      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON


STATE OF WASHINGTON,                         )        No. 77865-0-I

                   Respondent,              )         DIVISION ONE
                                            )
            v.                              )         UNPUBLISHED OPINION

TREYKINARD                                  )
(A.K.A. MATTHEW AARON),                     )
                   Appellant.
                                            )         FILED: April 15, 2019

      ANDRUS, J.   —   Matthew Aaron appeals a condition of community custody

following his conviction for second-degree assault.        Aaron challenges the

sentencing court’s order that he obtain a mental health evaluation, asserting there

is no evidentiary nexus between the underlying offense and any mental health

issues. He also contends the court erred in checking a box in the judgment and

sentence indicating the existence of aggravating circumstances.

      We reverse the community custody condition requiring Aaron to seek a

mental health evaluation and remand for a sentencing court to make the requisite

factual findings required by RCW 9.94B.080. We also remand to correct the

scrivener’s error on the judgment and sentence.
    No. 77865-0-1/2

                                               FACTS

          The State charged Matthew Aaron1 of one count of second degree assault

    (Count 1) and one count of felony harassment (Count 2).2 Count 1 alleged that on

    May 22, 2017, Aaron assaulted Janet Ashfaq by strangulation. Count 2 alleged

that on May 22, 2017, Aaron threatened to cause imminent bodily injury to Ashfaq,

causing reasonable fear that the threat would be carried out. The State further

alleged that both crimes involved domestic violence and were part of “an ongoing

pattern of psychological, physical or sexual abuse of the same victim or multiple

victims manifested by multiple incidents over a prolonged period of time.”

          The trial court granted a defense pretrial motion to preclude Ashfaq from

testifying that Aaron suffers from various “undiagnosed mental illnesses.”3 Shortly

thereafter, Aaron moved to remove his appointed counsel. Aaron explained to the

trial court that immediately before the incident with Ashfaq, he had been

hospitalized involuntarily through Harborview Medical Center’s mental health

system and may have been diagnosed with schizophrenia. He stated he did not

agree with counsel’s request to suppress his medical records. Aaron stated he

wanted his medical records considered and he wanted a mental health evaluation.

He disagreed w[th the trial court’s statement that his prior mental health records

may not necessarily be relevant. After a lengthy discussion with the trial court,

1 The Appellant’s name is Matthew Aaron. Aaron testified he used the name “Trey Kinard” as an
alias in 1994 while enlisted in the Marine Corps. For purposes of this opinion, we will refer to the
Appellant as Aaron.
2 The State also charged Aaron with a second count of second degree assault (Count 3). Count 3
alleged that on July 31, 2017, Aaron assaulted Janet Ashfaq by strangulation. Count 3 was severed
from Counts 1 and 2, and was eventually dismissed.
~ Despite the trial court’s exclusion of testimony related to Aaron’s mental health, Aaron testified on
direct examination that he suffered from depression.
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No. 77865-0-1/3

Aaron chose not to represent himself and agreed to retain counsel.

       On December 8, 2017, a jury found Aaron guilty of second degree assault,

but acquitted him of felony harassment. The jury subsequently found that the State

had proved the crime was an aggravated domestic violence offense. However,

the special verdict form misidentified the underlying crime as violation of a court

order. As a result, the sentencing court concluded the verdict form was legally

flawed and could not support an exceptional sentence.

       At Aaron’s sentencing on December20 and 21, 2017, Ashfaq told the court

that Aaron “needs counseling [and] needs help” and that Aaron had been

diagnosed with bipolar disorder.     Ashfaq further said “I would like that to be

considered and see that he gets counseling, see that he gets medication.”

       Aaron appeared to agree, saying “It has been no secret that I have mental

health issues.” He also admitted to having Post-Traumatic Stress Disorder (PTSD)

resulting from emotional and physical injuries sustained while serving in the Marine

Corps. Aaron said: “Your Honor, I do need mental health treatment. I know that.

I been trying to get help the whole time while I was here. [The prosecution], due

to what I understand, denied me. I never was allowed to see a psychiatrist      .   .




Aaron told the court he had been hospitalized following a mental breakdown a

month prior to the incident.    He also admitted to having bipolar disorder, and

possibly schizophrenia. He informed the court he had no problem with the State’s

request that he participate in mental health treatment, saying “As a matter of fact,

if the courts do that, at least I don’t have to pay for it.” Aaron’s counsel, however,

objected to court-mandated mental health treatment because there was no nexus

between the crime of conviction and the requested treatment.
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No. 77865-0-1/4

        The court sentenced Aaron to 12 months in jail followed by 12 months

community custody. As a condition of community custody, the court required

Aaron     to   receive    a    mental     health    evaluation     and    follow    treatment

recommendations and to complete a Domestic Violence Batterer’s Treatment or a

cognitive behavioral therapy alternative.4 It waived Aaron’s DNA collection fee

pursuant to RCW 9.94A.777, citing to Aaron’s previous mental health commitment.

