Citations and pin cites are based on the Westlaw online version of the cited material. IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON , Respondent ,
v. M C DONALD , GUSTAVO JEREMY , DOB: 06/20/1946, Appellant

. No. 82086

- 9

- I DIVISION ONE

UNPUBLISHED OPINION

P ER C URIAM
— A jury found Gustavo Jeremy McDonald guilty of rape of a child in the first degree based on an offense committed against his step

- great
granddaughter. As a part of his judgment and sentence, the court imposed community custody condition 17 that orde rs him to neither “date women nor form relationships with families who have minor children, as directed by the supervising Community Corrections Officer.”
McDonald c ontends that the phrase “form relationships with familie s” is unconstitutionally vag ue because it is not sufficiently clear what type of contact or interaction is prohibited. He cites an unpublished opinion from Division Two of
this court addressing a similar condition , State v. Robinett , No. 50653

- 0

- II (Wash Ct. App. Jan. 15, 2019) (unpublished)

. 1 That court stated: Unlike the term “dating relationship,” which is statutorily defined in RCW 26.50.010(2) and was held by the Nguyen [ 2 ] court to be

1 H ttps://www.courts.wa.gov/opinions/pdf/ D2% 2050653

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- II%20Unpublished%20 Opinion.pdf

.

2 S tate v. Nguyen , 191 Wn.2d 671, 425 P.3d 847 ( 2 0 18 ).No. 82086

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2 sufficiently definite to withstand a vagueness challenge, people of ordinary intelligence, including corrections officers charged with enforcing this condition, could reasonably disagree as to when a person for ms a relationship with another. Therefore, the condition lacks the definiteness needed to allow ordinary people to understand what conduct is proscribed, and it permits arbitrary enforcement by granting corrections officers broad discretion to determine when an encounter between [the def endant] and another individual has crossed the obscure threshold of forming a relationship.
Robinett , No. 50653

- 0

- II , slip op. at 9

. The State co ncedes that the phrase “form relationships with families” is unconstitutionally vague and should be stricken. The concession is well taken. We agree and remand to the tr ial court to modify condition 17. Next, McDonald challenges community custody supervision fees the court imposed despite his indigence

. Supervision fees are governed by RCW 9.94A.703(2)(d), which provides that “[u]nless waived by the court, as part of a term of community custody, the court shall order an offender to

. . . [p]ay supervision fees as determined by the [D ] epartment [of Corrections] .” S upervision fees are not a “ ‘cost’ ” under RCW 10.01.160(3) , which may not be imposed aga ins t an indigent defendant. See State v. Spaulding , 15 Wn . App. 2d 5 26, 536

- 37, 476 P.3d 205 (2020). However,
because supervision fees are wa ivable, they are discretionary. RCW 9.94A.703(2) (d) ; State v. Dillon , 12 Wn. App. 2d 133, 152, 456 P.3d 1199 (2020)

. T he sentencing court initially indicated that in addition to mandatory legal financial obligations (LFOs), it would impose a criminal filing fee. Defense counsel asked the court to find McDonald , who was 74 years old at t he time of sentencing, indigent because he “ha [ d ] not worked for a long time ” and would not3

be able to work going forward. The court accepted counsel’s representation and imposed only mandatory LFOs, consistent with its finding of indigence. The cour t stated, “ [T] o the extent there may be a restitution order entered in this case, I would prefer your client’s resources go to satisfying that order as opposed to a court fine.” The requirement that McDonald “ pay supervisio n fees as determined b y ” the Department of Corrections is buried in a lengthy paragraph of the prewritten judgment and sentence fo rm, in a different section of the judgment from the other LFOs

. The record indicates that the court inadvertently imposed supervision fees and, in these circumstances, it is appropriate for us to remand to strike the condition of co mmunity custody requiring the fees. State v. Peña Salvador , 17 Wn. App. 2d 76 9 , 791

- 92, 487 P.3d 923 (citing Dillon , 12 Wn. App. 2d at 152) , review denied , 495 P.3d 844 (2021)

. 3 In addition, under federal law, S ocial S ecurity benefits cannot be used to
pay legal financial obligations. See 42 U.S.C. § 407(a); State v. Catling , 193 Wn.2d 252, 260, 438 P. 3d 1174 (2019). The trial court should also clarify on remand that McDonald’s L FOs cannot be satisfied t hrough federal S ocial S ecurity income

. Finally, McDonald seeks correction of a scrivener’s error in the judgment and sentence as to the date of the crime. The judgment and sentence reflects

3 The State contends the written judg ment and sentence overrides any contradictory ora l pronouncement and the court’s failure to address supervision fees does not indicate intent to waive them. Nevertheless, the State suggests that because trial counsel performed deficiently by failing to specifically ask the court to waive supervision fees based on indigence, McDonald should be able to raise the issue on remand. But we do not reach the issue of ineffective assistance because, as expla ined, it appears to us that the court intended to waive all non mandatory fees.No. 82086

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4

that the crime took place between August 9, 2007 and October 1, 2015. Both the third amended information and the jury instructions identify August 9, 2010 as the beginning of the date range for the crime

. On remand, the court should correct the date of the crime to conform to th e information and instructions. See CrR 7.8(a) ; State v. Makekau , 194 Wn. App. 407, 4 20

- 21, 378 P.3d 577 (2016) (remedy for scrivener’ s error i n a judgment and sentence is remand to the trial court for correction )

. Accordingly, we remand for the trial court to (1) modi fy community custody condition 17 to eliminate the phrase “nor form relationships with families , ” (2)
strike community custody supervision fees , (3) clarify that McDonald’s LFOs cannot be satisfied t hrough federal S ocial S ecurity income , an d (4) correct the error in the judgment and sentence as to the date of the crime, replacing the start of the date range of August 9, 2007 with August 9, 2010.

WE CONCUR: