Opinion
No. 36856-1-II.
October 7, 2008.
Appeal from a judgment of the Superior Court for Thurston County, No. 07-1-00012-1, Christine A. Pomeroy, J., entered September 20, 2007.
UNPUBLISHED OPINION
Jeramy Lofstrom murdered his wife, Sarah, by stabbing her with a butcher knife at least 24 times in the head, neck, arms and back. He pleaded guilty to first degree murder — domestic violence — while armed with a deadly weapon. The trial court sentenced Lofstrom to 344 months of confinement, to be followed by 24 to 48 months of community custody. Over Lofstrom's objection, the court imposed the following community custody condition:
Defendant . . . [m]ust gain written permission from the supervising Community Corrections Officer and/or domestic violence treatment provider before entering into any romantic relationships and that the adult is aware of your crime and conditions of supervision.
Clerk's Papers (CP) at 116. Lofstrom's challenge to the community custody condition is not ripe for review. We affirm.
Lofstrom argues that this community custody condition violates his constitutional right of free association. Lofstrom acknowledges that in State v. Motter, 139 Wn. App. 797, 804, 162 P.3d 1190 (2007), review denied, 163 Wn.2d 1025 (2008), this court held that a community custody condition is not ripe for appeal until the condition has been enforced or the appellant has suffered negative consequences from it. See also State v. Autrey, 136 Wn. App. 460, 470-71, 150 P.3d 580 (2006), and State v. Massey, 81 Wn. App. 198, 200, 913 P.2d 424 (1996). Over 25 years remain on Lofstrom's sentence before his release and the possible imposition of this condition.
Lofstrom argues that a refusal to review his community custody condition now violates his right to due process under article I, section 22 of the Washington Constitution, and the Fourteenth Amendment of the U.S. Constitution. Lofstrom contends that because the Department of Corrections (DOC) handles community custody sanctions internally, he will never have an opportunity for this court to review his community custody condition, and so due process requires this court to review the community custody condition now. But this court recently held otherwise. In State v. Zimmer, ___ Wn. App. ___, 190 P.3d 121, ¶ 27 (2008), this court considered the same challenge and held:
Zimmer cites Washington Administrative Code (WAC) 137-104-050 and WAC 137-104-080 to argue that the DOC handles community custody sanctions completely internally. But, taken in context of RCW 9.94A.634, these WACs do not support Zimmer's argument. On the contrary, Washington courts routinely review DOC-imposed community custody sanctions. See [State v.] Smith, 130 Wn. App. [721,] 724-28, 123 P.3d 896 [2005] (court reviewing community custody provision after DOC sanctioned defendant). Rather than limiting a defendant's rights, this WAC gives a defendant further procedural rights, before the trial court hearing to which the statute entitles the defendant.
(Footnote omitted.)
In Zimmer, we held that a defendant has two options when challenging a community custody violation: (1) a stipulated agreement under RCW 9.94A.634(3)(a) and WAC 137-104-060, followed by trial court review of the proposed sanction; or (2) a DOC hearing under RCW 9.94A.634(3)(b) and WAC 137-104-050, followed by a show cause hearing in the trial court. Zimmer, 190 P.3d at ¶¶ 28-29. Regardless of the defendant's path, the Zimmer court noted that "Washington courts review the DOC's proposed sanctions for a defendant's community custody violations." Zimmer, 190 P.3d at ¶ 30. Because the courts could later review any sanction imposed by the DOC, the Zimmer court found Zimmer's appeal not ripe. Zimmer, 190 P.3d at ¶ 30.
Similarly, the courts may review the community custody condition, which requires Lofstrom to obtain permission from his community corrections officer before entering into a romantic relationship, should the DOC find him in violation of that condition during his term of community custody. As such, this court's refusal to review the community custody condition now does not violate Lofstrom's due process rights.
Lofstrom's challenge to the community custody condition is not ripe for review. We affirm Lofstrom's judgment and sentence.
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 pursuant to RCW 2.06.040, it is so ordered.
QUINN-BRINTNALL, J., PENOYAR, A.C.J., concur.