STATE v. SKENADORE, 26402-1-II (Wash.App. 6-1-2001)

ARMSTRONG, C.J.

A jury convicted inmate Neil Skenandore of second degree assault and custodial assault. We reversed the second degree assault conviction and remanded the custodial assault conviction for resentencing.

The judge sentenced Skenandore within the standard range. Skenandore challenges the sentence on several grounds, including the judge's failure to consider alternative confinement. In his consolidated Personal Restraint Petition, he claims that the prosecutor denied him a lesser-included offense by initially charging him with second degree assault. We affirm.

In 1997, while an inmate at the Clallam Bay Corrections Center, Neil Skenandore assaulted a corrections officer. A jury convicted him of second degree assault and custodial assault. State v. Skenandore, 99 Wn. App. 494, 498, 994 P.2d 291 (2000). On appeal, we reversed the second degree assault conviction but affirmed the custodial assault conviction and remanded for resentencing. Skenandore, 99 Wn. App. at 496.

At the sentencing hearing for the custodial assault conviction, the Clallam County Prosecuting Attorney recommended a sentence of 12 months. Based on Skenandore's criminal history and the crime's seriousness level, the standard sentence range was 4 to 12 months. Skenandore's attorney suggested alternative confinement. The sentencing judge declined to impose alternative confinement and sentenced Skenandore to 10 months' confinement and 12 months' community supervision. Skenandore will serve the 10-month confinement consecutively to his current sentence for first degree murder.

We consolidated Skenandore's appeal and the Personal Restraint Petition (PRP).

Skenandore argues that the trial court abused its discretion in not imposing an alternative sentence. He claims he `met the criteria for an alternative sentence, pursuant to [RCW 9.94A.380].' Br. of App. at 7. This statute allows the sentencing court to order an alternative to confinement for sentences of one year or less. But the statute is clearly discretionary. It does not require the sentencing judge to order alternative confinement. Moreover, RCW 9.94A.190(3) states that a felon who is sentenced to a term of one year or less, and who is incarcerated in a state facility on another felony conviction, shall serve all sentences in a state facility. Skenandore is currently incarcerated for a 1979 first degree murder conviction. As a result, he must serve the custodial assault sentence, although of a term of less than one year, in a state facility.

The sentencing judge did not err in declining to impose an alternative sentence.

Skenandore also claims that the sentencing court erred by not writing on the sentencing form why it declined to impose alternative confinement.

RCW 9.94A.380 states: `For sentences of nonviolent offenders for one year or less, the court shall consider and give priority to available alternatives to total confinement and shall state its reasons in writing on the judgment and sentence form if the alternatives are not used.' Skenandore is correct that the sentencing judge did not comply with RCW 9.94A.380, requiring him to write on the sentencing form his reasons for not imposing an alternative to confinement. But this error did not prejudice Skenandore, so remand is unnecessary. See State v. Hixson, 94 Wn. App. 862, 866, 973 P.2d 496 (1999); State v. Gonzales, 90 Wn. App. 852, 855, 954 P.2d 360 (1998) (technical violation of Sentencing Reform Act that does not prejudice defendant does not require remand). Although RCW 9.94A.380 ordinarily gives a sentencing judge the discretion to order alternative confinement, here the judge lacked that discretion because Skenandore was already incarcerated for murder and must serve any additional terms in a state facility. See RCW 9.94A.190(3). If remanded, the sentencing judge would still lack the discretion to order alternative confinement. The judge's failure to write his reasons on the sentence form is harmless error.

Skenandore also contends that the sentencing court `relied on findings that were not part of the trial court record' when imposing its sentence. Br. of App. at 10. When asked to consider alternative confinement, the sentencing judge declined, stating, `I listened to the trial and I think [the assault] was more serious than has been indicated here and could have been more serious. . . .' RP at 4. Skenandore argues that because we reversed the second degree assault conviction, the sentencing judge should not have considered the seriousness of the assault when imposing a sentence. This claim has no merit. In State v. Mail, 121 Wn.2d 707, 711, 854 P.2d 1042 (1993), a defendant challenged the sources of information the sentencing judge used to impose a standard sentence. Our Supreme Court concluded that `the sentencing court must consider information presented pursuant to RCW 9.94A.110, but may also consider other sources of information in arriving at a sentence within the standard range.' Mail, 121 Wn.2d at 711. Here, the sentencing judge did not err by considering the seriousness of Skenandore's assault.

Finally, Skenandore argues that the sentencing judge erred by imposing the maximum allowable sentence, by not citing substantial and compelling reasons for the sentence, and by deferring to the prosecutor's recommendation. He contends that the sentencing judge denied him equal protection since the record does not support the finding of an aggravating factor. And he argues that the sentence is clearly disproportionate to the seriousness of his offense.

These claims have no merit. The sentence is within the standard range. `A sentence within the standard range for the offense shall not be appealed.' RCW 9.94A.210(1). The 10-month sentence is not even, as Skenandore claims, the maximum allowable. Because the sentence is within the standard range, the sentencing judge need not give substantial and compelling reasons to support it. See RCW 9.94A.120(2). Skenandore also claims that the prosecutor abused its discretion by initially charging him with second degree assault. But this court reversed the second degree assault conviction, making this claim moot.

Skenandore's PRP states no valid grounds for relief. He asserts that he `was denied a leaser [sic] included offense when initially charged with [2nd] degree assault' because `RCW 10.61.006 requires that a leaser [sic] included offense be presented to the jury for consideration upon their deliberations on the case before them.' PRP at 4. He misunderstands RCW 10.61.006. It states, `In all other cases [other than offenses consisting of different degrees] the defendant may be found guilty of an offense the commission of which is necessarily included within that with which he is charged in the indictment or information.' Skenandore apparently misinterprets the statute as requiring the State to submit to the jury a lesser-included offense in all cases. He assumes that if the prosecutor had initially charged him only with custodial assault, the prosecutor would have been required to submit to the jury a lesser-included offense (lesser than custodial assault). This argument is without merit. Skenandore was entitled to a lesser-included offense instruction to the jury only if each of the elements of the lesser offense was a necessary element of the offense charged and the evidence supported an inference that he committed only the lesser crime. State v. Brown, 127 Wn.2d 749, 754, 903 P.2d 459 (1995). Skenandore makes no argument that his case meets this test. Moreover, he admits that the evidence supported a finding that he committed custodial assault. Thus, the second part of the test fails.

Finally, Skenandore repeats his assertions related to sentencing. We have addressed these claims above.

We affirm the sentence and dismiss the petition.

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 pursuant to RCW 2.06.040, it is so ordered.

WE CONCUR: HOUGHTON, J., HUNT, J.