State Of Washington v. Derrick Hills ( 2013 )

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 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 69335-2-
Respondent,
v.                                  DIVISION ONE
DERRICK HILLS,                                    UNPUBLISHED OPINION
Appellant.                   FILED: October 28, 2013
Per Curiam — Derrick Hills appeals his conviction and sentence for
possession of cocaine. He contends, and the State concedes, that the court
erred in imposing a substance abuse evaluation and treatment as a community
custody condition without first finding that he has a chemical dependency as
required by RCW 9.94A.607(1).1 We accept the concession and remand for the
court to strike the condition unless it determines "that it can presently and lawfully
1State v. Warnock.

174 Wash. App. 608

299 P.3d 1173

 (2013) (chemical
dependency finding is a statutory prerequisite to ordering chemical dependency
evaluation and treatment): cf State v. Jones,

118 Wash. App. 199

, 209-10,

76 P.3d 258

 (2003) (failure to make statutorily required finding before ordering mental
health treatment and counseling was reversible error even though record
contained substantial evidence supporting such a finding).
No. 69335-2-1/2
comply" with the statutory requirement for a finding that Hills has a chemical
dependency that contributed to his offense.2
Because there is no evidence that alcohol contributed to Hills' offense, we
also accept the State's concession that the court erred in imposing a community
custody condition requiring Hills to refrain from possessing alcohol.3 This
condition must be stricken.
The State also concedes, and we concur, that the judgment and sentence
contains a scrivener's error in that section 4.7(a) (imposing community custody
for crimes committed before 7-1-2000) is checked instead of section 4.7(c)
(imposing community custody for crimes committed after 6-30-2000), which is
applicable here. The judgment and sentence must be corrected on remand.
Hills raises several additional claims in a pro se statement of additional
grounds for review. He contends the police unlawfully seized him because, while
they testified they smelled marijuana, they did not charge him with possessing
marijuana. But how police ultimately charged Hills is immaterial to whether
police had the articulable suspicion of criminal activity necessary for a lawful
seizure.4 The trial court's unchallenged findings establish that the officers
2See Jones. 118 Wn. App. at 212 n.33.
3RCW9.94A.505(8),.703(3)(f); RCW 9.94B.050(5)(e); State v. McKee,

141 Wash. App. 22

, 34,

167 P.3d 575

 (2007) (condition prohibiting purchase and
possession of alcohol was invalid when alcohol did not play a role in the crime).
4 Terry v. Ohio,

392 U.S. 1

, 21,

88 S. Ct. 1868

20 L. Ed. 2d 889

 (1968);
State v. Kennedy,

107 Wash. 2d 1

, 6,

726 P.2d 445

 (1986).
2
No. 69335-2-1/3
smelled "a strong odor" of marijuana coming directly from Hills before they seized
him. The odor of marijuana provided an articulable suspicion of criminal activity.
To the extent Hills contends there was no basis for the subsequent
search, the court's unchallenged findings establish that the officers' pat down and
subsequent search of Hills' person were justified by safety concerns and the
authority to conduct a search incident to arrest.5
Hills contends the officers violated his Fifth Amendment rights because
they did not give him Miranda6 warnings before asking him about the marijuana
odor. But the court's unchallenged findings and conclusions establish that Hills
was not in custody when the officers asked him about the odor. Accordingly,
Miranda warnings were not required.7
Last, Hills contends the court violated his right to a speedy trial when, over
objection, it granted a two and a half week continuance to August 8, 2012, due to
the police witnesses' prescheduled vacations. One officer was on his
honeymoon and the other was out of the office until August 7, 2012. The court
continued the trial until August 8, 2012. There was no violation of Hills' right to a
5 State v. Collins,

121 Wash. 2d 168

, 173,

847 P.2d 919

 (1993) (protective
frisk); State v. Bonds,

174 Wash. App. 553

, 569,

299 P.3d 663

 (2013) (search
incident to arrest).
6 Miranda v. Arizona.

384 U.S. 436

86 S. Ct. 1602

16 L. Ed. 2d 694

(1966).
7"Miranda warnings are required when an interrogation or interview is (a)
custodial (b) interrogation (c) by a state agent." State v. Lorenz.

152 Wash. 2d 22

,
36, 93P.3d133(2004).
3
No. 69335-2-1/4
speedy trial. A preplanned vacation and the unavailability of witnesses constitute
valid grounds to continue a trial date under CrR 3.3(f)(2).8
Affirmed in part and remanded for proceedings consistent with this
opinion.
FOR THE COURT:
V(lA,
8 See, e.g.. State v. Grillev.

67 Wash. App. 795