State v. Warnock
State v. Warnock
Opinion of the Court
¶1 — The trial court has authority under RCW 9.94A.607(1) to order an offender, as a condition of community custody, to obtain a chemical dependency evaluation and to comply with recommended treatment only if it finds that the offender has a chemical dependency that contributed to his or her offense. Because there is no evidence and finding that any substance other than alcohol contributed to Brian Warnock’s offense, we remand with directions to amend the challenged condition so that it imposes only alcohol evaluation and recommended treatment. We otherwise affirm Warnock’s judgment and sentence.
FACTS
¶2 Warnock went to a bar to drink with his girl friend and two other couples. He was offended when he overheard
¶3 Warnock and his friends left the bar. Warnock sped past a sheriff’s deputy, failed to stop when signaled by the deputy to pull over, and ran a stop sign. The deputy arrested Warnock in a condominium parking lot. The deputy noted Warnock “staggered from the vehicle.” Verbatim Report of Proceedings (VRP) (Nov. 10, 2011) at 143. Warnock’s eyes were red and watery, his speech was slurred, and the deputy “could strongly smell the odor of intoxicants.” VRP (Nov. 10, 2011) at 144. Although Warnock declined a breath test, the officer noted in his report that Warnock’s “impairment was extreme.” VRP (Nov. 10, 2011) at 159.
¶4 The State charged Warnock with second degree assault and driving under the influence of intoxicants (DUI). The jury found Warnock guilty of assault but failed to reach a unanimous verdict on the DUI charge. At trial, Warnock testified that he refused the breath test because “I’d rather lose my license for a year than get a DUI. I wasn’t sure — I wasn’t sure by what I had drank that night if it would put me over the legal limit or under the legal limit, but I just didn’t want to find out.” VRP (Nov. 14, 2011) at 82.
¶5 At sentencing, the State recommended that the court order a chemical dependency evaluation and compliance with all treatment requirements after commenting that “alcohol consumption was part of what took place here.” VRP (Feb. 7, 2012) at 128. Defense counsel responded, “[Tjhere was drinking going on. There’s some indication that Mr. Warnock was affected by what he had to drink. [But] it’s our position that he was not intoxicated!, and we] ask the Court to consider not requiring him to undergo an alcohol evaluation.” VRP (Feb. 7, 2012) at 135. She also told the court about Warnock’s prior Lynnwood municipal court DUI conviction and present probation status.
ANALYSIS
¶7 The principal issue here is whether a sentencing court exceeds its statutory authority by ordering an offender to obtain chemical dependency evaluation and treatment as a community custody condition when no evidence and no finding exist that any substance except alcohol contributed to the sentenced offense.
¶8 Warnock contends the chemical dependency evaluation and treatment condition should be stricken because the trial court exceeded its statutory authority when it ordered him to obtain a chemical dependency evaluation and to comply with recommended treatment as a condition of community custody. Because his claim involves construction of the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, our review is de novo. State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007). An unlawful sentence may be challenged for the first time on appeal. State v. Ford, 137 Wn.2d 472, 477, 973 P.2d 452 (1999).
¶9 The trial court lacks authority to impose a community custody condition unless authorized by the legislature. State v. Kolesnik, 146 Wn. App. 790, 806, 192 P.3d 937 (2008). RCW 9.94A.505(8) provides, “As a part of any sen-
¶10 The SRA specifically authorizes the court to order an offender to obtain a chemical dependency evaluation and to comply with recommended treatment only if it finds that the offender has a chemical dependency that contributed to his or her offense:
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 of the sentence and subject to available resources, order the offender to participate in rehabilitative programs or otherwise to perform affirmative conduct reasonably related to the circumstances of the crime for which the offender has been convicted and reasonably necessary or beneficial to the offender and the community in rehabilitating the offender.
RCW 9.94A.607(1). If the court fails to make the required finding, it lacks statutory authority to impose the condition. Warnock does not claim the trial court made no finding at all or no evidence exists to support evaluation and treatment. He argues instead that “the court ordered him to submit to a ‘chemical dependency evaluation,’ which includes an evaluation for substance abuse other than alcohol, despite the absence of any finding a substance other than alcohol contributed to the commission of the assault.” Br. of Appellant at 6.
¶11 In State v. Jones, 118 Wn. App. 199, 76 P.3d 258 (2003), Division Two of this court held that any court-ordered counseling or treatment must address a deficiency that contributed to the offense at issue. If not, it fails to
¶12 Warnock concedes that an alcohol evaluation and recommended treatment was properly ordered “[g]iven the evidence of alcohol consumption.” Br. of Appellant at 7 n.2. The judgment and sentence, however, undisputedly ordered Warnock to submit to a chemical dependency evaluation and recommended treatment despite any evidence and finding that a substance other than alcohol contributed to the assault.
¶13 The State argues that because alcohol abuse is a type of chemical dependency, the trial court’s oral finding that alcohol contributed to Warnock’s offense was equivalent to a finding under RCW 9.94A.607(1) that a chemical dependency contributed to his offense.
We note that paragraph two of the preprinted judgment and sentence form lists the various community custody options. To order chemical dependency evaluation and treatment, the trial court checks the box next to this preprinted condition.
Reference
- Full Case Name
- The State of Washington v. Brian Michael Warnock
- Cited By
- 46 cases
- Status
- Published