Opinion
No. 36166-3-II.
July 8, 2008.
Appeal from a judgment of the Superior Court for Mason County, No. 07-1-00030-5, James B. Sawyer II, J., entered April 9, 2007.
Affirmed in part and remanded by unpublished opinion per Houghton, J., concurred in by Bridge-water and Quinn-Brintnall, JJ.
Jacob Rivera appeals his conviction of unlawful imprisonment, reckless endangerment, and assault, arguing insufficiency of the State's charging document. He further argues that the trial court erred in calculating his offender score and in sentencing him beyond the statutory maximum for a class C felony. We affirm the conviction and remand for further proceedings.
The trial court later dismissed one count of reckless endangerment without prejudice.
FACTS
The State charged Rivera by information based on an incident in which the State alleged that he knowingly restrained his girl friend Samantha Kenyon in her pick-up truck. The information alleged, in pertinent part:
[O]n or about the 16th day of January, 2007, . . . JACOB J. RIVERA, did commit UNLAWFUL IMPRISONMENT (DOMESTIC VIOLENCE), a Class C Felony, in that said defendant did knowingly restrain . . . Samantha Kenyon, . . . contrary to RCW 9A.40.040 and 9A.40.010(1) and against the peace and dignity of the State of Washington.
Clerk's Papers at 55.
At trial, a jury convicted Rivera of each of the counts. During his sentencing hearing, the parties discussed his criminal history as follows:
[State]: After being released from incarceration, but not within any timeframe that would allow anything to wash, he committed a VUCSA [violation of the Uniform Controlled Substances Act, chapter 69.50 RCW] in 2004 and was in fact still on supervision at the time of that offense.
And so for juvenile points, he's a seven, three and a half rounds down to a three. Three additional prior adult felonies for a six. On supervision for a seven. Other current offense for an eight, as to either cause number today.
[THE COURT]: Defense except to any of that recitation of history?
[Defense Counsel]: Criminal history, yes, Your Honor.
[THE COURT]: Accepted?
[Defense Counsel]: Yes. We don't have anything to dispute.
Report of Proceedings (RP) at 160-61 (emphasis added). The trial court then sentenced him, using an offender score of 8, to 57 months' incarceration plus 9 to 18 months' community custody for unlawful imprisonment and 365 days suspended for the remaining two counts. He appeals.
ANALYSIS Sufficiency of Information
Rivera argues, for the first time on appeal, that the State's information failed to apprise him of all the elements of unlawful imprisonment. We review a challenge to the sufficiency of a charging document de novo. State v. Williams, 162 Wn.2d 177, 182, 170 P.3d 30 (2007).
A charging document must allege facts that support every element of the crime and must adequately identify the crime charged so that the accused can prepare an adequate defense. Williams, 162 Wn.2d at 183. Because he first raises this challenge on appeal, we liberally construe the document in favor of validity. State v. Kjorsvik, 117 Wn.2d 93, 105, 812 P.2d 86 (1991). The test for sufficiency of the charging document when the issue is first raised on appeal is "(1) do the necessary facts appear in any form, or by fair construction can they be found, in the charging document; and, if so, (2) can the defendant show that he or she was nonetheless actually prejudiced by the inartful language which caused a lack of notice?" Kjorsvik, 117 Wn.2d at 105-06.
Rivera argues that the information should have also included the definition of the term "restrain," as provided in RCW 9A.40.010(1). He asserts that the definition of "restrain" adds additional elements to the crime of unlawful imprisonment and that those elements must be included in the information.
Here, the charging document served its function by adequately informing Rivera of the essential elements of unlawful imprisonment and the factual basis under which the State alleged that he committed that crime. See State v. Vangerpen, 125 Wn.2d 782, 787, 888 P.2d 1177 (1995) (holding that charging document satisfies constitutional requirements if defendant is apprised of "essential elements"). The information echoes the language of the unlawful imprisonment statute, which states that unlawful imprisonment occurs when a defendant "knowingly restrains another person." RCW 9A.40.040(1). The definitional section that Rivera identifies as missing from his information exists merely to establish how the element of restraint can be satisfied; it does not add additional elements to the crime of unlawful imprisonment.
The information survives the first prong of the Kjorsvik test. Because Rivera fails to advance any claim that the information's alleged inadequacy prejudiced him, and because the record is likewise devoid of any indication of prejudice, the information is sufficient.
Calculation of Offender Score
Rivera next contends that the trial court erred in calculating his offender score by using the prosecutor's unsubstantiated assertion that Rivera committed the current offense while on community supervision. Although Rivera did not challenge his sentence at the trial level, he may challenge an illegal or erroneous sentence for the first time on appeal. State v. Ford, 137 Wn.2d 472, 477, 973 P.2d 452 (1999). We review calculations of offender scores de novo. State v. Tili, 148 Wn.2d 350, 358, 60 P.3d 1192 (2003).
