                                                                                                               FELfl
                                                                                                          COURTOF APPEALS
                                                                                                             DJVISION II
                                                                                                        1015 FEB 18
                                                                                                                    All 9: 23
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                                                                                                                     VI4SH1fGTON
                                                                                                        By_

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGT

                                                  DIVISION II


 STATE OF WASHINGTON,                                                               No. 45502 -1 - II


                                       Respondent,


            v.

                                                                           UNPUBLISHED OPINION
 JAMES NATHANIEL PARKER,


                                       Appellant.




        MAXA, J. —        James Parker appeals the trial court' s finding that he violated a condition of

his Special Sex Offender Sentencing Alternative ( SSOSA).                   He argues that ( 1) his due process


rights were violated because the notices of violation he received provided inadequate notice of the

condition    the trial   court   found he had    violated, (   2) the trial court lacked the authority to require

him to comply with community custody conditions imposed by the Department of Corrections

DOC),       and ( 3) the community custody conditions requiring his compliance with all laws and

prohibiting him from consuming drugs without a prescription are unconstitutionally vague.

        We hold that Parker did not receive adequate notice because he was not informed that he

allegedly violated the condition requiring compliance with all laws, which was the condition that
the trial   court   found he     violated.   Therefore, we reverse the trial court' s finding that he violated

that condition. However, we hold that the trial court had the authority to require Parker to comply

with the DOC conditions and that DOC had the authority to impose conditions that were crime

related.    Accordingly, we reverse the trial       court' s   ruling that Parker   violated   the   condition   requiring
45502 -1 - II




compliance with all laws, but affirm that the trial court had the authority to require Parker to

comply with the DOC conditions and that DOC had the authority to impose the conditions that
were not crime related.       We do not address whether the conditions requiring compliance with all

laws and prohibiting drug possession and consumption are unconstitutional.

                                                 FACTS


         Parker pled guilty to second degree rape of a child on January 25, 2008, and requested a

SSOSA. The pre- sentencing report showed that Parker smoked marijuana every day from age 14

until age 20. The report also showed that Parker continued to use marijuana up until nine months

before he committed his crime and that he had difficulty moderating his behavior. However, there

were no specific allegations that Parker' s crime involved drug use. The trial court granted Parker' s

request for a SSOSA and sentenced him to 120 months community custody under the supervision

of DOC.


         The trial   court ordered   Parker to comply   with   any   conditions   imposed   by   DOC.   DOC


imposed several conditions, including that Parker was ( 1) required to obey all municipal, county,

state, tribal, and federal laws; and (2) prohibited from purchasing, possessing, or consuming drugs

without a valid prescription.



         Parker received a doctor' s authorization to use medical marijuana after he was released

from prison. He asked DOC to permit him to use medical marijuana, but DOC denied his request.

Nevertheless, Parker used marijuana and several of his urine samples submitted to DOC tested

positive   for   marijuana.
45502 -1 - 1I




         The DOC filed several notices of violation alleging that Parker violated his community

custody   conditions      by   consuming     marijuana.    The first notice alleged that Parker violated the


condition of    his    sentence   prohibiting drug     consumption without a prescription.          The subsequent


notices referred back to the original notice and did not specify the conditions of his sentence that

Parker allegedly       violated   by   consuming    marijuana.   Instead, the notices stated that the trial court


 ordered Parker to comply with any conditions imposed by the court or DOC during the term of

community custody"             and    that Parker "   violated   conditions   of   supervision"    by "   consuming


marijuana."     Clerk' s Papers at 37.


         Parker filed a pro se motion with the trial court to dismiss the community custody

conditions violations.         He also moved to modify his judgment and sentence by removing order

4. 5( d), which required Parker' s compliance with all rules, regulations, and requirements of DOC.


At a consolidated hearing addressing his alleged violations, Parker argued that his sentencing

conditions did not prohibit the use of marijuana because it had been legalized in Washington.


Parker also argued that he should be able to use marijuana because it helps with his pain.


         The trial court denied Parker' s motions. The trial court found that Parker had violated the

conditions of    his   sentence      by breaking   federal law prohibiting    marijuana use.      But the trial court


expressly declined to determine whether Parker violated the conditions of his sentence prohibiting

drug consumption. The trial court sanctioned Parker with 30 days in custody. Parker appeals.




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                                                     ANALYSIS


A.       NOTICE OF COMMUNITY CUSTODY CONDITION VIOLATIONS


         Parker argues that the notices of his community custody conditions violations were

inadequate and violated his due process rights under the Fourteenth Amendment of the United


States Constitution and article I, sections 3 and 22 of the Washington Constitution. He argues that


he did not receive adequate notice because the violation notices stated only that he violated his

community custody conditions by consuming marijuana, and did not reference the* condition

requiring him to comply with all laws. We agree.

         Offenders who allegedly violate a SSOSA condition are entitled to the same minimal due

process rights as        those     afforded   during   the   revocation of probation or parole.           State v. Dahl, 139


Wn.2d 678, 683, 990 P. 2d 396 ( 1999); see generally In re Pers. Restraint ofBlackburn, 168 Wn.2d

881, 884, 232 P. 3d 1091 ( 2010).                This      minimal   due   process requires (      1)   written notice of the


claimed violations, (          2) disclosure    of   the   evidence against    the   offender, (   3) an opportunity to be

heard, ( 4) the       right   to   confront and cross -examine witnesses, (          5) a neutral and detached hearing

body, and ( 6) a statement by the court of the evidence relied on and the reasons for the revocation.

Dahl, 139 Wn.2d at 683 ( citing Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d

484 ( 1972)). Alleged violations of the due process right to adequate notice are reviewed de novo.


See State       v.   Zillyette, 178 Wn. 2d 153, 158, 307 P. 3d 712 ( 2013) ( addressing adequacy of an


information).


         Here, the notices informed Parker of the factual basis of the alleged violations. They stated

that Parker had violated his community custody provisions by consuming marijuana, based on



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45502 -1 - II




positive urinalysis reports.          And they stated that Parker violated the condition of supervision

prohibiting drug consumption without a prescription and requiring him to abide by the written or

verbal     instructions issued   by   the community        corrections officer.     But the notices did not inform


Parker that the consumption of marijuana violated the condition requiring compliance with all

laws.


             Our Supreme Court in Dahl did not address what level of specificity was required when

informing       an offender of alleged violations.          However, the       court   did   state   that "[    d] ue process


requires      that the State inform the      offender of   the    specific violations alleged."       Dahl, 139 Wn. 2d


at   685 (   emphasis added).    The court stated that the notice must set forth all alleged violations so


that   a   defendant has the opportunity to           marshal     the   facts in his defense.        Id.   at   684.   And in


Blackburn, our Supreme Court did address the substance of the notice with regard to an " obey all

laws"      condition — the " level of specificity required to inform the offender of the violation alleged."

Blackburn, 168 Wn.2d at 885. The court held that a notice alleging violation of an " obey all laws"

condition was inadequate because it did not specify which law the offender allegedly had violated.

Id. at 886 -88.'


             Here, the DOC   notices   did   not   identify the " specific   violations alleged."       Dahl, 139 Wn.2d


at   685. The supporting facts identified in the           notices = marijuana consumption —did                  not provide


Parker with any notice that he allegedly violated the condition requiring compliance with all laws.




1 The State argues that Blackburn is inapplicable because that case involved reclassifying an
offender from community custody to total confinement. But the trial court did not suggest that its
analysis was limited to that scenario.



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45502 -1 - II




Further, even if the notice was sufficient to inform Parker that he allegedly had violated this

condition, the notices did not specify which law he allegedly had violated. Under Blackburn, the

failure to identify the particular law that had been violated renders the notices inadequate.

Accordingly, we hold that DOC' s notices violated due process. 2
B.       AUTHORITY TO IMPOSE DRUG -RELATED CONDITIONS


         Parker moved to modify his judgment and sentence to remove the trial court' s order to

comply    with all   community custody           conditions   that DOC imposed.     Parker argues that the trial


court lacked authority to require his compliance with various drug -related supervision conditions

because they were not crime -related. However, DOC imposed the conditions that Parker allegedly

violated, not    the trial   court.    We hold that Parker' s argument has no merit because the trial court


has the authority to require Parker to comply with the DOC conditions, and DOC has the authority

to impose conditions that were not crime related based on the risk to community safety.

