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                                                                                             20111 OCT 21         l i,i      15

                                                                                             STATE OF ' VASH r GTor;{
                                                                                             BY




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                             DIVISION II


STATE OF WASHINGTON,                                                      No. 44853 -0 -II


                                   Respondent,                  UNPUBLISHED OPINION


       v.




PETE EVERT ESSEX,


                                   Appellant.




       BJORGEN, A.C. J. —     Pete Evert Essex appeals a special community custody condition

imposed in his judgment and sentence, claiming it is unconstitutionally vague. The State

concedes error. We accept this concession and remand this matter so that the trial court may

strike the condition 6 at issue.


                                                  FACTS


        A jury found Essex guilty of misdemeanor domestic violence fourth -degree assault.

Essex had been drinking before committing this crime. At sentencing, the trial court imposed

several community custody conditions, including Special Condition 6, which stated that

  d] efendant   shall not possess or use   any paraphernalia that   can   be   used   for the ingestion     or
No. 44853 -0 -II



processing     of controlled substances."             Clerk'   s   Papers   at   13 (   emphasis added).     Essex appeals the


imposition of this condition.


                                                          ANALYSIS


         Essex challenges Special Condition 6 of his judgment and sentence as unconstitutionally

vague,   citing State       v.    Valencia, 169 Wn.2d 782, 239 P. 3d 1059 ( 2010). He argues that the


paraphernalia condition is unconstitutionally vague because its broad wording invites arbitrary

enforcement.




         The State correctly concedes this error because the language of the prohibition at issue in

Valencia and that of Special Condition 6 is substantially the same. In Valencia, the Washington

Supreme Court held the following condition of sentence unconstitutionally vague:

         Defendant shall not possess or use any paraphernalia that can be used for the
         ingestion or processing of controlled substances or that can be used to facilitate
         the   sale      or      transfer   of   controlled    substances        including     scales,    pagers,   police


         scanners, and hand held electronic scheduling and data storage devices.

169 Wn.2d      at   785 (     emphasis added).       The Supreme Court              reasoned   that, "[   b] ecause the condition


might potentially encompass a wide range of everyday items, it `does not provide ascertainable

standards of guilt       to      protect against   arbitrary   enforcement. '            Valencia, 169 Wn.2d at 794


 quoting State      v.   Bahl, 164 Wn.2d 739, 753, 193 P. 3d 678 ( 2008)).                     We agree that, given its


similarity to the condition in Valencia, Special Condition 6 is similarly open to arbitrary

enforcement and therefore constitutionally infirm.




                                                                     2
No. 44853 -0 -II•



                                         CONCLUSION


        We accept the State' s concession and remand to the trial court to strike Special Condition


6 in the judgment and sentence as unconstitutionally vague.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW


2. 06. 040, it is so ordered.




                                                                       A.ci
We concur:




HUNT, J.




LEE,




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