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Washington Supreme Court: Nonexceptional Consecutive Terms of ‘Community Custody’ May Not Exceed Aggregate Term of 24 Months

by Sam Rutherford

TheSupreme Court of Washington held that the terms “community custody” and “community supervision” are synonymous within the meaning of the second sentence of RCW 9.94A.589(5) for offenses that occurred after July 1, 2000, and that trial courts may not impose consecutive terms of community custody that exceed an aggregate of 24 months as part of a standard range, nonexceptional sentence.


Steven Buck was convicted of felony failure to register as a sex offender in 2016. He was sentenced to a prison term followed by 36 months of community custody. Less than a month after his release from prison and transfer to community custody in 2020, Buck absconded. The State charged Buck with felony failure to register as a sex offender and escape from community custody. A warrant was issued for his arrest. Buck’s term of community custody tolled while he was on warrant status.

In January 2021, Buck was apprehended on the warrants and confined in jail. His case proceeded to jury trial, and Buck was convicted as charged. The trial court imposed a term of imprisonment followed by another 36 months of community custody. Because Buck’s 36 months of community custody from the 2016 conviction remained tolled and unexpired while he was on warrant status and during his pretrial confinement, the trial court ordered Buck to serve the 36 months of community custody for the 2021 conviction consecutively to the 36 months of community custody for the 2016 conviction. This resulted in an aggregate term of community custody of nearly 72 months. The trial court did not impose an exceptional sentence to reach this result.

Buck appealed the aggregate 72-month term of community custody to the Washington Court of Appeals, arguing that certain provisions of the Sentencing Reform Act of 1981 (“SRA”), RCW 9.94A, requires that the two 36 month community custody terms be imposed concurrently, not consecutively, unless the trial court first imposed an exceptional sentence consistent with the strict requirements of the SRA and the Sixth Amendment as interpreted by Blakely v. Washington, 542 U.S. 296 (2004). The State agreed with Buck that the consecutive terms of community custody should be vacated, and the case remanded for resentencing. The Court of Appeals, however, rejected the State’s concession and, in a published opinion, held that a plain reading of relevant portions of the SRA authorized the trial court to impose the consecutive 36-month terms of community custody without resorting to an exceptional sentence. Buck sought and was granted discretionary review in the Washington Supreme Court.


The Court began its analysis by noting that resolution of Buck’s appeal turned on interpretation of a statutory provision within the SRA and its application to the facts of his case, questions which appellate courts review de novo. The statutory provision at issue provides: “Except for exceptional sentences as authorized under RCW 9.94A.535, if two or more sentences that run consecutively include periods of community supervision, the aggregate of the community supervision period shall not exceed twenty-four months.” RCW 9.94A.589(5) (emphasis added). Buck and the State both argued that Buck’s consecutive 36-month terms of community custody violate the plain language of this statute. The Court of Appeal, however, rejected this argument holding that RCW 9.94A589(5) doesnot limit the trial court’s sentencing authority because Buck was sentenced to consecutive 36-month terms of “community custody” not “community supervision.”

To resolve this dispute, the Court turned to “the cannons of statutory interpretation” to determine “whether community supervision is in fact synonymous with community custody[.]” The Court stated that the “fundamental objective is to ascertain and carry out the Legislature’s intent, and if the statute’s meaning is plain on its face, then the court must give effect to that plain meaning as an expression of legislative intent.” Dep’t of Ecology v. Campbell & Gwinn, LLC, 43 P.3d 4 (Wash. 2002). “To determine the ‘plain meaning’ of a statute, we look to the text, the context of the statute, related statutory provisions, and the statutory scheme as a whole.” State v. Valdiglesias LaValle, 535 P.3d 856 (Wash. 2023).

Because community supervision is not defined within the SRA, the Court relied on the dictionary definition of that term, the definition from a related statute, and legislative history to determine the plain meaning of RCW 9.94A.589(5). Webster’s Third New International Dictionary defines “community” as “society at large” and “supervision” as the “act, process, or occupation of supervising.” As a result, the Court determined that “community supervision” within RCW 9.94A.589(5) is any “act, process, or occupation of supervising” persons in “society at large.” Similarly, the SRA defines “community custody” as the “portion of an offender’s sentence … served in the community subject to controls placed on the offender’s movement and activities by the department.” RCW 9.94A.030(5). Thus, the Court concluded that these definitions dictate that “community supervision” is synonymous with “community custody.”

The Court’s inquiry, however, did not end there because a related statute, RCW 9.94B.020(2), also defines community supervision as “a period of time during which a convicted offender is subject to crime-related prohibitions and other sentence conditions imposed by a court….” Chapter 9.94B RCW is applicable only to sentences for crimes committed before July 1, 2000, meaning that this definition does not apply to the consecutive community custody sentence Buck received under RCW 9.94A.589(5) because his crimes occurred in 2016 and 2021. However, another subsection of Chapter 9.94B RCW specifically states that it “supplements chapter 9.94A RCW and should be read in conjunction with that chapter.” RCW 9.94B.010(2). According to the Court, this creates an ambiguity whether the term “community supervision” as used in RCW 9.94A.589(5) applies to the consecutive 36-month terms of community custody Buck received.

The Court resolved this ambiguity by reviewing the legislative history of RCW 9.94A.589(5) specifically and the SRA generally. The SRA was enacted to restrict a trial court’s sentencing discretion to eliminate disparate sentences for the same crime. As part of this reform, the Legislature abolished the old parole system and left in its place a patchwork of post-release supervision programs that were difficult to administrate. These programs included community supervision. RCW 9.94A.589(5) was enacted as part of the SRA and specifically prohibited consecutive terms of community supervision that exceeded an aggregate of 24 months.

Then, in 1999, the Legislature made community custody the sole form of post-release supervision for crimes committed on or after July 1, 2000. It moved all the statutory provisions related to other forms of post-release supervision to a newly created chapter, 9.94B RCW, but it failed to change the wording in RCW 9.94A.589(5) from “community supervision” to “community custody.” However, the Final Legislative Report, 56th Leg., (Wash. 1999) clearly states that “[c]ommunity supervision for sex offenses, violent offenses, crimes against persons, and felony drug offenses committed after July 1, 2000, is community custody.” The Court therefore determined that the legislative history unequivocally demonstrates that the terms “community supervision” and “community custody” are synonymous.


Turning to the present case, the Court ruled that “RCW 9.94A.589(5) unambiguously places a limit on all nonexceptional consecutive periods of community supervision. It does not contain a modifier limiting its mandate to some types of nonexceptional consecutive periods of community supervision.” And, of course, community supervision and community custody are one in the same for purposes of RCW 9.94A.589(5).

The Court explained that Buck’s sentence was governed by three related statutory provisions—RCW 9.94A.701(1)(a), which requires the court to impose a 36-month term of community custody for his 2021 sex offense of failure to register; RCW 9.94A.589(2)(a), which permits the trial court to impose the 2021 36-month term of community custody consecutively to the unexpired 2016 36-month term of community custody; and RCW 9.94A.589(5), which confines the trial court’s discretion to order consecutive terms of community custody to no more than an aggregate of 24 months without first imposing an exceptional sentence. Thus, the Court held that “the trial court erred when it imposed its 36 month term of community custody in 2021 consecutively to Buck’s outstanding 36 month term of community custody from his 2016 sentence, resulting in 72 months of community custody.”

Accordingly, the Court reversed the Court of Appeals and vacated and remanded for resentencing only the community custody portion of Buck’s sentence. See: State v. Buck, 544 P.3d 506 (Wash. 2024) (en banc).  

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