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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 82345-1-I ) Respondent, ) DIVISION ONE ) v. ) PUBLISHED OPINION ) CHRISTIAN JAMES GREENFIELD, ) ) Appellant. ) )
HAZELRIGG, J. — Christian J. Greenfield appeals from a judgment and
sentence after entry of a guilty plea. He alleges the trial court failed to follow
statutory procedure in denying his request to impose a “Parent [Offender]
Sentencing Alternative” (POSA).1 He also seeks an order vacating his conviction
for possession of a controlled substance pursuant to State v. Blake2 and requests
various corrections to his judgment and sentence (J&S). The State concedes error
as to the Blake issue and challenges raised based on the J&S. We remand for the
court to consider Greenfield’s request for a POSA within the framework required
by statute. We further vacate the conviction for possession of a controlled
substance, and direct that the trial court correct the J&S consistent with this
opinion.
1 This sentencing alternative is also referred to as a Family Offender Sentencing Alternative, or FOSA. 2 197 Wn.2d 170, 481 P.3d 521 (2021). For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82345-1-I/2
FACTS
On March 22, 2018, Christian Greenfield was charged with possession of a
stolen vehicle and possession of a controlled substance. He entered a guilty plea
to both charges on July 11, 2018, which was accepted by the court. Greenfield
requested a “Parent [Offender] Sentencing Alternative” (POSA), and the court
ordered a risk assessment report from the Department of Corrections (DOC), along
with documentation from the Department of Social and Health Services (DSHS)
Children’s Administration.3 The court ordered numerous continuances in order to
monitor Greenfield’s progress as he completed treatment, eventually making a
sentencing decision on February 4, 2021. The court ultimately denied Greenfield’s
request, finding that although Greenfield was statutorily eligible because he had
physical custody of his son at the time of sentencing, the court was “absolutely
convinced” that there would be an objection “based on [Greenfield’s] history.”
The court instead imposed a 50-month prison-based “Drug Offender
Sentencing Alternative” (DOSA), the terms of which include a number of
community custody conditions; condition number six requires Greenfield to “[s]tay
out of drug areas, as defined in writing by the supervising Community Corrections
Officer.” At sentencing, the court reserved on the issue of restitution, but waived
all other legal financial obligations (LFOs) based on a finding of indigency.
However, preprinted language in the judgment and sentence (J&S) orders
Greenfield to pay DOC supervision fees. The J&S also orders Greenfield to pay
3 In July 2018, the Department of Social and Health Services (DSHS) transferred child
welfare responsibilities to the Department of Children, Youth and Families (DCYF). RCW 43.216.906
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interest on LFOs, contrary to statute. Greenfield timely appealed and the court
granted a stay of his sentence pending appeal.
ANALYSIS
I. Parent Sentencing Alternative
Greenfield first challenges the court’s decision not to impose a POSA.
Generally, a judge’s decision to impose an alternative sentence is not reviewable.
See State v. Grayson, 154 Wn.2d 333, 338, 111 P.3d 1183 (2005) (Drug Offender
Sentencing Alternative); State v. Pineda, No.35235-8-III, slip op. at 4 (Wash. Ct.
App. Aug. 16, 2018) (unpublished) https://www.courts.wa.gov/opinions/pdf/
352358_unp.pdf.4 “However, an offender may always challenge the procedure by
which a sentence was imposed.” Grayson, 154 Wn.2d at 338. Trial courts have
“considerable discretion under the SRA,[5] including the discretion to determine if
the offender is eligible for an alternative sentence and, significantly, whether the
alternative is appropriate.” State v. Hender, 180 Wn. App. 895, 900–01, 324 P.3d
780 (2014).
RCW 9.94A.655 states a court considering a POSA “shall request that the
department [of corrections] contact the department of children, youth, and families
to determine if the agency has an open child welfare case or prior substantiated
referral of abuse or neglect involving the offender.” If there is an open child welfare
case or investigation, “the department [of corrections] will provide the release of
4 Unpublished opinions are not binding precedent on this court, but we may utilize them as
“necessary for a reasoned . . . opinion.” GR 14.1(a); (c). We consider the unpublished Pineda case as one of the only cases in Washington analyzing the Parent Offender Sentencing Alternative. 5 Sentencing Reform Act, chapter 9.94A RCW.
