STATE v. SHERLOCK, 50744-3-I (Wash.App. 11-24-2003)

No. 50744-3-IThe Court of Appeals of Washington, Division One.
Filed: November 24, 2003 UNPUBLISHED OPINION

Appeal from Superior Court of King County Docket No: 01-1-10355-1 Judgment or order under review Date filed: 06/14/2002

Counsel for Appellant(s), Christopher Gibson, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.

Counsel for Respondent(s), Kelly Susanne Grace, King County Courthouse, 516 3rd Ave Rm 554, Seattle, WA 98104-2385.

GROSSE, J.

A sentencing court has the discretion to require a first time offender to undergo drug or alcohol evaluation and treatment in addition to any crime-related prohibitions. Additionally, community custody may be imposed for a period of up to one year unless treatment is ordered, in which case the period of community custody may include an extended period of treatment, not to exceed two years. We affirm.

FACTS
Tammi Sherlock pleaded guilty to one count of forgery. At sentencing the State requested that Sherlock be sentenced under the first-time offender waiver, serve 15 days in jail with credit for any time served, complete 120 hours of community service, have a drug and alcohol evaluation, abstain from alcohol and nonprescription drugs, submit to urinalysis, serve 24 months community custody, and pay costs and assessments. The State agreed it would not bring any additional charges and also requested that Sherlock refrain from contact with certain businesses and the individual whose forged check she negotiated.

At the hearing, Sherlock resisted the State’s recommendation seeking a sentence of 120 hours of community service, while specifically opposing the State’s recommendation of 24 months of community custody, and the prohibition of drugs and alcohol. Sherlock argued there was no nexus between the conditions requested by the State and the circumstances of the crime of forgery.

The court questioned Sherlock about possible past and current substance abuse problems as well as her living situation. Sherlock was candid and explained that she had been homeless since separating from her abusive husband. She admitted she was unemployed but stated she did seasonal work. Further, at the time of sentencing, she admitted that her parental rights to three children had been terminated within the last six months. She explained that her mother in California was adopting the children. Sherlock indicated that during the termination process she was depressed and drank too much. She also stated she had not used drugs for approximately 11 years, but conceded that the State argued otherwise during the termination proceedings. Sherlock was sentenced under the first-time offender waiver sentencing option and was ordered to serve 15 days with credit for time served. She was ordered to complete 120 hours of community service. To her credit, Sherlock had already completed approximately 200 hours of community service by the time of sentencing. The court further ordered that Sherlock:

abstain from alcohol and any nonprescription drugs; submit to urinalysis; obtain a drug and alcohol evaluation and follow all treatment recommendations; pay the victim penalty assessment; and, have no contact with the listed businesses or the individual whose check was forged. The court ordered 24 months of community custody. Sherlock objected to the treatment conditions and the length of community custody imposed by the sentencing court. She appeals from the judgment and sentence.

DISCUSSION
Initially, Sherlock claims the sentencing court abused its discretion and exceeded its authority by ordering a drug and alcohol evaluation without any showing of a nexus to the crime charged. We disagree.

A crime-related prohibition or condition is an order of a court that prohibits conduct that directly relates to the circumstances of the crime for which the offender has been convicted. But it shall not be construed to mean orders directing an offender to affirmatively participate in rehabilitative programs or to otherwise perform affirmative conduct.[1]
However, Sherlock was sentenced under the first-time offender waiver sentencing option. That option allows the sentencing court to impose conditions in addition to crime-related prohibitions. A plain reading of the first-time offender waiver statute, RCW 9.94A.650(2),[2] confirms that a sentencing court has broad discretion to impose conditions of supervision. Although the Sentencing Reform Act of 1981 generally renounces the rehabilitative idea of punishment in favor of a policy of uniformity and proportionality of punishment,[3] the first-time offender waiver statute provides for the imposition of conditions which address rehabilitation.

The first-time offender option gives the sentencing court significant discretion and the goal of rehabilitation is paramount.[4] Sherlock’s reliance on the case of State v. Julian[5] for the proposition that it is error to order abstention from alcohol when there is no support for a finding that it was crime related, is distinguishable. In Julian the offender was not sentenced under the first-time offender sentencing option and therefore the same analysis does not apply. In any event, in the instant case there was a sufficient nexus to the crime as ferreted out by the sentencing court at hearing.

The sentencing court closely questioned Sherlock regarding possible substance abuse problems. She was candid in her responses about her prior use of drugs and alcohol. Although a crime-related nexus is not required in a first-time offender waiver option case, even had there been such a requirement there is sufficient evidence of a nexus to support the trial court’s imposition of a drug/alcohol evaluation and subsequent treatment if it is determined to be necessary. The sentencing court did not abuse its discretion in ordering a drug/alcohol evaluation with potential for treatment.

Next, Sherlock challenges the sentencing court’s imposition of 24 months of community custody. Under the first-time offender waiver statute, the court has the discretion to order community custody for up to 12 months, or for an additional term during an extended treatment period not to exceed 24 months.[6] Here, before the evaluation or treatment determination was made, the court imposed a term of 24 months of community custody. As the parenthetical in the judgment and sentence form notes, a term of community custody is up to 12 months unless treatment is ordered in which case community custody may be ordered for not more than 24 months.[7]

We do note that the current King County judgment and sentence form used in this case is not sufficiently clear as to how it pertains to the circumstances of this case. The form should be revised. Although we find the community custody section of the current judgment and sentence form to be potentially confusing, the form can be read to order community custody for a period of 12 months plus any term of treatment ordered up to 24 months, in conformity with the statute. Therefore, the term of community custody at issue here is correctly imposed.[8] The decision of the sentencing court is affirmed.

KENNEDY and COX, JJ., concur.