                                                                          FILED
                                                                       MARCH 28, 2019
                                                                In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                          )
                                              )        No. 35546-2-III
                      Respondent,             )        (cons. with No. 35971-9-III)
                                              )
       v.                                     )
                                              )        UNPUBLISHED OPINION
PEGGY COLLEEN KNOTT,                          )
                                              )
                      Appellant.              )

       FEARING, J. — The trial court convicted appellant Peggy Knott with two counts of

possession with intent to deliver a controlled substance and three counts of delivery of a

controlled substance. On appeal, Knott challenges her sentence. She contends her trial

counsel ineffectively represented her at sentencing because counsel failed to ask for a

downward exceptional sentence based on the multiple offense policy. She also contends

a community custody condition is unconstitutional and the trial court erroneously

imposed a legal financial obligation to pay costs of her incarceration. We affirm the

length of Knott’s sentence, but remand to modify the community custody condition and

to strike the legal financial obligation.
No. 35546-2-III (consol. w/35971-9-III)
State v. Knott


                                          FACTS

       Peggy Knott sold methamphetamine to a single police informant on three

occasions between December 21, 2016, and January 2, 2017. Each sale occurred within a

school zone. Law enforcement later executed a search warrant at Knott’s home and

discovered methamphetamine, morphine, and Oxycodone.

                                      PROCEDURE

       The State of Washington charged Peggy Knott with one count of possession with

intent to deliver a controlled substance, methamphetamine, one count of possession with

intent to deliver a controlled substance, morphine, and one count of possession with

intent to deliver a controlled substance, Oxycodone, all three counts based on the

controlled substances found inside Knott’s home. The State also charged Knott with

three counts of delivery of a controlled substance, methamphetamine, based on the sales

to the informant.

       After a bench trial, the trial court convicted Knott on all counts but possession

with intent to deliver morphine. The court instead found Knott guilty of the lesser charge

of possession of a controlled substance, morphine. The court also found that school zone

enhancements applied to all counts except for possession of morphine. The trial court

sentenced Peggy Knott to the statutory maximum of ten years, while imposing five

school zone enhancements consecutively to one another.

       Peggy Knott filed a notice of appeal. Thereafter, the State and defense counsel

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No. 35546-2-III (consol. w/35971-9-III)
State v. Knott


received an e-mail from the Department of Corrections (DOC) asking for clarification or

correction of Knott’s sentence because DOC believed the school zone enhancements

could not run consecutive to each other.

      The trial court resentenced Peggy Knott. During resentencing, the State asked the

sentencing court to sentence Knott above the standard range because of aggravating

factors, including Knott’s child residing at the home where law enforcement found

controlled substances. Knott’s attorney asked the court to grant a parenting sentencing

alternative or drug offender sentence alternative or impose a sentence in the low end of

the standard range. He never sought a downward exceptional sentence.

      At resentencing, the trial court imposed a mid-range sentence of 48 months with

concurrent sentence enhancements of 24 months for a total of 72 months’ confinement.

When sentencing Knott, the court commented:

             Starting with that last part first, I do not believe that either the
      parenting sentencing alternative or the drug offender sentencing alternative
      are appropriate sentencing at this point in time. Ms. Knott,—obviously you
      thought those were appropriate ways of resolving these matters I think this
      matter would have been handled or dealt with in somewhat of a different
      way. I think they’re being looked at now as a way to go ahead and try to
      minimize your potential overall exposure in these cases.
             ....
             With regards to Counts 1, 3, 4, 5 and 6, the court is going to go
      ahead and impose a sentence of 48 months on those plus the 24-month
      enhancement—so—be a total of 72 months on Counts 1, 3, 4, 5 and 6.
      Count 2 the court is going to go ahead and impose the 12 plus one day on
      those.
             The factor—reason that I’m imposing the 48 months is—Ms. Knott,
      you have a substantial history that has racked up in just a short period of

                                            3
No. 35546-2-III (consol. w/35971-9-III)
State v. Knott


       time. There are multiple different deliveries over a period of time in this
       case. You’ve obviously gone out and violated the conditions of release
       afterwards by using a controlled substance in this case.—[O]bviously going
       to continue this enterprise, this drug dealing enterprise, even beyond those
       times when you—did the deliveries, evidenced by the multiple drugs that
       were found in your homes and the operation that you were operating in
       your home. So—gives the court great concerns that you were going to
       continue this enterprise well beyond what was done for a short period of
       time.
              But the court also recognizes that you have no prior criminal history
       coming into this, and I don’t find that you were doing this to become a
       wealthy drug lord in this matter,—these were small deliveries done I think
       to essentially to substantiate or—support your own habit that you have and
       the drug addiction habit that you have. So I do find that—sentence of 48
       months on Counts 1, 3, 4, 5 and 6 are appropriate plus the 24-month
       enhancement (inaudible) 1, 3, 4, 5 and 6 and that the 12-plus—12-plus-one-
       day to be run concurrently as well.

Report of Proceedings (Oct. 19, 2017) at 39-44.

       During the resentencing hearing, the trial court did not inquire into Peggy Knott’s

ability to pay legal financial obligations. The sentencing court entered a finding that

Knott had the present means to contribute to the cost of her incarceration. The court

checked the box requiring Knott to contribute to the costs of her incarceration, but

ordered no rate of payment per day. The resentencing court also imposed a condition of

Knott’s community custody requiring that she “not associate nor have contact with

persons with felony convictions, except as approved by the Department [of Corrections].”

Clerk’s Papers (CP) at 153. Peggy Knott also appealed her resentencing.

                                 LAW AND ANALYSIS

       On appeal, Peggy Knott assigns three errors to her resentencing. First, her defense

                                             4
No. 35546-2-III (consol. w/35971-9-III)
State v. Knott


counsel performed ineffectively by failing to raise the multiple offense policy and

omitting a request for an exceptional sentence downward. Second, the community

custody ban of contact with persons with felony convictions is unconstitutional. Third,

the resentencing court erred when imposing on her the cost of incarceration without

inquiring into her ability to pay.

                                 Multiple Offense Doctrine

       Peggy Knott contends that her defense counsel should have asked the court to

impose an exceptional sentence below the standard range or, at least, have argued the

“multiple offense policy” as a basis for a sentence at the lower end. Because counsel did

neither, Knott argues she received ineffective assistance at her resentencing hearing. The

State argues that Knott fails to establish either prong of ineffective assistance of counsel.

We agree that Knott fails to show prejudice and do not address whether Knott establishes

deficient representation.

       A claim of ineffective assistance of counsel is an issue of constitutional magnitude

that can be raised for the first time on appeal. State v. Kyllo, 166 Wn.2d 856, 862, 215

P.3d 177 (2009); RAP 2.5(a). To establish ineffective assistance of counsel, a defendant

must satisfy a two-prong test: (1) that his or her counsel’s assistance was objectively

unreasonable, and (2) that, as a result of counsel’s deficient assistance, he or she suffered

prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d

674 (1984). The defendant must establish both prongs of an ineffective assistance of

                                              5
No. 35546-2-III (consol. w/35971-9-III)
State v. Knott


counsel claim. Strickland v. Washington, 466 U.S. at 687.

       In Washington, a sentencing court may impose a prison term below the standard

range if the court finds that mitigating circumstances are established by a preponderance

of the evidence. RCW 9.94A.535(1). The statute allows an exceptional sentence

downward when “[t]he operation of the multiple offense policy of RCW 9.94A.589

results in a presumptive sentence that is clearly excessive in light of the purpose of this

chapter, as expressed in RCW 9.94A.010.” RCW 9.94A.535(1)(g). This mitigating

factor applies when multiple delivery convictions result from a series of police initiated

controlled buys. State v. Sanchez, 69 Wn. App. 255, 848 P.2d 208 (1993); State v.

Hortman, 76 Wn. App. 454, 886 P.2d 234 (1994). Otherwise, law enforcement could

continue to purchase controlled substances from the accused in a string of controlled buys

in order to significantly increase the accused’s sentence. In Hortman, the Court of

Appeals noted:

               The court’s role in these situations is to focus on the difference, if
       any, between the effects of the first controlled buy and the cumulative
       effects of subsequent controlled buys. Where that difference is nonexistent,
       trivial or trifling, there is a basis in law for an exceptional sentence
       downward.

State v. Hortman, 76 Wn. App. at 461. Peggy Knott argues that her second and third

deliveries to the confidential informant added little or nothing to her culpability.

       Peggy Knott, relying principally on State v. McGill, 112 Wn. App. 95, 47 P.3d 173

(2002), argues that defense counsel’s failure to seek an exceptional sentence under the

                                              6
No. 35546-2-III (consol. w/35971-9-III)
State v. Knott


multiple offense policy deprived her of the effective assistance of counsel. In McGill, the

State convicted Keith McGill of three counts of delivery of cocaine. The Kent Police

Department used a confidential informant to purchase the cocaine from McGill. McGill

appealed his standard range sentence by arguing ineffective assistance because his

attorney did not argue for an exceptional sentence below the standard range and failed to

cite Sanchez or Hortman to the sentencing court. When sentencing McGill, the trial court

remarked:

              I’m sure you are aware that the legislature has decided that judges
       should not have discretion beyond a certain sentencing range on these
       matters. And sometimes some of these drug cases, it seems like, when you
       compare them to some of the really violent and dangerous offenses, it
       doesn’t seem to be justified. But it’s not my call to determine the standard
       range. The legislature has done that for me.
              So I have no option but to sentence you within the range on these of
       87 months to 116 months. But I do get to decide where in that range the
       sentence is appropriate.


State v. McGill, 112 Wn. App. at 98-99. The Court of Appeals held that McGill was

denied effective assistance of counsel at sentencing when defense counsel failed to cite

the relevant case law. The court noted that a trial court cannot exercise its discretion if

counsel fails to inform the court of the discretion it has to exercise. The court vacated

McGill’s sentence and remanded for a new sentencing hearing.

       The State convicted Peggy Knott similarly of three counts of delivery of a

controlled substance after selling to the same confidential informant. Knott sold the same



                                              7
No. 35546-2-III (consol. w/35971-9-III)
State v. Knott


substance on each occasion within twelve days. Knott argues that, under these

circumstances, her defense counsel should have cited the relevant precedent and informed

the sentencing court that it could impose an exceptional sentence downward. According

to Knott, counsel should have argued that a standard range sentence resulted in an

excessive sentence because law enforcement should have arrested her after the first sale

rather than attempting to increase her sentence by additional purchases.

       The State contends that Peggy Knott’s sentencing court, unlike the sentencing

court in McGill, knew of its discretion to impose an exceptional sentence downward. The

State astutely emphasizes that Knott’s trial court rejected the State’s request for an

exceptional sentence upward based on aggravating factors and rejected Knott’s request

for a reduced sentence through the drug offender sentencing alternative and the parenting

sentencing alternative. Nevertheless, we deem the State’s argument, although accurate to

the facts, irrelevant as to whether trial defense counsel should have requested a

downward exceptional sentence based on the multiple offense policy. The State’s

argument bears on prejudice.

       We conclude that Peggy Knott fails to show probable prejudice. Unlike the

sentencing court in McGill, Knott’s court never lamented the lack of discretion or

complained about the length of drug sentences. As noted by the State, Knott’s sentencing

court weighed evidence when assessing whether to grant an exceptional sentence on other

grounds. The court noted that the charges occurred during a short window of time, but

                                              8
No. 35546-2-III (consol. w/35971-9-III)
State v. Knott


also observed that Knott likely would have continued her enterprise if not stopped by law

enforcement. Because of the stash of drugs found in her home, she likely engaged in

other sales not discovered. She violated conditions of her release from confinement.

       Prejudice is established when there is a reasonable probability that, but for

counsel’s errors, the result of the trial would have been different. In re Personal

Restraint of Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001). Knott carries the burden of

establishing prejudice. Strickland v. Washington, 466 U.S. at 687 (1984). Knott does not

satisfy this burden because she does not show the sentencing court would have likely

lowered her sentence based on the multiple offense policy.

                              Community Custody Condition

       The sentencing court ordered Peggy Knott, as part of her twelve months of

community custody, “not to associate nor have contact with persons with felony

convictions, except as approved by the Department.” CP at 152. Knott asserts that the

condition is unduly and unconstitutionally vague because it fails to provide her with

sufficient notice of what constitutes “associating” or “having contact” with one with a

felony conviction. Knott soundly observes that she could be penalized for an interaction

with a felon without her knowing the person to possess a felony conviction. Knott does

not complain about the language concerning approval by the Department of Corrections.

Knott impliedly asks this court to strike the entire community custody condition rather

than narrow its terms. She does not ask that the condition be limited to felons with

                                             9
No. 35546-2-III (consol. w/35971-9-III)
State v. Knott


controlled substance convictions. The State argues the provision is both a reasonable

exercise of discretion and sufficient to place a reasonable person on notice of prohibited

conduct.

       We agree with Peggy Knott that the community custody condition suffers from

vagueness, but refuse to strike the condition in its entirety. Instead we remand for the

trial court to reform the community custody condition to read: “not to associate nor have

contact with any person whom defendant knows to have a felony conviction, except as

approved by the Department.”

       The guaranty of due process, contained in the Fourteenth Amendment to the

United States Constitution and article I, section 3 of the Washington Constitution,

precludes vague laws. State v. Irwin, 191 Wn. App. 644, 652, 364 P.3d 830 (2015). The

due process vagueness doctrine requires that citizens have fair warning of proscribed

conduct. City of Spokane v. Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990). A

statute is unconstitutionally vague if it (1) does not define the criminal offense with

sufficient definiteness that an ordinary person can understand what conduct is proscribed,

or (2) does not provide ascertainable standards of guilt to protect against arbitrary

enforcement. Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 75 L. Ed. 2d. 903

(1983); State v. Bahl, 164 Wn.2d 739, 752-53, 193 P.3d 678 (2008). If persons of

ordinary intelligence are able to understand what the law proscribes, notwithstanding

some possible areas of disagreement, the law is sufficiently definite. State v. Bahl, 164

                                             10
No. 35546-2-III (consol. w/35971-9-III)
State v. Knott


Wn.2d at 754.

      A defendant may assert vagueness challenges to conditions of community custody

for the first time on appeal. State v. Bahl, 164 Wn.2d at 745. A community custody

condition that is manifestly unreasonable will be reversed. The imposition of an

unconstitutional condition is always manifestly unreasonable. State v. Sanchez Valencia,

169 Wn.2d 782, 791-92, 239 P.3d 1059 (2010). Unlike legislative enactments, we do not

presume the constitutional validity of community custody conditions. State v. Irwin, 191

Wn. App. at 652. A community custody condition is not unconstitutionally vague simply

because a person cannot predict with complete certainty the exact point at which his or

her actions would be classified as prohibited conduct. State v. Sanchez Valencia, 169

Wn.2d at 793.

      Peggy Knott correctly notes that the restriction on association implicates the First

Amendment. When a condition of community placement concerns material protected

under the First Amendment, “a vague standard can cause a chilling effect on the exercise

of sensitive First Amendment freedoms.” State v. Bahl, 164 Wn.2d at 753. For this

reason, restrictions implicating First Amendment rights, such as freedom of association,

must be clear and must be reasonably necessary to accomplish essential state needs and

public order. State v. Riley, 121 Wn.2d 22, 37-38, 846 P.2d 1365 (1993).

      Three state decisions and two federal decisions inform our analysis. First, in State

v. Weatherwax, 193 Wn. App. 667, 376 P.3d 1150 (2016) rev’d on other grounds, 188

                                            11
No. 35546-2-III (consol. w/35971-9-III)
State v. Knott


Wn.2d 139, 392 P.3d 1054 (2017), two defendants challenged identical community

custody conditions that “the defendant not be allowed to have any association or contact

with known felons or gang members or their associates.” State v. Weatherwax, 193 Wn.

App. at 680. This court took issue with the term “or their associates” because the

condition encompassed those who may have only a social connection to an individual

gang member. This court held the condition unconstitutionally vague absent a showing

that the word “associates” was intended to have the meaning as defined by RCW

9.94A.030(13). The defendants did not challenge the words “association or contact.”

       Second, in State v. Riley, 121 Wn.2d 22 (1993), our Supreme Court upheld a

sentencing condition that prohibited a convicted computer hacker from “owning a

computer, associating with other computer hackers, and communicating with computer

bulletin boards.” State v. Riley, 121 Wn.2d at 36. The court held that these conditions

would help the defendant from committing further criminal conduct and were reasonably

related to the defendant’s convictions of computer trespass. The court held that the

conditions were not an unconstitutional restriction on the offender’s freedom of

association.

       Third, in State v. Hearn, 131 Wn. App. 601, 128 P.3d 139 (2006), Tami Hearn,

convicted of drug possession, challenged the constitutionality of a community custody

placement restriction that she refrain from “associating with known drug offenders.”

State v. Hearn, 131 Wn. App. at 607. Relying on Riley, this court held that the restriction

                                            12
No. 35546-2-III (consol. w/35971-9-III)
State v. Knott


on Hearn’s ability to associate with known drug offenders was constitutional because the

conditions would help prevent Hearn from further criminal conduct.

       Fourth, in United States v. Soltero, 510 F.3d 858 (9th Cir. 2007), the court held the

verb “associate” was not impermissibly vague when confronted with the following

condition: “The defendant shall not associate with any known member of any criminal

street gang . . . as directed by the Probation Officer, specifically, any known member of

the Delhi street gang.” Soltero, 510 F.3d at 865. The identification of the specific street

gang insulated the condition from a vagueness challenge.

       Fifth, in United States v. Vega, 545 F.3d 743 (9th Cir. 2008), the court analyzed a

condition nearly identical to that in Soltero. Unlike the condition in Soltero that

expressly stated the defendant shall not associate with any known member, the condition

in Vega was not limited to known members. Therefore, Raul Vega argued that he might

face penalties for unknowingly violating the condition by associating with someone

whom he did not know to be a street gang member. The Vega court applied the

presumption that prohibited criminal acts require the mens rea element. United States v.

Vega, 545 F.3d at 750. Thus, the court read the condition to prohibit knowing association

with members of a criminal street gang and held the condition not impermissibly vague.

       Based on the five decisions, we hold that the verbs “associate” and “have contact”

pass constitutional muster provided the object of the association and contact is known.

We further hold that a condition may not restrict the defendant from contact with a felon

                                             13
No. 35546-2-III (consol. w/35971-9-III)
State v. Knott


regardless of whether the defendant knows the person holds a felony conviction. The

condition must be limited to precluding contact with one that the defendant knows has

been convicted of a felony. Since Peggy Knott does not argue that the restriction must be

limited to those with drug convictions, as opposed to other felonies, we do not address

this narrower question.

                                    Cost of Incarceration

       Finally, Peggy Knott argues the sentencing court exceeded its authority by

ordering Knott to pay for the cost of incarceration without evaluating her ability to pay.

The court checked a box in the amended judgment and sentence that required Knott to

pay the cost of her incarceration. But, the court failed to insert the rate of pay per day.

Knott correctly asserts that a sentencing court may only order a person to pay the cost of

his or her incarceration on finding that he or she “at the time of sentencing, has the means

to pay the cost of incarceration.” RCW 9.94A.760(3). The sentencing court did not

conduct an inquiry into Knott’s financial situation at either sentencing hearing.

       The State agrees with Peggy Knott that the sentencing court conducted no inquiry

into Knott’s ability to pay. The State believes that the trial court inadvertently checked

the box requiring payment of incarceration and asks this court to determine the

appropriate remedy. The remedy for clerical or scrivener’s error in judgment and

sentence forms is remand to the trial court for correction. CrR 7.8(a); In re Personal

Restrain of Mayer, 128 Wn. App. 694, 701-02, 117 P.3d 353 (2005). We direct this

                                              14
No. 35546-2-III (consol. w/35971-9-III)
State v. Knott


remedy.

                                     CONCLUSION

        We affirm Peggy Knott's sentence's length of confinement. We remand for

resentencing for the purposes of striking the financial obligation of paying for

incarceration and modifying the community custody condition in conformance with this

opm1on.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.



                                              Fearing, J.

WE CONCUR:




Siddoway, J.


Q.
Pennell, A. C .J.




                                             15
