State v. MotterState v. Motter
- Reporters:
- ,
- Before:
- Quinn-Brintnall
QUINN-BRINTNALL, J.
¶ 1 Around 10 o‘clock at night, 71-year-old Dr. David Dixon responded to a burglar alarm at his medical office in Vancouver, Washington. Dixon initially thought it was a false alarm, but once inside he confronted William Motter standing behind an examining room door armed with a homemade
¶ 2 Dixon‘s security service heard his cries for help through an audio feed and called the Vancouver police. A police K-9 unit responded and subsequently found Motter hiding in nearby blackberry brambles and arrested him. Dixon sustained minor injuries as a result of his altercation with Motter, including a broken fingernail and several bruises.
¶ 3 The State charged Motter with one count of first degree burglary premised on assault.
¶ 4 We consolidated Motter‘s appeal and PRP. Here, we review: (1) Motter‘s community custody conditions; (2) a permissive inference jury instruction; (3) a no duty to retreat jury instruction; (4) the trial court‘s alleged failure to assess Motter‘s competency; (5) the effectiveness of Motter‘s counsel; and (6) alleged misconduct by the prosecution. In the published portion of this opinion, we affirm Motter‘s community custody conditions. But we analyze the remaining issues without publication because we resolve those issues by following well-established legal principles that have no precedential value.
ANALYSIS
COMMUNITY CUSTODY
¶ 5 Motter challenges three of his community custody conditions: (1) a mandate that Motter undergo substance abuse treatment; (2) prohibition on Motter‘s possession or use of drug paraphernalia; and (3) a requirement that Motter notify his community corrections officer when he is prescribed a controlled substance or legend drug. A defendant may raise these claims for the first time on appeal. State v. Jones, 118 Wash. App. 199, 204, 76 P.3d 258 (2003). We affirm.2
¶ 6 We review a sentencing court‘s application of the community custody provisions of the Sentencing Reform Act de novo. State v. Pierson, 105 Wash.App. 160, 165, 18 P.3d 1154 (2001). And we review findings of fact that underlie the imposition of community custody for substantial evidence. See State v. Brockob, 159 Wash.2d 311, 343, 150 P.3d 59 (2006).
¶ 7 First, we note that a proper community custody condition must be authorized by the legislature because it is the legislature‘s sole province to fix legal punishments. State v. Pillatos, 159 Wash.2d 459, 469, 150 P.3d 1130 (2007). Motter wrote a letter to the court asking to receive mental health treatment. But a defendant‘s request does not give the court authority to impose a requested condition.
¶ 8 If an offender was convicted of a “violent offense,” a sentencing court may impose community custody under
¶ 9
order the offender to participate 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.
¶ 10 Second, it authorizes a court to impose conditions that are listed in
(c) The offender shall participate in crime-related treatment or counseling services; [and]
. . . .
(e) The offender shall comply with any crime-related prohibitions.
A condition is crime-related if it directly relates to the circumstances of the crime.
A. REHABILITATIVE PROGRAMS
¶ 11 Motter first challenges the order that he participate in rehabilitative programs. The sentencing court ordered that Motter
enter into, cooperate with, fully attend and successfully complete all in-patient and outpatient phases of a . . . substance abuse . . . [and] anger management treatment program as established by the community corrections officer and/or the treatment facility.
Clerk‘s Papers (CP) at 149.
¶ 12 Motter argues that substance abuse is not a “crime-related treatment or counseling servic[e]” under
¶ 13 Further,
B. PROHIBITION ON PARAPHERNALIA POSSESSION AND USE
¶ 14 Second, Motter challenges the trial court‘s order that he:
shall not possess or use any paraphernalia that can be used for the ingestion or processing of controlled substances or that can be used to facilitate the sale or transfer of controlled substances including scales, pagers, cellular phones, police scanners, and hand held electronic scheduling and data storage devices.
