Filed Washington State Court of Appeals Division Two
May 18, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 53495-9-II
Respondent,
v. PUBLISHED OPINION
MATTHEW BENJAMIN LABOUNTY, aka NICHOLAS RYAN GEORGE,
Appellant.
MAXA, J. – Matthew LaBounty appeals his sentence after his guilty plea for unlawful
possession of methamphetamine with intent to deliver, unlawful possession of heroin with intent
to deliver, and first degree unlawful possession of a firearm. LaBounty was sentenced on the
same day in a separate case for a conviction of unlawful possession of a controlled substance,
and that conviction was treated as a current offense.
LaBounty initially raised several issues regarding his sentence. One of his claims was
that the prosecutor improperly failed to recommend the sentence agreed in his plea agreement.
The prosecutor took the position at sentencing that the State was not bound by the plea
agreement because LaBounty engaged in unlawful behavior that resulted in the unlawful
possession conviction. In a supplemental brief, LaBounty asserted that this case must be
remanded for resentencing following the Supreme Court’s decision in State v. Blake, 197 Wn.2d
170, 481 P.3d 521 (2021). No. 53495-9-II
Based on Blake, this court has now reversed LaBounty’s conviction for unlawful
possession of a controlled substance and has remanded for the trial court to vacate that
conviction. Therefore, we remand for the trial court to remove the unlawful possession of a
controlled substance conviction from his offender score and for resentencing. Because the issue
may arise again on remand, we address and provide guidance regarding LaBounty’s claim that
the trial court erred in imposing any earned release time as LaBounty’s term of community
custody.
FACTS
The State charged LaBounty with unlawful possession of methamphetamine with intent
to deliver while armed with a firearm, unlawful possession of heroin with intent to deliver while
armed with a firearm, and first degree unlawful possession of a firearm. LaBounty agreed to
plead guilty to these three charges.
The plea agreement noted that the high end of LaBounty’s standard range sentence was
120 months on both the possession with intent to deliver charges and 102 months on the
possession of a firearm charge. As part of the plea agreement, the State agreed to recommend
108 months on each of the drug charges and 102 months on the firearm charge. However, the
plea agreement stated that if LaBounty committed a new offense before sentencing, the
prosecutor could recommend a more severe sentence. The trial court accepted the parties’ plea
agreement and the matter proceeded to sentencing.
At the sentencing hearing a month later, the prosecutor informed the court that the State
had filed an additional charge against LaBounty for possession of a controlled substance, which
had occurred while he was incarcerated and awaiting sentencing. LaBounty decided to plead
guilty to that charge at the sentencing hearing. Because of the new offense, the prosecutor
2 No. 53495-9-II
recommended a sentence of 120 months instead of the agreed 108 months for the possession
with intent to deliver convictions and 102 months for the possession of a firearm conviction to be
run concurrently, for a total confinement period of 120 months.
The trial court imposed sentences on the present case and the three other cases at the
same time. The court stated that all the sentences would run concurrently. For the present case,
the trial court sentenced LaBounty to 120 months total confinement, the statutory maximum.
The judgment and sentence noted that the convictions in the other three cases counted as current
offenses for purposes of calculating the offender score.
Regarding community custody, the judgment and sentence stated that LaBounty “shall be
on community custody for: any earned release time.” Clerk’s Papers (CP) at 83. The judgment
and sentence also stated that the “combined term of confinement and community custody . . .
cannot exceed the statutory maximum.” CP at 83.
After this appeal was filed, this court in a separate case reversed LaBounty’s conviction
for possession of a controlled substance and remanded for the trial court to vacate that
conviction. State v. LaBounty, No. 53551-3-II, slip op. at 2 (Wash. Ct. App. May 4, 2021)
(unpublished), https://www.courts.wa.gov/opinions/pdf/535513_unp.pdf. (LaBounty I).
LaBounty appeals his sentence.
ANALYSIS
A. IMPACT OF UNLAWFUL POSSESSION CONVICTION ON SENTENCING
LaBounty argues that he is entitled to be resentenced because his offender score included
a now reversed conviction for unlawful possession of a controlled substance. We agree.
In Blake, the Supreme Court held that Washington’s strict liability drug possession
statute, RCW 69.50.4013(1), violates state and federal due process clauses and therefore is void.
3 No. 53495-9-II
197 Wn.2d at 195. A conviction based on an unconstitutional statute must be vacated. See State
v. Carnahan, 130 Wn. App. 159, 164, 122 P.3d 187 (2005) (vacating a conviction that was based
on a statute that the Supreme Court held was unconstitutional). As noted above, this court has
reversed LaBounty’s conviction for possession of a controlled substance in a separate case.
LaBounty I, slip op. at 2.
The prosecutor requested a sentence of 120 months on the possession with intent to
deliver convictions instead of the agreed recommendation of 108 months because of the now
reversed unlawful possession conviction. The State argues that it still would have been
permitted to disregard the recommendation agreed in the plea agreement even without the now
reversed unlawful possession of a controlled substance conviction because LaBounty’s conduct
violated other statutes that have not been declared unconstitutional and his conditions of release.
But LaBounty was not charged under any other statutes and his conditions of release were not
raised at sentencing. Therefore, we cannot presume that the prosecutor would have
recommended a sentence of 120 months instead of the agreed 108 months in the absence of the
unlawful possession of a controlled substance conviction. Therefore, we remand for
resentencing.
In addition, a conviction based on an unconstitutional statute cannot be considered in
calculating the offender score. See State v. Ammons, 105 Wn.2d 175, 187, 713 P.2d 719 (1986).
Accordingly, LaBounty’s offender score must be adjusted to reflect the now reversed conviction
of unlawful possession of a controlled substance that the trial court will vacate on remand in the
other case.
We remand for resentencing and for the trial court to adjust LaBounty’s offender score.
4 No. 53495-9-II
B. VALIDITY OF COMMUNITY CUSTODY TERM
LaBounty argues that the trial court erred in sentencing LaBounty to community custody
for any earned release time. We address this issue because it may arise at resentencing.
1. Legal Principles
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Filed Washington State Court of Appeals Division Two
May 18, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 53495-9-II
Respondent,
v. PUBLISHED OPINION
MATTHEW BENJAMIN LABOUNTY, aka NICHOLAS RYAN GEORGE,
Appellant.
MAXA, J. – Matthew LaBounty appeals his sentence after his guilty plea for unlawful
possession of methamphetamine with intent to deliver, unlawful possession of heroin with intent
to deliver, and first degree unlawful possession of a firearm. LaBounty was sentenced on the
same day in a separate case for a conviction of unlawful possession of a controlled substance,
and that conviction was treated as a current offense.
LaBounty initially raised several issues regarding his sentence. One of his claims was
that the prosecutor improperly failed to recommend the sentence agreed in his plea agreement.
The prosecutor took the position at sentencing that the State was not bound by the plea
agreement because LaBounty engaged in unlawful behavior that resulted in the unlawful
possession conviction. In a supplemental brief, LaBounty asserted that this case must be
remanded for resentencing following the Supreme Court’s decision in State v. Blake, 197 Wn.2d
170, 481 P.3d 521 (2021). No. 53495-9-II
Based on Blake, this court has now reversed LaBounty’s conviction for unlawful
possession of a controlled substance and has remanded for the trial court to vacate that
conviction. Therefore, we remand for the trial court to remove the unlawful possession of a
controlled substance conviction from his offender score and for resentencing. Because the issue
may arise again on remand, we address and provide guidance regarding LaBounty’s claim that
the trial court erred in imposing any earned release time as LaBounty’s term of community
custody.
FACTS
The State charged LaBounty with unlawful possession of methamphetamine with intent
to deliver while armed with a firearm, unlawful possession of heroin with intent to deliver while
armed with a firearm, and first degree unlawful possession of a firearm. LaBounty agreed to
plead guilty to these three charges.
