NOTICE: SLIP OPINION (not the court’s final written decision)
The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinions that are originally filed by the court. A slip opinion is not necessarily the court’s final written decision. Slip opinions can be changed by subsequent court orders. For example, a court may issue an order making substantive changes to a slip opinion or publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (for style, grammar, citation, format, punctuation, etc.) are made before the opinions that have precedential value are published in the official reports of court decisions: the Washington Reports 2d and the Washington Appellate Reports. An opinion in the official reports replaces the slip opinion as the official opinion of the court. The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of the court’s opinion is found in the advance sheets and the bound volumes of the official reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports. For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports, see https://www.courts.wa.gov/opinions and the information that is linked there. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
FILED JANUARY 10, 2023 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) ) No. 38382-2-III Respondent, ) ) v. ) ) STEVEN ALLEN BUCK, ) PUBLISHED OPINION ) Appellant. )
STAAB, J. — As part of Steven Buck’s sentence for escaping community custody
and failing to register as a sex offender, the court imposed 36 months of community
custody to run consecutively to any other outstanding term of community custody. Buck
also had an outstanding term of community custody from a 2016 offense for failing to
register as a sex offender. On appeal, Buck argues that the aggregate amount of
community custody is outside the sentencing guidelines provided in RCW 9.94A.589(5)
which only allows for a maximum of 24 months of consecutive community supervision
for a non-exceptional sentence. Despite the State’s concession, we hold that the
limitations in RCW 9.94A.589(5) relate to community supervision rather than community
custody and do not apply to Buck’s sentence. Consequently, we affirm his sentence. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 38382-2-III State v. Buck
BACKGROUND
In 2016, Buck was convicted of failing to register as a sex offender. Following his
conviction, he received a 43-month sentence and 36 months of community custody.
Buck was released from prison in April 2020 and was still on community custody from
his 2016 conviction. Although Buck provided a registered address, the assigned deputy
visited this address on three separate occasions in one month and could not locate anyone
on the premises. The matter was eventually turned over to the prosecutor’s office, and
Buck was charged with escape from community custody and failure to register as a sex
offender.
A jury found Buck guilty of count 1: escape from community custody, and count
2: failure to register as a sex offender (3rd or subsequent offense). At sentencing, the
court imposed a prison sentence of 12 months on count 1, and 57 months on count 2. The
court also imposed a sentence of 36 months of community custody on count 2. The court
ordered the new community custody sentence to run consecutively to the community
custody sentence from 2016 “or any current term of community custody,” resulting in an
aggregate amount of 72 months of community custody. Buck appeals.
ANALYSIS
Under Washington law, a trial court’s sentencing authority “is limited to that
expressly found in the statutes.” State v. Phelps, 113 Wn. App. 347, 354, 57 P.3d 624
(2002). In addition, “[i]f the statutory provisions are not followed, the action of the court
2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
is void.” Id. at 354-55. Statutory interpretation is a question of law and is reviewed de
novo. State v. Evans, 177 Wn.2d 186, 191, 298 P.3d 724 (2013). When statutes conflict,
“courts generally give preference to the more specific and more recently enacted statute.”
Gorman v. Garlock, Inc., 155 Wn.2d 198, 210, 118 P.3d 311 (2005) (quoting Tunstall v.
Bergeson, 141 Wn.2d 201, 211, 5 P.3d 691 (2000)).
The first sentence of RCW 9.94A.589(5) states, “[i]n the case of consecutive
sentences, all periods of total confinement shall be served before any partial confinement,
community restitution, community supervision, or any other requirement or conditions of
any of the sentences.” The second sentence of the statute addresses restrictions on
sentencing regarding community supervision. It reads “if two or more sentences that run
consecutively include periods of community supervision, the aggregate of the community
supervision period shall not exceed twenty-four months.” RCW 9.94A.589(5) (emphasis
added).
Buck argues that 72 months of aggregate community custody violates this
statutory provision, and the State concedes. We disagree. Community custody is not the
same as community supervision. Therefore, the sentencing restriction in RCW
9.94A.589(5) does not apply here. Rusan’s, Inc. v. State, 78 Wn.2d 601, 606, 478 P.2d
724 (1970) (courts are not bound to accept a party’s stipulation or concession to questions
of statutory interpretation).
3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
Prior to 2000, a felony offender could be sentenced to several forms of
supervision, such as community placement, community custody, and post-release
community supervision. S.B. REP. ON H.B. 2719, at 1, 60th Leg., Reg. Sess. (Wash.
2008). Community supervision means “a period of time during which a convicted
offender is subject to crime-related prohibitions and other sentence conditions imposed
by a court pursuant to this chapter or RCW 16.52.200(6) or 46.61.524.” LAWS OF 2000,
ch. 28, § 2. In contrast, community custody means “that portion of an offender’s
sentence of confinement in lieu of earned release time or imposed pursuant to RCW
9.94A.120 or RCW
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NOTICE: SLIP OPINION (not the court’s final written decision)
The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinions that are originally filed by the court. A slip opinion is not necessarily the court’s final written decision. Slip opinions can be changed by subsequent court orders. For example, a court may issue an order making substantive changes to a slip opinion or publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (for style, grammar, citation, format, punctuation, etc.) are made before the opinions that have precedential value are published in the official reports of court decisions: the Washington Reports 2d and the Washington Appellate Reports. An opinion in the official reports replaces the slip opinion as the official opinion of the court. The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of the court’s opinion is found in the advance sheets and the bound volumes of the official reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports. For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports, see https://www.courts.wa.gov/opinions and the information that is linked there. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
FILED JANUARY 10, 2023 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) ) No. 38382-2-III Respondent, ) ) v. ) ) STEVEN ALLEN BUCK, ) PUBLISHED OPINION ) Appellant. )
STAAB, J. — As part of Steven Buck’s sentence for escaping community custody
and failing to register as a sex offender, the court imposed 36 months of community
custody to run consecutively to any other outstanding term of community custody. Buck
also had an outstanding term of community custody from a 2016 offense for failing to
register as a sex offender. On appeal, Buck argues that the aggregate amount of
community custody is outside the sentencing guidelines provided in RCW 9.94A.589(5)
which only allows for a maximum of 24 months of consecutive community supervision
for a non-exceptional sentence. Despite the State’s concession, we hold that the
limitations in RCW 9.94A.589(5) relate to community supervision rather than community
custody and do not apply to Buck’s sentence. Consequently, we affirm his sentence. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 38382-2-III State v. Buck
BACKGROUND
In 2016, Buck was convicted of failing to register as a sex offender. Following his
conviction, he received a 43-month sentence and 36 months of community custody.
Buck was released from prison in April 2020 and was still on community custody from
his 2016 conviction. Although Buck provided a registered address, the assigned deputy
visited this address on three separate occasions in one month and could not locate anyone
on the premises. The matter was eventually turned over to the prosecutor’s office, and
Buck was charged with escape from community custody and failure to register as a sex
offender.
A jury found Buck guilty of count 1: escape from community custody, and count
2: failure to register as a sex offender (3rd or subsequent offense). At sentencing, the
court imposed a prison sentence of 12 months on count 1, and 57 months on count 2. The
court also imposed a sentence of 36 months of community custody on count 2. The court
ordered the new community custody sentence to run consecutively to the community
custody sentence from 2016 “or any current term of community custody,” resulting in an
aggregate amount of 72 months of community custody. Buck appeals.
ANALYSIS
Under Washington law, a trial court’s sentencing authority “is limited to that
expressly found in the statutes.” State v. Phelps, 113 Wn. App. 347, 354, 57 P.3d 624
(2002). In addition, “[i]f the statutory provisions are not followed, the action of the court
2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
is void.” Id. at 354-55. Statutory interpretation is a question of law and is reviewed de
novo. State v. Evans, 177 Wn.2d 186, 191, 298 P.3d 724 (2013). When statutes conflict,
“courts generally give preference to the more specific and more recently enacted statute.”
Gorman v. Garlock, Inc., 155 Wn.2d 198, 210, 118 P.3d 311 (2005) (quoting Tunstall v.
Bergeson, 141 Wn.2d 201, 211, 5 P.3d 691 (2000)).
The first sentence of RCW 9.94A.589(5) states, “[i]n the case of consecutive
sentences, all periods of total confinement shall be served before any partial confinement,
community restitution, community supervision, or any other requirement or conditions of
any of the sentences.” The second sentence of the statute addresses restrictions on
sentencing regarding community supervision. It reads “if two or more sentences that run
consecutively include periods of community supervision, the aggregate of the community
supervision period shall not exceed twenty-four months.” RCW 9.94A.589(5) (emphasis
added).
Buck argues that 72 months of aggregate community custody violates this
statutory provision, and the State concedes. We disagree. Community custody is not the
same as community supervision. Therefore, the sentencing restriction in RCW
9.94A.589(5) does not apply here. Rusan’s, Inc. v. State, 78 Wn.2d 601, 606, 478 P.2d
724 (1970) (courts are not bound to accept a party’s stipulation or concession to questions
of statutory interpretation).
3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
Prior to 2000, a felony offender could be sentenced to several forms of
supervision, such as community placement, community custody, and post-release
community supervision. S.B. REP. ON H.B. 2719, at 1, 60th Leg., Reg. Sess. (Wash.
2008). Community supervision means “a period of time during which a convicted
offender is subject to crime-related prohibitions and other sentence conditions imposed
by a court pursuant to this chapter or RCW 16.52.200(6) or 46.61.524.” LAWS OF 2000,
ch. 28, § 2. In contrast, community custody means “that portion of an offender’s
sentence of confinement in lieu of earned release time or imposed pursuant to RCW
9.94A.120 or RCW 9.94A.383, served in the community subject to controls placed on the
offender’s movement and activities by the department.” Id.
In 1999, the legislature passed the Offender Accountability Act, RCW 72.09.589,
.590, .904 , which changed all “community supervision” to “community custody” for
those offenders who committed offenses after July 1, 2000. S.B. REP. ON H.B. 2719, at 2.
However, the old regime needed to stay in place for offenders who committed acts prior
to 2000. Id. These provisions relating to the older forms of community supervision have
been generally moved to ch. 9.94B RCW, while the provisions in ch. 9.94A RCW now
relate to community custody. A reading of the Laws of 2008 demonstrates the removal of
most language relating to community supervision, community placement, and postrelease
supervision from RCW 9.94A. See generally LAWS OF 2008, ch. 231.
4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
Buck was convicted of failing to register as a sex offender in 2016. He received a
43-month sentence and 36 months of community custody. In 2020, he was released from
prison and was still on community custody from the prior conviction when he was
sentenced on the new convictions in 2021. The trial court imposed another 36-month
community custody term to run consecutively with his 2016 conviction term of
community custody.
Buck was sentenced to community custody, not community supervision.
Accordingly, RCW 9.94A.589(5), relating to a limitation on community supervision for
aggregate sentences, does not apply. Therefore, the court properly sentenced Buck to 36
months of community custody as required in RCW 9.94A.701(1)(a) for sex offenses. In
addition, section 2 under the statute allows for community custody to run consecutively
rather than concurrently if expressly ordered by the sentencing court, as occurred here.
See RCW 9.94A.589(2)(a).
Even if we were to find that RCW 9.94A.589(5) and RCW 9.94A.701(1) conflict,
statutory construction dictates the same outcome. The 24-month restriction for
“community supervision” in RCW 9.94A.589(5) was inserted into the statute in 1988.1
RCW 9.94A.701(1)(a), relating to the imposition of 3 years of “community custody,” was
1 LAWS OF 1988, ch. 143, § 24.
5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
inserted into the statute in 2009.2 The more recent statute indicates that the legislature
intended a sentence of 36 months of community custody. Gorman, 155 Wn.2d at 210.
Because Buck’s 36-month sentence of community custody does not violate RCW
9.94A.589(5), it was authorized.
Affirmed.
_________________________________ Staab, J.
WE CONCUR:
_________________________________ Fearing, J.
_________________________________ Lawrence-Berrey, A.C.J.
2 LAWS OF 2009, ch. 375, § 5.