IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, ) No. 81377-3-I
)
Respondent, )
)
v. )
)
SCOTT BRIAN REHMUS, ) UNPUBLISHED OPINION
DOB: 7/18/1992, )
)
Appellant. )
)
VERELLEN, J. — A prosecutor breaches a plea agreement by undercutting its
terms with conduct showing an objective intent to circumvent it. Because the
prosecutor here told the court information consistent with the agreed sentence and
allowed by statute or requested by the court, he did not breach the plea
agreement.
Conditions of community custody must be crime related and may not be
vague. Because no evidence shows a link between alcohol or businesses selling
alcohol and Scott Rehmus’s conviction for vehicular homicide, the condition
precluding him from entering any business where alcohol is the “chief item of sale”
must be stricken. And because the condition prohibiting Rehmus from associating
with any person distributing a controlled substance invites arbitrary enforcement, it
must be stricken as vague unless clarified on remand.
No. 81377-3-I/2
We accept the State’s concessions regarding Rehmus’s legal financial
obligations.
Therefore, we affirm Rehmus’s conviction and remand for further
proceedings consistent with this opinion.
FACTS
Scott Rehmus agreed to plea guilty to vehicular homicide in exchange for
the State recommending an exceptional sentence of 65 months. Rehmus
admitted he had tetrahydrocannabinol, the psychoactive ingredient in marijuana,1
in his system at the time of the crash. At sentencing, the prosecutor explained he
and the victim’s family were “not happy with” the agreement but entered into it
because of a dispositive defense motion the State was likely to lose.2 The
prosecutor asked the court to enter the agreed sentence. Without any prompting
from the State, the court asked Rehmus whether his license was suspended when
he struck the victim. Because Rehmus was driving with a suspended license, the
court declined to impose the agreed-upon sentence and instead sentenced him to
84 months incarceration and 18 months of community custody.
Rehmus appeals.
ANALYSIS
The State argues Rehmus failed to comply with RAP 5.2(a) by not filing his
notice of appeal within 30 days of entry of the October 5, 2018 judgment and
1 State v. Murray, 187 Wn.2d 115, 118, 384 P.3d 1150 (2016).
2 Report of Proceedings (RP) (Oct. 5, 2018) at 3.
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No. 81377-3-I/3
sentence, thus waiving his right to appeal. When interpreting and applying court
rules, we read the rule’s plain language in the context of related provisions.3
RAP 5.2(a) requires that an appellant file his notice of appeal no more than
“30 days after the decision of the trial court that the party filing the notice wants
reviewed,”4 although, not all reviewable decisions are immediately appealable.5
RAP 2.2(a) provides that a party has the right to appeal a final judgment. Whether
a judgment was final is determined by its effect on the underlying action.6 If a
judgment “resolved the merits of a party’s legal claims,” then it was an appealable
final judgment.7
The court sentenced Rehmus and signed the judgment and sentence on
October 5. On October 19, Rehmus filed a CrR 7.8(b) motion for relief from
judgment. He argued the court violated the real facts doctrine by relying upon an
unproven crime, driving with a license suspended, to sentence him. The court
heard the motion on October 26. Because the court raised the suspended license
issue sua sponte during a colloquy with the State, it agreed Rehmus’s motion was
a timely objection and ordered an evidentiary hearing to determine whether
Rehmus’s driver’s license was, in fact, expired when he committed vehicular
3 Denney v. City of Richland, No. 97494-2, slip op. at 3 (Wash. May 7, 2020),
http://www.courts.wa.gov/opinions/pdf/974942.pdf.
4 Id. at 11 (citing RAP 2.2(a); RAP 5.2(a)).
5 RAP 2.2; RAP 2.3.
6 Denney, slip op. at 5.
7 Id.
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No. 81377-3-I/4
homicide. By accepting Rehmus’s objection and scheduling an evidentiary
hearing related to the original judgment, the trial court recognized its October 5
sentencing left a legal issue unresolved.8 Thus, the December 10 evidentiary
hearing was an extension of the original October 5 sentencing.
