Opinion
66529-4-I
06-11-2012
STATE OF WASHINGTON, Respondent, v. DONNIE JAMAAL GREER, Appellant.
UNPUBLISHED
Cox, J.
Before ordering a defendant to participate in crime-related substance abuse treatment as a condition of community custody, a trial court must expressly find that the offender has a chemical dependency that has contributed to the offense. Because the trial court did not make that required finding here, the community custody condition requiring Donnie Greer to obtain a substance abuse evaluation cannot stand on this record. We vacate that portion of the sentence and remand for further proceedings.
Greer was charged by amended information with one count each of possession of cocaine, possession of 40 grams or less of marijuana, driving while under the influence (DUI), and reckless driving. A jury convicted him of both possession counts and reckless driving, but acquitted him on the DUI charge. The court imposed 30 days of electronic home detention and one year of community custody. As a condition of his community custody, the trial court ordered Greer to obtain a substance abuse evaluation and follow all treatment recommendations. The trial court did not make a finding that Greer "has a chemical dependency that has contributed to his or her offense, " as required by statute.
Greer appeals.
CONDITION OF COMMUNITY CUSTODY
Greer argues that the trial court erred in imposing a substance abuse evaluation as a condition of his community custody. Because the trial court did not find that a chemical dependency contributed to his offenses, we agree.
Although Greer did not object to the community custody condition below, because he contends that the court lacked statutory authority to impose the condition, we may address his claim for the first time on appeal. We review whether the trial court had statutory authority to impose community custody conditions de novo.
State v. Jones, 118 Wn.App. 199, 204, 76 P.3d 258 (2003) (sentence imposed without statutory authority can be raised for the first time on appeal).
State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007).
RCW 9.94A.703(3)(c) authorizes a trial court to order crime-related treatment or counseling services as a condition of community placement. Under RCW 9.94A.607(1) the court may require an offender to participate in chemical dependency treatment if it finds that the offender has a chemical dependency that has contributed to his or her offense:
Where the court finds that the offender has a chemical dependency that has contributed to his or her offense, the court may, as a condition of the sentence and subject to available resources, order the offender to participate in rehabilitative programs or otherwise to perform affirmative conduct reasonably related to the circumstances of the crime for which the offender has been convicted and reasonably necessary or beneficial to the offender and the community in rehabilitating the offender.
(Emphasis added.)
The plain words of this statute express the legislature's intent. The court has the discretion, subject to the availability of resources, to order this condition, provided that it makes the required finding.
In State v. Jones, Division Two of this court considered whether the trial court had the authority to order the defendant to participate in mental health treatment and counseling under former RCW 9.94A.700(5)(c). Similar to RCW 9.94A.607(1), the trial court had to make certain findings under former RCW 9.94A.505(9) to impose such a condition. Specifically, it was required to "find[] that reasonable grounds exist[ed] to believe that the offender is a mentally ill person . . . and that this condition is likely to have influenced the offense."
118 Wn.App. 199, 76 P.3d 258 (2003).
Id. at 208.
Id. at 209.
Former RCW 9.94A.505(9) (2001).
At sentencing, defense counsel stated on the record that Jones suffered from a mental illness, was off of his medication during the crimes, and that the combination obviously resulted in the crimes. Division Two held that the record satisfied former RCW 9.94A.700(5)(c)'s requirement that the mental health treatment be "crime-related." But, because the trial court did not make the statutorily required finding that Jones had a mental illness that contributed to his crimes, former RCW 9.94A.505(9) was not satisfied and the trial court erred by imposing the treatment condition.
Jones, 118 Wn.App. at 209.
Id.
Id.
