State Of Washington v. James William Burke ( 2016 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
DIVISION ONE
Respondent,
No. 72942-0-1
v.
UNPUBLISHED OPINION
JAMES WILLIAM BURKE,
Appellant. FILED: January 19, 2016
Dwyer, J. — James Burke entered guilty pleas to three counts of child
molestation. On appeal, Burke contends that the trial court erred by imposing
community custody conditions requiring him to (1) "[h]old employment only in a
position where [he] always receive[s] direct supervision," and (2) "[participate in
drug/alcohol evaluation and comply with recommended treatment." We remand
for the judgment and sentence to be amended consistent with this opinion.
I
Burke pleaded guilty to one count of child molestation in the first degree1
and two counts of child molestation in the second degree.2 The crimes were
committed in Burke's home between 2008 and 2013.
Burke requested that the trial court impose a Special Sex Offender
Sentencing Alternative (SSOSA), and agreed that the court could consider the
1 RCW 9A.44.083.
2 RCW 9A.44.086.
No. 72942-0-1/2
affidavit of probable cause when issuing his sentence. The affidavit detailed that
Detective Darrin Wallace of the Grays Harbor County Sheriff's Office had a
conversation with Burke regarding the allegations, wherein "Burke interrupted
[Wallace][,] saying that he had been drinking a lot lately and could not remember
the things he did while drinking, which was one of the reasons he stopped
drinking recently."
In a presentence investigation, community corrections officer John Cates
evaluated Burke's alcohol and drug use, reporting that,
Mr. Burke denies any drug use whatsoever with the exception of a
one-time experimentation with marijuana when he was 27 or 28
years old. He stated [that] it gave him nausea and a headache and
left a bitter taste in his mouth. Mr. Burke stated [that he] began
drinking alcohol at age 21. He stated [that] he drinks one to three
drinks every evening in his home. Mr. Burke stated [that] he does
not have a problem with alcohol.
Dr. Lisa Trifiletti, a licensed psychologist, also performed an evaluation,
and found that,
Mr. Burke reported [that] his alcohol use varies. During the
summer, while mowing their four acre property he may have 3-4
beers over the course of the day. He may drink more than this on a
day he has a friend visiting. There have been periods in his life
when he drank on a daily basis, but not necessarily to intoxication.
Mr. Burke stated [that] alcohol has never been problematic and
[that] he does not rely on drinking as a coping mechanism. He
stated [that] his alcohol use rarely put him or others in danger and
[that] he never neglected his obligations because of alcohol use.
Mr. Burke used marijuana on one occasion at age 27, but did not
like the feeling. He denied any other illicit drug use.
The trial court denied Burke's request for a SOSSA. Instead, the court
sentenced Burke to an indeterminate term of imprisonment, from a minimum of
98 months to a maximum of life, and a lifetime term of community custody.
No. 72942-0-1/3
Burke now appeals.
II
Burke contends that the community custody condition requiring him to be
directly supervised while at work was improperly imposed. This is so, he asserts,
because the condition "is unrelated to the offense to which [he] pled guilty." The
State concedes error. We accept the concession.
Sentencing conditions are reviewed for abuse of discretion. In re Pers.
Restraint of Rainev. 168 Wn.2d 367, 374, 229 P.3d 686 (2010). A sentencing
court abuses its discretion in imposing a condition if it applies the wrong legal
standard. Rainev, 168 Wn.2d at 375.
A trial court's authority to impose sentencing conditions is derived wholly
from statute. State v. Bahl, 164 Wn.2d 739, 753, 193 P.3d 678 (2008). Such
conditions must be "crime related." RCW 9.94A.703(3)(c)-(d), (f); see also RCW
9.94A.607(1); State v. Acrev. 135 Wn. App. 938, 946-47, 146 P.3d 1215 (2006)
(employment condition); State v. Jones, 118 Wn. App. 199, 207-08, 76 P.3d 258(2003) (substance use condition). A "crime-related prohibition" is one that
"directly relates to the circumstances of the crime for which the offender has
been convicted." RCW9.94A.030(10).
Here, the trial court ordered that Burke "[h]old employment only in a
position where [he] always receive[s] direct supervision." Because the record
indicates that the crimes were committed exclusively within Burke's home, and
that he did not use his place of employment to further these crimes, we accept
the State's concession that the condition was improperly imposed. We remand
No. 72942-0-1/4
with instructions for the trial court to strike this condition from the judgment and
sentence.
Ill
In a statement of additional grounds, Burke contends that the community
custody condition requiring him to participate in an alcohol and drug evaluation
and any recommended treatment was also improperly imposed. This is so, he
asserts, because "alcohol or drugs was not a factor in [his] crime." He is correct,
in part. Thus, we remand the cause to the trial court to clarify on the judgment
and sentence form that the challenged condition applies only to alcohol
evaluation and treatment.3
Here, the trial court ordered that Burke "[participate in drug/alcohol
evaluation and comply with recommended treatment." The record is replete with
indications of alcohol abuse by Burke, including Burke's statement that
sometimes he could not remember all that he did while drinking. Thus, the
alcohol condition was properly imposed.
However, because the record indicates only one occasion on which Burke
used marijuana, and that was many decades ago, his contention that drugs were
not a factor in the crimes is supported by the record. Thus, this aspect of the
challenged condition was improperly imposed. See State v. Munoz-Rivera,
3 This year, the legislature amended the provision relating to chemical dependency to
permit a condition to be imposed "[w]here the court finds that the offender has any chemical
dependency that has contributed to his or her offense . . . regardless of the particular substance
that contributed to the commission of the offense." Former RCW 9.94A.607(1) (Laws of 2015,
ch. 81, § 2) (emphasis added).
Because the amended language does not apply retroactively, we apply the law in effect
at the time the crimes were committed, which required that both alcohol and drug use be crime-
related for the particular condition imposed to be proper. See State v. Munoz-Rivera, Wn.
App. , 361 P.3d 182, 192 n.3 (2015).
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No. 72942-0-1/5
Wn. App. , 361 P.3d 182, 193 (2015); State v. Kinzle. 181 Wn. App. 774, 786,
326 P.3d 870, review denied. 181 Wn.2d 1019 (2014); State v. Warnock, 174
Wn. App. 608, 614, 299 P.3d 1173 (2013). We remand the cause to the trial
court to clarify that the challenged condition is explicitly limited to alcohol
evaluation and treatment.
Affirmed, in part. Remanded for the judgment and sentence to be
amended consistent with this opinion.
We concur:
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