State Of Washington, Resp-cross App V. Gustavo Mcdonald, App-cross Resp

• Court: Court of Appeals of Washington
• Decided: November 22, 2021
• Docket: 82086-9
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 82086-9-I

Respondent, DIVISION ONE

v.

MCDONALD, GUSTAVO JEREMY, UNPUBLISHED OPINION DOB: 06/20/1946,

Appellant.

PER CURIAM — A jury found Gustavo Jeremy McDonald guilty of rape of a

child in the first degree based on an offense committed against his step-great-

granddaughter. As a part of his judgment and sentence, the court imposed

community custody condition 17 that orders him to neither “date women nor form

relationships with families who have minor children, as directed by the

supervising Community Corrections Officer.”

McDonald contends that the phrase “form relationships with families” is

unconstitutionally vague because it is not sufficiently clear what type of contact or

interaction is prohibited. He cites an unpublished opinion from Division Two of

this court addressing a similar condition, State v. Robinett, No. 50653-0-II (Wash

Ct. App. Jan. 15, 2019) (unpublished).1 That court stated:

Unlike the term “dating relationship,” which is statutorily defined in RCW 26.50.010(2) and was held by the Nguyen[2] court to be

1 Https://www.courts.wa.gov/opinions/pdf/D2%2050653-0-II%20Unpublished%20 Opinion.pdf. 2 State v. Nguyen, 191 Wn.2d 671, 425 P.3d 847 (2018).

Citations and pin cites are based on the Westlaw online version of the cited material. No. 82086-9-I/2

sufficiently definite to withstand a vagueness challenge, people of ordinary intelligence, including corrections officers charged with enforcing this condition, could reasonably disagree as to when a person forms a relationship with another. Therefore, the condition lacks the definiteness needed to allow ordinary people to understand what conduct is proscribed, and it permits arbitrary enforcement by granting corrections officers broad discretion to determine when an encounter between [the defendant] and another individual has crossed the obscure threshold of forming a relationship.

Robinett, No. 50653-0-II, slip op. at 9.

The State concedes that the phrase “form relationships with families” is

unconstitutionally vague and should be stricken. The concession is well taken.

We agree and remand to the trial court to modify condition 17.

Next, McDonald challenges community custody supervision fees the court

imposed despite his indigence.

Supervision fees are governed by RCW 9.94A.703(2)(d), which provides

that “[u]nless waived by the court, as part of a term of community custody, the

court shall order an offender to . . . [p]ay supervision fees as determined by the

[D]epartment [of Corrections].” Supervision fees are not a “‘cost’” under RCW

10.01.160(3), which may not be imposed against an indigent defendant. See

State v. Spaulding, 15 Wn. App. 2d 526, 536-37, 476 P.3d 205 (2020). However,

because supervision fees are waivable, they are discretionary. RCW

9.94A.703(2)(d); State v. Dillon, 12 Wn. App. 2d 133, 152, 456 P.3d 1199 (2020).

The sentencing court initially indicated that in addition to mandatory legal

financial obligations (LFOs), it would impose a criminal filing fee. Defense

counsel asked the court to find McDonald, who was 74 years old at the time of

sentencing, indigent because he “ha[d] not worked for a long time” and would not

2 be able to work going forward. The court accepted counsel’s representation and

imposed only mandatory LFOs, consistent with its finding of indigence. The court

stated, “[T]o the extent there may be a restitution order entered in this case, I

would prefer your client’s resources go to satisfying that order as opposed to a

court fine.”

The requirement that McDonald “pay supervision fees as determined by”

the Department of Corrections is buried in a lengthy paragraph of the prewritten

judgment and sentence form, in a different section of the judgment from the other

LFOs. The record indicates that the court inadvertently imposed supervision fees

and, in these circumstances, it is appropriate for us to remand to strike the

condition of community custody requiring the fees. State v. Peña Salvador, 17

Wn. App. 2d 769, 791-92, 487 P.3d 923 (citing Dillon, 12 Wn. App. 2d at 152),

review denied, 495 P.3d 844 (2021).3

In addition, under federal law, Social Security benefits cannot be used to

pay legal financial obligations. See 42 U.S.C. § 407(a); State v. Catling, 193

Wn.2d 252, 260, 438 P.3d 1174 (2019). The trial court should also clarify on

remand that McDonald’s LFOs cannot be satisfied through federal Social

Security income.

Finally, McDonald seeks correction of a scrivener’s error in the judgment

and sentence as to the date of the crime. The judgment and sentence reflects

3 The State contends the written judgment and sentence overrides any contradictory oral pronouncement and the court’s failure to address supervision fees does not indicate intent to waive them. Nevertheless, the State suggests that because trial counsel performed deficiently by failing to specifically ask the court to waive supervision fees based on indigence, McDonald should be able to raise the issue on remand. But we do not reach the issue of ineffective assistance because, as explained, it appears to us that the court intended to waive all nonmandatory fees.

3 No. 82086-9-I/4

that the crime took place between August 9, 2007 and October 1, 2015. Both the

third amended information and the jury instructions identify August 9, 2010 as the

beginning of the date range for the crime. On remand, the court should correct

the date of the crime to conform to the information and instructions. See CrR

7.8(a); State v. Makekau, 194 Wn. App. 407, 420-21, 378 P.3d 577 (2016)

(remedy for scrivener’s error in a judgment and sentence is remand to the trial

court for correction).

Accordingly, we remand for the trial court to (1) modify community custody

condition 17 to eliminate the phrase “nor form relationships with families,” (2)

strike community custody supervision fees, (3) clarify that McDonald’s LFOs

cannot be satisfied through federal Social Security income, and (4) correct the

error in the judgment and sentence as to the date of the crime, replacing the start

of the date range of August 9, 2007 with August 9, 2010.

WE CONCUR: