IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 79107-9-I
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION JOSHUA JAMES FROST,
Appellant.
CHUN, J. — In 2003, a jury convicted Joshua Frost of various crimes,
including attempted robbery and assault. After sentencing Frost, the trial court
amended the sentence so that, with respect to the attempted robbery count, it
would not exceed the statutory maximum. Claiming his sentence still contains
errors, Frost appeals. Because, in combination with his term of community
custody, the terms for his attempted robbery count and assault counts exceed, or
have potential to exceed, the statutory maximum, we remand for the addition of a
Brooks notation1 to his sentence.
1 In In re Pers. Restraint of Brooks, our Supreme Court held that when a trial court has sentenced a defendant to a “term of confinement and community custody that has the potential to exceed the statutory maximum for the crime, the appropriate remedy is to remand to the trial court to amend the sentence and explicitly state that the combination of confinement and community custody shall not exceed the statutory maximum.” 166 Wn.2d 664, 675, 211 P.3d 1023 (2009). Washington courts commonly refer to such as a “Brooks notation.” See, e.g., State v. Franklin, 172 Wn.2d 831, 839, 263 P.3d 585 (2011).
Citations and pin cites are based on the Westlaw online version of the cited material. No. 79107-9-I/2
I. BACKGROUND
In 2003, a jury convicted Frost of six counts of first degree robbery, one
count of first degree burglary, one count of first degree attempted robbery, and
two counts of second degree assault, each with weapon enhancements. The
sentencing court imposed a concurrent sentence totaling 129 months for the
underlying crimes, plus 528 months for the weapon enhancements, totaling 657
months. The sentencing court also imposed a community custody term of 18 to
36 months.
For the attempted robbery conviction—Count XI—the sentencing court
originally imposed 97 months plus 36 additional months for a firearm
enhancement, totaling 133 months. Since attempted robbery is a Class B felony,
its statutory maximum is 120 months. RCW 9A.28.020(3)(b); 9A.20.021(1)(b). In
2018, Frost filed a motion for resentencing on the ground that the sentence for
Count XI exceeded the statutory maximum. The State agreed and the trial court
amended the sentence for Count XI to 84 months plus 36 months for the firearm
enhancement, totaling 120 months. Frost appeals, claiming his sentence still
contains errors on grounds that appear for the first time on appeal.
II. ANALYSIS
A. Sentencing Errors
Frost argues that the trial court failed to correct his sentence as to
Count XI because, if the new 120 month underlying sentence is added to the
18 to 36 month community custody term, the sentence still exceeds the statutory
maximum. Frost makes the same claim as to his two assault charges, Counts
2 No. 79107-9-I/3
VIII and X. The trial court imposed 63 months followed by a 36 month weapon
enhancement for each assault count, totaling 99 months. However, Frost argues
that when added to the 18 to 36 month community custody period, his sentence
for the assault counts could range from 117 to 135 months, potentially exceeding
the 120 month statutory maximum for the crimes. Accordingly, he asserts
remand for resentencing is necessary.
The State claims that the proper remedy for the claimed error is remand
for a Brooks notation, not remand for resentencing. We agree.
We review de novo whether a sentence is legally erroneous. State v.
Dyson, 189 Wn. App. 215, 224, 360 P.3d 25 (2015). Such claims may come for
the first time on appeal. State v. Hood, 196 Wn. App. 127, 138, 382 P.3d 710
(2016).
First degree attempted robbery and second degree assault carry a
statutory maximum of 120 months. RCW 9A.28.020(3)(b); 9A.36.021(2)(a);
9A.20.021(1)(b). “[A] court may not impose a sentence providing for a term of
confinement or community custody that exceeds the statutory maximum for the
crime.” RCW 9.94A.505(5). Here, when the 18 to 36 month term of community
custody is added to the new 120 month attempted robbery sentence, the
sentence for Count XI exceeds the statutory maximum. Additionally, when the
18 to 36 month term of community custody is added to the 99 month sentence for
each assault charge, the sentences for Counts VIII and X have potential to
exceed the statutory maximum. Because the sentences for Counts VIII, X, and
3 No. 79107-9-I/4
XI exceed or have potential to exceed the statutory maximum for those crimes,
the sentences are in error.
Frost argues the proper remedy for these errors is resentencing. But none
of the cases he cites supports this argument. See, e.g., State v. Rooth, 129 Wn.
App. 761, 769–72, 121 P.3d 755 (2005) (defendant was entitled to resentencing
because the guilty verdict for one of the charges could no longer stand); State v.
