No. 35533-7-II.The Court of Appeals of Washington, Division Two.
April 29, 2008.
Appeal from a judgment of the Superior Court for Mason County, No. 05-1-00485-1, Toni A. Sheldon and James B. Sawyer II, JJ., entered September 11, 2006.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Van Deren, A.C.J., and Armstrong, J.
BRIDGEWATER, J.
Venus R. Mahala appeals the sentence imposed following her guilty-plea conviction for third degree malicious mischief. We affirm.
Mahala was charged by an orally amended information in Mason County Superior Court on August 14, 2006, with third degree malicious mischief, a gross misdemeanor, contrary to RCW 9A.48.090(1)(a). On that same date, she pleaded guilty to the amended charges, admitting in her statement on plea of guilty that she intentionally broke the windshield of her boyfriend’s car. The State recommended a sentence of 365 days, with credit for time served, and the balance of the sentence suspended. At the subsequent sentencing hearing, the trial court determined that Mahala had served 72 days in jail and sentenced her to 365 days of confinement, with all but 72 days suspended for two years. As it turned out, part of the time that Mahala spent in jail was for an unrelated district court matter. Jail officials determined that she had 44 more days to serve on the malicious mischief conviction. Mahala contended that it was the intent of the parties and the court that she be released for time already served. Mahala subsequently moved the trial court to amend her sentence to reflect that change so that she need not spend any time in confinement on the malicious mischief conviction. The trial court refused and Mahala appealed.
On September 20, 2007, a commissioner of this court issued a ruling dismissing Mahala’s appeal pursuant to a RAP 18.14 motion on the merits. Noting that Mahala’s release date for the malicious mischief conviction was December 18, 2006, and that Mahala had already served the 44 days at issue, the commissioner ruled that the appeal was moot. Mahala moved to modify, asserting that the commissioner had miscalculated the appropriate release date. This court granted the motion to modify on December 18, 2007, reversing the commissioner’s dismissal. Mahala’s appeal is now before us.
Mahala contends that the trial court abused its discretion in that it misconstrued the plea agreement and sentence imposed when it failed to release her at the time of sentencing. Notably, she does not seek to withdraw her plea, she merely complains that she was not released at sentencing as the parties to the plea agreement contemplated. But the plea agreement clearly stated that the sentencing judge was not bound by any recommendation made by the prosecutor or anyone else, and that the judge could impose any sentence up to the maximum authorized by law. See State v. DiLuzio, 121 Wn. App. 822, 828, 90 P.3d 1141 (2004) (trial court not bound by plea agreement).
Mahala fails to show abuse of discretion. There is no dispute that the damage Mahala inflicted on the car was greater than $50, and thus, the crime to which she pleaded guilty was a Page 3 gross misdemeanor. See RCW 9A.48.090(1)(a) and (2)(a). RCW 9A.20.021(2) provides in relevant part that every person convicted of a gross misdemeanor defined in Title 9A
RCW “shall be punished by imprisonment in the county jail for a maximum term fixed by the court of not more than one year.” See also RCW 9.92.020 State v. Trull, 56 Wn. App. 795, 797, 784 P.2d 183 (1990) (maximum term for third degree malicious mischief, a gross misdemeanor, is one year). The trial court’s 365-day suspended sentence with credit for time served was within the statutory sentence parameters. Moreover, in sentencing Mahala for a gross misdemeanor, the trial court retained considerable discretion in forming an appropriate sentence. That is, because she was not being sentenced on a felony conviction, the trial court was unfettered by the determinate sentencing constraints of the Sentencing Reform Act. See City of Bremerton v. Bradshaw, 121 Wn. App. 410, 413, 88 P.3d 438 (2004) (SRA applies only to felonies). See also Wahleithner v. Thompson, 134 Wn. App. 931, 941, 143 P.3d 321 (2006) (SRA represents significant limitation on judicial discretion permitting none of the sentencing flexibility available for misdemeanors, such as suspending sentences or deferring prosecutions). There was no abuse of discretion in the sentence imposed.
Mahala also contends that the trial court misconstrued her challenge as whether the sentence on the malicious mischief conviction should run concurrently with her incarceration on the district court matter. But that is precisely how she presented the issue to the trial court in her post-sentence motion. As noted, Mahala’s complaint is that she was not immediately released after sentencing on the malicious mischief conviction, as she contends the trial court intended. But the court was emphatic that it had no intention that her sentence was to run concurrently with any other sentence. Moreover, probation outside the SRA is not a matter of right but a matter of grace, privilege, or clemency granted to the deserving, and withheld from the undeserving, as sound official discretion may dictate. State v. Williams, 97 Wn. App. 257, 263, 983 P.2d 687 (1999), review denied, 140 Wn.2d 1006 (2000). RCW 9.92.080(3) provides that “whenever a person is convicted of two or more offenses arising from separate and distinct acts or omissions, . . . the sentences imposed therefor shall run consecutively, unless the court, in pronouncing the second or other subsequent sentences, expressly orders concurrent service thereof.” This statute “mandates” that sentences for separate acts run consecutively unless the court expressly orders the sentences to run concurrently. See Mortell v. State, 118 Wn. App. 846, 851, 78 P.3d 197 (2003). Mahala points to no such express order in the record, and we can find none. See RP (Sept. 25, 2006) at 55. Accordingly, we conclude that the trial court’s sentence and its handling of Mahala’s subsequent motion were valid exercises of its discretion.
Affirmed.
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.
We concur:
Van Deren, A.C.J.
Armstrong, J.