State v. Ortega

506 P.3d 1287

STATE of Washington, Respondent,

v.Antonio Lorenzo ORTEGA, Appellant.

No. 54503-9-II

Court of Appeals of Washington, Division 2.

Filed March 29, 2022

PLLC Koch & Grannis, Attorney at Law, The Denny Building, 2200 Sixth Avenue, Suite 1250, Seattle, WA, 98122, Christopher Gibson, Nielsen, Koch & Grannis PLLC, 2200 6th Ave. Ste. 1250, Seattle, WA, 98121-1820, for Appellant.

Erica Eggertsen Ruyf, Pierce County Prosecuting Attorney, 930 Tacoma Ave. S. Rm. 946, Tacoma, WA, 98402-2171, for Respondent.

PUBLISHED OPINION

Glasgow, A.C.J.

¶ 1 Antonio Lorenzo Ortega challenges a condition of his community custody allowing a community corrections officer (CCO) to establish crime-related prohibitions. He asserts this condition is an impermissible delegation of sentencing authority, not crime related, and unconstitutionally vague. Ortega also challenges the imposition of discretionary legal financial obligations (LFOs) in his judgment and sentence as contrary to the sentencing court's stated intention to waive all nonmandatory LFOs.

¶ 2 The Department of Corrections has statutory authority to impose crime-related conditions. The sentencing court did not abuse its discretion when it recognized this authority already granted by statute, and the recognition was not unconstitutionally vague. Because the sentencing court stated its intent to waive all nonmandatory LFOs, we remand for the court to strike the supervision fees, community placement fees, and collection costs from Ortega's judgment and sentence, but we otherwise affirm.

FACTS

¶ 3 A jury found Ortega guilty of four counts of drive-by shooting. The sentencing court found that all four counts involved the same criminal conduct, and it imposed a sentence of 12 months and 1 day of confinement. It also sentenced Ortega to 18 months of community custody.

¶ 4 During the sentencing hearing, the court stated, "I'm going to waive the nonmandatory [LFOs]." Verbatim Report of Proceedings (VRP) (Mar. 24, 2020) at 25. The sentencing court imposed the crime victim assessment fee and DNA collection fee, which the State described as "not waivable," and agreed that this would amount to $600 of obligations. Id. It crossed out the $200 criminal filing fee listed on Ortega's judgment and sentence.

¶ 5 Within Ortega's judgment and sentence, boilerplate language regarding community custody required him to "pay supervision fees as determined by" the Department and to "abide by any additional conditions imposed by [the Department] under RCW 9.94A.704 and .706." Clerk's Papers (CP) at 108. Boilerplate language also required Ortega to "pay the costs of services to collect unpaid [LFOs] per contract or statute." CP at 106. Appendix F to the judgment and sentence also required that Ortega "pay community placement fees as determined by" the Department. CP at 113.

¶ 6 Where the judgment and sentence stated that Ortega must "comply with the following crime-related prohibitions," the sentencing court wrote, "Per CCO." CP at 108. Where appendix F repeated that Ortega must "comply with any crime-related prohibitions," the sentencing court again wrote, "Per CCO." CP at 113.

¶ 7 Ortega challenges the condition of community custody allowing a CCO to establish crime-related prohibitions, as well as the imposition of supervision fees, community placement fees, and collection costs.

ANALYSIS

I. CRIME-RELATED PROHIBITIONS: PER CCO

¶ 8 Ortega explains that by "failing to define the condition [to comply with crime-related prohibitions], the court grants the [CCO] unfettered authority to define the content of the restriction," and he argues this was "an impermissible delegation of authority." Br. of Appellant at 1. Ortega also argues the condition requiring him to comply with " ‘crime-related prohibitions: Per CCO’ " is unconstitutionally vague because it provides "no discernable standards and no protection against arbitrary enforcement." Id. at 4. We disagree that the sentencing court delegated authority, and we hold that this condition is not unconstitutionally vague.

A. RAP 2.5(a)

¶ 9 The State argues Ortega's challenge is not reviewable because he failed to object to this condition below. This court may refuse to review claims of error that were not first raised to the trial court. RAP 2.5(a). The rule contains an exception, however, for claims of "manifest error affecting a constitutional right." RAP 2.5(a)(3). Thus, Ortega may raise a constitutional vagueness challenge to a condition of community custody for the first time on appeal. See State v. Padilla , 190 Wash.2d 672, 677, 416 P.3d 712 (2018).

¶ 10 Whether Ortega may argue for the first time on appeal that the sentencing court impermissibly delegated its authority to impose crime-related prohibitions is a more complicated question. A defendant may argue for the first time on appeal that their sentence was "imposed without statutory authority." State v. Julian , 102 Wash. App. 296, 304, 9 P.3d 851 (2000) ; see also State v. Jones , 118 Wash. App. 199, 204, 76 P.3d 258 (2003) (permitting a defendant to challenge multiple conditions of community custody on appeal "even though he failed to object below"). However, Division One of this court has refused to consider an argument that "the sentencing court improperly delegated its duty to define crime-related prohibitions" for the first time on appeal because any improper delegation affected a statutory right, rather than a constitutional one. State v. Smith , 130 Wash. App. 721, 728, 123 P.3d 896 (2005). This court has also previously described the propriety of a trial court's delegation of sentencing authority as a "statutory question." State v. McWilliams , 177 Wash. App. 139, 153, 311 P.3d 584 (2013). The RAP 2.5(a)(3) exception is limited to constitutional questions.

¶ 11 Because the propriety of any delegation is a statutory question involving an exercise of the sentencing court's discretion, this court has discretion to decline to consider the argument for the first time on appeal under RAP 2.5(a)(3). See Smith , 130 Wash. App. at 728, 123 P.3d 896. But because Ortega's delegation argument, "crime-related" argument, and constitutional vagueness argument are interrelated, we exercise our discretion under RAP 2.5(a) and consider all of these claims together.

B. Crime-Related Conditions and Delegation of Sentencing Authority

¶ 12 Ortega argues the condition requiring him to comply with " ‘crime-related prohibitions: Per CCO’ " is too vague and ambiguous to be sufficiently crime related. Br. of Appellant at 9 (emphasis omitted) (quoting CP at 108). He contends imposing "crime-related prohibitions" is a matter of judicial discretion and the sentencing court improperly "abdicated its responsibility and delegated an entire category of conditions to the CCO." Id. at 10. Because it is "impossible to evaluate in advance whether the conditions the CCO ultimately chooses to enforce will be crime-related," he argues "the problem circles back to vagueness." Id. We disagree.

¶ 13 Under the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, "the court may order an offender to ... [c]omply with any crime-related prohibitions" in its discretion "[a]s part of any term of community custody." RCW 9.94A.703(3)(f) (emphasis added); see also RCW 9.94A.505(9) (granting the court authority to impose these conditions "[a]s a part of any sentence"). The SRA specifically defines a "crime-related prohibition" as "an order of a court prohibiting conduct that directly relates to the circumstances of the crime for which the offender has been convicted." RCW 9.94A.030(10) (emphasis added); see also In re Pers. Restraint of Golden , 172 Wash. App. 426, 432, 290 P.3d 168 (2012) (noting that the definition of " ‘crime-related prohibition’ " refers specifically to " ‘an order of a court ,’ " so it does not apply to the Department (quoting former RCW 9.94A.030(13) (2006))).

¶ 14 However, "community custody" is, by definition, a portion of the offender's sentence that is "served in the community subject to controls placed on the offender's movement and activities by the [D]epartment." RCW 9.94A.030(5). The sentencing court must require that the offender "comply with any conditions imposed by the [D]epartment under RCW 9.94A.704." RCW 9.94A.703(1)(b) (emphasis added). RCW 9.94A.704(2)(a) allows the Department to "establish and modify additional conditions of community custody based upon the risk to community safety." Additional conditions imposed by the Department will be upheld "unless the reviewing officer finds that [the condition] is not reasonably related to the crime of conviction , the offender's risk of reoffending, or the safety of the community." RCW 9.94A.704(7)(b) (emphasis added). Because the Department is not limited to imposing crime-related conditions, its authority to impose conditions of community custody is actually broader than the sentencing court's authority. Golden , 172 Wash. App. at 433, 290 P.3d 168.

¶ 15 Here, the State argues that "[a]lthough RCW 9.94A.704, unlike RCW 9.94A.703, does not specifically provide for [the Department]'s imposition of ‘crime-related prohibitions,’ the statute read as a whole clearly conveys that [the Department] is authorized to impose conditions related to the offender's crime." Br. of Resp't at 6. According to the State, the challenged community custody condition "merely communicates [the Department]'s legislatively-provided authority to set crime-related conditions." Id. at 7. The State's position is consistent with prior opinions of this court. For example, we have previously upheld a requirement to comply with "crime-related prohibitions ‘per [Department]/CCO’ " because the Department has statutory authority under RCW 9.94A.704 to determine "the specifics" of community custody. McWilliams , 177 Wash. App. at 146, 154, 311 P.3d 584. We hold the sentencing court's recognition of the Department's authority to impose crime-related conditions is consistent with the Department's...