 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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STATE OF WASHINGTON,                    )
                                        )       No. 76818-2-1                    a ril
                    Respondent,         )                                          ...G.    ...n   -.
                                                DIVISION ONE                               r,
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                                        )       PUBLISHED OPINION                         --i
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LUCIEN J. THIBODEAUX,                                                                      —on
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                    Appellant.                  FILED: November 26, 2018


       BECKER, J. — This is an appeal of a standard range sentence. The

appellant was convicted of an offense for which the statutory maximum sentence

is 60 months. His statutory standard range sentence had already topped out at

60 months of confinement. Another statute required imposition of a community

custody term of 36 months. The issue is whether the trial court had discretion to

impose an exceptional sentence downward that reduced the confinement term to

24 months so that he could serve the remaining 36 months of the sentence in

community custody. Because a statute enacted in 2009 requires reduction of the

community custody term but not the term of confinement, the court correctly

imposed a sentence of 60 months with no community custody thereafter.

       In 2017, appellant Lucien Thibodeaux was convicted of rape of a child in

the third degree for engaging in sexual intercourse with a 15-year-old. Third

degree rape of a child is a class C felony for which the maximum term is five
No. 76818-2-1/2

years. RCW 9A.20.021(1)(c); RCW 9A.44.079. With Thibodeaux's offender

score of 8, the standard range sentence of confinement was the full five years.

       Thibodeaux requested an exceptional sentence downward of 24 months.

He proposed three reasons: that he was under duress or compulsion, that he

lacked the capacity to appreciate the wrongfulness of his conduct, and that the

victim initiated the contact. The prosecutor argued that the evidence did not

support any of these reasons for mitigating the sentence. Indeed, the prosecutor

said that the State would have requested an exceptional sentence upward if not

for the fact that the standard range term of confinement was already at the

statutory maximum of five years. He said that Thibodeaux was "for lack of a

better word, what we call maxed out and there's no longer a range."

       A sentence for third degree rape of a child must also include a three-year

term of community custody. RCW 9.94A.701(1). But the statutory maximum

includes any term of community custody in addition to the term of confinement,

and a court may not impose a sentence that exceeds the statutory maximum.

RCW 9.94A.505(5). Thus, the court could not require Thibodeaux to serve both

a five-year term of confinement and a three-year term of community custody.

       A statute enacted in 2009 resolves this anomaly by providing that when

the combined terms of confinement and community custody exceed the statutory

maximum, only the community custody term is to be reduced:

       The term of community custody specified by this section shall be reduced
       by the court whenever an offender's standard range term of confinement
       in combination with the term of community custody exceeds the statutory
       maximum for the crime as provided in RCW 9A.20.021.




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No. 76818-2-1/3

RCW 9.94A.701(9). The prosecutor accordingly recommended a standard range

sentence of 60 months of confinement, with no time to be served in community

custody. The prosecutor said, "The only sentence within the Court's discretion

right now is 60 months."

       The trial court found no evidence to support an exceptional sentence

downward on any of the three grounds advocated by Thibodeaux. The court

imposed the sentence recommended by the State: a five-year standard range

sentence of confinement with no term of community custody. Thibodeaux

appeals the sentence.

       As a general rule, the length of a standard range sentence is not subject

to appellate review. State v. Williams, 149 Wn.2d 143, 146,65 P.3d 1214

(2003). However, a trial court's mistaken belief that it lacked discretion to impose

a mitigated exceptional sentence for which a defendant may have been eligible is

reversible error. State v. Grayson, 154 Wn.2d 333, 342, 111 P.3d 1183(2005);

In re Pers. Restraint of Mulholland, 161 Wn.2d 322, 333, 166 P.3d 677(2007).

Thibodeaux contends that is what occurred in his case. He contends he was

eligible for a mitigated exceptional sentence, not on any of the three grounds that

he advocated at sentencing, but based on State v. Davis, 146 Wn. App. 714,

717, 192 P.3d 29(2008), review denied, 166 Wn.2d 1033, 217 P.3d 782(2009).

He requests that the sentence be reversed and remanded for the trial court to

consider imposing an exceptional sentence of 24 months of imprisonment and 36

months of community custody.




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No. 76818-2-1/4

       In Davis, the defendant's standard range sentence was 43 to 57 months of

incarceration and 36 to 48 months of community custody. 146 Wn. App. at 718.

