Opinion Information Sheet

			

   IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                               NO.  8 6 7 0 9 - 7
                      Respondent, 

           v.                                                      EN BANC

JOSHUA ELIAS BOYD,

                      Petitioner.
                                                              Filed May 3, 2012

           PER CURIAM -- Joshua Boyd was convicted of violating a protection order 
and was sentenced to  terms of confinement and community custody that together
exceeded the  60-month  statutory maximum for the offense.  The court included a 
notation on the judgment and sentence stating that the total term of confinement and
community custody could not exceed the statutory maximum. The Court of Appeals 
affirmed, holding that the notation was sufficient under In re Personal Restraint of 
Brooks, 166 Wn.2d 664, 211 P.3d 1023 (2009). Boyd filed a petition for review. We 
grant review in part and remand for resentencing or amendment of the community 
custody term.1

       1  Boyd also sought review of whether there was                sufficient evidence of 
premeditation to support his first degree attempted murder conviction. We deny review of 
that issue. 

No. 86709-7                                                                               Page 2

           Boyd  was charged with various crimes including first degree attempted
murder and violation of a protection order after he attacked and stabbed  Tasha 
Mitchell, the subject of the protection order and the mother of Boyd's children. A jury 
convicted Boyd as charged, and the court sentenced him on November 6, 2009. For the 
protection order violation, the court sentenced Boyd to 54 months of confinement and 
12 months of community custody, but it noted on the judgment and sentence that the 
total term of confinement and community custody actually served could not exceed the
60-month statutory maximum.
           The Court of Appeals affirmed in an unpublished opinion, holding in part 
that the trial court's note on the total term of confinement and community custody was 
sufficient under Brooks. State v. Boyd, noted at 164 Wn. App. 1014 (2011). In Brooks, 
this court held that when the trial court imposes an aggregate term of confinement and
community custody that potentially exceeds the statutory maximum, it must include a 
notation clarifying that the total term of confinement and community custody actually 
served may not exceed the statutory maximum. Brooks, 166 Wn.2d at 674. But in 
Brooks we also noted the then-recent passage of RCW 9.94A.701(9) and indicated that 
once the statute became effective it would likely supersede our decision in that case. 
Id. at 672 n.4.
           Under RCW 9.94A.701(9),2 first enacted in 2009, the community custody 

term specified by RCW 9.94A.701 "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  this court 
explained in State v. Franklin, 172 Wn.2d 831, 263 P.3d 585 (2011), following the 

       2  This subsection     was originally codified as RCW 9.94A.701(8). It was 
renumbered to subsection (9) in 2010. Laws of 2010, ch. 224, § 5. 

No. 86709-7                                                                               Page 3

enactment of this statute, the "Brooks notation" procedure no longer complies with 
statutory requirements. We held there that RCW 9.94A.701(9) applies retroactively, 
but for those sentenced before the enactment of the statute (as was the case in 
Franklin), it is the responsibility of the Department of Corrections to reduce the term 
of community custody to bring the total term within the statutory maximum. Franklin, 
172 Wn.2d at 839-41. Thus, we held that remand for resentencing was not necessary
in that case. See id. at 840 (directive that court reduce term of community custody to 
avoid sentence in excess of statutory maximum only applies when court first imposes 
sentence).
           Unlike the defendant in Franklin, Boyd was sentenced after RCW 
9.94A.701(9) became effective on July 26, 2009. See Laws of 2009, ch. 375, § 5. 
Thus, the trial court, not the Department of Corrections, was required  to reduce
Boyd's term of community custody to avoid a sentence in excess of the statutory 
maximum. The trial court here erred in imposing a total term of confinement and 
community custody in excess of the statutory maximum, notwithstanding the Brooks
notation.
           We reverse the Court of Appeals and remand to the trial court to either 
amend the community custody term or resentence Boyd on the protection order 
violation conviction consistent with RCW 9.94A.701(9).