       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                      )
                                               No. 78367-0-I
                     Respondent,          )
                                          )    DIVISION ONE
              v.

AARON KHAIL KNOX,                         )
                                          )
                     Appellant,           )
                                          )   UNPUBLISHED OPINION
              and
                                          )   FILED: March 18, 2019
ROBERT WAYNE DEGRAT4,                     )
                                          )
                     Defendant.


       PER CURIAM     —   Aaron Knox appeals community custody conditions

imposed following his guilty plea to first degree robbery. He contends the

sentencing court lacked authority to impose conditions related to mental health

and education. We remand for the court to strike the challenged conditions and

for further proceedings consistent with this opinion.

                                      FACTS

       Knox pled guilty to robbery in the first degree. In the plea agreement, the

State recommended a sentence range of 31 to 41 months and Knox requested

an exceptional sentence of 20 months. The plea agreement set forth “an agreed

recommendation that allows the defense to ask for less time than the State.

Specifically, the defense is permitted to request an exceptional sentence of 20

months. The State opposes the exceptional sentence.” An attached “State’s
No. 78367-0-1/2


Sentence Recommendation” stated that the “length of confinement

recommended” was “an agreed recommendation.” The same document did not,

however, mention any agreement regarding community custody conditions,

stating instead that “[t]he State recommends” discretionary conditions. (Emphasis

added). Those conditions were that Knox “[c]ommence post-secondary

education or vocational classes while in DCC [Department of Corrections]

custody. Commence cognitive behavioral therapy such as Dialectical Behavior

Therapy while in DCC custody. Once released, obtain a mental health

evaluation within 60 days of release and follow all treatment recommendations.”

       The court sentenced Knox to 31 months of confinement and 18 months of

community custody. In addition to mandatory community custody conditions, the

court ordered Knox to “commence post-secondary education or vocational

classes while in DCC. Participate in cogn[i}tive behavioral therapy. Obtain a

mental health evaluation and follow all treatment recommendation[s].” Knox

appeals, challenging the court’s discretionary community custody conditions.

                                     DECISION

       We review community custody conditions for abuse of discretion and will

reverse only if they are manifestly unreasonable. State v. Nguyen, 191 Wn.2d

671, 678, 425 P.3d 847 (2018). Knox contends the sentencing court “exceeded

its authority when it required [him] to enroll in specific educational programs,

receive cognitive behavioral therapy, and obtain mental health services because

the conditions are not related to the charged offense of first-degree robbery.”




                                          2
No. 78367-0-113


       The State contends Knox may not raise these challenges because he

invited the errors. The invited error doctrine prohibits a party from setting up an

error at trial and then complaining of it on appeal. City of Seattle v. Patu, 147

Wn.2d 717, 720, 58 P.3d 273 (2002) (citing State v. Pam, 101 Wn.2d 507, 511,

680 P.2d 762 (1984)). To be invited, the error must be the result of an

affirmative, knowing, and voluntary act. State v. Lucero, 152 Wn.App. 287, 292,

217 P.3d 369 (2009), rev’d on other grounds, 168 Wash.2d 785, 230 P.3d 165

(2010); State v. Mercado, 181 Wn.App. 624, 630, 326 P.3d 154, 158 (2014).

The State contends Knox invited the alleged errors in two ways.

       First, the State contends Knox invited any error by agreeing to the

community custody conditions in the plea agreement. This argument is not

supported by the record. While the plea documents demonstrate a joint

agreement as to the confinement time each party would recommend, they do not

demonstrate an agreement regarding the conditions of community custody.

       Second, the State argues that Knox invited the errors by failing to correct

the court’s statement during its oral ruling that the challenged community custody

conditions were “jointly recommended” by the parties. These circumstances do

not demonstrate the kind of affirmative conduct required to invoke the invited

error doctrine. But even if they did, the invited error doctrine does not preclude

review of an unauthorized sentence. State v. Wallin, 125 Wn.App. 648, 66 1—62,

105 P.3d 1037 (2005) (invited error does not empower a sentencing court to

exceed its statutory authority). The State concedes that the sentencing court “did

not have statutory authority to order mental health treatment without additional


                                          3
No. 78367-0-114


facts[.]” It notes that the court could not require a mental health evaluation,

mental health treatment, or cognitive behavioral therapy without a finding that

Knox is a ‘mentally ill person” as defined in RCW 71.24.025. The State

concedes “[t]here was no evidence that Knox fell within the categories included in

the definition of mentally ill persons in RCW 71 .24.025.” Accordingly, the mental

health evaluation and cognitive behavioral therapy conditions must be stricken

regardless of whether the error was invited.

        We reach the same conclusion with respect to the condition requiring

Knox to “commence post-secondary education or vocational classes while in

[the] DOC.” (Emphasis added). The appendix imposing the community custody

conditions states that “Community Custody shall begin upon completion of the

term(s) of confinement imposed herein, or at the time of sentencing if no term of

confinement is ordered.” (Emphasis added). Because Knox is confined, his

community custody term will not commence until he is released. Accordingly, as

written, the condition imposing educational or vocational classes exceeds the

court’s authority because it requires Knox to participate in the classes before his

term of community custody even begins. 1 On remand, the court may consider

whether a version of this condition may lawfully be applied solely to the

community custody portion of Knox’s sentence.




  The State’s citation to RCW 9.94A.703 (2) does not alter our conclusion. That provision states
that “as part of any term of community custody” offenders shall “[w]ork at department-approved
education, employment, or community restitution, or any combination thereof.” RCW 9.94A.703
(2) (b). Again, this statutory condition operates during community custody, while the condition at
issue here purports to operate prior to the commencement of community custody.

                                                4
No. 78367-0-1/5


       Remanded for the court to strike the challenged community custody

conditions and for further proceedings consistent with this opinion.


                     For the Court:
                                                  4/

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