State
v.
Burch

The Court of Appeals of Washington, Division TwoDec 9, 2008
147 Wn. App. 1045 (Wash. Ct. App. 2008)

No. 37104-9-II.

December 9, 2008.

Appeal from a judgment of the Superior Court for Pierce County, No. 07-1-01426-0, Lisa R. Worswick, J., entered November 29, 2007.


Affirmed by unpublished opinion per Hunt, J., concurred in by Penoyar, A.C.J., and Bridgewater, J.


James Robert Burch pleaded guilty to failure to register as a sex offender. He later moved to modify his sentence, under CrR 7.8, claiming that his judgment and sentence failed to state clearly that his term of confinement and term of community custody could not exceed the statutory maximum. The trial court denied his motion and he appeals. Concluding that the trial court did not err, we affirm.

FACTS

The trial court sentenced Burch to 43 months of confinement with 38-46 months of community custody,

or for the period of earned release awarded pursuant to RCW 9.94A.728(1) and (2), whichever is longer.

. . . .

PROVIDED: That under no circumstances shall the combined term of confinement and term of community custody actually served exceed the statutory maximum for each offense.

Clerk's Papers (CP) at 18-19

A handwritten note on Burch's judgment and sentence noted that his community custody is "not to exceed 60 months including underlying sentence." CP at 19.

Burch later moved to modify and/or correct his judgment and sentence under CrR 7.8. He argued that when combined, his 43-month term of confinement and 38 to 46-month term of community custody exceed the 60-month statutory maximum sentence. The trial court denied his motion, concluding that he "fail[ed] to establish the legal criteria for granting a motion based on CrR 7.8 and the relevant case law." CP at 42. Burch appeals.

ANALYSIS

Burch renews his argument that when combined, his terms of confinement and community custody exceed the statutory maximum sentence. This argument fails.

CrR 7.8 permits a court to relieve a party from a final judgment on grounds of mistake, inadvertence, excusable neglect, newly discovered evidence, or "[a]ny other reason justifying relief from the operation of the judgment." CrR 7.8(b). We review a trial court's CrR 7.8 ruling for abuse of discretion. State v. Zavala-Reynoso, 127 Wn. App. 119, 122, 110 P.3d 827 (2005); State v. S.M., 100 Wn. App. 401, 409, 996 P.2d 1111 (2000). We find no abuse here.

The statutory maximum sentence for failure to register as a sex offender is 60 months. RCW 9A.20.021(1)(c); RCW 9A.44.130(11)(a). An offender's total punishment, including imprisonment and community custody, may not exceed the statutory maximum for the offense. RCW 9.94A.505(5). Where a trial court sentences an offender to terms of confinement and community custody that may exceed the statutory maximum, the judgment and sentence should set forth the statutory maximum and clarify that the combined terms cannot exceed that maximum. State v. Sloan, 121 Wn. App. 220, 221, 87 P.3d 1214 (2004). See also State v. Vant, 145 Wn. App. 592, 605-07, 186 P.3d 1149 (2008) (adopting the Sloan analysis).

Burch's judgment and sentence correctly states the statutory maximum sentence, 60 months, and specifies twice that his terms of confinement and community custody should not exceed that maximum. Burch asserts that the notation after his community custody sentence stating "not to exceed 60 months including underlying sentence" is not sufficiently clear that the combined terms cannot exceed the 60-month statutory maximum. Br. of Appellant at 3-4. But when read together with the statement that "under no circumstances shall the combined term of confinement and term of community custody actually served exceed the statutory maximum for each offense," it is clear that the statutory maximum is 60 months and Burch's total confinement and community custody cannot exceed that maximum. The trial court did not err in denying Burch's motion to modify his judgment and sentence. We affirm.

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.

BRIDGEWATER, J. and PENOYAR, A.C.J., concur.