State Of Washington v. Casey Alan Green ( 2020 )

Filed
Washington State
Court of Appeals
Division Two
September 22, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 53155-1-II
Respondent,
v.
CASEY ALAN GREEN, UNPUBLISHED OPINION
Appellant.
GLASGOW, J.—Casey Alan Green appeals his judgment and sentence for convictions of
first degree malicious mischief and fourth degree assault. He argues that the trial court imposed an
impermissibly vague community custody condition, made a scrivener’s error in the judgment and
sentence, and improperly ordered interest accrual on nonrestitution legal financial obligations. We
disagree that the community custody condition is impermissibly vague, but we remand to the
sentencing court to consider modifying the condition as the State suggests, correct the scrivener’s
error, and correct the interest accrual provision so that it does not apply to Green’s nonrestitution
legal financial obligations.
FACTS
Green had a disagreement with his brother about Green’s drug use and its impact on
Green’s daughter. Green shoved his brother and inflicted thousands of dollars of damage to his
brother’s car. A jury found Green guilty of first degree malicious mischief and fourth degree
assault.
No. 53155-1-II
The trial court sentenced Green to 90 days confinement on the malicious mischief
conviction and 364 days with 274 days suspended for the fourth degree assault charge. The total
period of confinement was therefore 90 days. The judgment and sentence denoted the maximum
term for fourth degree assault as one year. The trial court imposed community custody conditions
including that Green “not use, possess, manufacture or deliver controlled substances without a
valid prescription, not associate with those who use, sell, possess, or manufacture controlled
substances[,] and submit to random urinalysis at the direction of his/her [community corrections
officer] to monitor compliance with this condition.” Clerk’s Papers (CP) at 23.
Green appeals his judgment and sentence.
ANALYSIS
I. COMMUNITY CUSTODY CONDITION
Vague community custody conditions violate due process under the Fourteenth
Amendment to the United States Constitution and article I, section 3 of the Washington
Constitution. State v. Irwin, 191 Wn. App. 644, 652, 364 P.3d 830 (2015). It is an abuse of
discretion for a sentencing court to impose an unconstitutionally vague condition. State v. Hai
Minh Nguyen, 191 Wn.2d 671, 678, 425 P.3d 847 (2018). A community custody condition is
unconstitutionally vague if either “(1) it does not sufficiently define the proscribed conduct so an
ordinary person can understand the prohibition or (2) it does not provide sufficiently ascertainable
standards to protect against arbitrary enforcement.” State v. Padilla, 190 Wn.2d 672, 677, 416 P.3d
712 (2018).
We recently concluded that a community custody condition prohibiting a person from
associating with “known drug users and sellers” was not unconstitutionally vague. State v. Houck,
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No. 53155-1-II
9 Wn. App. 2d 636, 645, 446 P.3d 646 (2019), review denied 194 Wn.2d 1024 (2020). In doing
so, we discussed United States v. Vega, 545 F.3d 743, 749 (9th Cir. 2008), where the Ninth Circuit
evaluated a similar condition and explained that “‘incidental contacts—such as those [an offender
would] fear he would be punished for inadvertently engaging in—do not constitute association.’”
Houck, 9 Wn. App. 2d at 644-45 (alteration in original) (internal quotation marks omitted) (quoting
Vega, 545 F.3d at 746). Moreover, the condition we upheld in Houck is arguably less precise than
the one at issue here because the Houck condition referred to “drug” sellers and users, rather than
people who “use, sell, possess, or manufacture controlled substances.” CP at 23. Controlled
substances are precisely defined by statute. RCW 69.50.101(g). The community custody condition
at issue here adequately defines the proscribed conduct, and it does not lend itself to arbitrary
enforcement any more than the condition at issue in Houck did.1
Nevertheless, the State “would not oppose amending the challenged portion of the
condition to ‘not associate with those known to illegally use, sell, possess, or manufacture
controlled substances.’” Br. of Resp’t at 4-5 (emphasis added). Because the State does not object
1
To the extent Green contests the breadth of the community custody condition, when analyzing
whether a community custody condition is overbroad, we have recognized that an offender’s
constitutional rights during community custody are subject to the infringements authorized under
the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, including crime-related
prohibitions. State v. McKee, 141 Wn. App. 22, 37, 167 P.3d 575 (2007); State v. Riles, 135 Wn.2d
326, 347, 957 P.2d 655 (1998), abrogated on other grounds by State Valencia, 169 Wn.2d 782,
239 P.3d 1059 (2010).
Green does not claim that the trial court violated the SRA by imposing a condition that is
not crime-related. See RCW 9.94A.030(10). Green has not shown that given the circumstances of
his crime, it was improper to impose a condition requiring him to avoid association with people
who have access to controlled substances for whatever reason, legal or illegal. Green has not
argued or established that this condition did not comply with the SRA under the circumstances of
this case.
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No. 53155-1-II
to the amendment of the community custody condition in this case, the trial court may amend the
condition on remand as the State suggests.
II. SCRIVENER’S ERROR
Green also argues that the sentencing court made a scrivener’s error in listing the maximum
sentence for fourth degree assault as “‘1 year.’” Br. of Appellant at 8. The State concedes that this
is inaccurate, and we accept the State’s concession.
Fourth degree assault is a gross misdemeanor the maximum sentence for which is 364 days.
RCW 9A.20.021(2). The proper remedy for a scrivener’s error is correction upon remand. State v.
Makekau, 194 Wn. App. 407, 421, 378 P.3d 577 (2016). We accept the State’s concession and
direct the trial court to correct the scrivener’s error on remand.
III. INTEREST ACCRUAL
Green also argues, and the State concedes, that the trial court erred by imposing the accrual
of interest on his nonrestitution legal financial obligations. We accept the State’s concession. In
2018, the legislature amended several statutes addressing legal financial obligations. LAWS OF
2018, ch. 269, § 1. As a result of the amendments, RCW 10.82.090 now prohibits interest from
accruing on nonrestitution legal financial obligations.
CONCLUSION
We remand for the trial court to correct the judgment and sentence and to consider
amending the challenged community custody condition as the State suggests. We direct the
sentencing court to correct the scrivener’s error on the maximum sentence for Green’s fourth
degree assault conviction and amend the interest accrual provision so that it does not apply to
nonrestitution legal financial obligations.
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No. 53155-1-II
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Glasgow, J.
We concur:
Lee, C.J.
Maxa, J.
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