Opinion
No. 36356-9-II.
August 5, 2008.
Appeal from a judgment of the Superior Court for Clark County, No. 06-1-00425-6, John P. Wulle, J., entered May 22, 2007.
Reversed and remanded by unpublished opinion per Bridgewater, J., concurred in by Houghton and Quinn-Brintnall, JJ.
A jury convicted Tyson John Christofferson of one count of possession of a controlled substance, namely methamphetamine, and one count of bail jumping. Christofferson does not appeal either of his underlying convictions, but argues that the trial court erred in imposing a sentence enhancement under RCW 9.94A.533(5) for possessing methamphetamine while in a county jail. Because officers discovered the methamphetamine only after Christofferson had been arrested for a different crime, transported to the county jail, and searched in the county jail, we hold that Christofferson committed no actus reus, i.e., the voluntary act of possessing methamphetamine in a sentence enhancement zone. Therefore, we vacate the sentence enhancement and remand for resentencing. We decline to address Christofferson's remaining allegation that a condition of his community custody is void for vagueness as that issue is not ripe for review.
This statute has been amended several times since its 2002 enactment. See Laws of 2002, ch. 290, § 11. The provision at issue here, RCW 9.94A.533(5)(c), was amended in 2003, but has remained unchanged since that time. See Laws of 2003, ch. 53, § 58.
Facts
On February 24, 2006, officers of the Clark County Drug Task Force, and the Department of Corrections served a search warrant at a Vancouver apartment leased to Josie Brown. They found Christofferson in the master bedroom and arrested him for a probation violation. During a pat down search, officers found a small knife in Christofferson's pants pocket. Inside the bedroom, they also found scales, packaging materials, and a baggie containing methamphetamine. Officers also found a buy-and-owe sheet on a coffee table in the apartment showing amounts of money owed by different people for various amounts of drugs. After questioning Christofferson at the apartment, an officer took him to the Clark County Jail for booking on both a probation violation, and for possession of methamphetamine with intent to deliver regarding the methamphetamine found in the bedroom. During a routine booking search, a jail officer found a baggie with a small amount of methamphetamine in Christofferson's front pocket.
The State ultimately charged Christofferson with one count of possession of methamphetamine with intent to deliver for the drugs found in the bedroom. The second amended information also alleged that when the defendant committed this offense (count 1), he was armed with a deadly weapon, he was within 1,000 feet of a school bus stop, and he had recently been released from incarceration. The State also charged Christofferson with possession of methamphetamine for the drugs found in his pocket when he was booked. The information alleged that he committed this offense (count 2) while in a county jail, shortly after being released from incarceration, and while serving a term of community placement. He was also charged with bail jumping (count 3) while serving a term of community placement. After hearing evidence, the jury acquitted Christofferson of the first count, and found him guilty of the other two counts. On special verdict forms, the jury found that Christofferson had committed count 2 "while in a county jail," and shortly after he had been released from incarceration. CP at 60.
Later, over objection by the defense, the court sentenced Christofferson within the standard sentence range, which included a 12-month enhancement for having committed count 2 "while in a county jail." CP at 102. The judgment and sentence also included a community custody condition which stated, "Defendant shall not possess or use any paraphernalia that can be used for the ingestion or processing of controlled substances or that can be used to facilitate the sale or transfer of controlled substances including scales, pagers, police scanners, and hand held electronic scheduling and data storage devices." CP at 108. After sentencing, Christofferson filed a timely notice of appeal.
Discussion Sentence Enhancement
Christofferson argues that the 12-month sentence enhancement imposed under RCW 9.94A.533(5)(c), a zone enhancement, was improper because he did not voluntarily introduce the methamphetamine into the county jail. We agree.
RCW 9.94A.533(5)(c) provides that 12 months "shall be added to the standard sentence range if the offender . . . committed the offense while in a county jail or state correctional facility and the offender is being sentenced for [possession of a controlled substance as prohibited in RCW 69.50.4013]."
We recently decided this issue in State v. Eaton, 143 Wn. App. 155, 177 P.3d 157 (2008). As Eaton explained, as a general rule every crime must contain two elements: (1) an actus reus and (2) a mens rea. See Eaton, 143 Wn. App. at 160 (citing State v. Utter, 4 Wn. App. 137, 139, 479 P.2d 946 (1971)). The actus reus is the wrongful deed that comprises the physical components of a crime. The mens rea is the state of mind that the prosecution must prove that a defendant had when committing a crime. See Eaton, 143 Wn. App. at 160 (quotations and citations omitted).
Some crimes, though, including the crime of possession of a controlled substance, have no mens rea requirement. See RCW 69.50.4013(1). Thus, the State simply has the burden of proving the nature of the controlled substance and the fact of possession. See Eaton, 143 Wn. App. at 160. Similarly, the sentence enhancement under RCW 9.94A.533(5) has no mens rea requirement. See RCW 9.94A.533(5). This sentence enhancement is not a separate sentence or a separate substantive crime. Rather, it presupposes that the defendant's behavior already constitutes a crime, such as possession of a controlled substance. Eaton, 143 Wn. App. at 160. But even strict liability punishments, i.e., those crimes and sentence enhancements having no mens rea requirement, require something of an element of volition. "'There is a certain minimal mental element required in order to establish the actus reus itself. This is the element of volition.'" Eaton, 143 Wn. App. at 160 (emphasis added) (quoting Utter, 4 Wn. App. at 139).
Like the defendant in Eaton, Christofferson correctly argues that his possession of methamphetamine in the county jail was not the result of a voluntary act. Once he was arrested, Christofferson no longer had control over his location or over any of his possessions. That control rested with the arresting officer and the corrections officers at the jail. In other words, Christofferson did not bring the methamphetamine into the county jail, a police officer brought Christofferson and the methamphetamine into the county jail. Consistent with Eaton we hold that because Christofferson did not voluntarily bring the controlled substance into the jail, he did not violate RCW 9.94A.533(5)(c). We vacate the 12-month sentence enhancement under RCW 9.94A.533(5)(c) and remand for resentencing.
Community Custody Condition
Christofferson next challenges the above-quoted community custody condition that prohibits the use of paraphernalia. The same condition was challenged in State v. Motter, 139 Wn. App. 797, 162 P.3d 1190 (2007). Like the defendant in Motter, Christofferson argues that the condition is void for vagueness because it prohibits the use of innocuous items. While Motter recognized that a community custody condition "may be void for vagueness if it fails to define specifically the activity that it prohibits," the Motter court declined to address defendant's challenge to the condition because it was not ripe for review. Motter, 139 Wn. App. at 804. "[T]he question of a law's constitutionality is not ripe for review unless the challenger was harmed by the law's alleged error." Motter, 139 Wn. App. at 804 (citing State v. Langland, 42 Wn. App. 287, 292-93, 711 P.2d 1039 (1985)).
Christofferson acknowledges Motter, but contends that if this court does not address his vagueness claim at the present time he will be denied due process. That is so, he contends, because any future violation of the community custody condition will result in a hearing and imposition of sanctions by a Department of Corrections hearing officer rather than a court. See WAC 137-104-050 . Christofferson argues that because the hearing officer's inquiry is limited to whether a violation of the imposed condition occurred, the present appeal is his only opportunity for a court to rule on his vagueness challenge.
But Christofferson is not foreclosed from judicial review at the appropriate time. The department's violation hearing is an "offender disciplinary proceeding." WAC 137-104-050(2). Accordingly, any decision reached in that proceeding resulting in Christofferson's restraint may be challenged in a personal restraint petition. See RAP 16.4. See also In re Pers. Restraint of Plunkett, 57 Wn. App. 230, 788 P.2d 1090 (1990). Likewise, if restraint is imposed on Christofferson for violating the community custody condition, his vagueness challenge will be ripe for review in a personal restraint petition. Where petitioner has not had a prior opportunity for judicial review, an appellate court will consider his personal restraint petition if he shows that he is restrained under RAP 16.4(b), and that the restraint is unlawful under RAP 16.4(c). See In re Pers. Restraint of Isadore, 151 Wn.2d 294, 298-99, 88 P.3d 390 (2004). Under the circumstances, this "more lenient standard" would apply here. See In re Pers. Restraint of Dalluge, 162 Wn.2d 814, 817, 177 P.3d 675 (2008).
In accord with Motter, we decline to address Christofferson's vagueness challenge because it is not ripe for review. Because we have not decided the merits of his challenge, Christofferson's premature raising of that issue in his appeal does not foreclose judicial consideration of the matter in a proper personal restraint petition if he is restrained for violating the community custody condition. Cf. In re Pers. Restraint of Taylor, 105 Wn.2d 683, 687-88, 717 P.2d 755 (1986) (personal restraint petition may not renew a ground for relief that was raised and rejected on the merits in a direct appeal).
We vacate the 12-month sentence enhancement under RCW 9.94A.533(5)(c) and remand for resentencing.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, C.J. and QUINN-BRINTNALL, J., concur.