State Of Washington, V. Antonio Ortega ( 2022 )

Filed
Washington State
Court of Appeals
Division Two
March 29, 2022
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 54503-9-II
Respondent,
v.
ANTONIO LORENZO ORTEGA, PUBLISHED OPINION
Appellant.
GLASGOW, A.C.J.—Antonio Lorenzo Ortega challenges a condition of his community
custody allowing a community corrections officer (CCO) to establish crime-related prohibitions.
He asserts this condition is an impermissible delegation of sentencing authority, not crime related,
and unconstitutionally vague. Ortega also challenges the imposition of discretionary legal financial
obligations (LFOs) in his judgment and sentence as contrary to the sentencing court’s stated
intention to waive all nonmandatory LFOs.
The Department of Corrections has statutory authority to impose crime-related conditions.
The sentencing court did not abuse its discretion when it recognized this authority already granted
by statute, and the recognition was not unconstitutionally vague. Because the sentencing court
stated its intent to waive all nonmandatory LFOs, we remand for the court to strike the supervision
fees, community placement fees, and collection costs from Ortega’s judgment and sentence, but
we otherwise affirm.
No. 54503-9-II
FACTS
A jury found Ortega guilty of four counts of drive-by shooting. The sentencing court found
that all four counts involved the same criminal conduct, and it imposed a sentence of 12 months
and 1 day of confinement. It also sentenced Ortega to 18 months of community custody.
During the sentencing hearing, the court stated, “I’m going to waive the nonmandatory
[LFOs].” Verbatim Report of Proceedings (VRP) (Mar. 24, 2020) at 25. The sentencing court
imposed the crime victim assessment fee and DNA collection fee, which the State described as
“not waivable,” and agreed that this would amount to $600 of obligations. Id. It crossed out the
$200 criminal filing fee listed on Ortega’s judgment and sentence.
Within Ortega’s judgment and sentence, boilerplate language regarding community
custody required him to “pay supervision fees as determined by” the Department and to “abide by
any additional conditions imposed by [the Department] under RCW 9.94A.704 and .706.” Clerk’s
Papers (CP) at 108. Boilerplate language also required Ortega to “pay the costs of services to
collect unpaid [LFOs] per contract or statute.” CP at 106. Appendix F to the judgment and sentence
also required that Ortega “pay community placement fees as determined by” the Department. CP
at 113.
Where the judgment and sentence stated that Ortega must “comply with the following
crime-related prohibitions,” the sentencing court wrote, “Per CCO.” CP at 108. Where appendix
F repeated that Ortega must “comply with any crime-related prohibitions,” the sentencing court
again wrote, “Per CCO.” CP at 113.
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No. 54503-9-II
Ortega challenges the condition of community custody allowing a CCO to establish crime-
related prohibitions, as well as the imposition of supervision fees, community placement fees, and
collection costs.
ANALYSIS
I. CRIME-RELATED PROHIBITIONS: PER CCO
Ortega explains that by “failing to define the condition [to comply with crime-related
prohibitions], the court grants the [CCO] unfettered authority to define the content of the
restriction,” and he argues this was “an impermissible delegation of authority.” Br. of Appellant
at 1. Ortega also argues the condition requiring him to comply with “‘crime-related prohibitions:
Per CCO’” is unconstitutionally vague because it provides “no discernable standards and no
protection against arbitrary enforcement.” Id. at 4. We disagree that the sentencing court delegated
authority, and we hold that this condition is not unconstitutionally vague.
A. RAP 2.5(a)
The State argues Ortega’s challenge is not reviewable because he failed to object to this
condition below. This court may refuse to review claims of error that were not first raised to the
trial court. RAP 2.5(a). The rule contains an exception, however, for claims of “manifest error
affecting a constitutional right.” RAP 2.5(a)(3). Thus, Ortega may raise a constitutional vagueness
challenge to a condition of community custody for the first time on appeal. See State v. Padilla,
190 Wn.2d 672, 677, 416 P.3d 712 (2018).
Whether Ortega may argue for the first time on appeal that the sentencing court
impermissibly delegated its authority to impose crime-related prohibitions is a more complicated
question. A defendant may argue for the first time on appeal that their sentence was “imposed
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No. 54503-9-II
without statutory authority.” State v. Julian, 102 Wn. App. 296, 304, 9 P.3d 851 (2000); see also
State v. Jones, 118 Wn. App. 199, 204, 76 P.3d 258 (2003) (permitting a defendant to challenge
multiple conditions of community custody on appeal “even though he failed to object below”).
However, Division One of this court has refused to consider an argument that “the sentencing court
improperly delegated its duty to define crime-related prohibitions” for the first time on appeal
because any improper delegation affected a statutory right, rather than a constitutional one. State
v. Smith, 130 Wn. App. 721, 728, 123 P.3d 896 (2005). This court has also previously described
the propriety of a trial court’s delegation of sentencing authority as a “statutory question.” State v.
McWilliams, 177 Wn. App. 139, 153, 311 P.3d 584 (2013). The RAP 2.5(a)(3) exception is limited
to constitutional questions.
Because the propriety of any delegation is a statutory question involving an exercise of the
sentencing court’s discretion, this court has discretion to decline to consider the argument for the
first time on appeal under RAP 2.5(a)(3). See Smith, 130 Wn. App. at 728. But because Ortega’s
delegation argument, “crime-related” argument, and constitutional vagueness argument are
interrelated, we exercise our discretion under RAP 2.5(a) and consider all of these claims together.
B. Crime-Related Conditions and Delegation of Sentencing Authority
Ortega argues the condition requiring him to comply with “‘crime-related prohibitions: Per
CCO’” is too vague and ambiguous to be sufficiently crime related. Br. of Appellant at 9 (emphasis
omitted) (quoting CP at 108). He contends imposing “crime-related prohibitions” is a matter of
judicial discretion and the sentencing court improperly “abdicated its responsibility and delegated
an entire category of conditions to the CCO.” Id. at 10. Because it is “impossible to evaluate in
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No. 54503-9-II
advance whether the conditions the CCO ultimately chooses to enforce will be crime-related,” he
argues “the problem circles back to vagueness.” Id. We disagree.
Under the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, “the court may
order an offender to . . . [c]omply with any crime-related prohibitions” in its discretion “[a]s part
of any term of community custody.” RCW 9.94A.703(3)(f) (emphasis added); see also RCW
9.94A.505(9) (granting the court authority to impose these conditions “[a]s a part of any
sentence”). The SRA specifically defines a “crime-related prohibition” as “an order of a court
prohibiting conduct that directly relates to the circumstances of the crime for which the offender
has been convicted.” RCW 9.94A.030(10) (emphasis added); see also In re Pers. Restraint of
Golden, 172 Wn. App. 426, 432, 290 P.3d 168 (2012) (noting that the definition of “‘crime-related
prohibition’” refers specifically to “‘an order of a court,’” so it does not apply to the Department
(quoting former RCW 9.94A.030(13) (2006))).
However, “community custody” is, by definition, a portion of the offender’s sentence that
is “served in the community subject to controls placed on the offender’s movement and activities
by the [D]epartment.” RCW 9.94A.030(5). The sentencing court must require that the offender
“comply with any conditions imposed by the [D]epartment under RCW 9.94A.704.” RCW
9.94A.703(1)(b) (emphasis added). RCW 9.94A.704(2)(a) allows the Department to “establish and
modify additional conditions of community custody based upon the risk to community safety.”
Additional conditions imposed by the Department will be upheld “unless the reviewing officer
finds that [the condition] is not reasonably related to the crime of conviction, the offender’s risk
of reoffending, or the safety of the community.” RCW 9.94A.704(7)(b) (emphasis added). Because
the Department is not limited to imposing crime-related conditions, its authority to impose
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No. 54503-9-II
conditions of community custody is actually broader than the sentencing court’s authority. Golden,
172 Wn. App. at 433.
Here, the State argues that “[a]lthough RCW 9.94A.704, unlike RCW 9.94A.703, does not
specifically provide for [the Department]’s imposition of ‘crime-related prohibitions,’ the statute
read as a whole clearly conveys that [the Department] is authorized to impose conditions related
to the offender’s crime.” Br. of Resp’t at 6. According to the State, the challenged community
custody condition “merely communicates [the Department]’s legislatively-provided authority to
set crime-related conditions.” Id. at 7. The State’s position is consistent with prior opinions of this
court. For example, we have previously upheld a requirement to comply with “crime-related
prohibitions ‘per [Department]/CCO’” because the Department has statutory authority under RCW
9.94A.704 to determine “the specifics” of community custody. McWilliams, 177 Wn. App. at 146,
154. We hold the sentencing court’s recognition of the Department’s authority to impose crime-
related conditions is consistent with the Department’s existing authority under the SRA.
C. Constitutional Vagueness
The federal and state constitutions require that individuals “be afforded fair warning of
proscribed conduct.” State v. Hai Minh Nguyen, 191 Wn.2d 671, 678, 425 P.3d 847 (2018). This
requirement applies to conditions of community custody. In re Pers. Restraint of Sickels, 14 Wn.
App. 2d 51, 64, 469 P.3d 322 (2020). A condition “is unconstitutionally vague if (1) it does not
sufficiently define the proscribed conduct so an ordinary person can understand the prohibition or
(2) it does not provide sufficiently ascertainable standards to protect against arbitrary
enforcement.” Padilla, 190 Wn.2d at 677.
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No. 54503-9-II
The sentencing court required Ortega to comply with “crime-related prohibitions: Per
CCO.” CP at 108; see also CP at 113. An ordinary person can understand that this means Ortega
must comply with additional conditions imposed by his CCO under RCW 9.94A.704. The
sentencing court did not grant Ortega’s CCO unbridled discretion to proscribe conduct because the
Department’s authority is defined by statute.1 Thus, this condition is not unconstitutionally vague.
Moreover, the SRA establishes an avenue for review of additional conditions imposed by
CCOs to help protect against arbitrary restrictions. When an offender receives notice that an
additional condition is being imposed, they “may request an administrative review under rules
adopted by the [D]epartment” before the close of the next business day. RCW 9.94A.704(7)(b).
“The condition shall remain in effect unless the reviewing officer finds that it is not reasonably
related to the crime of conviction, the offender’s risk of reoffending, or the safety of the
community.” Id. If there is an unreasonable exercise of discretion in a condition’s application, the
offender may bring a challenge based on those particular facts through a personal restraint petition.
See Sickels, 14 Wn. App. 2d at 62-63.
Finally, although we conclude the sentencing court did not err when it imposed a condition
requiring Ortega to comply with “crime-related prohibitions: Per CCO,” we recognize there are
practical concerns with this practice. CP at 108; see also CP at 113. There is potential for confusion
between the different sources of authority for the sentencing court and the Department regarding
the imposition of community custody provisions.
1
Notably, Ortega does not raise a facial challenge to RCW 9.94A.703’s or .704’s broad
authorization for the Department to impose conditions.
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No. 54503-9-II
Both the sentencing court and the Department have the authority to impose community
custody provisions, but the authority arises from separate statutes. A sentencing court’s authority
is limited to those conditions of community custody that are crime related. RCW 9.94A.703(3)(c),
(d), (f); see also RCW 9.94A.505(9). As explained above, the Department’s authority is not so
limited. See Golden, 172 Wn. App. at 432-33 (discussing the distinction between the court’s
authority and the Department’s broader authority under RCW 9.94A.704).
The sentencing court’s penning in “Per CCO” for crime-related community custody
provisions could be misread as conflating these two sources of authority. As noted above, the
boilerplate language on the preprinted judgment and sentence form already required Ortega to
comply with the Department’s community custody conditions pursuant to RCW 9.94A.704. This
preprinted language immediately preceded the crime-related prohibitions blank filled in by the
sentencing court. In other words, the judgment and sentence already explicitly set forth Ortega’s
obligation to follow conditions imposed under the Department’s authority, regardless of any “Per
CCO” addition penned in by the sentencing court.
Looking at the judgment and sentence standard form as a whole, the blank section where
the sentencing court penned in “Per CCO” is designed as a place for the court, if it so chooses, to
include its own independently determined, specific, crime-related prohibitions consistent with its
own separately derived authority. By simply filling the blank with “Per CCO,” the sentencing court
redundantly referenced the Department’s authority. While perhaps not error, it was unnecessary
and arguably created confusion as to the source of authority for the sentencing court’s notation.
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No. 54503-9-II
II. SUPERVISION FEES AND COLLECTION COSTS
Ortega argues this court should strike the supervision fees, placement fees, and collection
costs from his judgment and sentence because the record shows the sentencing court “intended to
waive all nonmandatory [LFOs].” Reply Br. of Appellant at 2. We agree.
The State argues Ortega failed to preserve this issue when he failed to object to the LFOs
below. Because he failed to object to the imposition of these LFOs below, Ortega is not entitled to
review as a matter of right. RAP 2.5(a); State v. Blazina, 182 Wn.2d 827, 832, 344 P.3d 680 (2015).
Nevertheless, appellate courts “regularly exercise their discretion to reach the merits of
unpreserved LFO arguments” because LFOs can create a significant hardship for indigent
defendants and severely hinder their reintegration into society. State v. Glover, 4 Wn. App. 2d 690,
693, 423 P.3d 290 (2018); see also Blazina, 182 Wn.2d at 835 (exercising discretion to review an
unpreserved LFO claim in light of “[n]ational and local cries for reform of broken LFO systems”).
We therefore exercise our discretion and review Ortega’s claim.
“Unless waived by the court, as part of any term of community custody, the court shall
order an offender to . . . [p]ay supervision fees as determined by the [D]epartment.” RCW
9.94A.703(2)(d). Because supervision fees are waivable, they are a discretionary LFO. State v.
Spaulding, 15 Wn. App. 2d 526, 536, 476 P.3d 205 (2020). The judgment and sentence indicates
that community placement was a precursor to community custody. See CP at 108 (explaining that
community placement applies to offenses committed prior to July 1, 2000).
Similarly, “[t]he superior court may, at sentencing or at any time within ten years, assess
as court costs the moneys paid for remuneration for services or charges paid to collection agencies
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No. 54503-9-II
or for collection services.” RCW 36.18.190 (emphasis added). Because the court is not required to
assess collection costs as court costs, this is also a discretionary LFO.
The Washington Supreme Court recently concluded that the sentencing court “committed
procedural error by imposing a discretionary fee where it had otherwise agreed to waive such fees”
and struck the fee. State v. Bowman, 198 Wn.2d 609, 629, 498 P.3d 478 (2021). In Bowman, the
court indicated an intent to waive “‘any . . . non-mandatory fees and interest’” during sentencing,
but it nevertheless imposed discretionary supervision fees in the written judgment and sentence.
Id. “Where the record demonstrates that the trial court intended to impose only mandatory LFOs
but inadvertently imposed supervision fees, it is appropriate for us to strike the condition of
community custody requiring these fees.” State v. Peña Salvador, 17 Wn. App. 2d 769, 791-92,
487 P.3d 923, review denied, 198 Wn.2d 1016 (2021); see also State v. Dillon, 12 Wn. App. 2d
133, 152, 456 P.3d 1199, review denied, 195 Wn.2d 1022 (2020) (striking supervision fees where
it was apparent from the record that “the trial court intended to waive all discretionary LFOs, but
inadvertently imposed supervision fees because of its location in the judgment and sentence”).
Because collection costs are also discretionary LFOs, we can presume that it is similarly
appropriate for us to strike collection costs where the sentencing court expressed an intent to waive
all nonmandatory LFOs, but nevertheless imposed discretionary collection costs through
boilerplate language in the judgment and sentence.
Here, the sentencing court specifically stated, “I’m going to waive the nonmandatory
[LFOs].” VRP (Mar. 24, 2020) at 25. Thus, the imposition of the supervision fees, placement fees,
and collection costs—all discretionary LFOs—in Ortega’s judgment and sentence appears to have
been inadvertent. We remand for the court to strike these conditions from Ortega’s judgment and
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No. 54503-9-II
sentence. See Bowman, 198 Wn.2d at 629; Peña Salvador, 17 Wn. App. 2d at 791-92; Dillon, 12
Wn. App. 2d at 152.
CONCLUSION
We hold that the sentencing court’s recognition of the Department’s authority to impose
crime-related conditions of community custody is consistent with the Department’s statutory
authority and is not unconstitutionally vague. We remand for the sentencing court to strike the
supervision fees, placement fees, and collection costs from Ortega’s judgment and sentence, but
we otherwise affirm.
Glasgow, A.C.J.
We concur:
Veljacic, J.
Price, J.
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