Smissaert, 103 Wn.2d 636, 639–40, 642, 694 P.2d 654 (1985) (holding the trial
court, by amending sentence from a 20 year statutory maximum to a life
sentence, had effectively resentenced defendant).
Instead, the State correctly identifies that Washington courts have held
that, where a sentencing court erroneously imposes a sentence that is, or has
the potential to be, in excess of the statutory maximum, the proper remedy is
amendment of their judgment and sentence with a Brooks notation, and not
resentencing.2 See State v. Franklin, 172 Wn.2d 831, 842, 263 P.3d 585 (2011)
(holding that resentencing was not necessary where a Brooks notation ensured
that a sentence with potential to exceed the statutory maximum, entered prior to
the enactment of RCW 9.94A.701, would not exceed the statutory maximum);
State v. Hartzell, 153 Wn. App. 137, 174, 221 P.3d 928 (2009) (remanding for a
2 In State v. Boyd, our Supreme Court held that RCW 9.94A.701(9), enacted in 2009 and after the Brooks decision, overruled the necessity for Brooks notations for sentences entered after its enactment. 174 Wn.2d 470, 473, 275 P.3d 321 (2012).
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 79107-9-I
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION JOSHUA JAMES FROST,
Appellant.
CHUN, J. — In 2003, a jury convicted Joshua Frost of various crimes,
including attempted robbery and assault. After sentencing Frost, the trial court
amended the sentence so that, with respect to the attempted robbery count, it
would not exceed the statutory maximum. Claiming his sentence still contains
errors, Frost appeals. Because, in combination with his term of community
custody, the terms for his attempted robbery count and assault counts exceed, or
have potential to exceed, the statutory maximum, we remand for the addition of a
Brooks notation1 to his sentence.
1 In In re Pers. Restraint of Brooks, our Supreme Court held that when a trial court has sentenced a defendant to a “term of confinement and community custody that has the potential to exceed the statutory maximum for the crime, the appropriate remedy is to remand to the trial court to amend the sentence and explicitly state that the combination of confinement and community custody shall not exceed the statutory maximum.” 166 Wn.2d 664, 675, 211 P.3d 1023 (2009). Washington courts commonly refer to such as a “Brooks notation.” See, e.g., State v. Franklin, 172 Wn.2d 831, 839, 263 P.3d 585 (2011).
Citations and pin cites are based on the Westlaw online version of the cited material. No. 79107-9-I/2
I. BACKGROUND
In 2003, a jury convicted Frost of six counts of first degree robbery, one
count of first degree burglary, one count of first degree attempted robbery, and
two counts of second degree assault, each with weapon enhancements. The
sentencing court imposed a concurrent sentence totaling 129 months for the
underlying crimes, plus 528 months for the weapon enhancements, totaling 657
months. The sentencing court also imposed a community custody term of 18 to
36 months.
For the attempted robbery conviction—Count XI—the sentencing court
originally imposed 97 months plus 36 additional months for a firearm
enhancement, totaling 133 months. Since attempted robbery is a Class B felony,
its statutory maximum is 120 months. RCW 9A.28.020(3)(b); 9A.20.021(1)(b). In
2018, Frost filed a motion for resentencing on the ground that the sentence for
Count XI exceeded the statutory maximum. The State agreed and the trial court
amended the sentence for Count XI to 84 months plus 36 months for the firearm
enhancement, totaling 120 months. Frost appeals, claiming his sentence still
contains errors on grounds that appear for the first time on appeal.
II. ANALYSIS
A. Sentencing Errors
Frost argues that the trial court failed to correct his sentence as to
Count XI because, if the new 120 month underlying sentence is added to the
18 to 36 month community custody term, the sentence still exceeds the statutory
maximum. Frost makes the same claim as to his two assault charges, Counts
2 No. 79107-9-I/3
VIII and X. The trial court imposed 63 months followed by a 36 month weapon
enhancement for each assault count, totaling 99 months. However, Frost argues
that when added to the 18 to 36 month community custody period, his sentence
for the assault counts could range from 117 to 135 months, potentially exceeding
the 120 month statutory maximum for the crimes. Accordingly, he asserts
remand for resentencing is necessary.
The State claims that the proper remedy for the claimed error is remand
for a Brooks notation, not remand for resentencing. We agree.
We review de novo whether a sentence is legally erroneous. State v.
Dyson, 189 Wn. App. 215, 224, 360 P.3d 25 (2015). Such claims may come for
the first time on appeal. State v. Hood, 196 Wn. App. 127, 138, 382 P.3d 710
(2016).
