Opinion
No. 36819-6-II.
July 22, 2008.
Appeal from a judgment of the Superior Court for Clark County, No. 05-1-01088-6, Diane M. Woolard, J., entered August 22, 2007.
Affirmed in part and remanded by unpublished opinion per Bridgewater, J., concurred in by Penoyar, A.C.J., and Houghton, J.
UNPUBLISHED OPINION
A jury convicted Jeffrey Scott Ziegler of three counts of first degree child rape and three counts of first degree child molestation. The trial court imposed a sentence of confinement for 318 months to life imprisonment, which was the top of Ziegler's standard sentence range. In State v. Ziegler, 138 Wn. App. 804, 811, 158 P.3d 647 (2007), this court reversed two of the counts of first degree child rape and remanded "to the trial court for proceedings consistent with this opinion, including resentencing."
On August 22, 2007, the State and Ziegler appeared in the trial court for resentencing. The State agreed to vacate the two counts of first degree child rape. But even after vacating those convictions, which reduced his offender score from 15 to 9, Ziegler's standard sentence range remained the same. The trial court again imposed a sentence of confinement for 318 months to life imprisonment. It again imposed community custody for 36 months to life. Among the community custody conditions that the court imposed were:
STANDARD CONDITIONS:
. . . .
5. You shall not possess, use or own firearms, ammunition or deadly weapons. Your Community Corrections Officer shall determine what those deadly weapons are.
. . . .
SPECIAL CONDITIONS:
. . . .
10. You shall take antabuse per your Community Corrections Officer's direction, if so ordered.
CP at 37-38.
Ziegler appeals from his new sentence, challenging the procedures used during the resentencing and challenging the conditions noted above. This court initially considered Ziegler's appeal as a motion on the merits under RAP 18.14. A commissioner of this court referred the appeal to a panel of judges. While the trial court did not err in how it conducted Ziegler's resentencing, we conclude that it did err in imposing one of the community custody conditions. Thus, we remand for correction of that condition, but otherwise affirm Ziegler's judgment and sentence.
First, Ziegler argues that trial court did not resentence him properly because it did not afford him a sentencing hearing under RCW 9.94A.500(1). He contends that such a hearing is mandatory, because RCW 9.94A.500(1) states that "[b]efore imposing a sentence upon a defendant, the court shall conduct a sentencing hearing." State v. Marking, 100 Wn. App. 506, 510, 997 P.2d 461, review denied, 141 Wn.2d 1026 (2000) ("'[S]hall' imposes a mandatory requirement.") And he contends that in such a hearing,
The court shall consider the risk assessment report and presentence reports, if any, including any victim impact statement and criminal history, and allow arguments from the prosecutor, the defense counsel, the offender, the victim, the survivor of the victim, or a representative of the victim or survivor, and an investigative law enforcement officer as to the sentence to be imposed.
RCW 9.94A.500(1). Ziegler contends that because the trial court did none of these, it improperly resentenced him.
However, Ziegler was afforded a sentencing hearing when he was first sentenced. The purpose of the resentencing proceeding was to vacate two of his convictions. The vacation of those convictions had no effect on his standard sentence range. It did not result in any changes to his sentence, either in its duration or conditions. Ziegler did not ask that any of the procedures contained in RCW 9.94A.500(1) be repeated at his resentencing proceeding. He does not show that the procedures in RCW 9.94A.500(1) must be applied in resentencing proceedings.
And even if the trial court erred in not applying the procedures contained in RCW 9.94A.500(1) in Ziegler's resentencing, that error was harmless.
Second, Ziegler argues that the trial court erred in imposing condition 5 quoted above. He contends that while the court had the authority to prohibit him from possessing firearms while on community custody, it did not have the authority to prohibit him from possessing other deadly weapons. State v. Combs, 102 Wn. App. 949, 954, 10 P.3d 1101 (2000). And he contends that allowing a community corrections officer to define "deadly weapons" makes the condition unconstitutionally vague because it lacks adequate standards to prevent arbitrary enforcement. State v. Worrell, 111 Wn.2d 537, 640, 761 P.2d 56 (1988).
The State concedes that the trial court erred in imposing condition 5 to the extent it allowed a community corrections officer to define "deadly weapons." But it contends that Ziegler's challenge to the inclusion of "deadly weapons" in that condition is not ripe for review because he is not yet on community custody. State v. Motter, 139 Wn. App. 797, 804, 162 P.3d 1190 (2007), review denied, 163 Wn.2d 1025 (2008).
CP at 37.
CP at 37.
We accept the State's concession regarding who can define "deadly weapons." We agree that the trial court does not have the authority to prohibit Ziegler from possessing "deadly weapons." And we conclude the prudent course is to direct the trial court to correct Ziegler's condition 5 now rather than waiting for him to start his term of community custody.
Finally, Ziegler argues that the trial court erred by imposing condition 10 because community corrections officers do not have the legal authority to require offenders to take a prescribed drug, such as Antabuse. But that it is not what the condition requires, it requires Ziegler to take Antabuse only "if so ordered." That reference to "if so ordered" clearly requires that a person, who is legally authorized to do so, has prescribed that Ziegler take Antabuse. The trial court did not err in imposing condition 10.
CP at 37.
In conclusion, we affirm Ziegler's judgment and sentence following his resentencing with one exception. The trial court shall correct condition 5 to read "You shall not possess, use or own firearms or ammunition."
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. Penoyar, A.C.J.