On December 10, the court held the hearing and denied Rehmus’s
objection, resolving all legal issues and entering a final judgment. Rehmus had 30
days to file a notice of appeal.9 But Rehmus filed his notice of appeal on January
10, 2019, one day past the deadline set by RAP 5.2(a).10
RAP 18.8(b) restricts the circumstances when we can grant an extension of
the period to file an appeal, but we balance Rehmus’s state constitutional right to
appeal against the strict application of filing deadlines.11 “[A]n involuntary
forfeiture of the right to a criminal appeal is never valid,” so we never presume a
defendant intentionally waived his right to appeal.12 The State has the burden of
demonstrating Rehmus understood his right to appeal and voluntarily, knowingly,
and consciously waived it.13 Because the State fails to show Rehmus intentionally
8 See id. at 4 (explaining an appealable final judgment “‘disposes of all
issues in controversy’”) (quoting State v. Taylor, 150 Wn.2d 599, 602, 80 P.3d 605
(2003).
9 RAP 5.2(a).
10See RAP 18.6(a) (legal holidays and weekends are excluded from
counting days only when the period of time allowed is less than seven days).
11 State v. Kells, 134 Wn.2d 309, 314, 949 P.2d 818 (1998).
12 Id. at 313, 314 (citing State v. Sweet, 90 Wn.2d 282, 581 P.2d 579 (1978)).
13Id. at 314 (citing Sweet, 90 Wn.2d at 287); State v. Cater, 186 Wn. App.
384, 392, 345 P.3d 843 (2015). The State relies on State v. Gaut, 111 Wn. App.
875, 46 P.3d 832 (2002), to argue we should deny Rehmus’s appeal. But Gaut
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No. 81377-3-I/5
waived his right to appeal merely by filing one day late, we will consider the merits
of the appeal.
Rehmus argues the State breached the plea agreement. Whether the State
breached a plea agreement is a question of law we review de novo. 14 As a
contract between the State and the defendant, the State has a duty of good faith
prohibiting it from implicitly or explicitly undercutting the agreement by conduct
showing an objective intent to circumvent the agreement’s terms.15 We consider
the prosecutor’s conduct within the context of the entire record.16 When speaking
with the court, a prosecutor may ‘‘not hold back relevant information regarding the
plea agreement’” and is not obliged to ‘‘enthusiastically make the sentencing
recommendation.”17 The court is not bound by the parties’ agreement.18
After the court convened the sentencing hearing, it called upon the
prosecutor to explain the parties’ plea agreement.
It’s an agreed exceptional sentence [of] 65 months. The [standard]
range is 78 to 202 months. This is a case that I worked on with
[prosecuting attorney] Ms. Goodell. We had a legal issue come up,
and Ms. LaCross, for the defense, filed a motion, and Ms. Goodell
presumes, without addressing Kells or Sweet, that “the only review possible is some
form of collateral attack on the judgment” because Gaut appealed outside the limit
set by RAP 5.2(a). 111 Wn. App. at 880. We decline to follow the approach taken
in Gaut and instead rely on our Supreme Court’s holdings and reasoning in Kells
and Sweet.
14 State v. MacDonald, 183 Wn.2d 1, 8, 346 P.3d 748 (2015).
15 Id. at 8.
16 State v. Carreno-Maldonado, 135 Wn. App. 77, 83, 143 P.3d 343 (2006).
17 Id. (quoting State v. Talley, 134 Wn.2d 176, 183, 949 P.2d 358 (1998)).
18 RCW 9.94A.431(2).
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and I looked at it and thought there was a very high risk that we
would not succeed on that motion. . . .
And after talking with the family and after talking with the
victim’s husband, sister, parents, brother, multiple family members
explaining to them why we did what we did, I believe they
understand it but are clearly not happy with it. And neither [are] Ms.
Goodell and I, but the legal issues kind of are what they are,
unfortunately . . . .
....
