Opinion
No. 58137-6-I.
August 27, 2007.
In sentencing a sex offender, a court may impose statutory conditions of community custody as well as additional discretionary conditions that are reasonably related to the circumstances of the offense. Allen Stickel was convicted of two counts of rape of a child in the first degree and two counts of child molestation in the first degree. There was no evidence or findings regarding substance abuse or that the use or abuse of alcohol or the Internet contributed to the offenses. As such, the conditions imposed regarding substance abuse treatment, the purchase or possession of alcohol (not alcohol consumption), and access to the Internet are reversed and the case remanded to strike those conditions. The condition prohibiting perusing or possessing pornographic materials as defined by Stickel's therapist is neither unconstitutional on its face nor overbroad. Because this is a preenforcement challenge, we decline to further review Stickel's challenge to the condition prohibiting perusing or possessing pornographic material. This portion of the sentence is affirmed.
FACTS
Allen Stickel was convicted of two counts of first degree child rape and two counts of first degree child molestation for the rape of his daughter. There is no dispute that the crimes involved pornographic magazines. There was no evidence or finding that alcohol or drugs were used in the commission of the crimes, but the State argued that once Stickel was notified he was being investigated he moved to a motel and proceeded to get "hammered." Stickel was sentenced under RCW 9.94A.712 to high-end minimum terms.
The court sentenced Stickel to community custody for life following release from confinement and imposed a variety of conditions, some statutory, some discretionary. "Appendix H" to the judgment and sentence sets forth the conditions imposed by the court regarding Stickel's community custody. The sections relevant to the appeal are
(15) Do not possess or peruse pornographic materials unless given prior approval by your sexual deviancy treatment specialist and/or Community Corrections Officer. Pornographic materials are to be defined by the therapist and/or Community Corrections Officer.
(Alterations in original.)
. . . .
(18) If directed by your sexual deviancy treatment specialist or Community Corrections Officer [CCO], undergo an evaluation regarding substance abuse at your expense and follow any recommended treatment as a result of that evaluations.
(20) Do not purchase, possess or use alcohol (beverage or medicinal), and submit to testing and reasonable searches of your person, residence, property and vehicle by the Community Corrections Officer to monitor compliance.
. . . .
(27) Do not access the Internet without the prior approval of your supervising Community Corrections Officer and sex offender treatment provider.
ANALYSIS
Crime-Related Prohibitions and Affirmative Conduct
The condition that Stickel not possess pornography is challenged later as being vague and overbroad. Stickel does not challenge that condition as not being crime related.
A trial court possesses the power to impose sentences provided by law. Stickel first argues the sentencing court did not have the statutory authority to impose some of the conditions related to alcohol prohibitions and the prohibition of access to the Internet. Further he asserts the court abused its discretion in ordering participation in substance abuse treatment. He claims there was no evidence before the trial court to support these sentencing conditions. Although Stickel did not object to the conditions below, he argues these conditions of his sentence are without statutory authority. Thus, his challenge falls into a category that can be addressed for the first time on appeal.
State v. Acrey, 135 Wn. App. 938, 942, 146 P.3d 1215 (2006).
Stickel concedes the court has the statutory authority to restrict him from consuming alcohol and to restrict him from possessing or consuming non-prescription controlled substances. RCW 9.94A.700(5). It is the possession and purchase of alcohol that are at issue here.
State v. Parramore, 53 Wn. App. 527, 531, 768 P.2d 530 (1989) (conditions of community custody imposed pursuant to chapter 9.94A RCW as being crime related must be supported by evidence showing the factual relationship between crime being punished and condition imposed).
State v. Jones, 118 Wn. App. 199, 207-08, 76 P.3d 258 (2003).
Jones, 118 Wn. App. at 204.
There is no dispute that the validity of the conditions of community custody is governed by the version of the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, in effect between March 24, 2002 and January 7, 2005, the period of Stickel's offenses.
Jones, 118 Wn. App. at 203.
At the time of these offenses, a nonpersistent sex offender convicted of first degree child rape or first degree child molestation was sentenced pursuant to RCW 9.94A.712(1)(a)(i). In addition, the court sentences an offender to community custody under RCW 9.94A.712(5). Further, former RCW 9.94A.712(6)(a), now codified as RCW 9.94A.712(6)(a)(i), provided:
Unless a condition is waived by the court, the conditions of community custody shall include those provided for in RCW 9.94A.700(4). The conditions may also include those provided for in RCW 9.94A.700(5). The court may also order the offender to 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, and the department and the board shall enforce such conditions pursuant to RCW 9.94A.713, 9.95.425, and 9.95.430. Stickel does not dispute the sentencing court's ability to properly impose many of the community custody conditions, including that the court may prohibit
(Emphasis added.)
Stickel from consuming alcohol or possessing or consuming controlled substances except with a prescription. But here, the sentencing court imposed additional conditions. Two of these are prohibitions: that he not purchase or possess alcohol, and that he not access the Internet without permission of his CCO and the therapist. Another condition imposed is that he participate in affirmative conduct, that if directed by his sexual deviancy treatment specialist or CCO, Stickel undergo an evaluation regarding substance abuse at his expense and follow any recommended treatment. In any event, these postrelease conditions may not be imposed unless they are reasonably related to the circumstances of Stickel's offenses.
These prohibitions are imposed under RCW 9.94A.500(e), special discretionary conditions. But RCW 9.94A.500(e) specifically requires the prohibitions be crime related.
This condition was imposed pursuant to the last sentence of former RCW 9.94A.712(6)(a).
Former RCW 9.94A.712(6)(a); RCW 9.94A.700(4) and (5)(e); see also Jones, 118 Wn. App. at 199.
As to the condition imposing evaluation regarding substance abuse, the State argues that former RCW 9.94A.712(6)(a) does not exclusively require limiting the conditions to include those circumstances surrounding the offenses, but the conditions may independently be supported by the offender's risk of reoffending or the safety of the community. But the Jones decision is clear that the statutes must be harmonized if possible, so that no part of any of them is rendered superfluous. In Jones, the court found that the statutes must be harmonized and held
The statutes to be harmonized here include former RCW 9.94A.712(6)(a) and RCW 9.94A.700(4) and .700(5).
Jones, 118 Wn. App at 208.
that alcohol counseling "reasonably relates" to the offender's risk of reoffending, and to the safety of the community, only if the evidence shows that alcohol contributed to the offense.
Jones, 118 Wn. App. at 208 (emphasis added).
Although Stickel was sentenced under RCW 9.94A.712, whereas Jones was sentenced to community custody under RCW 9.94A.715, these statutes contain nearly identical reasonably related to the offense language and permit the court to require the offender to perform affirmative conduct only if it is reasonably related to the circumstances of the offense. The holding in Jones applies.
Here, there is no evidence in the record that alcohol or drugs contributed to the crimes committed by Stickel. The State asserts that it is reasonable to impose these conditions to enhance community safety by preventing the perpetrator from purchasing or possessing alcohol and to submit to substance abuse treatment or counseling. But these assertions are not supported by the evidence. The allegations of alcohol and drug use were not shown to have contributed to the crimes committed and therefore the imposition of these conditions exceeds the sentencing court's authority. The case must be remanded to comply with the statute requiring crime-related conditions. Further, the condition requiring the affirmative conduct or treatment for substance abuse must be stricken to bring the condition into compliance with Jones, which also requires crime-related circumstances.
Similarly, there is no evidence in this case that the Internet contributed to Stickel's offenses. There was testimony that Stickel gave the victim pornographic magazines, but there was no evidence that the Internet was involved in the crimes. This is not a case where Internet access was used to develop an illegal sexual relationship. Even by limiting the condition by ostensibly allowing access with the approval of the supervising CCO and the sex offender treatment provider, imposition of said condition at this time cannot be supported where there is no evidence that the Internet was involved. This condition must be stricken as well.
Vagueness
Next, Stickel argues the community custody condition prohibiting possession of pornography is unconstitutionally vague on its face. A statute or condition of community custody is presumed to be constitutional unless the party challenging it proves otherwise beyond a reasonable doubt.
State v. Smith, 130 Wn. App. 721, 726-27, 123 P.3d 896 (2005).
The due process vagueness doctrine serves two important purposes: "first, to provide adequate notice of proscribed conduct, and second to protect against arbitrary, ad hoc enforcement." In determining if the condition provides adequate standards for enforcement, one must decide if the condition proscribes conduct through inherently subjective terms. The terms are not viewed in a vacuum; the question is whether they are inherently subjective in the context in which they are used.
State v. Acrey, 135 Wn. App. 938, 947, 146 P.3d 1215 (2006).
City of Spokane v. Douglass, 115 Wn.2d 171, 180-81, 795 P.2d 693 (1990).
A rule can be facially vague or vague as applied. When a challenged prohibition does not involve First Amendment rights, it must be evaluated as applied. Because the prohibition has not yet been applied to Stickel, no as-applied challenge is currently possible. But here, Stickel claims the prohibition involves First Amendment rights and is facially vague.
Douglass, 115 Wn.2d at 181-82.
See State v. Bahl, 137 Wn. App. 709, 159 P.3d 416 (2007).
Stickel brings his appeal as a facial challenge so that this court will entertain the appeal even though he has not yet been accused of violating the condition, and even though he failed to raise a vagueness challenge below.
A rule is facially invalid if its terms "`are so loose and obscure that they cannot be clearly applied in any context.'" In such a situation, the challenged proscription must be alleged to be unconstitutional on its face, thus, totally invalid and incapable of any constitutional application. Where a facial challenge is appropriate, the challenger must show that the rule is impermissibly vague in all of its applications. Here, Stickel cannot show that the pornography prohibition is impermissibly vague in all applications because there are some materials that any reasonable person would understand to constitute pornography. On its face, the proscription is not ambiguous.
Douglass, 115 Wn.2d at 182 n. 7 (quoting Basiardanes v. Galveston, 682 F.2d 1203, 1210 (5th Cir. 1982)).
Douglass, 115 Wn.2d at 182 n. 7 (citing Steffel v. Thompson, 415 U.S. 452, 474, 94 S. Ct. 1209, 39 L. Ed. 2d 505 (1974)).
We are mindful of the cases of State v. Sansone, 127 Wn. App. 630, 111 P.3d 1251 (2005) and one of the authorities relied on in that case, United States v. Loy, 237 F.3d 251 (3d Cir. 2001). Both of these cases are cited and argued by the parties. Those cases conclude that a prohibition against possessing "pornography" was unconstitutionally vague.
Stickel's reliance on State v. Sansone is misplaced. Sansone concerns a challenge to a prohibition similar to the one before us, but in that case it was a postenforcement challenge. Here, Stickel challenges the condition preenforcement. We follow our recent decision in State v. Bahl. There, as here, the condition is challenged before enforcement. In Bahl, we declined to entertain a preenforcement facial challenge for vagueness since there was no record showing that the challenged rule was impermissibly vague in application to the challenger. The court concluded, "we have not yet agreed it is appropriate to evaluate conditions of sentence for vagueness in a preenforcement challenge. We are not inclined to do so in the absence of briefing on the pros and cons of that approach." Similarly, Stickel provides no briefing on the benefit of preenforcement review, so again we decline review.
Sansone, 127 Wn. App. at 635.
Bahl, 137 Wn. App. at 709.
Bahl, 137 Wn. App. at 716.
Bahl, 137 Wn. App. at 718.
Stickel indicates he is not making an improper delegation claim. Even if he did make that claim, improper delegation may not be raised for the first time on appeal. State v. Smith, 130 Wn. App. 721, 729-30, 123 P.3d 895 (2005), rev. denied, 157 Wn.2d 1026 (2006). Stickel did not raise the issue at sentencing, so we need not address it here. Bahl, 137 Wn. App. at 719.
Overbreadth
Relying on the cases of State v. Stephenson, and State v. Knowles, Stickel also argues the condition prohibiting his possession of pornography is overbroad and violates the free speech protections of the First Amendment. When considering whether a criminal statute is overbroad, courts will consider "(1) whether the challenged statute reaches constitutionally protected speech or expression and (2) whether it proscribes a real and substantial amount of speech."
89 Wn. App. 794, 800, 950 P.2d 38 (1998).
91 Wn. App. 367, 372, 957 P.2d 797 (1998).
Stephenson, 89 Wn. App. at 800 (criminal statute that sweeps constitutionally protected free speech activities within its prohibition may be overbroad and violates First Amendment).
Knowles, 91 Wn. App. at 372.
But Stickel is not challenging a criminal statute. Rather, Stickel is challenging a condition imposed as part of his community custody sentence. Stickel does not claim that the court violated the SRA by imposing a condition that does not "reasonably relate? to the circumstances of the offense, the offender's risk of reoffending, or the safety of the community."
State v. Riles, 135 Wn.2d 326, 347, 957 P.2d 655 (1998) (quoting State v. Ross, 129 Wn.2d 279, 287, 916 P.2d 405 (1996)) ("[A] `defendant's constitutional rights during community placement are subject to the infringements authorized by the SRA.'").
In sentencing a defendant convicted of rape of a child in the first degree, the SRA requires the sentencing court to impose a maximum term consisting of the statutory maximum sentence for the offense. RCW 9.94A.712. The SRA also requires the court to sentence the defendant to community custody under the supervision of the Department of Corrections for any period of time the defendant is released from total confinement and before the expiration of the maximum sentence. RCW 9.94A.712(5).
Accordingly, we reject Stickel's claim that the condition prohibiting possession of pornography is overbroad.
The sentence is affirmed in part and reversed in part. We decline to review Stickel's preenforcement challenge to the condition regarding the possessions of pornography. That portion of the sentence is affirmed. The remainder of the case is remanded to the sentencing court to strike the conditions pertaining to alcohol purchase and possession as well as the prohibition of access to the Internet. Further, the condition directing Stickel to undergo an evaluation regarding substance abuse must be stricken to bring this community custody condition in compliance with Jones.
FOR THE COURT: