       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,                            No. 79107-9-I

                             Respondent,         DIVISION ONE

                v.
                                                 UNPUBLISHED OPINION
 JOSHUA JAMES FROST,

                             Appellant.


       CHUN, J. — In 2003, a jury convicted Joshua Frost of various crimes,

including attempted robbery and assault. After sentencing Frost, the trial court

amended the sentence so that, with respect to the attempted robbery count, it

would not exceed the statutory maximum. Claiming his sentence still contains

errors, Frost appeals. Because, in combination with his term of community

custody, the terms for his attempted robbery count and assault counts exceed, or

have potential to exceed, the statutory maximum, we remand for the addition of a

Brooks notation1 to his sentence.




       1  In In re Pers. Restraint of Brooks, our Supreme Court held that when a trial
court has sentenced a defendant to a “term of confinement and community custody that
has the potential to exceed the statutory maximum for the crime, the appropriate remedy
is to remand to the trial court to amend the sentence and explicitly state that the
combination of confinement and community custody shall not exceed the statutory
maximum.” 166 Wn.2d 664, 675, 211 P.3d 1023 (2009). Washington courts commonly
refer to such as a “Brooks notation.” See, e.g., State v. Franklin, 172 Wn.2d 831, 839,
263 P.3d 585 (2011).


  Citations and pin cites are based on the Westlaw online version of the cited material.
No. 79107-9-I/2


                                I. BACKGROUND

      In 2003, a jury convicted Frost of six counts of first degree robbery, one

count of first degree burglary, one count of first degree attempted robbery, and

two counts of second degree assault, each with weapon enhancements. The

sentencing court imposed a concurrent sentence totaling 129 months for the

underlying crimes, plus 528 months for the weapon enhancements, totaling 657

months. The sentencing court also imposed a community custody term of 18 to

36 months.

      For the attempted robbery conviction—Count XI—the sentencing court

originally imposed 97 months plus 36 additional months for a firearm

enhancement, totaling 133 months. Since attempted robbery is a Class B felony,

its statutory maximum is 120 months. RCW 9A.28.020(3)(b); 9A.20.021(1)(b). In

2018, Frost filed a motion for resentencing on the ground that the sentence for

Count XI exceeded the statutory maximum. The State agreed and the trial court

amended the sentence for Count XI to 84 months plus 36 months for the firearm

enhancement, totaling 120 months. Frost appeals, claiming his sentence still

contains errors on grounds that appear for the first time on appeal.

                                  II. ANALYSIS

   A. Sentencing Errors

      Frost argues that the trial court failed to correct his sentence as to

Count XI because, if the new 120 month underlying sentence is added to the

18 to 36 month community custody term, the sentence still exceeds the statutory

maximum. Frost makes the same claim as to his two assault charges, Counts


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VIII and X. The trial court imposed 63 months followed by a 36 month weapon

enhancement for each assault count, totaling 99 months. However, Frost argues

that when added to the 18 to 36 month community custody period, his sentence

for the assault counts could range from 117 to 135 months, potentially exceeding

the 120 month statutory maximum for the crimes. Accordingly, he asserts

remand for resentencing is necessary.

      The State claims that the proper remedy for the claimed error is remand

for a Brooks notation, not remand for resentencing. We agree.

      We review de novo whether a sentence is legally erroneous. State v.

Dyson, 189 Wn. App. 215, 224, 360 P.3d 25 (2015). Such claims may come for

the first time on appeal. State v. Hood, 196 Wn. App. 127, 138, 382 P.3d 710

(2016).

      First degree attempted robbery and second degree assault carry a

statutory maximum of 120 months. RCW 9A.28.020(3)(b); 9A.36.021(2)(a);

9A.20.021(1)(b). “[A] court may not impose a sentence providing for a term of

confinement or community custody that exceeds the statutory maximum for the

crime.” RCW 9.94A.505(5). Here, when the 18 to 36 month term of community

custody is added to the new 120 month attempted robbery sentence, the

sentence for Count XI exceeds the statutory maximum. Additionally, when the

18 to 36 month term of community custody is added to the 99 month sentence for

each assault charge, the sentences for Counts VIII and X have potential to

exceed the statutory maximum. Because the sentences for Counts VIII, X, and




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XI exceed or have potential to exceed the statutory maximum for those crimes,

the sentences are in error.