CP at 149. This condition does not order affirmative conduct. And, as demonstrated above, Motter‘s crime was related to his substance abuse. Thus, forbidding Motter from possessing or using controlled substance paraphernalia is a “crime-related prohibition[]” authorized under
¶ 15 Motter argues that “almost any item can be used for the ingestion of controlled substances, such as knives, soda cans, or other kitchen utensils.” Br. of Appellant at 29. A community custody condition may be void for vagueness if it fails to define specifically the activity that it prohibits. State v. Riles, 86 Wash.App. 10, 17-18, 936 P.2d 11 (1997), aff‘d, 135 Wash.2d 326, 957 P.2d 655 (1998). But Motter fails to cite to authority and his argument consists of one
¶ 16 Moreover, Motter‘s challenge is not ripe. In State v. Massey, 81 Wash.App. 198, 200, 913 P.2d 424 (1996), the defendant challenged a condition that he submit to searches. This court held that the judicial review was premature until the defendant had been subjected to a search he thought unreasonable. And in State v. Langland, 42 Wash.App. 287, 292-93, 711 P.2d 1039 (1985), we held that the question of a law‘s constitutionality is not ripe for review unless the challenger was harmed by the law‘s alleged error. Here, Motter claims that the court order could prohibit his possession of innocuous items. But Motter has not been harmed by this potential for error and this issue therefore is not ripe for our review. It is not reasonable to require a trial court to list every item that may possibly be misused to ingest or process controlled substances, items ranging from pop cans to coffee filters. Thus, we can review Motter‘s challenge only in context of an allegedly harmful application of this community custody condition. This argument is not properly before this court and we will not address it.
C. COURT-ORDERED AFFIRMATIVE CONDUCT
¶ 17 Last, the trial court ordered that Motter “shall notify his/her community corrections officer on the next working day when a controlled substance or legend drug has been medically prescribed.” CP at 149. This order requires that Motter perform affirmative conduct. Thus, it is not a valid “crime-related prohibition[ ]” under
¶ 18 But this condition is authorized under
¶ 19 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to
I concur: HOUGHTON, C.J.
VAN DEREN, J. (concurring in part and dissenting in part).
¶ 47 I respectfully dissent only on the issue of whether a prohibition on the possession or
¶ 48 Here, the record does not demonstrate that Motter dealt or possessed drugs with the intent to transfer or sell them. He does have an admitted drug use problem. The trial court‘s order thus elevates ownership and use of cell phones and data storage devices by drug users to paraphernalia used in the street drug trade. While it has been demonstrated in numerous criminal prosecutions that drug dealers use cell phones and electronic scheduling and data storage devices. in their trade, the largest users and possessors of these devices are non-drug users. Indeed, recent statistics report that almost three-fourths of the American public own or use cell phones.7 They are the sole telephone for approximately 26 million adults — some 11. percent of our households.8 The number of cell phone subscribers in Washington doubled from 2,144,767 in 2000, to 4,418,314 by June of 2006.9 Their multiple functions allow them to replace other devices that take greater space and are much more costly.10 For those without a permanent address, they may be the only way for a community corrections officer to maintain regular, easy, and fast contact.
¶ 49 I disagree with the majority that Motter has not demonstrated immediate harm from the trial court‘s restrictions and that the matter is not ripe. The majority states that “Motter claims that the court order could prohibit his possession of innocuous items” and reasons that “Motter has not been harmed by this potential for error and this issue is not ripe for our review.” Majority at 1194. The majority partially relies on State v. Massey, 81 Wash.App. 198, 913 P.2d 424 (1996). In Massey, the defendant challenged a condition that he submit to searches upon reasonable suspicion versus reasonable cause. Massey, 81 Wash.App. at 199-200, 913 P.2d 424. The Massey court held that judicial review was premature until the defendant had actually been subjected to a search. Massey, 81 Wash.App. at 200, 913 P.2d 424. But Massey may never be subjected to a search, whereas Motter will be continuously subjected to the restriction on cell phones. Apparently the majority believes that in order to challenge these prohibitions, Motter must violate the order by possessing or using a cell phone or other device and face punishment before he can challenge the breadth of the order. But the order clearly is an immediate restriction on Motter‘s ability to own (or even use another person‘s) cell phones or electronic data storage devices.
¶ 50 I would hold that, unless the record shows that Motter was selling or obtaining drugs by use of a cell phone or other electronic device, this restriction is not valid and should be vacated.