Opinion
No. 25804-1-III.
January 29, 2008.
Appeal from a judgment of the Superior Court for Kittitas County, No. 06-1-00107-8, Scott R. Sparks, J., entered December 15, 2006.
Affirmed by unpublished opinion per Schultheis, J., concurred in by Sweeney, C.J., and Kulik, J.
The sole issue on appeal is whether the trial court erred in imposing probation terms on Randy Alan Gantt's suspended misdemeanor sentence for fourth degree assault. We hold that the probation terms were not improper and affirm.
On April 26, 2006, Mr. Gantt entered the Palace Café after drinking seven glasses of wine on an empty stomach. Because his past behavior made him unwelcome, he was asked to leave. He complied, only to return sometime later. The police were called when he refused to leave. When an officer arrived, Mr. Gantt was given another opportunity to leave peacefully, but Mr. Gantt became argumentative and jabbed his finger into the bartender's chest. When cautioned that he could be charged with assault, Mr. Gantt forcefully shoved the officer's shoulder. Mr. Gantt was arrested and ultimately charged with third degree assault of the officer and fourth degree assault of the bartender.
At trial, Mr. Gantt testified that he had blacked out and could not recall going to the Palace Café or speaking with the officer or bartender. The last events he could recall before waking up in a holding cell were first getting "rowdy and goofy" at a friend's apartment and leaving because somebody had called police and then going to a downtown bar where his friend bought him a glass of wine. Report of Proceedings (RP) (Dec. 12, 2006) at 44. He was convicted as charged.
Mr. Gantt was sentenced to two months on the third degree assault of the officer. A sentence of 365 days was imposed on the fourth degree assault of the bartender with 355 days suspended on the condition of completing 1 year misdemeanor probation. During the 12-month term, he was ordered to (1) refrain from associating with persons on active supervision without permission from his supervising community custody officer, (2) not change his residence without prior permission from his supervising community custody officer, and (3) obtain a substance abuse evaluation and complete any recommended treatment resulting from the evaluation.
RCW 9.92.060(1) grants the trial court discretion in suspending sentences conditionally "upon such terms as the superior court may determine." Courts have interpreted this statute as authorizing the imposition of conditions that (1) bear a relationship to the duty to make reparations to the victim or (2) would tend to prevent the future commission of crimes. State v. Summers, 60 Wn.2d 702, 707, 375 P.2d 143 (1962). A trial court abuses its discretion if it imposes a condition that "`has no bearing on either of these two matters, but relates only to a future moral and not legal obligation.'" Id. at 707-08 (quoting Redewill v. Superior Court of Maricopa County, 43 Ariz. 68, 81, 29 P.2d 475 (1934)).
Mr. Gantt contends that the trial court did not have authority to condition its suspension of part of his sentence for fourth degree assault on requirements that he undergo a substance abuse evaluation, refrain from associating with others on probation without first obtaining permission, and obtain permission prior to changing his place of residence.
First, as to the substance abuse evaluation condition, Mr. Gantt argues that there was no evidence of drug use or abuse. He relies on State v. Williams, 97 Wn. App. 257, 983 P.2d 687 (1999). In Williams, an 18-year-old defendant pleaded guilty in district court to five misdemeanor counts: vehicle prowling, possession of stolen property, fourth degree assault, malicious mischief, and brandishing a weapon. His probation was conditioned on requirements to abstain from alcohol and drugs and to get alcohol treatment. He immediately and repeatedly violated those conditions. Williams, 97 Wn. App. at 261.
On appeal, the court noted that the applicable statute authorized the district court to "`suspend the execution of all or any part of its sentence upon stated terms.'" Id. at 262 (quoting former RCW 3.66.068 (1999)). The Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, provides that conditions of community supervision must relate directly to the crime for which the felony offender was convicted. RCW 9.94A.030(7). But the SRA does not apply to misdemeanant probation matters. Williams, 97 Wn. App. at 262-63. Instead, misdemeanant probation "is not a matter of right but a matter of grace, privilege, or clemency `granted to the deserving, and withheld from the undeserving, as sound official discretion may dictate.'" Id. at 263 (quoting State v. Farmer, 39 Wn.2d 675, 679, 237 P.2d 734 (1951)). The conditions of misdemeanant probation, therefore, need not directly relate to the crime as required in felony matters. The Williams court held that the phrase "upon stated terms" was broad enough to encompass alcohol and drug conditions. Id. at 262.
The superior court's authority in RCW 9.92.060(1) to suspend a sentence "upon such terms as the . . . court may determine" is as broad as the authority in RCW 3.66.068 to suspend a sentence "upon stated terms." The court therefore has authority under RCW 9.92.060(1) to require a substance abuse evaluation and possible treatment even if this condition bears no direct relation to the offense.
Mr. Gantt points out that he is of legal drinking age. But because possessing or using illegal drugs is criminal activity, it is reasonable to impose a condition that tends to prevent Mr. Gantt's future involvement with drugs. As the court in Williams held, addressing the potential use of drugs is "merely an extension of the more general probationary requirement to conduct himself in a lawful manner." Williams, 97 Wn. App. at 263.
Mr. Gantt also contends that the requirement bears no relationship to his duty to make reparations to a victim and would not tend to prevent the commission of future crimes. The record shows otherwise. Mr. Gantt testified that he blacked out and had no memory of the assaults. He was unwelcome at the Palace Café owing to his conduct while drinking alcohol. He admitted that he had been drinking heavily around the time of the incident and that he had been in trouble three years prior due to a bar fight. He also suggested that his drink was spiked with drugs, which caused him to black out. Although he did not admit to being a voluntary drug user, Mr. Gantt himself implied that drugs may have been responsible for his conduct.
The trial court here observed "the bottom line is you're going to get the treatment you need so this doesn't happen again." RP (Dec. 15, 2006) at 10. The trial judge obviously believed that the condition would tend to prevent the commission of future crimes. Under the facts presented, the court did not abuse its discretion in ordering a condition to address the potential abuse of any substance as a means to prevent future crimes.
Next, Mr. Gantt objects to the conditions requiring him to obtain permission before associating with others on probation or before changing addresses. Again, Mr. Gantt argues that the conditions are not directly related to the crime. But, as discussed above, RCW 9.92.060(1) does not require such a connection. Further, the requirement would assist the probation supervisor in selecting a facility for the substance abuse evaluation and treatment, and discourage a probation violation for noncompliance for the lack of such a facility available where he plans to live.
Mr. Gantt notes that a defendant's freedom of association may be restricted only to the extent necessary to accomplish the essential needs of the state and public order. State v. Riles, 135 Wn.2d 326, 347, 957 P.2d 655 (1998) (quoting State v. Riley, 121 Wn.2d 22, 37-38, 846 P.2d 1365 (1993)). Here, the restriction on Mr. Gantt's associational rights was limited to others on probation and then only when he does not obtain approval. This restriction does not prohibit "a real and substantial amount of protected conduct in contrast to the statute's legitimate sweep." Riles, 135 Wn.2d at 346-47. The prohibition tends to prevent future crimes because it discourages contact with persons with whom Mr. Gantt might become "rowdy and goofy" — which immediately preceded his blackout and led to the police being called
for a noise complaint at the residence he visited before going to the Palace Caf é.
Affirmed.
A majority of the panel has determined that 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. Sweeney, C.J., Kulik, J., concur.