State Of Washington, Respondent/cr-appellant V. Jacob Warner, Appellant/cr-respondent

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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
No. 69347-6-1
Respondent,
Vv. DIVISION ONE
JACOB ALAN WARNER, UNPUBLISHED OPINION
Appellant. FILED: March 10, 2014

LEACH, C.J. — Jacob Warner pleaded guilty to domestic violence assault
in the first degree and domestic violence robbery in the first degree. Warner
challenges his condition of community custody prohibiting him from “possess[ing]}
or consuming] alcohol” and “frequent[ing] establishments where alcohol is the
chief commodity for sale.” Warner also contends that the community custody
condition prohibiting him from possessing “drug paraphernalia” is
unconstitutionally vague. In a statement of additional grounds, Warner
challenges his sentencing because the court did not order a mental evaluation,
he has no history of violence, he did not receive proper time to prepare before
speaking with the judge, and his family and friends were not allowed to provide
testimony on his behalf at the sentencing hearing. We accept the State's
concession that prohibiting Warner from “frequent[ing] establishments where

alcohol is the chief commodity for sale” is invalid and remand for the sentencing

No. 69347-6-1 / 2
court to strike this condition. 	Because Warner fails to show that the remaining
community custody 	conditions 	are 	invalid and 	his 	remaining 	arguments 	are
meritless, we otherwise affirm.
Background
On April 11, 2011, Warner and his mother entered the home of Warner's
stepfather, 	Royce 	Glenn. 	When 	Warner 	and 	his 	mother 	entered 	Glenn's
bedroom, Warner restrained Glenn while his mother hit him with a baseball bat.
After Glenn broke free, Warner and his mother pursued him into the bathroom.
Warner then started to hit Glenn with something 	other than the bat. 	Glenn again
broke free, fled the house, and called the police.
Warner and his mother fled the house, taking with them Glenn's wallet.
This held some of Glenn's credit cards. 	When police searched the house, they
found a bat and torque wrench with blood on them. 	Warner later stated that he
was under the influence of methamphetamine at the time of the assault. 	Warner
claimed, however, that he had not used alcohol in the past three years.
On August 1, 2012, Warner pleaded guilty to first degree assault and first
degree robbery. 	Warner stipulated to the facts contained 	in the affidavit of
probable cause.
On August 31, 2012, the court imposed a standard range sentence of 147
months of confinement on the assault charge and 54 months of confinement on
the robbery charge. 	The court also imposed 36 months of community custody,
including the following challenged conditions:

No. 69347-6-1 / 3
4. 	Do 	not 	possess 	or 	consume 	alcohol 	and 	do 	not frequent
establishments where alcohol is the chief commodity for sale.
7. 	Do not possess drug paraphernalia.
Warner appeals.
Analysis
We 	review 	the 	trial 	court's 	statutory 	authority 	to 	impose 	community
custody conditions de novo.1 	Conditions of community custody may include
treatment 	and 	counseling 	services, 	prohibition 	from 	consuming 	alcohol, 	and
"crime-related prohibitions."2 	A "crime-related prohibition" is defined as "an order
of a court prohibiting conduct that directly relates to the circumstances of the
crime for which the offender has been convicted."3
Alcohol-Related Community Conditions
Warner contends that the trial court lacked authority to impose community
custody conditions prohibiting him from possessing alcohol or from "frequenting]
establishments 	where 	alcohol 	is the 	chief commodity for 	sale." 	The 	State
concedes that because no evidence showed Warner used alcohol at the time of
his offense, the trial court lacked authority to prohibit Warner from possessing
alcohol and "frequent[ing] establishments where alcohol is the chief commodity
for sale." 	But, as the State notes, a trial court may prohibit a defendant from
consuming alcohol even if the crime did 	not involve alcohol.4 	Therefore, we
1 State v. Armendariz. 160 Wn.2d 106, 110, 156 P.3d 201 (2007).
2 RCW 9.94A.703(3)(c), (e), (f).
3RCW9.94A.030(10).
4 State v. Jones, 118 Wn. App. 199, 206, 76 P.3d 258 (2003).

