[No. 25843-2-III. Division Three. September 4, 2007.]
[1] Criminal Law — Judgment — Vacation — Review — Standard of Review. A trial court's ruling on a motion for relief from judgment under CrR 7.8(b) is reviewed for an abuse of discretion. The trial court abuses its discretion when it adopts a position that is manifestly unreasonable or that is based on untenable grounds or reasons. [2] Controlled Substances — Delivery — Punishment — Sentence — Community Placement — Necessity — Statutory Provisions. Under former RCW 9.94A.120(9)(a) (1997) (recodified as RCW 9.94A.700(1)(b)(iv)), a defendant convicted of unlawful delivery of a controlled substance is required to be sentenced to 12 months of community placement. [3] Criminal Law — Punishment — Sentence — Review — Correcting Erroneous Sentence — Court's Duty. The appellate courts have the authority, as well as a duty, to correct errors on the face of criminal judgments and sentences. [4] Criminal Law — Punishment — Sentence — Conditions — Community Placement — Duration — Relationship to Statutory Maximum. Under former RCW 9.94A.120 (1997), a criminal offender may be sentenced to a term of confinement for the statutory maximum sentence for the offense and also to a period of community placement. In such instances, the statute provides that the term of community placement "shall consist entirely of such community custody to which the offender may become eligible." For such a sentence to be valid, the judgment and sentence should set forth the statutory maximum and clearly indicate that the term of community placement does not extend the total sentence beyond that maximum. [5] Criminal Law — Punishment — Sentence — Conditions — Community Placement — Duration — Precise Term — Omission — Remand. When a sentence is imposed that does not include a statutorily required period of community placement, remand for amendment of the judgment and sentence is the proper course. Where the sentence imposed by the trial court was for a term of confinement equal to the statutory maximum sentence for the offense, the trial court is not necessarily required to reduce the defendant's sentence on remand to the statutory maximum minus the required term of community placement. On remand, the trial court may either reconsider the length of the standard range sentence in light of the period of community placement required or resentence the defendant to the statutory maximum and impose community placement consisting entirely of such community custody to which the defendant may be eligible under applicable sentencing statutes. How to resentence a defendant within the structure of the community placement statutes is a matter left to the trial court's discretion. [6] Personal Restraint — Petition — Timeliness — Statutory Limits — Exceptions — Facial Invalidity — In General. Under RCW 10.73.090(1), the one-year time limit for filing a petition or motion for collateral relief from a criminal judgment and sentence does not apply if the judgment and sentence are invalid on their face. [7] Personal Restraint — Petition — Timeliness — Statutory Limits — Exceptions — Facial Invalidity — Mandatory Term of Community Placement. When a trial court fails to include a statutorily required term of community placement in a convicted offender's sentence, the sentence is not "valid on its face" within the meaning of RCW 10.73.090(1) and may be collaterally attacked even if more than one year has gone by since it was entered. Nature of Action: A defendant convicted on a plea of guilty to one count of unlawful delivery of a controlled substance moved for relief from judgment on a claim that the trial court erroneously imposed 12 months of community placement, which extended his sentence beyond the statutory maximum penalty for the offense. Superior Court: The Superior Court for Walla Walla County, No. 97-1-00346-3, Donald W. Schacht, J., denied the motion on December 29, 2006. Court of Appeals: Holding that the trial court erred by not imposing community placement as part of the defendant's sentence, the court reverses the denial order and remands the case for resentencing consistent with the provisions of the Sentencing Reform Act of 1981 in effect at the time the defendant was originally sentenced. Richard G. Wernette- (of McAdams, Ponti, Wernette & Vandorn, PS), for appellant. James L. Nagle-, Prosecuting Attorney, and Gabriel E. Acosta-, Deputy, for respondent. ¶1 STEPHENS, J. — Richard Hibdon pleaded guilty to one count of delivery of marijuana. The court imposed a standard range sentence of 60 months, but no community placement as required. Claiming the court erred by