State Of Washington, Respondent V. Pete Evert Essex, Appellant

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STATE OF ' VASH r GTor;{
BY
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
v.
PETE EVERT ESSEX,
DIVISION II
Respondent,
Appellant.
No. 44853 -0 -II
UNPUBLISHED OPINION
BJORGEN, A.C. J. — Pete Evert Essex appeals a special community custody condition
imposed in his judgment and sentence, claiming it is unconstitutionally vague. The State
concedes error. We accept this concession and remand this matter so that the trial court may
strike the condition 6 at issue.
FACTS
A jury found Essex guilty of misdemeanor domestic violence fourth -degree assault.
Essex had been drinking before committing this crime. At sentencing, the trial court imposed
several community custody conditions, including Special Condition 6, which stated that
d] efendant shall not possess or use any paraphernalia that can be used for the ingestion or

No. 44853 -0 -II
processing of controlled substances." Clerk' s Papers at 13 ( emphasis added). Essex appeals the
imposition of this condition.
ANALYSIS
Essex challenges Special Condition 6 of his judgment and sentence as unconstitutionally
vague, citing State v. Valencia, 169 Wn.2d 782, 239 P. 3d 1059 ( 2010). He argues that the
paraphernalia condition is unconstitutionally vague because its broad wording invites arbitrary
enforcement.
The State correctly concedes this error because the language of the prohibition at issue in
Valencia and that of Special Condition 6 is substantially the same. In Valencia, the Washington
Supreme Court held the following condition of sentence unconstitutionally vague:
Defendant shall not possess or use any paraphernalia that can be used for the
ingestion or processing of controlled substances or that can be used to facilitate
the sale or transfer of controlled substances including scales, pagers, police
scanners, and hand held electronic scheduling and data storage devices.
169 Wn.2d at 785 ( emphasis added). The Supreme Court reasoned that, "[ b] ecause the condition
might potentially encompass a wide range of everyday items, it `does not provide ascertainable
standards of guilt to protect against arbitrary enforcement. ' Valencia, 169 Wn.2d at 794
quoting State v. Bahl, 164 Wn.2d 739, 753, 193 P. 3d 678 ( 2008)). We agree that, given its
similarity to the condition in Valencia, Special Condition 6 is similarly open to arbitrary
enforcement and therefore constitutionally infirm.
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No. 44853 -0 -II•
CONCLUSION
We accept the State' s concession and remand to the trial court to strike Special Condition
6 in the judgment and sentence as unconstitutionally vague.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
We concur:
HUNT, J.
LEE,
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