                                                                                                              FILED
                                                                                                      COURT GE APPEALS
                                                                                                           D11f
                                                                                                                  ISM

                                                                                                     2014 AUG 19 AM 9: 37
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGT                                                              N
                                                                                                     Sg\     F d       3   it   ON
                                                    DIVISION II                                      BL

STATE OF WASHINGTON,                                                              No. 44036 -9 -II \


                                     Respondent,


         v.



CHARLOTTE ANN BUTTON,                                                       UNPUBLISHED OPINION


                                     Appellant.




          LEE, J. —   Charlotte Ann Button appeals a sentence condition requiring her to stand on a

street corner    holding   a sign   stating, " I   stole   from kids. Charlotte Button."         Button contends that


the trial court lacked authority to impose this condition and that it violated her rights under the

First   and   Eighth Amendments         of   the United States Constitution.        Because there is no statutory

authority for the sign -
                       holding condition, we need not reach Button' s constitutional challenges,

and we remand for the trial court to strike the sign -
                                                     holding condition from her judgment and

sentence.



                                                           FACTS


          Button pleaded guilty to first degree theft for embezzling funds from a high school

booster    club.   The trial court sentenced her to two months in jail and imposed an additional


condition     intended " to   send a message        to the community."        Report   of   Proceedings ( RP) (   July 5,

2011) at 6. The court explained that condition:


           B] efore you begin your jail time, you are going to spend 40 hours standing at the
          corner of  Wishkah and Broadway with a sign that says, " I stole money from kids.
          Charlotte Button."        You' re going to do it two hours at a time twice a day from
          7: 00 to 9: 00 in the morning       and   4: 00 to 6: 00 in the   afternoon.
No. 44036 -9 -II




                   You' re going to do it starting tomorrow,                         and   it   will     be Monday through
         Saturday        and   for ten days.          So whatever that is, you' ll get in four days this week,
         and then you' ll start the following Monday and get in another six, so you' ll be
         done on Saturday, a week from this Saturday.

                   And after you complete that, you will then serve your jail sentence, but
         you' regoing to spend 40 hours                     holding    a sign    up that      says, "    I stole money from
         kids. Charlotte Button."


                   I    want you          to   make   the sign.       In fact, I have a large poster board in my
         office, and you can              have     a seat   before    you   leave.    I' ll retrieve it at the break and
         give it to you, and I expect to see it down there tomorrow morning.

RP (   July   5, 2011)       at   6 -7.        The trial court added a handwritten notation to the judgment and


sentence ordering Button to prepare a sign and hold it at the location and time stated above.

         Button     served        her jail time but did         not   comply     with   the     sign - holding   condition.   She filed


an appeal based on that condition, but her attorney abandoned it after the condition was not

enforced and       the   prosecutor            indicated " he   wasn'   t going to do anything"             about   it. RP ( Sept. 21,


2012) at 3.


         On its own motion, the trial court issued an order requiring Button to appear and show

cause   why    she should not             be    punished    for   failing   to   display   the     sign as ordered.      At the show


cause   hearing,       the   parties agreed         that the    condition was        improper          and unenforceable.     The 65-


year -old Button added that complying with the condition would be physically difficult and that

she and her family had suffered enough humiliation as a result of news coverage of the case.

         The trial court saw nothing improper about the sign -
                                                             holding condition and viewed the

judgment      and sentence as             final. The court sentenced Button to an additional 60 days in jail and


ordered her to display the sign after her release or face additional jail time. The court declined to

stay the      sanctions        imposed.           Button served the additional jail time but appealed the sign




                                                                       2
No. 44036 -9 -II



condition, and we granted her emergency motion to stay that condition pending the outcome of

the appeal.


        Button argues on appeal that the trial court lacked authority to impose the sign-holding

condition and that the condition violated her constitutional rights under the First and Eighth

                1
Amendments.


                                                      ANALYSIS


A. SENTENCING CONDITIONS


        A trial     court' s    sentencing      authority is        limited to that    granted    by   statute.   In re


Postsentence Review of Combs, 176 Wn.                  App.        112, 117, 308 P. 3d 763 ( 2013) (     citing State v.

Skillman, 60 Wn.        App. 837, 838, 809            P. 2d 756 ( 1991)).         Whether a sentencing court has

exceeded    its statutory authority is         a question of       law that   we review   de   novo.   State v. Murray,

118 Wn. App. 518, 521, 77 P. 3d 1188 ( 2003).

        The   statute   that governs this case       is RCW 9. 94A. 505( 8),        which provides that in imposing

a sentence on a     felony     conviction, "    the court may impose and enforce crime -
                                                                                       related prohibitions

and affirmative conditions as provided             in this   chapter."     The phrase " as provided in this chapter"


does not require crime -related prohibitions to be authorized by some other provision of the

Sentencing    Reform Act        of   1981 ( SRA),   chapter 9. 94A RCW. State v. Acrey, 135 Wn. App. 938,

943 -44, 146 P. 3d 1215 ( 2006); see also State v. Armendariz, 160 Wn.2d 106, 114, 156 P. 3d 201


 2007) (   RCW 9. 94A.505( 8) constitutes independent grant of authority to impose crime -related



1 The State agrees that Button may appeal this sanction. See State v. McDougal, 120 Wn.2d 334,
340, 841 P. 2d 1232 ( 1992) (           addressing defendant' s appeal of sanctions imposed for violating
conditions of sentence);        State   v.   Hughes, 70 Wn.        App.   142, 143, 852 P. 2d 1097 ( 1993) (   same).