       Frost argues the proper remedy for these errors is resentencing. But none

of the cases he cites supports this argument. See, e.g., State v. Rooth, 129 Wn.

App. 761, 769–72, 121 P.3d 755 (2005) (defendant was entitled to resentencing

because the guilty verdict for one of the charges could no longer stand); State v.

Smissaert, 103 Wn.2d 636, 639–40, 642, 694 P.2d 654 (1985) (holding the trial

court, by amending sentence from a 20 year statutory maximum to a life

sentence, had effectively resentenced defendant).

       Instead, the State correctly identifies that Washington courts have held

that, where a sentencing court erroneously imposes a sentence that is, or has

the potential to be, in excess of the statutory maximum, the proper remedy is

amendment of their judgment and sentence with a Brooks notation, and not

resentencing.2 See State v. Franklin, 172 Wn.2d 831, 842, 263 P.3d 585 (2011)

(holding that resentencing was not necessary where a Brooks notation ensured

that a sentence with potential to exceed the statutory maximum, entered prior to

the enactment of RCW 9.94A.701, would not exceed the statutory maximum);

State v. Hartzell, 153 Wn. App. 137, 174, 221 P.3d 928 (2009) (remanding for a


       2
          In State v. Boyd, our Supreme Court held that RCW 9.94A.701(9), enacted in
2009 and after the Brooks decision, overruled the necessity for Brooks notations for
sentences entered after its enactment. 174 Wn.2d 470, 473, 275 P.3d 321 (2012). The
statute requires a court to reduce a term of community custody whenever an offender’s
standard range in combination with the term of community custody exceeds the statutory
maximum for the crime. RCW 9.94A.701(9). But Boyd makes clear that
RCW 9.94A.701 does not overrule the need for Brooks notations for sentences entered
before the statute’s enactment. Boyd, 174 Wn.2d at 472–73. The trial court entered
Frost’s sentence in 2003, well before the legislature enacted the statute in question.


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Brooks notation where the defendant’s confinement term in combination with

their community custody term facially exceeds the statutory maximum).

       However, the State also argues that, while remand for a Brooks notation is

the proper remedy, doing so is unnecessary because Frost will not begin to serve

his community custody until he finishes his 129 month sentences for the six

robbery charges, for which the statutory maximum is life. Accordingly, the State

argues, a Brooks notation would not affect the length of his sentence. The State

offers no legal authority in support of its argument that we can ignore such an

error in these circumstances, so we decline to do so.

       We thus remand the judgment and sentence for addition of a Brooks

notation as to Counts VIII, X, and XI.

   B. Scrivener’s Error

       The trial court’s Order Amending Judgment and Sentence as to Count XI

Only states that the 84 month sentence for Count XI runs concurrently with the

sentences for Counts I–X and XII. Frost claims that because the jury acquitted

him of Count VII, this notation constitutes a scrivener’s error. See State v. Davis,

160 Wn. App. 471, 478, 248 P.3d 121 (2011) (superseded by statute on other

grounds as recognized by In re Pers. Restraint of Combs, 176 Wn. App. 112, 308

P.3d 763 (2013) (“A [scrivener’s error] is one that, when amended, would

correctly convey the intention of the court based on other evidence.”). The State

argues that remand for this correction would be a waste of judicial resources, as

the current notation properly conveys the trial court’s intentions, but also notes

that it did not charge Frost with Count V. Thus, an accurate statement of the


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amended sentence for Count XI would say that it runs concurrently with the

sentences for Counts I–IV, VI, VIII–X, and XII.

       When the trial court, on remand, amends the sentence for addition of a

Brooks notation for Counts XIII, X, and XI, it should accurately state the counts

for which it is sentencing Frost.

       Remanded.




WE CONCUR:




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