Opinion
No. 34867-5-II.
May 15, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 01-1-02568-8, Linda CJ Lee, J., entered May 1, 2006.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Hunt and Penoyar, JJ.
Sang Van Nguyen appeals the denial of his CrR 7.8 motion, arguing that the trial court miscalculated his offender score and improperly imposed a term of community custody. We affirm.
Facts
A jury convicted Nguyen of first degree manslaughter while armed with a firearm as well as theft of a firearm. The trial court originally imposed an exceptional sentence on the manslaughter conviction, but this court reversed that sentence pursuant to Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). The trial court resentenced Nguyen to a high-end standard range sentence and imposed a term of community custody. Nguyen did not appeal that sentence.
He did file a CrR 7.8 motion, however, in which he argued that the trial court exceeded the maximum sentence possible for his manslaughter conviction under Blakely by adding the term of community custody. The trial court determined that because additional findings are not required to impose community custody, Blakely was not implicated. Nguyen now appeals the denial of his CrR 7.8 motion.
Analysis I.
Nguyen first argues that the trial court erred in failing to consider whether his two current offenses counted as one under the same criminal conduct rule.
This argument misconstrues both the trial court's role in ruling on a CrR 7.8 motion and this court's role in reviewing that ruling. The trial court's responsibility was to consider the issues Nguyen raised in his motion. See CrR 7.8(c). Our scope of review is limited to determining whether the trial court abused its discretion in denying Nguyen's motion; consequently, we review only the issues raised therein. See State v. Larranaga, 126 Wn. App. 505, 509, 108 P.3d 833 (2005); State v. Gaut, 111 Wn. App. 875, 881, 46 P.3d 832 (2002). Nguyen did not address his offender score in his CrR 7.8 motion, so we decline to consider this issue further.
II.
Nguyen next argues that RCW 9.94A.715(3) and RCW 9.94A.737(2)(c) violate Blakely and the Sixth Amendment because they authorize additional confinement for community custody violations without the involvement of a jury. In Blakely, the Supreme Court explained that except for a prior conviction, any fact that increases the penalty for a crime beyond the standard range must be submitted to a jury and proved beyond a reasonable doubt. Blakely, 542 U.S. at 301-04; see also State v. Evans, 154 Wn.2d 438, 441, 114 P.3d 627, cert. denied, 163 L. Ed 2d 472 (2005).
RCW 9.94A.715(3) provides that "[i]f an offender violates conditions imposed by the court or the [Department of Corrections] pursuant to this section during community custody, the department may transfer the offender to a more restrictive confinement status and impose other available sanctions as provided in RCW 9.94A.737[.]" RCW 9.94A.737, in turn, provides that if an offender sentenced to a term of community custody under RCW 9.94A.715 violates any condition of such custody, the Department of Corrections may impose a sanction of up to 60 days in total confinement for each violation. RCW 9.94A.737(2)(c). According to Nguyen, an offender who received enough community custody violations could serve a life sentence without a jury determination of the facts used to enhance his sentence beyond the standard range, thus violating Blakely. He argues that his sentence must be vacated and his case remanded for resentencing without any term of community custody.
We reject this argument for several reasons. One is that the trial court made no mention of RCW 9.94A.715(3) or RCW 9.94A.737 in ruling that the combination of community custody and incarceration included in Nguyen's judgment and sentence did not violate Blakely. The greater problem, however, is that Nguyen's constitutional argument is premature.
The unconstitutionality of a law is not ripe for review unless the person seeking review is harmed by the part of the law that is alleged to be unconstitutional. State v. Ziegenfuss, 118 Wn. App. 110, 113, 74 P.3d 1205 (2003). In Ziegenfuss, the defendant's challenge to the constitutionality of community custody violation hearings was premature because she had not yet violated the terms of her community custody or been sanctioned for any such violation. Ziegenfuss, 118 Wn. App. at 112. The same situation is presented here. Nguyen's concern about multiple 60-day periods of incarceration for community custody violations is premature, as he has not begun to serve his term of community custody, let alone violated one of its conditions. We therefore decline to consider the constitutionality of the provisions authorizing confinement for community custody violations set forth in RCW 9.94A.715 and RCW 9.94A.737.
Nguyen also argues for the first time in his reply brief, that the combination of community custody and incarceration he received violates Blakely because it exceeds the standard range for his offense. (The standard range for Nguyen's manslaughter conviction, with the enhancement added, was 146-174 months. The trial court imposed 174 months of incarceration and 24-48 months of community custody.)
Community custody automatically applies when the defendant is convicted of a violent offense. RCW 9.94A.715(1). First degree manslaughter is a violent offense. RCW 9.94A.030(50)(a)(iii). Blakely concerns the maximum sentence a judge may impose absent factual findings by a jury. Blakely, 542 U.S. at 303-04. It does not apply to community custody because community custody results directly from the jury verdict and no additional judicial fact finding is required. See RCW 9.94A.715(1). As long as the combined total of the period of incarceration imposed and the period of community custody possible does not exceed the statutory maximum for the offense, as set forth in chapter 9A.20 RCW, the sentence is lawful. See RCW 9.94A.505(5). The maximum sentence for first degree manslaughter is life imprisonment. See RCW 9A.32.060(2); RCW 9A.20.021(1)(a). Consequently, we see no abuse of discretion in the denial of Nguyen's CrR 7.8 motion.
Affirmed.
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.
HUNT, J., PENOYAR, J., concur: