State Of Washington v. Terry Allen Durnil Ii

• Court: Court of Appeals of Washington
• Decided: November 6, 2017
• Docket: 75501-3
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 75501-3-1 Respondent, c=> Cr) C) 5)1. DIVISION ONE —4=4 rrt V. UNPUBLISHED OPINION -1-1 TERRY ALLEN DURNIL, nk - 0 •rt cf, rri ;

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Appellant. FILED: November 6, 2017 9 I 2 -9 ,

TRICKEY, A.C.J. — Terry Durnil contends that his exceptional sentence of

60 months of confinement and 12 months of community custody exceeds the

statutory maximum sentence and requires remand for amendment. The

sentencing court properly noted on the judgment and sentence that the combined

term of confinement and community custody should not exceed the statutory

maximum. We affirm.

FACTS

Durnil pleaded guilty to 14 counts of identity theft in the second degree with

an offender score of 17. The trial court found that due to Durnil's high offender

score, any standard range sentence would be too lenient and result in some of the

offenses going unpunished. As a result, the trial court imposed an exceptional

sentence of 60 months on all counts to run concurrently. The court verbally

sentenced Durnil to community custody for the period of his earned early release.

The written judgment and sentence ordered Durnil to serve 60 months of

incarceration and 12 months of community custody as required under RCW

9.94A.411. The community custody provision of the judgment and sentence

included a standard, preprinted notation specifying, "applicable mandatory term No. 75501-3-1 / 2

reduced so that the total amount of incarceration and community custody does not

exceed the maximum term of sentence."'

Durnil appeals.

ANALYSIS

Durnil contends that the trial court did not adequately delineate the structure

of his combined incarceration and community custody to avoid a sentence in

excess of the statutory maximum. Specifically, he claims that the standard

notation in the judgment and sentence to reduce the applicable mandatory term

does not a comply with RCW 9.94A.701(9). We disagree.

For standard range sentences, the trial court is obligated to reduce the

required term of community custody when the combined time of confinement and

community custody exceed the statutory maximum. RCW 9.94A.701(9). The trial

court, not the Department of Corrections (DOC), must reduce the term of

community custody. State v. Boyd, 174 Wn.2d 470, 473, 275 P.3d 321 (2012);

State v. Bruch, 182 Wn.2d 854, 864, 346 P.3d 724 (2015).

But, by its plain language, RCW 9.94A.701(9) does not apply to exceptional

sentences. In re Pers. Restraint of McWilliams, 182 Wn.2d 213, 217, 340 P.3d

223 (2014). For exceptional sentences, "a notation on the judgment and sentence

explicitly stating that the combination of confinement and community custody

would not exceed the statutory maximum" is the appropriate remedy. McWilliams,

182 Wn.2d at 218. This notation informs the DOC that it must modify the length of

Clerk's Papers at 183. 2 No. 75501-3-1/3

community custody to conform to the statutory maximum sentence based on the

term of confinement actually served. McWilliams, 182 Wn.2d at 218.

Here, RCW 9.94A.701(9) does not apply because Durnil received an

exceptional sentence. Durnil's judgment and sentence includes the requisite

notation. We conclude that the trial court did not err.

Affirmed.

WE CONCUR: