Opinion
No. 65302-4-I.
Filed: March 7, 2011.
Appeal from a judgment of the Superior Court for King County, No. 05-1-07847-9, Julie A. Spector, J., entered April 23, 2010.
Reversed and remanded by unpublished opinion per Dwyer, C.J., concurred in by Cox and Leach, JJ.
Under certain circumstances, a sentencing court may order a defendant to submit to a mental status evaluation and to comply with any recommended treatment. Here, however, the trial court ordered Kero Giir to undergo a mental health evaluation without satisfying the applicable statutory requirement that the order be based on a presentence report prepared by the Department of Corrections (DOC). The trial court exceeded its authority and erred when it imposed this condition. Accordingly, we reverse and remand.
I
In 2005, Kero Giir murdered his girlfriend and injured another woman during the same incident. The State charged him with murder in the first degree and assault in the third degree. In August 2007, Giir pleaded guilty to both charges. The trial court sentenced him to 300 months for the charge of murder in the first degree and 8 months for the charge of assault in the third degree. The trial court also ordered Giir to undergo mental health evaluation and treatment.
Giir appealed to this court, contending both that his counsel was ineffective for failing to investigate Giir's competency to enter the guilty plea and that the trial court erred by imposing mental health evaluation and treatment as a condition of community custody. In an unpublished opinion, we rejected Giir's ineffective assistance of counsel claim, but we held that the trial court had erred by imposing mental health evaluation and treatment as a condition because the statutorily-required findings had not been made. State v. Giir, noted at 153 Wn. App. 1015, 2009 WL 4024840, at *1. We remanded for further proceedings related to the imposition of the community custody condition. Giir, 2009 WL 4024840, at *5.
At the resentencing hearing, Giir asserted that the trial court could not impose mental health evaluation and treatment as a condition of community custody because the DOC had not completed a presentence report. The trial court determined that, while there may not have been a formal presentence report, the mental health reports and evaluations submitted by the parties' experts provided a basis to make the requisite findings. Report of Proceedings (April 23, 2010) at 13-14. The trial court entered the necessary findings that "the defendant is a mentally ill person as defined in RCW 71.24.025 and 71.05 that this condition is likely to have influenced the underlying offense." Clerk's Papers at 88.
Giir appeals.
II
Girr contends that the trial court again erred by imposing mental health evaluation and treatment as a condition of community custody because the trial court's order was not based on the statutorily-required presentence report. The State contends that Giir waived this claim of error because he failed to raise the issue in his first appeal.
The controlling rule is RAP 2.5, which provides in relevant part:
If a trial court decision is otherwise properly before the appellate court, the appellate court may at the instance of a party review and determine the propriety of a decision of the trial court even though a similar decision was not disputed in an earlier review of the same case.
RAP 2.5(c)(1). Our Supreme Court has explained that this rule allows an issue not raised in an earlier appeal to become "an appealable question" where "the trial court, on remand, exercised its independent judgment, reviewed and ruled again on such issue." State v. Barberio, 121 Wn.2d 48, 50, 846 P.2d 519 (1993). Where the "trial court's duty on remand is not merely ministerial, the trial court must exercise discretion." State v. Rodriguez Ramos, No. 84891-2, slip op. at 3 (Wash. Feb. 10, 2011).
Here, in Giir's first appeal, we held that the mental health-related condition of community custody was improperly imposed because the trial court had not made the statutorily-required findings. The absence of the requisite factual findings was the only issue raised by Giir with respect to the community custody conditions. We remanded "for the trial court to strike the conditions or make the findings required by RCW 9.94A.505(9)." Giir, 2009 WL 4024840, at *5.
Thus, because the trial court had the discretion to impose conditions of community custody on remand, the trial court's duty was not merely ministerial. See Rodriguez Ramos, No. 84891-2, slip op. at 3. The trial court then exercised its discretion in determining that mental health evaluation and treatment should, once again, be imposed. The trial court thereby "exercised its independent judgment, reviewed and ruled again on such issue." Barberio, 121 Wn.2d at 50. The propriety of imposing the condition of community custody was thus made "an appealable question." Barberio, 121 Wn.2d at 50. Giir did not waive this claim of error.
III
We now turn to the substantive question before us. Girr contends that the trial court erred by imposing the mental health-related condition of community custody because the trial court's order was not based on a statutorily-required presentence report. We agree.
A court may impose only a sentence that is authorized by statute. State v. Barnett, 139 Wn.2d 462, 464, 987 P.2d 626 (1999). Pursuant to the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, in effect at the time that Giir committed his crimes, the trial court was authorized to order a defendant whose sentence included a term of community custody "to undergo a mental status evaluation and to participate in available outpatient mental health treatment." Former RCW 9.94A.505(9) (2004), recodified as RCW 9.94B.080 (Laws of 2008, ch. 231, § 53). However, former RCW 9.94A.505(9) authorizes the imposition of such a condition only where the trial court follows certain procedures. State v. Brooks, 142 Wn. App. 842, 851, 176 P.3d 549 (2008).
Notwithstanding that the heading of chapter 9.94B RCW states that the chapter applies to crimes committed prior to July 1, 2000, RCW 9.94B.080, which authorizes the trial court to order an offender to undergo mental status evaluation and mental health treatment, is applicable to crimes committed after 2000. See Laws of 2008, ch. 231, § 55.
Specifically, the trial court must find "that reasonable grounds exist to believe that the offender is a mentally ill person as defined in RCW 71.24.025, and that this condition is likely to have influenced the offense." Former RCW 9.94A.505(9). Further, "[a]n order requiring mental status evaluation or treatment must be based on a presentence report and, if applicable, mental status evaluations that have been filed with the court to determine the offender's competency or eligibility for a defense of insanity." Former RCW 9.94A.505(9) (emphasis added).
A trial court may not, therefore, order an offender to participate in a mental health evaluation and any recommended treatment as a condition of community custody "unless the court finds, based on a presentence report and any applicable mental status evaluations, that the offender suffers from a mental illness which influenced the crime." State v. Jones, 118 Wn. App. 199, 202, 76 P.3d 258 (2003); accord State v. Lopez, 142 Wn. App. 341, 353-54, 174 P.3d 1216 (2007). Former RCW 9.94A.505(9) does not itself state any further requirements for the presentence report, such as who can create the presentence report or what it must contain. However, another statutory provision plainly indicates that the required presentence report must be prepared by the DOC:
"An act must be construed as a whole, considering all provisions in relation to each other and, if possible, harmonizing all to insure proper construction of each provision." In re Pers. Restraint of Piercy, 101 Wn.2d 490, 492, 681 P.2d 223 (1984).
If the court determines that the defendant may be a mentally ill person as defined in RCW 71.24.025 , although the defendant has not established that at the time of the crime he or she lacked the capacity to commit the crime, was incompetent to commit the crime, or was insane at the time of the crime, the court shall order the department to complete a presentence report before imposing a sentence.
The term "department" means the Department of Corrections. Former RCW 9.94A.030(17) (2004).
Former RCW 9.94A.500(1) (2004) (emphasis added). Moreover, the legislature indicated that it was authorizing "[t]he courts to request presentence reports from the department of corrections when a relationship between mental illness and criminal behavior is suspected." Laws of 1998, ch. 260, § 1 (emphasis added).
The term "presentence report" is not ambiguous in the context of former RCW 9.94A.505(9). Cf. State v. Mendoza, 165 Wn.2d 913, 924, 205 P.3d 113 (2009) (stating that "the meaning of the term 'presentence report' appears ambiguous" in the context of RCW 9.94A.530(2), which provides that a defendant's acknowledgement to criminal history "includes not objecting to information stated in the presentence reports"). Where the trial court determines that mental health evaluation and treatment may be a desired condition of community custody, the trial court must order the DOC to complete a presentence report before imposing such a sentence. Former RCW 9.94A.500(1). When the trial court then imposes such a sentence, the trial court's order imposing this condition of community custody must be based on the presentence report prepared by the DOC. The statute is unambiguous.
While it is apparent from the record herein that mental health evaluation and treatment may be desirable for Giir, the record does not establish compliance with the required statutory procedures. Specifically, the trial court imposed mental health evaluation and treatment as a condition of community custody without the benefit of a presentence report prepared by the DOC. The mental health evaluations prepared by the parties' experts do not fully satisfy the statutory requirement that "[a]n order requiring mental status evaluation or treatment must be based on a presentence report and, if applicable, mental status evaluations." Former RCW 9.94A.505(9). The legislature required that particular procedures must necessarily be followed in order for such conditions to be imposed. The trial court thus imposed a sentence that was not authorized by statute. See Barnett, 139 Wn.2d at 464.
The State urges us to find that this error was harmless. Even assuming that the harmless error standard would apply in a situation such as this and that the error was harmless as to the parties to this appeal, we could not find the error to be harmless. This is because the legislature has provided the DOC with an interest in preventing incorrectly-imposed sentences by creating a statutory procedure for the DOC to challenge and correct erroneous sentences in court. RCW 9.94A.585(7), formerly RCW 9.94A.210(7). Where a sentencing condition is imposed that is not authorized by the SRA, the DOC may petition the court for correction of the erroneous sentence. See, e.g., In re Postsentence of Childers, 135 Wn. App. 37, 143 P.3d 831 (2006); In re Sentence of Jones, 129 Wn. App. 626, 120 P.3d 84 (2005); In re Sentence of Chatman, 59 Wn. App. 258, 796 P.2d 755 (1990). Such a procedure is fitting given that one purpose of the SRA is to "[m]ake frugal use of the state's and local governments' resources." RCW 9.94A.010(6). We cannot find the erroneous sentence here to be harmless as to the DOC, which is not a party to this appeal and which was not given an opportunity to provide input into Giir's suitability for mental health evaluation and treatment.
Moreover, our legislature has authorized the trial court to sentence a defendant to mental health evaluation and treatment as a condition of community custody, but it determined that this particular condition of community custody may be imposed only where specific procedural requirements have been met. Specifically, "the court shall order the department to complete a presentence report before imposing a sentence," former RCW 9.94A.500(1), and "[a]n order requiring mental status evaluation or treatment must be based on a presentence report." Former RCW 9.94A.505(9). We cannot say that the absence of a presentence report, which our legislature has concluded is a necessary prerequisite to imposing this sentencing condition, is harmless.
Because the trial court did not order the statutorily-required presentence report prepared by the DOC and did not rely on such a report in ordering Giir to undergo mental status evaluation and treatment, we reverse this condition of community custody and remand.
We Concur: