                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                           August 30, 2016




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           DIVISION II
    STATE OF WASHINGTON,                                              No. 48144-8-II

                                  Respondent,
                                                                UNPUBLISHED OPINION
           v.

    MARK DAVIS,

                                  Appellant.

          BJORGEN, C.J. — Mark Davis appeals his sentence of 60 months’ incarceration and 12

months’ community custody for custodial assault. He argues that his combined sentence of 72

months exceeds the statutory maximum of 60 months permitted under RCW 9A.20.021.1 The

State concedes the error. We accept the State’s concession and vacate and remand for

resentencing.

                                                FACTS

          Davis, an inmate at the Pierce County Jail, created a disturbance and bit a corrections

officer, David Shultz, who attempted to restrain him. Following trial, a jury found him guilty of

custodial assault. Custodial assault is a class C felony that bears a maximum sentence of 5 years,

RCW 9A.20.021(1)(c), and carries a mandatory 12-month term of community custody. RCW

9.94A.701(3). In October 2015, the court sentenced Davis to 60 months’ incarceration and 12


1
    The statute was amended in 2015. The amendment does not affect the issues in this case.
No. 48144-8-II


months’ community custody with a notation that the combined time served cannot be more than

the statutory maximum.

       Davis appeals.

                                          ANALYSIS

       We review issues of law in the sentencing court’s order de novo. See State v. Bruch, 182

Wn.2d 854, 859, 346 P.3d 724 (2015). Davis argues, and the State concedes, that the sentencing

court erred by imposing a combined sentence that exceeded the statutory maximum. We accept

the State’s concession because under RCW 9.94A.701(9), the judicial sentence must facially

comply with the statutory maximum.

       In the past, sentencing courts could use a “Brooks notation” to note the statutory

maximum and to give the Department of Corrections authority to adjust the sentence as

necessary to ensure the actual sentence did not exceed that maximum. In re Pers. Restraint of

Brooks, 166 Wn.2d 664, 666 211 P.3d 1023 (2009); see also State v. Franklin, 172 Wn.2d 831,

834–35, 839, 263 P.3d 585 (2011). RCW 9.94A.701 was amended in 2009 to require the

sentencing court at the time of sentencing to impose a sentence that could not exceed the

statutory maximum. RCW 9.94A.701(9) (providing that a sentence “shall be reduced by the

court whenever an offender’s [combined sentence] . . . exceeds the statutory maximum”)

(emphasis added).

       For all crimes committed after July 26, 2009—when the pertinent amendment to RCW

9.94A.701 went into effect—a sentencing court may only impose sentences that facially comply

with the statutory maximum and may not use a Brooks notation to ensure compliance. State v.

Boyd, 174 Wn.2d 470, 473, 275 P.3d 321 (2012). Davis was sentenced in October 2015.

Therefore, under RCW 9.94A.701(9) and Boyd, Davis is entitled to a sentence that complies with


                                                2
No. 48144-8-II


the statutory maximum term at the time of sentencing. Since the sentencing court erred in

imposing a combined sentence that exceeds the statutory maximum on its face, we vacate

Davis’s sentence and remand for resentencing.

       Despite the State’s concession, there is a discrepancy between the parties’ requested

relief: the State requests the sentence be remanded to remove the surplus one year of community

custody, and Davis requests remand to reduce the term of incarceration or community custody to

less than 60 months. Following Boyd, 174 Wn.2d at 473, we remand for the sentencing court to

reduce the term of incarceration or community custody so that the combined total does not

exceed 60 months.

                                        CONCLUSION

       We accept the State’s concession, vacate the trial court’s sentence, and remand for

imposition of a combined sentence that does not exceed 60 months.

       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.



                                                    BJORGEN, C.J.
 We concur:



 WORSWICK, J.




 JOHANSON, J.




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