State Of Washington, V. Garrett Occiano ( 2021 )

Filed
Washington State
Court of Appeals
Division Two
September 21, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 54143-2-II
Respondent,
v.
GARRETT OCCIANO, UNPUBLISHED OPINION
Appellant.
CRUSER, J. – Garrett Occiano appeals from his guilty plea convictions for second degree
rape of a child and second degree child molestation. He challenges three of his community custody
conditions, arguing that they are not crime related. He further argues that, due to his indigency, the
sentencing court erred by requiring him to pay supervision fees as a condition of his community
custody. We agree that the community custody condition subjecting Occiano to curfew
requirements set by his community corrections officer (CCO) is not crime related, and we remand
for the superior court to strike this condition. We otherwise affirm.
FACTS
The State charged Occiano with second degree rape of a child and second degree child
molestation, both with domestic violence special allegations. The victim was Occiano’s daughter.
In the statement of probable cause, the State alleged that the crimes occurred inside the family
home.
No. 54143-2-II
Occiano pled guilty to both charges, and the superior court accepted the guilty pleas. In his
plea statement, Occiano admitted to the charged crimes, but he did not provide any specific details
about the offenses beyond what was necessary to establish the bare elements of the offenses.
A pre-sentence investigation (PSI) was conducted before sentencing. The PSI report did
not mention whether Occiano ever viewed any sexually explicit materials or ever called any 900
numbers. Nor did it explain the details of the offenses.
In his sentencing memoranda and at the sentencing hearing, Occiano challenged several of
the proposed community custody conditions. Among the community custody conditions he
challenged, were the requirements that he (1) “[s]hall not own, use, possess or peruse sexually
explicit materials” (the sexually explicit materials condition), (2) “[s]hall be subject to curfew
requirements as directed by his CCO” (the curfew condition), and (3) “[c]all no 900 numbers” (the
900 numbers condition). Clerk’s Papers (CP) 58-59. He argued that the 900 numbers condition
was overbroad and vague and that all three of these conditions were not crime related. Occiano did
not challenge the community custody condition requiring him to pay “supervision fees as
determined by the Department of Corrections [(DOC)].” Id. at 58. And during the sentencing
hearing neither the court nor the parties mentioned the supervision fees.1
In the Appendix H to the judgment and sentence, the superior court imposed numerous
community custody conditions, including the sexually explicit materials condition, the curfew
condition, the 900 numbers condition, and the requirement that Occiano pay supervision fees.
1
At sentencing, the State requested and the superior court imposed only one cost, the mandatory
“victim’s assessment.” Verbatim Report of Proceedings (VRP) (Nov. 25, 2019) at 27. But there
was no discussion of his ability to pay legal financial obligations.
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No. 54143-2-II
Occiano appeals the three community custody conditions and the requirement that he pay
supervision fees.
ANALYSIS
Occiano argues that the sexually explicit materials, curfew, and 900 numbers community
custody conditions are not crime related. He also challenges the requirement that he pay the
supervision fee as directed by the DOC in light of his indigency. We agree that the curfew
condition is not crime related. But we otherwise affirm.
I. CRIME-RELATED CONDITIONS
A. LEGAL PRINCIPLES
“We review community custody conditions for an abuse of discretion and will reverse them
[only] if they are manifestly unreasonable.” State v. Hai Minh Nguyen, 191 Wn.2d 671, 678, 425
P.3d 847 (2018).
As a condition of community custody, a sentencing court may, in its discretion,
impose “any crime-related prohibitions.” RCW 9.94A.703(3)(f). A “‘[c]rime-
related prohibition’ means an order of a court prohibiting conduct that directly
relates to the circumstances of the crime for which the offender has been
convicted.” RCW 9.94A.030(10).
Id. at 683. We will uphold such a condition if it is “reasonably crime related.” Id. “A court does
not abuse its discretion if a ‘reasonable relationship’ between the crime of conviction and the
community custody condition exists.” Id. at 684 (citing State v. Irwin, 191 Wn. App. 644, 658-59,
364 P.3d 830 (2015)). “The prohibited conduct need not be identical to the crime of conviction,
but there must be ‘some basis for the connection.’” Id. (quoting Irwin, 191 Wn. App. at 657).
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No. 54143-2-II
B. POSSESSING, OWNING, OR PERUSING SEXUALLY EXPLICIT MATERIALS
Occiano first argues that the community custody condition prohibiting him from
possessing, owning, or perusing sexually explicit materials is not crime related.2 We disagree.
Although Occiano is correct that the record does not contain any evidence that sexually
explicit materials played a direct role in his crimes, our supreme court’s decision in Nguyen
demonstrates that this type of relationship is not required. Id. at 685. In Nguyen, the court addressed
a community custody condition similar to the one here and held that a direct causal relationship
with the offense or the risk of reoffense was not required. Id. Instead, the court held that even
though there was no evidence that such materials had directly contributed to the appellant’s sex
offenses, the fact the appellant had been convicted of sex crimes rendered it “both logical and
reasonable to conclude that a convicted person who cannot suppress sexual urges should be
prohibited from accessing ‘sexually explicit materials,’ the only purpose of which is to invoke
sexual stimulation.” Id. at 686.
The same reasoning applies here. As in Nguyen, there is a reasonable relationship between
the sex crimes and the community custody condition prohibiting Occiano from possessing,
owning, or perusing sexually explicit materials. Thus, the superior court did not abuse its discretion
when it imposed this community custody condition.
C. CURFEW REQUIREMENTS
Occiano next argues that the superior court abused its discretion when it imposed the
community custody condition subjecting him “to curfew requirements as directed by his CCO.”