        On appeal, Aaron contends the sentencing court erred in ordering a mental

health evaluation and treatment because it did not find, as required by RCW

9.94B.080, that Aaron’s mental illness is likely to have influenced the crime for

which he was convicted.

                                         ANALYSIS

        A court may only impose a sentence that is authorized by statute. State v.

Barnett, 139 Wn.2d 462, 464, 987 P.2d 626 (1999). This court reviews community

custody conditions for abuse of discretion and will reverse them if manifestly

unreasonable. State v. Padilla, 190 Wn.2d 672, 677, 416 P.3d 712 (2018). A

condition of community custody is manifestly unreasonable if it is beyond the

court’s authority to impose. State v. Johnson, 184 Wn. App. 777, 779, 340 P.3d

230 (2014).

        When an individual is sentenced for one year or less for a violent offense,5

the Sentencing Reform Act allows the court to impose up to one year of community

custody. RCW 9.94A.702(1)(b). The court may order an offender to “[p]articipate


~ Aaron does not appeal the condition of community custody requiring him to undergo counseling
for domestic violence.
~ Former ROW 9.94A.030(55)(viii) classified second-degree assault as a violent offense. LAWS OF
2015, ch. 287, § 1.

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    No. 77865-0-1/5

    in crime-related treatment or counseling services,” or “{p}articipate in rehabilitative

    programs or otherwise perform affirmative conduct reasonably related to the

circumstances of the offense, the offender’s risk of reoffending, or the safety of the

community.” RCW 9.94A.703(3)(c)-(d).

          Additionally, RCW 9.94B.0806 provides:

          The court may order an offender whose sentence includes
          community placement or community supervision to undergo a mental
          status evaluation and to participate in available outpatient mental
          health treatment, if the court finds that reasonable grounds exist to
          believe that the offender is a mentally ill person as defined in RCW
          71 .24.025, and that this condition is likely to have influenced the
          offense. An order requiring mental status evaluation or treatment
          may be based on a presentence report and, if applicable, mental
          status evaluations that have been filed with the court to determine
          the offender’s competency or eligibility for a defense of insanity. The
          court may order additional evaluations at a later date if deemed
          appropriate.

          In State v. Shelton, 194 Wn. App. 660, 675-76, 378 P.3d 230 (2016), this

court held that under the plain and unambiguous language of ROW 9.94B.080, the

sentencing court may order a mental health evaluation only if the court finds the

defendant “is a mentally ill person as defined in ROW 71 .24.025 and mental illness

likely influenced the offense.”7          Here, the sentencing court did not make the

requisite factual findings.

          Although there is ample evidence that Aaron suffers from depression, and

possibly bipolar disorder, schizophrenia, and PTSD, the sentencing court did not




6 RCW 9.94B.080 applies to crimes committed after 2009. LAWS OF 2008, ch. 231, § 55.
~ Although the Shelton court analyzed an earlier version of the statute that required a presentence
report prior to ordering any mental health evaluation or treatment, LAWS OF 2008, ch. 231, § 53, the
statutory language requiring findings that a defendant has a mental illness and that the defendants
mental illness likely influenced the offense remain unchanged.

                                               -5-
    No. 77865-0-1/6

    find Aaron meets the definition of a “mentally ill person” as defined by statute8 or

    that this mental illness “likely influenced” his assault of Ashfaq. Under Shelton, the

    sentencing court must do so before imposing a mental health evaluation condition

    of community custody.

           Aaron also raises an issue regarding the form of the judgment and

sentence. The court declined to impose an exceptional sentence in this case

because of the erroneous special verdict form.                The judgment and sentence

nevertheless noted the presence of an aggravating factor. Both parties agree that

this is a scrivener’s error. The remedy for such a clerical error is correction on

remand. See In re Pers. Rest. of Mayer, 128 Wn. App. 694, 701-02, 117 P.3d 353

(2005).

          We reverse the community custody condition requiring Aaron to undergo a

mental health evaluation and remand for the trial court to make the requisite

findings under RCW 9.94B.080. Additionally, the clerical error in the judgment and

sentence should be corrected on remand.

          Reversed.




WE CONCUR:
                                                       ~a
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                  4
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8  Former ROW 71.24.025(19) defined “mentally ill persons” as persons who were “acutely mentally
ill,” former ROW 71.24.025(1), ‘chronically mentally ill,” former ROW 71.24.025(6) and “seriously
disturbed,” former ROW 71.24.025(27).
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