State Of Washington, Respondent V Eugene Lee Kolb, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 46497-7-II
Respondent, UNPUBLISHED OPINION
v.
EUGENE LEE KOLB,
Appellant.
BJORGEN, A.C.J. — Eugene Lee Kolb appeals his conviction for delivery of a controlled
substance, special verdicts for delivering within 1,000 feet of a school grounds and school bus
stop, and his subsequent sentence.
After considering Kolb’s arguments, we hold that (1) there was sufficient evidence to
support the school grounds enhancement, but not the school bus stop enhancement, (2) the trial
court did not abuse its discretion in admitting exhibit 2, the baggie of methamphetamine, because
Centralia police detective Robin Holt’s and crime lab technician John Dunn’s testimony
established chain of custody, (3) Kolb’s counsel did not perform deficiently by failing to move to
strike evidence after a successful objection, and, therefore, Kolb did not receive ineffective
assistance of counsel, (4) the sentencing court abused its discretion by failing to consider an
exceptional downward sentence because it believed it would always be reversed by an appellate
court, and (5) the sentencing court also abused its discretion when it imposed community
Filed
Washington State
Court of Appeals
Division Two
March 8, 2016

No. 46497-7-II
2
custody conditions requiring a substance abuse evaluation and prohibiting use of nonprescribed
drugs, because no evidence or findings of fact supported the conclusions of law that these
conditions were related to his offense.
Accordingly, we affirm Kolb’s conviction, but vacate his sentence and remand for
resentencing (1) to consider whether an exceptional downward sentence is appropriate, (2) to
strike the school bus stop enhancement, and (3) to strike the improper community custody
conditions.
FACTS
A confidential informant (C.I.) for the police arranged to meet Kolb at a Safeway parking
lot on December 13, 2013 to purchase a quarter ounce of methamphetamine from him for $250.
Holt and other police officers set up surveillance of the Safeway parking lot. Each officer was
shown a Department of Licensing photo of Kolb and was given a description of the C.I.’s
vehicle. Before meeting Kolb, police officers searched the C.I.’s vehicle and person to ensure he
was carrying no drugs. While police officers observed, the C.I. parked his vehicle in the
Safeway parking lot. Kolb, who was with his girlfriend Lisa Balkwill, then pulled up in his
vehicle and contacted the C.I. Kolb gave the C.I. what appeared to be a bag of
methamphetamine, and the C.I. gave Kolb $250.
Shortly afterwards, the C.I. drove back to the pre-arranged location to give Holt the
substance he had received from Kolb. The police searched the C.I.’s person and vehicle again.
After leaving the location, Holt placed the bag with the crystalline substance into an evidence
locker at the Chehalis Police Department. He “filled out the packaging[,] . . . sealed it” and made
a request that the substance be tested at the state patrol crime lab. Report of Proceedings (RP) at
123.

No. 46497-7-II
3
Dunn “received this [evidence] from [the state patrol’s] property and evidence
custodian.” RP at 124. The bag he received included a lab request from Chehalis police, listed a
case number, and contained a case name identifying Kolb. Dunn’s testing of the evidence found
it to be methamphetamine.
Subsequently, the State charged Kolb by a second amended information with delivery of
a controlled substance, methamphetamine. The State also sought enhancements to the charge
and alleged that Kolb had delivered the drugs within 1,000 feet of the perimeter of a school
grounds and a school bus stop. After trial, the jury found Kolb guilty of delivery of a controlled
substance. The jury also entered separate findings that Kolb had delivered the methamphetamine
within 1,000 feet of school grounds and a school bus stop.
At sentencing, Kolb requested an exceptional sentence downward because his mental
condition prevented him from appreciating the wrongfulness of his conduct and because his
girlfriend, Balkwill, was the primary person dealing the methamphetamine. The sentencing
court sentenced Kolb to 12 months, the low end of the standard range, plus a mandatory 24-
month addition for the school grounds and school bus stop enhancements. He also received 12
months of community custody. Among the conditions of community custody was a requirement
to undergo an evaluation for substance abuse treatment and a prohibition from consuming “non-
prescribed drugs.” Clerk’s Papers (CP) at 10-11. Kolb appeals.
ANALYSIS
I. SUFFICIENCY OF EVIDENCE
Kolb argues that there is insufficient evidence to support the school bus stop and the
school grounds sentence enhancements because there was no evidence demonstrating that the
school bus stop and the school grounds existed on December 13, 2013, the date of the drug

No. 46497-7-II
4
delivery. The State concedes that there is insufficient evidence regarding the bus stop, but urges
that there is enough for the school grounds enhancement. We agree with the State that there is
sufficient evidence to uphold the school grounds enhancement, and we accept the State's
concession that there was insufficient evidence to support the school bus stop enhancement.
Evidence is sufficient to support a sentencing enhancement if, viewed in the light most
favorable to the State, it permits a rational trier of fact to find the essential elements of the
enhancement beyond a reasonable doubt. State v. Hennessey, 80 Wn. App. 190, 194, 907 P.2d
331 (1995). A claim of insufficiency admits the truth of the State’s evidence and all reasonable
inferences that a trier of fact can draw from that evidence. State v. Jones, 140 Wn. App. 431,
436, 166 P.3d 782 (2007). All reasonable inferences from the evidence must be drawn in favor
of the State. State v. Eckenrode, 159 Wn.2d 488, 496, 150 P.3d 1116 (2007). Circumstantial
evidence is no less reliable than direct evidence. State v. Peterson, 138 Wn. App. 477, 481, 157
P.3d 446 (2007). We defer to the trier of fact on issues of conflicting testimony, credibility of
witnesses, and the persuasiveness of the evidence. State v. Ague-Masters, 138 Wn. App. 86,
102, 156 P.3d 265 (2007).
RCW 9.94A.533(6)1 governs the category of sentencing enhancements at issue here. It
provides that “[a]n additional twenty-four months shall be added to the standard sentence range
for any ranked offense involving a violation of . . . RCW 69.50.435.” RCW 69.50.4352 provides,
in part, that
[a]ny person who violates RCW 69.50.401 by . . . delivering . . . a controlled
substance listed under RCW 69.50.401 . . . [w]ithin one thousand feet of a school
1 RCW 9.94A.533 was amended in 2013 and 2015. These amendments do not affect the issues
in this matter.
2 RCW 69.50.435 was amended in 2015. This amendment does not affect the issues in this
matter.

No. 46497-7-II
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bus route stop designated by the school district [or] [w]ithin one thousand feet of
the perimeter of the school grounds . . . may be punished by a fine . . . or by
imprisonment.
At trial the State presented two witnesses to support its theory that Kolb had delivered
methamphetamine within 1,000 feet of school grounds. Matthew Hyatt, geographic information
system manager for the county public works department, testified about creating exhibit 1, a map
depicting Centralia Middle School’s location within 1,000 feet of the Safeway. He testified that
the map was an accurate representation of the area surrounding the Safeway and that it properly
depicted the drug transaction as 615 feet from Centralia Middle School. Dale Dunham, assistant
director of transportation for the Centralia School District, testified that Centralia Middle School
is within 1,000 feet of the Safeway where Kolb delivered drugs. When the prosecutor asked
whether the “location of the middle school . . . appear[s] to be correct on that map,” referring to
exhibit 1, Dunham replied in the affirmative. RP at 132.
Significantly, neither Hyatt nor Dunham were asked whether the school existed on
December 13, 2013, the day of Kolb’s drug delivery. The only evidence on this point on the
map is a date noted at the top right of exhibit 1: “Aerial Photo taken 2008 (courtesy of WA Dept
of Natural Resources).” The issue is whether this date stamp, coupled with any inferences that
can be taken from Hyatt’s and Dunham’s testimony, is sufficient evidence for a rational juror to
find that the school grounds existed on December 13, 2013.
In looking at the evidence in the light most favorable to the State, the jury could infer two
premises: (1) the school existed on the date of trial, as established by Dunham’s testimony, and
(2) the school existed in 2008, as shown by the map and its date stamp. These two premises
could rationally lead to a jury conclusion that the school existed in 2013 when Kolb delivered the
drugs, since there was no evidence the school had been demolished and rebuilt in that

No. 46497-7-II
6
period. Accordingly, we find the evidence sufficient to support the school grounds sentencing
enhancement.
Turning to the other sentencing enhancement, we accept the State’s concession that the
evidence is insufficient to establish the presence of the school bus stop on December 13, 2013.
By its nature, the location of a bus stop may be changed much more readily than that of a school.
Although Dunham testified that the map at exhibit 1 properly depicted the school bus stop’s
location, this testimony does not establish when the bus stop existed prior to the time of trial.
Even with the 2008 date stamp on the map, Dunham specifically testified that it was the
“location” that was accurate on the map. Hyatt testified that the map was an accurate
representation of the area surrounding Safeway, but did not say as to what date. For these
reasons, the evidence is insufficient to establish the location of the bus stop on December 13,
2013.
II. CHAIN OF CUSTODY
Kolb argues that the trial court abused its discretion when it ruled that there was
sufficient evidence to establish chain of custody for exhibit 2, the baggie of methamphetamine.
We disagree, because Holt’s and Dunn’s testimony is sufficient to demonstrate that the item
Kolb gave to the C.I. is the same item Dunn tested in the crime lab.
We review a trial court’s decision to admit evidence for an abuse of discretion. State v.
Garcia, 179 Wn.2d 828, 846, 318 P.3d 266 (2014). A trial court abuses its discretion where its
decision is manifestly unreasonable or based on untenable grounds or reasons. Id. The trial
court is necessarily vested with a wide latitude of discretion in determining admissibility, which
will not be disturbed absent clear abuse. State v. Campbell, 103 Wn.2d 1, 21, 691 P.2d 929
(1984).

No. 46497-7-II
7
Before a trial court admits evidence, the proponent must authenticate or identify it “to
support a finding that the matter in question is what its proponent claims.” ER 901(a). Evidence
that is not readily identifiable and is susceptible to alteration by tampering or contamination
requires the proponent to establish a chain of custody “‘with sufficient completeness to render it
improbable that the original item has either been exchanged with another or been contaminated
or tampered with.’” State v. Roche, 114 Wn. App. 424, 436, 59 P.3d 682 (2002) (emphasis
omitted) (quoting United States v. Cardenas, 864 F.2d 1528, 1531 (10th Cir. 1989)). “The
proponent need not identify the evidence with absolute certainty and eliminate every possibility
of alteration or substitution.” Id. at 436. “‘[M]inor discrepancies or uncertainty on the part of
the witness will affect only the weight of the evidence, not its admissibility.’” Id. (alteration in
original) (quoting Campbell, 103 Wn.2d at 21).
The trial court here did not err in finding that there was enough evidence to establish
chain of custody. Holt testified that the C.I. gave him a clear bag with a crystalline substance in
it after receiving it from Kolb. Holt testified that he filled out an evidence sheet with Kolb’s
name, the State as the victim, the date, and the cause number. He sealed it and put it into an
evidence locker to be sent to the state patrol crime lab. He identified the evidence in court and
testified that it appeared to be in the same general condition as when he placed it in evidence,
except for the blue tape placed on the baggie by the crime lab. Dunn testified that Chehalis
police requested a laboratory examination of the substance in the baggie, which had Kolb’s case
number on it. He testified that the baggie was in the same condition it was in when he received
it. He said he received it from the crime lab’s “property and evidence custodian.” RP at 124.
Kolb argues that there was a break in the chain of custody because there was no evidence
demonstrating how the baggie got from the evidence locker at the Chehalis Police Department to

No. 46497-7-II
8
the crime lab’s property and evidence custodian. However, Holt and Dunn both identified Kolb
and his case number as associated with the baggie, and testified that the baggie was in the same
condition as they had left or received it. This evidence was sufficient to show that the same
baggie Holt had put into the evidence locker went to Dunn for testing, even without direct
evidence of how it got to crime lab’s evidence custodian.3 In addition, there was no evidence
that this particular chain of custody involved any circumstances that would make the baggie of
methamphetamine susceptible to alteration beyond the fact that it is a generic looking drug. Cf.
Roche, 114 Wn. App. at 437 (chain of custody not established when crime lab technician stole
heroin from lab, admitted to regularly ingesting heroin on the job, and repeatedly lied about his
activities).
Kolb also argues that “[n]o one testified to how [the baggie] was maintained in evidence
[and] under what controls.” Br. of Appellant at 19. However, there is no authority requiring
testimony as to how the evidence in question was controlled at every stage in the chain of
custody in order to admit the evidence. State v. Picard, 90 Wn. App. 890, 897, 954 P.2d 336
(1998) (“A sufficient foundation for the admission of evidence may be established even without
proof of an unbroken chain of custody.”). Kolb was entitled to challenge the evidence at trial by
cross-examining the officers and asking if they properly secured the evidence and what controls
or safeguards were present. In any event, there is record support that the baggie was secure,
since Holt testified that he “sealed it up” and put it in the evidence locker. RP at 123. The
3 In the context of the confrontation clause, our Supreme Court stated: “Although the
prosecution is indeed obliged to establish the chain of custody, ‘this does not mean that everyone
who laid hands on the evidence must be called.’” State v. Lui, 179 Wn.2d 457, 481, 315 P.3d
493, cert. denied, 134 S. Ct. 2842 (2014) (emphasis added) (quoting Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 311 n.1, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009)). “Rather,
gaps in the chain of custody go to the weight of the evidence and not the admissibility.” Id.

No. 46497-7-II
9
evidence was sufficiently complete to render it improbable that the original item had either been
contaminated or tampered with or exchanged with another. We hold that the trial court did not
abuse its discretion.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Kolb’s ineffective assistance of counsel claim comes from one moment in the trial when
defense counsel failed to move to strike testimony:
[Prosecutor]: I want to ask you about events that took place January 15:
Were you working on that day?
[Holt]: I was.
[Prosecutor]: Do you recall receiving information about the defendant in
this case on that date?
[Holt]: Yes.
[Prosecutor]: What was that information?
[Holt]: That he was coming down to the Lewis County area to
deliver some more methamphetamine.
[Defense counsel]: Objection, your Honor.
THE COURT: That objection is sustained.
RP at 96. Because defense counsel failed to move to strike the testimony that Kolb was coming
down to the Lewis County area to deliver methamphetamine, Kolb argues that this was both
deficient and prejudicial. We disagree.
We review claims of ineffective assistance of counsel de novo. State v. Sutherby, 165
Wn.2d 870, 883, 204 P.3d 916 (2009). To prevail on an ineffective assistance of counsel claim,
the defendant must show both that (1) defense counsel’s representation was deficient and (2) the
deficient representation prejudiced the defendant. State v. Grier, 171 Wn.2d 17, 32-33, 246 P.3d
1260 (2011), cert. denied, 135 S. Ct. 153 (2014). If a defendant fails to establish either prong,
this court need not inquire further. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563
(1996). Representation is deficient if it falls below an objective standard of reasonableness.
Grier, 171 Wn.2d at 33.

No. 46497-7-II
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We begin with a strong presumption that counsel’s representation was effective. Id. The
defendant may demonstrate deficient performance by showing that, based on the record, there
were no legitimate strategic or tactical reasons for the challenged conduct. State v. Emery, 174
Wn.2d 741, 755, 278 P.3d 653 (2012). The law affords trial counsel wide latitude in the choice
of tactics. In re Pers. Restraint of Stenson, 142 Wn.2d 710, 736, 16 P.3d 1 (2001).
The State argues that it was a legitimate tactic to object to Holt’s hearsay, but not strike
the testimony, because it would further emphasize the C.I.’s earlier testimony that Kolb would be
coming back to the area with more methamphetamine. We agree. Even though defense
counsel’s objection was sustained and prevented Holt from continuing that line of testimony,
Kolb contends that defense counsel had already chosen to draw attention to the testimony by his
objection. We find this argument unpersuasive, because, as the State argues, it was reasonable
for defense counsel to not ask the trial court to strike the testimony as it could bring more
attention to what Holt said.4 Kolb fails to meet his burden in showing deficient performance.
Accordingly, his ineffective assistance of counsel claim fails.
IV. EXCEPTIONAL SENTENCE DOWNWARD
Immediately before imposing Kolb’s standard range sentence, the sentencing court took
the position that it essentially had no discretion to give Kolb an exceptional downward sentence
because an appellate court would invariably reverse it. In this, we hold that the sentencing court
abused its discretion.
4 Kolb provides no authority that a sustained objection to evidence must be followed by a motion
to strike to prevent the evidence from reaching the jury. Instead, he cites to State v.
Reichenbach, 153 Wn.2d 126, 130-31, 101 P.3d 80 (2004) and In re Pers. Restraint of Hubert,
138 Wn. App. 924, 929-30, 158 P.3d 1282 (2007), which involved, respectively, defense counsel
failing to argue that a warrant lacked probable cause and failing to raise a defense to a second
degree rape charge, where the evidence clearly supported these arguments.

