Opinion
No. 59352-8-I.
September 17, 2007.
Appeal from a judgment of the Superior Court for Skagit County, No. 00-1-00082-0, John M. Meyer, J., entered November 16, 2006.
Affirmed by unpublished per curiam opinion.
This is the third appeal in this case. In the first appeal, a panel of this court decided that Patrick DeRyke's conviction for kidnapping merged into his conviction for attempted first degree rape. State v. DeRyke, 110 Wn. App. 815, 817, 41 P.3d 1225 (2002). After the Supreme Court affirmed the conviction on other grounds, the case was remanded for resentencing. State v. DeRyke, 149 Wn.2d 906, 73 P.3d 1000 (2003).
DeRyke appealed the new sentence, and in an unpublished opinion, this court determined the trial court erroneously failed to vacate DeRyke's kidnapping conviction, improperly sentenced him on that conviction, and imposed an incorrect period of community placement on the remaining rape conviction. State v. DeRyke, 133 Wn. App. 1045, 2006 WL 1882363 (2006). After vacating the kidnapping conviction and sentence, we remanded for the trial court to impose the correct community custody period. Id. On remand, the trial court complied with this directive, but DeRyke now contends the amended judgment and sentence is invalid because it imposes a sentence in excess of the statutory maximum. We disagree and affirm.
In its "Order Amending Judgment and Sentence," the trial court reiterated DeRyke's sentence of 120 months' confinement for the rape conviction and corrected the community custody period to "36 months as capped by the statutory maximum." Clerk's Papers at 42. Since 120 months is the statutory maximum for DeRyke's crime, he argues that the period of confinement plus the period of community custody exceeds the statutory maximum and, therefore, the judgment and sentence is invalid.
We addressed similar arguments in State v. Sloan, 121 Wn. App. 220, 87 P.3d 1214 (2004), and State v. Vanoli, 86 Wn. App. 643, 937 P.2d 1166 (1997). In those cases, the defendants were sentenced to the maximum term of confinement plus a period of community custody. In each case, we rejected the argument that the aggregate sentence exceeded the statutory maximum because "prisoners who earn early release credits, and transfer to community custody status in lieu of earned early release, have not yet served the maximum." Sloan, 121 Wn. App. at 223 (citing Vanoli, 86 Wn. App. at 655). In Sloan and Vanoli, as here, the defendants will serve the community custody sentence only if they earn early release credits, and then only up to the maximum sentence. Sloan, 121 Wn. App. at 223; Vanoli, 86 Wn. App. at 655. If the defendants earn no early release credits, they will serve the entire sentence and be released with no further obligation. Id. Thus, "[i]n no event will [they] serve more than the statutory maximum sentence." Sloan, 121 Wn. App. at 223.
Even so, we noted in Sloan the potential for confusion "when a court imposes community custody that could theoretically exceed the statutory maximum for that offense." Id. at 223-24. Therefore, we instructed trial courts in such circumstances to "set forth the maximum sentence and state that the total of incarceration and community custody cannot exceed that maximum." Id.
That is exactly what the trial court did in this case. By stating that the term of community custody was "capped at the statutory maximum," the trial court established that DeRyke will not be subject to community custody beyond the 120-month maximum term.
DeRyke finally argues that Sloan and Vanoli were wrongly decided, and suggests State v. Zavala-Reynoso, 127 Wn. App. 119, 110 P.3d 827 (2005), mandates a contrary result. We disagree. In Zavala-Reynoso, the trial court had imposed a maximum term sentence plus a term of community custody. Although, like Sloan and Vanoli, the defendant would only be subject to community custody for the period of earned early release, if any, the judgment and sentence placed no limitation on the community custody term. Because "[v]iewed from the outset, the sentence exceeds the maximum term," Division Three of this court remanded for resentencing. Zavala-Reynoso, 127 Wn. App. at 124. That is unnecessary in this case, because the order amending the judgment and sentence clearly limits the term of community placement to the statutory maximum for the offense.
Affirmed.