State of Washington v. Jesus Torres

I

FILED OCT 21, 2014 In the Office of the Clerk of Court WA State Court of Appeals, Division m

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DMSION THREE

STATE OF WASHINGTON, ) ) No. 31643-2-III Respondent, ) ) v. ) ) JESUS TORRES, ) UNPUBLISHED OPINION )

Appellant. )

KORSMO, J. - Jesus Torres challenges two aspects of his judgment and sentence, ~ .,j arguing that the trial court exceeded its authority under the facts of his case. The trial I I court acted within its authority and, therefore, we affirm.

FACTS t ~

Mr. Torres pleaded guilty to one count of possession of methamphetamine and one I count of witness tampering on February 19,2013. A jury was present that day for the I anticipated trial. At sentencing two months later, the court imposed a sentence of24 I months' incarceration on the methamphetamine count and 60 months of incarceration on I the witness tampering charge. The court also imposed 12 months of community custody

on the drug conviction. In addition, the court imposed a $250 jury demand fee for the I f jury's appearance on February 19.

After imposition of sentence, Mr. Torres appealed to this court. *2 I

No. 31643-2-III State v. Torres

ANALYSIS

Mr. Torres challenges two conditions of the judgment and sentence. He argues

that the court was without authority to impose the term of community custody or to

impose the jury demand fee. We address each claim in tum.

Community Custody

Mr. Torres argues that the combined term of incarceration and community custody

exceeds the statutory maximum sentence. He mistakenly combines the wrong sentences

to reach his conclusion.

A sentence includes periods of total or partial confinement, as well as any term of

community custody imposed by the court. RCW 9.94A.030(8); RCW 9.94A.505(2)(a)(i),

(ii). RCW 9 .94A. 70 I (9) provides that the period of community custody "shall be

reduced" when the "standard range term of confinement in combination with the term

of community custody exceeds the statutory maximum for the crime as provided in

RCW 9A.20.021." (emphasis added). Both possession of methamphetamine and witness

tampering are class C felonies. RCW 9A.72.120(2); RCW 69.50.40l3(2). The

maximum sentence for a class C felony is five years. RCW 9A.20.021(1)(c).

Seizing upon the command ofRCW 9.94A.701(9), Mr. Torres argues that his

period of community custody must be eliminated because he was sentenced to the

maximum term of 60 months for the witness tampering conviction. However, he was

sentenced to only 24 months on the drug conviction in addition to a 12 month period of *3 I

No. 31643-2-III State v. Torres

community custody on that charge. While he was sentenced to a 60-month term of

imprisonment on the witness tampering count, there was no community custody attached

to that conviction. RCW 9.94A.701(9) is clear that it is the combined periods of

. incarceration and community custody for "the crime" that must not exceed the statutory

maximum. The combined terms for "the crime" of possession of methamphetamine do

not exceed the 60-month statutory maximum for that offense.

The trial court had authority to impose the term of community custody.

Jury Demand Fee

Mr. Torres next argues that the trial court erred by imposing the jury demand fee

because there was no trial. 1 This argument also misses the mark. The fee was imposed

because Mr. Torres demanded a jury and one was summoned for his trial. The fact that

the jury did not serve is irrelevant.

RCW 10.01.160(1) reads in part that a "court may require a defendant to pay costs."

In turn, costs can include ajury fee of$250. RCW 10.01.160(2); RCW 10.46.190;

RCW 36.1 8.0 16(3)(b); State v. Hathaway, 161 Wn. App. 634, 652-53, 251 P.3d 253,

review denied, 172 Wn.2d 1021 (2011). A trial court's decision to impose court costs is

reviewed for abuse of discretion. State v. Moon, 124 Wn. App. 190, 193, 100 P.3d 357 *4 l

No. 31643-2-II¹ State v. Torres

(2004). Discretion is abused when it is exercised on untenable grounds or for untenable.

reasons. State ex rei. Carroll v. Junker, 79 Wn.2d 12, 26~ 482 P.2d 775 (1971).

The court had tenable grounds for imposing the jury demand fee. The jury had

appeared for trial before Mr. Torres decided he would no longer utilize its services. The'

expense to the county of summoning the jurors for the trial had already occurred. While

the decision to forego the trial undoubtedly saved the county some money, it had already

incurred the expenses for summonsing the jurors and paying their appearance and travel ..

costs. Since the costs had been incurred, the court had tenable grounds for imposing the

jury demand fee. There was no abuse of discretion.

The convictions and sentence are affirmed.

A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.

WE CONCUR: 40,J. ~~ rv-'\(\

Footnotes

[1] Pro se, Mr. Torres submitted a Statement of Additional Grounds that alleges his trial counsel did not represent him competently. However, the statement does not explain how the alleged defect effected his guilty plea to these charges. We therefore will not consider it further. RAP 10.10(c).