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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                          )            No. 66529-4-I
                                              )          
                      Respondent,             )         DIVISION ONE
                                              )
             v.                               )
                                              )
DONNIE JAMAAL GREER,                          )         UNPUBLISHED
                                              )
                      Appellant.              )         FILED: June 11, 2012
                                              )
                                              )

       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  

No. 66529-4-I/2

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.1 We review 

whether the trial court had statutory authority to impose community custody 
conditions de novo.2

       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 

       1 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).

       2 State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007).

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       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.[3]

       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,4 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).5 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.6 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."7  

       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.8 Division Two held that the record 

       3 (Emphasis added.)

       4 118 Wn. App. 199, 76 P.3d 258 (2003).

       5 Id. at 208.

       6 Id. at 209.

       7 Former RCW 9.94A.505(9) (2001).

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satisfied former RCW 9.94A.700(5)(c)'s requirement that the mental health 

treatment be "crime-related."9 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.10

       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."11 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."12 In the judgment and sentence, 

the trial court ordered Greer to "obtain a substance abuse evaluation and follow 
all treatment recommendations."13  

       8 Jones, 118 Wn. App. at 209.

       9 Id.

       10 Id.

       11 Report of Proceedings (Dec. 10, 2010) at 31.

       12 Id. at 34.

       13 Clerk's Papers at 56.

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       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. Powell14 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.15 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."16

       14 139 Wn. App. 808, 162 P.3d 1180 (2007), rev'd on other grounds by
166 Wn.2d 73 (2009).

       15 Id. at 816.

       16 Id. at 818.

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No. 66529-4-I/6

       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."17 It then quoted RCW 9.94A.607, requiring the trial court to find that 

chemical dependency contributed to the offense.18  Despite the clear statutory 

requirement for such a finding, it concluded that:

              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.[19]

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. Warren20 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.21 The 

       17 Id. at 819.

       18 Id.

       19 Id. at 820 (emphasis added) (footnote omitted).

       20 165 Wn.2d 17, 195 P.3d 940 (2008).

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requirement of RCW 9.94A.607(1), at issue here, was not addressed.  Therefore, 

that case is not helpful. 

       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.

       21 Warren, 165 Wn.2d at 33.

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WE CONCUR:

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