The plea agreement noted that the high end of LaBounty’s standard range sentence was
120 months on both the possession with intent to deliver charges and 102 months on the
possession of a firearm charge. As part of the plea agreement, the State agreed to recommend
108 months on each of the drug charges and 102 months on the firearm charge. However, the
plea agreement stated that if LaBounty committed a new offense before sentencing, the
prosecutor could recommend a more severe sentence. The trial court accepted the parties’ plea
agreement and the matter proceeded to sentencing.
At the sentencing hearing a month later, the prosecutor informed the court that the State
had filed an additional charge against LaBounty for possession of a controlled substance, which
had occurred while he was incarcerated and awaiting sentencing. LaBounty decided to plead
guilty to that charge at the sentencing hearing. Because of the new offense, the prosecutor
2 No. 53495-9-II
recommended a sentence of 120 months instead of the agreed 108 months for the possession
with intent to deliver convictions and 102 months for the possession of a firearm conviction to be
run concurrently, for a total confinement period of 120 months.
The trial court imposed sentences on the present case and the three other cases at the
same time. The court stated that all the sentences would run concurrently. For the present case,
the trial court sentenced LaBounty to 120 months total confinement, the statutory maximum.
The judgment and sentence noted that the convictions in the other three cases counted as current
offenses for purposes of calculating the offender score.
Regarding community custody, the judgment and sentence stated that LaBounty “shall be
on community custody for: any earned release time.” Clerk’s Papers (CP) at 83. The judgment
and sentence also stated that the “combined term of confinement and community custody . . .
cannot exceed the statutory maximum.” CP at 83.
After this appeal was filed, this court in a separate case reversed LaBounty’s conviction
for possession of a controlled substance and remanded for the trial court to vacate that
conviction. State v. LaBounty, No. 53551-3-II, slip op. at 2 (Wash. Ct. App. May 4, 2021)
(unpublished), https://www.courts.wa.gov/opinions/pdf/535513_unp.pdf. (LaBounty I).
LaBounty appeals his sentence.
ANALYSIS
A. IMPACT OF UNLAWFUL POSSESSION CONVICTION ON SENTENCING
LaBounty argues that he is entitled to be resentenced because his offender score included
a now reversed conviction for unlawful possession of a controlled substance. We agree.
In Blake, the Supreme Court held that Washington’s strict liability drug possession
statute, RCW 69.50.4013(1), violates state and federal due process clauses and therefore is void.
3 No. 53495-9-II
197 Wn.2d at 195. A conviction based on an unconstitutional statute must be vacated. See State
v. Carnahan, 130 Wn. App. 159, 164, 122 P.3d 187 (2005) (vacating a conviction that was based
on a statute that the Supreme Court held was unconstitutional). As noted above, this court has
reversed LaBounty’s conviction for possession of a controlled substance in a separate case.
LaBounty I, slip op. at 2.
The prosecutor requested a sentence of 120 months on the possession with intent to
deliver convictions instead of the agreed recommendation of 108 months because of the now
reversed unlawful possession conviction. The State argues that it still would have been
permitted to disregard the recommendation agreed in the plea agreement even without the now
reversed unlawful possession of a controlled substance conviction because LaBounty’s conduct
violated other statutes that have not been declared unconstitutional and his conditions of release.
But LaBounty was not charged under any other statutes and his conditions of release were not
raised at sentencing. Therefore, we cannot presume that the prosecutor would have
recommended a sentence of 120 months instead of the agreed 108 months in the absence of the
unlawful possession of a controlled substance conviction. Therefore, we remand for
resentencing.
In addition, a conviction based on an unconstitutional statute cannot be considered in
calculating the offender score. See State v. Ammons, 105 Wn.2d 175, 187, 713 P.2d 719 (1986).
