Opinion
No. 37582-6-II.
April 7, 2009.
Appeal from a judgment of the Superior Court for Lewis County, No. 07-1-00742-8, James W. Lawler, J., entered March 19, 2008.
Remanded by unpublished opinion per Houghton, J., concurred in by Armstrong and Quinn-Brintnall, JJ.
Jimmy Loucks appeals his sentence on a first degree child molestation conviction, arguing trial court error based on State v. Jones, 118 Wn. App. 199, 76 P.3d 258 (2003). The State correctly concedes error, and we remand.
A commissioner of this court initially considered Loucks' appeal and transferred it to a panel of judges.
FACTS
At sentencing, the trial court imposed community custody conditions preventing him from possessing or consuming alcohol or frequenting bars. On appeal, he argues that the trial court lacked the authority to prohibit this because these conditions bear no reasonable relation to his offense.
ANALYSIS
The trial court may require that the defendant not consume alcohol as a condition of community custody. RCW 9.94A.700(5)(d). A trial court may impose further restrictions on alcohol use or consumption if the community custody condition bears a reasonable relation to the circumstance of the offense, the offender's risk of reoffending, or the safety of the community. RCW 9.94A.712(6)(a)(i); Jones, 118 Wn. App. at 207-08.
The State concedes that the challenged community custody conditions are unrelated to Loucks' crime. We accept the State's concession. There is no evidence that he was under the influence of alcohol at the time of his crime, or that a bar, tavern, or cocktail lounge contributed to his offense. The community custody conditions that he not possess alcohol and not frequent a bar, tavern, or a cocktail lounge for the duration of his community custody therefore lie outside the trial court's statutory authority.
We remand Loucks' judgment and sentence to the trial court to strike the conditions pertaining to possessing alcohol and frequenting bars, taverns, or cocktail lounges.
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.
ARMSTRONG, J. and QUINN-BRINTNALL, J., concur.