         1.     Trial Court Authority

         A trial court may only impose crime -related conditions, such as a drug prohibition

condition, if there is evidence that the prohibited conduct was involved in the crime of conviction.

RCW 9. 94A.030( 10); State            v.   Warnock, 174 Wn.   App. 608,   612, 299 P. 3d. 1173 ( 2013).   Whether


a court has imposed a community custody condition beyond the bounds of its authority is reviewed

de novo. Id. at 611.




2 Violations of an offender' s minimum due process rights are subject to a harmless error analysis.
Dahl, 139 Wn. 2d at 688. However, we need not address harmless error because the State does
not argue     that any   error was     harmless.
45502 -1 - II




          However, here the trial court did not impose the community custody conditions at issue;

DOC imposed those                conditions.        The trial court ordered that Parker comply with any conditions

imposed        by   DOC.         The trial court has the authority to order a defendant to comply with any

conditions       imposed         by    the   DOC.    State v. McWilliams, 177 Wn. App. 139, 154, 311 P. 3d 584
                                                                   3
 2013),   review           denied, 179 Wn. 2d 1020 ( 2014).                Accordingly, we hold that the trial court did not

err in ordering that Parker comply with the DOC' s community custody provisions.

          2.        DOC Authority

          As noted above, the trial court has authority to impose only crime -related sentencing

conditions.         But this crime -related limitation applies only to the trial court and does not apply to

DOC,    which         is   an   agency       and not a court.   In re Pers. Restraint of Golden, 172 Wn. App. 426,

432, 290 P. 3d 168 ( 2012).


          DOC' s authority to impose conditions of community custody on Parker came from former

RCW 9. 94A.715( 2)( b) (               2006) 4, which does not limit DOC' s supervisory conditions to those that

are crime -related.             Id.   at   433.   Instead, former RCW 9. 94A.715( 2)( b) directs DOC to perform a


risk assessment and then impose " additional conditions of the offender' s community custody based

upon   the     risk   to community safety."           DOC has broader authority to impose conditions than the trial




3 RCW 9. 94A.703 (1)( b) now provides that the trial court is required to order a defendant to comply
with   DOC          conditions.            However, this statute did not become effective until after Parker was
sentenced.



4
    Parker     was sentenced on              April 18, 2008.    At the time, RCW 9. 94A.715 was in effect. In 2008,
the relevant provisions were recodified at 9. 94A.704. The language remained the same.

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45502 -1 - II




court because DOC focuses on the risk posed by the defendant, whereas the trial court generally

must   focus    on   the   defendant'   s crime.   Golden, 172 Wn. App. at 433.

           Here, the pre- sentencing report showed that Parker had been a regular marijuana user from

age   14   until age   20   and used marijuana nine months       before he   committed   his   crime.   The report


also suggested that Parker has difficulty moderating his behavior. Because of Parker' s significant

history as a heavy drug user and his inability to moderate his behavior, DOC reasonably

determined that Parker was a risk to community safety when using marijuana.

           Accordingly, we hold that DOC had the authority to impose the conditions that were not

crime related even though Parker is not being supervised for a drug offense.

C.         VAGUENESS OF COMMUNITY CUSTODY CONDITIONS


           Parker argues that the DOC conditions requiring him to comply with all laws and

prohibiting him from purchasing, possessing, or consuming drugs without a prescription are

unconstitutionally         vague.   However, we do not address these arguments because we reverse the


trial court' s finding that Parker violated the condition requiring compliance with all laws, and the

possession and consumption of drugs condition was not the basis for the trial court' s finding that

Parker violated a DOC condition. We decline to give an advisory opinion on the constitutionality

of these conditions. See State v. Eggleston, 164 Wn.2d 61, 76 -77, 187 P. 3d 233 ( 2008).




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45502 -1 - II




            We reverse the trial court' s ruling that. Parker violated the condition requiring compliance

with all laws, but affirm that the trial court had the authority to require Parker to comply with the

DOC conditions and that DOC had the authority to impose conditions that were not crime related.

            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.




 We concur:




      fie

    HANSON, C. J.




 LSE, J.




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