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                                                    20m JUL 21 AH 10: 20




     IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON



STATE OF WASHINGTON,
                                                No. 70002-2-1
                    Respondent,
                                                DIVISION ONE
      v.



FREDERICK E. HARDTKE,                           UNPUBLISHED OPINION


                    Appellant.                  FILED: July 21, 2014


      Spearman, C.J. — Frederick Hardtke challenges a condition of pretrial

release and condition of sentence requiring him to reimburse San Juan County

(County) for the cost of pretrial monitoring via a Transdermal Alcohol Detection

(TAD) ankle bracelet. Because defendants are solely responsible for bearing the

cost of conditions of pretrial release, and Hardtke expressly agreed to reimburse

the County for the costs of TAD monitoring in his valid plea agreement, we affirm.

                                      FACTS

      On June 28, 2012, Frederick Hardtke was arraigned and pled not guilty to

two counts of second degree rape, one count of second degree assault, four

counts of fourth degree assault, and malicious mischief, all involving domestic

violence. The trial court found that a substantial danger existed that Hardtke

would commit a violent crime if released and, pursuant to CrR 3.2(d), the court

imposed conditions of release. The court required Hardtke not to possess or
No. 70002-2-1/2

consume alcohol, to have no contact with the alleged victim, and to abide by the

terms of a domestic violence no contact order. The court also ordered Hardtke to

post a $15,000 bond or cash to guarantee those conditions. However, the trial

court agreed to reconsider the bond condition if it could be shown that no

bonding company would write a bond for the required amount.

       On July 11, 2012, the trial court heard Hardtke's motion to modify his

conditions of release. Hardtke had been unable to secure a $15,000 bond from

any agency and remained in custody. Noting that the court's main concern was

his behavior when intoxicated, Hardtke suggested that, in lieu of the $15,000

bond, the court should require him to submit to monitoring via a TAD ankle

bracelet, which could measure his blood-alcohol level at all times. In response,

the State submitted that, if TAD monitoring were ordered, Hardtke should bear

the costs.


       The trial court reduced the bond to $3,000 but maintained all other

conditions. The court also ordered Hardtke to appear in court on July 20, 2012, at

which time he was to have posted a performance bond in the amount of $15,000,

or, in the alternative, post a $3,000 bond and submit to TAD monitoring at his

own expense. The court agreed to revisit the issue of requiring Hardtke to pay

the cost of TAD monitoring at the July 20 hearing.
No. 70002-2-1/3

      At the July 20, 2012 hearing, Hardtke advised the court that arrangements

had been made for TAD monitoring to begin at 1:00 p.m., but contended that he

should not be required to pay the cost of the monitoring. He argued:

      [T]hat the Court had decided that the $3000 performance bond,
      the TAD device, and the other release conditions, as a set,
      addressed adequately the concern that Defendant will commit a
      violent crime. Therefore, under CrR 3.2, the Court could not
       impose a higher performance bond. This is true whether or not
       Defendant payed (sic) the cost of the TAD device. Therefore, the
       Court could not impose the cost of the TAD device on Defendant
       under the threat of imposing a higher performance bond.

Agreed Report of Proceedings (ARP) at 5.

       The trial court apparently adhered to its earlier decision, requiring as

conditions of release that Hardtke either post a $15,000 performance bond and

abide by certain conditions or, in the alternative, post a $3,000 bond, abide by

certain conditions, and submit to TAD monitoring at his own expense. Notably,

although the agreed record of proceedings reports the trial court's ruling on this
issue, the rationale for the court's conclusion, if given at the hearing, is absent. It

appears that Hardtke chose the latter option and was released from custody.
       On August 9, 2012, the State moved to revoke release and forfeit

Hardtke's $3,000 bond. The TAD device had shown that Hardtke had consumed

alcohol on at least three occasions between August 4 and August 8, 2012. When

Hardtke was subsequently taken into custody, breath testing showed blood

alcohol concentration of over 0.05. Hardtke admitted the violations. The court

revoked release and forfeited the $3,000 bond. It also entered a new order of

                                           3
No. 70002-2-1/4

release, which maintained the conditions set forth in the July 20, 2012 order, but

with the bond amount increased to $10,000. It appears that Hardtke posted the

increased amount and remained free on bond.

       Prior to trial, Hardtke reached a plea agreement with the State, under

which the State reduced the charges against Hardtke to one count of rape in the

third degree and one count of assault in the second degree. The parties also

agreed upon a sentencing recommendation which included, among other things,

an exceptional sentence of 24 months incarceration on each count and that

Hardtke would "[r]eimburse San Juan County for the cost of transdermal

monitoring." Clerk Papers (CP) at 73.

       Hardtke was sentenced on February 15, 2013. Despite his agreement to

reimburse the County for the cost of TAD monitoring, Hardtke repeated his

argument from July 20 that he could not be legally required to pay it. The court

imposed the agreed upon sentence and conditions. Hardtke appeals only the trial

court's assessment of $3,972 in costs associated with TAD monitoring.

                                   DISCUSSION


       There is a strong public interest in enforcing terms of plea agreements that

are voluntarily and intelligently made. In re Personal Restraint Petition of

Breedlove, 138 Wn. 2d 298, 309, 979 P.2d 417 (1999). Both parties are bound

by the terms of a valid plea agreement and, between the parties, they are

regarded and interpreted as contracts. ]d. Entering a valid plea agreement
No. 70002-2-1/5


waives a defendant's right to challenge the sentence he requested pursuant to

the agreement, jd. But, a defendant cannot agree to a sentence in excess of that

authorized by statute and, thus, cannot waive a challenge to such a sentence, in

re Personal Restraint Petition of Goodwin, 146Wn.2d 861, 873, 50 P.3d 618

(2002).

       Hardtke argues that because, in his view, the trial court lacked authority to

order him to pay the cost of TAD monitoring, it also could not impose as a

condition of his sentence that he reimburse the County for that cost. The

argument is without merit. Hardtke fails to identify any provision in CrR 3.2 that

prohibits a court from requiring a defendant on pretrial release to assume the

costs associated with conditions of release, and his argument that we should

interpret the rule to find such a prohibition is unpersuasive.

       Resolution of this case requires interpretation of a court rule, which is

subject to de novo review. State v. McEnroe, 174 Wn.2d 795, 800, 279 P.3d 861

(2012). We interpret court rules using the rules of statutory construction. Id. The

terms used in court rules should be given their plain and common meaning. State

v. Johnson, 21 Wn. App. 919, 921, 587 P.2d 189 (1978): see also State v.

OHivier. 178 Wn.2d 813, 852, 312 P.3d 1 (2013). Rules are construed so as to

effectuate the drafters' intent, avoiding readings that result in absurd or strained

consequences. McEnroe, 174 Wn.2d at 795.
No. 70002-2-1/6


          CrR 3.2(d) sets forth several conditions of pretrial release that a trial court

may impose if it finds a substantial danger that the defendant will commit a

violent crime, intimidate witnesses, or otherwise unlawfully interfere with the

administration of justice while awaiting trial. Subsection (d)(9) and (d)(10) permit

the court to "[rjequire the accused to return to custody during specified hours or

to be placed on electronic monitoring, if available," and to "[ijmpose any condition

other than detention to assure noninterference with the administration of justice

and reduce danger to others in the community," respectively. Hardtke does not

dispute the trial court's finding that he presented such a danger and, since he

proposed TAD monitoring as a condition of release, he concedes it was an

appropriate condition to mitigate the danger. He contends, however, that the

court rules do not provide authority for the trial court's order that he bear the cost

of this condition.


          Hardtke first argues, without citation to authority, that because CrR 3.2(d)

does not expressly provide that trial courts may require defendants to bear the

cost of TAD monitoring, they lack authority to do so.1 The argument is without

merit. A number of the conditions of release authorized by CrR 3.2(d) have costs

associated with them, but under Hardtke's line of reasoning, a defendant cannot

be required to bear the cost of utilizing them. This is an absurd result. For


          1 Hardtke notes that with one exception, no statute or court rule gives courts blanket
authority to impose the cost of pretrial release conditions on a defendant. RCW 10.01.160(2)
provides that costs for administering a pretrial supervision program may not exceed one hundred
fifty dollars.
                                                  6
No. 70002-2-1/7


example, under CrR 3.2(d)(6), a trial court may require as a condition of release,

as it did in this case, that the defendant post a secured bond. The bonding

company will typically require a fee of ten to twenty percent of the amount of the

bond. Under Hardtke's interpretation of the rule, courts must either require the

bonding company to provide this service to the defendant at no cost, or they are

limited to imposing an unsecured bond requirement or requiring cash in lieu

thereof. Neither result is a sensible interpretation of the rule. Similarly, pursuant

to CrR 3.2(d)(1) and (2), a trial court could require, as it did in this case, that the

defendant have no contact with the victim. Here, compliance with the court's no

contact condition required Hardtke to vacate the residence he shared with the

victim and their child. No doubt costs were associated with abiding by this

condition of release. Under Hardtke's interpretation of the rule, instead of

requiring the defendant to bear these costs, the anomalous result would be to

impose them on some other individual or entity.

        As with other conditions of pretrial release, if a defendant chooses to avail

himself of TAD monitoring in order to be released from confinement, the cost of

doing so is fairly his to bear. The court rules, reasonably read, do not prohibit this

result.2




        2 Hardtke observes that under RCW 10.010.160(1) costs may not be imposed on a
defendant except upon conviction, but there was no violation of this statute. Although Hardtke
spent nearly seven months on TAD monitoring, it does not appear that he was required to pay for
the service until after he was sentenced.
No. 70002-2-1/8


       In this case, it was within the trial court's authority to order TAD monitoring

as a condition of release and to require Hardtke to pay to the cost thereof.

Accordingly, his agreement to reimburse the County for this expense as a

condition of his sentence was lawful and properly imposed by the court. In re

Breedlove. 138 Wn.2d at 312.

      Affirm.




WE CONCUR:                                             U              J
                                                                          d.


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