State of Washington v. Ian Seth Almberg

FILED
February 16,2016
In the Office of the Clerk of Court
WA State Coo rt of Appeals, Divi ion II)
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 33314-1-II1
Respondent, )
)
v. )
)
IAN SETH ALMBERG, ) UNPUBLISHED OPINION
)
Appellant. )
KORSMO, J. - Ian Seth Almberg was convicted of second degree robbery by a
Spokane County jury. As part of the judgment and sentence, the court imposed a
community custody condition prohibiting his possession or use of marijuana. Mr. Almberg
contends the condition must be stricken because it is not crime-related and therefore not
authorized by statute. We fmd the condition valid and affinn.
FACTS AND PROCEDURE
Ian Almberg was charged with second degree robbery stemming from an October
8,2014 incident at Jimmy John's sandwich shop in Spokane Valley, where he was night
manager. After closing, he returned to the shop at around 1:20 a.m. to make sure he had
completed his responsibilities. A friend, Jason, who accompanied him took out a trash
bag and reported to Almberg that two men were loitering near the dumpster. Because of
previous confrontations with individuals in the dumpster area, Almberg retrieved a metal
baseball bat from his car and proceeded to the dumpster. He confronted the men, Justin
Lancaster and Chase McCoy, who were inside the dumpster's fenced enclosure talking
No. 33314-l-III
State v. Almberg
and smoking marijuana. Almberg pounded the bat on the ground and demanded they
leave. As they began to walk away, Almberg questioned them about an unrelated incident
at Almberg's apartment a year earlier. He demanded that McCoy turn over his backpack,
shoes and cell phone. Inside McCoy's backpack were his wallet, some clothing, food, and
marijuana pipes. Almberg smashed the cell phone glass with the bat. Jason stomped and
kicked McCoy. Lancaster and McCoy both fled the area. The jury convicted Almberg of
second degree robbery.
As part of the judgment and sentence, the court included a community custody
condition prohibiting Mr. Almberg from possessing or using marijuana. The court stated
during the sentencing hearing:
You're not to use any controlled substances, nonprescribed controlled
substances, during your term of community custody. That includes
marijuana. Marijuana is not illegal under state law, but it is still illegal
under the federal law so no possession or consumption of that while on
community custody.
Report of Proceedings (RP) at 158. With regard to community custody conditions,
paragraph 4.2(B) of the judgment and sentence provides in pertinent part:
While on community custody, the defendant shall: ... (4) not consume
controlled substances except pursuant to lawfully issued prescriptions; (5)
not unlawfully possess controlled substances while on community custody.
Clerk's Papers (CP) at 106. The judgment and sentence further states the condition that
Mr. Almberg shall engage in "[n]o use or possession of Marijuana and or products
containing Tetrahydrocannabionnol [sic] (THC)." CP at 107. He appeals that condition.
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No. 33314-1-111
State v. Almberg
ANALYSIS
Mr. Almberg contends the sentencing court exceeded its statutory authority in
imposing the community custody condition prohibiting his possession or use of marijuana
because the condition is not crime-related. We find no error.
The trial court lacks authority to impose a community custody condition unless
authorized by the legislature. State v. Warnock, 174 Wn. App. 608, 611, 299 P.3d 1173(20l3). We review de novo a trial court's statutory authority to impose a particular
community custody condition. State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201(2007).
RCW 9.94A.703 sets forth community custody conditions that a court must or
may impose. The statute provides in pertinent part:
When a court sentences a person to a term of community custody, the court shall
impose conditions of community custody as provided in this section.
(2) Waivable conditions. Unless waived by the court, as part of any term of
community custody, the court shall order the offender to:
(c) Refrain from possessing or consuming controlled substances except pursuant to
lawfully issued prescriptions.
(3) Discretionary conditions. As part of any term of community custody, the
court may order an offender to:
(f) Comply with crime-related prohibitions.
RCW 9.94A.703(2)(c), (3)(f).
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State v. Almberg
A "crime-related prohibition" is defined as "[a]n order of the court prohibiting
conduct that directly relates to the circumstances of the crime for which the offender has
been convicted." RCW 9.94A.030(1 0). No causal link need be established between the
condition imposed and the crime committed, so long as the condition relates to the
circumstances of the crime. State v. Williams, 157 Wn. App. 689, 691-92, 239 P.3d 600(20 10). A condition is not crime-related if there is no evidence linking the prohibited
conduct to the offense. State v. O'Cain, 144 Wn. App. 772, 775,184 P.3d 1262 (2008).
Courts review the imposition of crime-related prohibitions for abuse of discretion.
Williams, 157 Wn. App. at 691.
Mr. Almberg contends the marijuana prohibition is not crime-related, and the court
therefore abused its discretion in imposing it, because the charge and conviction is for
second degree robbery and there was no evidence that any drugs were involved in the
offense. The State counters that any reasonable person would believe that use or possession
of marijuana contributed in some fashion to the robbery offense because the trial court was
aware that Almberg allegedly sold marijuana to Lancaster in the past (even though this
information was excluded from trial), McCoy's backpack taken during the robbery
contained glass marijuana smoking pipes, the court was aware that Almberg had a previous
conviction for a misdemeanor marijuana offense, and Almberg had recently pleaded guilty
to an unrelated drug charge for which he was awaiting sentencing. Moreover, Almberg,
through counsel, expressly agreed to all of the community custody conditions imposed.
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No. 33314-1-III
State v. Almberg
The parties' contentions relating to whether the marijuana prohibition is crime-
related miss the mark, and we need not decide that question, because it was not the basis
the court used to impose the condition. Instead, the court relied on RCW 9.94A.703(2)(c)
as its basis because, despite the state's legalization of possession or use of small amounts
of marijuana, it is still a banned controlled substance under federal law.
Indeed, RCW 69.50.101(d) defines a "controlled substance" as "a drug, substance,
or immediate precursor included in Schedules I through V as set forth in federal or state
laws, or federal or commission rules." Marijuana is a Schedule I drug under the United
States Controlled Substances Act. 21 U.S.C. § 812. Therefore, marijuana as a community
custody condition can survive because it is a "controlled substance." Mr. Almberg's
additional argument that the U.S. Department of Justice may choose not to enforce federal
marijuana laws against most individual users in states where marijuana is now legal to use
is irrelevant to the inquiry. The document cited by Mr. Almberg-an August 29,2013
Memorandum for all United States Attorneys from Deputy Attorney General James M.
Cole on the subject of "Guidance Regarding Marijuana Enforcement"-specifically states,
at page 4, that the memorandum "does not alter in any way the Department's authority to
enforce federal law, including federal laws relating to marijuana, regardless of state law." I
I Available at: www.justice.govlis0/opa/resources/30520 13829132756857467.pdf
(last visited January 26, 2016) .
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No. 33314-1-111
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Finally, although RCW 9.94A.703(2)(c) excepts from the community custody
prohibition the use of a controlled substance pursuant to a prescription, the exception does
not control because one can never obtain a prescription for marijuana use. RCW
69.50.308. Even in the context of medical marijuana, the user obtains an "authorization,"
not a prescription, from a health care provider. RCW 69.51A.030(2)(a). The trial court
here correctly recognized that marijuana is a nonprescribed controlled substance.
The condition prohibiting Mr. Almberg from possessing or using marijuana was
authorized by statute. The court did not err in imposing it.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
j
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