  IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                      DIVISION ONE
STATE OF WASHINGTON,                         )      No. 80632-7-I
                                             )
                        Respondent,

       v.                                    )
                                                    UNPUBLISHED OPINION
GREGORYW. CHAPMAN,                           )
                                             )      FILED: January 21, 2020
                        Appellant.


       VERELLEN,   J.   —   Gregory Chapman appeals the trial court’s denial of his

motion to vacate his sentence and resentence with a fixed term of community

custody. Because the court sentenced Chapman before the legislature amended

the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, to require fixed

terms of community custody and because the Department of Corrections (DOC)

has the authority to fix preamendment sentences, the trial court did not abuse its

discretion when it denied Chapman’s motion to vacate and resentence.

       Therefore, we affirm.

                                          FACTS

       In 2001, a jury convicted Chapman of second degree assault with a deadly

weapon (count I), second degree assault with a firearm (count II), first degree

kidnapping with a firearm (count Ill), first degree extortion (count IV), and second
No. 80632-7-1/2


degree unlawful possession of a firearm (count V). The court sentenced Chapman

to 306 months of total confinement. The court also imposed a community custody

range of 18 to 36 months for counts I, II, and IV and a community custody range of

24 to 48 months for count 111.1

          In 2016, Chapman filed a CrR 7.8 motion to vacate his sentence and

resentence with a fixed term of community custody. He argued that the total term

of confinement combined with the potential community custody range exceeded

the statutory maximum for his crimes. The State agreed but argued the court did

not have the authority to vacate and resentence. The court denied Chapman’s

motion to vacate and resentence but amended the judgment and sentence:

      As regards each count for which a sentence has been imposed
      herein, the combination of the period of confinement and the period
      of community custody served by the defendant for that count shall
      not exceed the statutory maximum penalty for the crime set forth in
      that count. Specifically, as regards Count 1, Assault in the Second
      Degree While Armed with a Deadly Weapon, and Count 2, Assault in
      the Second Degree While Armed with a Firearm, the Washington
      State Department of Corrections shall adjust the end date for the
      periods of community custody to be served by the defendant for
      each of those counts to conform with the statutory maximum
      punishment of 120 months (ten years), depending on the amount of
      confinement the defendant has actually served at the point he is
      released from confinement.[2]

      Chapman appeals.




      1 Note: In July 2008, the court amended the judgment to remove
Chapman’s conviction for first degree extortion (count IV). The total confinement
and community custody range remained the same.
      2 Clerk’s Papers (CP) at 37.




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No. 80632-7-1/3


                                     ANALYSIS

I. Motion to Vacate

       Chapman contends the trial court had the discretion to resentence with a

fixed term of community custody. He argues the court’s failure to exercise that

discretion was an abuse of discretion.

       We review a trial court’s decision on a motion to vacate for abuse of

discretion.3 “A trial court abuses its discretion when it bases its decision on

untenable grounds or reasons.”4

       In In re Personal Restraint Petition of Brooks,5 our Supreme Court

addressed the proper remedy when the total term of confinement combined with

the potential community custody range exceeds the statutory maximum. The court

considered differing approaches from the Court of Appeals.6 Brooks was originally


       ~ State v. Zavala-Reynoso, 127 Wn. App. 119, 122, 110 P.3d 827 (2005).
       ~ Id.
        ~l66 Wn.2d 664, 211 P.3d 1023 (2009).
        6 Brooks, 166 Wn.2d at 669-671. In 2004, Division One “required that
sentencing courts state explicitly on the judgment and sentence ‘that the total
[term] of incarceration and community custody cannot exceed [the] maximum.”
Brooks, 166 Wn.2d at 670 (alterations in original) (quoting State v. Sloan, 121 Wn.
App. 220, 224, 87 P.3d 1214 (2004)). In 2008, Division One changed its approach
and “directed the sentencing court to resentence [the defendant] to a definite term
that specified both the amount of confinement and the amount of the community
custody to be served under the statutory maximum.” Brooks, 166 Wn.2d at 670
(citing Statev. Linerud, 147Wn. App. 944, 951, 197 P.3d 1224 (2008)). In 2005,
Division Three “determined that a sentence imposing a term of confinement and
community custody that had the potential to exceed the statutory maximum was
invalid on its face, vacated the sentence, and remanded it back to the trial court for
resentencing.” Brooks, 166 Wn.2d at 670-71 (citing Zavala-Reynoso, 127 Wn.
App. at 121). And Division Three “found that an amended sentence was the
appropriate remedy” and “also indicated that either an amended sentence or a



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No. 80632-7-114


sentenced to a term of confinement and a community custody range that

exceeded the statutory maximum. The trial court entered an order “clarifying that

Brooks’s period of total confinement and community custody together could not

exceed the   .   .   .   statutory maximum.”7 Before our Supreme Court, Brooks argued

the amended sentence still exceeded the statutory maximum. The court held:

       [W]hen a defendant is sentenced to a term of confinement and
       community custody that has the potential to exceed the statutory
       maximum for the crime, the ajpropriate remedy is to remand to the
       trial court to amend the sentence and exilicitly state that the
       combination of confinement and community custody shall not exceed
       the statutory maximum.~8~

       In Brooks, our Supreme Court acknowledged the legislature had recently

amended the SRA and “addressed the very questions we are asked to answer in

this case.”9 The legislature repealed the provision that allowed the sentencing

court to impose a community custody range and amended RCW 9.94A.701(8) to

provide:

      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 ~[b0]



vacation and remand for resentencing are equally appropriate remedies in these
circumstances.” Brooks, 166 Wn.2d at 671 (citing State v. Tornqren, 147 Wn. App
at 566; State v. Hibdon, 140 Wn. App. 534, 538, 166 P.3d 826 (2007)).
       ~ Brooks, 166 Wn.2d at 667.
       8 j.çj~ at 675 (emphasis added).

      RId. at 672 n.4.
      10 LAwsoF2009, ch. 375, §5.




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No. 80632-7-1/5


       Despite the amendment, our Supreme Court addressed the issue in Brooks

“in order to resolve the conflict between the Courts of Appeals and to give

guidance to trial courts as they await the amendment to take effect.”11

       In State v. Franklin,12 our Supreme Court addressed the retroactivity of the

2009 amendments, specifically RCW 9.94A.701(9).13 In February 2008, the trial

court sentenced Franklin to a term of confinement. In June 2008, the court

amended the sentence to include a community custody range. In September

2008, the court again amended Franklin’s sentence to add a Brooks notation “to

ensure that the time the defendant spends in confinement and on community

custody does not exceed the statutory maximum.”14

      On appeal, Franklin argued Brooks was no longer controlling “since it was

decided before the 2009 amendments took effect.”15 The court acknowledged

“that the Brooks notation ensures that Franklin’s sentence will not exceed the

statutory maximum.”16 “However, the issue is whether the amendments to

RCW 9.94A.701 apply retroactively to Franklin and, if so, whether Franklin must

be resentenced accordingly or, alternatively, whether DOC has the authority to




      ~ Brooks, 166 Wn.2d at 672 n.4.
      12172 Wn.2d 831, 263 P.3d 585 (2011).
      13RCW 9.94A.701 (9) was originally codified as subsection (8) and later
renumbered by LAWS OF 2010, ch. 224, § 5.
     14 Franklin, 172 Wn.2d at 834.

     15 kI. at 837-38.

      16kLat839.



                                         5
No. 80632-7-1/6


reduce the term of community custody by recalculating its termination date.”17

Because the legislature expressly provided that the amendment would apply

retroactively, our Supreme Court “conclude[d] that the 2009 amendments apply

retroactively to Franklin.”

       But the court ultimately determined that the retroactive application of

RCW 9.94A.701 (9) does not require the trial court to reopen sentencing

proceedings and reduce a previously imposed term of community custody

“whenever the combination of the standard range term and the community custody

term exceeds the statutory maximum for the crime.”18 Rather, our Supreme Court

concluded “this directive applies only to the court’s calculation of the community

custody term when it first imposes the sentence.”19 Under the 2009 amendments,

DCC is charged with bringing pre-2009 sentences into compliance with the

amendments.2°

       Because Chapman was sentenced before the effective date of the 2009

amendments, the responsibility lies with DCC, not the sentencing court, to bring

his preamendment sentence into compliance with the new requirements:


       17   Id.
          Id. at 840.
       19 ~ (emphasis added).

       20 kI. at 841 (quoting LAWS OF 2009, ch. 375, § 9) (“The department of
corrections shall recalculate the term of community custody and reset the date that
community custody will end for each offender currently in confinement or serving a
term of community custody for a crime specified in RCW 9.94A.701. That
recalculation shall not extend a term of community custody beyond that to which
an offender is currently subject.”).



                                         6
No. 80632-7-1/7


               In sum, for individuals sentenced before the effective date of
       ESSB 5288, the responsibility lies with DOC—not the sentencing
       court—to bring preamendment terms of community custody into
       compliance with the new sentencing requirements by adjusting the
       end date for community custody. Consequently, Franklin is not
       entitled to resentencing.[21]

       We conclude the trial court did not have the authority to vacate and

resentence.22

II. Statement of Additional Grounds

       RAP 10.10 permits a criminal defendant to file a prose statement of

additional grounds for review. “Reference to the record and citation to authorities

are not necessary or required, but the appellate court will not consider a

defendant’s statement of additional grounds for review if it does not inform the

court of the nature and occurrence of alleged errors.”23

       a. Additional Ground No. I

       In his statement of additional grounds, Chapman contends the community

custody conditions are ambiguous because “the wording used (in 2 separate and

distinct entries), conflict and combined their signification seems doubtful and




       21kL at 842.
      22 See also In re Pers. Restraint of McWilliams, 182 Wn.2d 213, 218, 340

P.3d 223 (2014) (Brooks notation on judgment and sentence remains the
appropriate remedy if a court imposes a sentence of confinement outside the
standard range—and therefore not subject to RCW 9.94A.701—together with a
sentence of community custody that, when combined, exceed the statutory
maximum.)
      23 RAP 10.10(c).




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No. 80632-7-1/8


uncertain in overall intent.”24 It appears Chapman is referring to the differences

between the original community custody range and the amendment with the

Brooks notation.25 The addition of the Brooks notation does not render the

judgment and sentence ambiguous.

       b. Additional Ground No. 2

       Chapman also argues DOC’s authority to ensure his sentence complies

with the statutory maximum deprives him of “meaningful and unbias review of trial

and related case facts   .   .   .   required for setting a just term of community custody.”26

Chapman argues DCC does not have the “inherent authority” to interpret the

sentence imposed by the court or change the sentence imposed by the court.27

But, as discussed above, in Franklin, our Supreme Court acknowledged DOC’s

authority to “recalculate the term of community custody and reset the date that

community custody will end for each offender currently in confinement or serving a

term of community custody.”28

      Chapman also argues DCC is not impartial because “DCC is a 3rd party

which receives mon[e]t[a]ry compensation for the term set that the defendant



      24  SAG at 1.
       25 SAG at 2 (“Originally the court entered a term that exceed the Maximum

Statutory Range allowed for this conviction; then entered an afternote that shifted
computation of the term of C.C. length to a 3rd party, WA ST Dept of Corrections,
(DCC).”).
       26 SAG at 2.

       27 SAG at 3.

       28 Franklin, 172 Wn.2d at 841 (quoting LAWS OF 2009, ch. 375, § 9).




                                                   8
No. 80632-7-1/9


remains under supervision on [c]ommunity [c]ustody.”29 But in Franklin, our

Supreme Court acknowledged DCC does not have the authority to “extend a term

of community custody beyond that to which an offender is currently subject.”3°

Chapman does not establish a lack of impartiality.

      Therefore, we affirm.




                                                     Jj(J~4 ‘k
WE CONCUR:




   CL4~r~~        ~7



      29   SAG at 2-3.
      30   Franklin, 172 Wn.2d at 841 (quoting LAWS OF 2009, ch. 375,   § 9).



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