Opinion
No. 39001-9-II.
January 6, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Clark County, No. 08-1-01116-0, Barbara D. Johnson, J., entered January 12, 2009.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Serko, J. Pro Tem., concurred in by Penoyar, C.J., and Worswick, J.
Keaton Carter Fox Egizi pleaded guilty to third degree rape and now appeals a five-year sexual assault protection order (SAPO) that the sentencing court imposed as part of his judgment and sentence. Egizi stipulated in his guilty plea agreement that he would not contact the victim for five years. He argues on appeal that the sentencing court erred by imposing a SAPO for a period of time that exceeded the statutory maximum. We affirm Egizi's sentence, reverse the five-year SAPO order, and remand for entry of a corrected judgment and sentence.
FACTS
Egizi was 19 years old when he attended a birthday party for A.R.B., who was then 14 turning 15. At some point during the party, Egizi had nonconsensual sexual intercourse with A.R.B.
The State charged Egizi with third degree child rape. Because Egizi did not have a criminal history, the State, as part of a plea agreement, agreed to amend the charges to third degree rape. The State also agreed to recommend that the trial court impose a six-month sentence, which was the low end of the standard sentencing range.
In consideration for the reduced charges and lenient sentence recommendation, Egizi agreed to plead guilty. As part of his plea agreement, Egizi stipulated that he would not have any direct or indirect contact with A.R.B. for five years.
The no-contact stipulation stated:
You shall not have any direct or indirect contact with the victims, including but not limited to personal, verbal, telephonic, written, or through a third person without prior written permission from his community corrections officer, his therapist, the prosecuting attorney, and the court only after an appropriate hearing. This condition is for the statutory maximum sentence of 5 years, and shall also apply during any incarceration.
Clerk's Papers (CP) at 16.
On January 12, 2009, the trial court sentenced Egizi to six months in custody. The court also sentenced Egizi to an undetermined period of community custody, which, under former RCW 9.94A.505(2)(b) (2006), could be up to 12 months. The court awarded Egizi 123 days credit for time served, which left 57 days to serve in custody, with a release date of early March 2009.
As part of Egizi's judgment and sentence, the trial court also entered a SAPO. The SAPO restrained Egizi from having any direct or indirect contact with A.R.B. It expires on January 12, 2014, or exactly five years from the date of sentencing.
ANALYSIS
Egizi does not challenge his plea agreement or his guilty plea. Instead, he argues that the trial court exceeded its statutory authority in entering a SAPO that would remain in effect for five years, which exceeds the two-year statutory maximum. The State initially conceded the issue, but, after we requested additional briefing, the State withdrew its concession. The State now contends that Egizi waived the right to challenge the five-year SAPO because he stipulated to a five-year no-contact proviso as part of his guilty plea agreement. The State also submits that the invited error doctrine bars Egizi from complaining of the alleged error because he agreed to it in his plea agreement.
I. Waiver
The first issue is whether Egizi waived his right to appeal the five-year SAPO because he stipulated in his plea agreement that he would refrain from direct or indirect contact with A.R.B. for five years. We decided a very similar waiver issue in State v. Phelps, 113 Wn. App. 347, 57 P.3d 624 (2002). In that case, Phelps agreed to plead guilty to one count of unlawful delivery of marijuana and, in turn, the State agreed to dismiss the other charges. Phelps, 113 Wn. App. at 350-51. The sentencing court approved the parties' agreement to extend the statute of limitations on one charge: unlawful manufacture of marijuana. On appeal, Phelps neither challenged the plea agreement nor his guilty plea; instead, he argued that the trial court exceeded its statutory authority in imposing the sentence. Phelps, 113 Wn. App. at 352. We held, "As Phelps challenges the trial court's authority to sentence him as it did, the doctrine of waiver does not apply here." Phelps, 113 Wn. App. at 352. Our holding in Phelps controls here: because Egizi challenges the trial court's authority to sentence him as it did, the doctrine of waiver does not apply.
II. Invited Error Doctrine
The second issue is whether the invited error doctrine bars Egizi from complaining of the alleged error because he agreed to it in his plea agreement. Again, we decided this issue in Phelps. The invited error doctrine is not an absolute bar to a defendant's complaint that a trial court exceeded its sentencing authority even though the defendant stipulated to the sentence in a plea agreement. Phelps, 113 Wn. App. at 354. The invited error doctrine applies only where the defendant engaged in some affirmative action by which he knowingly and voluntarily set up the error. Phelps, 113 Wn. App. at 353. We reaffirm Phelps and hold that even though Egizi invited the challenged sentence, the invited error doctrine does not preclude appellate review to the extent that he can show the sentencing court exceeded its statutory authority.
III. Statutorily Unauthorized Sentence
"`A trial court's sentencing authority is limited to that expressly found in the statutes. If the statutory provisions are not followed, the action of the court is void.'" Phelps, 113 Wn. App. at 354-55) (quoting State v. Theroff, 33 Wn. App. 741, 744, 657 P.2d 800, review denied, 99 Wn.2d 1015 (1983)). A defendant cannot extend the trial court's sentencing authority by agreeing to a punishment in excess of a statute. Phelps, 113 Wn. App. at 355.
Here, the SAPO statute, RCW 7.90.150, plainly limits SAPOs that are entered in conjunction with a criminal prosecution to a "period of two years following the expiration of any sentence of imprisonment and subsequent period of community supervision, conditional release, probation, or parole." RCW 7.90.150(6)(c). With a release from confinement date in early March 2009 and a maximum of 12 months in community custody, Egizi's SAPO could only run until sometime in March 2012, or two years following the expiration of his community custody. The trial court exceeded its authority in ordering a SAPO that would remain in effect for longer than the statute permitted. Although Egizi agreed to no direct or indirect contact with A.R.B. for five years, he cannot grant the sentencing court authority to punish him more severely than the sentencing statutes allow. Phelps, 113 Wn. App. at 357; see In re Pers. Restraint of Moore, 116 Wn.2d 30, 38, 803 P.2d 300 (1991); State v. Eilts, 94 Wn.2d 489, 495-96, 617 P.2d 993 (1980); In re Pers. Restraint of Gardner, 94 Wn.2d 504, 507, 617 P.2d 1001 (1980).
We affirm Egizi's sentence but reverse the five-year SAPO order and remand for entry of a corrected judgment and sentence.
"It is well established that the imposition of an unauthorized sentence does not require vacation of the entire judgment or granting of a new trial. The error is grounds for reversing only the erroneous portion of the sentence imposed." Eilts, 94 Wn.2d at 496 (citation omitted).
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.
PENOYAR, C.J. and WORSWICK, J., concur.