Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,
                                                  )         No. 66629-1-I
                       Respondent,
                                                  )         DIVISION ONE
                v.
                                                  )         UNPUBLISHED OPINION
 ROSCO BROWN, JR.,
                                                  )
                       Appellant                            FILED: April 23, 2012
 .                                                )

                                                  )

                                                  )

                                                  )

                                                  )

                                                  )

       Appelwick, J.  --  The trial court conditioned Brown's community custody on his 

participation in substance abuse treatment without entering a              statutorily required 

finding that Brown had a substance abuse problem that contributed to his offense.  We 

remand for the trial court to enter the required finding, or strike the condition if the 

finding is not supported by the record.

                                            FACTS

       Officer Donald Johnson observed a hand to hand narcotics transaction between 

Rosco Brown and Cesar Hunter.  Another nearby officer, Officer Franklin Poblocki, 

approached Brown and Hunter.  He saw a crack pipe in Hunter's hand.  When Hunter 

and Brown tried to put their hands behind their backs to discard something, Officer 

Poblocki grabbed their arms and saw crack cocaine on Brown's hand.  He secured the 

No. 66629-1-I/2

piece of the crack cocaine and arrested Brown.  Brown then admitted he had more 

crack in his jacket pocket.  Indeed, Officer Poblocki searched his jacket and found more 

crack cocaine.  The state crime lab confirmed that the confiscated material contained 

cocaine.  The cocaine from Brown's pocket weighed .23 grams, and the cocaine from 

his hand weighed less than .1 grams.  After Brown waived his right to a jury trial, the 

court found him guilty of possession of cocaine.  

       At sentencing, Brown asked for an exceptional sentence due to the small 

amount of cocaine.  At that time, Brown had entered a rehabilitation program with 

Union Gospel Mission.  He requested that, rather than serve his sentence in prison, he 

be allowed to complete a 13 month program with Union Gospel.  Brown's attorney 

explained that Brown had been addicted to substances for most of his life, and that his 

risk of reoffending would be substantially decreased if he could serve his time at Union 

Gospel instead of in confinement.  Brown himself told the court he wanted to go back to 

treatment.  Further, Brown's presentence report stated that, "there is no dispute that 

[Brown's] criminal history is directly related to his drug addiction."  His attorney 

explained that Brown's felony history consists mostly of drug crimes or crimes related to 

supporting his addiction.  His attorney also argued that Brown would be very likely to 

reoffend if he was not placed in a long-term inpatient treatment program.  

       The trial court explained that, although it did not believe confinement was 

necessarily appropriate in this case, there was no legal basis to go outside the 

standard range.  It ordered Brown to 12 months and 1 day of confinement.  The trial 

court also ordered 12 months of community custody.  It required Brown to continue 

substance abuse treatment as a condition of community custody.  

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No. 66629-1-I/3

                                        DISCUSSION

       Brown argues that the trial court abused its discretion by conditioning community 

custody on Brown's participation in substance abuse treatment without entering an 

explicit finding that his drug use contributed to the offense.  We review a crime-related 

community custody condition for an abuse of discretion.  State v. Brooks, 142 Wn. App. 

842, 850, 176 P.3d 549 (2008).  A trial court abuses its discretion when its decision is 

based on untenable grounds, including those that are contrary to law.  Id.

       The trial court may require, as conditions of community custody, than an 

offender participate in crime-related treatment or services.  RCW 9.94A.703(3).  But, 

the court may only order rehabilitative treatment if it finds that a chemical dependency 

contributed to the offense:

       Where the court finds that the offender has a chemical dependency that 
       has contributed to his or her offense, the court may, as a condition of the 
       sentence and subject to available resources, order the offender to 
       participate in rehabilitative programs or otherwise to perform affirmative 
       conduct reasonably related to the circumstances of the crime for which 
       the offender has been convicted and reasonably necessary or beneficial 
       to the offender and the community in rehabilitating the offender.  

RCW 9.94A.607.

       The trial court here made no such finding.  But, the State contends that we 

should excuse the requirement for a finding pursuant to State v. Powell because, as in 

that case, the record amply supports such a finding.  139 Wn. App. 808, 820, 162 P.3d 
1180 (2007), reversed on other grounds by 166 Wn.2d 73, 206 P.3d 321 (2009).1                  It

argues that no finding is necessary, because the trial court implicitly acknowledged that 

       1  In Powell, the court evaluated the trial court's community custody condition 
after it reversed the appellant's conviction, in case the issue arose again on remand.  
139 Wn. App. at 818.

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No. 66629-1-I/4

Brown had a substance abuse problem, Brown's presentence report stated that his 

criminal history is related to his drug addiction, and Brown asked for treatment so he 

could straighten his life out.  We agree that the record in this case contains substantial 

evidence to support a finding that Brown has a substance abuse problem and that it 

was appropriate to condition community custody on substance abuse treatment.  But, 

the statute plainly requires an explicit finding of fact made by the trial court, not this 

court.  

       In  State v. Jones, the trial court erred by ordering mental treatment without 

making a finding that the defendant was mentally ill and that the illness contributed to 

the crime.  118 Wn. App. 199, 202, 209, 76 P.3d 258 (2003).  The court remanded with 

instructions for the trial court to "strike the condition pertaining to mental health 

treatment and counseling unless it determines that it can presently and lawfully comply 

with" the statute.  Id. at 212.  

       Rather than affirm, when we decide on appeal that the trial court could have 

made the necessary finding, we conclude that the better practice is to require the trial 

court either to enter the statutorily mandated finding or to strike the condition. 

Accordingly, we remand for entry of the necessary findings or for striking the condition.

WE CONCUR:

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