Accordingly, LaBounty’s offender score must be adjusted to reflect the now reversed conviction
of unlawful possession of a controlled substance that the trial court will vacate on remand in the
other case.
We remand for resentencing and for the trial court to adjust LaBounty’s offender score.
4 No. 53495-9-II
B. VALIDITY OF COMMUNITY CUSTODY TERM
LaBounty argues that the trial court erred in sentencing LaBounty to community custody
for any earned release time. We address this issue because it may arise at resentencing.
1. Legal Principles
Both unlawful possession of methamphetamine with intent to deliver and unlawful
possession of heroin with intent to deliver are class B felonies, with statutory maximums of 10
years (120 months) confinement. RCW 69.50.401(1) and (2)(b).1 Under RCW 9.94A.701, the
trial court also must impose a fixed term of community custody, with the length of that term
depending on the offense committed. RCW 9.94A.701(3)(c) states that the trial court is required
to sentence a person convicted of a felony under chapter 69.50 RCW to one year of community
custody.2
However, a trial court it is not allowed to impose a total term of confinement and
community custody exceeding the statutory maximum. RCW 9.94A.505(5)3; State v. Boyd, 174
Wn.2d 470, 473, 275 P.3d 321 (2012). Therefore, RCW 9.94A.701(9) requires a trial court to
reduce the community custody term if the confinement and community custody terms combined
exceed the statutory maximum. In other words, “As a result of RCW 9.94A.701(9) . . . [a
defendant] is not required to serve the term of community custody that would otherwise be
mandatory.” State v. Thibodeaux, 6 Wn. App. 2d 223, 228, 430 P.3d 700 (2018).
1 RCW 69.50.401 was amended in 2019, but that amendment is not material to this case. Therefore, we cite to the current version of the statute. 2 There is no community custody requirement for first degree possession of a firearm. RCW 9.94A.701. 3 RCW 9.94A.505 was amended in 2019, but that amendment is not material to this case. Therefore, we cite to the current version of the statute.
5 No. 53495-9-II
In addition, an indeterminate or variable term of community custody is invalid. See State
v. Bruch, 182 Wn.2d 854, 857, 346 P.3d 724 (2015) (affirming the trial court’s sentence because
the term of community custody was not indeterminate); State v. Winborne, 167 Wn. App. 320,
329, 273 P.3d 454 (2012) (stating that a variable community custody term is contrary to the
2009 amendments to the community custody statutes).
Under RCW 9.94A.729(1)(a), the Department of Corrections (DOC) may reduce an
offender’s sentence to a correctional facility by “earned release time” based on good behavior
and good performance. RCW 9.94A.729(5)(a) states, “A person who is eligible for earned early
release as provided in this section and who will be supervised by the [DOC] pursuant to RCW
9.94A.501 . . . shall be transferred to community custody in lieu of earned release time.”
An erroneous sentence may be challenged for the first time on appeal. State v. Bahl, 164
Wn.2d 739, 744, 193 P.3d 678 (2008). We review de novo whether a sentencing court has
exceeded its statutory authority. State v. Button, 184 Wn. App. 442, 446, 339 P.3d 182 (2014).
2. Analysis
Here, the trial court sentenced LaBounty to the statutory maximum term of confinement –
120 months. Therefore, under RCW 9.94A.701(9) the court was required to reduce the one-year
term of community custody mandated by RCW 9.94A.701(3)(c) to zero. But the trial court
imposed community custody for “any earned release time.” CP at 83. LaBounty claims that this
community custody provision is impermissible because it did not specify a fixed term of
community custody.
a. Winkle
Division One of this court rejected a similar argument in State v. Winkle, 159 Wn. App.
323, 329-31, 245 P.3d 249 (2011). In Winkle, the trial court sentenced the defendant, a sex
6 No. 53495-9-II
offender, to the statutory maximum of 60 months confinement and imposed a term of community
custody “for the entire period of earned early release awarded.” Id. at 327. The defendant
argued on appeal that when the trial court sentences an offender to the statutory maximum, the
court does not have authority to impose community custody in lieu of earned early release. Id.
