                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                         November 3, 2015



    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II

 STATE OF WASHINGTON,                                                No. 45203-1-II

                                Respondent,                   UNPUBLISHED OPINION

        v.

 ANTHONY T. CLARK,

                                Appellant.

       BJORGEN, J. — Anthony Clark appeals his convictions for residential burglary, third

degree theft, and third degree malicious mischief. Clark contends that the trial court abused its

discretion when it (1) refused to order a second competency hearing after his attorney

represented to the court that Clark was unable to assist in his defense, (2) failed to accommodate

his developmental disabilities by not ordering a continuance to enable Clark to enlist the services

of a cognitive aide, and (3) excluded expert testimony about Clark’s suggestibility and the

consequent possibility that he had falsely confessed. Alternatively, Clark argues that (4) the trial

court erred by imposing conditions of probation after sentencing him to the maximum term for

the third degree theft and malicious mischief convictions.

       We hold that (1) the trial court exercised its discretion on tenable grounds when it refused

to order a second competency hearing given the record before it, (2) any error in denying the

continuance was constitutionally harmless, (3) any error in excluding the expert’s testimony was

also constitutionally harmless, and (4) the trial court erred when it purported to impose
No. 45203-1-II


conditions of probation after sentencing Clark to the maximum term of confinement for the third

degree theft and malicious mischief convictions. Consequently, we affirm Clark’s convictions,

but remand with orders to strike the erroneous conditions of probation.

                                               FACTS

                            I. THE BREAK-IN AND THE INVESTIGATION

       In April 2010, Patricia Conine returned from work to find a crime scene in her apartment.

Burglars had forced open a ground floor window, entered her apartment, ransacked it, and taken

Conine’s personal property, including a cell phone, a digital video disc player, jewelry, and loose

change.

       Conine called police. Forensic investigators processed the scene and found two prints of

note. They discovered the first, a fingerprint, on a screen removed from the window used to

enter Conine’s apartment. They found the second, a palm print, on Conine’s television. The

television, which Conine had bought less than two months before, had been moved during the

break-in.

       Soon thereafter, at nearby Lincoln High School, several students bragged about having

committed the burglary. This group included Clark and Hector Escobar. Clark displayed

jewelry he claimed the group had taken during the robbery; other group members also showed

off allegedly stolen property. The bragging came to the attention of Lincoln High School’s

resource officer, who alerted Tacoma police.

       Detective Robert Baker, who was investigating a different burglary possibly involving

Clark, contacted him. Clark admitted he had helped Escobar and others burglarize “a grayish

apartment.” III Verbatim Report of Proceedings (VRP) at 274-76. Clark explained that after

they decided to burglarize the apartment when walking by, Escobar proceeded to remove the


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No. 45203-1-II


window screen. Clark then crawled through the window, unlocked the apartment door to let the

others in, and then stood as the burglars’ “lookout.” III VRP at 277. Baker then asked Clark to

take him to the residence that Clark burglarized. At this point, Baker did not know that the

Conine burglary had been reported.

        Clark showed Baker the apartment he had helped to burglarize and the window he had

used to enter the apartment. Clark and Baker returned to Lincoln High School where Clark gave

a recorded statement about the incident.

        The State charged Clark with one count of residential burglary in violation of RCW

9A.52.025, one count of third degree malicious mischief in violation of RCW 9A.48.090(1)(b)

and .090(2)(c), and one count of third degree theft in violation of RCW 9A.56.020(1) and

.050(1), (2).

                II. THE COMPETENCY PROCEEDING BEFORE JUDGE CUTHBERTSON1

        The question of Clark’s competency to stand trial was a major focus of the pretrial

proceedings in his case. Clark’s counsel moved for a competency evaluation shortly after the

State filed charges, and the trial court ordered an evaluation at Western State Hospital. After that

evaluation, the parties contested the issue of Clark’s competence to stand trial during a multiple

day hearing before Judge Cuthbertson.

        Dr. Ray Hendrickson, who had evaluated Clark at Western State Hospital, testified for

the State at the competency hearing. Hendrickson testified that Clark had no symptoms of “a

major mental illness,” but showed moderate developmental disabilities. VRP (May 11, 2012) at

34-35, 49. However, Hendrickson testified that Clark was high functioning such that his


1
 Clark’s case proceeded before Judges Cuthbertson, Nelson, McCarthy, Chushcoff, and
Hickman. We refer to the trial court using the judge’s name for clarity.


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No. 45203-1-II


developmental disabilities could more properly be classified as mild in effect. In fact,

Hendrickson testified that Clark demonstrated a capacity for abstract reasoning and its

application to his case. Hendrickson also testified that, during his evaluation of Clark, Clark

demonstrated an understanding of the legal process, legal concepts, and the charges against him.

Clark’s attorney sat in on the evaluation, and Hendrickson watched the two interact, allowing

Hendrickson to opine that Clark could communicate with his attorney, work with her, and assist

her in his defense. Hendrickson also testified that Clark had shown that his disabilities did not

render him suggestible to verbal or nonverbal signals from those asking him questions, although

Hendrickson admitted that he did not specifically test for suggestibility. Finally, Hendrickson

testified that Clark did not require trial accommodations any more than the typical defendant.

       Dr. Brent O’Neal testified for Clark at the competency hearing. O’Neal testified that he

measured Clark as having a low intelligence quotient associated with mild retardation. Other

tests performed by O’Neal indicated that Clark’s “language skills in general [were] markedly

deficient.” VRP (May 30, 2012) at 75. Nevertheless, O’Neal testified that Clark was competent

to stand trial. However, O’Neal testified that Clark’s developmental disabilities rendered him

highly susceptible to verbal or nonverbal cues from people, leading him to be untruthful under

questioning. O’Neal also testified that Clark’s verbal difficulties would require accommodations

at trial; specifically, giving Clark additional time to communicate with his attorney and limiting

the manner in which he was cross-examined.

       In his oral ruling, Judge Cuthbertson stated:

       I’m going to find, Mr. Clark, that I believe you do, I think, have the capacity to
       understand the nature of the proceedings against you, that you – and also, I’m going
       to enter a finding that I believe you have the capacity to assist in your defense, but
       that the Court needs to make some accommodations to make sure that you have a
       fair trial.


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No. 45203-1-II


               And before we go to trial, we will have motions in limine and have
       discussions about the accommodations that I intend to make–so I’m going to not
       hide the ball–and let you know that I intend to not rush through trial and make it
       slow, so you have a chance to ask questions of [counsel], and she has a chance to
       explain what’s going on to you in a way that you can understand.
               The other thing I’m going to do is I’m going to talk to the lawyers about the
       rules of evidence, and should you decide to testify, how the examination should go.
       I believe I have the inherent authority or the Court has inherent authority under
       Evidence Rule 611, which I don’t expect you to know about that, but it says I can
       decide how the questions are asked. I can ask questions like I did today. I can tell
       the lawyers how to ask the questions to some extent, so I’m going to consider that
       and we’ll talk about that before trial, about those accommodations, and any other
       accommodations that would be necessary to make sure it’s a fair trial.

VRP (May 30, 2012) at 112-14.

       Judge Cuthbertson later entered an order finding Clark competent. This order did not

include any findings or conclusions about the necessity of accommodations.

                     III. OTHER PROCEEDINGS BEFORE JUDGE CUTHBERTSON

       The parties again appeared before Judge Cuthbertson on November 26, 2012, the date

scheduled for the start of trial. By this point, the parties were discussing a parallel prosecution in

which the State had charged Clark with murder and how the litigation of various issues between

the two cases overlapped. Because of other criminal trials with higher priority, the court

continued Clark’s trial date until February 2013. Clark’s attorney renewed her objection to the

court having found Clark competent at the hearing.

       When the parties appeared before Judge Cuthbertson in February 2013, he again stated

that other older criminal trials with higher priority had precedence. To ensure Clark’s right to a

speedy trial, Judge Cuthbertson stated his intention to assign the case to Judge Nelson, who was

familiar with Clark and his competency issues as the judge presiding over his murder trial.




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No. 45203-1-II


However, Clark filed an affidavit of prejudice against Judge Nelson, which was granted, and the

presiding criminal judge assigned Clark’s case to Judge McCarthy for trial.

                     IV. THE CRR 3.5 HEARING BEFORE JUDGE MCCARTHY

       Before Judge McCarthy, Clark’s attorney argued that Judge Cuthbertson had ruled that

Clark would receive accommodations at trial and raised the issue of Clark’s competency. The

parties also informed Judge McCarthy that the order of competency did not order

accommodations. When Clark’s attorney argued that the oral ruling had ordered

accommodations, Judge McCarthy told her to present any requests for accommodation in a

“written motion with supporting information.” VRP (Apr. 22, 2013) at 13-14.

       Clark’s attorney then turned to the issue of his competence. She contended that her

interactions with Clark had convinced her that he was not competent to stand trial because he

could not assist in his defense. The prosecutor represented that she had witnessed portions of

Clark’s murder trial and that Clark had shown adequate language skills and recall during cross-

examination and that the trial court had not needed to accommodate Clark with long breaks.

Clark’s attorney responded by stating that Clark’s attorneys in the murder trial supported her

motion for a competency hearing. The trial court denied Clark’s request for another competency

hearing, citing the recent order from Judge Cuthbertson and the fact that Clark had recently

completed a murder trial and evidenced competency during that trial.

                          V. PROCEEDINGS BEFORE JUDGE CHUSHCOFF

       Because of trial conflict issues, Judge McCarthy sent Clark’s case back to the presiding

criminal judge, Judge Chushcoff. There, Clark’s attorney again raised the issue of Clark’s

competence to stand trial. The State noted that Clark had recently been found competent and

contended that his competence was not raised by his defense counsel in his murder trial. Clark’s


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No. 45203-1-II


attorney took the position that Judge Cuthbertson only found Clark competent assuming that

accommodations would be made. She again represented that Clark’s attorneys from his murder

trial supported her motion for a new competency hearing. The trial court determined that Clark’s

attorney had not presented evidence of a change in circumstances that would invalidate Judge

Cuthbertson’s order and denied Clark’s motion for a new competency hearing.

       Clark’s attorney then requested a continuance to allow her to obtain the services of a

cognitive aide, a person who could communicate about what was happening at trial with Clark in

language that he could readily understand. She described this as a necessary accommodation.

The prosecutor represented that Clark had not needed the accommodations during his murder

trial. The court noted that Judge Cuthbertson’s written order did not require accommodations,

noted that Clark’s attorney made the motion on the eve of trial, expressed concerns about the

impact of allowing Clark to use a cognitive aide on the pace of trial, and denied the motion by

stating that it would be sending the case out for trial.

                               VI.     TRIAL BEFORE JUDGE HICKMAN

       Clark’s trial ultimately occurred before Judge Hickman, beginning on May 21, 2013.

Conine testified about the break-in at her apartment. She had known Clark all his life through a

friendship with his mother, but testified that he had only visited her apartment two or three times,

once after police processed the scene. Conine also testified that she had bought her television

within two months of the break-in and that the burglars had moved it when they broke in.

       The forensic investigators testified about finding the prints on Conine’s window screen

and her television. An examiner testified that the latent print on the window screen matched

Escobar’s fingerprints and that the print on the television matched Clark’s fingerprints.




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No. 45203-1-II


       One of Clark’s classmates testified about Clark and the other alleged burglars bragging

about the break-in. The classmate also testified that Clark and the others had shown off items,

with Clark showing jewelry, including rings, necklaces and watches. Among the jewelry Conine

testified had been taken were rings and a pendant.

       Baker testified that he had gone to Lincoln High School to interview Clark about his

possible involvement in a different burglary and that he had no knowledge of a burglary at

Conine’s apartment. Baker also testified that Clark confessed to burglarizing an apartment and

that Clark then directed Baker to the apartment Clark admitted burglarizing, which was

Conine’s. The story Clark told, that Escobar had taken the window screen off and that Clark had

climbed through the window to let the others in and then acted as a lookout, was consistent with

the physical evidence, such as Escobar’s fingerprint on the screen.

       Clark had, over the course of trial, sought permission from the trial court to allow O’Neal

to testify about his suggestibility and how that could lead him to falsely confess. He renewed his

objection to the trial court’s denial of that motion at the close of the State’s evidence. The trial

court noted the objection, but did not allow O’Neal to testify.

       The jury found Clark guilty of all counts. The trial court sentenced him to 18 months’

confinement for the felony residential burglary conviction and 364 days’ incarceration, with no

days suspended, on the gross misdemeanor third degree theft and third degree malicious mischief

convictions. The trial court also entered an order establishing conditions of probation, including

the payment of the legal financial obligations ordered in his felony judgment and sentence.

Clark appeals.




