In the Matter of the Postsentence Review of: Hunter D. Rogers ( 2024 )

FILED
FEBRUARY 1, 2024
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
In the Matter of the Postsentence Review ) No. 39627-4-III
of: )
) UNPUBLISHED OPINION
HUNTER D. RODGERS. )
LAWRENCE-BERREY, A.C.J. — In this postsentence review, the Department of
Corrections (DOC) argues the trial court erroneously imposed community custody. The
State concedes error, and we accept the State’s concession.
FACTS
Hunter Rodgers pleaded guilty to attempted manslaughter in the second
degree.1 The trial court sentenced Mr. Rodgers to 15.75 months’ confinement and 18
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Attempted manslaughter is a “nonexistent crime.” In re Pers. Restraint of
Knight, 4 Wn. App. 2d 248, 252, 421 P.3d 514 (2018). One cannot attempt to negligently
or recklessly cause the death of another. However, a defendant who pleads to a lesser
offense may not later challenge the existence of that offense, as the defendant conceded
the offense’s existence to secure reduced punishment. State v. Majors, 24 Wn. App. 481,
483, 603 P.2d 1273 (1979), aff’d, 94 Wn.2d 354, 616 P.2d 1237 (1980).
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Postsentence Review of Rodgers
months’ community custody. DOC soon after concluded that Washington law does
not authorize community custody for attempted manslaughter in the second degree.
DOC unsuccessfully petitioned the trial court to correct the sentence. DOC now seeks
review by this court.
ANALYSIS
DOC argues the trial court improperly sentenced Mr. Rodgers to community
custody because the legislature did not authorize community custody for attempted
manslaughter in the second degree. We agree.
Standard of review
RCW 9.94A.585(7) authorizes DOC to seek review of legally erroneous sentences.
We review such claims of error de novo. In re Postsentence Rev. of Combs, 176 Wn.
App. 112, 116, 308 P.3d 763 (2013).
Community custody
A trial court may not impose a sentence without statutory authority. In re Pers.
Restraint of Carle, 93 Wn.2d 31, 33, 604 P.2d 1293 (1980). RCW 9.94A.701(1)-(3)
authorizes trial courts to impose community custody for serious violent offenses, violent
offenses, and crimes against persons. RCW 9.94A.030(46), (58) defines what constitutes
serious violent offenses and violent offenses. RCW 9.94A.411(2)(a) lists what
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Postsentence Review of Rodgers
constitutes crimes against persons. The offenses defined and listed in both statutes are
exhaustive, not illustrative. See In re Postsentence Rev. of Leach, 161 Wn.2d 180, 185,
163 P.3d 782 (2007) (plain language of RCW 9.94A.411 authorizes community custody
only for enumerated offenses).
While manslaughter in the second degree is a violent offense, attempted
manslaughter in the second degree is not. See RCW 9.94A.030(58)(a)(iv). Attempted
manslaughter in the second degree also is not a violent offense by virtue of being an
“attempt to commit a class A felony,” because manslaughter in the second degree
is a class B felony. See RCW 9.94A.030(58)(a)(i); RCW 9A.32.070. Although
manslaughter in the second degree also qualifies as a crime against persons, attempted
manslaughter in the second degree does not. See RCW 9.94A.411(2)(a). Neither
manslaughter in the second degree nor an attempt thereof is a serious violent offense.
See RCW 9.94A.030(46). In sum, attempted manslaughter in the second degree is not an
offense for which RCW 9.94A.701 authorizes community custody.
Because a trial court may not impose a sentence for which it lacks statutory
authority, we remand to the trial court to strike the community custody portion of Mr.
Rodgers’ sentence. Carle, 93 Wn.2d at 33.
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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:
Pennell, J. Cooney, J.
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