                                                                                            Filed
                                                                                      Washington State
                                                                                      Court of Appeals
                                                                                       Division Two

                                                                                      December 28, 2016
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
    STATE OF WASHINGTON.                                           No. 48226-6-II

                                Respondent,

          v.

    ZACKARY ALLEN BRAME,                                     UNPUBLISHED OPINION

                                Appellant.

         WORSWICK, J. — Zackary Allen Brame appeals his sentence for making or possessing

motor vehicle theft tools. Brame argues the sentencing court imposed an unauthorized sentence

by ordering conditions on his sentence for the maximum term of confinement. We remand with

orders to strike the order imposing sentencing conditions on his gross misdemeanor conviction.

                                              FACTS

         On August 19, 2015, the State charged Zackary Brame with felony theft of a motor

vehicle1 and the gross misdemeanor of making or possessing motor vehicle theft tools.2

Following trial, the jury returned verdicts finding Brame guilty on both counts.

         Brame was sentenced to 50 months’ incarceration for theft of a motor vehicle and 364

days, the statutory maximum term, for making or possessing motor vehicle theft tools.3 Brame


1
    RCW 9A.56.065. Brame does not appeal his sentence for theft of a motor vehicle.
2
 RCW 9A.56.063. Brame was also charged with felony harassment. The jury found Brame not
guilty of this charge, and it is not at issue in this appeal.
3
 The statutory maximum term of confinement for a gross misdemeanor is 364 days. RCW
9A.20.021(2).
No. 48226-6-II


was ordered to serve the sentences concurrently. At sentencing, the court noted: “On the

conditions on suspended sentence form, I’ve modified that just to read conditions on sentence

since there is no suspended jail time here.” 5 Verbatim Report of Proceedings (VRP) at 318-19.

          The sentencing court completed separate judgment and sentence forms for Brame’s

felony and gross misdemeanor convictions. The felony judgment and sentence ordered Brame to

pay legal financial obligations and restitution, imposed a no contact order, and suspended his

driver’s license. The conditions on sentence form for the gross misdemeanor ordered conditions

and provisions on the sentence, stating, “[S]ee felony J & S” and “see felony Judgment &

Sentence for other conditions.” Clerk’s Papers (CP) at 83-84. Brame appeals.

                                           ANALYSIS

          Brame argues the sentencing court imposed an unauthorized sentence by ordering

conditions on his maximum term sentence. The State argues that the conditions referenced on

the conditions on sentence form were imposed only on Brame’s felony sentence, and therefore,

the court did not impose conditions on his gross misdemeanor sentence. We agree with Brame.

          Whether a sentencing court imposed an unauthorized sentence is a question of law we

review de novo. State v. Murray, 118 Wn. App. 518, 521, 77 P.3d 1188 (2003). We review

alleged sentencing errors based on the principles that (1) a sentence in excess of statutory

authority is subject to collateral attack and (2) a defendant cannot agree to punishment in excess

of statutory authority. In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 873-74, 50 P.3d 618

(2002).

          Under RCW 9.95.210(1)(a), a sentencing court may suspend a portion of a defendant’s

sentence and impose sentencing conditions. However, a court may not impose sentencing



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No. 48226-6-II


conditions when it does “not actually suspend any jail time.” State v. Gailus, 136 Wn. App. 191,

201, 147 P.3d 1300 (2006), overruled on other grounds by State v. Sutherby, 165 Wn.2d 870,

204 P.3d 916 (2009). Accordingly, where the sentencing court imposes the maximum term for

an offense, it lacks the authority to impose probation or other sentencing conditions. 136 Wn.

App. at 201.

       Here, the sentencing court sentenced Brame to the statutory maximum term for a gross

misdemeanor, 364 days. This sentence was ordered to run concurrent to Brame’s felony

sentence for theft of a motor vehicle. In its felony judgment and sentence, the court ordered

Brame to pay legal financial obligations and restitution, imposed a no contact order, and

suspended his driver’s license. The sentencing court completed a conditions on sentence form

for the gross misdemeanor offense, but it noted that it modified the form because there was no

suspended jail time for that offense. The conditions on sentence form stated, “[S]ee felony J &

S” and “see felony Judgment & Sentence for other conditions.” CP at 83-84.

       The sentencing court sentenced Brame to the maximum term of confinement for his gross

misdemeanor conviction, and it did not suspend any of his jail time. In addition, the court

imposed conditions on Brame’s gross misdemeanor sentence by stating, “[S]ee felony Judgment

& Sentence for other conditions.” CP at 84. Because Brame was sentenced to the maximum

term of confinement and the sentencing court did not suspend any of his sentence, the court

lacked the authority to impose sentencing conditions. Therefore, the sentencing court imposed

an unauthorized sentence by ordering conditions on Brame’s gross misdemeanor sentence.4


4
  Because Brame was properly sentenced to identical conditions on the felony charge, we
recognize that our decision has no practical effect on Brame. Nonetheless, we address this issue,
which is Brame’s sole argument on appeal.


                                                3
No. 48226-6-II


        We remand with orders to strike the order imposing sentencing conditions for the gross

misdemeanor.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.



                                                                       Worswick, J.
 We concur:



 Maxa, A.C.J.




 Sutton, J.




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