Although not in the record, we refer to Rivera's community supervision (as distinct from community custody, community placement, and postrelease supervision) from 2004 because that is how the State phrased its remarks at Rivera's sentencing hearing. See former RCW 9.94A.030(5), (7), (10), (34) (2006).
The Sentencing Reform Act of 1981 mandates the addition of one point to the defendant's offender score when the defendant commits an offense while on community placement. Former RCW 9.94A.525(18) (2006). Principles of due process require that facts relied on by the trial court in sentencing "`must have some basis in the record.'" Ford, 137 Wn.2d at 482 (emphasis omitted) (quoting State v. Bresolin, 13 Wn. App. 386, 396, 534 P.2d 1394 (1975).
The record provided to us reveals no evidence that Rivera was on community supervision when he committed this offense. The prosecutor's statement that Rivera "committed a VUCSA in 2004 and was in fact still on supervision at the time of that offense" is not relevant, as the inquiry should have been whether Rivera was on community supervision when he committed his current offense, not whether he was on community supervision in 2004. RP at 161.
The State counters that defense counsel's affirmative acknowledgment of the State's calculation of Rivera's offender score provided sufficient support for the trial court's sentence. But in the context of sentencing, "[a]cknowledgement does not encompass bare assertions by the State unsupported by the evidence." Ford, 137 Wn.2d at 483. Because it appears from our review of the record that the State, defense counsel, and the trial court all relied on an irrelevant assertion, we remand for an evidentiary hearing to determine whether he was in fact on community supervision when he unlawfully imprisoned Kenyon. If not, the trial court must correct Rivera's sentence accordingly. See State v. Mendoza, 139 Wn. App. 693, 712-13, 162 P.3d 439 (2007) (holding that remand for evidentiary hearing is appropriate where the prosecutor's "argumentative statement" is sole basis for affecting defendant's offender score); State v. Paine, 69 Wn. App. 873, 885, 850 P.2d 1369 (1993) (remanding for resentencing is proper remedy where exceptional sentence based on erroneous reasons).
Rivera argues that on remand the State should be held to the existing record. He cites State v. McCorkle, 88 Wn. App. 485, 945 P.2d 736 (1997), for the "general rule that the State is held to the existing record on remand." Appellant's Br. at 12. But McCorkle supports no such "general rule," instead stating that if the defendant "specifically and timely" objects to the State's evidence at sentencing and if the State still fails to prove its case after an evidentiary hearing based on that objection, only then will the State be held to the existing record on remand. 88 Wn. App. at 500.
Here, Rivera first raised his objection on appeal and no evidentiary hearing has occurred. The State shall have an opportunity to show that Rivera was indeed on community supervision at the time he committed this offense.
Rivera also claims ineffective assistance of counsel based on the allegedly erroneous calculation of his offender score. As we remand for an evidentiary hearing on sentencing, his ineffective assistance claim is moot.
Statutory Maximum Sentence
Rivera next argues that the trial court's sentence of 57 months plus 9 to 18 months' community custody exceeds the statutory maximum sentence for unlawful imprisonment. Unlawful imprisonment is a class C felony that carries a maximum penalty of five years' confinement. RCW 9A.40.040(2); RCW 9A.20.021(1)(c). The calculation of the maximum period includes both time imprisoned and time on community custody. State v. Sloan, 121 Wn. App. 220, 221, 87 P.3d 1214 (2004). In imposing a sentence, the sentencing court may correctly recognize the possibility that the defendant may not serve the entirety of his term of imprisonment. RCW 9.94A.728. Facing a similar claim in Sloan, that court determined that such a sentence does not violate the statutory maximum because the defendant would not under any circumstances serve more than the statutory maximum term. 121 Wn. App. at 223.
Here, if Rivera earns early release, he will serve the remainder of his sentence on community custody, not to exceed the five-year maximum term. If, on the other hand, he remains incarcerated for his entire 57-month term, he can serve only three additional months on community custody. See Sloan, 121 Wn. App. at 223; RCW 9A.20.021(1)(c). "`Under neither of these scenarios will [the defendant] serve more than the statutory maximum sentence.'" Sloan, 121 Wn. App. at 223 (quoting State v. Vanoli, 86 Wn. App. 643, 655, 937 P.2d 1166 (1997)).
For the sake of clarity, sentences that could theoretically exceed the statutory maximum should be remanded to add a clause setting forth the statutory maximum and stating that the total time incarcerated and on community custody cannot exceed that maximum. Sloan, 121 Wn. App. at 223-24. If, on remand, the trial court again sentences Rivera to a similar term, that sentence should include the clause discussed in Sloan.
In sum, the State charged Rivera by sufficient information with the crime of unlawful imprisonment and we affirm his conviction. But we remand for an evidentiary hearing at which the State has the burden of proving by a preponderance of the evidence that Rivera was on community custody when he committed the crime of unlawful imprisonment. Additionally, his sentence must not exceed the statutory maximum of five years for a class C felony.
We affirm the conviction and remand for further proceedings.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is
so ordered.
BRIDGEWATER, J., and QUINN-BRINTNALL, J., concur.