No. 46497-7-II
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At sentencing, in the context of discussing the historical roots and various aspects of the
Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, the court stated:
But the problem in the State of Washington is that from day one the Supreme Court
and the Court of Appeals following their lead and have never been willing to give
the trial judges discretion to go below the standard range and sustain it.
Almost without exception every case that’s come out, where a trial judge
has gone below the standard range for whatever reason, the Supreme Court and
the Court of Appeals have reversed the trial judge finding there was no basis
whatsoever in the record for the Court to do that, and even if there is a basis in the
record, they still haven’t sustained it.
I have never understood the basis for that distinction. A lot of commentators
have also commented on it and pointed out that the intent of the legislature initially
passing the SRA, which I think has been discredited over the years, because it took
away all the discretion from the trial judges, such as myself and gave it basically to
the prosecutor in what they charge, but nobody has ever been able to explain at least
to the satisfaction of most of the trial judges how it is that if we go above the
standard range, they say that’s fine provided there’s a reason for it, but if we go
below, it doesn’t matter what the reason what it is. Whether it is in the record or
not, they don’t sustain it. I’ve never understood it.
In this incident, I think it’s a tragedy that Mr. Kolb is facing this situation
with the enhancement. . . . I think at the very least that Mr. Kolb deserves nothing
more than the bottom of the standard range.
RP at 205-06 (emphasis added).
“A sentence within the standard sentence range . . . for an offense shall not be appealed.”
RCW 9.94A.585(1). However, “[a] defendant may appeal a standard range sentence if the
sentencing court failed to comply with procedural requirements of the SRA or constitutional
requirements.” State v. Osman, 157 Wn.2d 474, 481-82, 139 P.3d 334 (2006). Although “no
defendant is entitled to an exceptional sentence below the standard range, every defendant is
entitled to ask the trial court to consider such a sentence and to have the alternative actually
considered.” State v. Grayson, 154 Wn.2d 333, 342, 111 P.3d 1183 (2005); State v. McGill, 112
Wn. App. 95, 100, 47 P.3d 173 (2002) (footnote omitted) (“When a court has considered the
facts and concluded there is no legal or factual basis for an exceptional sentence, it has exercised
its discretion, and the defendant cannot appeal that ruling”). A trial court abuses its discretion

No. 46497-7-II
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when “it refuses categorically to impose an exceptional sentence below the standard range under
any circumstances.” State v. Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997).
“The failure to consider an exceptional sentence is reversible error.” Grayson, 154 Wn.2d at
342.
Here, the trial court’s comments, which immediately preceded Kolb’s sentence,
demonstrated that the sentencing court categorically refused to consider or impose exceptional
downward sentences because it believed an appellate court would invariably reverse them.
Particularly pertinent are the sentencing court’s comments that “[a]lmost without exception
every case that’s come out, where a trial judge has gone below the standard range for whatever
reason, [the appellate courts] have reversed the trial judge,” that the SRA “took away all the
discretion from the trial judges, such as myself,” and that “if we go below, it doesn’t matter what
the reason what it is. Whether it is in the record or not, [the appellate courts] don’t sustain it.”
RP at 205. The aggregate of these comments shows that the court believed that it had discretion
in theory to give an exceptional downward, but that in actuality, it did not have discretion. This
statement indicates that in all situations where the sentencing court may believe an exceptional
downward sentence is appropriate, and even if there is evidence in the record to support it, it will
not impose the downward sentence because an appellate court will reverse it.
The State argues that the sentencing court did consider the materials submitted in support
of the exceptional downward sentence because the court stated that it had read them. Although
this is true, the record reflects that the sentencing court’s primary reason for not giving Kolb an
exceptional downward was that it believed such a sentence would be reversed on appeal. This
case is similar to Grayson, where our Supreme Court found reversible error because the
sentencing court categorically refused to give a drug offender sentencing alternative (DOSA) for

No. 46497-7-II
13
the reason that the program did not have funding. 154 Wn.2d at 342. In its analysis, in part, the
Grayson court stated that this was a categorical refusal because (1) the sentencing court did not
articulate any reasons for denying the DOSA, such as why the defendant was not a good
candidate for DOSA, and (2) the court’s belief that the DOSA program was underfunded was its
primary reason for denying the DOSA sentence. Id. at 342-43.
Similar to Grayson, the sentencing court’s primary reason for denying an exceptional
sentence is that it believed it would be reversed on appeal, a reason not based on the merits of
Kolb’s argument for an exceptional downward sentence. There is no evidence at the time it
imposed its sentence that the sentencing court denied the exceptional downward sentence based
on any of the materials submitted to the court or based on the facts of his case. In fact, the
sentencing court called his situation a “tragedy” and stated that at “the very least that Mr. Kolb
deserves nothing more than the bottom of the standard range.” RP at 206. This suggests that the
sentencing judge was considering the exceptional downward sentence, but categorically denied it
because he believed appellate courts would invariably reverse him if he gave Kolb one.
Accordingly, we hold that the sentencing court abused its discretion.
V. SENTENCING CONDITIONS
Kolb was sentenced to 12 months of community custody pursuant to RCW
9.94A.701(3)(c). As part of the conditions of that community custody, the court also (1) ordered
a substance abuse evaluation and (2) prohibited consumption of nonprescribed drugs. The State
concedes that the sentencing court abused its discretion in imposing these conditions. We accept
the State’s concessions.
“We review de novo whether the trial court had statutory authorization to impose a
community custody condition.” State v. Johnson, 180 Wn. App. 318, 325, 327 P.3d 704 (2014).

No. 46497-7-II
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“If the trial court had statutory authorization, we review its decision to do so for an abuse of
discretion.” Id. at 326. An abuse of discretion occurs when a trial court’s imposition of
conditions is manifestly unreasonable. State v. Sanchez Valencia, 169 Wn.2d 782, 791-92, 239
P.3d 1059 (2010).
The SRA authorizes the trial court to impose “crime-related prohibitions and affirmative
conditions” as part of a sentence. Former RCW 9.94A.505(8) (2009). Any condition imposed in
excess of this statutory grant of power is void. Johnson, 180 Wn. App. at 325. When a court
sentences a person to a term of community custody, the court has the power to impose
mandatory, waivable, and discretionary conditions. RCW 9.94A.703.5 Some of those
discretionary conditions empower the court to order an offender to
(c) Participate in crime-related treatment or counseling services;
(d) Participate in rehabilitative programs or otherwise perform affirmative conduct
reasonably related to the circumstances of the offense, the offender’s risk of
reoffending, or the safety of the community;
. . . .
(f) Comply with any crime-related prohibitions.
RCW 9.94A.703 (emphasis added). Specifically, a trial court can only order a chemical
dependency evaluation if it makes a finding that the chemical dependency contributed to the
crime. Former RCW 9.94A.607(1) (1999); State v. Kinzle, 181 Wn. App. 774, 786, 326 P.3d
870, review denied, 181 Wn.2d 1019 (2014); State v. Warnock, 174 Wn. App. 608, 612, 299 P.3d
1173 (2013). Similarly, if the court orders a discretionary crime-related prohibition, it must
5 RCW 9.94A.703 was amended in 2015. The amendment does not affect the issues in this
matter.

No. 46497-7-II
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“directly relate[] to the circumstances of the crime for which the offender has been convicted.”
RCW 9.94A.030(10).6
Kolb argues, and the State concedes, the absence of evidence or findings that Kolb
suffered from drug dependence or abuse or that any such condition was related to his crime. We
accept the State’s concession. The record has no evidence from either the court or the parties
that Kolb had substance abuse problems or that substance abuse contributed to the crime. On the
judgment and sentence, the sentencing court also did not make a finding that “[t]he defendant has
a chemical dependency that has contributed to the offense(s).” CP at 7. The trial court failed to
comply with the requirements of the SRA and, as such, abused its discretion.
Next, Kolb argues, and the State concedes, that the prohibition on nonprescribed drugs is
invalid because it does not relate to the circumstances of Kolb’s offense. We again accept the
State’s concession. Similar to the substance abuse condition, there are no findings or evidence
that Kolb’s offense related to nonprescription drugs.
Despite its concession, the State contends that “the trial court was required . . . to impose
a condition that Kolb not consume or possess ‘controlled substances’ without a lawful
prescription.” Br. of Resp’t at 26. As part of any term of community custody, unless waived by
the court, a court shall order an offender to“[r]efrain from possessing or consuming controlled
substances except pursuant to lawfully issued prescriptions.” RCW 9.94A.703(2)(c). Because
we remand for resentencing, the sentencing court may decide whether it will impose or waive
this community custody condition as permitted by the statute. Despite the State’s insistence
otherwise, we do not find that it is now “mandatory” for this court to impose this condition.
6 RCW 9.94A.030 was amended in 2015. The amendment does not affect the issues in this
matter.

No. 46497-7-II
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CONCLUSION
We affirm Kolb’s conviction for delivery of a controlled substance and his school
grounds sentencing enhancement. However, we vacate his sentence and remand for resentencing
(1) to consider on the record whether an exceptional downward sentence is appropriate in his
case, (2) to strike the school bus stop enhancement, and (3) to strike the improper community
custody conditions.
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.
BJORGEN, A.C.J.
We concur:
MAXA, J.
MELNICK, J.