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State v. Duffy

The Court of Appeals of Washington, Division Three
Apr 14, 2009
149 Wn. App. 1050 (Wash. Ct. App. 2009)

Opinion

No. 27140-4-III.

April 14, 2009.

Appeal from a judgment of the Superior Court for Spokane County, No. 08-1-00526-8, Tari S. Eitzen, J., entered May 19, 2008.


Remanded by unpublished opinion per Brown, J., concurred in by Kulik, A.C.J., and Sweeney, J.


UNPUBLISHED OPINION


Timothy Edward Duffy appeals the human immunodeficiency virus (HIV) testing provision and chemical dependency finding in his sentencing for second degree murder-domestic violence. The State concedes the trial court lacked the statutory authority to order HIV testing and the record does not support the chemical dependency finding. Therefore, we remand for entry of new sentencing documents.

FACTS

Mr. Duffy pleaded guilty to one count of second degree murder-domestic violence. At sentencing, Mr. Duffy admitted he drank alcohol. When imposing his sentence, the trial court entered a finding that Mr. Duffy "has a chemical dependency that has contributed to the offense[][,]" pursuant to RCW 9.94A.607. Clerk's Papers (CP) at 33. The trial court stated, "I am making a finding of chemical dependency because if I make that finding it may be easier for to you [sic] access treatment, if you would like to." Report of Proceedings (RP) (May 19, 2008) at 47. Mr. Duffy objected to the court making this finding, arguing it was not supported by substantial evidence. The trial court responded:

[A]s I indicated, the reason did I [sic] that is there was some testimony that indicated it may have been an issue and [Mr. Duffy] is going to be incarcerated for a long time, but sometimes my understanding is [Department of Corrections] makes more programs available to people if the judge has made that finding, so that's the reason [sic] did it.

RP (May 19, 2008) at 49. The court did not order Mr. Duffy to participate in any drug or alcohol treatment, informing him, "I am not going to order any treatment unless you voluntarily want to participate in treatment in the institution." RP (May 19, 2008) at 47.

The court ordered Mr. Duffy to submit to HIV testing, stating such testing was "just for a safety precaution for you and those around you in the event that there needs to be treatment." Id. Mr. Duffy did not object to this requirement.

Mr. Duffy appealed.

ANALYSIS A. HIV Testing

The issue is whether the trial court erred in ordering Mr. Duffy to submit to HIV testing. Mr. Duffy contends for the first time on appeal that the trial court lacked statutory authority under RCW 70.24.340 to impose this order.

Sentencing errors can be raised for the first time on appeal. State v. Ford, 137 Wn.2d 472, 477, 973 P.2d 452 (1999). Whether the trial court had the authority, pursuant to RCW 70.24.340, to order HIV testing, is a question of statutory interpretation, which we review de novo. See State v. Ammons, 136 Wn.2d 453, 456, 963 P.2d 812 (1998). The State concedes the trial court erred in ordering Mr. Duffy to submit to HIV testing. We accept the concession.

RCW 70.24.340 requires HIV testing for persons convicted of specified sexual offenses, prostitution offenses, or drug offenses "if the court determines at the time of conviction that the related drug offense is one associated with the use of hypodermic needles." RCW 70.24.340(1). Mr. Duffy was convicted of second degree murder-domestic violence. RCW 70.24.340 does not require HIV testing for this offense. In sum, the trial court erred in ordering Mr. Duffy to submit to HIV testing.

B. Chemical Dependency Finding

The issue is whether the trial court erred in entering a finding of chemical dependency, pursuant to RCW 9.94A.607. Mr. Duffy contends the record does not support such a finding.

Mr. Duffy's challenge asks us to review a factual determination made by the trial court. We review factual findings made by a sentencing court for substantial evidence. See State v. Grewe, 117 Wn.2d 211, 218, 813 P.2d 1238 (1991) (reviewing whether factual determinations support the imposition of an exceptional sentence); State v. Motter, 139 Wn. App. 797, 801, 162 P.3d 1190 (2007) (reviewing whether factual determinations support the imposition of a community custody condition), review denied, 163 Wn.2d 1025 (2008).

"RCW 9.94A.607(1) . . . authorizes the court to impose certain sentence conditions if it finds the offender has a chemical dependency that contributed to the offense." In re Sentences of Jones, 129 Wn. App. 626, 631, 120 P.3d 84 (2005) (emphasis added). Here, when imposing his sentence, the trial court entered a finding that Mr. Duffy "has a chemical dependency that has contributed to the offense[]." CP at 33. However, this finding is not supported by substantial evidence. Although Mr. Duffy admitted, at sentencing, that he drank alcohol, nothing in the record shows he drank alcohol prior to or during the commission of the offense. Cf. State v. Powell, 139 Wn. App. 808, 819-20, 162 P.3d 1180 (2007), review granted, 163 Wn.2d 1017, 180 P.3d 1292 (2008) (concluded the record supported a community custody condition requiring drug treatment, where the record showed the defendant consumed drugs prior to committing the offense, and both parties requested the condition). The trial court erred in entering a finding of chemical dependency pursuant to RCW 9.94A.607.

The State argues this issue is not ripe for review, because Mr. Duffy has not experienced any prejudice from the chemical dependency finding. The State cites no authority in support of this argument. In the sentencing context, the ripeness doctrine is typically applied to constitutional challenges to community custody conditions. See, e.g., State v. Autrey, 136 Wn. App. 460, 470-71, 150 P.3d 580 (2006) (constitutionality of community custody condition allowing compliance monitoring of the defendant not ripe for review, because no search had occurred); State v. Zimmer, 146 Wn. App. 405, 414-15, 190 P.3d 121 (2008) (defendant's vagueness challenge to a community custody condition prohibiting possession of drug paraphernalia not ripe for review, because the condition had not been applied); State v. Bahl, 164 Wn.2d 739, 745-52, 193 P.3d 678 (2008) (defendant's vagueness challenges to conditions of community custody were ripe for review). Mr. Duffy does not raise a constitutional challenge, but instead, asks us to review a factual finding. The ripeness doctrine does not apply.

C. Pro Se Additional Grounds for Review

In his statement of additional grounds for review, Mr. Duffy contends he has not been able to confer with his attorney due to a state-imposed lockdown, and despite his requests, he has not been allowed phone access. Mr. Duffy's underlying concerns deal with alleged facts outside our record that must be presented in a personal restraint petition. See State v. McFarland, 127 Wn.2d 322, 338 n. 5, 899 P.2d 1251 (1995).

Further, Mr. Duffy states, "I don't know where I stand." Statement of Additional Grounds. Because this statement does not identify an error in the proceedings below, we will not consider it. See RAP 10.10(c) (stating "the appellate court will not consider a defendant/appellant's statement of additional grounds for review if it does not inform the court of the nature and occurrence of alleged errors.").

Remanded for action consistent with this opinion.

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.

SWEENEY, J., and KULIK, A.C.J., concur.


Summaries of

State v. Duffy

The Court of Appeals of Washington, Division Three
Apr 14, 2009
149 Wn. App. 1050 (Wash. Ct. App. 2009)
Case details for

State v. Duffy

Case Details

Full title:THE STATE OF WASHINGTON, Respondent, v. TIMOTHY EDWARD DUFFY, Appellant

Court:The Court of Appeals of Washington, Division Three

Date published: Apr 14, 2009

Citations

149 Wn. App. 1050 (Wash. Ct. App. 2009)
149 Wash. App. 1050