FILED,

COURT, OF APPEALS OM I

STATE OF WASHINGTON

2018 JUL 30 Ati 9:25

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, )

) DIVISION ONE

v.

Respondent, )

)

)

No. 76469-1-1

) UNPUBLISHED OPINION

MUSTAFA MOHAMUD ARTEH, )

)

Appellant. ) FILED: July 30, 2018

)

DWYER, J. — Mustafa Mohamud Arteh was charged and convicted of two

counts of assault in the fourth degree with sexual motivation. On appeal, Arteh

contends that the trial court erred by entering a no-contact order without

specifying a duration for the order. We disagree.

Arteh also contends that, because the trial court did not actually suspend

any part of his sentence for count two, the court was without the authority to

enter a no-contact order as a condition of probation for that conviction. We

agree. Lastly, Arteh contends that the court was without the authority to enter a

no-contact order specifying the victim of count two as a condition of his probation

on count three. We disagree.

Accordingly, we affirm.
No. 76469-1-1/2

1

On April 23, 2016, Mustafa Mohamud Arteh separately approached two

women and groped them without their consent. The police were called and each

of the women identified Arteh as the man who groped her.

A jury convicted Arteh of two counts of assault in the fourth degree with

sexual motivation (counts two and three). The trial court sentenced Arteh to 364

days of incarceration on each count. The trial court ordered that the jail term for

count two was deemed satisfied by giving credit for time already served. The

trial court ordered Arteh to serve 120 days in a community program for count

three and suspended the remaining 244 days of that sentence. The trial court

imposed an unsupervised probation period of 24 months, "subject to the

conditions of this sentence." The conditions imposed by the trial court were that

Arteh not purchase, possess, or use any alcohol or controlled substance, that he

obtain a substance abuse evaluation and a mental health evaluation and follow

all recommendations, and that he have no contact with either of the two victims.

The sentencing document did not allocate the probationary conditions as

between the two counts. Arteh appeals.

II

Arteh first contends that the trial court erred by failing to set a duration for

the no-contact order. We disagree.

"Our trial courts have great discretion in imposing sentences within the

statutory limits for misdemeanors and gross misdemeanors." State v. Anderson,

151 Wn. App. 396, 402, 212 P.3d 591 (2009). A trial court abuses its discretion if

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No. 76469-1-1/3

its decision is manifestly unreasonable or exercised on untenable grounds or

reasons. State v. Riley, 121 Wn.2d 22, 37, 846 P.2d 1365 (1993).

Pursuant to RCW 9.95.210 and RCW 9.95.230, the superior court has the

authority to suspend the imposition or the execution of a misdemeanor sentence

and grant probation. City of Spokane v. Marquette, 146 Wn.2d 124, 129, 43 P.3d

502 (2002). The superior court may "direct that the suspension may continue

upon such conditions and for such time as it shall designate, not exceeding the

maximum term of sentence or two years, whichever is longer." RCW

9.95.210(1)(a).

Probation outside the [Sentencing Reform Act of 1981] 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." See State v. Farmer,39

Wn.2d 675, 679, 237 P.2d 734 (1951). In this older version of

probation, which remains applicable to misdemeanants, a court

may impose probationary conditions that bear a reasonable relation

to the defendant's duty to make restitution or that tend to prevent

the future commission of crimes. State v. Summers,60 Wn. 2d

702, 707, 375 P.2d 143 (1962).

State v. Williams,97 Wn. App. 257, 263, 983 P.2d 687 (1999).

Here, the trial court suspended part of Arteh's sentence and granted

probation for a period of 24 months. The trial court was authorized to grant

probation for a term of up to two years pursuant to RCW 9.95.210. Contrary to

Arteh's assertion on appeal, the no-contact order is not indefinite in duration.

The no-contact order is a condition of probation that will expire no later than at

the completion of the 24-month probationary period. See State v. Granath, No.

94892-5, slip op. at 11-12 (Wash. April 26, 2018),

http://www.courts.wa.gov/opinions/pdf/948925.pdf. The trial court did not err.

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No. 76469-1-1/4

III

A

Arteh next contends that the trial court lacked the authority to enter a nocontact order as a condition of probation concerning count two. We agree.1

As discussed herein, the trial court sentenced Arteh to 364 days

confinement on count two. Rather than suspending any part of that sentence,

the trial court ordered that the entire 364-day sentence was satisfied by crediting

him with time previously served. Although the trial court could have fined Arteh

up to $5,000 and suspended any or all of that fine,2the court imposed no fine

and, thus, suspended imposition of no part of a fine. Thus, the trial court did not,

in actuality, impose a suspended sentence on count two.

The superior court's authority to grant probation pursuant to a suspended

sentence is codified in RCW 9.95.210. That statute states:

[I]n granting probation, the superior court may suspend the

imposition or the execution of the sentence and may direct that the

suspension may continue upon such conditions and for such time

as it shall designate, not exceeding the maximum term of sentence

or two years, whichever is longer.

RCW 9.95.210(1)(a).

The imposition of probation is not authorized when there is no suspended

sentence. State v. Gailus, 136 Wn. App. 191, 201, 147 P.3d 1300 (2006),

1 The State did not brief or otherwise respond to Arteh's meritorious assertion that the

trial court lacked the authority to impose probationary conditions on a fully satisfied sentence.

Although not a concession, the State's silence speaks volumes.

2 Pursuant to RCW 9.92.020, "Every person convicted of a gross misdemeanor.. . shall

be punished by imprisonment in the county jail for a maximum term fixed by the court of up to

three hundred sixty-four days, or by a fine in an amount fixed by the court of not more than five

thousand dollars, or by both such imprisonment and fine."

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No. 76469-1-1/5

overruled on other grounds by State v. Sutherbv, 165 Wn.2d 870, 204 P.3d 916

(2009). Because no part of Arteh's sentence for count two was suspended, the

trial court lacked the authority to order conditions of probation concerning that

count.

B

But the court could order that Arteh have no contact with the victim of the

assault alleged in count two as a probationary condition of count three. When

imposing a suspended sentence for a gross misdemeanor, a superior court may

impose probationary conditions that are reasonably related to either reparation or

rehabilitation. State v. Eilts, 23 Wn. App. 39, 44, 596 P.2d 1050 (1979) (citing

Summers,60 Wn. 2d at 707-08), aff'd, 94 Wn.2d 489, 617 P.2d 993 (1980).

Rehabilitation of the offender is one goal of probation. State v. Barklind, 12 Wn.

App. 818, 823, 532 P.2d 633 (1975), aff'd, 87 Wn.2d 814, 557 P.2d 314 (1976).

"Probation is an act of judicial grace or lenience authorized by statute (RCW

9.95.210), and 'motivated by many judicial hopes, among which are that the

offender will mend his ways, make restitution and avoid not only repetition of his

offense but the appearance thereof." Barklind, 12 Wn. App. at 823 (quoting

State ex. rel. Woodhouse v. Dore,69 Wn.2d 64, 70, 416 P.2d 670 (1966)).

Requiring Arteh to avoid contact with both victims well-furthers the goals

of misdemeanor probation. It may be that, in this regard, misdemeanor

sentencing differs from felony sentencing. If so, that is the legislative will.

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No. 76469-1-1/6

Affirmed.

We concur:

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