2
We note that Occiano does not raise any vagueness, overbreadth, or First Amendment challenges
to this condition.
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No. 54143-2-II
CP at 58. He argues that this condition is not crime related. The State responds that this condition
was appropriate because Occiano is subject to community custody for life and the condition is part
of a comprehensive set of conditions that assist the DOC in its supervisory role. We agree with
Occiano.
The State does not dispute, and we agree, that there is nothing in the record suggesting that
a curfew is related to the nature of the crimes. The information available to the sentencing court
suggested only that these crimes were committed inside the family home, not that Occiano had
access to the victim because he was able to leave home unsupervised at a late hour. Thus, unless
the State can establish another basis upon which the superior court could impose the curfew
condition, the superior court abused its discretion in imposing this condition.
The State argues that the curfew condition was appropriate because it is part of a
comprehensive set of conditions that assist the DOC in its supervisory role. Although requiring
Occiano to abide by a curfew imposed by the DOC could potentially assist the DOC in its
supervision of Occiano, the State cites no authority stating that the superior court can require a
defendant to abide by a condition that is not crime-related simply to facilitate the DOC’s
supervision. The only authority the State cites is RCW 9.94A.704(2)(a), which allows the DOC to
establish and modify conditions of community custody to address the risk to community safety.
While this statute allows the DOC to impose additional community custody conditions, it does not
allow the superior court to impose community custody conditions that are not statutorily authorized
or crime related.
The State notes that the superior court also required Occiano to seek approval from the
DOC to travel outside geographical limits imposed by the CCO, change his address or
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No. 54143-2-II
employment, start employment, live at a location, possess certain sexually oriented material, or
have contact with children. But, unlike a curfew, each of those limitations is either statutorily
required under RCW 9.94A.704(3)(b) and (c), or crime related.
Because the curfew condition was not crime related and there is no statutory basis under
which the superior court imposed the condition, the superior court abused its discretion when it
imposed this condition. Accordingly, we remand to the superior court with instructions to strike
the curfew condition.
D. 900 NUMBERS
Occiano next challenges the community custody condition prohibiting him from calling
“900 numbers.” CP at 73. Again, he argues that this condition is not crime related. We disagree.3
Both parties agree that 900 numbers can be used to provide “sex-based entertainment” or
as a conduit for engaging in “sexually explicit phone conversations.” Br. of Appellant at 14; Br.
of Resp’t at 10. Because of the sexual nature of the 900 numbers, this condition falls into the same
category as the condition prohibiting possessing, owning, or perusing sexually explicit materials
that we discuss above. As with the sexually explicit materials condition, because Occiano had been
convicted of sex crimes it is “both logical and reasonable to conclude that a convicted person who
cannot suppress sexual urges should be prohibited from accessing ‘sexually explicit materials,’”
regardless of their form, when “the only purpose of which is to invoke sexual stimulation.” Nguyen,
191 Wn.2d at 686.
3
On appeal Occiano, does not argue that this condition is overbroad. But we note that nothing in
this opinion precludes the superior court from clarify the scope of this condition on remand.
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No. 54143-2-II
Thus, under Nguyen, there is a reasonable relationship between the crimes and the
community custody condition prohibiting him from using 900 numbers. Accordingly, the superior
court did not abuse its discretion when it imposed this community custody condition.
II. SUPERVISION FEES
Finally, Occiano argues that the superior court erred in requiring him to pay supervision
fees because they are discretionary “costs” that cannot be imposed on indigent defendants under
RCW 10.01.160(3).4 Br. of Appellant at 15. We disagree.
The supervision fees were imposed under RCW 9.94A.703(2)(d). RCW 9.94A.703(2)(d)
provides that, “[u]nless waived by the court, as part of any term of community custody, the court
shall order an offender to . . . [p]ay supervision fees as determined by the department.” Although
the supervision fees are a discretionary legal financial obligations that are waivable by the superior
court, they are not “costs” that require waiver under RCW 10.01.160(3) when the defendant is
indigent. State v. Starr, 16 Wn. App. 2d 106, 109, 479 P.3d 1209 (2021). Thus, the superior court
was not required to waive the supervision fees due to Occiano’s indigency. Furthermore, although
the superior court waived costs, there is nothing in the record demonstrating that it was superior
court’s intention to waive the supervision fees. Accordingly, this argument fails.
4
RCW 10.01.160(3) provides:
The court shall not order a defendant to pay costs if the defendant at the
time of sentencing is indigent as defined in RCW 10.101.010(3) (a) through (c). In
determining the amount and method of payment of costs for defendants who are
not indigent as defined in RCW 10.101.010(3) (a) through (c), the court shall take
account of the financial resources of the defendant and the nature of the burden that
payment of costs will impose.
(Emphasis added.)
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No. 54143-2-II
We note, however, that “[t]he barriers that [legal financial obligations] impose on an
offender’s reintegration to society are well documented . . . and should not be imposed lightly
merely because the legislature has not dictated that judges conduct the same inquiry required for
discretionary costs.” State v. Clark, 191 Wn. App. 369, 376, 362 P.3d 309 (2015). We agree that
this important policy should be broadly supported. Therefore, the superior court is free to strike
the community custody supervision fee on remand.
CONCLUSION
We agree that the community custody condition subjecting Occiano to curfew requirements
set by his CCO is not crime related, and we remand for the superior court to strike this condition.
We otherwise affirm.
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.
CRUSER, J.
We concur:
GLASGOW, A.C.J.
VELJACIC, J.
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