State of Washington v. Victor P. Hudak
This text of State of Washington v. Victor P. Hudak (State of Washington v. Victor P. Hudak) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
FILED MARCH 4, 2025 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 39575-8-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) VICTOR P. HUDAK, ) ) Appellant. )
LAWRENCE-BERREY, C.J. — As part of his sentence for first degree child
molestation, the trial court ordered Victor Hudak to comply with several community
custody provisions and to pay various legal financial obligations. Hudak argues that
several conditions exceed the court’s statutory authority. The State concedes on all
issues. We accept the State’s concessions and direct the sentencing court to strike five
conditions and modify one.
FACTS
A jury found Victor Hudak guilty of first degree child molestation, and the trial
court sentenced him on February 17, 2023. The court ordered Hudak to pay a $500 No. 39575-8-III State v. Hudak
victim penalty assessment (VPA) and a $100 DNA collection fee. It also found him
indigent. As part of Hudak’s sentence, the court also imposed several community custody
conditions, including the following that are challenged on appeal:
(a) MANDATORY CONDITIONS: Defendant shall comply with the following conditions during the term of community placement/custody: .... (5) Pay supervision fees as determined by the Department of Corrections; .... (b) OTHER CONDITIONS: Defendant shall comply with the following other conditions during the term of community placement/custody: .... 2. Pay for any fees that may be generated from counseling for the victim(s). .... 5. Submit to and pay for any polygraph examination, as directed by his Supervising Officer or the sexual deviancy treatment provider. .... 11. Submit to drug testing as directed by assigned [community corrections officer].
Clerk’s Papers (CP) at 163-64. Hudak did not object to the costs noted above or the
above conditions.
ANALYSIS
Hudak contends (1) the counseling costs in “Other Condition” 2 are not authorized
by statute, (2) the polygraph testing provision in Other Condition 5 exceeds the limits
2 No. 39575-8-III State v. Hudak
allowed by statute, (3) the mandatory drug testing in Other Condition 11 is not crime
related, (4) community custody supervision fees such as “Mandatory Condition” 5 are no
longer allowed by statute, (5) the requirement that he pay for polygraph examinations is
merely a more specific form of an impermissible supervision fee, and (6) his legal
financial obligations should be struck because he is indigent. The State properly
concedes all issues.
A. REVIEWABILITY
Community custody conditions may be challenged for the first time on appeal.
State v. Wallmuller, 194 Wn.2d 234, 238, 449 P.3d 619 (2019). An offender’s
preenforcement challenge to community custody conditions is ripe if the issues raised are
primarily legal, do not require further factual development, and the challenged action is
final. State v. Bahl, 164 Wn.2d 739, 751, 193 P.3d 678 (2008). The State, properly, does
not dispute that Hudak’s challenges are reviewable.
B. STATUTORY AUTHORITY
Preliminarily, we emphasize that a court’s authority to impose community custody
conditions is statutory. RCW 9.94A.703 is the statutory authority. It is this statute where
an analysis of each community custody condition must start.
3 No. 39575-8-III State v. Hudak
C. CHALLENGED CONDITIONS
1. Victim counseling costs
A trial court may order reimbursement for a victim’s actual expenses incurred for
treatment of their injuries. RCW 9.94A.750(3)(a). The statute does not limit
reimbursement to treatment of physical injuries. By implication, it includes treatment for
nonphysical injuries, such as counseling.
Generally, a court must determine the restitution amount within 180 days of
sentencing. RCW 9.94A.753(1). In addition, a court may not delegate its responsibility
of setting the amount of restitution to another agency. State v. Forbes, 43 Wn. App. 793,
800, 719 P.2d 941 (1986). We have previously reversed a trial court’s order for payment
of a victim’s counseling costs because the amount of reimbursable costs had not been
determined within 180 days of sentencing. State v. Land, 172 Wn. App. 593, 604, 295
P.3d 782 (2013).
Our record does not show that the victim’s counseling costs were determined
within 180 days of sentencing. If not, reimbursement for those costs is not authorized,
and the condition must be struck.
4 No. 39575-8-III State v. Hudak
2. Polygraph testing
RCW 9.94A.703(3)(f) authorizes trial courts to order an offender to comply with
crime-related prohibitions, including performing acts necessary to monitor an offender’s
compliance with its orders. RCW 9.94A.030(10). This authority justifies polygraph
testing limited to monitoring the offender’s compliance with the community placement
order, it may not be used as a tool to discover evidence of other crimes, past or present.
State v. Combs, 102 Wn. App. 949, 952-53, 10 P.3d 1101 (2000).
Here, there is no limit on polygraph testing. This condition is broader than
authorized by RCW 9.94A.703(3)(f). We direct the trial court to modify this condition
consistent with Combs.
3. Drug testing
There is no stand-alone provision in RCW 9.94A.703 that authorizes drug testing.
Presumably, drug treatment could be ordered under RCW 9.94A.703(3)(c) if there was a
factual nexus between the crime and drugs and then drug testing could be ordered to
monitor compliance with treatment requirements. But here, there is no evidence that
drugs played a role in the crime and the trial court, appropriately, did not order drug
testing. In the absence of a valid basis to impose drug treatment, there is no authority for
imposing drug testing. We direct the trial court to strike the drug testing condition.
5 No. 39575-8-III State v. Hudak
4. Community custody supervision fees
In State v. Wemhoff, we noted that the legislature had amended the community
custody statute to remove a trial court’s authority to impose supervision fees. 24 Wn.
App. 2d 198, 200, 202, 519 P.3d 297 (2022). Here, the trial court erred by imposing
those fees after the statute was amended.
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