                                                                                                       FILE
                                                                                         COURT OF APPEALS
                                                                                                   O      Si0N 11 •

                                                                                       X01 JUL - 8           AM 18: 18
      IN THE COURT OF APPEALS OF THE STATEAMAAMIWIN

                                                    DIVISION II                         BY
                                                                                                       DEPUTY

STATE OF WASHINGTON,                                                                   No. 44656 -1 - II


                              Respondent,


         v.




JOHNNY LEE MILLER,                                                               UNPUBLISHED OPINION


                              Appellant.




          WORSWICK, J. —          Johnny Lee Miller appeals his sentence for first degree assault with a

deadly weapon enhancement. Miller alleges that the trial court exceeded its sentencing authority
by ordering a mental health evaluation and a substance abuse evaluation without evidence of
mental health issues or evidence that drug or alcohol use contributed to the commission of the
offense.      Miller   also   alleges     that the trial    court    erred      by imposing        a $   1, 500 fee for a court


appointed      attorney   and "   trial   per   diem."     The State concedes that the trial court exceeded its

                                                            health       and substance abuse evaluations.              We accept
sentencing authority       by   ordering the       mental




the State' s concession and remand to the trial court to strike the improper conditions. We affirm

the $   1, 500 fee for a court appointed attorney and " trial per diem."

                                                            FACTS


           On February 27, 2013, a jury found Miller guilty of first degree assault while armed with

a   deadly    weapon.     The trial court sentenced Miller to 226 months of total confinement followed

by 36 months of community custody. As a community custody condition, the trial court ordered
that    Miller   undergo mental      health     and substance abuse evaluations.             The trial court also imposed


a $   1, 500 fee for " court    appointed       attorney   and   trial   per   diem." Clerk'   s   Papers    at   9.
No. 44656 -1 - II


                                                          ANALYSIS


                                                Mental Health Evaluation


          Miller asserts that the trial court exceeded its statutory sentencing authority by ordering

Miller to undergo a mental health evaluation without first complying with the requirements of

RCW 9. 94B. 080. The State agrees that the trial court did not comply with RCW 9. 94B. 080, and

concedes the condition requiring Miller to undergo a mental health evaluation be stricken from
the judgment and sentence.


          RCW 9. 94B. 080 states:


          The court may order an offender whose sentence includes community placement
          or community supervision to undergo a mental status evaluation and to participate
          in available outpatient mental health treatment, if the court finds that reasonable
          grounds exist to believe that the offender is a mentally ill person as defined in
          RCW 71. 24.025, and that this condition is likely to have influenced the offense.
          An order requiring mental status evaluation or treatment must be based on a
          presentence report and, if applicable, mental status evaluations that have been
          filed with the court to determine the offender' s competency or eligibility for a
          defense      of   insanity.    The court may order additional evaluations at a later date if
          deemed appropriate.


                                       that the trial    court never ordered a presentence report.        Therefore, the
 Miller   and    the State    agree




 trial court did not comply with the requirements of RCW 9.94B. 080 when ordering Miller to
 undergo     a    mental      health    evaluation       as   a   condition   of   community   custody.     The   State' s


 concession      is   proper and we accept         it.    Accordingly, we remand to the trial court to strike the

 community custody condition requiring Miller to undergo a mental health evaluation.




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No. 44656 -1 - II



                                               Substance Abuse Evaluation


          Miller also argues that the trial court exceeded its statutory sentencing authority by

ordering him to undergo a substance abuse evaluation as a condition of community custody.

Under RCW 9. 94A.703( 3)( c) the trial court has the authority to impose " crime- related treatment

or    counseling      services."    The State concedes that there was no evidence at trial or sentencing that

indicated Miller' s          crime     was   related    to    substance      abuse,   and the trial court exceeded its


sentencing       authority.        Because there must be evidence establishing that substance abuse

contributed to or was related to the offense, the trial court exceeded its authority by ordering

Miller to undergo a substance abuse evaluation as a condition of community custody.


Accordingly, we accept the State' s concession and remand to the trial court to strike the

community custody condition requiring Miller to undergo a substance abuse evaluation.

                                   Court Appointed Attorney and Trial per Diem Fee

          Miller contends that the trial court exceeded its statutory authority because the trial court

may not impose costs for Miller' s constitutionally guaranteed jury trial in excess of the $250 jury
 trial fee expressly       authorized     by   statute.      However, the State explains that because the " trial per


 diem" fee is included in the portion of legal financial obligations for court appointed attorney

 costs,   the legal financial        obligation   is   authorized      by   RCW 9. 94A. 030( 30).      RCW 9. 94A.030( 30)


 authorizes      the trial     court   to impose legal financial            obligations   for "   court appointed attorneys'




 fees,    and    costs    of   defense[.]"      The $ 1, 500 legal financial           obligation     is   assigned   to "   court




 appointed attorney and trial per diem" which supports the State' s assertion that the trial per diem
 is   part of   the   cost of a court appointed         attorney   when a case proceeds           to trial. Because the costs



 of a court appointed attorney are statutorily authorized legal financial obligations, the trial court

 did not exceed its statutory authority to impose legal financial obligations.
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No. 44656 -1 - II


        We accept the State' s concessions regarding the mental health and substance abuse

evaluations   and remand        to the trial   court   to   strike   these   conditions.   But,   we affirm the $   1, 500


 court appointed attorney and trial per diem" fee imposed by the trial court.

        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:




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