State Of Washington, Respondent V. Joshua Reed, Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
JOSHUA REED,
Appellant.
No. 80758-7-I
DIVISION ONE
UNPUBLISHED OPINION
COBURN , J. — Joshua Graham Reed appeals the trial court’s
November 12, 2019 order amending his judgment and sentence. Reed argues
the trial court exceeded its authority under CrR 7.8 by correcting a juridical error
rather than a clerical error in his judgment and sentence. Finding no error, we
affirm.
FACTS
In 2016, Reed raped then five-year-old P.T. The State charged Reed with
rape of a child in the first degree, child molestation in the first degree, and
tampering with a witness. Reed waived his right to a trial by jury, and the matter
proceeded to a bench trial. The trial court found Reed guilty as charged.
In October 2017, during the sentencing hearing, the State recommended
and the trial court imposed, a sentence of 171 months to life for rape of a child in
the first degree, 96 months to life for child molestation in the first degree, and

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12 months for tampering with a witness. The State also recommended, and the
trial court imposed, 36-month terms of community custody for the convictions of
rape of a child in the first degree and child molestation in the first degree.
Two years later, in November 2019, the State moved to amend the
judgment and sentence under CrR 7.8. The State recognized that it mistakenly
recommended the terms of community custody be 36 months. It argued that,
under RCW 9.94A.507(5), the trial court should have imposed “a term of
community custody ‘for any period of time the person is released from total
confinement before the expiration of the maximum sentence.’ ” In the alternative,
the State argued the sentence was erroneous and the trial court had a duty to
correct the erroneous sentence upon its discovery.
Reed opposed the State’s motion. Reed argued that because the error
was judicial rather than clerical, the trial court could not amend the judgment and
sentence under CrR 7.8. Reed also argued the State’s proper remedy was to file
an appeal, which it did not do.
Following a hearing on the matter, the trial court determined,
I don’t think that I could legitimately argue that this was a clerical
error. Clearly, in the colloquy I had with Mr. Reed when I
sentenced him, it was clear I said 36 months, and was going based
on the paperwork that was filed by the state. But I do think that
based on what the statute requires, it would be similar to the Court
entering a suspended sentence or something that is prohibited by
the law. Thirty-six months is under what Mr. Reed was convicted
of. It’s an unlawful sentence, . . . so the Court is going to amend in
accordance with what’s required by the statute.

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The trial court amended the judgment and sentence to require Reed serve
community custody for life for rape of a child in the first degree and for child
molestation in the first degree.
Reed appeals the order amending the judgment and sentence.
DISCUSSION
Reed argues that because the trial court’s error was a judicial error, the
trial court could not correct the error by amending the judgment and sentence
under CrR 7.8. We disagree.
We review a trial court’s ruling on a CrR 7.8 motion for abuse of discretion.
State v. Crawford, 164 Wn. App. 617, 621, 367 P.3d 365 (2011). A trial court
abuses its discretion when it erroneously applies the law or bases its decision on
untenable grounds or reasons. Id. at 621; State v. Zavala-Reynoso, 127 Wn.
App. 119, 122, 110 P.3d 827 (2005). Determining whether a trial court exceeded
its statutory authority is a question of law that we review de novo. Crawford, 164
Wn. App. at 622.
Trial courts may only impose a sentence authorized by statute. In re
Postsentence Review of Leach, 161 Wn.2d 180, 184, 163 P.3d 782 (2007); State
v. Smissaert, 103 Wn.2d 636, 639, 694 P.2d 654 (1985) (recognizing,
“sentencing provisions outside the authority of the trial court are ‘illegal’ or
‘invalid.’ ”). Here, the trial court acknowledged it made a judicial error when it
imposed a facially invalid sentence of 36 months of community custody instead
of sentencing Reed to a lifetime of community custody.

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RCW 9.94A.507(1)(a)(i) governs convictions of rape of a child in the first
degree and child molestation in the first degree. RCW 9.94A.507(5) provides,
When a court sentences a person to the custody of the department
under this section, the court shall, in addition to the other terms of
the sentence, sentence the offender to community custody under
the supervision of the department and the authority of the board for
any period of time the person is released from total confinement
before the expiration of the maximum sentence.
Because Reed’s sentence for rape of a child in the first degree is 171 months to
life and his sentence for child molestation in the first degree is 96 months to life,
his maximum sentence is life. The trial court was correct when it determined it
imposed a facially invalid sentence that was not in accordance with
RCW 9.94A.507(5).
CrR 7.8(b)(4) provides, if a party files a motion for relief from judgment,
the trial court may grant relief if “[t]he judgment is void.” In other words, “[a] court
has jurisdiction to amend a judgment to correct an erroneous sentence, where
justice requires, under CrR 7.8.” State v. Hardesty, 129 Wn.2d 303, 315, 915
P.2d 1080 (1996). Here, the judgment was void. After the State alerted the trial
court to the mistake, the trial court held a hearing on the matter. The trial court
did not abuse its discretion in amending the judgment and sentence to correct
that error.
Reed argues the trial court’s error was a judicial error rather than a clerical
error,1 so it could not be corrected under CrR 7.8(a) and was time-barred under
CrR 7.8(b)(1). CrR 7.8(a) provides,
1 “Clerical errors are those that do not embody the trial court’s intention as
expressed in the trial record. These errors allow for amended judgments to

