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

STATE OF WASHINGTON,                      )      No. 81377-3-I
                                          )
                     Respondent,          )
                                          )
       v.                                 )
                                          )
SCOTT BRIAN REHMUS,                       )      UNPUBLISHED OPINION
DOB: 7/18/1992,                           )
                                          )
                     Appellant.           )
                                          )

       VERELLEN, J. — A prosecutor breaches a plea agreement by undercutting its

terms with conduct showing an objective intent to circumvent it. Because the

prosecutor here told the court information consistent with the agreed sentence and

allowed by statute or requested by the court, he did not breach the plea

agreement.

       Conditions of community custody must be crime related and may not be

vague. Because no evidence shows a link between alcohol or businesses selling

alcohol and Scott Rehmus’s conviction for vehicular homicide, the condition

precluding him from entering any business where alcohol is the “chief item of sale”

must be stricken. And because the condition prohibiting Rehmus from associating

with any person distributing a controlled substance invites arbitrary enforcement, it

must be stricken as vague unless clarified on remand.
No. 81377-3-I/2



       We accept the State’s concessions regarding Rehmus’s legal financial

obligations.

       Therefore, we affirm Rehmus’s conviction and remand for further

proceedings consistent with this opinion.

                                        FACTS

       Scott Rehmus agreed to plea guilty to vehicular homicide in exchange for

the State recommending an exceptional sentence of 65 months. Rehmus

admitted he had tetrahydrocannabinol, the psychoactive ingredient in marijuana,1

in his system at the time of the crash. At sentencing, the prosecutor explained he

and the victim’s family were “not happy with” the agreement but entered into it

because of a dispositive defense motion the State was likely to lose.2 The

prosecutor asked the court to enter the agreed sentence. Without any prompting

from the State, the court asked Rehmus whether his license was suspended when

he struck the victim. Because Rehmus was driving with a suspended license, the

court declined to impose the agreed-upon sentence and instead sentenced him to

84 months incarceration and 18 months of community custody.

       Rehmus appeals.

                                      ANALYSIS

       The State argues Rehmus failed to comply with RAP 5.2(a) by not filing his

notice of appeal within 30 days of entry of the October 5, 2018 judgment and



       1   State v. Murray, 187 Wn.2d 115, 118, 384 P.3d 1150 (2016).
       2   Report of Proceedings (RP) (Oct. 5, 2018) at 3.



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sentence, thus waiving his right to appeal. When interpreting and applying court

rules, we read the rule’s plain language in the context of related provisions.3

       RAP 5.2(a) requires that an appellant file his notice of appeal no more than

“30 days after the decision of the trial court that the party filing the notice wants

reviewed,”4 although, not all reviewable decisions are immediately appealable.5

RAP 2.2(a) provides that a party has the right to appeal a final judgment. Whether

a judgment was final is determined by its effect on the underlying action.6 If a

judgment “resolved the merits of a party’s legal claims,” then it was an appealable

final judgment.7

       The court sentenced Rehmus and signed the judgment and sentence on

October 5. On October 19, Rehmus filed a CrR 7.8(b) motion for relief from

judgment. He argued the court violated the real facts doctrine by relying upon an

unproven crime, driving with a license suspended, to sentence him. The court

heard the motion on October 26. Because the court raised the suspended license

issue sua sponte during a colloquy with the State, it agreed Rehmus’s motion was

a timely objection and ordered an evidentiary hearing to determine whether

Rehmus’s driver’s license was, in fact, expired when he committed vehicular




       3 Denney v. City of Richland, No. 97494-2, slip op. at 3 (Wash. May 7, 2020),
http://www.courts.wa.gov/opinions/pdf/974942.pdf.
       4   Id. at 11 (citing RAP 2.2(a); RAP 5.2(a)).
       5   RAP 2.2; RAP 2.3.
       6   Denney, slip op. at 5.
       7   Id.



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homicide. By accepting Rehmus’s objection and scheduling an evidentiary

hearing related to the original judgment, the trial court recognized its October 5

sentencing left a legal issue unresolved.8 Thus, the December 10 evidentiary

hearing was an extension of the original October 5 sentencing.

       On December 10, the court held the hearing and denied Rehmus’s

objection, resolving all legal issues and entering a final judgment. Rehmus had 30

days to file a notice of appeal.9 But Rehmus filed his notice of appeal on January

10, 2019, one day past the deadline set by RAP 5.2(a).10

       RAP 18.8(b) restricts the circumstances when we can grant an extension of

the period to file an appeal, but we balance Rehmus’s state constitutional right to

appeal against the strict application of filing deadlines.11 “[A]n involuntary

forfeiture of the right to a criminal appeal is never valid,” so we never presume a

defendant intentionally waived his right to appeal.12 The State has the burden of

demonstrating Rehmus understood his right to appeal and voluntarily, knowingly,

and consciously waived it.13 Because the State fails to show Rehmus intentionally


       8 See id. at 4 (explaining an appealable final judgment “‘disposes of all
issues in controversy’”) (quoting State v. Taylor, 150 Wn.2d 599, 602, 80 P.3d 605
(2003).
       9   RAP 5.2(a).
       10See RAP 18.6(a) (legal holidays and weekends are excluded from
counting days only when the period of time allowed is less than seven days).
       11   State v. Kells, 134 Wn.2d 309, 314, 949 P.2d 818 (1998).
       12   Id. at 313, 314 (citing State v. Sweet, 90 Wn.2d 282, 581 P.2d 579 (1978)).
       13Id. at 314 (citing Sweet, 90 Wn.2d at 287); State v. Cater, 186 Wn. App.
384, 392, 345 P.3d 843 (2015). The State relies on State v. Gaut, 111 Wn. App.
875, 46 P.3d 832 (2002), to argue we should deny Rehmus’s appeal. But Gaut



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No. 81377-3-I/5



waived his right to appeal merely by filing one day late, we will consider the merits

of the appeal.

       Rehmus argues the State breached the plea agreement. Whether the State

breached a plea agreement is a question of law we review de novo. 14 As a

contract between the State and the defendant, the State has a duty of good faith

prohibiting it from implicitly or explicitly undercutting the agreement by conduct

showing an objective intent to circumvent the agreement’s terms.15 We consider

the prosecutor’s conduct within the context of the entire record.16 When speaking

with the court, a prosecutor may ‘‘not hold back relevant information regarding the

plea agreement’” and is not obliged to ‘‘enthusiastically make the sentencing

recommendation.”17 The court is not bound by the parties’ agreement.18

       After the court convened the sentencing hearing, it called upon the

prosecutor to explain the parties’ plea agreement.

       It’s an agreed exceptional sentence [of] 65 months. The [standard]
       range is 78 to 202 months. This is a case that I worked on with
       [prosecuting attorney] Ms. Goodell. We had a legal issue come up,
       and Ms. LaCross, for the defense, filed a motion, and Ms. Goodell


presumes, without addressing Kells or Sweet, that “the only review possible is some
form of collateral attack on the judgment” because Gaut appealed outside the limit
set by RAP 5.2(a). 111 Wn. App. at 880. We decline to follow the approach taken
in Gaut and instead rely on our Supreme Court’s holdings and reasoning in Kells
and Sweet.
       14   State v. MacDonald, 183 Wn.2d 1, 8, 346 P.3d 748 (2015).
       15   Id. at 8.
       16   State v. Carreno-Maldonado, 135 Wn. App. 77, 83, 143 P.3d 343 (2006).
       17   Id. (quoting State v. Talley, 134 Wn.2d 176, 183, 949 P.2d 358 (1998)).
       18   RCW 9.94A.431(2).



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No. 81377-3-I/6



       and I looked at it and thought there was a very high risk that we
       would not succeed on that motion. . . .

              And after talking with the family and after talking with the
       victim’s husband, sister, parents, brother, multiple family members
       explaining to them why we did what we did, I believe they
       understand it but are clearly not happy with it. And neither [are] Ms.
       Goodell and I, but the legal issues kind of are what they are,
       unfortunately . . . .

                ....

               So, without a case to prosecute, Ms. Goodell and I came to
       this compromise with the defense, and I ask the court to follow it. It
       is for 65 months [and] 18 months of community custody.[19]

       Rehmus argues the “prosecutor breached the plea agreement with his timid

support of the exceptional sentence downward” or undermined it by “implicitly

expressing [his] unhappiness” with the agreement.20 The prosecutor’s contractual

obligation was “to recommend the agreed-upon sentence,”21 not to do so

enthusiastically.22 He had statutory duties to state “the reasons for the agreement”

and, for vehicular homicide, to inform the court whether the victim’s

representatives “ha[d] expressed any objections to or comments on the nature of

and reasons for the plea agreement.”23 The prosecutor’s explanation to the court

fulfilled both his contractual and statutory obligations.




       19   RP (Oct. 5, 2018) at 2-4.
       20   Appellant’s Br. at 8.
       21   Talley, 134 Wn.2d at 183.
       22   Carreno-Maldonado, 135 Wn. App. at 83.
       23 RCW 9.94A.431(a); see RCW 9.94A.411 (categorizing vehicular homicide
as a “crime against persons”).



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No. 81377-3-I/7



       Rehmus compares this case to State v. Carreno-Maldonado, where the

prosecutor recommended a sentence at the low end of the sentencing range and

undercut it by reciting unsolicited facts consistent with statutory aggravating

factors.24 In State v. Julian, an offender argued the prosecutor breached the plea

agreement by letting defense counsel speak first and argue in the agreement’s

favor and then, after defense counsel finished, stating, “I don’t have an awful lot to

add” before recommending the agreed sentence.25 The court concluded the

prosecutor did not breach the plea agreement because “[t]hough hardly made

enthusiastically,” he made a clear recommendation, “acquiesce[d] in the [special

sex offender] sentencing alternative as promised,” and did not undermine the

agreement.26

       Here, the prosecutor asked the court to impose “an agreed exceptional

sentence [of] 65 months,” which is below the standard range.27 Information about

the victim’s family’s feelings and Rehmus’s motion were required by

RCW 9.94A.431(1). The prosecutor explained Rehmus’s license was suspended

only because the court requested that information sua sponte. The prosecutor’s

fleeting mention of his feelings about the agreement were not required or requested

but did not undermine the agreement because, viewed objectively within the entire



       24  135 Wn. App. 77, 84-85, 143 P.3d 343 (2006); see RCW 9.94A.535(2)-(3)
(listing aggravating factors).
       25   102 Wn. App. 296, 302, 304, 9 P.3d 851 (2000).
       26   Id.
       27   RP (Oct. 5, 2018) at 2.



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No. 81377-3-I/8



record and consistent with RCW 9.94A.431(1), it provided context for the strength of

Rehmus’s motion and the victim’s family’s feelings of disappointment. Unlike

Carreno-Maldonado, the additional context was consistent with the agreed sentence

and information relevant to it. Like Julian, the prosecutor’s unenthusiastic

recommendation did not breach the plea agreement.

       Rehmus argues two of his conditions of community custody must be

stricken. We review conditions of community custody for abuse of discretion.28

       The court prohibited Rehmus from entering any “place where alcohol is the

chief item of sale.”29 Rehmus contends this entry limitation must be stricken

because it is not crime related. A condition is crime related where substantial

evidence shows a “reasonable relationship” between it and the circumstances of

the defendant’s crime.30

       In State v. Parramore, a drug dealer was convicted of selling marijuana,

and the trial court imposed a condition of community custody requiring that he

submit to a breathalyzer to test for alcohol.31 This court concluded the condition

was not crime related because no evidence linked alcohol use to his delivery of




       28   State v. Nguyen, 191 Wn.2d 671, 678, 425 P.3d 847 (2018).
       29   CP at 36.
       30 Nguyen, 191 Wn.2d at 683-84; State v. Irwin, 191 Wn. App. 644, 656, 364
P.3d 830 (2015). “‘Substantial evidence exists where there is a sufficient quantity of
evidence in the record to persuade a fair-minded, rational person of the truth of the
finding.’” State v. Delbosque, 195 Wn.2d 106, 116, 456 P.3d 806 (2020) (quoting
State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994)).
       31   53 Wn. App. 527, 528-29, 768 P.2d 530 (1989).



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marijuana.32 Similarly, in State v. Jones, the court struck a condition requiring that

a burglar participate in alcohol counseling when no evidence showed alcohol

contributed to his crimes.33

       Rehmus pleaded guilty to vehicular homicide and admitted he was under

the influence of marijuana at the time of the crash. The crime of vehicular

homicide requires proof the driver killed another as a result of operating a motor

vehicle while “under the influence of any intoxicating liquor or drug.”34 The State

argues this statutory requirement links the condition to Rehmus’s conviction. But

marijuana and alcohol are distinct substances, and consuming alcohol is distinct

from entering a business selling alcohol. No evidence shows alcohol consumption

contributed to Rehmus’s crime or that he consumed marijuana in a business

selling alcohol. Like Parramore and Jones, no evidence links Rehmus’s crime to

alcohol use. Because substantial evidence does not link this condition to

Rehmus’s conviction, the condition limiting entry is not crime related and must be

stricken.

       The court also prohibited Rehmus from having any “contact with any

persons who are currently manufacturing or delivering controlled substances.”35




       32   Id. at 531.
       33   118 Wn. App. 199, 207-08, 76 P.3d 258 (2003).
       34
        RCW 46.61.520(1)(a). A person can also be guilty when he kills another
by operating a motor vehicle recklessly or with disregard for the safety of others.
RCW 46.61.520(1)(b)-(c).
       35   CP at 36.



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No. 81377-3-I/10



He contends this condition is vague because it would result in arbitrary

enforcement.

       A community custody condition is unconstitutionally vague when it (1) fails

to sufficiently define the conduct it prohibits “so an ordinary person can understand

the prohibition” or (2) does not provide “sufficiently ascertainable standards” to

protect against arbitrary enforcement.36 A condition “is not vague when a person

‘exercising ordinary common sense can sufficiently understand’ it.”37 When a

condition limits an offender’s First Amendment right of association, the condition

must be clear and “‘reasonably necessary to accomplish the essential needs of the

state and public order.’”38

       The State admits “the word ‘unlawfully’ should be included to modify the

words ‘manufacturing or delivering’” to make this condition “precise.”39 As

Rehmus notes, “[c]ontrolled substances find legitimate use in the diagnosis, cure,

mitigation, treatment, or prevention of disease in individuals or animals.”40

Rehmus would violate the plain language of this condition by visiting a pharmacy




       36   State v. Padilla, 190 Wn.2d 672, 677, 416 P.3d 712 (2018).
       37
        Id. at 679-80 (internal quotation marks omitted) (quoting Gibson v. City of
Auburn, 50 Wn. App. 661, 667, 748 P.2d 673 (1988)).
       38 In re Pers. Restraint of Brettell, 6 Wn. App. 2d 161, 169, 430 P.3d 677
(2018) (internal quotation marks omitted) (quoting State v. Riley, 121 Wn.2d 37-38,
846 P.2d 1365 (1993)).
       39   Resp’t’s Br. at 14.
       40   Appellant’s Br. at 14 (citing RCW 69.50.101).



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or having a nurse administer morphine in a hospital.41 Because the condition fails

to provide sufficient guidance and invites arbitrary enforcement, it must be stricken

as vague unless clarified on remand.42

       The State concedes remand is required to strike two discretionary legal

financial obligations and language mandating interest accrual on his legal financial

obligations. Because the court found Rehmus indigent and RCW 10.82.090(1) no

longer authorizes interest accrual on nonrestitution legal financial obligations, we

accept the State’s concession.

       Therefore, we affirm Rehmus’s conviction and remand for further

proceedings consistent with this opinion.




WE CONCUR:




       41  See RCW 69.50.101(g) (defining “controlled substance”); Controlled
Substances: Alphabetical Order, U.S. DEP’T OF JUSTICE, DRUG ENFORCEMENT
AGENCY, http://www.deadiversion.usdoj.gov/schedules/orangebook/c_cs_alpha.pdf
(last visited June 3, 2020) (identifying morphine as a controlled substance).
       42
        We note this condition, unlike the condition we upheld in Brettell, 6 Wn.
App. 2d at 170-71, does not contain any intent element.



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