                                                     COURT OF APPEALS DIV;
                                                      STATE OF WASHINGTON

                                                     2013 APR 29 AH 8> 32




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                           NO. 68295-4-


                    Respondent,                DIVISION ONE


                    v.



BRIAN MICHAEL WARNOCK,                         PUBLISHED OPINION


                    Appellant.                 FILED: April 29, 2013



      Lau, J. —The trial court has authority under RCW 9.94A.607(1) to order an

offender, as a condition of community custody, to obtain a chemical dependency

evaluation and to comply with recommended treatment only if it finds that the offender

has a chemical dependency that contributed to his or her offense. Because there is no

evidence and finding that any substance other than alcohol contributed to Brian

Warnock's offense, we remand with directions to amend the challenged condition so

that it imposes only alcohol evaluation and recommended treatment. We otherwise

affirm Warnock's judgment and sentence.

                                        FACTS

      Warnock went to a bar to drink with his girl friend and two other couples. He was

offended when he overheard a man at a nearby table talking about his friends and
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gesturing in the group's direction. Warnock and his friend confronted the man.

Warnock "head butted" him, knocking him to the ground. His friend then struck the man

in the face several times. The man sustained a broken jaw.

      Warnock and his friends left the bar. Warnock sped past a sheriffs deputy, failed

to stop when signaled by the deputy to pull over, and ran a stop sign. The deputy

arrested Warnock in a condominium parking lot. The deputy noted Warnock "staggered

from the vehicle." Verbatim Report of Proceedings (VRP) (Nov. 10, 2011) at 143.

Warnock's eyes were red and watery, his speech was slurred, and the deputy "could

strongly smell the odor of intoxicants." VRP (Nov. 10, 2011) at 144. Although Warnock

declined a breath test, the officer noted in his report that Warnock's "impairment was

extreme." VRP (Nov. 10, 2011) at 159.

       The State charged Warnock with second degree assault and driving under the

influence of intoxicants (DUI). The jury found Warnock guilty of assault but failed to

reach a unanimous verdict on the DUI charge. At trial, Warnock testified that he refused

the breath test because "I'd rather lose my license for a year than get a DUI. I wasn't

sure—I wasn't sure by what I had drank that night if itwould put me over the legal limit

or under the legal limit, but I just didn't want to find out." VRP (Nov. 14, 2011) at 82.

       At sentencing, the State recommended that the court order a chemical

dependency evaluation and compliance with all treatment requirements after
commenting that "alcohol consumption was part of what took place here." VRP (Feb. 7,
2012) at 128. Defense counsel responded, "[Tjhere was drinking going on. There's
some indication that Mr. Warnock was affected by what he had to drink           [But] it's our

position that he was not intoxicated[, and we] ask the Court to consider not requiring

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him to undergo an alcohol evaluation." VRP (Feb. 7, 2012) at 135. She also told the

court about Warnock's prior Lynnwood municipal court DUI conviction and present

probation status.

      The trial court stated, "[C]learly there was drinking involved to some extent. So

having him—if the [community corrections officer] feels it's appropriate to have an

evaluation and comply with recommended treatment in terms of substance abuse and

alcohol, that would be appropriate." VRP (Feb. 7, 2012) at 148-49. It imposed a

standard range sentence that included an 18-month community custody term. As a

condition of community custody, the court's written judgment and sentence ordered
Warnock to obtain a "chemical dependency evaluation ... and fully comply with all

recommended treatment." CP 5. Warnock appeals the chemical dependency condition

of his sentence.

                                       ANALYSIS

       The principal issue here is whether a sentencing court exceeds its statutory
authority by ordering an offender to obtain chemical dependency evaluation and
treatment as a community custody condition when no evidence and no finding exist that
any substance except alcohol contributed to the sentenced offense.
       Warnock contends the chemical dependency evaluation and treatment condition

should be stricken because the trial court exceeded its statutory authority when it

ordered him to obtain a chemical dependency evaluation and to comply with

recommended treatment as a condition of community custody. Because his claim

involves construction of the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW,
our review is de novo. State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007).

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An unlawful sentence may be challenged for the first time on appeal. State v. Ford, 137

Wn.2d 472, 477, 973 P.2d 452 (1999).

       The trial court lacks authority to impose a community custody condition unless

authorized by the legislature. State v. Kolesnik. 146 Wn. App. 790, 806, 192 P.3d 937

(2008). RCW 9.94A.505(8) provides, "As a part of any sentence, the court may impose

and enforce crime-related prohibitions and affirmative conditions as provided in this

chapter." And under RCW 9.94A.703(3)(c)-(d), as a condition of community custody,

the court is authorized to require an offender to "[participate in crime-related treatment

or counseling services" and in "rehabilitative programs or otherwise perform affirmative

conduct reasonably related to the circumstances of the offense, the offender's risk of

reoffending, or the safety of the community."

       The SRA specifically authorizes the court to order an offender to obtain a

chemical dependency evaluation and to comply with recommended treatment only if it

finds that the offender has a chemical dependency that contributed to his or her offense:

       Where the court finds that the offender has a chemical dependency that has
       contributed to his or her offense, the court may, as a condition of the sentence
       and subject to available resources, order the offender to participate in
       rehabilitative programs or otherwise to perform affirmative conduct reasonably
       related to the circumstances of the crime for which the offender has been
       convicted and reasonably necessary or beneficial to the offender and the
       community in rehabilitating the offender.

RCW 9.94A.607(1). Ifthe court fails to make the required finding, it lacks statutory

authority to impose the condition. Warnock does not claim the trial court made no

finding at all or no evidence exists to support evaluation and treatment. He argues

instead that "the court ordered him to submit to a 'chemical dependency evaluation,'

which includes an evaluation for substance abuse other than alcohol, despite the
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absence of any finding a substance other than alcohol contributed to the commission of

the assault." Br. of Appellant at 6.

       In State v. Jones, 118 Wn. App. 199, 276 P.3d 258 (2003), Division Two of this

court held that any court-ordered counseling or treatment must address a deficiency

that contributed to the offense at issue. If not, it fails to satisfy the statutory requirement

that it be "crime-related." Jones, 118 Wn. App. at 207. The Jones sentencing court

erred by ordering alcohol counseling when the evidence indicated that only

methamphetamines were involved in the crime, not alcohol. The court stated, "[W]e

hold that alcohol counseling 'reasonably relates' to the offender's risk of reoffending,

and to the safety of the community, only if the evidence shows that alcohol contributed

to the offense." Jones, 118 Wn. App. at 208.

       Warnock concedes that an alcohol evaluation and recommended treatment was

properly ordered "[g]iven the evidence of alcohol consumption." Br. of Appellant at 7

n.2. The judgment and sentence, however, undisputedly ordered Warnock to submit to

a chemical dependency evaluation and recommended treatment despite any evidence

and finding that a substance other than alcohol contributed to the assault.

       The State argues that because alcohol abuse is a type of chemical dependency,

the trial court's oral finding that alcohol contributed to Warnock's offense was equivalent

to a finding under RCW 9.94A.607(1) that a chemical dependency contributed to his
offense.1 We are unpersuaded by the State's reliance on RCW 70.96A.020, a non-SRA

statute found in the public health and safety laws, and on WAC 388-805-310, a


       1We note that paragraph two of the preprinted judgment and sentence form lists
the various community custody options. To order chemical dependency evaluation and
treatment, the trial court checks the box next to this preprinted condition.
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regulation relating to certification requirements for chemical dependency service

providers. The State cites no authority connecting this statute and regulation to the

relevant SRA statutes here. And even if we assume that alcohol abuse is a type of

chemical dependency, it does not follow that alcohol abuse and chemical dependency

are interchangeable terms for purposes of RCW 9.94A.607(1).

      Given the sentencing comments made by the court and counsel quoted above,

the court understood the distinction between substance abuse and alcohol abuse. Yet

the court ordered evaluation and treatment for substance and alcohol abuse.

Regardless of what the court intended, the chemical dependency condition is

ambiguous and can be read as requiring evaluation and treatment for substances other

than alcohol. As discussed above, a court's authority to order treatment is

circumscribed by statutes to crime-related treatment. Because there is no evidence and

finding that anything other than alcohol contributed to Warnock's offense, we remand

with directions to amend the judgment and sentence to impose only alcohol evaluation

and recommended treatment. The remainder of the judgment and sentence is affirmed.




WE CONCUR:




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