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information waiver and request that the department of children, youth, and families
. . . provide a report to the court.” RCW 9.94A.655(4)(a). If the defendant is not
currently involved with DCYF but had previous involvement, “the department [of
corrections] will obtain information from the department of children, youth, and
families on the number and type of past substantiated referrals of abuse or neglect
and report that information to the court.” RCW 9.94A.655(4)(d).
Greenfield argues the court erred in not ordering DCYF to submit a separate
report, rather than submitting its report as part of the risk assessment report
prepared by DOC. He alternatively argues the court erred in failing to ask for an
updated report from DCYF prior to imposing the sentence. He also assigns error
based on the judge’s speculation as to what information might have been provided
in an updated report, and whether DCYF would object to the POSA.
A. Separate Report
RCW 9.94A.655 requires DCYF to submit a report to the court after being
contacted by DOC and provided with the necessary release of information.
Greenfield correctly notes that if there is no open child welfare case, but the
offender was previously involved with DCYF, DOC “will obtain information from the
department of children, youth, and families” rather than DCYF submitting its own
report. If there is an open child welfare case, however, DCYF must “provide a
report to the court.” RCW 9.94A.655(4)(a).
Here, the DOC Community Corrections Officer conducting Greenfield’s risk
assessment for the court wrote, “Copies of the written reports I received from
Children’s Administration (CA) regarding Mr. Greenfield are attached for [the]
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Court [to] review.” Attached to the risk assessment, on DSHS Children’s
Administration letterhead, is a report explicitly completed by the Children’s
Administration. Greenfield does not contest that this report, attached to the larger
DOC report, was substantively completed by DCYF (then DSHS). Another earlier
report was attached as an appendix to Greenfield’s sentencing memorandum, also
on DSHS Children’s Administration letterhead.
Two separate reports, authored by DSHS Children’s Administration, were
submitted to the court. As such, the court complied with the statutory procedure
with regard to requiring reports authored by DCYF.
B. Updated Report
The language of RCW 9.94A.655 requires that “a report” be submitted to
the court by DCYF “within seven business days of the request” from DOC. The
statute also requires DCYF to “[p]rovide a copy of the most recent court order
entered in proceedings . . . pertaining to the offender, and provide a report
regarding whether the offender has been cooperative with services ordered by the
court in those proceedings.” RCW 9.94A.655(4)(a). “[I]f there is no court order or
there has not been court involvement,” DCYF must still submit a report that
includes “[l]ength of time [DCYF] has had an open child welfare case or child
protective services response,” among other things. RCW 9.94A.655(4)(a), (a)(ii).
This statutory language demonstrates the intention of the legislature for a
sentencing court to have timely information when considering a POSA. As this
court has noted, “Situations such as those involving dependent children . . . are
fluid and ever changing.” In re Guardianship of Way, 79 Wn. App. 184, 192, 901
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P.2d 349 (1995). In the year since the last report from DSHS was submitted to the
superior court in Greenfield’s case, many required pieces of information could have
become outdated: the length of time DCYF had an open case, legal status of the
case, the most recent court order, and whether Greenfield was cooperative in
services. See RCW 9.94A.655(4)(a), (a)(ii).
The court appears to have recognized this fact when it ordered an updated
assessment of Greenfield’s POSA eligibility (which necessarily included a current
report from DCYF) at the October 2, 2019 hearing “because the other one is
outdated.” That order for an updated assessment was made nine months after the
initial eligibility assessment by DOC, and report from DCYF, because the court
clearly felt the information contained in the original reports submitted in January
2019 was now stale. However, over 15 months elapsed between the submission
of the updated information in 2019 and Greenfield’s sentencing in February 2021.
If critical information about child welfare and chemical dependency treatment
becomes stale and an inappropriate basis for a sentencing determination after nine
months, it is similarly outdated and improper for that purpose after 15 months. A
court necessarily abuses its discretion if it fails to follow the statutory procedures.
