FILED 


DECEMBER 15, 2015 


In the Office of the Clerk of Court 


WA State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


STATE OF WASHINGTON, ) 

) No. 32954-2-111 

Respondent,. ) 

) 

v. ) 

) 

JOSHUA JAMES HERSHA W, ) UNPUBLISHED OPINION 

) 

Appellant. ) 

FEARING, J. - On appeal, Joshua Hershaw contends that the trial court lacked 

authority, as part of his sentencing, to require that he complete mental health treatment. 

Because Hershaw asked for the treatment, we apply the doctrine of invited error and 

decline to address the merits of Hershaw' s assignment of error. 

FACTS 

On September 18,2014, Leigh Colton met Joshua Hershaw, and the two agreed to 

trade a cell phone for a bicycle. On September 19,2014, at 8:00 a.m., Colton and 

Hershaw met at Colton's residence to execute the trade. During the interaction, Hershaw 

uttered intimidating statements to Colton. He told her that he killed two people without 

anyone knowing, informed her that he killed countless people in Iraq, and insinuated that 

he would kill her boyfriend, Bill VonMetzger. Hershaw also told Colton that he used 
No. 32954-2-II1 

State v. Hershaw 

methamphetamine. 

After uttering his boastful and threatening comments, Joshua Hershaw rummaged 

through each room in Leigh Colton's house and collected objects he wanted. At 11 :38 

a.m., Hershaw rode from the residence on Bill VonMetzger's bicycle, while carrying a 

sword, a snowboard, and other treasures. As he departed, Hershaw warned Colton: "I 

better not find out this stuff is reported stolen." Clerk's Papers (CP) at 2. Colton left her 

abode and returned with VonMetzger at 6:50 p.m. to find Hershaw seated on her porch. 

The couple left the residence to call the police. 

Walla Walla Police Officer Tracy Klem responded to Leigh Colton's call. After 

taking Colton's report, Officer Klem, along with two police detectives, traveled to 

Colton's residence to search for Joshua Hershaw. Hershaw was not present. The three 

officers returned to the police department and researched Hershaw's criminal history. 

The officers discovered that Hershaw garnered gross misdemeanor convictions for, 

among other things, vehicle prowling and possession of burglary tools. Oregon 

authorities most recently arrested Hershaw in May 2014 for first degree burglary. 

At 11: 15 p.m., a witness informed Officer Tracy Klem that Hershaw had returned 

to Leigh Colton's residence. Officer Klem returned to the home, found Hershaw, 

arrested him, and transported him to jail. After receiving Miranda warnings, Hershaw 

furnished police two recorded statements, in which he stated he was transient, a 

methamphetamine user, and on military disability. Hershaw insisted that he killed no one 

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No. 32954-2-III 

State v. Hershaw 

outside of military combat and that Colton granted him permission to be present at her 

residence. Hershaw claimed he met Colton during time in drug rehabilitation and that 

she gifted him the valuables he removed from her garage earlier that day. 

PROCEDURE 

The State of Washington charged Joshua Hershaw with one count of burglary in 

the second degree. Less than one month later, Hershaw entered a guilty plea to the 

charge. 

The trial court accepted Joshua Hershaw's guilty plea. Hershaw's statement on 

plea of guilty stated: 

In Considering the Consequences of My Guilty Plea, I Understand 

That ... The prosecuting attorney will make the following recommendation 

to the judge: FIRST TIME OFFENDER WAIVER; TIME SERVED 

SENTENCE, 12 MONTHS' COMMUNITY CUSTODY, 

PARTICIPATION IN MENTAL HEALTH AND DRUG TREATMENT 

THROUGH THE V.A. TO THE EXTENT AVAILABLE. 

CP at 9, 11. Neither side presented the court with a presentence report on Hershaw's 

mental health or competency. 

At his sentencing hearing, Joshua Hershaw's counsel told the court: 

Your Honor, we are requesting the Court follow the 

recommendation in this case. 

The recommendation is that he [Joshua Hershaw] be sentenced to his 

time served, which I don't know the exact number of days, but it is in 

excess of the one month minimum. 

That he be sentenced according to a first time offender waiver. This 

would put him on community custody for a period of 12 months, during 

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No. 32954-2-III 

State v. Hershaw 

which time he would be required to participate in mental health and drug 

treatment through the VA to the extent those services are available to him. 

Your Honor, Mr. Hershaw has acknowledged that he has a substance 

problem and that he desires to get treatment for it. 

This is a felony conviction. This is kind of crossing the Rubicon, so 

to speak, and I think it has been a bit of an eye opening experience for him 

about the extent of his problem and the need to address it. 

I think that in conversations with the State this is going to be the best 

option that is available in terms of being able to address the underlying 

substance problem that seems to be driving the criminal behavior. 

For those reasons, we think it is appropriate. He would, I believe, be 

released upon his release and he would be required to check in with the 

Department of Corrections and should be able to obtain a bed date from the 

VA very shortly thereafter. 

Report of Proceedings (RP) at 4-5. 

The State responded at the sentencing hearing: 

Really the only thing the State has to hold him on is the first time 

offender waiver and hold him accountable and have him supervised. 

He does have a number of prior gross misdemeanors and some were 

very, very recently handled. It's clear that he does have a serious substance 

abuse problem coupled with probably some mental health issues as a result 

ofbeing a war veteran. 

He does need to get this help and does need to get into treatment. 

And I'm hoping that he can get this bed date as quickly as counsel indicates 

that he can. 

So the State is going along with this recommendation to ensure he 

continues to be held accountable. 

RP at 5-6. 

During the sentencing hearing, Joshua Hershaw informed the court: "I'm really 

wanting to go" to treatment, although he did not specify if he desired mental health 

treatment, substance abuse treatment, or both. RP at 7. The trial court found Hershaw 

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No. 32954-2-II1 

State v. Hershaw 

guilty and sentenced him as recommended. When ruling, the trial court found that 

Hershaw had a chemical dependency that contributed to his offenses. The court entered 

no finding regarding Hershaw's mental health. However, the trial court clarified in its 

ruling: 

THE COURT: My question is, ifhe gets treatment through the VA, 

is that going to be inpatient? 

[DEFENSE COUNSEL]: That is the expectation, your Honor, yes. 

THE COURT: And for how long approximately? 

[DEFENSE COUNSEL]: I think the minimum in Washington is 28 

days and I think through the VA, it would be to the extent it is needed. 

THE DEFENDANT: Yes. Yes, sir. The VA also has outpatient too 

and I could attend on a weekly basis too. 

THE COURT: Okay. 

THE DEFENDANT: So this could go on. I'm really wanting to go. 

RP at 6-7. 

LAW AND ANALYSIS 

Joshua Hershaw assigns error solely to the condition in his sentence that demands 

he complete mental health counseling through a state licensed counselor at his own 

expense. Hershaw argues that the condition is invalid because the trial court failed to 

comply with RCW 9.94B.080. At the time of his sentencing, the statute required the trial 

court to find that Hershaw was a "mentally ill person" as defined by RCW 71.24.025(20) 

and that a qualifYing mental illness influenced his crime, before imposing mental health 

treatment as a community custody condition. Hershaw maintains that the trial court also 

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No. 32954-2-II1 

State v. Hershaw 

failed to base the sentence condition on a presentence report. He asks this court to strike 

the offending condition. 

The State contends that Joshua Hershaw's joining in the State's recommendation 

for mental health treatment amounted to a stipulation to the necessary findings or 

constituted invited error. Additionally, the State argues that the Sentencing Reform Act 

of 1981, chapter 9.94A RCW, no longer includes the procedural requirements on which 

Hershaw relies. Finally, the State requests that, if this court determines that the trial court 

failed to make all required findings, the court remand for a new sentencing hearing rather 

than strike the offending condition. We agree that Hershaw invited any error so we do 

not review the State's remaining assertions. 

RCW 9.94B.080 provides: 

The court may order an offender whose sentence includes 

community placement or community supervision to undergo a mental status 

evaluation and to participate in available outpatient mental health treatment, 

ifthe court finds that reasonable grounds exist to believe that the offender 

is a mentally ill person as defined in RCW 71.24.025, and that this 

condition is likely to have influenced the offense. An order requiring 

mental status evaluation or treatment must be based on a presentence 

report and, if applicable, mental status evaluations that have been filed with 

the court to determine the offender's competency or eligibility for a defense 

of insanity. The court may order additional evaluations at a later date if 

deemed appropriate. 

(Emphasis added.) Under this statute, the court, before ordering mental health treatment 

or an evaluation, must find that an offender is a mentally ill person as defined in RCW 

71.24.025(20) and find that the offender's condition likely influenced the crime. State v. 

6 

No. 32954-2-III 

State v. Hershaw 

Brooks, 142 Wn. App. 842, 851-52, 176 P.3d 549 (2008); State v. Jones, 118 Wn. App. 

199,209, 76 P.3d 258 (2003). When the record does not support imposition of mental 

health treatment, the condition should be struck. See State v. Stark, 183 Wn. App. 893, 

896,334 P.3d 1196 (2014), review denied, 183 Wn.2d 1019, 355 P.3d 1153 (2015); State 

v. Locke, 175 Wn. App. 779, 804,307 P.3d 771 (2013), review denied, 179 Wn.2d 1021, 

336 P.3d 1165 (2014) .. 

We decline to address whether the record establishes that Joshua Hershaw suffers 

from a mental illness and whether any illness contributed to his engaging in the crime. 

Hershaw asked for the mental health treatment for good reason. The mental health 

treatment condition constituted a portion of the agreement reached between Hershaw and 

the State. By this agreement, Hershaw received community custody rather than a lengthy 

prison term. He received the benefit of a first time offender waiver that lowered his 

sentence to thirty-three days' confinement, rather than the maximum five years that the 

charge carried. 

Ifthe trial court committed any error, Joshua Hershaw encouraged the error. 

Under the doctrine of invited error, a party may not materially contribute to an erroneous 

application of law at trial and then complain of it on appeal. In re Dependency ofK.R., 

128 Wn.2d 129, 147,904 P.2d 1132 (1995). The invited error doctrine precludes a 

criminal defendant from seeking appellate review of an error he or she helped create, 

even when the alleged error involves constitutional rights. State v. Studd, 137 Wn.2d 

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No. 32954-2-III 

State v. Hershaw 

533,546-47,973 P.2d 1049 (1999); State v. Henderson, 114 Wn.2d 867, 870-71, 792 

P.2d 514 (1990). The doctrine of invited error prohibits a party from setting up an error 

at trial and then complaining of it on appeal. State v. Wakefield, 130 Wn.2d 464,475, 

925 P.2d 183 (1996); State v. Pam, 101 Wn.2d 507,511,680 P.2d 762 (1984), overruled 

on other grounds by State v. Olson, 126 Wn.2d 315, 893 P.2d 629 (1995). 

On appeal, Joshua Hershaw admits that he wanted to attend mental health 

treatment, but denies that he requested the treatment. We reject this distinction. We 

consider a party's informing the trial court of a desire as tantamount to requesting the 

subject of the desire. 

CONCLUSION 

We affirm Joshua Hershaw's sentence, including the community custody 

condition of mental health treatment. 

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. 

WE CONCUR: 


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