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FILED JANUARY 10, 2023 In the Office of the Clerk of Court WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

STATE OF WASHINGTON, ) ) No. 38382-2-III Respondent, ) ) v. ) ) STEVEN ALLEN BUCK, ) PUBLISHED OPINION ) Appellant. )

STAAB, J. — As part of Steven Buck’s sentence for escaping community custody

and failing to register as a sex offender, the court imposed 36 months of community

custody to run consecutively to any other outstanding term of community custody. Buck

also had an outstanding term of community custody from a 2016 offense for failing to

register as a sex offender. On appeal, Buck argues that the aggregate amount of

community custody is outside the sentencing guidelines provided in RCW 9.94A.589(5)

which only allows for a maximum of 24 months of consecutive community supervision

for a non-exceptional sentence. Despite the State’s concession, we hold that the

limitations in RCW 9.94A.589(5) relate to community supervision rather than community

custody and do not apply to Buck’s sentence. Consequently, we affirm his sentence. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 38382-2-III State v. Buck

BACKGROUND

In 2016, Buck was convicted of failing to register as a sex offender. Following his

conviction, he received a 43-month sentence and 36 months of community custody.

Buck was released from prison in April 2020 and was still on community custody from

his 2016 conviction. Although Buck provided a registered address, the assigned deputy

visited this address on three separate occasions in one month and could not locate anyone

on the premises. The matter was eventually turned over to the prosecutor’s office, and

Buck was charged with escape from community custody and failure to register as a sex

offender.

A jury found Buck guilty of count 1: escape from community custody, and count

2: failure to register as a sex offender (3rd or subsequent offense). At sentencing, the

court imposed a prison sentence of 12 months on count 1, and 57 months on count 2. The

court also imposed a sentence of 36 months of community custody on count 2. The court

ordered the new community custody sentence to run consecutively to the community

custody sentence from 2016 “or any current term of community custody,” resulting in an

aggregate amount of 72 months of community custody. Buck appeals.

ANALYSIS

Under Washington law, a trial court’s sentencing authority “is limited to that

expressly found in the statutes.” State v. Phelps,

,

(2002). In addition, “[i]f the statutory provisions are not followed, the action of the court

2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 38382-2-III State v. Buck

is void.” Id. at 354-55. Statutory interpretation is a question of law and is reviewed de

novo. State v. Evans,

,

(2013). When statutes conflict,

“courts generally give preference to the more specific and more recently enacted statute.”

Gorman v. Garlock, Inc.,

,

(2005) (quoting Tunstall v.

Bergeson,

,

(2000)).

The first sentence of RCW 9.94A.589(5) states, “[i]n the case of consecutive

sentences, all periods of total confinement shall be served before any partial confinement,

community restitution, community supervision, or any other requirement or conditions of

any of the sentences.” The second sentence of the statute addresses restrictions on

sentencing regarding community supervision. It reads “if two or more sentences that run

consecutively include periods of community supervision, the aggregate of the community

supervision period shall not exceed twenty-four months.” RCW 9.94A.589(5) (emphasis

added).

Buck argues that 72 months of aggregate community custody violates this

statutory provision, and the State concedes. We disagree. Community custody is not the

same as community supervision. Therefore, the sentencing restriction in RCW

9.94A.589(5) does not apply here. Rusan’s, Inc. v. State,

,

(1970) (courts are not bound to accept a party’s stipulation or concession to questions

of statutory interpretation).

3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 38382-2-III State v. Buck

Prior to 2000, a felony offender could be sentenced to several forms of

supervision, such as community placement, community custody, and post-release

community supervision. S.B. REP. ON H.B. 2719, at 1, 60th Leg., Reg. Sess. (Wash.

2008). Community supervision means “a period of time during which a convicted

offender is subject to crime-related prohibitions and other sentence conditions imposed

by a court pursuant to this chapter or RCW 16.52.200(6) or 46.61.524.” LAWS OF 2000,

ch. 28, § 2. In contrast, community custody means “that portion of an offender’s

sentence of confinement in lieu of earned release time or imposed pursuant to RCW

9.94A.120 or RCW 9.94A.383, served in the community subject to controls placed on the

offender’s movement and activities by the department.” Id.

In 1999, the legislature passed the Offender Accountability Act, RCW 72.09.589,

.590, .904 , which changed all “community supervision” to “community custody” for

those offenders who committed offenses after July 1, 2000. S.B. REP. ON H.B. 2719, at 2.

However, the old regime needed to stay in place for offenders who committed acts prior

to 2000. Id. These provisions relating to the older forms of community supervision have

been generally moved to ch. 9.94B RCW, while the provisions in ch. 9.94A RCW now

relate to community custody. A reading of the Laws of 2008 demonstrates the removal of

most language relating to community supervision, community placement, and postrelease

supervision from RCW 9.94A. See generally LAWS OF 2008, ch. 231.

4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 38382-2-III State v. Buck

Buck was convicted of failing to register as a sex offender in 2016. He received a

43-month sentence and 36 months of community custody. In 2020, he was released from

prison and was still on community custody from the prior conviction when he was

sentenced on the new convictions in 2021. The trial court imposed another 36-month

community custody term to run consecutively with his 2016 conviction term of

community custody.

Buck was sentenced to community custody, not community supervision.

Accordingly, RCW 9.94A.589(5), relating to a limitation on community supervision for

aggregate sentences, does not apply. Therefore, the court properly sentenced Buck to 36

months of community custody as required in RCW 9.94A.701(1)(a) for sex offenses. In

addition, section 2 under the statute allows for community custody to run consecutively

rather than concurrently if expressly ordered by the sentencing court, as occurred here.

See RCW 9.94A.589(2)(a).

Even if we were to find that RCW 9.94A.589(5) and RCW 9.94A.701(1) conflict,

statutory construction dictates the same outcome. The 24-month restriction for

“community supervision” in RCW 9.94A.589(5) was inserted into the statute in 1988.1

RCW 9.94A.701(1)(a), relating to the imposition of 3 years of “community custody,” was

1 LAWS OF 1988, ch. 143, § 24.

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No. 38382-2-III State v. Buck

inserted into the statute in 2009.2 The more recent statute indicates that the legislature

intended a sentence of 36 months of community custody. Gorman,

.

Because Buck’s 36-month sentence of community custody does not violate RCW

9.94A.589(5), it was authorized.

Affirmed.

_________________________________ Staab, J.

WE CONCUR:

_________________________________ Fearing, J.

_________________________________ Lawrence-Berrey, A.C.J.

2 LAWS OF 2009, ch. 375, § 5.

6