                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                          February 19, 2020


    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                                No. 52233-1-II

                        Respondent,

        v.
                                                              UNPUBLISHED OPINION
 JOSEPH P. STONE,

                        Appellant.



       SUTTON, J. — Joseph Stone appeals his judgment and sentence, contending that the trial

court improperly imposed legal financial obligations (LFO) and two community custody

conditions. Stone argues that (1) the trial court was prohibited from ordering attachment of his

income if he misses a monthly LFO payment because his only source of income is his Social

Security Disability Insurance (SSDI) benefits, (2) 42 U.S.C. § 407(a) prohibits state courts from

ordering a defendant to pay mandatory LFOs if his only income is SSDI benefits, and (3) the

supervisory assessment fee is a discretionary LFO which should not have been imposed because

he is indigent. Stone also argues that the trial court exceeded its authority by ordering that he not

possess “any mind or mood-altering substances, to include the drug alcohol, [m]arijuana, or any

controlled substances, except pursuant to lawfully issued prescriptions,” and “submit to urinalysis

and/or breathalyzer testing . . . to verify compliance.” Clerk’s Papers (CP) at 145-46.

       We hold that (1) the judgment and sentence must be amended to add language that clarifies

that Stone’s SSDI benefits may not be attached, garnished, or otherwise encumbered for the
No. 52233-1-II


collection of LFOs; (2) under State v. Catling,1 the imposition of the crime victim penalty

assessment on Stone does not conflict with 42 U.S.C. § 407(a); and (3) the trial court did not err

by imposing the supervisory assessment fee because it is not a cost under RCW 10.01.160(3), but

on remand the court is encouraged to reconsider whether Stone has the ability to pay this fee, which

is discretionary.

         We further hold that the trial court exceeded its authority when it ordered Stone to refrain

from possessing “mind or mood-altering substances” because that condition is vague, and when it

ordered Stone to refrain from possessing alcohol because that condition is not crime related. We

hold that the trial court did not exceed its authority when it ordered Stone to refrain from possessing

“[m]arijuana, or any controlled substances, except pursuant to lawfully issued prescriptions,”

because the trial court may always instruct an offender to refrain from illegal activities. Finally,

we hold that the trial court did not exceed its authority when it ordered Stone to “submit to

urinalysis and/or breathalyzer testing . . . to verify compliance,” because the condition regarding

illegal drugs is valid. We remand to the trial court to amend the judgment and sentence in

accordance with this opinion.

                                               FACTS

         A jury found Stone guilty of first degree burglary and third degree assault. At sentencing,

Stone informed the trial court that he was indigent and disabled, and that he was receiving SSDI

benefits. The trial court imposed a $500 crime victim penalty assessment and a supervisory

assessment fee. The judgment and sentence contained the following language:




1
    193 Wn.2d 252, 438 P.3d 1174 (2019).


                                                  2
No. 52233-1-II


       A notice of payroll deduction may be issued or other income withholding action may be
       taken without further notice to the offender, if a monthly court-ordered legal financial
       obligation payment is not paid when due and an amount equal to or greater than the amount
       payable for one month is owed.

CP at 146.

       The trial court also imposed community custody conditions that required Stone to refrain

from any “mind or mood-altering substances” in addition to controlled substances and required

Stone to submit to urinalysis or breathalyzer testing as a means of verifying compliance with the

community custody conditions. CP at 145. Stone appeals the trial court’s imposition of the LFOs

and the two community custody conditions.

                                           ANALYSIS

                   I. ATTACHMENT AND CRIME VICTIM PENALTY ASSESSMENT

A. INCOME ATTACHMENT

       Stone argues that the trial court was prohibited from ordering attachment of his income if

he misses a monthly LFO payment because his only source of income is his SSDI benefits. The

State concedes this argument. We accept the State’s concession.

       Federal law prohibits the attachment of social security payments by any process of law. 42

U.S.C. § 407(a). Under 42 U.S.C. § 407(a), “Social Security moneys cannot be reached to satisfy

a debt.” State v. Catling, 193 Wn.2d 252, 260, 438 P.3d 1174 (2019). Accordingly, the attachment

provision should be stricken, and the trial court should amend the judgment and sentence to clarify

that social security benefits may not be attached, garnished, or otherwise encumbered for the

collection of LFOs.