Combined, the mandated incarceration and community custody exceeded the 60

month statutory maximum. Davis, 146 Wn. App. at 719. To ensure the

defendant would serve at least two years of community custody, the trial court

imposed an exceptional sentence downward by reducing the term of

incarceration to 36 months. Davis, 146 Wn. App. at 719. This court affirmed,

holding that "the need to sentence within the statutory maximum is a substantial

and compelling reason justifying a departure from the standard range." Davis,

146 Wn. App. at 721.

       RCW 9.94A.701(9), enacted one year after Davis, renders Davis

inapplicable to Thibodeaux. "When the meaning of statutory language is plain on

its face, the court must give effect to that plain meaning." In re Pers. Restraint of

McWilliams, 182 Wn.2d 213, 217, 340 P.3d 223(2014). The statute specifies

that the term of community custody, not the term of incarceration, "shall" be

reduced. RCW 9.94A.701(9). The word "shall" is presumptively imperative; it

creates a duty rather than conferring discretion. State v. Blazina, 182 Wn.2d

827, 838, 344 P.3d 680 (2015). The legislature's use of "shall" in RCW

9.94A.701(9) makes it clear that when the combined terms of confinement and

community custody exceed the statutory maximum, the community custody term

must be reduced. In such a case, the requirement in RCW 9.94A.701(1)for a

three-year term of community custody gives way to the need to keep the overall

sentence within the statutory maximum. This statute resolves the anomaly


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No. 76818-2-1/5

created by the other statutes that dictate a combined sentence of eight years

even when five years is the maximum sentence.

       As a result of RCW 9.94A.701(9), an exceptional sentence is no longer

needed to keep the sentence of a person in Thibodeaux's situation within the

statutory maximum. He is not required to serve the term of community custody

that would otherwise be mandatory under RCW 9.94A.701(1). Unlike in Davis,

the trial court could impose a standard range sentence within the statutory

maximum of five years simply by reducing the community custody term to zero.

       Thibodeaux contends RCW 9.94A.701(9) does not apply because he

requested an exceptional sentence. "Based on its plain language, RCW

9.94A.701(9) does not apply when a court imposes an exceptional sentence of

confinement." McWilliams, 182 Wn.2d at 217(emphasis added). But here,

unlike in McWilliams, the court did not impose an exceptional sentence.

Thibodeax proposed three separate grounds for an exceptional sentence, but the

trial court did not find that any of them supplied a substantial and compelling

reason to deviate from the standard range. Thibodeaux has not appealed that

decision. Because the trial court imposed a standard range sentence, not an

exceptional sentence, RCW 9.94A.701(9) is directly applicable.

       This is not a case where the trial court categorically refused to consider an

exceptional sentence that the defendant may have been eligible to receive. The

court's decision to impose a standard range sentence of 60 months of

confinement is not reviewable.




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No. 76818-2-1/6

       As the State concedes, the judgment and sentence does contain a

different error. It states that Thibodeaux's duty to register as a sex offender does

not end until he obtains a court order relieving him of the duty to register or

receives written notice from the sheriff's office that the duty has ended:

       Your duty to register does not end until you have obtained a court
       order specifically relieving you of the duty to register or you have
       been informed in writing by the sheriffs office that your duty to
       register has ended. Your duty to register DOES NOT end when
       your [Department of Corrections] supervision ends.

This statement is inconsistent with a statute providing that "the duty to register

shall end ten years after" certain defined events. RCW 9A.44.140(3). Under the

statute, there is no necessity for the offender to obtain a court order or a writing

from the sheriff. Thibodeaux is entitled to an accurate judgment and sentence.

The trial court shall correct the inaccuracy on remand.

       Thibodeaux filed a supplemental brief challenging the imposition of a $100

fee for collection of DNA (deoxyribonucleic acid). At the time Thibodeaux was

sentenced, the collection fee was mandatory. A legislative enactment effective

June 7, 2018, added the words "unless the state has previously collected the

offender's DNA as a result of a prior conviction." RCW 43.43.7541; SECOND

SUBSTITUTE H.B. 1783, ch. 269, sec.18, 65th Leg., Reg. Sess.(Wash. 2018).

This amendment applies prospectively to cases pending on appeal. State v.

Ramirez,     Wn.2d     , 426 P.3d 714, 721-23(2018). That includes

Thibodeaux's case.

       In light of Ramirez, Thibodeaux argues that the DNA collection fee must

be stricken. His argument is based on four premises: the DNA collection fee is



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No. 76818-2-1/7

now discretionary rather than mandatory, a discretionary fee cannot be imposed

on an indigent defendant, he is indigent, and the State has previously collected

his DNA. We need not analyze the first three premises because even if they are

true, the last premise is without support in the record. The record is silent as to

whether the State has previously collected Thibodeaux's DNA.

       Thibodeaux asserts that his DNA would have necessarily been collected

as a result of his previous felonies. But as the State points out, defendants do

not always submit to DNA collection despite being ordered to do so. See State v.

Thornton, 188 Wn. App. 371, 372, 353 P.3d 642(2015)(defendant had not

submitted DNA sample in connection with prior offense). Because the existing

record does not establish that the State has already collected Thibodeaux's DNA,

he has not demonstrated that it was impermissible to impose the collection fee.

We reject his request to strike the DNA fee from the judgment and sentence.

      The sentence is remanded for correction of the inaccurate statement

about Thibodeaux's duty to register. In all other respects, the sentence is

affirmed.




WE CONCUR:



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