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### 20m JUL 21 AH 10: 20

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON, Respondent,

v. FREDERICK E. HARDTKE, Appellant. No. 70002-2-1 DIVISION ONE

UNPUBLISHED OPINION FILED: July 21, 2014 

### Spearman, C.J.

— Frederick Hardtke challenges a condition of pretrial release and condition ofsentence requiring him to reimburse San Juan County 

### (County) for the cost ofpretrial monitoring via a TransdermalAlcohol Detection (TAD) ankle bracelet. Because defendants are solely responsible for bearing the cost of conditions of pretrial release, and Hardtke expressly agreed to reimburse 

### the County for the costs ofTAD monitoring in his valid plea agreement, we affirm. FACTS 

### On June 28, 2012, Frederick Hardtke was arraigned and pled not guilty to 

### twocounts ofsecond degree rape, one count ofsecond degree assault, four counts of fourthdegree assault, and malicious mischief, allinvolving domestic violence. The trial courtfound that a substantial danger existed that Hardtke would commit a violent crime ifreleased and, pursuantto CrR 3.2(d), the court 

### imposed conditions ofrelease. The court required Hardtke not to possess orNo. 70002-2-1/2
consume alcohol, to have no contactwith the alleged victim, and to abide by the
terms of a domestic violence no contact order. The court also ordered Hardtke to post a $15,000 bond or cash to guarantee those conditions. However, the trial court agreed to reconsiderthe bond condition if it could be shown that no bonding company would write a bond for the required amount. On July 11, 2012, the trial court heard Hardtke's motion to modify his conditions ofrelease. Hardtke had been unable to secure a $15,000 bond from any agency and remained in custody. Noting that the court's main concern was 

### his behaviorwhen intoxicated, Hardtke suggested that, in lieu ofthe $15,000 bond, the court should require him to submitto monitoring via a TAD ankle bracelet, which could measure his blood-alcohol level at all times. In response, the State submitted that, ifTAD monitoring were ordered, Hardtke should bear the costs. The trial court reduced the bond to $3,000 but maintained all other conditions. The court also ordered Hardtke to appear in court on July 20, 2012, at 

### which time he was to have posted a performance bond in the amount of$15,000, or, in the alternative, post a $3,000 bond and submitto TAD monitoring at his
own expense. The court agreed to revisitthe issue of requiring Hardtke to pay the cost of TAD monitoring atthe July 20 hearing.No. 70002-2-1/3 Atthe July 20, 2012 hearing, Hardtke advised the court that arrangements had been made for TAD monitoring to begin at 1:00 p.m., but contended that he 

### should not be required to pay the cost ofthe monitoring. He argued: 

### [T]hatthe Court had decided that the $3000 performance bond, the TAD device, and the other release conditions, as a set, 

### addressed adequately the concern that Defendantwill commit a violent crime. Therefore, under CrR 3.2, the Court could not 

### impose a higher performance bond. This is true whether or not 

### Defendant payed (sic) the cost ofthe TADdevice. Therefore, the Court could not impose the cost ofthe TADdevice on Defendant underthe threat of imposing a higher performance bond. 

### Agreed Report ofProceedings (ARP) at 5. The trial court apparently adhered to its earlierdecision, requiring as 

### conditions ofrelease that Hardtke eitherpost a $15,000 performance bond and 

### abide by certainconditions or, in the alternative, post a $3,000 bond, abide by certain conditions, and submitto TAD monitoring at his own expense. Notably, 

### although the agreedrecord ofproceedings reports thetrial court's ruling onthis issue, the rationale for the court's conclusion, ifgiven at the hearing, is absent. It 

### appears thatHardtke chose thelatteroption and was releasedfrom custody. OnAugust 9,2012, the State moved torevoke release andforfeit Hardtke's $3,000 bond. TheTAD device had shown that Hardtke had consumed alcohol on at least three occasions between August 4 and August 8, 2012. When 

### Hardtke was subsequently taken into custody, breath testing showed blood alcohol concentration ofover 0.05. Hardtke admitted the violations. The court 

### revoked release and forfeited the $3,000 bond. Italso entered a new order of 3No. 70002-2-1/4 release, which maintained the conditions setforth inthe July 20, 2012 order, but with the bond amount increased to $10,000. Itappears that Hardtke posted the increased amount and remained free on bond. Prior to trial, Hardtke reached a plea agreement with the State, under which the State reduced the charges against Hardtke to one count ofrape inthe third degree and one count of assault inthe second degree. The parties also agreed upon a sentencing recommendation which included, among otherthings,
an exceptional sentence of 24 months incarceration on each count and that Hardtke would "[r]eimburse San Juan County for the cost oftransdermal monitoring." Clerk Papers (CP) at 73. Hardtke was sentenced on February 15, 2013. Despite his agreement to reimburse the County for the cost of TAD monitoring, Hardtke repeated his 

### argument from July 20 that he could not be legally required to pay it. The court imposed the agreed upon sentence and conditions. Hardtke appeals only the trial court's assessment of $3,972 in costs associated with TAD monitoring. DISCUSSION There is a strong public interest inenforcing terms ofplea agreements that


### are voluntarily and intelligentlymade. In re Personal Restraint Petition of Breedlove, 138 Wn. 2d 298, 309, 979 P.2d 417 (1999). Both parties are bound 

### bythe terms of a valid plea agreement and, between the parties, they are regarded and interpreted as contracts. ]d. Entering a valid plea agreementNo. 70002-2-1/5 waives a defendant's right to challenge the sentence he requested pursuantto the agreement, jd. But, a defendant cannot agree to a sentence inexcess ofthat authorized by statute and, thus, cannotwaive a challenge to such a sentence, in
re Personal Restraint Petition of Goodwin, 146Wn.2d 861, 873, 50 P.3d 618 (2002).Hardtke argues that because, in his view, the trial court lacked authority to order him to pay the cost of TAD monitoring, italso could not impose as a condition of his sentence that he reimburse the County for that cost. The argument is without merit. Hardtke fails to identify any provision in CrR 3.2 that prohibits a courtfrom requiring a defendant on pretrial release to assume the costs associated with conditions ofrelease, and his argument that we should interpretthe rule to find such a prohibition is unpersuasive. Resolution ofthis case requires interpretation of a court rule, which is 

### subjectto de novo review. State v. McEnroe, 174 Wn.2d 795, 800, 279 P.3d 861 (2012). We interpret court rules using the rules ofstatutory construction. Id.The terms used in court rules should be given their plain and common meaning. State


### v. Johnson, 21 Wn. App. 919, 921, 587 P.2d 189 (1978): see also State v. OHivier. 178 Wn.2d 813, 852, 312 P.3d 1 (2013). Rules are construed so as to 

### effectuate the drafters' intent, avoiding readings that result inabsurd or strained consequences. McEnroe, 174 Wn.2d at 795.No. 70002-2-1/6 

### CrR 3.2(d) sets forth several conditions of pretrial release that a trial court may impose if it finds a substantial dangerthat the defendant will commit a violent crime, intimidate witnesses, or otherwise unlawfully interfere with the administration ofjustice while awaiting trial. Subsection (d)(9) and (d)(10) permit the courtto "[rjequire the accused to return to custody during specified hours or to be placed on electronic monitoring, ifavailable," and to "[ijmpose any condition otherthan detention to assure noninterference with the administration ofjustice and reduce dangerto others inthe community," respectively. Hardtke does not dispute the trial court's finding that he presented such a danger and, since he proposed TAD monitoring as a condition ofrelease, he concedes itwas an appropriate condition to mitigate the danger. He contends, however, thatthe court rules do not provide authority for the trial court's orderthat he bearthe cost ofthis condition. 

### Hardtke firstargues, without citation to authority, that because CrR 3.2(d) does not expressly provide that trial courts may require defendants to bearthe 

### cost ofTAD monitoring, they lack authority to do so.1 The argument is without merit. A number ofthe conditions ofrelease authorized by CrR 3.2(d) have costs associated with them, but under Hardtke's line of reasoning, a defendant cannot 

### be required to bearthe cost ofutilizing them. This is an absurd result. For

1Hardtke notes that with one exception, no statute or court rule gives courts blanket authorityto impose the cost ofpretrial release conditions on a defendant. RCW10.01.160(2) provides thatcosts for administering a pretrial supervision program may notexceed one hundred fiftydollars. 6No. 70002-2-1/7 example, under CrR 3.2(d)(6), a trial court may require as a condition ofrelease,
as it did in this case, that the defendant post a secured bond. The bonding company will typically require a fee often to twenty percent ofthe amount ofthe bond. Under Hardtke's interpretation ofthe rule, courts must either require the bonding company to provide this service to the defendant at no cost, orthey are limited to imposing an unsecured bond requirement or requiring cash in lieu thereof. Neither result is a sensible interpretation ofthe rule. Similarly, pursuant to CrR 3.2(d)(1) and (2), a trial court could require, as it did inthis case, thatthe defendant have no contactwith the victim. Here, compliance with the court's no contact condition required Hardtke to vacate the residence he shared with the victim and their child. No doubt costs were associated with abiding by this condition of release. Under Hardtke's interpretation ofthe rule, instead of 

### requiring the defendant to bearthese costs, the anomalous resultwould be to impose them on some other individual or entity. As with other conditions ofpretrial release, if a defendant chooses to avail 

### himself of TAD monitoring inorderto be released from confinement, the cost of 

### doing so isfairly his to bear. The court rules, reasonably read, do not prohibit this result.2

2Hardtke observes that under RCW 10.010.160(1) costs may not be imposed on a defendant except upon conviction, but there was no violation of this statute. Although Hardtke spent nearlyseven months onTAD monitoring, itdoes notappearthat he was required to pay for the service until after he was sentenced.No. 70002-2-1/8 

### In this case, itwas withinthe trialcourt's authority to orderTAD monitoring
as a condition ofrelease and to require Hardtke to pay to the costthereof. 

### Accordingly, his agreementto reimburse the County for this expense as a condition of his sentence was lawful and properly imposed by the court. In re Breedlove. 138 Wn.2d at 312. Affirm.

WE CONCUR: U J

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