Opinion Information Sheet

			

                                                                               FILED
                                                                           FEB 07, 2012
                                                                    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

STATE OF WASHINGTON,                                      No.  29441-2-III
                                                )
                      Respondent,               )
                                                )         Division Three
              v.                                )
                                                )         PUBLISHED OPINION
STEVEN J. SNEDDEN,                              )
                                                )
                      Appellant.                )
                                                )

       Brown, J.? Steven J. Snedden appeals his conviction for felony indecent 

exposure with sexual motivation, incorrectly contending the sentencing court statutorily 

erred in imposing a 36-month community custody term.  Accordingly, we affirm.      

                                            FACTS

       The State charged Mr. Snedden on December 16, 2008 with two counts of felony 

indecent exposure with sexual motivation. The charges involved two separate acts of 

indecent exposure involving the same victim at Eastern Washington University in 

September and October 2008. On July 14, 2010, Mr. Snedden pleaded guilty to one 

count of indecent exposure with sexual motivation as part of a plea agreement.  The  

No. 29441-2-III 
State v. Snedden  

parties left open if the community custody term should be 36 months or 12 months.  

Later, at sentencing on September 8, 2010, the State argued because the court was

imposing a sentence in excess of one year on a sex offense, the appropriate term of 

community custody was 36 months.  Mr. Snedden claimed community custody could 

only be 12 months. The State acknowledged it did not seek an exceptional sentence 

based on sexual motivation, but rather used it as a one-year enhancement. 

       The court imposed a 24-month sentence with 36 months of community custody, 

stating, "[T]hat's what's recommended in the presentence report, so that's what I'm 

going to impose. Accordingly, the sentence is to the institution, and it is a sex offense. 

And so 36 months of community custody is appropriate, and that's what I will impose."  

Report of Proceedings (Sept. 8, 2010) at 12.  

       The judgment and sentence reflects the guilty plea to count I, a finding of sexual 

motivation in committing the offense (RCW 9.94A.835), the offense's unranked status, 

confinement of 24 months on count I, and 36 months community custody for a sex 

offense. The court did not impose an exceptional sentence or check off the paragraph 

stating the confinement time on count I included 12 months as an enhancement for 

sexual motivation. Mr. Snedden appeals.

                                          ANALYSIS

       The issue is whether the sentencing court erred by imposing 36 months of 

community custody instead of 12 months as urged by Mr. Snedden.  

                                               2 

No. 29441-2-III 
State v. Snedden  

       We review de novo whether the trial court had statutory authority to impose

community custody conditions.  State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 

201 (2007). If the condition is statutorily authorized, we review the sentencing court's 

decision to impose the condition for an abuse of discretion. State v. Autrey, 136 Wn.

App. 460, 466-67, 150 P.3d 580 (2006). Discretion is abused if it is exercised without

tenable grounds or reasons.  State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 

775 (1971).

       The law in effect at the time a criminal offense is committed controls the 

sentence.  State v. Schmidt, 143 Wn.2d 658, 673-74, 23 P.3d 462 (2001). Mr. 

Snedden's crime occurred in late 2008. Former RCW 9.94A.505(2)(b) (2008) stated, "If 

a standard sentence range has not been established for the offender's crime, the court 

shall impose a determinate sentence which may include not more than one year of 

confinement; community restitution work; . . . a term of community custody not to 

exceed one year; and/or other legal financial obligations."  

       In late 2008, the legislature enacted RCW 9.94A.701 (effective August 1, 2009), 

which states:  "If an offender is sentenced to the custody of the department for one of 

the following crimes, the court shall, in addition to the other terms of the sentence, 

sentence the offender to community custody for three years . . . (a) A sex offense not 

sentenced under RCW 9.94A.507." RCW 9.94A.701(1).  Indecent exposure is not 

listed under RCW 9.94.A.507(1)(a).  

                                               3 

No. 29441-2-III 
State v. Snedden  

       RCW 10.01.040 partly provides, "Whenever any criminal or penal statute shall 

be amended or repealed, all offenses committed . . . while it was in force shall be 

punished or enforced as if it were in force, notwithstanding such amendment or repeal, 

unless a contrary intention is expressly declared in the amendment or repealing act."  

(Emphasis added.)  On the surface, it would appear that the laws covering community 

custody in effect in late 2008 would be applicable. But the legislature clarified its intent 

in 2008 chapter 231, which states courts are, "to apply the provisions of the current 

community custody law to offenders sentenced after July 1, 2009, but who committed 

their crime prior to August 1, 2009, to the extent that such application is constitutionally 

permissible." This language evidences the legislature's "contrary intent" that RCW 

9.94A.701(1) be applied to sentences after July 1, 2009 for crimes committed prior to 

August 1, 2009 when constitutionally permissible.  RCW 10.01.040.  Mr. Snedden fits 

into this category and makes no argument that the application of the current statute is 

constitutionally impermissible.  

       Accordingly, the sentencing court did not err by exceeding its authority in relying 

on RCW 9.94A.701 to impose 36 months of community custody.  

       Affirmed.    

                                                    ________________________________
                                                    Brown, J.

WE CONCUR:

                                               4 

No. 29441-2-III 
State v. Snedden  

___________________________                         ________________________________
Sweeney, J.                                         Siddoway, J.

                                               5