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Clerical mistakes in judgments, orders or other parts of the record
and errors therein arising from oversight or omission may be
corrected by the court at any time of its own initiative or on the
motion of any party and after such notice, if any, as the court
orders. Such mistakes may be so corrected before review is
accepted by an appellate court, and thereafter may be corrected
pursuant to RAP 7.2(e).
As we previously discussed, the trial court admitted it made a judicial error rather
than a clerical error. So, CrR 7.8(a) does not apply. Likewise, CrR 7.8(b)(1)
does not apply. CrR 7.8(b)(1) allows the trial court to provide relief from a final
judgment or order for “[m]istakes, inadvertence, surprise, excusable neglect or
irregularity in obtaining a judgment or order” as long as the motion for relief is
filed no more than one year after the judgment. Because the trial court’s original
imposition of community custody was void, the trial court properly amended the
judgment and sentence under CrR 7.8(b)(4), which is not subject to
CrR 7.8(b)(1)’s one-year time bar.
Reed cites State v. Morales for the proposition that, “Errors that are not
clerical are characterized as judicial errors, and trial courts may not amend a
judgment under CrR 7.8 for judicial errors.” (citing State v. Morales, 196 Wn.
App. 106, 118, 383 P.3d 539 (2016) (citing State v. Davis, 160 Wn. App. 471,
478, 248 P.3d 121 (2011))). Reed’s reliance on Morales is misplaced. In
Morales, the jury mistakenly convicted the defendant of child molestation in the
second degree rather than in the first degree, and the trial court sentenced the
correct language that did not correctly convey the court’s intention or ‘supply
language that was inadvertently omitted from the original judgment.’ ” Morales,
196 Wn. App. at 117 (quoting Presidential Estates Apt. Assocs. v. Barrett, 129
Wn.2d 320, 326, 917 P.2d 100 (1996)).

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defendant on the more serious crime rather than the one of which the jury had
convicted him. 196 Wn. App. at 114-15. This court determined CrR 7.8 did not
provide the trial court with authority to make material alterations to the jury
verdict. Id. at 116, 121. Instead, this court determined CrR 7.8 permits the trial
court to only amend or correct clerical errors in the verdict, and the trial court
exceeded its authority by amending the verdict and sentencing the defendant to
a more serious crime. Id. at 115-17. There, the judicial error violated the
defendant’s right to a jury trial. Id. at 117. Here, no jury verdict was altered and
Reed was not sentenced to a more serious crime. Instead, the trial court
amended the imposition of community custody to correct a facially invalid
judgment and sentence by bringing it into conformity with the statutory
requirement.
The State analogizes this case to Smissaert. In Smissaert, the trial court
mistakenly sentenced the defendant to a maximum term of 20 years in prison for
the crime of murder in the first degree, but the trial court was statutorily required
to impose a life sentence. 103 Wn.2d at 638. Two years after imposing the
sentence, the Board of Prison Terms and Parole notified the trial court of its
mistake. Id. The trial court corrected the mistake by amending the judgment and
sentence to impose life imprisonment nunc pro tunc.2 Id. Our Supreme Court
determined an increased sentence should be imposed on a defendant to correct
a judicial error. Id. at 640. It recognized that to correct the error, the trial court
2 A nunc pro tunc order has a retroactive effect. See Nunc Pro Tunc,
B LACK ’S L AW DICTIONARY (11th ed. 2019).

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must amend the judgment and sentence, although it should not be amended
nunc pro tunc. Id. at 640, 644. Reed argues Smissaert is inapplicable because it
did not involve a CrR 7.8 motion. While this case does not involve a nunc pro
tunc amendment, Smissaert is informative. Here, when the State filed its motion
to amend the judgment and sentence, it alerted the trial court to its error. After a
hearing on the matter, the trial court amended the judgment and sentence in
conformity with the statutory requirement.
In Zavala-Reynoso, Division Three of this court determined the
defendant’s claim that the trial court miscalculated their offender score based on
alleged mistakes was time-barred under CrR 7.8(b)(1). 127 Wn. App. at 123-24.
However, it determined the defendant’s claim that their community custody
sentence exceeded the maximum term was not time-barred under CrR 7.8(b)(4)
because the sentence was facially invalid and void for exceeding the statutory
maximum under RCW 9.94A.505(5). Id. at 123-24. Thus, the defendant’s
CrR 7.8 motion was not time-barred. Id. at 124. Like in Zavala-Reynoso, here,
the State’s motion was not time-barred because it sought to correct a facially
invalid sentence for community custody.
Because the original imposition of community custody was facially invalid,
the trial court did not abuse its discretion in granting the State’s motion to amend

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the judgment and sentence and in imposing community custody for life. We
affirm.
WE CONCUR: