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          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                            NO. 69402-2-

                    Respondent,                 DIVISION ONE

                    v.



ROBERT WILLIE RACHELS,                          UNPUBLISHED OPINION

                    Appellant.                  FILED: April 21, 2014




      Lau, J. — Robert Rachels appeals the sentencing court's denial of his "motion to

clarify conditions of sentence." He argues the court improperly delegated a sentencing

condition to his community corrections officer (CCO). Finding no error, we affirm.

                                         FACTS

      The State initially charged Robert Rachels with one count of first degree child

molestation and one count of communicating with a minor for immoral purposes. After

plea negotiations, the State amended the information to charge Rachels with three

counts of communication with a minor for immoral purposes.
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       The certification for determination of probable cause describes the facts

underlying the charges.1 Rachels's nine-year-old granddaughter, JIB, reported that

over the course of several years Rachels talked to her about sexual intercourse,

described to her the details of his past sexual relations with others, took her to locations

where he had engaged in sexual intercourse, and showed her pornographic magazines.

JIB also reported that Rachels touched her buttocks and breasts.

       Rachels pleaded guilty as charged in the amended information. His plea

agreement indicated he would be subject to "supervised probation under the jurisdiction

of and subject to standard rules of supervision of the Washington Department of

Corrections." On June 1, 2012, the sentencing court imposed a suspended sentence of

364 days' confinement with credit for time served for count one and imposed no

additional confinement for counts two and three. The court also ordered 24 months'

probation but later entered an order clarifying that "the 24 months of supervision

ordered by the court shall be 12 months of supervised [Department of Corrections]

supervision and 12 months of unsupervised supervision."2

       As a condition of his probation, the court ordered Rachels to comply with the

Department of Corrections' [DOC] standard rules and regulations of supervision. DOC's

standard conditions included requirements that Rachels notify his CCO before changing

residence and that Rachels "avoid contact with victim or minor children of similar age or



       1 Rachels stipulated that the facts set forth in the certification for determination of
probable cause were real and material facts for sentencing purposes.

       2 Under RCW 9.95.210(4), the DOC may supervise misdemeanant probationers
for up to 12 months of probation.
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close proximity where minors congregate, UNLESS authorized by the CCO." DOC's

"conditions, requirements, and instructions" also informed Rachels that the terms of his

supervision "can be revoked, modified, or changed at any time during the course of

supervision." As additional conditions of probation, the court also ordered Rachels to

"[fjollow treatment recommendations as set forth in 4/27/12 evaluation by Michael

Compte."3

       In September 2012, Rachels filed a "motion to clarify conditions of sentence"

requesting that the court issue an order "specifying that Mr. Rachels is not required,

under the terms of his sentence, to live at an address that has been approved in

advance by the Department of Corrections." Defense counsel's declaration in support

of the motion stated that after his release, Rachels had trouble finding housing because

he was a registered sex offender. Rachels found a landlord willing to rent him an

apartment at 1215 East Spring Street. He moved into the apartment and registered at

that address. However, Rachels's CCO Pat Tanaka told Rachels that he must live in

DOC-approved housing while he is on probation. Tanaka declined to approve

Rachels's East Spring Street residence because a Seattle University dormitory was

located on the same street. Tanaka told Rachels he would be in violation of his

probation conditions if he continued to live at the East Spring Street address but

indicated that the DOC would no longer consider Rachels in violation if he obtained a

court order clarifying that he need not obtain DOC approval for his housing.

       3Although the court's judgment and sentence referenced Michael Compte's
evaluation and treatment recommendations, they were not designated in the record on
appeal. As a result, we lack a complete record of Rachels's probation conditions for
review. The portions of Compte's evaluation and treatment recommendations quoted in
this opinion are taken from the verbatim report of proceedings.
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      At a September 6 hearing on Rachels's motion to clarify, defense counsel argued

that Rachels should be permitted to live at the East Spring Street address because no

sentencing condition required DOC approval for housing. Counsel requested the court

to enter an order to that effect. During the hearing, the court quoted from Compte's

evaluation: "'Analysis of static and dynamic risk factors would suggest Mr. Rachels is at

moderate risk for further criminal behavior. ... As long as he does not have

unsupervised access to children in the future, the risk to repeat that behavior is likely

low.'" Report of Proceedings (RP) (Sept. 6, 2012) at 25. After hearing argument, the

court indicated it wanted to hear from CCO Tanaka before deciding the motion.

      At the subsequent September 12 hearing on the matter, CCO Tanaka appeared

by telephone. Tanaka explained that Rachels's apartment location was "a concern to

both his therapy and to the [DOC]" due to its "close proximity" to female dormitories at

Seattle University. RP (Sept. 12, 2012) at 32. As a result, the DOC denied Rachels's

request to transfer to its Seattle unit and Tanaka informed him he could not live at the

East Spring Street apartment. Tanaka told the court that he advised Rachels not to sign

a lease at that apartment and provided Rachels with alternative available housing

options.

       The sentencing court denied Rachels's motion to live at an address not approved

by his CCO. It reasoned:

       I mean, that's the whole point in having the CCO monitor this and make the
       decisions is that it is much more tailored I think to the individuals and am I going
       to kind of micro manage CCOs in general or Mr. Tanaka in specifically in various
       aspects of the supervision? And the answer is no.

RP (Sept. 12, 2012) at 38-39. Rachels appeals.
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                                        ANALYSIS


      Rachels raises primarily a legal issue—whether the sentencing court improperly

delegated its authority to the DOC. He correctly notes that the Sentencing Reform Act

of 1981 (SRA), chapter 9.94A RCW, applies to felonies. RCW 9.94A.010; RCW

9.94A.905; State v. Williams. 97 Wn. App. 257, 263, 983 P.2d 687 (1999). As charged

and pleaded here, communication with a minor for immoral purposes is a gross

misdemeanor. RCW 9.68A.090(1). However, as discussed below, we conclude

Rachels is subject to the SRA's provisions regarding community custody.

      Our trial courts have great discretion in imposing sentences within the statutory

limits for misdemeanors and gross misdemeanors.

      This broad discretion is consistent with the tradition in American criminal
      jurisprudence affording wide latitude to sentencing judges on grounds that "the
      punishment should fit the offender and not merely the crime." While the
      Sentencing Reform Act of 1981 (SRA) places substantial constraints on this
      historical discretion in felony sentencing, no similar legislation restricts the trial
      court's discretion in sentencing for misdemeanors or gross misdemeanors.

State v. Anderson, 151 Wn. App. 396, 402, 212 P.3d 591 (2009) (internal quotation

marks and footnote omitted) (quoting State v. Herzoq, 112 Wn.2d 419, 423-24, 771

P.2d 739 (1989)). Courts may impose any sentence up to one year in jail for gross

misdemeanors. RCW 3.66.060; RCW9A.20.021(2); RCW 9.92.020; RCW 9.95.210.

      "[I]n 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." RCW 9.95.210(1 )(a). Further, "the

superior court may order the probationer to report to the secretary of corrections or such
69402-2-1/6



officer as the secretary may designate and as a condition of the probation to follow the

instructions of the secretary for up to twelve months." RCW 9.95.210(4). "The

secretary of corrections will promulgate rules and regulations for the conduct of the

person during the term of probation." RCW 9.95.210(5) (emphasis added).

       Relevant to the crimes at issue here, RCW 9.94A.501 provides:

       [DOC] shall supervise the following offenders who are sentenced to probation in
       superior court, pursuant to RCW 9.92.060, 9.95.204, or 9.95.210:
              (a) Offenders convicted of:

              (iii) Communication with a minor for immoral purposes ....

RCW 9.94A.501(1)(a)(iii) (emphasis added). This provision is part of the SRA. Thus,

DOC must supervise offenders convicted of communication with a minor for immoral

purposes who are sentenced to probation. "Misdemeanor and gross misdemeanor

offenders supervised by the department pursuant to [RCW 9.94A.501] shall be placed

on community custody." RCW 9.94A.501(2) (emphasis added).

       Rachels contends he is not subject to the SRA because he was sentenced for a

misdemeanor. However, he does not dispute that the sentencing court ordered a period

of probation—12 months of which is mandatory DOC-supervised community custody

under RCW 9.94A.501(a)(iii). RCW 9.94A.704(1) provides, "Every person who is

sentenced to a period of community custody shall report to and be placed under the

supervision of [DOC], subject to RCW 9.94A.501." The SRA defines "offender" as

follows:

       "Offender" means a person who has committed a felony established by state law
       and is eighteen years of age or older or is less than eighteen years of age but
       whose case is under superior court jurisdiction under RCW 13.04.030 or has
       been transferred by the appropriate juvenile court to a criminal court pursuant to
       RCW 13.40.110. In addition, for the purpose of community custody reguirements
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      under this chapter, "offender" also means a misdemeanant or gross
      misdemeanant probationer ordered by a superior court to probation pursuant to
      RCW 9.92.060, 9.95.204, or 9.95.210 and supervised by the department
      pursuant to RCW 9.94A.501 and 9.94A.5011. Throughout this chapter, the terms
      "offender" and "defendant" are used interchangeably.

RCW 9.94A.030(34) (emphasis added). Thus, the SRA explicitly makes gross

misdemeanant probationers under DOC supervision—as Rachels is here—subject to

the SRA's provisions for purposes of community custody requirements.

      RCW 9.94A.704 expressly empowers DOC to impose conditions of supervision

on offenders. Relevant here, RCW 9.94A.704(2)(a) provides that DOC "shall assess

the offender's risk of reoffense and may establish and modify additional conditions of

community custody based upon the risk to community safety." Further, DOC "may

require the offender to participate in rehabilitative programs, or otherwise perform

affirmative conduct. . . ." RCW 9.94A.704(4). The trial court must order the offender

to comply with any conditions DOC imposes under RCW 9.94A.704, as long as the

DOC's conditions do not contravene or decrease court-ordered conditions. See

RCW9.94A.703(1)(b); RCW 9.94A.704(2)(a), (6); 13B SethA. Fine & Douglas J.

Ende, Washington Practice: Criminal Law § 3607, at 183-84 (2d ed. 2012-13)

(DOC-imposed community custody conditions are mandatory).

      While it is the function of the judiciary to determine guilt and impose sentences,
      "the execution of the sentence and the application of the various provisions for
      the mitigation of punishment and the reformation of the offender are
      administrative in character and are properly exercised by an administrative body,
       according to the manner prescribed by the legislature."

State v. Sansone, 127 Wn. App. 630, 642, 111 P.3d 1251 (2005) (quoting State v.

Mulcare, 189 Wn. 625, 628, 66 P.2d 360 (1937)).



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       Nothing in the text of RCW 9.94A.704 limits DOC supervisory conditions to those

that are crime related.


       Instead, [DOC] must perform a risk assessment and then impose conditions with
       public safety in mind. The statute grants DOC broader authority than that given
       the trial courts in order to follow up on the department's duty to conduct an
       individualized risk assessment. While the trial court must focus generally on the
       defendant's crime, the [DOC] focuses on the risks posed by the defendant.

In re Golden, 172 Wn. App. 426, 433, 290 P.3d 168 (2012) (interpreting RCW

9.94A.704 and its predecessor statute, former RCW 9.94A.715). Division Two of this

court recently rejected a defendant's argument that the sentencing court improperly

delegated to DOC the specifics of his community custody conditions:

              Here, the sentencing court properly delegated the specifics of
       McWilliams's community custody conditions to the DOC. Unlike the cases
       McWilliams relies on, he does not challenge a specific court-created condition.
       See [State v.] Sanchez Valencia, 169 Wash.2d [782, 794-95], 239 P.3d 1059
       [(2010)] (the court prohibited Valencia's possession of paraphernalia); State v.
       Zimmer, 146 Wash. App. 405, 413, 190 P.3d 121 (2008) (the court prohibited
       Zimmer's possession of a cell phone). Instead, McWilliams challenges whether
       the sentencing court may ask the DOC to establish additional conditions based
       on the community's risk. RCW 9.94A.704(2)(a) authorizes the DOC to "establish
       and modify additional conditions of community custody based upon the risk to
       community safety." Further, the court's delegation of the specifics of community
       custody conditions to DOC was within DOC's authority set by Sansone.
       Therefore, the sentencing court did not impermissibly delegate sentencing
       authority to the DOC.

