State v. Roberts10/26/1999
rial strategy.
There is no question that instructions on second degree assault would have been required if Mr. Roberts requested them. See RCW 10.61.010. However, on the record it is impossible to conclude Mr. Earl's decision was deficient when it appears to be the course Mr. Roberts chose for himself. He has failed to establish trial counsel was ineffective.
Finally, we consider whether the court erred by amending the sentence. Mr. Roberts was sentenced to 50 months in prison on April 8, 1996. On April 22, a state corrections official notified the prosecutor's office that the minimum sentence was seven years (84 months). The prosecutor then moved to amend the sentence on June 19, 1996. The court amended the sentence to 84 months on July 22, 1996.
The parties agree the minimum sentence for Mr. Roberts should have been 84 months. See RCW 9.94A.120(4) ("An offender convicted of the crime of assault in the first degree or assault of a child in the first degree where the offender used force or means likely to result in death or intended to kill the victim shall be sentenced to a term of total confinement not less than five years."); RCW 9.94A.310(4)(a) (two-year enhancement for use of a deadly weapon); RCW 9.94A.310(4)(e) (deadly weapon enhancement to run consecutively to other sentencing enhancements); see also State v. Fuller, 89 Wn. App. 136, 141-42, 947 P.2d 1281 (1997) (exceptional sentence may not be used to deviate from deadly weapon enhancement). The issue here is whether the sentencing court erred in altering its original judgment and sentence to correct the mistake of law.
The dispositive authority is State v. Smissaert, 103 Wn.2d 636, 694 P.2d 654 (1985), in which the Supreme Court observed:
In the past, this court has required resentencing to correct invalid sentences. See, e.g., Brooks v. Rhay, 92 Wn.2d 876, 602 P.2d 356 (1979); State v. Pringle, 83 Wn.2d 188, 517 P.2d 192 (1973); Dill v. Cranor, 39 Wn.2d 444, 235 P.2d 1006 (1951). Similarly, we have recognized the trial court's power and duty to correct an erroneous sentence. State v. Loux, 69 Wn.2d 855, 420 P.2d 693 (1966), cert. denied, 386 U.S. 997, 18 L. Ed. 2d 347, 87 S. Ct. 1319 (1967); State ex rel. Sharf v. Municipal Court, 56 Wn.2d 589, 354 P.2d 692 (1960); State v. Williams, 51 Wn.2d 182, 316 P.2d 913 (1957); McNutt v. Delmore, 47 Wn.2d 563, 288 P.2d 848 (1955), cert. denied, 350 U.S. 1002, 100 L. Ed. 866, 76 S. Ct. 550 (1956). In fact, sentencing provisions outside the authority of the trial court are "illegal" or "invalid." State v. Luke, 42 Wn.2d 260, 262, 254 P.2d 718, cert. denied, 345 U.S. 1000 (1953); Pringle, at 193-94. In Pringle, we remanded a case for resentencing, noting that it was not "for the purpose of increasing a valid sentence, but rather . . . for the correction of an erroneous and invalid sentence." Pringle, at 194. Id. at 639.
This language indicates a sentencing court always has authority to correct an "illegal" or "invalid" sentence. The superior court here did not err in correcting the sentence.
The conviction and amended 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.
Kato, J.
WE CONCUR:
Sweeney, A.C.J.
Brown, J.
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