No. 69347-6-1 / 4
accept the State's concession and remand for the sentencing court to strike the
invalid conditions of possessing alcohol and "frequenting] establishments where
alcohol is the chief commodity for sale." 	We affirm the community condition
prohibiting Warner from consuming alcohol.
Possession of Drug Paraphernalia
Warner claims that the community custody condition prohibiting him from
possessing "drug paraphernalia" is unconstitutionally vague. 	"[T]he due process
vagueness doctrine under the Fourteenth Amendment and article I, section 3 of
the 	state 	constitution 	requires 	that 	citizens 	have 	fair 	warning 	of 	proscribed
conduct."5 	A statute is unconstitutionally vague if it does not (1) define the
criminal 	offense 	with 	sufficient 	definiteness 	so 	that 	ordinary 	people 	can
understand what conduct it proscribes or (2) provide ascertainable standards of
guilt to protect against arbitrary enforcement.6
The sentencing court has discretion to impose conditions of community
custody, 	and we will 	reverse sentences 	only 	if 	manifestly 	unreasonable.7
Imposing an unconstitutional condition is manifestly unreasonable.8 	Unlike a
statute or ordinance, a condition of community custody enjoys no presumption of
constitutionality.9
5 State v. Bahl, 164 Wn.2d 739, 752, 193 P.3d 678 (2008) (citing City of
Spokane v. Douglass, 115Wn.2d 171, 178, 795 P.2d 693 (1990)).
6Bahl, 164Wn.2d at 752-53 (quoting Douglass, 115 Wn.2d at 178).
7 Bahl, 164 Wn.2d at 753 (citing State v. Riley, 121 Wn.2d 22, 37, 846
P.2d 1365(1993)).
8 Bahl, 164Wn.2dat753.
9 State v. Sanchez Valencia, 169 Wn.2d 782, 792, 239 P.3d 1059 (2010).

No. 69347-6-1 / 5
When interpreting a condition of community custody, a court considers
terms in 	the context of their use.10 	For an undefined 	term, 	the court may
consider the plain and ordinary meaning as set forth in a standard dictionary.11 	A
condition is sufficiently definite if persons of ordinary intelligence can understand
what the law proscribes, notwithstanding some possible areas of disagreement.12
Warner relies primarily on State v. Sanchez Valencia.13 	However, in that
case, 	in determining that the condition did 	not provide fair 	notice of what a
defendant could or could not do, the court reasoned that the condition referred
very broadly to "paraphernalia," as opposed to the more specific term "drug
paraphernalia."14
And 	unlike "paraphernalia," "drug 	paraphernalia" is a statutorily defined
term:
"[D]rug 	paraphernalia" 	means 	all 	equipment, 	products, 	and
materials of any kind which are used, intended for use, or designed
for use in planting, 	propagating, 	cultivating, 	growing, 	harvesting,
manufacturing, 	compounding, 	converting, 	producing, 	processing,
preparing, 	testing, 	analyzing, 	packaging, 	repackaging, 	storing,
containing, concealing, injecting, 	ingesting, 	inhaling, or otherwise
introducing into the human body a controlled substance.1151
In Sanchez Valencia, 	our Supreme Court expressed 	concern that the
community custody condition would lead to arbitrary enforcement because one
10 Bahl, 164 Wn.2d at 754 (citing Douglass, 115 Wn.2d at 180).
11 Bahl, 164 Wn.2d at 754 (citing State v. Sullivan, 143 Wn.2d 162, 184-
85, 19P.3d 1012(2001)).
12 Bahl, 164 Wn.2d at 754 (quoting Douglass, 115 Wn.2d at 179).
13 169 Wn.2d 782, 239 P.3d 1059 (2010).
14 Sanchez Valencia, 169 Wn.2d at 794.
15 RCW 69.50.102(a).
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No. 69347-6-1 / 6
corrections officer could deem a sandwich bag paraphernalia while another might
not.16 	In contrast, here, the statutory definition contains an explicit requirement
that the prohibited object be intended for use related to "a controlled substance,"
therefore protecting against arbitrary enforcement.17 	The condition prohibiting
the possession of "drug paraphernalia" is not unconstitutionally vague.
Statement of Additional Grounds
Sentencing Challenges
In a statement of additional grounds, Warner challenges his sentencing on
the bases that the court denied him a mental evaluation, he does not have a prior
history 	of 	violence, 	and 	he 	"was 	not 	given 	time 	to 	get 	[his] 	paperwork 	in
order... so that [he] 	could 	refer to them when [speaking with] the judge at
sentencing."
No incompetent person 	may be tried, 	convicted, 	or sentenced for the
commission of an offense as long as the incapacity continues.18 	"A defendant is
competent if he has the capacity to understand the nature of the proceedings
against him and to assist in his own defense."19 	RCW 10.77.060 requires a court
to order a mental evaluation whenever there is reason to doubt the defendant's
competency. 	In that 	situation, 	the 	court 	must 	appoint 	qualified 	experts 	to
16 Sanchez Valencia. 169 Wn.2d at 794-95.
17 RCW 69.50.102(a).
18 RCW 10.77.050; In re Pers. Restraint of Fleming, 142 Wn.2d 853, 862,
16P.3d610(2001).
19 State v. Lord, 117 Wn.2d 829, 900, 822 P.2d 177 (1991).
-6-