failing to impose 12 months of community placement, Mr. Hibdon appeals. We reverse and remand for resentencing. FACTS ¶2 On December 4, 1997, the State charged Mr. Hibdon with one count of delivery of methamphetamine and one count of delivery of marijuana. On March 5, 1998, he pleaded guilty to delivery of marijuana. His standard range for this offense was 51-68 months, but the statutory maximum was 60 months. At sentencing, the parties represented that there was no community placement required for this crime. The court sentenced Mr. Hibdon to 60 months' confinement and did not impose a term of community placement. This sentence was imposed consecutive to a Pierce County sentence. ¶3 On December 12, 2006, Mr. Hibdon filed a CrR 7.8 motion, alleging inaccurately that the court had erroneously imposed 12 months of community placement, which would extend his sentence beyond the statutory maximum of 60 months. The court denied the motion. Mr. Hibdon timely appealed. ¶4 On appeal, Mr. Hibdon asserts his sentence is unlawful because the court should have imposed a 12-month term for community placement, reducing his term of confinement to no more than 48 months. ANALYSIS When a court sentences a person to a term of total confinement to the custody of the department of corrections for an offense categorized as a sex offense or a serious violent offense committed after July 1, 1988, but before July 1, 1990, assault in the second degree, assault of a child in the second degree, any crime against a person where it is determined in accordance with RCW 9.94A.125 that the defendant or an accomplice was armed with a deadly weapon at the time of commission, or any felony offense under chapter (Emphasis added.) ¶8 Mr. Hibdon argues that in order to impose the required 12-month term of community placement, this case must be remanded to direct the trial court to reduce his term of confinement to 48 months, so that the entire sentence does not exceed the statutory maximum of 60 months. We disagree. ¶10 Here, the court did not impose any term of community placement. Thus, this is not a situation in which there is merely a need for clarification. When a sentence is imposed that does not conform to the statutory mandate regarding a required period of community placement, remand for amendment of the judgment and sentence is the proper course. State v. Broadaway, 133 Wn.2d 118, 136, 942 P.2d 363 (1997). "Further, because the trial court was mistaken about the period of community placement required by law, resentencing is appropriate to allow the trial judge to reconsider the length of the standard range sentence in light of the correct period of community placement required." Id. ¶11 The trial court and the parties were mistaken about the required period of community placement. The trial judge should be given the opportunity to resentence Mr. Hibdon. While the court may resentence Mr. Hibdon to a lesser term of confinement, as he requests, it is not required to do so. Another permissible option under the statute would be to impose the statutory maximum term of confinement with community placement consisting entirely of "such community custody to which the offender may become eligible, in accordance with RCW 9.94A.150 (1) and (2)." Former RCW 9.94A.120(9)(a). How to sentence Mr. Hibdon within the structure of the governing statutes is a matter we leave to the trial court's discretion. State v. Strauss, 119 Wn.2d 401, 411, 832 P.2d 78 (1992). ADDITIONAL GROUNDS FOR REVIEW ¶12 Mr. Hibdon filed a pro se statement of additional grounds for review addressing the validity of his sentence and underlying plea in light of the misunderstanding about the community placement component. His statement also addresses the trial court's power to correct the erroneous sentence at this time. Our holding that the trial court erred in failing to correct his sentence pursuant to the CrR 7.8 motion answers most of Mr. Hibdon's arguments. ¶14 We decline to address separately Mr. Hibdon's argument challenging the validity of his guilty plea, because he is not seeking to withdraw his plea. He asks only that this matter be remanded for resentencing. Because we hold he is entitled to be resentenced, further discussion of this issue is unnecessary to the resolution of this case. CONCLUSION ¶15 The trial court erred by not imposing community placement as part of Mr. Hibdon's sentence. We reverse the trial court and remand this matter for resentencing consistent with the provisions of the Sentencing Reform Act of 1981, chapter 9.94A RCW, in effect at the time of Mr. Hibdon's original sentence. SCHULTHEIS, A.C.J., and KULIK, concur.