Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                                                     FILED

                                                                 FEB 14, 2012

                                                          In the Office of the Clerk of Court
                                                        WA State Court of Appeals, Division III

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                           )       No. 29579-6-III
                                               )
                             Respondent,       )
                                               )
                      v.                       )       Division Three
                                               )
JACIHEL * CONTRERAS,                           )
                                               )
                             Appellant.        )       UNPUBLISHED OPINION

       Korsmo, A.C.J.  --  Jacihel Contreras challenges various conditions of his judgment 

and sentence.  We agree in part and remand for the trial court to correct the judgment and 

sentence.

       Mr. Contreras pleaded guilty to two counts of first degree assault and received a 

standard range sentence.  Among the conditions of that sentence were that Mr. Contreras 

not possess alcohol and that he participate in drug/alcohol treatment or counseling at the 

direction of his community corrections officer.  The court also imposed a community 

custody term of "up to life."

       Mr. Contreras appealed to this court.  He challenges the two noted sentence  

No. 29579-6-III
State v. Contreras

conditions and the term of community custody.  The prosecutor agrees that the term of 

community custody and the prohibition on alcohol consumption are improper.  We also 

agree.  We disagree with the argument that the treatment or counseling provision is 

improper.

       Community Custody Term.  The trial court imposed a community custody term of 

"up to life" which mirrors the statutory maximum sentence for first degree assault, a class 

A felony. RCW 9A.20.021(1)(a); 9A.36.011(2).  However, the parties correctly note that 

RCW 9.94A.701 sets a term of three years of community custody for serious violent 

offenses.  First degree assault is a serious violent offense.  RCW 9.94A.030(44)(a)(v).  

       A trial court cannot impose a sentence in excess of that authorized by the 

legislature.  In re McNutt v. Delmore, 47 Wn.2d 563, 565, 288 P.2d 848 (1955), cert. 

denied, 350 U.S. 1002 (1956), overruled in part on other grounds by State v. Samson, 82 

Wn.2d 663, 513 P.2d 60 (1973).  The trial court was required to impose the three year 

term.  We remand for the judgment and sentence to be corrected to reflect the proper 

term.

       Alcohol Possession.  Mr. Contreras, again supported by the prosecutor, also 

challenges the court's prohibition on alcohol possession, noting that RCW 

9.94A.703(3)(e) only prohibits an offender from consuming alcohol, not possessing

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No. 29579-6-III
State v. Contreras

alcohol.  Once again, we agree with the parties.  Although we appreciate that it would be 

easier to supervise offenders if mere possession of alcohol were prohibited, the legislature 

has not seen fit to extend the prohibition that far.  

       As with the term of community custody, this sentence condition exceeds the trial 

court's authority.  We remand for correction of the judgment and sentence.

       Delegation of Treatment Requirement. Last, Mr. Contreras argues that the 

judgment and sentence wrongly delegates to the Department of Corrections (DOC) the 

authority to impose alcohol/drug treatment or counseling at the discretion of the 

community corrections officer.  This condition is proper.

       Mr. Contreras argues that the trial court improperly delegated its authority to 

DOC, relying on language from State v. Williams, 97 Wn. App. 257, 983 P.2d 687 

(1999), review denied, 140 Wn.2d 1006 (2000).  There the court had rejected an 

argument that the judgment and sentence improperly delegated authority to DOC to set 

the terms of probation, noting that the trial court retained the right to ratify the conditions 

and that the defendant had the right to a hearing over any terms of probation.  Id. at 264-

265.  Because he has no similar right to ratification and review, Mr. Contreras argues that 

this condition runs afoul of the Williams reasoning.

       There is a statutory problem with his argument.  Subsequent to Williams, and prior 

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No. 29579-6-III
State v. Contreras

to the commission of these crimes, the legislature enacted RCW 9.94A.704, which 

expressly empowers DOC to impose conditions of supervision on offenders.  As relevant 

here, subsection (4) states:

       The department may require the offender to participate in rehabilitative 
       programs, or otherwise perform affirmative conduct, and to obey all laws.

       Consistent with this provision, the judgment and sentence compels Mr. Contreras 

to obey all laws and to take part in any treatment or counseling required by DOC.  The 

statute, in turn, empowers DOC to require rehabilitative efforts when necessary.  Thus,

the legislature has expressly authorized this sentence condition.

       The trial court did not err by requiring compliance with any DOC-imposed 

treatment programs.

       Affirmed in part, reversed in part, and remanded.

       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.

                                            _________________________________
                                                           Korsmo, A.C.J.
WE CONCUR:

______________________________
       Brown, J.

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No. 29579-6-III
State v. Contreras

______________________________
       Siddoway, J.

                                               5