IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

PEGGY COLLEEN KNOTT,

Appellant.

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No. 35546-2-III

(cons. with No. 35971-9-III)

UNPUBLISHED OPINION

FEARING, J. — The trial court convicted appellant Peggy Knott with two counts of 

possession with intent to deliver a controlled substance and three counts of delivery of a 

controlled substance. On appeal, Knott challenges her sentence. She contends her trial 

counsel ineffectively represented her at sentencing because counsel failed to ask for a 

downward exceptional sentence based on the multiple offense policy. She also contends 

a community custody condition is unconstitutional and the trial court erroneously 

imposed a legal financial obligation to pay costs of her incarceration. We affirm the 

length of Knott’s sentence, but remand to modify the community custody condition and 

to strike the legal financial obligation. 

FILED

MARCH 28, 2019

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 35546-2-III (consol. w/35971-9-III)

State v. Knott 

2

FACTS

Peggy Knott sold methamphetamine to a single police informant on three 

occasions between December 21, 2016, and January 2, 2017. Each sale occurred within a 

school zone. Law enforcement later executed a search warrant at Knott’s home and 

discovered methamphetamine, morphine, and Oxycodone. 

PROCEDURE

The State of Washington charged Peggy Knott with one count of possession with 

intent to deliver a controlled substance, methamphetamine, one count of possession with 

intent to deliver a controlled substance, morphine, and one count of possession with 

intent to deliver a controlled substance, Oxycodone, all three counts based on the 

controlled substances found inside Knott’s home. The State also charged Knott with 

three counts of delivery of a controlled substance, methamphetamine, based on the sales 

to the informant. 

After a bench trial, the trial court convicted Knott on all counts but possession 

with intent to deliver morphine. The court instead found Knott guilty of the lesser charge 

of possession of a controlled substance, morphine. The court also found that school zone 

enhancements applied to all counts except for possession of morphine. The trial court 

sentenced Peggy Knott to the statutory maximum of ten years, while imposing five 

school zone enhancements consecutively to one another. 

Peggy Knott filed a notice of appeal. Thereafter, the State and defense counsel 
No. 35546-2-III (consol. w/35971-9-III)

State v. Knott 

3

received an e-mail from the Department of Corrections (DOC) asking for clarification or 

correction of Knott’s sentence because DOC believed the school zone enhancements 

could not run consecutive to each other. 

The trial court resentenced Peggy Knott. During resentencing, the State asked the 

sentencing court to sentence Knott above the standard range because of aggravating 

factors, including Knott’s child residing at the home where law enforcement found 

controlled substances. Knott’s attorney asked the court to grant a parenting sentencing 

alternative or drug offender sentence alternative or impose a sentence in the low end of 

the standard range. He never sought a downward exceptional sentence. 

At resentencing, the trial court imposed a mid-range sentence of 48 months with 

concurrent sentence enhancements of 24 months for a total of 72 months’ confinement. 

When sentencing Knott, the court commented:

Starting with that last part first, I do not believe that either the 

parenting sentencing alternative or the drug offender sentencing alternative 

are appropriate sentencing at this point in time. Ms. Knott,—obviously you 

thought those were appropriate ways of resolving these matters I think this 

matter would have been handled or dealt with in somewhat of a different 

way. I think they’re being looked at now as a way to go ahead and try to 

minimize your potential overall exposure in these cases.

. . . . 

With regards to Counts 1, 3, 4, 5 and 6, the court is going to go 

ahead and impose a sentence of 48 months on those plus the 24-month 

enhancement—so—be a total of 72 months on Counts 1, 3, 4, 5 and 6. 

Count 2 the court is going to go ahead and impose the 12 plus one day on 

those. 

The factor—reason that I’m imposing the 48 months is—Ms. Knott, 

you have a substantial history that has racked up in just a short period of 
No. 35546-2-III (consol. w/35971-9-III)

State v. Knott 

4

time. There are multiple different deliveries over a period of time in this 

case. You’ve obviously gone out and violated the conditions of release 

afterwards by using a controlled substance in this case.—[O]bviously going 

to continue this enterprise, this drug dealing enterprise, even beyond those 

times when you—did the deliveries, evidenced by the multiple drugs that 

were found in your homes and the operation that you were operating in 

your home. So—gives the court great concerns that you were going to 

continue this enterprise well beyond what was done for a short period of 

time. 

But the court also recognizes that you have no prior criminal history 

coming into this, and I don’t find that you were doing this to become a 

wealthy drug lord in this matter,—these were small deliveries done I think 

to essentially to substantiate or—support your own habit that you have and 

the drug addiction habit that you have. So I do find that—sentence of 48 

months on Counts 1, 3, 4, 5 and 6 are appropriate plus the 24-month 

enhancement (inaudible) 1, 3, 4, 5 and 6 and that the 12-plus—12-plus-oneday to be run concurrently as well.

Report of Proceedings (Oct. 19, 2017) at 39-44. 

During the resentencing hearing, the trial court did not inquire into Peggy Knott’s 

ability to pay legal financial obligations. The sentencing court entered a finding that 

Knott had the present means to contribute to the cost of her incarceration. The court 

checked the box requiring Knott to contribute to the costs of her incarceration, but 

ordered no rate of payment per day. The resentencing court also imposed a condition of 

Knott’s community custody requiring that she “not associate nor have contact with 

persons with felony convictions, except as approved by the Department [of Corrections].” 

Clerk’s Papers (CP) at 153. Peggy Knott also appealed her resentencing. 

LAW AND ANALYSIS

On appeal, Peggy Knott assigns three errors to her resentencing. First, her defense 
No. 35546-2-III (consol. w/35971-9-III)

State v. Knott 

5

counsel performed ineffectively by failing to raise the multiple offense policy and 

omitting a request for an exceptional sentence downward. Second, the community 

custody ban of contact with persons with felony convictions is unconstitutional. Third, 

the resentencing court erred when imposing on her the cost of incarceration without 

inquiring into her ability to pay. 

Multiple Offense Doctrine

Peggy Knott contends that her defense counsel should have asked the court to 

impose an exceptional sentence below the standard range or, at least, have argued the 

“multiple offense policy” as a basis for a sentence at the lower end. Because counsel did 

neither, Knott argues she received ineffective assistance at her resentencing hearing. The 

State argues that Knott fails to establish either prong of ineffective assistance of counsel. 

We agree that Knott fails to show prejudice and do not address whether Knott establishes 

deficient representation. 

A claim of ineffective assistance of counsel is an issue of constitutional magnitude 

that can be raised for the first time on appeal. State v. Kyllo, 166 Wn.2d 856, 862, 215 

P.3d 177 (2009); RAP 2.5(a). To establish ineffective assistance of counsel, a defendant 

must satisfy a two-prong test: (1) that his or her counsel’s assistance was objectively 

unreasonable, and (2) that, as a result of counsel’s deficient assistance, he or she suffered 

prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 

674 (1984). The defendant must establish both prongs of an ineffective assistance of 
No. 35546-2-III (consol. w/35971-9-III)

State v. Knott 

6

counsel claim. Strickland v. Washington, 466 U.S. at 687. 

In Washington, a sentencing court may impose a prison term below the standard 

range if the court finds that mitigating circumstances are established by a preponderance 

of the evidence. RCW 9.94A.535(1). The statute allows an exceptional sentence 

downward when “[t]he operation of the multiple offense policy of RCW 9.94A.589 

results in a presumptive sentence that is clearly excessive in light of the purpose of this 

chapter, as expressed in RCW 9.94A.010.” RCW 9.94A.535(1)(g). This mitigating 

factor applies when multiple delivery convictions result from a series of police initiated 

controlled buys. State v. Sanchez, 69 Wn. App. 255, 848 P.2d 208 (1993); State v. 

Hortman, 76 Wn. App. 454, 886 P.2d 234 (1994). Otherwise, law enforcement could 

continue to purchase controlled substances from the accused in a string of controlled buys 

in order to significantly increase the accused’s sentence. In Hortman, the Court of 

Appeals noted:

The court’s role in these situations is to focus on the difference, if 

any, between the effects of the first controlled buy and the cumulative 

effects of subsequent controlled buys. Where that difference is nonexistent, 

trivial or trifling, there is a basis in law for an exceptional sentence 

downward.

State v. Hortman, 76 Wn. App. at 461. Peggy Knott argues that her second and third 

deliveries to the confidential informant added little or nothing to her culpability. 

Peggy Knott, relying principally on State v. McGill, 112 Wn. App. 95, 47 P.3d 173 

(2002), argues that defense counsel’s failure to seek an exceptional sentence under the 
No. 35546-2-III (consol. w/35971-9-III)

State v. Knott 

7

multiple offense policy deprived her of the effective assistance of counsel. In McGill, the 

State convicted Keith McGill of three counts of delivery of cocaine. The Kent Police 

Department used a confidential informant to purchase the cocaine from McGill. McGill 

appealed his standard range sentence by arguing ineffective assistance because his 

attorney did not argue for an exceptional sentence below the standard range and failed to 

cite Sanchez or Hortman to the sentencing court. When sentencing McGill, the trial court 

remarked: 

I’m sure you are aware that the legislature has decided that judges 

should not have discretion beyond a certain sentencing range on these 

matters. And sometimes some of these drug cases, it seems like, when you 

compare them to some of the really violent and dangerous offenses, it 

doesn’t seem to be justified. But it’s not my call to determine the standard 

range. The legislature has done that for me.

So I have no option but to sentence you within the range on these of 

87 months to 116 months. But I do get to decide where in that range the 

sentence is appropriate.

State v. McGill, 112 Wn. App. at 98-99. The Court of Appeals held that McGill was 

denied effective assistance of counsel at sentencing when defense counsel failed to cite 

the relevant case law. The court noted that a trial court cannot exercise its discretion if 

counsel fails to inform the court of the discretion it has to exercise. The court vacated 

McGill’s sentence and remanded for a new sentencing hearing. 

The State convicted Peggy Knott similarly of three counts of delivery of a 

controlled substance after selling to the same confidential informant. Knott sold the same 
No. 35546-2-III (consol. w/35971-9-III)

State v. Knott 

8

substance on each occasion within twelve days. Knott argues that, under these 

circumstances, her defense counsel should have cited the relevant precedent and informed 

the sentencing court that it could impose an exceptional sentence downward. According 

to Knott, counsel should have argued that a standard range sentence resulted in an 

excessive sentence because law enforcement should have arrested her after the first sale 

rather than attempting to increase her sentence by additional purchases. 

The State contends that Peggy Knott’s sentencing court, unlike the sentencing 

court in McGill, knew of its discretion to impose an exceptional sentence downward. The 

State astutely emphasizes that Knott’s trial court rejected the State’s request for an 

exceptional sentence upward based on aggravating factors and rejected Knott’s request 

for a reduced sentence through the drug offender sentencing alternative and the parenting 

sentencing alternative. Nevertheless, we deem the State’s argument, although accurate to 

the facts, irrelevant as to whether trial defense counsel should have requested a 

downward exceptional sentence based on the multiple offense policy. The State’s 

argument bears on prejudice. 

We conclude that Peggy Knott fails to show probable prejudice. Unlike the 

sentencing court in McGill, Knott’s court never lamented the lack of discretion or 

complained about the length of drug sentences. As noted by the State, Knott’s sentencing 

court weighed evidence when assessing whether to grant an exceptional sentence on other 

grounds. The court noted that the charges occurred during a short window of time, but 
No. 35546-2-III (consol. w/35971-9-III)

State v. Knott 

9

also observed that Knott likely would have continued her enterprise if not stopped by law 

enforcement. Because of the stash of drugs found in her home, she likely engaged in 

other sales not discovered. She violated conditions of her release from confinement. 

Prejudice is established when there is a reasonable probability that, but for 

counsel’s errors, the result of the trial would have been different. In re Personal

Restraint of Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001). Knott carries the burden of 

establishing prejudice. Strickland v. Washington, 466 U.S. at 687 (1984). Knott does not 

satisfy this burden because she does not show the sentencing court would have likely 

lowered her sentence based on the multiple offense policy. 

Community Custody Condition

The sentencing court ordered Peggy Knott, as part of her twelve months of 

community custody, “not to associate nor have contact with persons with felony 

convictions, except as approved by the Department.” CP at 152. Knott asserts that the 

condition is unduly and unconstitutionally vague because it fails to provide her with 

sufficient notice of what constitutes “associating” or “having contact” with one with a 

felony conviction. Knott soundly observes that she could be penalized for an interaction 

with a felon without her knowing the person to possess a felony conviction. Knott does 

not complain about the language concerning approval by the Department of Corrections. 

Knott impliedly asks this court to strike the entire community custody condition rather 

than narrow its terms. She does not ask that the condition be limited to felons with 
No. 35546-2-III (consol. w/35971-9-III)

State v. Knott 

10

controlled substance convictions. The State argues the provision is both a reasonable 

exercise of discretion and sufficient to place a reasonable person on notice of prohibited 

conduct. 

We agree with Peggy Knott that the community custody condition suffers from 

vagueness, but refuse to strike the condition in its entirety. Instead we remand for the 

trial court to reform the community custody condition to read: “not to associate nor have 

contact with any person whom defendant knows to have a felony conviction, except as 

approved by the Department.” 

The guaranty of due process, contained in the Fourteenth Amendment to the 

United States Constitution and article I, section 3 of the Washington Constitution, 

precludes vague laws. State v. Irwin, 191 Wn. App. 644, 652, 364 P.3d 830 (2015). The 

due process vagueness doctrine requires that citizens have fair warning of proscribed 

conduct. City of Spokane v. Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990). A 

statute is unconstitutionally vague if it (1) does not define the criminal offense with 

sufficient definiteness that an ordinary person can understand what conduct is proscribed, 

or (2) does not provide ascertainable standards of guilt to protect against arbitrary 

enforcement. Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 75 L. Ed. 2d. 903 

(1983); State v. Bahl, 164 Wn.2d 739, 752-53, 193 P.3d 678 (2008). If persons of 

ordinary intelligence are able to understand what the law proscribes, notwithstanding 

some possible areas of disagreement, the law is sufficiently definite. State v. Bahl, 164 
No. 35546-2-III (consol. w/35971-9-III)

State v. Knott 

11

Wn.2d at 754. 

A defendant may assert vagueness challenges to conditions of community custody 

for the first time on appeal. State v. Bahl, 164 Wn.2d at 745. A community custody 

condition that is manifestly unreasonable will be reversed. The imposition of an 

unconstitutional condition is always manifestly unreasonable. State v. Sanchez Valencia, 

169 Wn.2d 782, 791-92, 239 P.3d 1059 (2010). Unlike legislative enactments, we do not 

presume the constitutional validity of community custody conditions. State v. Irwin, 191 

Wn. App. at 652. A community custody condition is not unconstitutionally vague simply 

because a person cannot predict with complete certainty the exact point at which his or 

her actions would be classified as prohibited conduct. State v. Sanchez Valencia, 169 

Wn.2d at 793. 

Peggy Knott correctly notes that the restriction on association implicates the First 

Amendment. When a condition of community placement concerns material protected 

under the First Amendment, “a vague standard can cause a chilling effect on the exercise 

of sensitive First Amendment freedoms.” State v. Bahl, 164 Wn.2d at 753. For this 

reason, restrictions implicating First Amendment rights, such as freedom of association, 

must be clear and must be reasonably necessary to accomplish essential state needs and 

public order. State v. Riley, 121 Wn.2d 22, 37-38, 846 P.2d 1365 (1993). 

Three state decisions and two federal decisions inform our analysis. First, in State 

v. Weatherwax, 193 Wn. App. 667, 376 P.3d 1150 (2016) rev’d on other grounds, 188 
No. 35546-2-III (consol. w/35971-9-III)

State v. Knott 

12

Wn.2d 139, 392 P.3d 1054 (2017), two defendants challenged identical community 

custody conditions that “the defendant not be allowed to have any association or contact 

with known felons or gang members or their associates.” State v. Weatherwax, 193 Wn. 

App. at 680. This court took issue with the term “or their associates” because the 

condition encompassed those who may have only a social connection to an individual 

gang member. This court held the condition unconstitutionally vague absent a showing 

that the word “associates” was intended to have the meaning as defined by RCW 

9.94A.030(13). The defendants did not challenge the words “association or contact.” 

Second, in State v. Riley, 121 Wn.2d 22 (1993), our Supreme Court upheld a 

sentencing condition that prohibited a convicted computer hacker from “owning a 

computer, associating with other computer hackers, and communicating with computer 

bulletin boards.” State v. Riley, 121 Wn.2d at 36. The court held that these conditions 

would help the defendant from committing further criminal conduct and were reasonably 

related to the defendant’s convictions of computer trespass. The court held that the 

conditions were not an unconstitutional restriction on the offender’s freedom of 

association. 

Third, in State v. Hearn, 131 Wn. App. 601, 128 P.3d 139 (2006), Tami Hearn, 

convicted of drug possession, challenged the constitutionality of a community custody 

placement restriction that she refrain from “associating with known drug offenders.” 

State v. Hearn, 131 Wn. App. at 607. Relying on Riley, this court held that the restriction 
No. 35546-2-III (consol. w/35971-9-III)

State v. Knott 

13

on Hearn’s ability to associate with known drug offenders was constitutional because the 

conditions would help prevent Hearn from further criminal conduct. 

Fourth, in United States v. Soltero, 510 F.3d 858 (9th Cir. 2007), the court held the 

verb “associate” was not impermissibly vague when confronted with the following

condition: “The defendant shall not associate with any known member of any criminal 

street gang . . . as directed by the Probation Officer, specifically, any known member of 

the Delhi street gang.” Soltero, 510 F.3d at 865. The identification of the specific street 

gang insulated the condition from a vagueness challenge. 

Fifth, in United States v. Vega, 545 F.3d 743 (9th Cir. 2008), the court analyzed a 

condition nearly identical to that in Soltero. Unlike the condition in Soltero that 

expressly stated the defendant shall not associate with any known member, the condition 

in Vega was not limited to known members. Therefore, Raul Vega argued that he might 

face penalties for unknowingly violating the condition by associating with someone 

whom he did not know to be a street gang member. The Vega court applied the 

presumption that prohibited criminal acts require the mens rea element. United States v. 

Vega, 545 F.3d at 750. Thus, the court read the condition to prohibit knowing association 

with members of a criminal street gang and held the condition not impermissibly vague. 

Based on the five decisions, we hold that the verbs “associate” and “have contact” 

pass constitutional muster provided the object of the association and contact is known. 

We further hold that a condition may not restrict the defendant from contact with a felon 
No. 35546-2-III (consol. w/35971-9-III)

State v. Knott 

14

regardless of whether the defendant knows the person holds a felony conviction. The 

condition must be limited to precluding contact with one that the defendant knows has 

been convicted of a felony. Since Peggy Knott does not argue that the restriction must be 

limited to those with drug convictions, as opposed to other felonies, we do not address 

this narrower question. 

Cost of Incarceration

Finally, Peggy Knott argues the sentencing court exceeded its authority by 

ordering Knott to pay for the cost of incarceration without evaluating her ability to pay. 

The court checked a box in the amended judgment and sentence that required Knott to 

pay the cost of her incarceration. But, the court failed to insert the rate of pay per day. 

Knott correctly asserts that a sentencing court may only order a person to pay the cost of 

his or her incarceration on finding that he or she “at the time of sentencing, has the means 

to pay the cost of incarceration.” RCW 9.94A.760(3). The sentencing court did not 

conduct an inquiry into Knott’s financial situation at either sentencing hearing. 

The State agrees with Peggy Knott that the sentencing court conducted no inquiry 

into Knott’s ability to pay. The State believes that the trial court inadvertently checked 

the box requiring payment of incarceration and asks this court to determine the 

appropriate remedy. The remedy for clerical or scrivener’s error in judgment and 

sentence forms is remand to the trial court for correction. CrR 7.8(a); In re Personal 

Restrain of Mayer, 128 Wn. App. 694, 701-02, 117 P.3d 353 (2005). We direct this 
No. 35546-2-III ( consol. w/35971-9-III) 

State v. Knott 

remedy. 

CONCLUSION 

We affirm Peggy Knott's sentence's length of confinement. We remand for 

resentencing for the purposes of striking the financial obligation of paying for 

incarceration and modifying the community custody condition in conformance with this 

opm1on. 

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. 

Fearing, J. 

WE CONCUR: 

Siddoway, J. 

Q. 

Pennell, A. C .J. 

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