So, without a case to prosecute, Ms. Goodell and I came to
this compromise with the defense, and I ask the court to follow it. It
is for 65 months [and] 18 months of community custody.[19]
Rehmus argues the “prosecutor breached the plea agreement with his timid
support of the exceptional sentence downward” or undermined it by “implicitly
expressing [his] unhappiness” with the agreement.20 The prosecutor’s contractual
obligation was “to recommend the agreed-upon sentence,”21 not to do so
enthusiastically.22 He had statutory duties to state “the reasons for the agreement”
and, for vehicular homicide, to inform the court whether the victim’s
representatives “ha[d] expressed any objections to or comments on the nature of
and reasons for the plea agreement.”23 The prosecutor’s explanation to the court
fulfilled both his contractual and statutory obligations.
19 RP (Oct. 5, 2018) at 2-4.
20 Appellant’s Br. at 8.
21 Talley, 134 Wn.2d at 183.
22 Carreno-Maldonado, 135 Wn. App. at 83.
23 RCW 9.94A.431(a); see RCW 9.94A.411 (categorizing vehicular homicide
as a “crime against persons”).
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No. 81377-3-I/7
Rehmus compares this case to State v. Carreno-Maldonado, where the
prosecutor recommended a sentence at the low end of the sentencing range and
undercut it by reciting unsolicited facts consistent with statutory aggravating
factors.24 In State v. Julian, an offender argued the prosecutor breached the plea
agreement by letting defense counsel speak first and argue in the agreement’s
favor and then, after defense counsel finished, stating, “I don’t have an awful lot to
add” before recommending the agreed sentence.25 The court concluded the
prosecutor did not breach the plea agreement because “[t]hough hardly made
enthusiastically,” he made a clear recommendation, “acquiesce[d] in the [special
sex offender] sentencing alternative as promised,” and did not undermine the
agreement.26
Here, the prosecutor asked the court to impose “an agreed exceptional
sentence [of] 65 months,” which is below the standard range.27 Information about
the victim’s family’s feelings and Rehmus’s motion were required by
RCW 9.94A.431(1). The prosecutor explained Rehmus’s license was suspended
only because the court requested that information sua sponte. The prosecutor’s
fleeting mention of his feelings about the agreement were not required or requested
but did not undermine the agreement because, viewed objectively within the entire
24 135 Wn. App. 77, 84-85, 143 P.3d 343 (2006); see RCW 9.94A.535(2)-(3)
(listing aggravating factors).
25 102 Wn. App. 296, 302, 304, 9 P.3d 851 (2000).
26 Id.
27 RP (Oct. 5, 2018) at 2.
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No. 81377-3-I/8
record and consistent with RCW 9.94A.431(1), it provided context for the strength of
Rehmus’s motion and the victim’s family’s feelings of disappointment. Unlike
Carreno-Maldonado, the additional context was consistent with the agreed sentence
and information relevant to it. Like Julian, the prosecutor’s unenthusiastic
recommendation did not breach the plea agreement.
Rehmus argues two of his conditions of community custody must be
stricken. We review conditions of community custody for abuse of discretion.28
The court prohibited Rehmus from entering any “place where alcohol is the
chief item of sale.”29 Rehmus contends this entry limitation must be stricken
because it is not crime related. A condition is crime related where substantial
evidence shows a “reasonable relationship” between it and the circumstances of
the defendant’s crime.30
In State v. Parramore, a drug dealer was convicted of selling marijuana,
and the trial court imposed a condition of community custody requiring that he
submit to a breathalyzer to test for alcohol.31 This court concluded the condition
was not crime related because no evidence linked alcohol use to his delivery of
28 State v. Nguyen, 191 Wn.2d 671, 678, 425 P.3d 847 (2018).
29 CP at 36.
30 Nguyen, 191 Wn.2d at 683-84; State v. Irwin, 191 Wn. App. 644, 656, 364
P.3d 830 (2015). “‘Substantial evidence exists where there is a sufficient quantity of
evidence in the record to persuade a fair-minded, rational person of the truth of the
finding.’” State v. Delbosque, 195 Wn.2d 106, 116, 456 P.3d 806 (2020) (quoting
State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994)).
31 53 Wn. App. 527, 528-29, 768 P.2d 530 (1989).
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No. 81377-3-I/9
marijuana.32 Similarly, in State v. Jones, the court struck a condition requiring that
a burglar participate in alcohol counseling when no evidence showed alcohol
contributed to his crimes.33
Rehmus pleaded guilty to vehicular homicide and admitted he was under
the influence of marijuana at the time of the crash. The crime of vehicular
homicide requires proof the driver killed another as a result of operating a motor
vehicle while “under the influence of any intoxicating liquor or drug.”34 The State
argues this statutory requirement links the condition to Rehmus’s conviction. But
marijuana and alcohol are distinct substances, and consuming alcohol is distinct
from entering a business selling alcohol. No evidence shows alcohol consumption
contributed to Rehmus’s crime or that he consumed marijuana in a business
selling alcohol. Like Parramore and Jones, no evidence links Rehmus’s crime to
alcohol use. Because substantial evidence does not link this condition to
Rehmus’s conviction, the condition limiting entry is not crime related and must be
stricken.
The court also prohibited Rehmus from having any “contact with any
persons who are currently manufacturing or delivering controlled substances.”35
32 Id. at 531.
33 118 Wn. App. 199, 207-08, 76 P.3d 258 (2003).
34
RCW 46.61.520(1)(a). A person can also be guilty when he kills another
by operating a motor vehicle recklessly or with disregard for the safety of others.
RCW 46.61.520(1)(b)-(c).
35 CP at 36.
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No. 81377-3-I/10
He contends this condition is vague because it would result in arbitrary
enforcement.
A community custody condition is unconstitutionally vague when it (1) fails
to sufficiently define the conduct it prohibits “so an ordinary person can understand
the prohibition” or (2) does not provide “sufficiently ascertainable standards” to
protect against arbitrary enforcement.36 A condition “is not vague when a person
‘exercising ordinary common sense can sufficiently understand’ it.”37 When a
condition limits an offender’s First Amendment right of association, the condition
must be clear and “‘reasonably necessary to accomplish the essential needs of the
state and public order.’”38
The State admits “the word ‘unlawfully’ should be included to modify the
words ‘manufacturing or delivering’” to make this condition “precise.”39 As
Rehmus notes, “[c]ontrolled substances find legitimate use in the diagnosis, cure,
mitigation, treatment, or prevention of disease in individuals or animals.”40
Rehmus would violate the plain language of this condition by visiting a pharmacy
36 State v. Padilla, 190 Wn.2d 672, 677, 416 P.3d 712 (2018).
37
Id. at 679-80 (internal quotation marks omitted) (quoting Gibson v. City of
Auburn, 50 Wn. App. 661, 667, 748 P.2d 673 (1988)).
38 In re Pers. Restraint of Brettell, 6 Wn. App. 2d 161, 169, 430 P.3d 677
(2018) (internal quotation marks omitted) (quoting State v. Riley, 121 Wn.2d 37-38,
846 P.2d 1365 (1993)).
39 Resp’t’s Br. at 14.
40 Appellant’s Br. at 14 (citing RCW 69.50.101).
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No. 81377-3-I/11
or having a nurse administer morphine in a hospital.41 Because the condition fails
to provide sufficient guidance and invites arbitrary enforcement, it must be stricken
as vague unless clarified on remand.42
The State concedes remand is required to strike two discretionary legal
financial obligations and language mandating interest accrual on his legal financial
obligations. Because the court found Rehmus indigent and RCW 10.82.090(1) no
longer authorizes interest accrual on nonrestitution legal financial obligations, we
accept the State’s concession.
Therefore, we affirm Rehmus’s conviction and remand for further
proceedings consistent with this opinion.
WE CONCUR:
41 See RCW 69.50.101(g) (defining “controlled substance”); Controlled
Substances: Alphabetical Order, U.S. DEP’T OF JUSTICE, DRUG ENFORCEMENT
AGENCY, http://www.deadiversion.usdoj.gov/schedules/orangebook/c_cs_alpha.pdf
(last visited June 3, 2020) (identifying morphine as a controlled substance).
42
We note this condition, unlike the condition we upheld in Brettell, 6 Wn.
App. 2d at 170-71, does not contain any intent element.
11
State Of Washington v. Scott Brian Rehmus
Combined Opinion