### r.m:r.vt^mstate: us- v.v.i.-------
ill

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

v. JACOB ALAN WARNER, Appellant. No. 69347-6-1 DIVISION ONE UNPUBLISHED OPINION FILED: March 10, 2014 Leach, C.J. — Jacob Warner pleaded guilty to domestic violence assault 

### in the first degree and domestic violence robbery in the first degree. Warner 

### challenges his condition of communitycustody prohibiting him from"possessing]
or consuming] alcohol" and "frequenting] establishments where alcohol is the chief commodity for sale." Warner also contends that the community custody 

### condition prohibiting him from possessing "drug paraphernalia" is unconstitutionally vague. In a statement of additional grounds, Warner 

### challenges his sentencing because the court did not order a mental evaluation, he has no history of violence, he did not receive proper time to prepare before 

### speakingwith the judge, and hisfamily and friends were notallowed to provide testimony on his behalf at the sentencing hearing. We accept the State's concession that prohibiting Warner from "frequenting] establishments where alcohol is the chief commodity for sale" is invalid and remand for the sentencingNo. 69347-6-1 / 2

court to strike this condition. Because Warner fails to show that the remaining community custody conditions are invalid and his remaining arguments are meritless, we otherwise affirm. Background 

### On April 11, 2011, Warner and his mother entered the home ofWarner's stepfather, Royce Glenn. When Warner and his mother entered Glenn's bedroom, Warner restrained Glenn while his mother hit him with a baseball bat. After Glenn broke free, Warner and his mother pursued him into the bathroom. Warnerthen started to hitGlenn with something otherthan the bat. Glenn again broke free, fled the house, and called the police. Warner and his mother fled the house, taking with them Glenn's wallet. This held some of Glenn's credit cards. When police searched the house, they 

### found a bat and torque wrench with blood on them. Warner later stated that he
was underthe influence ofmethamphetamine at the time ofthe assault. Warner claimed, however, that he had not used alcohol inthe pastthree years. 

### On August 1,2012, Warner pleadedguilty tofirst degree assault andfirst 

### degree robbery. Warner stipulated to the facts contained in the affidavit of probable cause. 

### On August 31, 2012, the court imposed a standard range sentence of 147 months ofconfinement on the assault charge and 54 months ofconfinement on 

### the robbery charge. The court also imposed 36 months ofcommunity custody, includingthefollowing challenged conditions:No. 69347-6-1 / 3
4. Do not possess or consume alcohol and do not frequent establishments where alcohol is the chiefcommodityfor sale. 7. Do not possess drug paraphernalia. Warner appeals. Analysis We review the trial court's statutory authority to impose community 

### custody conditions de novo.1 Conditions ofcommunity custody may include treatment and counseling services, prohibition from consuming alcohol, and 

### "crime-related prohibitions."2 A"crime-related prohibition" isdefined as "an order of a court prohibiting conduct that directly relates to the circumstances of the crime for which the offenderhas been convicted."3 Alcohol-Related Community Conditions Warner contends that the trial court lacked authority to impose community 

### custody conditions prohibiting him frompossessing alcohol or from "frequenting] establishments where alcohol is the chief commodity for sale." The State concedes that because no evidence showed Warner used alcohol at the time of his offense, the trial court lacked authority to prohibit Warner from possessing 

### alcohol and "frequent[ing] establishments where alcohol is the chief commodity for sale." But, as the State notes, a trial court may prohibit a defendant from 

### consuming alcohol even if the crime did not involve alcohol.4 Therefore, we
1State v. Armendariz. 160Wn.2d 106, 110, 156 P.3d 201 (2007). 

### 2RCW9.94A.703(3)(c), (e),(f). 3RCW9.94A.030(10). 4State v.Jones, 118Wn. App. 199, 206, 76 P.3d 258 (2003).No. 69347-6-1 / 4
accept the State's concession and remand for the sentencing court to strike the invalid conditions of possessing alcohol and "frequenting] establishments where alcohol is the chief commodity for sale." We affirm the community condition prohibiting Warnerfrom consuming alcohol. Possession of Drug Paraphernalia Warner claims that the community custody condition prohibiting him from possessing "drug paraphernalia" is unconstitutionally vague. "[T]he due process vagueness doctrine under the Fourteenth Amendment and article I, section 3 of the state constitution requires that citizens have fair warning of proscribed 

### conduct."5 A statute is unconstitutionally vague if it does not (1) define the criminal offense with sufficient definiteness so that ordinary people can understand what conduct it proscribes or (2) provide ascertainable standards of 

### guilttoprotectagainstarbitraryenforcement.6 The sentencing court has discretion to impose conditions of community 

### custody, and we will reverse sentences only if manifestly unreasonable.7 

### Imposing an unconstitutional condition is manifestly unreasonable.8 Unlike a statute or ordinance, a condition ofcommunity custody enjoys no presumption of 

### constitutionality.9
5State v. Bahl, 164 Wn.2d 739, 752, 193 P.3d 678 (2008) (citing City of Spokane v. Douglass, 115Wn.2d 171, 178, 795 P.2d 693 (1990)). 

### 6Bahl, 164Wn.2d at 752-53 (quoting Douglass, 115Wn.2d at 178). 

### 7Bahl, 164 Wn.2d at 753 (citing State v. Riley, 121 Wn.2d 22, 37, 846 P.2d 1365(1993)). 8Bahl, 164Wn.2dat753. 

### 9State v. SanchezValencia, 169 Wn.2d 782, 792, 239 P.3d 1059 (2010).No. 69347-6-1 / 5
When interpreting a condition of community custody, a court considers 

### terms in the context of their use.10 For an undefined term, the court may considertheplain andordinary meaning as setforth in a standarddictionary.11 A condition is sufficiently definite ifpersons of ordinary intelligence can understand 

### whatthelawproscribes, notwithstanding somepossible areas ofdisagreement.12 Warner relies primarily on Statev. SanchezValencia.13 However, in that case, in determining that the condition did not provide fair notice of what a defendant could or could not do, the court reasoned that the condition referred very broadly to "paraphernalia," as opposed to the more specific term "drug 

### paraphernalia."14 And unlike "paraphernalia," "drug paraphernalia" is a statutorily defined

term: "[D]rug paraphernalia" means all equipment, products, and materials ofany kind which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, 

### preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise 

### introducing intothehumanbodyacontrolled substance.1151 In Sanchez Valencia, our Supreme Court expressed concern that the 

### community custody condition would lead to arbitrary enforcement because one


### 10 Bahl, 164Wn.2d at 754 (citing Douglass, 115Wn.2d at 180). 11 Bahl, 164 Wn.2d at 754 (citing State v. Sullivan, 143 Wn.2d 162, 184- 85, 19P.3d 1012(2001)). 

### 12 Bahl, 164Wn.2d at 754 (quoting Douglass, 115Wn.2d at 179). 13 169 Wn.2d 782, 239 P.3d 1059 (2010). 14 SanchezValencia, 169 Wn.2d at 794. 

### 15 RCW69.50.102(a).

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corrections officercould deem a sandwich bag paraphernalia while another might 

### not.16 In contrast, here, the statutory definition contains an explicit requirement that the prohibited object be intended for use related to "a controlled substance," 

### therefore protecting against arbitrary enforcement.17 The condition prohibiting the possession of "drug paraphernalia" is not unconstitutionally vague. Statement ofAdditional Grounds Sentencing Challenges In a statement ofadditional grounds, Warner challenges his sentencing on the bases thatthe courtdenied him a mental evaluation, he does not have a prior history of violence, and he "was not given time to get [his] paperwork in order... so that [he] could refer to them when [speaking with] the judge at sentencing." No incompetent person may be tried, convicted, or sentenced for the 

### commission of an offense as long as theincapacity continues.18 "Adefendantis competent if he has the capacity to understand the nature of the proceedings 

### againsthim andto assistin his own defense."19 RCW 10.77.060requires acourt
to order a mental evaluation whenever there is reason to doubt the defendant's competency. In that situation, the court must appoint qualified experts to

16 SanchezValencia. 169 Wn.2d at794-95. 

### 17 RCW69.50.102(a). 18 RCW 10.77.050; In re Pers. Restraint of Fleming, 142 Wn.2d 853, 862, 16P.3d610(2001). 

### 19 State v. Lord, 117 Wn.2d 829, 900, 822 P.2d 177 (1991).

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### determine ifthedefendantiscompetentto standtrial.20 Thetrial courthasbroad 

### discretiontoorderacompetencyexamination.21 The evidence presented to the trial court here established merely that 

### Warnerhad a history ofmental illness.22 Thefactthat adefendant ismentally ill 

### does not necessarily demonstrate that he is incompetent.23 No evidence presented to the courtraises any questions about Warner's ability to understand the proceedings againsthim and assist in his owndefense. Thus, his claimfails. 

## Generally, a party cannot appeal a standard range sentence.24 "This prohibition does not, however, bar a partyfrom challenging legal errors orabuses 

### ofdiscretion in the determination of what sentence applies."25 Atrial court has 

## broad discretion to impose a sentence within the standard range.26 And atrial judge is "under noobligation toexplain his reason for imposing a sentence at the 

### high endofthestandard range."27 The record shows that thesentencing court knew that Warnerdid nothave a prior violent history. Thus, his claim fails. 20 Fleming, 142Wn.2d at 863. 21 Fleming, 142Wn.2d at 863. 

### 22Atsentencing, defense counsel noted that Warnerreceived treatmentin jailfordepression and posttraumatic stress disorder. 23 See, e.g., Lord, 117 Wn.2d at 901-02 (court did not err in denying 

### request for competency hearing, even though defendant exhibited signs of mental illness, including delusions of conversations with the devil); State v. Smith. 74 Wn. App. 844, 850, 875 P.2d 1249 (1994) (without evidence linking 

### psychological disorders to the capacity to plead guilty, the court did not errin denying motion to withdraw guilty plea). 

### 24 RCW 9.94A.585(1); State v. Williams, 149 Wn.2d 143, 146, 65 P.3d 

### 1214(2003); Statev. Smith, 118Wn. App. 288, 292, 75 P.3d 986(2003). 25 Smith. 118Wn. App. at 292 (citing Wjlljams, 149 Wn.2d at 147). 26 State v. Herzog. 112 Wn.2d 419, 424, 771 P.2d 739 (1989) (citing United States v. Sweig, 454 F.2d 181, 183-84 (2d Cir. 1972)). 

### 27 Statev.MaiTl21 Wn.2d707, 714, 854 P.2d 1042 (1993).No. 69347-6-1 / 8

Warner next claims that he "was not given time to get [his] paperwork in order... so that [he] could refer to them when [speaking with] the judge at sentencing." Warner provided testimony at the sentencing hearing. Warner has failed to show how further preparation would have affected his testimony. Because Warnerfails to show any error in the sentencing proceedings, we reject his claims. Testimony from Family and Friends Warner also claims that "[his] family and friends were not allowed in court to give testimony on [his] behalf." Warner waived his right to have witnesses testify in his own defense when he pleaded guilty to the charged crimes. During 

### the sentencing hearing, the court must "allowarguments from the prosecutor, the defense counsel, the offender, the victim, the survivor of the victim, or a 

### representative of the victim or survivor, and an investigative law enforcement 

### officer."28 But the law does not require the court to allow arguments from the defendant's family and friends during the sentencing hearing. Therefore, Warner's claim fails. Conclusion Because the State concedes that the community custody conditions 

### prohibiting Warner from possessing alcohol and "frequenting] establishments where alcohol is the chief commodity for sale" are invalid, we remand to the 

### sentencing court to strike these conditions. Because the sentencing court has 28RCW9.94A.500(1).

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the authority to prohibit Warner from possessing alcohol, Warner failed to show that "drug paraphernalia" is unconstitutionally vague, and no evidence in the record supports the claims that Warner asserts in his statement of additional grounds, we otherwise affirm.

WE CONCUR: 

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