                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                       September 7, 2016




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           DIVISION II
 In the Matter of the                                              No. 48825-6-II
 Personal Restraint Petition of

 MICHAEL TROY YEAGER,

                                  Petitioner.

                                                             UNPUBLISHED OPINION



       SUTTON, J. — Michael Troy Yeager seeks relief from personal restraint following his

guilty plea convictions of three counts of third degree child molestation and one count of felony

voyeurism. Yeager contends that he is under unlawful restraint due to the sentencing court’s error

in imposing a community custody term that, when added to his base sentence, exceeds the statutory

maximum sentence for his offenses. The State concedes error. We accept the State’s concession,

grant Yeager’s petition, and remand to correct his sentence by striking the portion of the sentence

imposing a 12-month community custody term.

                                                FACTS

       Yeager pleaded guilty to three counts of third degree child molestation and one count of

felony voyeurism. The sentencing court sentenced Yeager to 60 months of incarceration for each

of his third degree child molestation convictions, the statutory maximum for the offenses, each to
No. 48825-6-II


run concurrently. The sentencing court also imposed a 12-month community custody term for

each of the third degree child molestation convictions. With regard to the community custody

term, Yeager’s judgment and sentence states that “[t]he defendant shall be on community custody

for 12 months or until . . . the period of early release,” and “the combination of community custody

and incarceration may not exceed 60 months, including the period of early release.” Pet. App. A

at 5. On April 4, 2016, Yeager filed a CrR 7.8 motion in the superior court for relief from

judgment, asserting that his sentence was unlawful for exceeding the statutory maximum penalty

for his offenses. The superior court subsequently transferred Yeager’s motion to this court for

consideration as a personal restraint petition.

                                            ANALYSIS

       Yeager asserts that the sentencing court erred by imposing a 12-month community custody

term in addition to a 60-month term of incarceration because the combined total exceeds the

statutory maximum sentence for a class C felony. The State concedes error and we accept its

concession.

       RCW 9A.20.021(1)(c) limits the maximum sentence that a sentencing court may impose

for a class C felony to 60 months. Third degree child molestation is a class C felony. RCW

9A.44.089(2). Because the sentencing court imposed the statutory maximum 60-month term of

incarceration for each of Yeager’s third degree child molestation convictions, the portion of the

sentence imposing a 12-month community custody term renders Yeager’s judgment and sentence

facially invalid. State v. Bruch, 182 Wn.2d 854, 866, 346 P.3d 724 (2015) (sentencing court must

reduce period of community custody so as not to exceed statutory maximum sentence); In re Pers.

Restraint of Snively, 180 Wn.2d 28, 30, 32, 320 P.3d 1107 (2014) (in an otherwise untimely


                                                  2
No. 48825-6-II


petition, the relief allowed for facial invalidity is correction of the sentence, not withdrawal of the

plea). Accordingly, we grant Yeager’s petition and remand for a correction of his sentence by

striking the portion of the sentence imposing a 12-month community custody term.1

          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.



                                                     SUTTON, J.
    We concur:



    LEE, P.J.




    MELNICK, J.




1
  Under Bruch, the portion of Yeager’s judgment and sentence imposing community custody for
the period of his early release is not impermissibly indeterminate and, thus, should not be stricken
from his judgment and sentence. 182 Wn.2d at 862-66.
                                                  3
