State Of Washington, Respondent V. Richard W. Wilke, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON,
Respondent,
v.
RICHARD W. WILKE,
Appellant.
No. 85753-3-I
DIVISION ONE
UNPUBLISHED OPINION
P ER CURIAM —Richard Wilke filed an appeal challenging conditions of community
custody imposed in his judgment and sentence requiring that he (1) pay supervision
fees, (2) complete a sexual deviancy evaluation and follow treatment recommendations,
and (3) obtain permission to apply for employment or a volunteer position which may
place him in contact with or in control of minors.
As of June 2022, RCW 9.94A.703(2) no longer authorizes the court to impose
community custody supervision fees. LAWS OF 2022, ch. 29, § 7; see also LAWS OF
2022, ch. 29, § 8 (effective July 1, 2022). 	The court sentenced Wilke in August 2023,
more than a year after the legislature amended the statute. 	As a result, the court had
no authority to impose supervision fees. 	The State appropriately concedes that this
condition should be stricken.
In addition, the sentencing court imposed crime-related conditions of community
custody requiring that Wilke obtain permission before applying for certain types of
employment (No. 5) and obtain a sexual deviancy evaluation and follow treatment

No. 85753-3-I/2
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recommendations (No. 6) based on a misapprehension that the law allowed the court to
modify those conditions in the future if they proved to be too “onerous.” But a trial court
does 	not 	generally 	have 	authority 	to 	modify 	court-imposed 	community 	custody
conditions after sentencing. 	See State v. Hubbard, 1 Wn.3d 439, 446, 527 P.3d 1152
(2023); see also State v. Harkness, 145 Wn. App. 678, 685, 186 P.3d 1182 (2008) (trial
court has only limited statutory authority to modify a sentence post judgment). Because
the record demonstrates that the court imposed crime-related conditions Nos. 5 and 6
based on a misunderstanding of the law, we accept the State’s concession and remand
for the trial court to reconsider those conditions.
RCW 9.94A.703 has been amended since Wilke’s sentencing, and under the law
now in effect, the court may modify a substantive condition of community custody based
on a “substantial change of circumstances” that renders the condition “no longer
necessary 	for 	community 	safety.” 	See 	LAWS 	OF 	2024, 	ch. 	118, 	§ 	2, 	RCW
9.94A.703(5). 	Therefore, on remand, the trial court should reconsider the challenged
conditions in light of the correct law in effect at the time of sentencing and the recent
statutory amendment. And, while the issue was not raised below, Wilke may also raise
the issue of whether the imposition of costs associated with an evaluation and treatment
would contravene the Social Security Act, since he receives social security income.
See State v. Catling, 193 Wn.2d 252, 260, 438 P.3d 1174 (2019) (debt stemming from
victim 	penalty 	assessment 	could 	not 	be 	satisfied 	from 	Social 	Security 	disability
benefits).
We accept the State’s concessions and remand to the trial court to strike the
condition of community custody requiring Wilke to pay supervision fees and reconsider

No. 85753-3-I/3
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crime-related conditions of community custody Nos. 5 and 6 imposed in the judgment
and sentence entered in Whatcom County Superior Court Cause No. 22-1-01294-37.
FOR THE COURT: