 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,
                                                  No. 69335-2-
                     Respondent,

              v.                                  DIVISION ONE


DERRICK HILLS,                                    UNPUBLISHED OPINION

                     Appellant.                   FILED: October 28, 2013



       Per Curiam — Derrick Hills appeals his conviction and sentence for

possession of cocaine. He contends, and the State concedes, that the court

erred in imposing a substance abuse evaluation and treatment as a community

custody condition without first finding that he has a chemical dependency as

required by RCW 9.94A.607(1).1 We accept the concession and remand for the
court to strike the condition unless it determines "that it can presently and lawfully




     1State v. Warnock. 174 Wn. App. 608, 299 P.3d 1173 (2013) (chemical
dependency finding is a statutory prerequisite to ordering chemical dependency
evaluation and treatment): cf State v. Jones, 118 Wn. App. 199, 209-10, 76 P.3d
258 (2003) (failure to make statutorily required finding before ordering mental
health treatment and counseling was reversible error even though record
contained substantial evidence supporting such a finding).
No. 69335-2-1/2



comply" with the statutory requirement for a finding that Hills has a chemical

dependency that contributed to his offense.2
       Because there is no evidence that alcohol contributed to Hills' offense, we

also accept the State's concession that the court erred in imposing a community

custody condition requiring Hills to refrain from possessing alcohol.3 This
condition must be stricken.

       The State also concedes, and we concur, that the judgment and sentence

contains a scrivener's error in that section 4.7(a) (imposing community custody

for crimes committed before 7-1-2000) is checked instead of section 4.7(c)

(imposing community custody for crimes committed after 6-30-2000), which is

applicable here. The judgment and sentence must be corrected on remand.

       Hills raises several additional claims in a pro se statement of additional

grounds for review. He contends the police unlawfully seized him because, while

they testified they smelled marijuana, they did not charge him with possessing

marijuana. But how police ultimately charged Hills is immaterial to whether

police had the articulable suspicion of criminal activity necessary for a lawful

seizure.4 The trial court's unchallenged findings establish that the officers


      2See Jones. 118 Wn. App. at 212 n.33.
      3RCW9.94A.505(8),.703(3)(f); RCW 9.94B.050(5)(e); State v. McKee,
141 Wn. App. 22, 34, 167 P.3d 575 (2007) (condition prohibiting purchase and
possession of alcohol was invalid when alcohol did not play a role in the crime).
       4 Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968);
State v. Kennedy, 107 Wn.2d 1, 6, 726 P.2d 445 (1986).
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smelled "a strong odor" of marijuana coming directly from Hills before they seized

him. The odor of marijuana provided an articulable suspicion of criminal activity.

       To the extent Hills contends there was no basis for the subsequent

search, the court's unchallenged findings establish that the officers' pat down and

subsequent search of Hills' person were justified by safety concerns and the

authority to conduct a search incident to arrest.5
       Hills contends the officers violated his Fifth Amendment rights because

they did not give him Miranda6 warnings before asking him about the marijuana
odor. But the court's unchallenged findings and conclusions establish that Hills

was not in custody when the officers asked him about the odor. Accordingly,

Miranda warnings were not required.7
       Last, Hills contends the court violated his right to a speedy trial when, over

objection, it granted a two and a half week continuance to August 8, 2012, due to

the police witnesses' prescheduled vacations. One officer was on his

honeymoon and the other was out of the office until August 7, 2012. The court

continued the trial until August 8, 2012. There was no violation of Hills' right to a



        5 State v. Collins, 121 Wn.2d 168, 173, 847 P.2d 919 (1993) (protective
frisk); State v. Bonds, 174 Wn. App. 553, 569, 299 P.3d 663 (2013) (search
incident to arrest).
       6 Miranda v. Arizona. 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966).
       7"Miranda warnings are required when an interrogation or interview is (a)
custodial (b) interrogation (c) by a state agent." State v. Lorenz. 152 Wn.2d 22,
36, 93P.3d133(2004).
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No. 69335-2-1/4



speedy trial. A preplanned vacation and the unavailability of witnesses constitute

valid grounds to continue a trial date under CrR 3.3(f)(2).8
       Affirmed in part and remanded for proceedings consistent with this

opinion.

                                          FOR THE COURT:




                                             V(lA,




       8 See, e.g.. State v. Grillev. 67 Wn. App. 795, 799, 840 P.2d 903 (1992);
State v. Nguyen. 68 Wn. App. 906, 914, 847 P.2d 936 (1993; see also State v.
Brown. 40 Wn. App. 91, 94-95, 697 P.2d 583 (1985); State v. Day. 51 Wn. App.
544, 548-50, 754 P.2d 1021 (1988).
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