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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )
                                            )       No. 67309-2-I
                      Respondent,           )
                                            )       DIVISION ONE
          v.                                )
                                            )
KNUTE GREGOR FENSTAD, JR.,                  )       UNPUBLISHED OPINION
                                            )
                      Appellant.            )       FILED:  June 4, 2012

       PER CURIAM.  Knute Fenstad appeals the sentence imposed following 

his conviction for first degree robbery.  He contends the court erred in ordering 

substance abuse and mental health evaluations and treatment as conditions of 

his community custody.  We remand for further proceedings.

       The State concedes the court erred in ordering a mental health evaluation 

and treatment because the court did not have a presentence report before it and 

did not make a finding that Fenstad's mental illness contributed to his crimes.  

See RCW 9.94B.080; State v. Jones, 118 Wn. App. 199, 202, 76 P.3d 258 

(2003) (court may order mental health evaluation and recommended treatment 

condition only if it "finds, based on a presentence report and any applicable 

mental status evaluations, that the offender suffers from a mental illness which 

influenced the crime."). We accept the concession.  But given the mental health 

concerns expressed by defense counsel below, we remand with directions to 

strike the mental health evaluation and treatment condition unless the court can  

No. 67309-2-I/2

presently and lawfully comply with the prerequisites for the condition.  See

Jones, 118 Wn. App. at 212 n.33 (remanding with same directions but noting 

that it is unclear "whether such compliance is legally possible at this late date"

and observing "that RCW 9.94A.505(9) allows a court to order 'additional 

evaluations at a later date if deemed appropriate.'"). 

       The court also ordered "Substance & alcohol abuse eval[uation] & 

treatment [.]"  Fenstad concedes that alcohol evaluation and treatment were 

properly imposed but contends the court erred in imposing substance abuse

evaluation and treatment without a finding of chemical dependency as required 
by RCW 9.94A.607(1).1  The State does not dispute that RCW 9.94A.607(1) 

applies here but states, without citation to authority, that "[t]reatment conditions 

are appropriate in the absence of an express finding under RCW 9.94A.607 if 

the record otherwise supports the treatment condition."  To the contrary, failure 

to make the statutorily required finding is reversible error, even where 

substantial evidence would otherwise have supported such a finding.  See

Jones, 118 Wn. App. at 209-10.  Accordingly, we remand with directions to strike 

the substance abuse evaluation and treatment condition unless the court 

determines that it can

1 Under the Sentencing Reform Act of 1981, chapter 9.94A RCW, a trial court can 
impose a substance abuse evaluation and treatment condition only when controlled 
substances, as opposed to alcohol alone, contribute to the defendant's crime.  Jones, 
118 Wn. App. at 207-08.

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No. 67309-2-I/3

presently and lawfully comply with the statutory requirement for a finding that 

Fenstad has a chemical dependency that contributed to his offense. 

       Remanded for proceedings consistent with this opinion.    

                                 For the court:

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