                                                3
No. 52233-1-II


B. CRIME VICTIM PENALTY ASSESSMENT

        Stone argues that imposition of the crime victim penalty assessment was improper because

42 U.S.C. § 407(a) prohibits state courts from ordering a defendant to pay any LFO if his only

income is social security benefits. We disagree because the imposition of the crime victim penalty

assessment on Stone does not conflict with 42 U.S.C. § 407(a).

        The crime victim penalty assessment authorized under RCW 7.68.035(1) remains a

mandatory LFO after the 2018 legislative amendments to that statute.2 Catling, 193 Wn.2d at 259.

RCW 9.94A.760(1) now provides that an offender’s indigence is not grounds for failing to impose

the crime victim penalty assessment. The statute states in relevant part: “The court may not order

an offender to pay costs . . . if the court finds that the offender at the time of sentencing is indigent

. . . . An offender being indigent . . . is not grounds for failing to impose . . . the crime victim

penalty assessment [fee] . . . .” RCW 9.94A.760(1). Therefore, we must address whether this fee

can be assessed against a person such as Stone who receives SSDI.

        42 U.S.C. § 407(a), the Social Security Act’s antiattachment provision, states:

        The right of any person to any future payment under this subchapter shall not be
        transferable or assignable, at law or in equity, and none of the moneys paid or
        payable or rights existing under this subchapter shall be subject to execution, levy,
        attachment, garnishment, or other legal process, or to the operation of any
        bankruptcy or insolvency law.

Under this statute, “Social Security moneys cannot be reached to satisfy a debt.” Catling, 193

Wn.2d at 260.




2
 In 2018, our legislature enacted Second Substitute House Bill (SSHB) 1783, effective June 7,
2018, which amended several statutes related to the imposition of discretionary costs on indigent
defendants and interest on such costs, nonrestitution, and fees. See LAWS OF 2018, ch. 269.


                                                   4
No. 52233-1-II


       Our Supreme Court in Catling clarified that the imposition of the crime victim penalty

assessment fee on a person receiving SSDI does not violate 42 U.S.C. § 407(a). Catling, 193

Wn.2d at 264. However, the court also held that the crime victim penalty assessment fee cannot

be satisfied out of funds subject to 42 U.S.C. § 407(a). Catling, 193 Wn.2d at 264-65. The court

remanded for the court below to revise the judgment and sentence to state this limitation. Catling,

193 Wn.2d at 265-66.

       Following Catling, we hold that the trial court did not err by imposing the crime victim

penalty assessment fee on Stone. But, as we state above, the trial court on remand must amend

the judgment and sentence to reflect that LFOs cannot be satisfied out of funds subject to 42 U.S.C.

§ 407(a).

                                II. SUPERVISORY ASSESSMENT FEE

       Stone argues that the supervisory assessment fee is a discretionary LFO, and because his

only income is SSDI benefits, the fee was improperly imposed by the trial court. The State does

not dispute that a court cannot impose a discretionary LFO without inquiring into the defendant’s

ability to pay, but argues that the fee is mandatory. We hold that the trial court did not err by

imposing the supervisory assessment fee. However, we encourage the trial court on remand to

reevaluate the imposition of the supervisory assessment fee in light of Stone’s ability to pay.

       RCW 10.01.160(3) provides that the trial court shall not order a defendant to pay costs if a

defendant is receiving disabled assistance benefits. Similarly, RCW 9.94A.760 provides that the

trial court cannot order “costs” as described in RCW 10.01.160 if the defendant is receiving

disabled assistance benefits. RCW 10.01.160(2) limits “costs” “to expenses specially incurred by




                                                 5
No. 52233-1-II


the state in prosecuting the defendant or administering the deferred prosecution program under

chapter 10.05 RCW or pretrial supervision.”

       Here, the trial court imposed Stone’s supervisory assessment fee under RCW

9.94A.703(2)(d), which states, “Unless waived by the court, as part of any term of community

custody, the court shall order an offender to . . . [p]ay supervision fees as determined by the

[Department of Corrections].” The issue is whether the supervision assessment, a discretionary

LFO, is a “cost” under RCW 9.94.703(3)(d). The supervision assessment fee fails to meet the

definition of a “cost” under RCW 10.01.160(2) because it is not an expense specially incurred by

the State to prosecute the defendant, to administer a deferred prosecution program, or to administer

pretrial supervision.   Because the supervision assessment fee is not a cost as defined under RCW

10.01.160, the statutes do not prohibit the trial court from imposing the fee based on Stone’s

indigence.

       We note, however, that “[t]he barriers that LFOs impose on an offender’s reintegration to

society are well documented . . . and should not be imposed lightly merely because the legislature

has not dictated that judges conduct the same inquiry required for discretionary costs.” State v.

Clark, 191 Wn. App. 369, 376, 362 P.3d 309 (2015). We agree that this important policy should

be broadly supported. Therefore, we encourage the trial court on remand to reexamine the

imposition of the supervision assessment fee on Stone.

                             III. COMMUNITY CUSTODY CONDITIONS

       Stone argues that the trial court exceeded its authority by ordering community custody

conditions that were neither crime related nor otherwise authorized by statute. Specifically, that

he not possess “any mind or mood-altering substances, to include the drug alcohol, [m]arijuana,



                                                 6
No. 52233-1-II


or any controlled substances, except pursuant to lawfully issued prescriptions.” CP at 145. The

State concedes that, “the reference to ‘mind or mood-altering substances,’ should be redacted,”

from Stone’s judgment and sentence. Br. of Resp. at 7 (quoting CP at 145). Stone further argues

that the trial court exceeded its authority by ordering that he, “submit to urinalysis and/or

breathalyzer testing at the request of the [community custody officer] or treatment provider to

verify compliance.” Br. of Appellant at 12 (quoting CP at 146.)

       We accept the State’s concession regarding the reference to “any mind or mood-altering

substances.” We hold that the trial court exceeded its authority when it ordered Stone to refrain

from possessing “mind or mood-altering substances” because that condition is vague, and when it

ordered Stone to refrain from possessing alcohol because that condition is not crime related.

However, we hold that the trial court did not exceed its authority when it ordered Stone to refrain

from possessing “[m]arijuana, or any controlled substances, except pursuant to lawfully issued

prescriptions,” because the trial court may always instruct an offender to refrain from illegal

activities. And we further hold that the trial court did not exceed its authority when it ordered

Stone to “submit to urinalysis and/or breathalyzer testing . . . to verify compliance,” because the

trial court was authorized to impose a condition to monitor Stone’s compliance with other valid

conditions.

       “We review de novo whether the trial court had statutory authority to impose a community

custody condition.” State v. Johnson, 180 Wn. App. 318, 325, 327 P.3d 704 (2014).




                                                7
No. 52233-1-II


A. POSSESSION OF SUBSTANCES

1. Possession of Mind or Mood-Altering Substances

         The first condition at issue requires that Stone not possess “mind or mood-altering

substances.” CP at 145. The community custody conditions in the judgment and sentence do not

define these terms. The State concedes that this phraseology could include substances that are not

controlled substances and are lawful to possess.           A community custody condition is

unconstitutionally vague if, “(1) it does not sufficiently define the proscribed conduct so an

ordinary person can understand the prohibition or (2) it does not provide sufficiently ascertainable

standards to protect against arbitrary enforcement.” State v. Padilla, 190 Wn.2d 672, 677, 416

P.3d 712 (2018). Accordingly, we hold that the trial court exceeded its authority when it ordered

Stone to refrain from possessing “mind or mood-altering substances” because that condition is

vague.

2. Possession of Alcohol

         The second condition at issue requires that Stone not possess alcohol. A trial court may

require an offender to comply with any crime-related prohibitions as a condition of community

custody. RCW 9.94B.050(5)(e). A “crime-related prohibition” is “an order of a court prohibiting

conduct that directly relates to the circumstances of the crime for which the offender has been

convicted.” RCW 9.94A.030(10). The trial court ordered Stone not to possess alcohol. Because

prohibiting Stone from possessing alcohol does not directly relate to his crimes of first degree

burglary and third degree assault, the trial court exceeded its authority in imposing the condition.

See RCW 9.94A.030(10).




                                                 8
No. 52233-1-II


3. Possession of Marijuana, or Any Controlled Substances, Except Pursuant to Lawfully Issued
Prescriptions

         The third condition at issue requires that Stone not possess “[m]arijuana, or any controlled

substances, except pursuant to lawfully issued prescriptions.” CP at 145. “Washington no longer

criminalizes the use and possession . . . of marijuana.” In re Pers. Restraint of Brettell, 6 Wn.

App. 2d 161, 171, 430 P.3d 677 (2018). “But this conduct remains a federal offense, governed by

the Controlled Substances Act3.” In re Brettell, 6 Wn. App. 2d at 171. “The CSA preempts state

law.” In re Brettell, 6 Wn. App. 2d at 171. Further, “[u]nless waived by the court, as part of any

term of community custody, the court shall order an offender to . . . [r]efrain from possessing or

consuming controlled substances except pursuant to lawfully issued prescriptions.”               RCW

9.94A.703(2)(c) (emphasis added). Because the trial court may always instruct an offender to

refrain from illegal activities, we hold that the trial court did not exceed its authority when it

ordered Stone to refrain from possessing “[m]arijuana, or any controlled substances, except

pursuant to lawfully issued prescriptions.” CP at 145.

B. URINALYSIS AND BREATHALYZER TESTING

         The fourth condition at issue requires that Stone submit to urinalysis or breathalyzer testing

as a means of verifying compliance with the community custody conditions. Trial courts are

authorized to impose community custody conditions that monitor an offender’s compliance with

other valid conditions. State v. Olsen, 189 Wn.2d 118, 130, 399 P.3d 1141 (2017). As discussed

above, the trial court did not exceed its authority by ordering that Stone refrain from possessing

“[m]arijuana, or any controlled substances, except pursuant to lawfully issued prescriptions.” CP



3
    21 U.S.C. §§ 812, 844.


                                                   9
No. 52233-1-II


at 145. Because this condition is valid, the trial court did not exceed its authority by imposing a

community custody condition requiring Stone to submit to urinalysis and breathalyzer testing. We

hold that the trial court did not exceed its authority when it ordered Stone to “submit to urinalysis

and/or breathalyzer testing . . . to verify compliance,” because the condition regarding illegal drugs

is valid.

                                          CONCLUSION

        We hold that (1) the judgment and sentence must be amended to add language that clarifies

that Stone’s SSDI benefits may not be attached, garnished, or otherwise encumbered for the

collection of LFOs; (2) under State v. Catling, the imposition of the crime victim penalty

assessment on Stone does not conflict with 42 U.S.C. § 407(a); (3) the trial court did not err by

imposing the supervisory assessment fee because it is not a cost under RCW 10.01.160(3), but on

remand the court is encouraged to reconsider whether Stone has the ability to pay this fee, which

is discretionary.

        We further hold that the trial court exceeded its authority when it ordered Stone to refrain

from possessing “mind or mood-altering substances” because that condition is vague, and when it

ordered Stone to refrain from possessing alcohol because that condition is not crime related. We

hold that the trial court did not exceed its authority when it ordered Stone to refrain from possessing

“[m]arijuana, or any controlled substances, except pursuant to lawfully issued prescriptions,”

because the trial court may always instruct an offender to refrain from illegal activities. Finally,

we hold that the trial court did not exceed its authority when it ordered Stone to “submit to

urinalysis and/or breathalyzer testing . . . to verify compliance,” because the condition regarding




                                                  10
No. 52233-1-II


illegal drugs is valid. We remand to the trial court to amend the judgment and sentence in

accordance with this opinion.

        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.



                                                    SUTTON, J.
 We concur:



 WORSWICK, P.J.




 CRUSER, J.




                                               11