See In re Marriage of Watson, 132 Wn. App. 222, 230, 130 P.3d 915 (2006).
Because the court here failed to order an updated report from DCYF 6 so that its
sentencing determination would be based on current information, it abused its
discretion.
6 While the plain language of RCW 9.94A.655 refers to “a report,” the statute does not
specify that the report may only be submitted in writing. While those other facts are not before us, we do not foreclose the possibility of compliance with this portion of the statute by way of an oral report submitted via the testimony of a DCYF representative or some other alternate means.
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C. Consideration of a Potential DCYF Objection
Finally, Greenfield argues the court abused its discretion by relying on
speculation that DCYF would object to a POSA. In denying a POSA, the court
considered that Greenfield’s mother, who has legal custody of his child, “doesn’t
think that it’s safe allowing the child to be legally placed back with the father,” and
considered Greenfield’s history with the child welfare system. The court believed,
based on this history, that there would be an objection to the sentencing alternative
and denied the POSA request. It stated
Because of the status of the third-party custody action and DSHS being aware of that in resolution of the case, this [c]ourt is absolutely convinced that if that evaluation was updated at this point there would be an objection based on his history. For that basis I’m denying the request.
As a preliminary matter, the record appears to refer to an objection by DOC, which
is tasked under the statute with conducting the risk assessment required for a
POSA. Either way, this was error in three respects. First, the court improperly
speculated that there would be an objection to the POSA, without the benefit of
updated information from either DOC or DCYF. Second, the language of RCW
9.94A.655 does not require the report to include an opinion by DOC or DCYF as
to the propriety of a POSA in a given case, suggesting that the discretion to impose
the sentencing alternative remains solely with the court. Third, this record
demonstrates that the court did not properly consider the factors mandated by the
statute.
While we reverse a sentencing court decision only for an abuse of
discretion, a court abuses its discretion when it relies on unsupported facts. State
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v. Haag, 198 Wn.2d 309, 317, 495 P.3d 241 (2021); see also State v. Arndt, 194
Wn.2d 784, 799, 453 P.3d 696 (2019). A court’s factual findings must be supported
by the record. Haag, 198 Wn.2d at 317. There is nothing in the record before us
to suggest DCYF had ever formally objected to Greenfield’s request for a POSA,
even in the reports it previously submitted in 2019, and the State objected to the
sentencing alternative only on the question of the status Greenfield’s custody of
his son. The December 2019 risk assessment report submitted by DOC, the most
current information before the court regarding the POSA, concluded that
Greenfield was not statutorily eligible based on not having physical custody of his
son, but otherwise opined that he had “mitigating protective factors . . . that
presents [sic] him as a suitable candidate for the FOSA program.” The court’s
conclusion that there would be an objection to the POSA was unsupported by the
record and a sentencing decision based on that determination is therefore an
abuse of discretion.
Even if, as Greenfield argues, DCYF did expressly object to a POSA, that
opinion would not have been binding on the court. RCW 9.94A.655(4)(e) clearly
states
The existence of a prior substantiated referral of child abuse or neglect or of an open child welfare case does not, alone, disqualify the parent from applying or participating in this alternative. The court shall consider whether the child-parent relationship can be readily maintained during parental incarceration, and whether, due to the existence of an open child welfare case, parental incarceration exacerbates the likelihood of termination of the child-parent relationship.
“‘It is well settled that the word “shall” in a statute is presumptively imperative and
operates to create a duty, rather than to confer discretion.’” State v. P.M.P., 7 Wn.
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App. 2d 633, 644, 434 P.3d 1083 (2019) (quoting In re Parental Rights to K.J.B.,
187 Wn.2d 592, 601, 387 P.3d 1072 (2017)). The court was required by statute to
consider whether Greenfield’s relationship with his child could be maintained if he
was incarcerated, and the impact of incarceration on any open child welfare case.
RCW 9.94A.655(3)–(4). The record does not reflect consideration of these
statutory factors. Instead, the court stated that it was denying the request for the
POSA and noted, “I’m going to indicate the reason why, so that way, if there’s an
appeal, the issue can be addressed.”
The only explanation offered by the court for its denial was the indication by
Greenfield’s mother that she was not in favor of returning legal custody to
Greenfield at that point in time and, on that basis, the court was “absolutely
convinced that if that evaluation [by DOC, to include the statutorily required input
from DCYF] was updated at this point there would be an objection based on his
history.” The POSA statute expressly declares that the presence of a current or
past child welfare case does not disqualify a parent from receiving the sentencing
alternative and then sets out the other factors the court must consider in reaching
its sentencing determination. Because the court based its denial only on a
speculative position from DOC and DCYF, which may not have been necessary
had it requested an updated report, it abused its discretion by failing to follow the
statutory procedure. Accordingly, we reverse and remand for further proceedings
consistent with this opinion.
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II. Conviction for Simple Possession of a Controlled Substance
Greenfield next argues his conviction for possession of a controlled
substance should be vacated in light of Blake. We accept the State’s concession
on this issue and remand for the court to vacate this conviction.
III. Legal Financial Obligations
Greenfield further identifies a clerical error in his J&S which imposes a DOC
supervision fee despite the court’s finding of indigency and expressed intent to only
impose mandatory LFOs. He also contends the court erred by imposing interest
on non-restitution LFOs. At the sentencing hearing, the court reserved on the
issue of restitution, but waived all other non-mandatory LFOs. The State concedes
the imposition of supervision fees is a clerical error and asks this court to order the
provision stricken. The State also concedes the court erred in imposing interest
on LFOs.
The State’s concessions on the errors regarding LFOs are well-taken.
“[S]upervision fees are waivable by the trial court” and are therefore “discretionary
LFOs.” State v. Dillon, 12 Wn. App. 2d 133, 152, 456 P.3d 1199 (2020). LFOs,
other than restitution, “no longer accrue interest.” Id. at 153. This has been the
case since June 7, 2018. See former RCW 10.82.090, amended by Laws of 2022,
ch. 260, § 12 (“As of June 7, 2018, no interest shall accrue on nonrestitution legal
financial obligations”). We remand to the superior court to strike the DOC
supervision fees as scrivener’s error and strike the interest provision pursuant to
Former RCW 10.82.090.
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IV. Unconstitutionally Vague Condition of Community Custody
Finally, Greenfield challenges community custody condition number six in
appendix 4.2 of his J&S, which states “Stay out of drug areas, as defined in writing
by the supervising Community Corrections Officer,” as unconstitutionally vague.
The State concedes this issue as well, relying on State v. Irwin, 191 Wn. App. 644,
364 P.3d 830 (2015). In Irwin, this court struck down a similar condition as
unconstitutionally vague. Id. at 652.7 We again accept the State’s concession.
Greenfield asks this court to strike the condition, while the State asks us to either
strike or remand with instructions to “provide clarifying language or an illustrative
list of prohibited locations.’” Id. at 655. We remand and instruct the lower court to
strike the unconstitutional provision.8
Reversed and remanded.
WE CONCUR:
7 The condition in Irwin stated “Do not frequent areas where minor children are known to
congregate, as defined by the supervising CCO.” Id. 8 As Greenfield notes, the Snohomish County Prosecutor’s Office has conceded that this
identical condition is unconstitutionally vague in several other appeals. It would behoove the State, in the interest of judicial economy, to update its standardized forms to avoid repetitive review and remand by this court to correct this clearly erroneous condition. See State v. Baker, No. 80227-5- I, slip op. at 9–11 (Wash. Ct. App. Aug. 2, 2021) (unpublished) https://www.courts.wa.gov /opinions/pdf/802275.pdf; State v. Reamer, No. 78447-1-I, slip op. at 8–9 (Wash. Ct. App. July 29, 2019) (unpublished) https://www.courts.wa.gov/opinions/pdf/784471.pdf; State v. Miller, No. 77994-8-I, slip op. at 14–18 (Wash. Ct. App. Apr. 29, 2019) (unpublished) https://www. courts.wa.gov/opinions/pdf/773348.pdf.
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