This case is analogous to Jones. Here, at sentencing, the State requested that Greer obtain an alcohol and substance abuse evaluation and follow all treatment recommendations as part of his community supervision. Defense counsel then argued against confinement, acknowledging that "[i]f the court has concerns about substance abuse, [Greer] understands he's going to have to do a substance abuse evaluation." In its oral ruling, the trial court stated that "based upon the facts presented at trial, [Greer] did pose a threat to the community by his driving and very well may have been high on something, although he was acquitted on the DUI charge." In the judgment and sentence, the trial court ordered Greer to "obtain a substance abuse evaluation and follow all treatment recommendations."
Report of Proceedings (Dec. 10, 2010) at 31.
Id. at 34.
Clerk's Papers at 56.
But the necessary written finding, that Greer "has a chemical dependency that has contributed to his or her offense, " is nowhere in this record, as RCW 9.94A.607(1) plainly requires it must be. And, the oral remarks by the court are insufficient to constitute such a finding. Therefore, as the plain words of the statute demonstrate, the trial court did not have statutory authority to impose a substance abuse evaluation as a condition of Greer's community custody.
The State contends that the community custody condition was proper simply because it was "crime-related" and that no causal link is needed between the condition imposed and the crime committed. It disagrees with Greer's argument that the trial court must expressly find that his chemical dependency contributed to his offense under RCW 9.94A.607(1). Because this argument conflicts with the plain words of the statute, we reject it.
State v. Powell is the only authority cited by the State that concludes that RCW 9.94A.607 may be ignored. In that case, Division Two of this court reversed the appellant's conviction for first degree burglary, holding that the trial court improperly admitted drug use evidence at trial. It also addressed a challenge to the appellant's community custody condition requiring drug treatment "because this issue and others raised may arise again on remand."
139 Wn.App. 808, 162 P.3d 1180 (2007), rev'd on other grounds by 166 Wn.2d 73 (2009).
Id. at 816.
Id. at 818.
In doing so, the court indicated that "the trial court did not make an explicit finding that [Powell] had a chemical dependency that contributed to the offense." It then quoted RCW 9.94A.607, requiring the trial court to find that chemical dependency contributed to the offense. Despite the clear statutory requirement for such a finding, it concluded that:
Id. at 819.
Id.
There was evidence presented at trial that Powell had consumed methamphetamine before committing the offense. Further, at sentencing, both the State and defense asked the court to impose substance abuse treatment as a condition of his sentence. Even though the trial court failed to check the box indicating that Powell had a chemical dependency, the record amply supports its decision.
Id. at 820 (emphasis added) (footnote omitted).
The court did not explain why evidence in the record could support drug treatment in the absence of the statutorily required finding. Accordingly, we disagree with this portion of Powell. We also note that the supreme court, apparently, did not accept review of the community custody issue since it did not discuss the point in its opinion reversing on other grounds.
The State also relies on State v. Warren for the proposition that a community custody condition may be upheld if it is reasonably crime-related. But in Warren, the issue was whether the trial court abused its discretion by imposing a no-contact order as a condition of community custody. The requirement of RCW 9.94A.607(1), at issue here, was not addressed. Therefore, that case is not helpful.
165 Wn.2d 17, 195 P.3d 940 (2008).
Warren, 165 Wn.2d at 33.
The State also argues that the community custody condition was proper because former RCW 9.94A.713(1) (2006) granted authority to the Sentencing Review Board and Department of Corrections to impose rehabilitative community custody conditions. But, because that statute was repealed August 1, 2009, and Greer's offenses occurred August 8, 2009, this argument is not persuasive.
Finally, the State argues that the record contains evidence that Greer's offenses were substance abuse-related because he possessed cocaine and marijuana. While the record may satisfy RCW 9.94A.703(3)(c)'s requirement that the condition be "crime-related, " it does not satisfy RCW 9.94A.607(1)'s plain requirement that the trial court expressly find that a chemical dependency contributed to the offense.
We express no opinion whether evidence admitted at trial could support a finding that Greer had a chemical dependency that contributed to these possession convictions. That question is not before us. We hold that the absence of the required finding is sufficient to vacate this invalid portion of Greer's sentence.
We vacate this condition and remand for resentencing.