State v. Jones
| Decision Date | 26 August 2003 |
| Docket Number | No. 27244-0-II.,27244-0-II. |
| Citation | 76 P.3d 258,118 Wash.App. 199 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Everett Wade JONES, Appellant. |
Pattie Mhoon, Attorney at Law, Tacoma, WA, for Appellant.
John Christopher Hillman, Pierce County Prosecuting Attorney, Tacoma, WA, for Respondent.
This case concerns how a trial court may condition community custody imposed under the version of the Sentencing Reform Act, RCW 9.94A, that was in effect on February 5, 2001. We hold (1) that a court may condition community custody by requiring that the offender obey all laws; (2) that a court may order an offender not to consume alcohol regardless of whether alcohol contributed to the crime; (3) that a court may not order an offender to participate in alcohol counseling unless alcohol contributed to the crime; and (4) that a court may not order an offender to participate in mental health treatment or counseling 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.
The State charged Everett Wade Jones with first degree burglary and several other crimes. The State alleged that Jones had committed these offenses on February 5, 2001.
On March 15, 2001, Jones pled guilty to first degree burglary and other crimes. During the plea hearing, Jones' attorney explained that Jones was bipolar; that Jones was off his medications at the time of his crimes; that Jones was using methamphetamine at the time of his crimes; and that "the combination ... obviously resulted in what happened[.]"1 Since being in custody, the attorney said, Jones had been taking his medications, and thus was "much, much calmer."2
The court sentenced immediately after accepting Jones' pleas. The court did not have before it any evidence to suggest that alcohol had contributed to Jones' crimes. The court did not obtain or consider a presentence report or mental status evaluation. Following the prosecutor's recommendation, the court imposed a concurrent prison term for each crime, the longest being 48 months for first degree burglary. The court also imposed a concurrent term of community custody for each crime, the longest being 18-36 months for first degree burglary.
As conditions of community custody,3 the court required Jones to engage in law-abiding behavior; not to consume alcohol; to participate in alcohol counseling, mental health treatment, and mental health counseling; to take his medications as prescribed; and not to drive without a valid license and insurance. The court did not enter findings that alcohol or mental illness had contributed to Jones' crimes. Jones did not object to any of the court's rulings.
Jones did not appeal within 30 days.4 Later, he sought to file a late appeal. This court declined to allow a late appeal, causing Jones to seek review in the Supreme Court. The Supreme Court reversed and directed this court to decide the late appeal.
Preliminarily, Jones does not argue, nor could he argue successfully, that the trial court erred by imposing community custody. The applicable statutes are those in effect on February 5, 2001, because that was the date of Jones' offenses.5 The statutes in effect on February 5, 2001, provided that burglary in the first degree was a Class A felony;6 that any Class A felony was a violent offense;7 and that when a court sentences to prison "for a violent offense ... committed on or after July 1, 2000, the court shall in addition to the other terms of the sentence, sentence the offender to community custody[.]"8
Although Jones does not claim that the trial court erred by imposing community custody, he does claim that the trial court erred in the ways that it conditioned community custody. He argues that the trial court erred by ordering him (1) to engage in law-abiding behavior; (2) not to consume alcohol, given the lack of evidence that alcohol had contributed to his offense; (3) to participate in alcohol counseling, given the lack of evidence that alcohol had contributed to his offense; and (4) to participate in mental health treatment and counseling, given that the trial court did not obtain or consider a presentence report or mental status evaluation, or make a finding that mental illness had contributed to or influenced his crimes. Jones can make these claims on appeal even though he failed to object below.9
The first question is whether the trial court had authority to order Jones to engage in "law abiding behavior."10 Before 1984, a trial court had authority to "impose probationary conditions that bear a reasonable relation to the defendants duty to make restitution or that tend to prevent the future commission of crimes.11 As a result, a trial court could order that an offender obey all laws.
When the SRA took effect in July 1984, it eliminated a trial courts authority to order an offender, other than a first-time offender, to obey all laws. In State v. Barclay,12 Division Three held that [a]lthough a first-time offender may be ordered to refrain from committing new offenses, the statute does not allow such a condition to be imposed upon a repeat offender. In State v. Raines,13 Division One agreed.
Subsection (15) provided that the department may require the offender ... to obey all laws.15
These amendments remain in effect today.16 By their plain terms, they permit a court to order an offender to perform affirmative conduct reasonably related to the offenders risk of reoffending or to the safety of the community. Such conduct includes obeying the community's laws. Accordingly, we hold that the 1999 amendments legislatively overruled Barclay and Raines; that a trial court sentencing for first degree burglary committed on or after July 1, 2000, may require an offender to obey all laws or engage in law-abiding behavior; and that the trial court here did not err by doing that.
The second question is whether the trial court had authority to order Jones not to consume alcohol, given the lack of evidence that alcohol had contributed to his crimes. When the 1984 legislature enacted the SRA, it provided that any prohibition against consuming alcohol had to be "crime-related."17 The 1988 legislature, however, amended the SRA as follows:
(c) The court may also order any of the following special conditions:
By including the words "crime-related" in subsections (iii) and (vi) but omitting them from subsection (iv), the 1988 legislature manifested its intent that a trial court be permitted to prohibit the consumption of alcohol regardless of whether alcohol had contributed to the offense.
The legislature's 1988 amendment remains in effect today,19 for both community custody20 and community placement.21 On February 5, 2001, it applied when, as here, the court sentenced for a first degree burglary22 committed on or after July 1, 2000.23 Accordingly, we hold that the trial court had authority to order Jones not to consume alcohol, despite the lack of evidence that alcohol had contributed to his offenses.
The third question is whether the trial court had authority to order Jones to participate in alcohol counseling, given the lack of evidence that alcohol had contributed to his crimes. Since 1988, a portion of the SRA that is currently codified as RCW 9.94A.700(5)(c) has provided that a trial court, when imposing community custody for specified crimes that include first degree burglary, may order an offender to "participate in crime-related treatment or counseling services."24 As noted already, nothing in the evidence here shows that alcohol contributed to Jones' offenses, or that the trial court's requirement of alcohol counseling was "crime-related." Accordingly, we hold that the trial court erred by ordering Jones to participate in alcohol counseling.
In arriving at this result, we do not overlook the 1999 amendment that we utilized in Section I. Currently codified as RCW 9.94A.715(2)(b), it provides that when sentencing for certain crimes committed on or after July 1, 2000, including first degree burglary, a trial court may order the offender to participate in rehabilitative programs or otherwise perform affirmative conduct reasonably related to the circumstances of the offense, the offenders risk of reoffending, or the safety of the community.25 If reasonably possible, it must be harmonized with RCW 9.94A.700(5)(c), so that no part of either statute is rendered superfluous.26 If we were to characterize alcohol counseling as "affirmative conduct reasonably related to the offender's risk of reoffending, or the safety of the community," with or without evidence that alcohol had contributed to the offense, we would negate and render superfluous RCW 9.94A.700(5)(c)'s requirement that such counseling be "crime-related." Accordingly, we hold that alcohol counseling "reasonably relates" to the offender's risk of reoffending, and to the safety of the community, only if the evidence shows that alcohol contributed to the offense.
The fourth question is whether the trial...
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