Opinion
No. 61124-1-I.
December 29, 2008.
Appeal from a judgment of the Superior Court for Snohomish County, No. 04-1-01750-0, Kenneth L. Cowsert, J., entered December 11, 2007.
Remanded by unpublished per curiam opinion.
David Hill appeals the sentence imposed on remand from his first appeal in this case. We remand for further proceedings.
The State argues that the court's decision on remand is not appealable as a matter of right and does not satisfy the criteria for discretionary review. We need not decide whether the decision is appealable as a matter of right. In light of the subsequent decisions of this court in State v. Davis, 146 Wn. App. 714, 192 P.3d 29 (2008) and State v. Linerud, ___ Wn. App. ___, ___ P.3d ___ (2008), the sentence imposed on remand is obvious and/or probable error and thus qualifies for discretionary review. RAP 2.3(b).
In our prior decision, we noted that Hill's original sentence could exceed the statutory maximum. We remanded "to amend the judgment and sentence to state the maximum sentence and clarify that the total term of incarceration and community custody cannot exceed the statutory maximum." Hill argued on remand and in his opening brief in this court that the trial court should impose the community custody period required by law and then reduce the confinement portion of his sentence to bring the total sentence within the statutory maximum. The trial court rejected this approach and instead added the following language to the judgment and sentence: "Any term of community placement, when added to the total term of confinement cannot exceed the statutory maximum . . . as to each count."
State v. Hill, 137 Wn. App. 1058 (2007).
Subsequent to the proceedings below and Hill's opening brief in this court, we held in State v. Davis, 146 Wn. App. 714, 192 P.3d 29 (2008) that courts have discretion to reduce either confinement or community custody when bringing a total sentence within the statutory maximum. In his reply brief, Hill argues that, under Davis, we must remand for the court to exercise its discretion. We agree.
In his opening brief in this court, Hill argued that the rule of lenity requires courts to reduce confinement time, as opposed to
community custody, when bringing a total sentence within the statutory maximum. Under that theory, the sentencing court would presumably have no discretion to choose between reducing confinement or community custody. Hill's reply brief, however, does not mention the lenity theory and instead focuses solely on our decision in Davis and the sentencing court's failure to exercise its discretion to reduce either confinement or community custody. Hill's reliance on Davis thus appears to be directly at odds with the lenity theory advanced in his opening brief. Because it is unclear whether Hill has abandoned his lenity theory in favor of relief under Davis, and because it may be unnecessary to reach the lenity theory in any event if the court on remand opts to reduce the confinement portion of his sentence, we decline to address the lenity theory and grant relief under Davis.
In these circumstances, Davis and our recent decision in State v. Linerud, ___ Wn. App. ___, ___ P.3d ___ (filed December 29, 2008) require resentencing. In Linerud, we held that sentences like Hill's are indeterminate and must be remanded for imposition of a determinate sentence not exceeding the statutory maximum. We noted that "[i]t is within the trial court's discretion to determine how much of that sentence is confinement and how much is community custody." Linerud, slip op. at 7. Accordingly, we remand for further proceedings consistent with this opinion.