    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


STATE OF WASHINGTON,
                                                       No. 68837-5-1                                        '•j'CZi
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                        Respondent,                                                                   CO    >•" -X'

                                                       DIVISION ONE                                   5F    ni~'
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                                                       UNPUBLISHED OPINION
CORNELIUS DARNELL WILLIAMS,                                                                           3T»

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                        Appellant.                     FILED: m         2 8 2013                       •"




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       Per Curiam — Cornelius Darnell Williams appeals the sentence imposed

following his conviction for third degree assault. He contends, and the State concedes,
that the court erred in imposing a substance abuse evaluation and treatment as a

condition of community custody without first finding that he has chemical dependency
as required by RCW 9.94A.607(1).1 We accept the r.nnp.ession. See State v. Warnock.
   Wn.App.        ,     P.3d       (2013) (chemical dependency finding is a statutory
prerequisite to ordering chemical dependency evaluation and treatment); State v.
Jones, 118 Wn.App. 199, 209-10, 76 P.3d 258 (2003) (failure to make statutorily
required finding before ordering mental health treatment and counseling was reversible
error even though record contained substantial evidence supporting such a finding).
       The parties disagree, however, as to the appropriate remedy for the court's error.
Williams contends the trial court must strike the condition because there is insufficient

evidence in the record to support a finding of chemical dependency. The State

1 RCW 9.94A.607(1) provides:
              Where the court finds that the offender has a chemical dependency that has contributed
       to his or her offense, the court may, as a condition ofthe sentence and subject to available
       resources, order the offender to participate in rehabilitative programs orotherwise to perform
       affirmative conduct reasonably related tothe circumstances ofthe crime for which the offender
       has been convicted and reasonably necessary or beneficial to the offender and the community in
        rehabilitating the offender.
No. 68837-5-1/2




contends it should be permitted to present new evidence on remand because Williams

did not object to the condition below. We conclude that the challenged evaluation and

treatment condition must be stricken on remand unless the court determines "that it can

presently and lawfully comply" with the statutory requirement for a finding that Williams

has a chemical dependency that contributed to his offense. See Jones. 118 Wn.App. at

212 n. 33.

       Remanded for proceedings consistent with this opinion.

                         For the court: \^0 XaV-^)J)oL
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