No. 69347-6-1 / 7
determine if the defendant is competent to stand trial.20 The trial court has broad
discretion to order a competency examination.21
The evidence presented to the trial court here established merely that
Warner had a history of mental illness.22 	The fact that a defendant is mentally ill
does 	not 	necessarily 	demonstrate that he is 	incompetent.23 	No 	evidence
presented to the court raises any questions about Warner's ability to understand
the proceedings against him and assist in his own defense. 	Thus, his claim fails.
Generally, 	a party cannot appeal a standard 	range sentence.24 	"This
prohibition does not, however, bar a party from challenging legal errors or abuses
of discretion in the determination of what sentence applies."25 	A trial court has
broad discretion to impose a sentence within the standard range.26 	And a trial
judge is "under no obligation to explain his reason for imposing a sentence at the
high end of the standard range."27 	The record shows that the sentencing court
knew that Warner did not have a prior violent history. Thus, his claim fails.
20 Fleming, 142 Wn.2d at 863.
21 Fleming, 142 Wn.2d at 863.
22 At sentencing, defense counsel noted that Warner received treatment in
jail for depression and posttraumatic stress disorder.
23 See, e.g., 	Lord, 117 Wn.2d 	at 901-02 (court did not err in denying
request for 	competency 	hearing, 	even though 	defendant 	exhibited 	signs of
mental illness, 	including 	delusions of conversations with 	the devil); 	State 	v.
Smith. 74 Wn. App. 844, 850, 875 P.2d 1249 (1994) (without evidence linking
psychological disorders to the capacity to plead guilty, the court did not err in
denying motion to withdraw guilty plea).
24 RCW 9.94A.585(1); State v. Williams, 149 Wn.2d 143, 146, 65 P.3d
1214 (2003); State v. Smith, 118 Wn. App. 288, 292, 75 P.3d 986 (2003).
25 Smith. 118Wn. App. at 292 (citing Wjlljams, 149 Wn.2d at 147).
26 State v. Herzog. 	112 Wn.2d 419, 424, 771 	P.2d 739 (1989) (citing
United States v. Sweig, 454 F.2d 181, 183-84 (2d Cir. 1972)).
27 State v.MaiTl 21 Wn.2d 707, 714, 854 P.2d 1042 (1993).

No. 69347-6-1 / 8
Warner next claims that he "was not given time to get [his] paperwork in
order... so that [he] could 	refer to 	them when [speaking with] the judge at
sentencing." 	Warner provided testimony at the sentencing hearing. 	Warner has
failed 	to 	show 	how 	further 	preparation 	would 	have 	affected 	his 	testimony.
Because Warner fails to show any error in the sentencing proceedings, we reject
his claims.
Testimony from Family and Friends
Warner also claims that "[his] family and friends were not allowed in court
to give testimony on [his] behalf." 	Warner waived his right to have witnesses
testify in his own defense when he pleaded guilty to the charged crimes. 	During
the sentencing hearing, the court must "allow arguments from the prosecutor, the
defense 	counsel, 	the 	offender, 	the 	victim, 	the 	survivor 	of 	the 	victim, 	or 	a
representative of the victim or survivor, and an 	investigative law enforcement
officer."28 	But the law does not require the court to allow arguments from the
defendant's 	family 	and 	friends 	during 	the 	sentencing 	hearing. 	Therefore,
Warner's claim fails.
Conclusion
Because 	the 	State 	concedes 	that 	the 	community 	custody 	conditions
prohibiting Warner from possessing alcohol and 	"frequenting] establishments
where alcohol is the chief commodity for sale" are invalid, we remand to the
sentencing court to strike these conditions. 	Because the sentencing court has
28RCW9.94A.500(1).
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No. 69347-6-1 / 9
the authority to prohibit Warner from possessing alcohol, Warner failed to show
that "drug paraphernalia" is unconstitutionally vague, and 	no evidence in the
record supports the claims that Warner asserts in his statement of additional
grounds, we otherwise affirm.
WE CONCUR:
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