                                                            FILED
                                                        DECEMBER 24, 2019
                                                     In the Office of the Clerk of Court
                                                    WA State Court of Appeals, Division III




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

STATE OF WASHINGTON,                        )        No. 36186-1-III
                                            )
                    Respondent,             )
                                            )
             v.                             )        UNPUBLISHED OPINION
                                            )
NATHAN D. DEYARMIN,                         )
                                            )
                    Appellant.              )

      LAWRENCE-BERREY, C.J. — Nathan Deyarmin appeals the revocation of his

special sex offender sentencing alternative (SSOSA) and challenges two community

custody conditions and a few legal financial obligations (LFOs). The State concedes

error. We reverse and remand.

                                        FACTS

      In March 2012, the State charged Nathan Deyarmin with first degree child

molestation. In November of that year, Deyarmin pleaded guilty. Prior to sentencing, the

Department of Corrections (DOC) conducted a presentence investigation. Based on this

investigation, the DOC recommended that Deyarmin be sentenced to a SSOSA. The trial

court agreed with this recommendation and imposed a 60-month minimum and a
No. 36186-1-III
State v. Deyarmin


lifetime maximum intermediate sentence, but suspended it pursuant to SSOSA under

RCW 9.94A.670. The intermediate sentence was suspended on several conditions.

Those relevant to this appeal are that Deyarmin (1) serve 365 days in total confinement,

(2) complete a five-year outpatient sex offender treatment program at Valley Treatment

Specialties, (3) obtain and maintain employment, (4) commit no crimes, (5) not possess

“any pornography, in any form,” and (6) not “consume or possess any controlled

substance, unless prescribed by [a] licensed practicing physician.” Clerk’s Papers (CP) at

46-47.

         In March 2015, Deyarmin participated in a bi-annual polygraph test as part of his

SSOSA. Deyarmin’s answers to the test indicated possible deception to questions

involving unreported sexual contacts, private contacts with minors, and viewing

pornography. The DOC contacted Valley Treatment Specialties about the failed

polygraph and discussed options. Crystal Ren at Valley Treatment Specialties

recommended Deyarmin continue with treatment because he was trying hard, and the

potential violations be addressed as a treatment matter. She requested DOC to

recommend to the trial court that it modify its treatment order to include mental health

treatment. DOC agreed. But no modified treatment order ever was entered.




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State v. Deyarmin


       In April 2018, Deyarmin was arrested after he was reportedly drunk and running

through the street, rambling about it being the day after April 20—a day recognized for

legalizing marijuana—and saying he was a sex offender who had raped kids. During this

incident, Deyarmin also jumped onto and damaged the hood and windshield of a car.

       Later that month, DOC filed a notice of violation. In addition to the charges

described above, the DOC report discussed two urinalysis tests where Deyarmin had

tested positive for THC,1 Deyarmin’s admission to masturbating while thinking of his

victims, and describing himself as a serial child molester with over 40 victims.

       Based on the DOC report, the State moved to revoke Deyarmin’s SSOSA, alleging

he had committed new crimes and had failed to maintain employment in violation of his

SSOSA. The State did not make any allegations about Mr. Deyarmin’s failure to make

reasonable progress on his SSOSA treatment.

       During multiple revocation hearings, the State commented less about its given

reasons for revoking Deyarmin’s sentence and more about Deyarmin’s lack of progress in

treatment. In response, defense counsel noted Deyarmin’s treatment provider

recommended continued treatment and argued that Deyarmin’s current problems were the




       1
           Tetrahydrocannabinol.

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No. 36186-1-III
State v. Deyarmin


foreseeable result of failing to modify Deyarmin’s treatment to include mental health

treatment.

      The trial court granted the States’ motion, stating,

      All of the facts cited by the DOC in the most recent report and the new
      charges are very concerning.
              ....
              The escalation is really concerning to me. And I have to agree that
      the mental health issues were there before. They could have been
      addressed, they weren’t addressed. And I think there is ample evidence
      now that requires me to revoke your SOSA.

Report of Proceedings (June 18, 2018) at 24.

      Deyarmin timely appealed his SSOSA revocation to this court.

                                       ANALYSIS

      NOTIFICATION OF THE BASIS FOR SSOSA REVOCATION

      Deyarmin contends his due process rights were violated by the State’s failure to

notify him that failure to make reasonable progress on his SSOSA would be a basis for

the revocation action. The State concedes error and asks us to remand for a new

revocation hearing. We accept the State’s concession.

      COMMUNITY CUSTODY CONDITIONS

      Deyarmin contends the community custody condition prohibiting the use of

controlled substances is overbroad, and the condition prohibiting the use of pornography


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State v. Deyarmin


is unconstitutionally vague. He contends these issues are timely raised and cites State v.

McCormick, 166 Wn.2d 689, 699, 213 P.3d 32 (2009) for the proposition that revocation

of a suspended sentence is an extension of the original criminal conviction. The State

concedes error, does not challenge the timeliness of these issues, and asks us to remand so

the trial court can revise these conditions. We accept the State’s concession.

       In accordance with the State’s recommendation, we direct the trial court to revise

the controlled substance condition to read: “Shall not consume and/or possess controlled

substances unless the substance was obtained directly from, or pursuant to, a valid

prescription or order of a practitioner while acting in the course of his or her professional

practice.” Also in accordance with the State’s recommendation, we direct the trial court

to revise the pornography prohibition to read: “Do not possess, use, access or view any

sexually explicit material as defined by RCW 9.68.130 or erotic materials as defined by

RCW 9.68.050 or any material depicting any person engaged in sexually explicit conduct

as defined by RCW 9.68A.011(4) unless given prior approval by your sexual deviancy

provider.” See State v. Hai Minh Nguyen, 191 Wn.2d 671, 679, 425 P.3d 847 (2018).

       LFOs

       Deyarmin contends the trial court failed to conduct an adequate inquiry into his

ability to pay discretionary LFOs and that we should direct the trial court to strike those


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No. 36186-1-111
State v. Deyarmin


costs. He also contends recent legislative amendments require striking the criminal filing

fee.

       The State does not contest the timeliness of this challenge and requests these issues

be readdressed by the trial court. Because the question of indigency likely will depend on

the trial court's revocation decision, we agree with the State. We, therefore, direct the

trial court, on remand, to readdress the question of Deyarmin' s indigency and LFOs.

       Reversed and remanded.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.




WE CONCUR:




                                          Fearing, J.




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