Opinion
No. 60764-2-I.
December 29, 2008.
Appeal from a judgment of the Superior Court for San Jua n County, No. 06-1-05059-0, Alan R. Hancock, J., entered September 21, 2007.
Remanded by unpublished per curiam opinion.
Kenneth Suel appeals the sentence imposed following his guilty plea to one count of failing to register as a sex offender. He contends the court lacked authority to impose community custody for his offense. He also argues, and the State concedes, that he must be resentenced because the combination of confinement and community custody exceeds the maximum sentence for his offense. We remand for resentencing.
Pointing to a statutory numbering error that excludes the crime of failing to register as a sex offender from community custody requirements, Suel contends the sentencing court lacked statutory authority to impose a term of community custody. This argument is defeated by the recent decisions in State v. Albright, 144 Wn. App. 566, 572-73, 183 P.3d 1094 (2008), review denied, 164 Wn.2d 1028 (2008) (correcting numbering error because it leads to absurd results) and State v. Castillo, 144 Wn. App. 584, 590-92, 183 P.3d 355 (2008) (same). See also State v. King, 111 Wn. App. 430, 436, 45 P.3d 221 (2002).
The parties correctly conclude, however, that the combination of confinement and community custody imposed by the court exceeds the statutory maximum for Suel's offense. Failure to register as a sex offender carries a maximum sentence of five years. RCW 9A.44.130(11)(a); RCW 9A.20.021(1)(c). Because the court imposed 45 months of incarceration and 36 to 48 months of community custody, Suel's sentence could exceed the statutory maximum. We therefore remand for imposition of a determinate sentence not exceeding the statutory maximum. State v. Linerud, ___ Wn. App. ___, ___ P.3d ___ (filed December 29, 2008). "It 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.
Remanded for resentencing.