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No. 45203-1-II


                                            ANALYSIS

                                          I. COMPETENCY

       Clark first contends that the trial court abused its discretion when it failed to order a

competency evaluation after his counsel represented to the court that Clark was unable to assist

her in his defense and that the attorneys in his contemporaneous murder trial made the same

claim. We disagree.

       Due process forbids the conviction of a person not competent to stand trial. In re Pers.

Restraint of Fleming, 142 Wn.2d 853, 861, 16 P.3d 610 (2001) (citing Drope v. Missouri, 420

U.S. 162, 171, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975); Pate v. Robinson, 383 U.S. 375, 378, 86

S. Ct. 836, 15 L. Ed. 2d 815 (1966)). Washington has broadened the protections due process

affords incompetent individuals: by statute “‘[n]o incompetent person shall be tried, convicted,

or sentenced for the commission of an offense so long as such incapacity continues.’” Fleming,

142 Wn.2d at 862 (alteration in original) (quoting RCW 10.77.050). To be competent, a

defendant must have “‘sufficient present ability to consult with his lawyer with a reasonable

degree of rational understanding’ and to assist in his [or her] defense with ‘a rational as well as

factual understanding of the proceedings against him [or her].’” Fleming, 142 Wn.2d at 861-62

(quoting Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960)).

       Where “there is reason to doubt” the defendant’s competency, the trial court must order a

competency evaluation. RCW 10.77.060(1)(a); State v. Lord, 117 Wn.2d 829, 901, 822 P.2d 177

(1991) (citing City of Seattle v. Gordon, 39 Wn. App. 437, 441, 693 P.2d 741 (1985)). There

must be a factual basis for the reason to doubt the defendant’s competence. Lord, 117 Wn.2d at

901. Courts consider a number of factors when evaluating whether this factual basis exists: “the

‘defendant’s appearance, demeanor, conduct, personal and family history, past behavior, medical


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No. 45203-1-II


and psychiatric reports, and the statements of counsel.’” Fleming, 142 Wn.2d at 863 (quoting

State v. Dodd, 70 Wn.2d 513, 514, 424 P.2d 302 (1967)). The trial court must give the final

factor, defense counsel’s statements about the defendant’s competency, “considerable weight”

because counsel has the “closest contact” with the defendant, and thus a unique vantage point to

gauge the defendant’s competence. State v. Israel, 19 Wn. App. 773, 779, 577 P.2d 631 (1978).

Nevertheless, the attorney’s representations are simply one factor, even if weighty, and not

dispositive to the question before the trial court. State v. Woods, 143 Wn.2d 561, 604-05, 23

P.3d 1046 (2001) (citing Lord, 117 Wn.2d at 903).

       Because the trial court is in the best position to weigh the factors used to determine

whether there is a reason to doubt the defendant’s competence, we review its determination for

an abuse of discretion. State v. Sisouvanh, 175 Wn.2d 607, 621-22, 290 P.3d 942 (2012). A trial

court abuses its discretion where it exercises that discretion in a manifestly unreasonable manner,

meaning selecting a course of action no reasonable person would take, or if it exercises its

discretion for untenable reasons or on untenable grounds, meaning it applies the wrong legal

standard or bases its decision on facts unsupported by the record. Sisouvanh, 175 Wn.2d at 623

(quoting State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003)). Where the trial court’s

decision is “‘fairly debatable,’” we will not disturb its choice to order, or not order, a

competency evaluation. See Sisouvanh, 175 Wn.2d at 623 (quoting Walker v. Bangs, 92 Wn.2d

854, 858, 601 P.2d 1279 (1979)).

       As described above, Judge Cuthbertson conducted a full competency hearing and

considered Clark’s competency evaluation. The issue before us is whether Judge Chushcoff

erred by denying a motion for a second evaluation. Before Judge Cuthbertson, the evidence

about Clark’s competency included expert testimony from two doctors indicating that Clark



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No. 45203-1-II


could assist in his defense, as well as Judge Cuthbertson’s observations of Clark. Before the

other judges, that evidence included the fact that Judge Cuthbertson had adjudged Clark

competent to stand trial, as well as their own observations of Clark. Each of the judges

determined that, in light of this evidence, defense counsel’s opinion was not sufficient to create a

reason to doubt Clark’s competency. Although one might analyze the evidence on which the

doctors and judges relied differently, that simply shows that the issue was “‘fairly debatable.’”

Sisouvanh, 175 Wn.2d at 623 (quoting Walker, 92 Wn.2d at 858). The trial court did not abuse

its discretion.

