STATE v. WALKER, 147 Wn. App. 1007 (2008)

No. 36765-3-II.The Court of Appeals of Washington, Division Two.
October 21, 2008.

Appeal from a judgment of the Superior Court for Cowlitz County, No. 03-1-01280-4, Stephen M. Warning, J., entered September 12, 2007.

Reversed and remanded by unpublished opinion per Hunt, J., concurred in by Houghton and Quinn-Brintnall, JJ.

HUNT, J.

Patrick Allen Walker appeals the trial court’s denial of his motion to correct his judgment and sentence for felony stalking (domestic violence). He argues that because his sentence exceeds the statutory maximum for a class C felony, the trial court erred in denying his motion to correct his judgment and sentence.

Accepting the State’s concession of error, we vacate Walker’s judgment and sentence for felony stalking (domestic violence) and remand for resentencing.

FACTS
On July 23, 2004, Patrick Walker pleaded guilty to one count of felony stalking (domestic violence) and one count of bail jumping. Both crimes are class C felonies, former RCW 9A.46.110(5)(b) (2003); RCW 9A.76.170
(3)(c), for which the statutory maximum sentence is five years. RCW 9A.20.021(1)(c).

For his felony-stalking conviction, the trial court sentenced Walker to a standard-range sentence of 54 months confinement, [1] and nine to 18 months of community custody after release from confinement.[2] Thus, Walker’s sentence totaled 63 to 72 months.[3]

Almost three years later, on June 20, 2007, Walker filed a motion to correct his judgment and sentence. He argued that his combined incarceration and community custody sentence for felony stalking exceed the statutory maximum and, therefore, was illegal. On August 30, the trial court denied his motion, saying it was “without merit.”

Walker appeals.

ANALYSIS I. Sentence Exceeds Statutory Maximum
Walker argues we must vacate his judgment and sentence because his combined incarceration and community custody sentence for his felony stalking conviction exceeds the five-year statutory maximum for class C felonies. The State concedes this error. Agreeing with Walker, we accept the State’s concession.

A. Standard of Review
We review de novo a sentencing error constituting an illegal sentence State v. Murray, 118 Wn. App. 518, 521, 77 P.3d 1188 (2003).[4] We evaluate sentencing errors based on the principles that: (1) a sentence in excess of statutory authority is subject to collateral attack, [5]
and (2) a defendant cannot agree to a punishment in excess of statutory authority. In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 873-74, 50 P.3d 618 (2002).[6] Thus, in pleading guilty, Walker did not waive his right to challenge his sentence on grounds of legal error. In re Pers. Restraint of West, 154 Wn.2d 204, 213-14, 110 P.3d 1122 (2005).

B. Legal Error
Under former RCW 9.94A.505(5) (2003), “a court may not impose a sentence providing for a term of confinement . . . or community custody which exceeds the statutory maximum for the crime.” Walker argues that his situation is similar to the one in State v. Zavala-Reynoso, in which Division Three of our court held that Zavala-Reynoso’s combined sentence for incarceration and community custody (123-136 months) illegally exceeded the 120-month statutory maximum term for his crime. 127 Wn. App. 119, 124, 110 P.3d 827 (2005). We agree.

Similarly, Walker’s sentence of 63 to 72 months, including both confinement and community custody components, exceeds the 60-month statutory maximum term for class C felonies. RCW 9A.20.021(1)(c). We accept the State’s concession of error, follow Zavala-Reynoso, and hold that because Walker’s sentence exceeds the statutory maximum, it is illegal under former RCW 9.94A.505(5) (2003).

II. Remand for Resentencing
“When a trial court exceeds its sentencing authority under the SRA, it commits reversible error.” State v. Hale, 94 Wn. App. 46, 53, 971 P.2d 88 (1999). The remedy for erroneous sentencing is remand to the trial court for resentencing. Zavala-Reynoso, 127 Wn. App. at 124 State v. Ross, 152 Wn.2d 220, 229, 95 P.3d 1225 (2004). The State agrees that remand for resentencing is the appropriate remedy to correct this illegal sentence.

Accepting the State’s concession of error, we vacate Walker’s judgment and sentence for felony stalking (domestic violence) and remand for resentencing on this count.

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.

HOUGHTON, PJ. and QUINN-BRINTNALL, J., concur.