State v. McWilliams, 177 Wn. App. 139, 154,311 P.3d 584 (2013), review denied, 318

P.3d 279 (2014).

       Here, the sentencing court properly delegated to DOC the specifics of Rachels's

community custody conditions. As noted above, Rachels is an "offender" under the

SRA for purposes of community custody conditions. RCW 9.94A.704, Golden, and

McWilliams undermine Rachels's argument that the DOC has no authority to impose


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additional conditions. As the court in Golden explained, "The explicit grant of authority

to DOC [in former RCW 9.94A.715(2)(b)'s first sentence] could not be clearer. DOC

can impose additional conditions of community supervision." Golden, 172 Wn. App. at

434. Rachels does not contend that DOC's housing approval requirement is contrary to

or "contravene[s] or decrease[s] court-imposed conditions."4 RCW 9.94A.704(6).

Although Rachels's community custody terms included a CCO's exercise of discretion,

the sentencing court had statutory authority to delegate this power in this manner.5 The

court acted within its statutory authority and adhered to RCW 9.94A.703(1)(b)'s

requirement that it order Rachels to comply with his CCO's directives.6


       4 Rachels merely argues that nothing in the judgment and sentence prohibits him
from living near minors or requires him to obtain his CCO's approval before living at a
residence. As discussed above, DOC has authority to impose conditions separate from
those imposed in the judgment and sentence based on its risk assessment and
considerations of public safety. Golden, 172 Wn. App. at 433.

       5We note that offenders who disagree with DOC's additional conditions or
modifications following a risk assessment are not without a remedy. "By the close of the
next business day after receiving notice of a condition imposed or modified by the
department, an offender may request an administrative review under rules adopted by
the department." RCW 9.94A.704(7)(b). To the extent Rachels challenges the
circumstances and rationale behind DOC's requirement that he live in DOC-approved
housing, these arguments are more properly addressed in the administrative review
context.


        6 Relying on language from State v. Williams, 97 Wn. App. 257, 983 P.2d 687
(1999), Rachels contends that the sentencing court "erred in denying the motion to
clarify that the CCO lacked the authority to impose the residence condition in the
absence of judicial ratification." Appellant's Br. at 5. In Williams, the court rejected an
argument that the judgment and sentence improperly delegated authority to the
Probation Department to set the terms of probation, noting that the district court retained
the right to "ratify" the conditions and that the defendant had the right to a hearing over
any terms of probation. Williams, 97 Wn. App. at 264-65. Rachels contends this
language requires the court to ratify any DOC-imposed conditions. We disagree. In
Williams, the defendant pleaded guilty to five misdemeanor counts: vehicle prowling,
possession ofstolen property, fourth degree assault, malicious mischief, and
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                                   CONCLUSION

      The sentencing court properly denied Rachels's motion to clarify his sentence.

We affirm.




WE CONCUR:




3              /i^-T




brandishing a weapon. Williams, 97 Wn. App. at 259-60. A district court commissioner
sentenced the defendant to jail time with all but 30 days suspended, a 2-year
probationary period, and a fine. Williams, 97 Wn. App. at 260. The defendant was
under the supervision of the Probation Department, not the Department of Corrections.
Indeed, the court noted, "The SRA does not control the imposition of probationary
conditions upon misdemeanant offenders." Williams, 97 Wn. App. at 263. As
discussed above and distinguished from the defendant in Williams, Rachels is under
DOC supervision and the statutory scheme for his particular crime explicitly subjects
him to the SRA's provisions regarding community custody conditions. Williams is
inapposite. No ratification was necessary here.

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