State Of Washington, Respondent V. Johnny Lee Miller, Appellant

FILE
COURT OF APPEALS
O Si0N 11 •
X01 JUL - 8 AM 18: 18
IN THE COURT OF APPEALS OF THE STATEAMAAMIWIN
DIVISION II BY
STATE OF WASHINGTON,
Respondent,
v.
JOHNNY LEE MILLER,
Appellant.
DEPUTY
No. 44656 -1 - II
UNPUBLISHED OPINION
WORSWICK, J. — Johnny Lee Miller appeals his sentence for first degree assault with a
deadly weapon enhancement. Miller alleges that the trial court exceeded its sentencing authority
by ordering a mental health evaluation and a substance abuse evaluation without evidence of
mental health issues or evidence that drug or alcohol use contributed to the commission of the
offense. Miller also alleges that the trial court erred by imposing a $ 1, 500 fee for a court
appointed attorney and " trial per diem." The State concedes that the trial court exceeded its
sentencing authority by ordering the mental health and substance abuse evaluations. We accept
the State' s concession and remand to the trial court to strike the improper conditions. We affirm
the $ 1, 500 fee for a court appointed attorney and " trial per diem."
FACTS
On February 27, 2013, a jury found Miller guilty of first degree assault while armed with
a deadly weapon. The trial court sentenced Miller to 226 months of total confinement followed
by 36 months of community custody. As a community custody condition, the trial court ordered
that Miller undergo mental health and substance abuse evaluations. The trial court also imposed
a $ 1, 500 fee for " court appointed attorney and trial per diem." Clerk' s Papers at 9.

No. 44656 -1 - II
ANALYSIS
Mental Health Evaluation
Miller asserts that the trial court exceeded its statutory sentencing authority by ordering
Miller to undergo a mental health evaluation without first complying with the requirements of
RCW 9. 94B. 080. The State agrees that the trial court did not comply with RCW 9. 94B. 080, and
concedes the condition requiring Miller to undergo a mental health evaluation be stricken from
the judgment and sentence.
RCW 9. 94B. 080 states:
The court may order an offender whose sentence includes community placement
or community supervision to undergo a mental status evaluation and to participate
in available outpatient mental health treatment, if the court finds that reasonable
grounds exist to believe that the offender is a mentally ill person as defined in
RCW 71. 24.025, and that this condition is likely to have influenced the offense.
An order requiring mental status evaluation or treatment must be based on a
presentence report and, if applicable, mental status evaluations that have been
filed with the court to determine the offender' s competency or eligibility for a
defense of insanity. The court may order additional evaluations at a later date if
deemed appropriate.
Miller and the State agree that the trial court never ordered a presentence report. Therefore, the
trial court did not comply with the requirements of RCW 9.94B.080 when ordering Miller to
undergo a mental health evaluation as a condition of community custody. The State' s
concession is proper and we accept it. Accordingly, we remand to the trial court to strike the
community custody condition requiring Miller to undergo a mental health evaluation.
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No. 44656 -1 - II
Substance Abuse Evaluation
Miller also argues that the trial court exceeded its statutory sentencing authority by
ordering him to undergo a substance abuse evaluation as a condition of community custody.
Under RCW 9. 94A.703( 3)( c) the trial court has the authority to impose " crime- related treatment
or counseling services." The State concedes that there was no evidence at trial or sentencing that
indicated Miller' s crime was related to substance abuse, and the trial court exceeded its
sentencing authority. Because there must be evidence establishing that substance abuse
contributed to or was related to the offense, the trial court exceeded its authority by ordering
Miller to undergo a substance abuse evaluation as a condition of community custody.
Accordingly, we accept the State' s concession and remand to the trial court to strike the
community custody condition requiring Miller to undergo a substance abuse evaluation.
Court Appointed Attorney and Trial per Diem Fee
Miller contends that the trial court exceeded its statutory authority because the trial court
may not impose costs for Miller' s constitutionally guaranteed jury trial in excess of the $250 jury
trial fee expressly authorized by statute. However, the State explains that because the " trial per
diem" fee is included in the portion of legal financial obligations for court appointed attorney
costs, the legal financial obligation is authorized by RCW 9. 94A.030( 30). RCW 9. 94A.030( 30)
authorizes the trial court to impose legal financial obligations for " court appointed attorneys'
fees, and costs of defense[.]" The $ 1, 500 legal financial obligation is assigned to " court
appointed attorney and trial per diem" which supports the State' s assertion that the trial per diem
is part of the cost of a court appointed attorney when a case proceeds to trial. Because the costs
of a court appointed attorney are statutorily authorized legal financial obligations, the trial court
did not exceed its statutory authority to impose legal financial obligations.
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No. 44656 -1 - II
We accept the State' s concessions regarding the mental health and substance abuse
evaluations and remand to the trial court to strike these conditions. But, we affirm the $ 1, 500
court appointed attorney and trial per diem" fee imposed by the trial court.
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:
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