         Further, it was not an abuse of discretion to determine that defense counsel’s

representations about Clark’s inability to assist in his defense in the murder trial did not

necessitate a second competency evaluation. While the courts will accept the representations of

counsel about a defendant’s competency, those are based on counsel’s personal interaction with

the defendant. The trial courts were free to disregard counsel’s unsupported representations

about statements made by the attorneys representing Clark in the murder trial, because of the

lack of evidence supporting those representations. See Gordon, 39 Wn. App. at 441-42. Further,

defense counsel’s representations about her own observations simply added new evidence about

the same developmental disabilities that Judge Cuthbertson found did not render Clark

incompetent to stand trial. The trial court had the discretion to determine that defense counsel’s

representations did not warrant a new competency hearing in light of the evidence discussed

above.

                                       II. ACCOMMODATIONS

         Clark next contends that, regardless of whether the trial court erred by refusing to hold a

second competency hearing, it abused its discretion when it failed to make accommodations to


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No. 45203-1-II


ensure that he could understand the testimony at his trial. The State contends that the trial court

did not abuse its discretion when it denied the one specific request for accommodation Clark

made, a request for a continuance. We assume, without deciding, that the trial court erred, but

hold that any error was harmless beyond a reasonable doubt.

       Criminal defendants have a right to trial accommodations necessary to safeguard their

rights to confront witnesses and to be present during their trial. See State v. Gonzalez-Morales,

138 Wn.2d 374, 379, 979 P.2d 826 (1999) (citing U.S. CONST. amend. VI); United States v.

Crandall, 748 F.3d 476, 481 (2d Cir. 2014). Decisions about any needed accommodations are

constitutionally commended to the discretion of the trial court.2 See Gonzalez-Morales, 138

Wn.2d at 381; United States v. Bennett, 848 F.2d 1134, 1141 (11th Cir. 1988). An exercise of

the trial court’s discretion that infringes a defendant’s constitutional rights is necessarily an

abuse of that discretion. State v. Strizheus, 163 Wn. App. 820, 829, 262 P.3d 100 (2011)

(quoting State v. Iniguez, 167 Wn.2d 273, 280, 217 P.3d 768 (2009)).

       The denial of a constitutionally required accommodation is subject to constitutional

harmless error analysis, see State v. Woo Won Choi, 55 Wn. App. 895, 902-03, 781 P.2d 505

(1989), as are violations of the rights protected by the accommodations. State v. Jasper, 174

Wn.2d 96, 117, 271 P.3d 876 (2012) (right to confront witnesses); State v. Irby, 170 Wn.2d 874,

885, 246 P.3d 796 (2011), appeal after remand, 187 Wn. App. 183 (2015) (right to be present).

We presume constitutional error is prejudicial and the State bears the burden of showing that the

error was harmless beyond a reasonable doubt. State v. Coristine, 177 Wn.2d 370, 380, 300 P.3d



2
  The decision to grant or deny a continuance also lies in the discretion of the trial court. State v.
Early, 70 Wn. App. 452, 458, 853 P.2d 964 (1993). This discretion is, however, constrained by
constitutional mandates. State v. Strizheus, 163 Wn. App. 820, 829, 262 P.3d 100 (2011)
(quoting State v. Iniguez, 167 Wn.2d 273, 280, 217 P.3d 768 (2009)).


                                                  12
No. 45203-1-II


400 (2013). The State may discharge this burden by showing that overwhelming untainted

evidence supports a conviction. State v. Tatum, 74 Wn. App. 81, 87, 871 P.2d 1123 (1994).

       Assuming, without deciding, that the trial court abused its discretion by refusing to order

accommodations for Clark, that error was harmless beyond a reasonable doubt because the State

presented overwhelming untainted evidence of his guilt. One of Clark’s classmates testified that

Clark bragged that he committed the burglary and that he had shown off rings and necklaces

when doing so, which were among the types of items Conine testified had been taken. Conine

testified that, although Clark had been to her apartment before, he was an extremely infrequent

guest, visiting only once or twice before the burglary. Nevertheless, forensic technicians found

Clark’s palm print on Conine’s television, a television she had bought two months before the

burglary and which the burglars had moved. The physical evidence thus corroborated the

testimony from Clark’s classmate and Conine. With this evidence, any error in failing to grant

the requested accommodation was harmless beyond a reasonable doubt.3

                                     III. EXPERT TESTIMONY

       Clark also contends that the trial court erred by excluding O’Neal’s testimony about

Clark’s suggestibility and the consequent possibility that he falsely confessed in order to please

the interrogating officer. Assuming, without deciding, that the trial court abused its discretion by

excluding O’Neal’s testimony, any error was harmless.

