In the Matter of the Personal Restraint of Dante Domico McWilliams, Petitioner
Considered June 5, 2014
Dante D. McWilliams, pro se.
Daniel T. Satterberg, Prosecuting Attorney for King County, and Andrea R. Vitalich, Deputy, for respondent.
AUTHOR: Chief Justice Barbara A. Madsen. WE CONCUR: Justice Charles W. Johnson, Justice Susan Owens, Justice Mary E. Fairhurst, Justice Debra L. Stephens, Justice Charles K. Wiggins, Justice Steven C. Gonzalez, Justice Mary I. Yu. AUTHOR: Justice Sheryl Gordon McCloud.
[182 Wn.2d 215] ¶ 1 Petitioner Dante McWilliams received the exceptional sentence of 120 months of confinement and 18 months of community custody, which, in the aggregate, exceeded the statutory maximum for his offense. This, he claims, is error. We agree and hold the appropriate remedy is a notation in the judgment and sentence that explicitly states that the total term of confinement and community custody actually served may not exceed the statutory maximum.
¶ 2 On August 10, 2010, McWilliams pleaded guilty to second degree assault committed in November 2009. At sentencing, he had an offender score of 7, which resulted in a standard sentencing range of 43 to 57 months of confinement. The statutory maximum sentence of confinement for second degree assault is 120 months. RCW 9A.36.021(2); RCW 9A.20.021(1)(b). The plea agreement entered into by the parties recommended an exceptional sentence  of confinement of 120 months--the statutory maximum--along with 18 months of community custody. The trial court imposed this sentence as stipulated in the agreement. McWilliams did not appeal.
¶ 3 More than one year passed after entry of judgment.  McWilliams then filed this personal restraint [182 Wn.2d 216] petition directly in this court, arguing that his judgment and sentence is facially invalid under RCW 9.94A.701(9) because the combined term of confinement and community custody exceed the statutory maximum for the offense. McWilliams requests that we remand the case to the trial court to reduce the term of community custody in accordance with RCW 9.94A.701(9). 
¶ 4 Both the State and the petitioner conclude that the trial court erred in sentencing. We agree. RCW 9.94A.505(5) restricts a trial court from imposing a combined term of confinement and community custody that exceeds the statutory maximum. Here, the exceptional sentence of 120 months of confinement combined with the 18 months of community custody potentially exceeds the statutory maximum of 120 months, assuming the petitioner actually served the full sentence.  The issue for this court is the appropriate remedy.
¶ 5 McWilliams argues that RCW 9.94A.701(9) applies in this situation. That statute states, " The term of community custody specified by this section shall be reduced by the court whenever an offender's standard range term of confinement in combination with the term of community custody exceeds the statutory maximum for the crime as provided in RCW 9A.20.021." RCW 9.94A.701(9) (emphasis [182 Wn.2d 217] added). When the trial court imposes a sentence in violation of this statute, we remand to the trial court to amend the community custody term or to resentence consistent ...