First degree attempted robbery and second degree assault carry a
statutory maximum of 120 months. RCW 9A.28.020(3)(b); 9A.36.021(2)(a);
9A.20.021(1)(b). “[A] court may not impose a sentence providing for a term of
confinement or community custody that exceeds the statutory maximum for the
crime.” RCW 9.94A.505(5). Here, when the 18 to 36 month term of community
custody is added to the new 120 month attempted robbery sentence, the
sentence for Count XI exceeds the statutory maximum. Additionally, when the
18 to 36 month term of community custody is added to the 99 month sentence for
each assault charge, the sentences for Counts VIII and X have potential to
exceed the statutory maximum. Because the sentences for Counts VIII, X, and
3 No. 79107-9-I/4
XI exceed or have potential to exceed the statutory maximum for those crimes,
the sentences are in error.
Frost argues the proper remedy for these errors is resentencing. But none
of the cases he cites supports this argument. See, e.g., State v. Rooth, 129 Wn.
App. 761, 769–72, 121 P.3d 755 (2005) (defendant was entitled to resentencing
because the guilty verdict for one of the charges could no longer stand); State v.
Smissaert, 103 Wn.2d 636, 639–40, 642, 694 P.2d 654 (1985) (holding the trial
court, by amending sentence from a 20 year statutory maximum to a life
sentence, had effectively resentenced defendant).
Instead, the State correctly identifies that Washington courts have held
that, where a sentencing court erroneously imposes a sentence that is, or has
the potential to be, in excess of the statutory maximum, the proper remedy is
amendment of their judgment and sentence with a Brooks notation, and not
resentencing.2 See State v. Franklin, 172 Wn.2d 831, 842, 263 P.3d 585 (2011)
(holding that resentencing was not necessary where a Brooks notation ensured
that a sentence with potential to exceed the statutory maximum, entered prior to
the enactment of RCW 9.94A.701, would not exceed the statutory maximum);
State v. Hartzell, 153 Wn. App. 137, 174, 221 P.3d 928 (2009) (remanding for a
2 In State v. Boyd, our Supreme Court held that RCW 9.94A.701(9), enacted in 2009 and after the Brooks decision, overruled the necessity for Brooks notations for sentences entered after its enactment. 174 Wn.2d 470, 473, 275 P.3d 321 (2012). The statute requires a court to reduce a term of community custody whenever an offender’s standard range in combination with the term of community custody exceeds the statutory maximum for the crime. RCW 9.94A.701(9). But Boyd makes clear that RCW 9.94A.701 does not overrule the need for Brooks notations for sentences entered before the statute’s enactment. Boyd, 174 Wn.2d at 472–73. The trial court entered Frost’s sentence in 2003, well before the legislature enacted the statute in question.
4 No. 79107-9-I/5
Brooks notation where the defendant’s confinement term in combination with
their community custody term facially exceeds the statutory maximum).
However, the State also argues that, while remand for a Brooks notation is
the proper remedy, doing so is unnecessary because Frost will not begin to serve
his community custody until he finishes his 129 month sentences for the six
robbery charges, for which the statutory maximum is life. Accordingly, the State
argues, a Brooks notation would not affect the length of his sentence. The State
offers no legal authority in support of its argument that we can ignore such an
error in these circumstances, so we decline to do so.
We thus remand the judgment and sentence for addition of a Brooks
notation as to Counts VIII, X, and XI.
B. Scrivener’s Error
The trial court’s Order Amending Judgment and Sentence as to Count XI
Only states that the 84 month sentence for Count XI runs concurrently with the
sentences for Counts I–X and XII. Frost claims that because the jury acquitted
him of Count VII, this notation constitutes a scrivener’s error. See State v. Davis,
160 Wn. App. 471, 478, 248 P.3d 121 (2011) (superseded by statute on other
grounds as recognized by In re Pers. Restraint of Combs, 176 Wn. App. 112, 308
P.3d 763 (2013) (“A [scrivener’s error] is one that, when amended, would
correctly convey the intention of the court based on other evidence.”). The State
argues that remand for this correction would be a waste of judicial resources, as
the current notation properly conveys the trial court’s intentions, but also notes
that it did not charge Frost with Count V. Thus, an accurate statement of the
5 No. 79107-9-I/6
amended sentence for Count XI would say that it runs concurrently with the
sentences for Counts I–IV, VI, VIII–X, and XII.
When the trial court, on remand, amends the sentence for addition of a
Brooks notation for Counts XIII, X, and XI, it should accurately state the counts
for which it is sentencing Frost.
Remanded.
WE CONCUR: