                                                            FILED
                                                        JANUARY 22, 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. 35601-9-III
                                              )
                     Respondent,              )
                                              )
              v.                              )        UNPUBLISHED OPINION
                                              )
SHANNON B. BLAKE,                             )
                                              )
                     Appellant.               )

       LAWRENCE-BERREY, C.J. — Shannon Blake appeals her conviction for unlawful

possession of a controlled substance—methamphetamine. She argues the trial court

violated her Sixth Amendment to the United States Constitution right to a jury trial when,

at sentencing, it found she was chemically dependent and it increased her community

custody sentence above the standard range. She also argues requiring her to prove

unwitting possession to the charged offense violates due process. She further argues we

should remand to have the trial court strike the $200 criminal filing fee and two

community custody conditions. We agree that the $200 criminal filing fee must be struck,

but otherwise affirm.
No. 35601-9-III
State v. Blake


                                         FACTS

       The Spokane Police Department executed a search warrant for a criminal

investigation unrelated to Ms. Blake’s present charge. Ms. Blake was taken into custody

and later searched at the Spokane County Jail. Jail staff located a small “baggie”

containing methamphetamine in the coin pocket of her jeans.

       Trial

       The State charged Ms. Blake with unlawful possession of a controlled substance—

methamphetamine. Ms. Blake waived her right to a jury trial, both orally and in writing.

       At her bench trial, Ms. Blake testified she had no knowledge that the jeans she

wore contained methamphetamine. She acknowledged the jeans did in fact contain

methamphetamine and that the jeans belonged to her. Ms. Blake claimed the jeans were a

gift from a friend and that she had received the jeans two days before she was arrested.

       Ms. Blake’s boyfriend also testified at trial and attempted to corroborate Ms.

Blake’s story. The trial court did not find the testimonies of Ms. Blake or her boyfriend

credible. The court determined that Ms. Blake did not meet her burden of proving

unwitting possession by a preponderance of the evidence and found her guilty.




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No. 35601-9-III
State v. Blake


       Sentencing

       At sentencing, the State urged the court to sentence Ms. Blake under the first time

offender option, which would reduce the high end of her standard range sentence from 6

months to 90 days. The State also asked the trial court to make a finding that Ms. Blake

is chemically dependent, which would permit the court to impose 12 months of

community custody.

       Ms. Blake did not object to the trial court sentencing her as a first time offender.

Ms. Blake argued that she was not chemically dependent and asked the trial court to

impose only six months of community custody.

       The trial court found that Ms. Blake had a chemical dependency that contributed to

her crime. The court then sentenced her to three days in jail, with credit for three days

served. The court also imposed 12 months of community custody for treatment.

       In addition, the court imposed community custody conditions. The conditions

required Ms. Blake to remain within prescribed geographical boundaries as directed by

her community corrections officer (CCO) and to obey all conditions of probation imposed

by the Department of Corrections (DOC).

       Ms. Blake appeals.




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No. 35601-9-III
State v. Blake


                                        ANALYSIS

       A.     MS. BLAKE’S SIXTH AMENDMENT CLAIM

       Ms. Blake argues the trial court violated her right to a jury trial under the Sixth

Amendment to the United States Constitution when, at sentencing, it made the chemical

dependency finding that allowed it to impose a community custody term above her

standard range sentence.

       It is unconstitutional under the Fourteenth Amendment’s due process clause and

the Sixth Amendment “‘to remove from the jury the assessment of facts that increase the

prescribed range of penalties to which a criminal defendant is exposed.’” Apprendi v.

New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) (quoting Jones

v. United States, 526 U.S. 227, 252-53, 119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999)

(Stevens, J. concurring)). “Other than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt.” Id. The “statutory

maximum” means “the maximum sentence a judge may impose solely on the basis of the

facts reflected in the jury verdict or admitted by the defendant.” Blakely v. Washington,

542 U.S. 296, 303, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).




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No. 35601-9-III
State v. Blake


       A defendant may waive his or her right to have a jury decide facts that increase the

maximum sentence beyond the statutory maximum. State v. Trebilcock, 184 Wn. App.

619, 632, 341 P.3d 1004 (2014). As explained below, we need not decide whether Ms.

Blake’s jury waiver extended to the trial court’s chemical dependency finding at

sentencing.

       RCW 9.94A.650 provides in relevant part:

              (2) In sentencing a first-time offender the court may waive the
       imposition of a sentence within the standard sentence range and impose a
       sentence which may include up to ninety days of confinement . . . .
              (3) The court may impose up to six months of community custody
       unless treatment is so ordered, in which case the period of community
       custody may include up to the period of treatment, but shall not exceed one
       year.

       Here, Ms. Blake agreed for the trial court to sentence her under the first time

offender statute. Under the statute, the standard range community custody term for an

offender ordered to undergo treatment is the treatment period, not to exceed one year.

Here, Ms. Blake was ordered to undergo treatment. Her one-year community custody

term, therefore, was within the standard range.

       B.     CRIMINAL FILING FEE

       Ms. Blake argues the trial court’s imposition of the $200 criminal filing fee must

be struck due to a change in law.


                                             5
No. 35601-9-III
State v. Blake


       RCW 36.18.020(2)(h) prohibits trial courts from imposing the $200 criminal filing

fee against indigent defendants. This statute, effective June 7, 2018, applies

prospectively to pending direct appeals. State v. Ramirez, 191 Wn.2d 732, 747, 426 P.3d

714 (2018). The trial court found Ms. Blake indigent for purposes of appeal. We,

therefore, direct the trial court to strike the $200 criminal filing fee.

       C.      MS. BLAKE’S DUE PROCESS CLAIM

       The crime of possession of a controlled substance does not require a mens rea

element. State v. Bradshaw, 152 Wn.2d 528, 532, 98 P.3d 1190 (2004); see also State v.

Cleppe, 96 Wn.2d 373, 380, 635 P.2d 435 (1981). The affirmative defense of unwitting

possession has been adopted by our courts to “ameliorate[ ] the harshness of the almost

strict criminal liability our law imposes for unauthorized possession of a controlled

substance.” Cleppe, 96 Wn.2d at 380-81.

       Ms. Blake argues that placing the burden on her to prove unwitting possession

violates due process. This argument was addressed and rejected in State v. Schmeling,

191 Wn. App. 795, 365 P.3d 202 (2015). Ms. Blake requests that we not follow

Schmeling, but fails to articulate specific reasons why Schmeling was wrongly decided.

We reject Ms. Blake’s request.




                                                6
No. 35601-9-III
State v. Blake


       D.     COMMUNITY CUSTODY CONDITIONS; VAGUENESS

       Ms. Blake challenges two conditions: (1) that she remain within prescribed

geographical boundaries as directed by her CCO, and (2) to obey all conditions imposed

by the DOC. She contends that the community custody conditions are unconstitutionally

vague because they do not specify proscribed conduct and they allow the CCO and DOC

boundless discretion. The State responds that Ms. Blake’s preenforcement challenge to

community custody conditions is not ripe for review. We disagree.

       A defendant may bring a preenforcement vagueness challenge to sentencing

conditions if the challenge is sufficiently ripe. State v. Bahl, 164 Wn.2d 739, 751, 193

P.3d 678 (2008). The Washington Supreme Court has adopted a three-pronged test to

determine if a vagueness challenge on community custody conditions is ripe for review.

Id. The claim is ripe if the issues raised are primarily legal, do not require further factual

development, and the challenged action is final. Id.

       Ms. Blake’s challenges are ripe for review. The legal question of whether the

conditions are vague does not require further factual development. Next, the challenged

action is final as Ms. Blake has been convicted and sentenced. Lastly, as with most

vagueness challenges, the inquiry is primarily legal. Id. at 752.




                                              7
No. 35601-9-III
State v. Blake


       In Bahl, the defendant challenged conditions that prohibited him from possessing

or accessing pornographic materials as directed by the CCO and from frequenting

establishments whose primary business pertains to sexually explicit or erotic material. Id.

at 754, 758. There, the court held that the preenforcement challenges could be evaluated

on the existing record. Id. at 752. Likewise, here, Ms. Blake’s challenges can be

evaluated on the present record and her challenges are, therefore, ripe for review.

       The due process vagueness doctrine under the Fourteenth Amendment and

article I, section 3 of the Washington Constitution requires citizens to have fair warning

of what conduct is prohibited by law. Id. at 752. A statute is unconstitutionally vague if

it “‘(1) . . . does not define the criminal offense with sufficient definiteness that ordinary

people can understand what conduct is proscribed, or (2) . . . does not provide

ascertainable standards of guilt to protect against arbitrary enforcement.’” Id. at 752-53

(alterations in original) (quoting City of Spokane v. Douglass, 115 Wn.2d 171, 178, 795

P.2d 693 (1990)).

       In the present case, the first challenged condition requires Ms. Blake to comply

with the geographical boundaries set by the CCO. This prohibition is identical to the

guidelines set forth by RCW 9.94A.704, which establish the rules for community custody.

The statute provides: “If the offender is supervised by the [D]epartment [of Corrections],


                                               8
No. 35601-9-III
State v. Blake


the [D]epartment shall at a minimum instruct the offender to . . . [r]emain within

prescribed geographical boundaries . . . .” RCW 9.94A.704(3)(b). Ms. Blake contends

that this condition confers boundless discretion on the CCO. We disagree.1 First, this

condition informs an ordinary person that he or she will be subject to geographic

limitations while under community custody. The challenged condition does not contain a

vague or undefined term that would leave an ordinary person confused about what

conduct is prohibited. In addition, conditions set by the CCO must be provided to the

offender in writing and the offender has an opportunity for administrative review to

challenge the lawfulness of the condition. RCW 9.94A.704(7)(a)-(b). This process

prevents arbitrary enforcement of the community custody condition.

       Next, the challenged condition that Ms. Blake obey all conditions by the

DOC is not unconstitutionally vague. This condition mirrors RCW 9.94A.704(4): “The

department may require the offender to participate in rehabilitative programs, or

otherwise perform affirmative conduct, and to obey all laws.” The requirements that Ms.




       1
         The due process vagueness challenge to similar conditions has been routinely
rejected by the Court of Appeals in unpublished cases. See, e.g., State v. Vanderveer,
noted at 171 Wn. App. 1034, 2012 WL 5503563, at *1; State v. Forgey, noted at 166 Wn.
App. 1047, 2012 WL 688232, at *8; State v. Osier, noted at 168 Wn. App. 1031, 2012
WL 2018201, at *2-*3.

                                             9
No. 35601-9-III
State v. Blake


Blake be provided notice and an opportunity for administrative review also apply to this

condition.

       We reject Ms. Blake's claim that the community custody conditions are

unconstitutionally vague.

      Affirmed, except strike $200 criminal filing fee.

      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.

                                           ltt.._,,,;.... (, ~. ~'W..<-7   , C.. ~.
                                         Lawrence-Berrey, C.J.

WE CONCUR:




                                         Siddoway,   1:




                                            10
                                      No. 35601-9-III

       KORSMO,   J. (concurring) - Although I have signed the majority opinion, I write

separately to briefly discuss the disquieting consequences of accepting Ms. Blake's

argument concerning the chemical dependency finding. If she is correct that a chemical

dependency finding actually is an aggravating factor subject to a jury fact-finding, then

the prosecutor, rather than the sentencing judge, will control treatment options available

to the defendant because those possibilities will be fixed by the charging decision. The

charging authority also could be used to file chemical dependency allegations for the

purpose of putting evidence of a defendant's possible drug usage in front of a jury in a

situation where it otherwise would not be relevant. These scenarios benefit no one.

       Exactly what constitutes a "fact" that increases an offender's potential punishment

has been in flux since Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147

L. Ed. 2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L.

Ed. 2d 403 (2004). Ms. Blake rightly notes that any element-like findings must be

alleged by the prosecutor and proved to a jury, although aggravating factors need not

necessarily be alleged in the charging document itself. State v. Siers, 174 Wn.2d 269,

276-277, 274 P.3d 358 (2012). 1 While a criminal defendant can waive proof of an


       1
         Our court once summarized the issue: a "sentence enhancement must not only be
alleged, it also must be authorized by the jury in the form of a special verdict."· State v.
Williams-Walker, 167 Wn.2d 889,900,225 P.3d 913 (2010).
No. 35601-9-111
State v. Blake


aggravating factor, neither the defendant nor the trial court has the ability to file charges,

a power that rests solely with the executive authority.

       Similarly, it has been recognized that courts have no criminal sentencing authority

that has not been granted by the legislature. State v. Pillatos, 159 Wn.2d 459, 469, 150

P.3d 1130 (2007) (no authority for courts to adopt sentencing procedure necessary to

comply with United States Supreme Court mandate); State v. Ammons, 105 Wn.2d 175,

180, 713 P .2d 719, 718 P .2d 796 (1986) (legislature has plenary authority over setting

punishments). If chemical dependency truly is an aggravating factor, then the court's

authority to consider the possibility is left to the graces of the prosecutor, further limiting

judicial authority at sentencing. Treating the chemical dependency finding as an

aggravating factor also may negatively impact other sentencing alternatives that utilize

greater than typical periods of community supervision. 2

       Turning the keys to rehabilitative treatment over to the prosecutor is an unusual

argument for a defendant to make. I hope others do not follow in Ms. Blake's steps.




       2The legislature may need to reconsider whether it wants to continue treating
supervision as a period of "'punishment." RCW 9.94A.505(5).

                                               2
