                                                              FILED 

                                                            OCT. 15,2013 

                                                    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. 30798-1-III
                                             )
                     Respondent,             )
                                             )
             v.                              )         UNPUBLISHED OPINION
                                             )
MIGUEL A. CARRILLO DENIZ,                    )
                                             )
                     Appellant.              )

      KULIK, J.   - Miguel Carrillo Deniz pleaded guilty to third degree rape. As part of

Mr. Carrillo Deniz's sentence, the trial court ordered community custody for a term of36

months. Mr. Carrillo Deniz appeals. We disagree with Mr. Carrillo Deniz's contention

that the community custody statute applicable to his sentence, RCW 9.94A.701, is

ambiguous. Therefore, we affirm the 36-month community custody term.

                                         FACTS

      Mr. Carrillo Deniz pleaded guilty to third degree rape, RCW 9A.44.060(1)(a). In

addition to 13 months of confmement, the judgment and sentence ordered 36 months of

community custody. Mr. Carrillo Deniz did not object to the term of community custody.
No. 30798-1-III
State v. Carrillo Deniz


       Mr. Carrillo Deniz now appeals. He contends that his term of community custody

should be modified because of ambiguity in the community custody statute,

RCW 9.94A.701. He maintains that the statute is ambiguous because more than one

section ofRCW 9.94A.701 controls the length of his community custody term.

Specifically, because third degree rape is both a sex offense and a crime against a person,

his sentence falls under the statutory provisions for certain sex offenses, RCW

9.94A.701(1)(a), and for crimes against persons, RCW 9.94A.701(3)(a). He applies the

rule oflenity to the alleged ambiguity and maintains that he should receive the lesser 12­

month term of community custody for crimes against persons.

                                       ANALYSIS

       A sentence imposed contrary to the law may be raised for the first time on appeal.

State v. Anderson, 58 Wn. App. 107, 110, 791 P.2d 547 (1990). On appeal, a defendant

may challenge a sentence imposed in excess of statutory authority because "a defendant

cannot agree to punishment in excess ofthat which the Legislature has established." In re

Pers. Restraint ofGoodwin, 146 Wn.2d 861, 873-74, 50 P.3d 618 (2002). "Questions of

statutory interpretation are questions oflaw subject to de novo review." State V. Franklin,

172 Wn.2d 831, 835, 263 P .3d 585 (2011).




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No. 30798-1-111
State v. Carrillo Deniz


          When interpreting the meaning and purpose of a statute, the objective of the court

is to determine the intent of the legislature. State v. Jones, 172 Wn.2d 236,242,257 P.3d

616 (2011) (quoting State v. Jacobs, 154 Wn.2d 596, 600, 115 P.3d 281 (2005)). Effect

is given to the plain meaning of the statute when the plain meaning can be determined

from the text of the statute. Id. The statute is to be read as a whole, with consideration

given to all statutory provisions in relation to one another and with each provision given

effect. State v. Merritt, 91 Wn. App. 969, 973, 961 P.2d 958 (1998).

       After conducting a plain meaning review, if the statute is still susceptible to more

than one interpretation, then the statute is ambiguous and the court relies on statutory

construction, legislative history, and relevant case law to determine legislative intent.

Jones, 172 Wn.2d at 242 (quoting Christensen v. Ellsworth, 162 Wn.2d 365,373, 173

P.3d 228 (2007)). "When there is a conflict between one statutory provision which treats

a subject in a general way and another which treats the same subject in a specific manner,

the specific statute will prevail." Pannell v. Thompson, 91 Wn.2d 591, 597, 589 P.2d

1235 (1979) (emphasis omitted). "Statutes are construed so as to avoid strained or absurd

consequences." Merritt, 91 Wn. App. at 973. Interpretations are not to render any

statutory language superfluous. Wright v. Engum, 124 Wn.2d 343,352,878 P.2d 1198

(1994).


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No.30798-1-II1
State v. Carrillo Deniz


       The rule of lenity applies to situations where more than one interpretation can be

drawn from the wording ofa statute. State v. Snedden, 149 Wn.2d 914,922, 73 P.3d 995

(2003). "Under the rule oflenity, the court must adopt the interpretation most favorable

to the criminal defendant." State v. McGee, 122 Wn.2d 783, 787, 864 P.2d 912 (1993).

       Here, the statute controlling Mr. Carrillo Deniz's term of community custody

sentence is RCW 9.94A.701. Within this statute, RCW 9.94A.701(1)(a) provides that if

an offender is sentenced to the custody of the Department of Corrections for a sex offense

not sentenced under RCW 9.94A.507, the court shall sentence the offender to community

custody for three years.

       Also of importance within the statute, RCW 9.94A.701(3)(a) provides that when a

court sentences a person to the custody of the Department of Corrections for any crime

against a person under RCW 9.94A.411(2), the court shall also sentence an offender to

one year of community custody.

       Rape in the third degree, RCW 9A.44.060, is a sex offense as defined by

former RCW 9 .94A.030(45) (2010); rape in the third degree is not sentenced under

RCW 9.94A.507. Also, rape in the third degree is listed as a crime against persons under

RCW 9.94A.411(2).




                                            4

No.30798-I-III
State v. Carrillo Deniz


         The plain meaning ofRCW 9.94A.701 clearly indicates that persons who commit

sex offenses not sentenced under RCW 9.94A.507 are to be sentenced to 36 months of

community custody. The text of the statute specifically imposes this specific sentence for

these certain sex offenses. The legislature clearly intended for persons convicted of a sex

offense not listed under RCW 9.94A.507 to receive a longer sentence of community

custody than persons convicted of other crimes against persons.

      Because Mr. Carrillo Deniz was convicted of a sex offense not sentenced under

RCW 9.94A.507, the trial court applied the correct statutory provision and sentenced him

to 36 months of community custody in addition to his 13 months of confinement.

      Mr. Carrillo Deniz suggests that the trial court's denial of his motion to withdraw

his gUilty plea is a potential issue. However, Mr. Carrillo Deniz provides no argument in

support of his concern. "Passing treatment of an issue or lack of reasoned argument is

insufficient to merit judicial consideration." Holland v. City ofTacoma, 90 Wn. App.

533,538,954 P.2d 290 (1998); see RAP 10.3(a)(5). We will not address this issue on

appeaL

      The trial court correctly sentenced Mr. Carrillo Deniz to 36 months of community

custody for third degree rape. The court was not required to sentence Mr. Carrillo Deniz

to the lesser term of community custody for crimes against persons. The legislature


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No. 30798-1-111
State v. Carrillo Deniz


clearly intended for sex offenses to receive a longer tenn of community custody than

general crimes against persons.

       We affinn.

       A majority ofthe panel has detennined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.


                                         Kulik, J.

WE CONCUR:




Sid~ 
                                   Brown, J.




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