State Of Washington, V Tonya Renee Knox

Filed
Washington State
Court of Appeals
Division Two
January 29, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 50422-7-II
Respondent,
v.
TONYA RENEE KNOX, UNPUBLISHED OPINION
Appellant.
WORSWICK, J. — A jury found Tonya Knox guilty of five counts, four of which were
felonies, and one a misdemeanor. At sentencing, the trial court imposed nine months of total
confinement on the felonies. Regarding the misdemeanor, the trial court imposed a 364-day
sentence, consisting of 30 days in confinement and 334 days suspended on the condition that
Knox complete a 24-month period of probation. On appeal, Knox argues that because she was
sentenced to nine months on the felonies, the court could suspend only 90 days of her
misdemeanor sentence. She appeals her sentence, arguing that the trial court is required to
amend her sentence.
Knox does not demonstrate that she is entitled to the relief she seeks. Accordingly, we
affirm.
FACTS
Knox was convicted of four felonies and one gross misdemeanor, the specific facts of
which are not relevant here. She was convicted of one count of second degree burglary1 (count
1
RCW 9A.52.030 (providing that second degree burglary is a felony).
No. 50422-7-II
1), two counts of second degree identity theft2 (counts 2 and 3), one count of forgery3 (count 4),
and one count of third degree theft4 (count 5). The trial court imposed the following sentence:
nine months on count 1; eight months on count 2; eight months on count 3; six months on count
4; and 364 days on count 5, with 334 days of confinement suspended on the condition Knox
complete 24 months of probation and comply with probationary terms. Knox appeals her
sentence.
ANALYSIS
Knox’s appeal concerns only the suspended sentence on count 5. She argues that because
the term of confinement on count 5 runs concurrently with the nine-month term of confinement
on counts 1, 2, 3 and 4, the length of her suspended sentence must be reduced from 334 days to
90 days to reflect the total time served. We disagree.
A trial court’s authority to suspend a sentence is limited to the manner provided by the
legislature. State v. Rice, 180 Wash. App. 308, 312-13, 320 P.3d 723 (2014); see RCW 9.95.210.
“[I]n granting probation, the superior court may suspend the imposition or the execution of the
sentence and may direct that the suspension may continue upon such conditions and for such
time as it shall designate, not exceeding the maximum term of sentence or two years, whichever
is longer.” RCW 9.95.210(1)(a). Whether a sentencing court imposed an unauthorized sentence
2
RCW 9.35.020(1), (3) (providing that identity theft is a felony).
3
RCW 9A.60.020(1)(b) (providing that forgery is a felony).
4
RCW 9A.56.050 (providing that theft in the third degree is a gross misdemeanor).
2
No. 50422-7-II
is a question of law that we review de novo. State v. Murray, 118 Wash. App. 518, 521, 77 P.3d
1188 (2003).
On count 5, a gross misdemeanor, the trial court imposed a 364-day sentence, the
statutory maximum for gross misdemeanor. RCW 9A.20.021(2). Of those 364 days, the trial
court ordered 30 days to be served in confinement, and suspended 334 days on the condition that
Knox complete a 24-month probation. But, the trial court ordered that the sentence—30 days
with 334 days suspended for 24 months—be served concurrently with the nine-month term of
confinement for counts 1, 2, 3 and 4. Knox relies on State v. Gailus, 136 Wash. App. 191, 147
P.3d 1300 (2006), overruled on other grounds by State v. Sutherby, 165 Wash. 2d 870, 883 n.5, 204
P.3d 916 (2009). In Gailus, the trial court sentenced the defendant to a total of 12 months for his
10 felony convictions, and a maximum one year for each of his two gross misdemeanor
convictions. 136 Wash. App. at 200. “The trial court ordered that the gross misdemeanor
sentences run consecutively to each other and consecutively to his felony convictions.” Gailus,
136 Wash. App. at 200. It then suspended the two 12 month gross misdemeanor sentences on the
condition that the defendant serve 24 months in custody and complete 48 months of probation.
Gailus, 136 Wash. App. at 201.
Because the trial court’s authority to impose probation was conditioned on suspended
time and no time had actually been suspended, the Gailus court vacated the defendant’s
probation. Gailus, 136 Wash. App. at 201. Gailus held that a sentencing court that orders a
defendant to serve the maximum sentence for his conviction does not suspend any jail time, and
a sentencing court that does not suspend jail time cannot order probation. Gailus, 136 Wash. App.
at 201.
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No. 50422-7-II
Gailus is not applicable here. Here, unlike in Gailus, the trial court did not suspend time
on the condition that Knox serve the maximum sentence. Here, the trial court suspended jail
time and imposed the term of confinement and probation period on Count 5 to run concurrently
with the term of confinement on counts 1, 2, 3 and 4. Knox has not demonstrated that the
sentence is improper. Accordingly, we affirm the trial court.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Worswick, P.J.
We concur:
Melnick, J.
Sutton, J.
4