The court noted the State’s explanation that because the community custody term was
limited to earned early release, the sentence necessarily could not exceed the statutory maximum.
Id. The court also emphasized that “the plain language of [RCW 9.94A.729(5)(a)] clearly
mandates transferring a convicted sex offender to community custody rather than allowing early
release.” Id. at 330. The court affirmed the trial court’s sentence “[b]ecause the [Sentencing
Reform Act] requires that a defendant convicted of a sex offense must be transferred to
community custody in lieu of earned early release, and the sentence the court imposed cannot
exceed the statutory maximum.” Id. at 325.
The Supreme Court referenced Winkle in a footnote in State v. Franklin, 172 Wn.2d 831,
263 P.3d 585 (2011). In that case, the defendant argued that RCW 9.94A.701 required a trial
court to set fixed terms of community custody and that RCW 9.94A.729(5) did not authorize a
trial court to impose community custody in lieu of earned early release. Id. at 837 n.8. The
defendant asked the court to overturn the holding in Winkle that RCW 9.94A.729(5) allowed a
trial court to impose community custody in lieu of earned early release. Id. The court stated
without further explanation that “[t]he plain meaning of the relevant statutes support Franklin’s
contention that RCW 9.94A.701 and RCW 9.94A.702 [addressing community custody for
sentences less than one year] – not RCW 9.94A.729 – govern the trial court’s imposition of
community custody.” Id. Nevertheless, the court declined to address the validity of Winkle. Id.
7 No. 53495-9-II
b. Bruch
In Bruch, 182 Wn.2d 854, the Supreme Court addressed a slightly different scenario than
in Winkle. In that case, the trial court imposed a term of confinement of 116 months for a sex
offender, four months less than the statutory maximum, and a community custody term of “at
least 4 months, plus all accrued earned early release time at the time of release.” Id. at 859. The
defendant argued that his sentence was indeterminate because of the earned early release
provision. Id. at 862. He also claimed that the trial court and not DOC must determine the end
date of community custody. Id.
Initially, the court noted that the trial court’s reference to earned early release was
consistent with RCW 9.9A.729(5):
The trial court’s notation . . . references the DOC’s distinct authority to grant Bruch early release time, which by statute is transferred to community custody under RCW 9.94A.729(5). Any community custody in lieu of early release Bruch earns is a reduction from his confinement time, meaning his term may never exceed the statutory maximum.
Id. at 864. The court further stated that “[w]e do not find that a trial court is prohibited from
referencing in the judgment and sentence the procedures under RCW 9.94A.729(5).” Id. at 865.
The court concluded that the trial court’s sentence “is not indeterminate merely because
[the defendant] may earn early release in lieu of community custody.” Id. at 866. The court
stated, “There is no indication that the amendments to RCW 9.94A.701 rendered the DOC’s
authority under RCW 9.94A.729(5) inconsistent with the SRA or that community custody in lieu
of early release renders an offender’s sentence indeterminate.” Id. at 865.
The court also addressed the footnote in Franklin regarding Winkle. Bruch, 182 Wn.2d at
864-65. The court stated, “Unlike in Winkle, here the trial court imposed a fixed term of
8 No. 53495-9-II
community custody under RCW 9.94A.701(1) and referenced the community custody in lieu of
earned early release that the DOC may supervise.” Id. at 865 (emphasis added).
In a footnote, the court elaborated:
In Winkle, the Court of Appeals permitted the DOC to transfer an offender’s earned early release to community custody in the absence of the defendant receiving a court-imposed, fixed term of community custody. The statutory framework of RCW 9.94A.729 suggests that there are two prerequisites to the DOC’s ability to “transfer[] to community custody in lieu of earned release time,” RCW 9.94A.729(5)(a): (1) being convicted of a particular crime, i.e., certain serious violent crimes or certain sex offenses, RCW 9.94A.501(4)(a), and (2) being sentenced to a fixed term of community custody by a trial court. This issue arises, as it did in Winkle, when a trial court imposes the statutory maximum term of confinement, preventing it from imposing a fixed-term of community custody under RCW 9.94A.701(1). Though it is hard to imagine the legislature intended no community custody in such an instance, the statutory language needs to be addressed in an appropriate case.
Id. at 865-66 n.4.
The court also rejected the defendant’s argument that the trial court’s community custody
provision failed to ensure that his community custody term would not exceed the 36 months of
community custody allowed for his offense under RCW 9.94A.701. Id. at 866-70. The court
suggested that the provision was proper as long as the trial court’s fixed term of community
custody did not exceed 36 months. Id. at 869. The fact that DOC may transfer earned early
release time to community custody does not affect the validity of the trial court’s sentence. Id. at
867-70.
c. Holding
The foundation of Bruch is RCW 9.94A.729(5)(a). The court indicated that earned
release time can be converted to community custody only if RCW 9.94A.729(5)(a) applies.
Bruch, 182 Wn.2d at 864-65. However, that statute does not apply to all offenders. RCW
9.94A.729(5)(a) applies only if the offender “will be supervised by the [DOC] pursuant to RCW
9 No. 53495-9-II
9.94A.501.” RCW 9.94A.501(3)4 states the general rule that DOC will supervise felony
offenders sentenced to community custody “whose risk assessment classifies the offender as one
who is at a high risk to reoffend.”5
Here, it is unknown whether RCW 9.94A.729(5)(a) applies to LaBounty’s sentence. That
statute applies only if the offender will be supervised by DOC pursuant to RCW 9.94A.501.
Nothing in the record indicates whether the “risk assessment” classifies LaBounty as an offender
“who is at a high risk to reoffend.” RCW 9.94A.501(3).
In addition, even if LaBounty would qualify for DOC supervision under RCW
9.94A.501(3) as an offender at high risk to reoffend, that is only the first requirement for
application of RCW 9.94A.729(5)(a). RCW 9.94A.501(3) provides for DOC supervision if an
offender actually is sentenced to community custody. The court in Bruch stated that the second
requirement of RCW 9.94A.729(5)(a) is “being sentenced to a fixed term of community custody
by a trial court.” 182 Wn.2d at 865 n.4.
Finally, we note that if RCW 9.94A.729(5)(a) does apply, conversion of earned release
time to community custody is automatic. RCW 9.94A.729(5)(a); Bruch, 182 Wn.2d at 867-68.
Because RCW 9.94A.729(5)(a) mandates that earned early release time be converted to
community custody, including earned early release time in the community custody provision
simply acknowledges DOC’s authority to transfer early release time to community custody.
Bruch, 182 Wn.2d at 864, 867. In fact, the court in Bruch stated that the trial court’s addition of
4 RCW 9.94A.501 has been amended since the events of this case transpired. Because these amendments do not impact the statutory language relied on by this court, we refer to the current statute. 5 RCW 9.94A.501(4) also provides for DOC supervision for specific types of offenders sentenced to community custody, including sex offenders and serious violent offenders. Winkle and Bruch both involved sex offenders.
10 No. 53495-9-II
earned early release time to the defendant’s community custody was not really necessary because
of the mandatory nature of RCW 9.94A.729(5)(a). Id. at 867 n.5. Therefore, a trial court’s
imposition of community custody consisting of earned release time is somewhat superfluous.
In conclusion, on remand the trial court can include a provision that community custody
will consist of earned release time only if (1) LaBounty is subject to DOC supervision under
RCW 9.94A.501, and (2) the court sentences him to a fixed term of community custody.
CONCLUSION
We remand for recalculation of LaBounty’s offender score without the now reversed
unlawful possession of a controlled substance conviction and for resentencing.
MAXA, J.
We concur:
SUTTON, J.
GLASGOW, A.C.J.