State Of Washington v. Michael Donald Stephens ( 2014 )


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  •      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    DIVISION ONE
    STATE OF WASHINGTON,                              No. 72364-2-1
    Respondent,
    v.
    MICHAEL DONALD STEPHENS,                          UNPUBLISHED OPINION
    Appellant.                    FILED: November 10, 2014
    Verellen, J. — Michael Stephens appeals from his judgment and sentence for his
    conviction of three counts of second degree child rape of his stepdaughters. Specifically,
    he challenges several community custody conditions and a no-contact order.
    We accept the State's concession that the community custody condition
    precluding him from possessing or using alcohol and frequenting establishments that
    feature alcohol are not crime related. We also accept the State's concession that the
    delegation to his community custody officer (CCO) to compel him to submit to unspecified
    physical or psychological testing is overbroad.
    We affirm the community custody condition that he not contact or communicate
    with minors except as authorized by his CCO and the no-contact order precluding him
    from direct or indirect contact with minors except as expressly authorized by the
    Department of Corrections (DOC).
    No. 72364-2-1/2
    FACTS
    Stephens pleaded guilty to three counts of second degree child rape against two
    victims, his stepdaughters. The trial court sentenced Stephens to 155 months of
    incarceration and to lifetime community custody. Over several objections from
    Stephens's counsel, the trial court entered the community custody conditions
    recommended in the presentence investigation report (PSI).
    The trial court imposed community custody conditions prohibiting Stephens from
    possessing or using alcohol and frequenting establishments that feature alcohol
    (condition 9), requiring Stephens to submit to physical or psychological testing whenever
    requested by his CCO (condition 11), and prohibiting Stephens from contacting or
    communicating with minors except as previously authorized by his CCO (condition 6).
    The trial court also entered a no-contact order prohibiting direct or indirect contact with
    minors unless expressly authorized by DOC.
    ANALYSIS
    Alcohol-Related Condition
    Stephens contends that the trial court erred in prohibiting him from possessing or
    using alcohol and frequenting any establishment "where alcohol is the chief item of
    sale."1 We accept the State's concession that this community custody condition should
    be stricken because it is neither crime related nor supported by facts in the record.
    A community custody condition must be authorized by the legislature.2 While many
    conditions are expressly enumerated, additional unenumerated conditions that are also
    authorized by the legislature may be imposed to monitor compliance with a trial court's
    1 Clerk's Papers (CP) at 19.
    2 State v. Pillatos. 
    159 Wn.2d 459
    , 469, 
    150 P.3d 1130
     (2007).
    No. 72364-2-1/3
    order.3 Community custody conditions that are expressly enumerated include "affirmative
    conduct reasonably related to the circumstances of the offense," a prohibition "from
    consuming alcohol," and compliance "with any crime-related prohibitions."4 Community
    custody conditions that do not reasonably relate to the circumstances of the crime for
    which the offender has been convicted are unlawful unless specifically permitted by
    statute.5 Whether a crime and a sentencing condition are related "'will always be
    subjective, and such issues have traditionally been left to the discretion of the sentencing
    judge.'"6 We review the imposition of crime-related prohibitions for abuse of discretion.7
    Here, nothing in the record suggests that alcohol contributed to Stephens's
    offenses or that the trial court's prohibition of possessing or using alcohol and frequenting
    establishments that feature alcohol was crime related. Although a trial court may
    expressly prohibit the consumption of alcohol as a lawful condition, the trial court here
    went a step further by prohibiting Stephens from frequenting any establishment "where
    alcohol is the chief item of sale."8 The only evidence in the record relating to alcohol is
    3SeeRCW9.94A.030(10).
    4 RCW 9.94A.703(3)(d), (e), (f).
    5 State v. Jones, 
    118 Wn. App. 199
    , 205, 
    76 P.3d 258
     (2003); see also
    RCW 9.94A.030(10) (defining "crime-related prohibition," which must have a factual
    nexus to the crime being punished); State v. Parramore, 
    53 Wn. App. 527
    , 530, 
    768 P.2d 530
    (1989).
    6 State v. Berg, 
    147 Wn. App. 923
    , 942, 
    198 P.3d 529
     (2008) (quoting Parramore,
    
    53 Wn. App. at 530
    ), abrogated on other grounds by State v. Mutch, 
    171 Wn.2d 646
    ,
    
    1254 P.3d 803
     (2011).
    7 Pers. Restraint of Rainev. 
    168 Wn.2d 367
    , 374, 
    299 P.3d 686
     (2010).
    8 CP at 19. The trial court determined, in imposing community custody condition
    9, that "there is a self-report of some excessive use of alcohol which considering the
    nature of these charges certainly eliminates one's natural inhibitions." Report of
    Proceedings (RP) (July 30, 2013) at 13.
    No. 72364-2-1/4
    that Stephens "drinks typically about once a month, when he drinks about 2 beers
    'typically' [and] [h]e also admits to the 'occasional drunk.'"9 Where the condition does not
    relate to the circumstances of the crime, such a condition is unlawful.10 Therefore, we
    conclude that the trial court lacked authority to impose community custody condition 9,
    and it must be stricken from Stephens's judgment and sentence on remand.
    Physical or Psychological Testing Condition
    Stephens argues that the community custody condition requiring him to submit to
    unspecified physical or psychological testing is both unconstitutionally vague and
    overbroad. We accept the State's concession and remand for clarification of this
    condition.
    Here, the trial court imposed community custody condition 11 requiring Stephens
    to "submit to physical and/or psychological testing whenever requested by [cjommunity
    [corrections [opcer, at [his] own expense, to assure compliance with [j]udgment and
    [s]entence or Department of Corrections' requirements."11 Although this condition is
    neither expressly enumerated in RCW 9.94A.703 nor a condition that the DOC may
    impose,12 additional conditions, such as requiring an offender to undergo specific
    9 CP at 50. At sentencing, Stephens's counsel argued that "occasional drunk"
    appeared to be a typographical error in the presentence investigation and that it should
    have read "occasional drink." RP (July 30, 2013) at 12. The State concedes that the
    record supports only that Stephens had an occasional drink, not that he drank to excess.
    
    10 Jones, 118
     Wn. App. at 207-08; see also Parramore, 
    53 Wn. App. at 531
    (striking a condition prohibiting the defendant from consuming alcohol when the State
    failed to show any connection between his use of alcohol and his delivery of marijuana
    conviction).
    11 CPat19.
    12
    See RCW 9.94A.704.
    No. 72364-2-1/5
    physical or psychological testing, may be imposed to monitor compliance with the trial
    court's order.13
    Although community custody condition 11 limits testing to "physical and/or
    psychological testing," it does not specify the particular testing to which Stephens may be
    exposed (e.g., polygraph testing, plethysmograph testing, or urinalysis testing).14 And the
    type of testing covered under this condition may also be encompassed in community
    custody condition 13 regarding sexual deviancy treatment.15 Because the delegation to
    the CCO is overbroad and vague, we accept the State's concession. On remand, the
    trial court may identify any specific testing necessary for monitoring compliance with the
    other community custody conditions imposed.16
    Contact with Minors
    Stephens argues that the trial court's imposition of a no-contact order and a
    community custody condition prohibiting contact with minors, including Stephens's non-
    victim biological children, violates his fundamental right to parent. We disagree.
    Community custody condition 6 states that Stephens "shall not contact or
    communicate with: minors under the age of 18 except as previously authorized by
    13 See RCW 9.94A.030(10); see also State v. Vant, 
    145 Wn. App. 592
    ,603, 
    186 P.3d 1149
     (2008) (confirming trial court's authority to order specific testing, such as
    random polygraph and urinalysis tests, to monitor compliance with sentencing
    conditions).
    14 CP at 19.
    15 Community custody condition 13 states that Stephens "shall undergo, maintain
    continuing progress in, and successfully complete an in-patient/out-patient sex offender
    treatment as set forth here: obtain a psychosexual evaluation within 30 days of release,
    enter into, comply with and successfully complete any recommended treatment resulting
    from this evaluation." 
    Id.
    16 See, e.g., State v. Johnson, 
    180 Wn. App. 318
    , 332, 
    327 P.3d 704
     (2014); Vant,
    145 Wn. App. at 607.
    No. 72364-2-1/6
    CCO."17 The no-contact order states that Stephens "shall not have direct or indirect
    contact with the following specified class of individuals: children under 18 years unless
    expressly authorized by DOC."18
    In addition to crime-related conditions, a court may order an offender to have no
    contact with victims or a "specified class of individuals."19 The specified class must bear
    some relationship to the crime.20 We review "sentencing conditions for abuse of
    discretion."21 A parent has the constitutional right to raise children without State
    interference.22 "But parental rights are not absolute and may be subject to reasonable
    regulation."23 A sentencing court may impose limitations on this right when reasonably
    necessary to further the State's compelling interest in protecting children.24 A sentencing
    condition that affects the fundamental right to parent must be "sensitively imposed" so
    that it is "reasonably necessary to accomplish the essential needs of the State and public
    order."25
    In State v. Corbett, the court held a no-contact order prohibiting the defendant
    from contact with all minor children, including his non-victim biological children, was a
    "valid crime-related prohibition that does not unduly burden [the defendant's] fundamental
    17 CP at 19.
    18 Id, at 10.
    19 RCW 9.94A.703(3)(b).
    20 State v. Riles, 
    135 Wn.2d 326
    , 350, 
    957 P.2d 655
     (1998), abrogated on other
    grounds by State v. Valencia. 
    169 Wn.2d 782
    , 
    239 P.3d 1059
    (2010).
    21 State v. Warren. 
    165 Wn.2d 17
    , 32, 
    195 P.3d 940
     (2008).
    22 State v. Corbett. 
    158 Wn. App. 576
    , 598, 
    242 P.3d 52
     (2010).
    23 ]g\
    24 Id.; see also Warren, 
    165 Wn.2d at 32
    .
    25 Warren, 
    165 Wn.2d at 32
    .
    No. 72364-2-1/7
    parenting rights."26 In upholding the order, the court determined that the defendant's
    children were at risk because he acted as a parent to the victim and abused his parenting
    role by sexually abusing a minor in his care.27 Similarly, in State v. Berg, the court upheld
    an order prohibiting the defendant from unsupervised contact with female minors.28 The
    victim, a female minor, lived with the defendant in his home where the crime occurred.29
    The court determined that "[a]n order restricting contact with other female children who
    lived in the home," including his biological child, "was therefore reasonable to protect
    those children from the same type of harm."30
    Here, the crimes involved Stephens's role as a parent to his stepdaughters, the
    victims. It was therefore directly related to the crime and within the discretion of the trial
    court to limit contact with his two sons because his sons fell within the class of persons
    he had victimized like in Corbett and Berg.31 Insofar as Stephens contends the condition
    and no-contact order are not narrowly tailored to meet the State's objectives, he is not
    completely restricted from having contact with his biological children. Both of Stephens's
    sons will be adults when he is released to community custody. While he remains in
    prison, it is reasonable for the trial court to anticipate that DOC will have a role in
    26 
    158 Wn. App. 576
    , 601, 
    242 P.3d 52
     (2010).
    27 Id at 599-600.
    28 
    147 Wn. App. 923
    , 943, 
    198 P.3d 529
     (2008).
    29 jcL at 942-43.
    30 \± at 943.
    31 M.J.S., the younger biological son, lived in Stephens's home. R.A.S., the older
    biological son by a prior marriage, did not live in Stephens's home. While the trial court
    found that "[t]here's no indication that the biological children are victims in this particular
    incident," it found that "they're entitled to the same protection [as the victims.]" RP
    (July 30, 2013) at 13.
    No. 72364-2-1/8
    determining contact with his sons—in visitations, correspondence, and phone calls. It
    was not therefore an abuse of discretion to delegate to DOC the terms and conditions of
    Stephens's contact with his sons while he remains in prison. Accordingly, we affirm
    community custody condition 6 and the no-contact order prohibiting contact with minor
    children, including Stephens's biological children, as a valid crime-related prohibition that
    does not unduly burden his fundamental parenting rights.
    We reject the State's argument that these issues are not ripe for review because it
    is not clear what limitations, if any, DOC might impose. A claim is ripe and therefore fit
    for judicial determination ifthe issue is primarily legal, does not require further factual
    development, and the challenged action is final.32 We read Stephens's challenge as
    primarily a legal issue: whether the trial court abused its discretion in making this
    delegation to DOC. Such a legal question need not wait for further factual development.
    We affirm in part, reverse in part, and remand for proceedings consistent with this
    opinion.
    WE CONCUR:
    jt7c^/7vw\; C,o ,                              pr.)U>i i/^QQ                          CD
    32 State v. Bah I. 
    164 Wn.2d 739
    , 751, 
    193 P.3d 678
     (2008).