State Of Washington, Resp. v. Mary E. Mazalic, App. ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
DIVISION ONE c/>o
Respondent,
No. 69706-4-1 cr
v.
K£>
UNPUBLISHED OPINION
MARY ELIZABETH MAZALIC, 33»
V?
Appellant. FILED: June 9, 2014 XT
Dwyer, J. — A trial court may impose conditions of community custody
that serve to monitor compliance with other conditions. In this case, the trial
court ordered Mary Mazalic to submit to urinalysis and breath alcohol
examinations as a condition of her community custody. Whereas urinalysis
examinations will monitor compliance with other conditions of Mazalic's
community custody, breath alcohol tests are unrelated to any other condition.
We therefore reverse with respect to the imposition of breath alcohol tests, and
affirm the trial court in all other respects.
I
Mazalic was convicted by a jury of assault of a child in the first degree
(count I),1 criminal mistreatment in the first degree (count II),2 and tampering with
a witness (count III).3 The jury also returned special verdicts on the first two
counts, finding that Mazalic manifested deliberate cruelty toward the victim, that
she knew or should have known that the victim was particularly vulnerable, and
1 RCW9A.36.120.
2 RCW 9A.42.020.
3RCW9A.72.120.
No. 69706-4-1/2
that she abused a position of trust.
Based on the jury's findings, the trial court imposed sentences of 360
months on count I, 120 months on count II, and 12 months on count III, all
sentences to run concurrently. With respect to count I, the trial court also
imposed 36 months of community custody. As conditions of her community
custody, the trial court ordered Mazalic to "[ojbey all municipal, county, state,
tribal and federal laws" and to "[pjarticipate in a mental health evaluation and
abide by any recommended course of treatment, to include a regimen of
prescribed medications, as directed by the supervising Community Corrections
Officer." Community Custody Conditions 3, 12. The trial court did not order
Mazalic to refrain from consuming alcohol or controlled substances.
Nevertheless, the trial court imposed a condition ordering Mazalic to "[pjarticipate
in urinalysis, Breathalyzer, and polygraph examinations as directed by the
supervising Community Corrections Officer, to monitor compliance with
conditions of community custody." Community Custody Condition 15. At the
sentencing hearing, the trial court explained its reasoning for ordering this
condition:
I'm aware that I haven't ordered her not to drink, and I haven't
ordered her not to consume controlled substances, but I have
ordered her to follow all state, local, municipal, and tribal laws. So
number 15 is appropriate to enforce that condition.
Mazalic appeals.
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No. 69706-4-1/3
Mazalic contends that the trial court erred by imposing a community
custody condition to submit to breath alcohol tests. This is so, she asserts,
because this condition could not reasonably be used to monitor her other
community custody conditions. The State concedes that the trial court erred by
ordering Mazalic to participate in breath alcohol examinations. We accept the
State's concession.
"'[Ijmposing conditions of community custody is within the discretion of the
sentencing court and will be reversed if manifestly unreasonable.'" State v.
Sanchez Valencia, 169 Wn.2d 782, 791-92, 239 P.3d 1059 (2010) (quoting State
v. Bahl, 164 Wn.2d 739, 753, 193 P.3d 678 (2008)). A sentence is manifestly
unreasonable "if the court, despite applying the correct legal standard to the
supported facts, adopts a view 'that no reasonable person would take,' and
arrives at a decision 'outside the range of acceptable choices.'" State v. Rohrich,
149 Wn.2d 647, 654, 71 P.3d 638 (2003) (quoting State v. Lewis, 115 Wn.2d
294, 298-99, 797 P.2d 1141 (1990); State v. Rundquist, 79 Wn. App. 786, 793,
905 P.2d 922 (1995)). "A trial court has authority to impose monitoring
conditions," such as urinalysis and breath alcohol tests, to ensure compliance
with other conditions of community custody. State v. Riles, 135 Wn.2d 326, 342,
957 P.2d 655 (1998) overturned on other grounds by State v. Valencia, 169
Wn.2d 782, 239 P.3d 1059 (2010).
Here, the trial court required Mazalic to "[ojbey all municipal, county, state,
tribal and federal laws." It is not illegal for a person over the age of 21 to possess
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No. 69706-4-1/4
or consume alcohol. As such, submission to breath alcohol tests does not
reasonably monitor whether Mazalic is obeying all laws. Moreover, the trial court
did not restrict Mazalic's consumption of alcohol as a condition of her community
custody. Submission to a breath alcohol test is unrelated to any condition of
Mazalic's community custody. Accordingly, we accept the State's concession
and remand with instructions to the trial court to strike any reference to breath
alcohol testing from the community custody conditions.
Ill
Mazalic further contends that the trial court erred by imposing a
community custody condition to submit to urinalysis examinations. This is so,
she asserts, because this condition could not reasonably be used to monitor her
other community custody conditions. The State asserts that the trial court did not
err by requiring Mazalic to participate in urinalysis testing because consumption
of controlled substances without a prescription is against the law. The State's
analysis is sound.
As previously set forth, "[a] trial court has authority to impose monitoring
conditions," to ensure compliance with other conditions. Riles. 135 Wn.2d at
342. The trial court required Mazalic to "[ojbey all municipal, county, state, tribal
and federal laws." As the State correctly notes, possession of controlled
substances without a prescription, with the exception of certain amounts of
marijuana, is a crime. RCW 69.50.4013. It is also a crime to use drug
paraphernalia to ingest any controlled substance, except marijuana. RCW
69.50.412. A urinalysis examination would allow the supervising Community
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No. 69706-4-1/5
Corrections Officer to determine whether Mazalic had at one time possessed or
ingested a controlled substance. Accordingly, this condition reasonably monitors
whether Mazalic has complied with the condition that she obey all laws.
Moreover, the trial court also ordered Mazalic to "[pjarticipate in a mental
health evaluation and abide by any recommended course of treatment, to include
a regimen of prescribed medications." A urinalysis examination would allow the
supervising Community Corrections Officer to determine whether Mazalic was
abiding by her recommended medication regimen, to the exclusion of other
controlled substances. Thus, the condition to submit to urinalysis examinations
also reasonably monitors whether Mazalic has complied with her mental health
community custody condition.
The trial court did not err by ordering Mazalic to submit to urinalysis
examinations as a condition of her community custody.
Affirmed in part, reversed in part.
We concur:
fertJ". VfctyJR