                                                               3
No. 44036 -9 -II



prohibitions).       The "    as provided            in this   chapter"   qualifier does apply, however, to affirmative

conditions.   2 See Armendariz, 160 Wn.2d at 114; Acrey, 135 Wn. App. at 943 -44.

           Crime -
                 related prohibitions may not include orders that direct an offender to perform

affirmative    conduct.         RCW 9. 94A.030( 10);               Acrey,    135 Wn.     App.     at   945. "    Persons may be

punished for their crimes and they may be prohibited from doing things which are directly

related to their crimes, but they may not be coerced into doing things which are believed will

rehabilitate   them."        State   v.   Parramore, 53 Wn.          App.    527, 531 -32, 768 P. 2d 530 ( 1989) ( quoting


David Boerner,        Sentencing          in Washington, § 4. 5 ( 1985)) (       emphasis omitted).             Consequently, any

order directing an offender to affirmatively do something is an affirmative condition and must be

expressly authorized by the SRA.

           The SRA provides for a number of affirmative conditions that can be imposed depending

on   the   circumstances.          See,     e. g.,   RCW 9. 94A. 607( 1) (      where offender' s chemical dependency

contributed    to his    offense, court          may     order   him to    participate   in   rehabilitative programs);    RCW


9. 94A. 670( 5), (    6) (   court may impose affirmative conditions as part of special sex offender

sentencing     alternative);       RCW 9. 94A. 703( 3)( d) ( as condition of community custody, court may


order offender to perform affirmative conduct reasonably related to circumstances of offense).

           These     statutes   do   not    apply to Button.          There is no allegation of chemical dependency,

and   her   conviction        of   first degree theft did            not   subject   her to community custody.              RCW


9. 94A.701.        Nor does any other SRA provision independently authorize the sign -
                                                                                     holding



2 The distinction between crime -related prohibitions and affirmative conditions in RCW
9. 94A. 505( 8)      reflects the legislature' s retreat from rehabilitation in favor of determinate
punishment. Acrey, 135 Wn. App. at 945.



                                                                     4
No. 44036 -9 -II




condition, which clearly requires Button to affirmatively engage in some conduct. Thus, there is

no statutory authority allowing the imposition of a sign -
                                                         holding condition in the first instance.

         The trial court also lacked statutory authority to impose this condition as a sanction under
                 63333
RCW 9. 94A.                 and     RCW 9. 94A. 633.   4 If an offender who is not being supervised by the

Department of Corrections violates any condition of sentence, the trial court may impose the

sanctions specified        in RCW 9. 94A. 633( 1).      RCW 9. 94A.6333( 2)( c).     Such sanctions may include

up to 60 days'       confinement, or,      in lieu   of confinement, "   any other community -
                                                                                             based sanctions."

RCW 9. 94A. 633( 1)(        a), (   b). Here, the trial court imposed 60 days' confinement and then insisted


that Button comply with the sign -holding condition. The sign -
                                                              holding sanction is not authorized

by RCW 9. 94A.633( 1) or RCW 9. 94A.6333.

3
    RCW 9. 94A.6333 states, in relevant part:
           1)   If an offender violates any condition or requirement of a sentence, and the
         offender is not being supervised by the department, the court may modify its order
         of judgment and sentence and impose further punishment in accordance with this
          section.

           2) If an offender fails to comply with any of the conditions or requirements of a
          sentence the following provisions apply:

                     c) If the court finds that a violation has been proved, it may impose the
          sanctions specified in RCW 9. 94A.633( 1).

4
    RCW 9. 94A.633 states, in relevant part:
           1)( a) An offender who violates any condition or requirement of a sentence may
         be sanctioned by the court with up to sixty days' confinement for each violation or
         by the department with up to thirty days' confinement as provided in RCW
          9. 94A.737.
                     b)    In lieu of confinement, an offender may be sanctioned with work
          release,    home detention         with    electronic   monitoring,    work   crew,     community
          restitution, inpatient treatment, daily reporting, curfew, educational or counseling
          sessions,       supervision     enhanced     through    electronic   monitoring,   or   any   other
          community - ased sanctions.
                    b




                                                             5
No. 44036- 9- 11



            Because the trial court lacked statutory authority to impose the sign -
                                                                                  holding condition,

we remand so       that it   can   be   stricken   from Button'   s   judgment   and sentence.   Given the resolution


of   this   case on   statutory    grounds, we need not reach          Button' s   constitutional arguments.   State v.


Speaks, 119 Wn.2d 204, 207, 829 P. 2d 1096 ( 1992).


            We remand for the trial court to strike the sign -
                                                             holding condition from Button' s judgment

and sentence..




            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:




                                                             6