       The constitution guarantees each defendant “the right to present [his or her] version of the

facts as well as the prosecution’s to the jury so it may decide where the truth lies.” Washington

v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967). Consistently with that right,




3
 We assume, without deciding, that Clark’s confession to Baker was tainted. Consequently, we
do not consider the confession for purposes of harmless error review.
                                                13
No. 45203-1-II


we may not “exclude competent, reliable evidence bearing on the credibility of a confession

when such evidence is central to the defendant’s claim of innocence” without a valid justification

for doing so. Crane v. Kentucky, 476 U.S. 683, 690-91, 106 S. Ct. 2142, 90 L. Ed. 2d 636

(1986). We generally review a trial court’s decision to admit or exclude evidence or to allow

expert testimony for an abuse of discretion. Strizheus, 163 Wn. App. at 829; see State v. Rafay,

168 Wn. App. 734, 783-84, 285 P.3d 83 (2012), cert. denied, 134 S. Ct. 170 (2013). However,

we review de novo whether the trial court’s exclusion of evidence infringes the defendant’s right

to present a defense, and any such infringement would constitute an abuse of discretion.

Strizheus, 163 Wn. App. at 829 (quoting Iniguez, 167 Wn.2d at 280).

       Assuming, without deciding, that the trial court infringed Clark’s right to present a

complete defense by excluding O’Neal’s testimony about his suggestibility, the error was

harmless. As we have described above, overwhelming untainted evidence supported the verdict.

                                       IV.    SENTENCING

       Finally, Clark contends that the trial court imposed a sentence that exceeded the

punishment authorized by law. Specifically, Clark claims that the sentencing court ordered

probation despite the fact that it sentenced him to the maximum term allowed for the felony

residential burglary, gross misdemeanor third degree theft, and gross misdemeanor third degree

malicious mischief. The State contends that the sentencing court did not sentence Clark to

probation and therefore did not err. We agree with Clark and remand this matter to the

sentencing court to strike the order imposing the conditions of probation for the two gross

misdemeanors.




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No. 45203-1-II


       A sentencing court may suspend some of an offender’s sentence and instead impose

probation. RCW 9.95.210(1).4 However, where the sentencing court imposes the maximum

sentence, it lacks authorization to impose probation on the offender. State v. Gailus, 136 Wn.

App. 191, 201, 147 P.3d 1300 (2006), overruled on other grounds by State v. Sutherby, 165

Wn.2d 870, 204 P.3d 916 (2009).

       Clark’s judgment and sentence imposes the maximum term of confinement allowed by

RCW 9A.20.021, 364 days, for each of the gross misdemeanor convictions, ordering these

sentences to be served concurrently with his felony conviction for residential burglary. The

judgment and sentence suspends none of the term of confinement for the gross misdemeanors,

and the trial court did not mark the section that would have imposed probation. Nevertheless, the

sentencing court entered a separate order the same day as the judgment and sentence purporting

to impose conditions of probation for the gross misdemeanors. Because the sentencing court

lacked the authority to impose probation for the gross misdemeanors in light of its imposition of

the maximum term, the order imposing probation for the gross misdemeanors is erroneous.

Gailus, 136 Wn. App. at 201. We remand the matter with orders to strike the conditions of

probation for the gross misdemeanors.

                                         CONCLUSION

       We affirm Clark’s convictions, because the trial court did not abuse its discretion by

refusing to order a second competency hearing and any error in denying requested

accommodations at trial or excluding O’Neal’s testimony was harmless beyond a reasonable




4
 RCW 9.95.210(1)(a) reads, in relevant part, that “in granting probation, the superior court may
suspend the imposition or the execution of the sentence and may direct that the suspension may
continue upon such conditions and for such time as it shall designate, not exceeding the
maximum term of sentence or two years, whichever is longer.”
                                               15
No. 45203-1-II


doubt. We remand this matter to the sentencing court with orders to vacate the gross

misdemeanor conditions of probation.

        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.



                                                    BJORGEN, J.
 We concur:




 JOHANSON, C.J.




 SUTTON, J.




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