelligently enter his plea of guilty because his attorney failed to explain correctly the meaning of community custody, and (2) his attorney's failure to define the term "community custody" properly constitutes ineffective assistance of counsel. The State concedes that the sentencing court improperly sentenced Holloman to community custody. Accepting the State's concession, we affirm Holloman's conviction and remand for resentencing.
The appellate briefs and the captions in the various court and charging documents identify the appellant as "Ranphel D. Holloman." At sentencing, Holloman informed the court that the correct spelling of his first name is "Raphel."
FACTS
Holloman pleaded guilty to attempted second degree assault. Attempted second degree assault is a Class B felony, which carries a standard sentence of 2.25 months to 6.75 months confinement. The statutory maximum for the crime is 5 years.
At sentencing, defense counsel advised the court that she had explained to Holloman the consequences of his guilty plea. The sentencing court then questioned Holloman about his own understanding of the plea and its consequences. When the court pronounced that it would add community custody as part of the Holloman's sentence, he informed the court that he did not understand the term "community custody" and that it was not part of the original plea bargain. When Holloman's attorney described community custody as "probation," Holloman then claimed that he understood the term. The sentencing court found that Holloman understood the consequences of his plea and that he had entered his plea voluntarily.
The court sentenced Holloman to four months confinement and 12 months community custody. The court also imposed a no-contact order, prohibiting Holloman from contacting his victim for five years.
Holloman appeals the community custody portion of his sentence. The State concedes error.
Analysis
The recent Washington Supreme Court decision, In re Postsentence Review of Leach, ___ Wn.2d ___, 163 P.3d 782 (2007), controls our analysis. A sentencing court may impose a sentence only if authorized by law. In re Personal Restraint of Carle, 93 Wn.2d 31, 33, 604 P.2d 1293 (1980). A sentence that includes unauthorized components does not require us to vacate the entire judgment or to grant a new trial; but it does require use to reverse or to vacate the erroneous portion of the sentence. Leach, 163 P.3d at 786 (citing In re Personal Restraint of West, 154 Wn.2d 204, 215, 110 P.3d 1122 (2005)).
RCW 9.94A.715(1) authorizes a sentencing court to impose a term of community custody for certain categories of offenses, one of which is "any crime against persons under RCW 9.94A.411(2)." RCW 9.94A.715(1). RCW 9.94A.411(2) comprises an exhaustive list of "[c]rimes against persons." Leach, 163 P.3d at 786. Although this list includes assault in the second degree, it does not include "attempted assault." See RCW 9.94A.411(2); Leach, 163 P.3d at 783. As our Supreme Court recently held in Leach, trial courts thus lacks authority under RCW 9.94A.715(1) to impose community custody when sentencing a person convicted of attempted second degree assault. See Leach, 163 P.3d at 785.
Accepting the State's concession that the sentencing court lacked legal authority to impose 12 months community custody for Holloman's attempted second degree assault conviction, we remand to the trial court to strike the community custody provision from
Therefore, we do not address his contention that his plea of guilty was not made knowingly, voluntarily, and intelligently and he received ineffective assistance of counsel because his attorney did not advise him about the proper definition of community custody.
Holloman's judgment and sentence. Because we vacate the community custody portion of Holloman's judgment and sentence, his remaining arguments that his plea was involuntary are moot. Accordingly, we affirm his conviction.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, C.J. BRIDGEWATER, J., concur.