### FILED DECEMBER 15, 2015 In the Office ofthe ClerkofCourt WA State Court ofAppeals, 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### v. ) ) JOSHUA JAMES HERSHAW, ) UNPUBLISHED OPINION ) Appellant. ) FEARING, J.

- On appeal, Joshua Hershaw contends that the trial court lacked authority, as partofhis sentencing, to require thathe complete mental health treatment. Because Hershaw asked for the treatment, we apply the doctrine ofinvited error and decline to address the merits ofHershaw's assignment oferror. FACTS On September 18,2014, Leigh Colton metJoshua 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'sresidence to execute the trade. Duringthe interaction, Hershaw uttered intimidating statements to Colton. He told herthathe killed twopeople without anyone knowing, informedherthat he killed countlesspeople in Iraq, and insinuated that he would kill herboyfriend, Bill VonMetzger. Hershaw also told Coltonthathe usedNo. 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., Hershawrode from theresidence on Bill VonMetzger's bicycle, while carrying a sword, a snowboard, and othertreasures. As he departed, Hershaw warned Colton: "I better not find outthis stuffis reported stolen." Clerk'sPapers (CP) at 2. Colton left her abode and returned with VonMetzger at 6:50 p.m. to find Hershaw seated on herporch. The couple lefttheresidence 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 twopolice detectives, traveledto Colton'sresidence to search for JoshuaHershaw. Hershaw was not present. The three officers returnedto the police department and researched Hershaw's criminalhistory. The officers discovered thatHershaw garnered gross misdemeanor convictions for, among otherthings, vehicle prowling andpossession ofburglary 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 thatHershaw had returned to Leigh Colton'sresidence. OfficerKlem returnedto the home, found Hershaw, arrested him, and transported him tojail. AfterreceivingMiranda 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 2No. 32954-2-III State v. Hershaw

outside ofmilitary combat and that Colton granted him permission to be present at her residence. Hershaw claimedhe met Colton during time in drug rehabilitation and that she gifted him the valuables he removed from her garage earlierthat day. PROCEDURE The State ofWashington chargedJoshua Hershaw with one count ofburglary in the second degree. Less than one month later, Hershaw entered a guilty pleato the charge. The trial court accepted Joshua Hershaw's guilty plea. Hershaw's statement on plea ofguilty stated: In Considering the Consequences ofMy Guilty Plea, I Understand That

...Theprosecuting attorney will make the following recommendation to thejudge: FIRST TIME OFFENDER WAIVER; TIME SERVED SENTENCE, 12 MONTHS' COMMUNITY CUSTODY, PARTICIPATION INMENTAL HEALTHAND DRUG TREATMENT THROUGH THE V.A. TO THEEXTENT AVAILABLE. CP at 9, 11. Neither sidepresented the court with apresentence report on Hershaw's mental health orcompetency. Athis sentencinghearing, Joshua Hershaw's counsel told the court: YourHonor, we are requesting the Court follow the recommendation in this case. The recommendation is that he [Joshua Hershaw] be sentencedto his time served, which I don'tknow the exact number ofdays, butit is in excess ofthe one month minimum. Thathe be sentenced according to a first time offender waiver. This would puthim on community custody for a period of 12 months, during

3No. 32954-2-III State v. Hershaw

which time he wouldberequired to participate in mental health and drug treatment through the VAto the extent those services are available to him. YourHonor, Mr. Hershawhas acknowledged that he has a substance problem and that he desires to gettreatment for it. This is a felony conviction. This is kind ofcrossing the Rubicon, so to speak, and I think it has been a bit ofan eye opening experience for him about the extent ofhis 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 ofbeing able to address the underlying substance problem that seems to be driving the criminal behavior. For those reasons, wethink it is appropriate. He would, I believe, be released upon his release and he would be required to check in with the Department ofCorrections and should be able to obtain a bed date from the VA very shortly thereafter. Report ofProceedings (RP) at4-5. The State responded at the sentencinghearing: 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 ofprior gross misdemeanors and some were very, very recently handled. It's clearthat he does have a serious substance abuseproblem coupled withprobably some mental health issues as a result ofbeing a warveteran. He does need to get this help and does need to get into treatment. And I'mhoping thathe can getthis bed date as quickly as counsel indicates thathe can. So the State is going along with this recommendation to ensure he continues to be held accountable. RP at 5-6. Duringthe sentencing hearing, JoshuaHershaw informed the court: "I'mreally wanting to go" to treatment, although he did not specify ifhe desired mental health treatment, substance abuse treatment, orboth. RP at 7. The trial court found Hershaw

4No. 32954-2-II1 State 

### v. Hershaw guilty and sentencedhim 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'mreally wanting to go. RP at 6-7. LAWAND ANALYSIS Joshua Hershaw assigns error solely to the condition in his sentence that demands he complete mental health counselingthrough a state licensed counselor at his own expense. Hershaw argues thatthe condition is invalid because the trial court failed to comply with RCW9.94B.080. At the time ofhis sentencing, the statute required the trial court to find thatHershaw was a "mentally illperson" 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



### 5No. 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'sjoiningin 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 SentencingReform Act of 1981, chapter 9.94A RCW, no longer includes the procedural requirements on which Hershaw relies. Finally, the State requests that, ifthis court determines that the trial court failed to make all required findings, the courtremand for a new sentencinghearing 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 outpatientmental health treatment, 

## if

the court finds that reasonable grounds exist to believe that the offender is a mentally illperson as defined in RCW71.24.025, andthat this condition is likely to have influencedthe offense. An orderrequiring mentalstatus evaluation or treatment must be basedon apresentence report and, ifapplicable, mental status evaluations that have been filed with the court to determine the offender's competency or eligibility for a defense ofinsanity. 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 illperson as defined in RCW 71.24.025(20) and find that the offender's condition likely influencedthe crime. State v. 6No. 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 ofmental 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 ofthe agreementreached between Hershaw and the State. Bythis agreement, Hershawreceived community custody ratherthan a lengthy prison term. He received the benefit ofa first time offender waiver that lowered his sentence to thirty-three days' confinement, ratherthan the maximum five years that the charge carried. Ifthetrial court committed any error, Joshua Hershaw encouraged the error. Under the doctrine ofinvited error, aparty may not materially contribute to an erroneous application oflaw at trial and then complain ofit on appeal. 

### In re Dependencyof K.R., 128 Wn.2d 129, 147,904 P.2d 1132 (1995). The invited errordoctrine precludes a criminal defendant from seeking appellate review ofan errorhe or she helped create,

even when the alleged error involves constitutional rights. 

### State v. 

### Studd, 137 Wn.2d 

### 7No. 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 ofinvited errorprohibits a party from settingup an error attrial and then complaining ofit on appeal. State v. Wakefield, 130 Wn.2d464,475, 925 P.2d 183 (1996); State v. Pam, 101 Wn.2d 507,511,680P.2d 762 (1984), overruled

on othergrounds byState 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 thathe requested the treatment. Wereject this distinction. We consider a party's informingthe trial court ofa desire as tantamounttorequesting the subject ofthe desire. CONCLUSION We affirm Joshua Hershaw's sentence, including the community custody condition ofmental health treatment. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, butitwill be filed for public recordpursuantto RCW 2.06.040.

WE CONCUR:

8