State of Washington v. Kevin Arther Peters ( 2019 )

FILED
SEPTEMBER 17, 2019
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 31755-2-III
)
Respondent, )
)
v. ) OPINION PUBLISHED IN PART
)
KEVIN ARTHER PETERS, )
)
Appellant. )
SIDDOWAY, J. — Charged with raping and drugging his three minor children for
years, Kevin Peters pleaded guilty to two counts of first degree rape of a child and one
count of first degree child molestation. At sentencing, the trial court sentenced him to a
term of total confinement of 216 months to life, lifetime community custody, and dozens
of community custody conditions.
Mr. Peters limits his challenges on appeal to a dozen community custody
conditions, none of which were objected to in the trial court. In the published portion of
this opinion, we touch on reasons why such conditions might not be reviewable for the
first time on appeal. For the conditions that are eligible for review, we identify those that
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State v. Peters
require modification and two that could benefit from clarification. The case is remanded
for the entry of a judgment and sentence revised in accordance with the opinion.
FACTS
Because Kevin Peters pleaded guilty to the three charges, we need not go into the
disturbing allegations of his years-long sexual abuse of his three children.
At sentencing, the trial court imposed the high end of the standard range and 33
community custody conditions requested by the State, 9 of which were identified as
mandatory. Mr. Peters made no objection to the conditions at sentencing. He appeals.
ANALYSIS
For the first time on appeal, Mr. Peters challenges 12 of the community custody
conditions imposed by the sentencing court.
The Sentencing Reform Act of 1981 (SRA)1 provides that when a court sentences
a person to a term of community custody, the court shall impose conditions of
community custody. RCW 9.94A.703. The act identifies certain conditions as
mandatory, others as waivable, and others as discretionary. Id. Among discretionary
conditions that the court is authorized to impose are orders that an offender “[c]omply
with any crime-related prohibitions.” RCW 9.94A.703(3)(f). “Crime-related
prohibitions” are orders “prohibiting conduct that directly relates to the circumstances of
the crime for which the offender has been convicted.” Former RCW 9.94A.030(13)
1
Chapter 9.94A RCW.
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(2008). They can include prohibitions that address some factor of the crime that might
cause the convicted person to reoffend. State v. Hai Minh Nguyen, 191 Wash. 2d 671, 684-
85, 425 P.3d 847 (2018). The State need not establish that the conduct being prohibited
directly caused the crime of conviction or will necessarily prevent the convict from
reoffending. Id. at 685.
Challenges to sentencing conditions that were not raised in the trial court may not
be eligible for review, given RAP 2.5(a)’s general requirement for issue preservation.
State v. Casimiro, 8 Wash. App. 2d 245, 249, 438 P.3d 137, review denied, 445 P.3d 561
(2019). Appellate courts have authority to consider claims of manifest constitutional
error that were not raised in the trial court, provided that an adequate record exists to
consider the claim. Id. (citing RAP 2.5(a)(3); State v. McFarland, 127 Wash. 2d 322, 333,
899 P.2d 1251 (1995)). Additionally, in Bahl, our Supreme Court recognized that the
non-rule based exception for illegal or erroneous sentences created by State v. Ford, 137
Wash. 2d 472, 477-78, 973 P.2d 452 (1999), provides a basis for some unpreserved
challenges to community custody conditions. State v. Bahl, 164 Wash. 2d 739, 744, 193
P.3d 678 (2008).
Recent decisions have clarified that the non-rule based exception allowing review
of unpreserved sentencing errors is limited by the concern for sentence conformity that is
the basis for the exception. As explained in State v. Blazina:
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We did not want to “permit[ ] widely varying sentences to stand for no
reason other than the failure of counsel to register a proper objection in the
trial court.” Errors in calculating offender scores and the imposition of
vague community custody requirements create this sort of sentencing error
and properly fall within this narrow category. We thought it justifiable to
review these challenges raised for the first time on appeal because the error,
if permitted to stand, would create inconsistent sentences for the same
crime and because some defendants would receive unjust punishment
simply because his or her attorney failed to object.
182 Wash. 2d 827, 833-34, 344 P.3d 680 (2015) (alteration in original) (citations and
internal quotation marks omitted) (quoting Ford, 137 Wash. 2d at 478). Blazina made clear
that the exception for illegal or erroneous sentences does not apply when the challenged
sentence term, had it been objected to in the trial court, was one that depends on a case-
by-case analysis. Id. at 834. And courts never need consider claims of error—even
constitutional error—that were invited or waived. Casimiro, 8 Wash. App. 2d at 249
(citing State v. Studd, 137 Wash. 2d 533, 545-49, 973 P.2d 1049 (1999) (invited error); State
v. Mierz, 127 Wash. 2d 460, 468, 901 P.2d 286 (1995) (waived)).
Even if an alleged error is preserved, it may not be ripe for review on its merits
under a prudential ripeness test adopted by our Supreme Court in Bahl. It is ripe “‘if the
issues raised are primarily legal, do not require further factual development, and the
challenged action is final.’” State v. Cates, 183 Wash. 2d 531, 534, 354 P.3d 832 (2015)
(citations and internal quotation marks omitted) (quoting State v. Sanchez Valencia, 169
Wash. 2d 782, 786, 239 P.3d 1059 (2010)). Further factual development will be required if
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the condition would only violate the constitution if misapplied, but could be
constitutionally applied depending on the circumstances of the enforcement. Id. at 535.
Before refusing to review a preenforcement challenge on direct appeal, a
reviewing court must also consider the hardship to the offender. Id. at 834-35. In
Sanchez Valencia and Bahl, our Supreme Court held that the risk of hardship will justify
review before factual development if the challenged condition immediately restricts an
offender’s conduct upon release from prison. Cates, 183 Wash. 2d at 535-36.
To summarize, for an objection to a community custody condition to be entitled to
review for the first time on appeal, it must (1) be manifest constitutional error or a
sentencing condition that, as Blazina explains, is “illegal or erroneous” as a matter of law,
and (2) it must be ripe. If it is ineligible for review for one reason, we need not consider
the other.
We review conditions of community custody for abuse of discretion, reversing
such conditions only if they are manifestly unreasonable. State v. Padilla, 190 Wash. 2d
672, 677, 416 P.3d 712 (2018). The imposition of an unconstitutional condition is
manifestly unreasonable. Sanchez Valencia, 169 Wash. 2d at 792.
I. THE CHALLENGE TO THE LIFETIME NO-CONTACT ORDER IS NOT MANIFEST
CONSTITUTIONAL ERROR NOR IS IT ILLEGAL OR ERRONEOUS AS A MATTER OF LAW
Mr. Peters challenges “Other Condition” 1, that he have no contact with his
children for life. He argues that the lifetime no-contact order violates his fundamental
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constitutional right as a parent to raise his children without government interference. See
State v. Corbett, 158 Wash. App. 576, 598, 242 P.3d 52 (2010). The condition is ripe for
review because it already restricts his actions. But it is not manifest constitutional error
nor is it illegal or erroneous as a matter of law.
The alleged error raises a constitutional issue. Community custody conditions
interfering with a parent’s fundamental constitutional right to parent may be imposed, but
they “must be ‘sensitively imposed’ so that they are ‘reasonably necessary to accomplish
the essential needs of the State and public order.’” In re Pers. Restraint of Rainey, 168
Wash. 2d 367, 377, 229 P.3d 686 (2010) (quoting State v. Warren, 165 Wash. 2d 17, 32, 195
P.3d 940 (2008)). In the case of a no-contact order, the order, its scope, and its duration
must all be reasonably necessary. Id. at 381. These are “fact-specific” inquiries. Id. at
382.
In Rainey, the Supreme Court struck a lifetime no-contact order in part and
remanded for consideration of whether it was “reasonably necessary.” But there—unlike
here—the defense made a timely objection to the condition in the trial court. Id. at 373.
The condition was struck and the case remanded because there was no indication that
Rainey’s argument against its scope and duration had been considered by the trial court.
Id. at 382.
If there was error in Mr. Peters’s case it is not manifest because actual prejudice is
not shown. See McFarland, 127 Wash. 2d at 333. Victim impact statements considered by
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the sentencing court included a statement by Mr. Peters’s oldest child that “I hate your
guts and I wish you were dead.” Clerk’s Papers (CP) at 80. His middle child stated he
“does not want his dad to get out (of prison) and hurt other people.” CP at 87. His
youngest child stated, “He should be in jail for longer than he will live,” and “I hate you.”
CP at 78. In the CASA’s2 statement at the sentencing hearing, she described Mr. Peters’s
actions toward his children as “pervasive and protracted,” “creat[ing] for them a world of
fear,” and that his actions were going to leave the children “vulnerable, and
dysfunctional, I believe, for the rest of their lives.” Report of Proceedings3 (Sept. 19,
2012; Oct. 23 & 30, 2012) (RP)at 35. At the plea hearing and at sentencing, defense
counsel treated it as given that a lifetime no-contact order would protect the children. See
RP at 7, 59 (stating that Mr. Peters “knows he can never have contact with [his
children]”).
Because the evidence in the record is sufficient to support a reasonable necessity
for a lifetime no-contact order, the condition is not illegal or erroneous as a matter of law.
Since Mr. Peters did not object (and even conceded, through counsel, that the order
would be imposed) he is not entitled to appellate review.
2
Court appointed special advocate.
3
All “RP” references are to the verbatim transcript of proceedings that includes
the plea hearing, an October 23, 2012 motion hearing, and sentencing. Mr. Peters’s
untimely appeal was accepted after the Washington Supreme Court ordered that the
mandate be withdrawn and that this court allow for the filing of a late appeal. State v.
Peters, Order, No. 95146-2 (Wash. Apr. 4, 2018).
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II. OTHER CONTACT RESTRICTIONS DESIGNED TO PROTECT THIRD PARTIES
Mr. Peters challenges five community custody conditions whose apparent purpose
is to protect others from a risk of future offenses by Mr. Peters. He challenges the
following conditions:
Do not reside in a location within 888 feet of a Community Protection
Zone.
CP at 105 (“Other Condition” 13).
Have no contact with Minors unless approved by your assigned Community
Corrections Officer, and if applicable, Sex Offender Treatment Provider.
Id. (“Other Condition” 3).
Do not go to places where children congregate (i.e. schools, playgrounds,
parks, etc.).
Id. (“Other Condition” 10).
Do not enter into any romantic relationships without the prior approval of
your supervising Community Corrections Officer, and if applicable, Sex
Offender Treatment Provider.
Id. (“Other Condition” 7), and
Notify any employer(s) regarding the nature of your sex offenses.
CP at 106 (“Other Condition” 16).
Community protection zone condition
We begin with the “community protection zone” condition, “Other Condition” 13.
Among mandatory conditions for offenders “sentenced under RCW 9.94A.507 for an
offense listed in RCW 9.94A.507(1)(a),” against a “victim . . . under eighteen years of
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age,” is to “prohibit the offender from residing in a community protection zone.”
RCW 9.94A.703(1)(c). The condition applies to Mr. Peters, since his convictions for first
degree rape are for an offense listed in RCW 9.94A.507(1)(a). “Community protection
zone” is defined by the SRA to mean “the area within eight hundred eighty feet of the
facilities and grounds of a public or private school.” Former RCW 9.94A.030(8).
Mr. Peters rightly contends that as drafted, the condition requires him to reside
888 feet from the protection zone, not the school, thereby enlarging the mandated
distance between his residence and a school from 880 feet to 1,768 feet—to one-third
mile, rather than one-sixth mile. The State takes the position that the condition is a
flawed articulation of the mandatory condition rather than an attempt to broaden it. It
agrees that the condition should be corrected on remand, suggesting it be revised to say
“‘do not reside within a community protection zone, as defined in RCW 9.94A.030(6).’”
Br. of Resp’t at 20.
Mr. Peters also argues that the condition is unconstitutionally vague, since it is
unclear whether a college or university is a “school” for this purpose. “A statute is
unconstitutionally vague if it (1) does not define the criminal offense with sufficient
definiteness that ordinary people can understand what conduct is proscribed, or (2) does
not provide ascertainable standards of guilt to protect against arbitrary enforcement.”
State v. Johnson, 4 Wash. App. 2d 352, 364, 421 P.3d 969, review denied, 192 Wash. 2d
1003, 430 P.3d 260 (2018). A community custody condition “is not unconstitutionally
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vague merely because a person cannot predict with complete certainty the exact point at
which his actions would be classified as prohibited conduct.” City of Seattle v. Eze, 111
Wash. 2d 22, 27, 759 P.2d 366 (1988).
Constitutional vagueness challenges to conditions that restrict an offender’s
conduct immediately, or immediately upon release from prison, are ripe for review.
Bahl, 164 Wash. 2d at 751-52. And if “public or private school” is unconstitutionally
vague, then the sentence term is illegal or erroneous as a matter of law and can be raised
for the first time on appeal.
“In deciding whether a term is unconstitutionally vague, the terms are not
considered in a ‘vacuum,’ rather, they are considered in the context in which they are
used.” Id. at 754. The fact that a term is defined by a relevant statute bolsters the
conclusion that it is not unconstitutionally vague. Hai Minh Nguyen, 191 Wash. 2d
at 680. “Private school” and “public school” are both defined by the SRA. See
Former RCW 9.94A.030(36), (37). Both are defined with reference to Title 28A RCW,
which deals with “common schools,” meaning “schools maintained at public
expense in each school district from kindergarten through the twelfth grade.” Id.;
RCW 28A.150.020. Particularly because this is a mandatory condition that uses the
statutorily defined term “community protection zone,” whose definition relies, in turn, on
the statutorily defined terms “private school” and “public school,” the condition is not
vague.
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We accept the State’s concession that the condition misstates the mandatory
condition provided by RCW 9.94A.703(1)(c) and remand with directions to modify it to
conform to the mandatory condition.
Conditions addressing contact with children and minors
We turn next to the two conditions involving “minors” and “children”: “Other
Condition” 3, that Mr. Peters have no contact with minors unless approved by his
community custody officer (CCO),4 and “Other Condition” 10, that he not go to places
where children congregate, with illustrative examples. Mr. Peters challenges the
conditions as unconstitutionally vague. He also argues that if “minors” is understood to
include individuals over age 16, it is not crime related because his victims were younger.
Washington courts have addressed challenges to conditions requiring offenders to
stay away from places where children congregate in at least six published decisions5 and
in many more unpublished decisions. Judge Lee’s concurrence/dissent in part in State v.
Wallmuller, 4 Wash. App. 2d 698, 704-06, 423 P.3d 282 (2018) provides a thorough review
4
Almost all of the challenged conditions that require approval or authorization of
Mr. Peters’s CCO also require the approval or authorization of “if applicable,” his “Sex
Offender Treatment Provider.” CP at 105-06.
5
In chronological order, State v. Riles, 135 Wash. 2d 326, 957 P.2d 655 (1998),
abrogated on other grounds by Sanchez Valencia, 169 Wash. 2d 782; State v. Irwin, 191
Wash. App. 644, 652, 364 P.3d 830 (2015); State v. Magana, 197 Wash. App. 189, 201, 389
P.3d 654 (2016); State v. Norris, 1 Wash. App. 2d 87, 95, 404 P.3d 83 (2017), aff’d in part,
rev’d in part on other grounds sub nom. Hai Minh Nguyen, 191 Wash. 2d 671; Johnson, 4
Wash. App. 2d 352; and State v. Wallmuller, 4 Wash. App. 2d 698, 704, 423 P.3d 282 (2018),
review granted, 192 Wash. 2d 1009, 432 P.3d 794 (2019).
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of Washington courts’ treatment of this sort of condition, beginning with the Supreme
Court’s rejection of a vagueness challenge in Riles, followed by Division One’s decision
in State v. Irwin, 191 Wash. App. 644, 364 P.3d 830 (2015), which struck such a condition
as unconstitutionally vague but signaled modifications that would avoid vagueness
problems, followed by decisions of the three divisions, many unpublished, which took
Irwin’s reasoning in different directions. We will not provide our own review and
analysis of Washington decisions because the issue of the constitutionality of such
provisions is presently before the Washington Supreme Court, which accepted review of
Division Two’s decision in Wallmuller. Oral argument was heard on May 14, 2019.
We reaffirm this division’s decision in Johnson, in which we rejected a vagueness
challenge to a condition that required the defendant to “‘[a]void places where children
congregate,’” followed by an illustrative list of places. 4 Wash. App. 2d at 360 (alteration
in original). For the reasons explained in Johnson, we reject Mr. Peters’s vagueness
challenge to the similar condition imposed on him. As in Johnson, we will direct the
court on remand to modify the condition to specify that the venues to be avoided were
those where “children under 16 congregate.”6
6
Johnson rejected the contention that use of the word “children” was confusing,
pointing out that in the context of a sex offense, the term “children” refers to individuals
under the age of 16. Id. at 361 (citing RCW 9A.44.073-.089). This court nonetheless
directed the trial court to add the qualifier “under 16” because the statutory definition
might not be readily apparent to someone outside the criminal justice system. Id. at n.3.
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Mr. Peters challenges the condition that he have no contact with minors unless
approved by his CCO as vague because an ordinary person would not know whether
“minors” means persons under 16 years old, 18 years old, or 21 years old. In support of
his argument, Mr. Peters points to RCW 66.44.270, which defines the term “minor” in
the context of furnishing alcohol to minors, and RCW 46.61.5055(6), which penalizes
driving under the influence with a minor passenger.
As previously discussed, in deciding whether a term is unconstitutionally vague,
we consider it in the context in which it is used. In Johnson, we held that in the context
of a sex offense, the meaning of the term “children” is determined from provisions
of the SRA addressing such offenses against children. 4 Wash. App. 2d at 361 (citing
RCW 9A.44.073-.089). In the case of “minor,” here, the meaning of the term is
determined from statutes dealing with the sexual exploitation of children (chapter 9.68A
RCW), not from statutes dealing with driving or furnishing alcohol. Chapter
9.68A RCW defines “minor” as meaning “any person under eighteen years of age.”
Former RCW 9.68A.011(4) (2002). While the relevant definition is clear, we will direct
the court on remand to specify that Mr. Peters is to “have no contact with minors under
18 unless approved . . .” because the statutory definition might not be readily apparent to
someone outside the criminal justice system.
Mr. Peters also argues that unless “minors” means children under age 16, it is not
crime related because none of his victims was over 16 years old. A condition need not
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exactly mirror the means and methods of the charged crime to be crime related, however.
E.g., State v. Kinzle, 181 Wash. App. 774, 785, 326 P.3d 870 (2014) (court prohibited the
defendant from dating women who have children, even though his victims were the
children of social contacts whom he did not date). The Supreme Court’s decision in
Riles, on which Mr. Peters relies, does not support his position. In that consolidated
appeal, the court struck a condition prohibiting contact with minors that was imposed on
a defendant convicted of raping a 19-year-old woman but affirmed the same condition
imposed on a defendant convicted of raping a 6-year-old boy. 135 Wash. 2d at 347-50. The
court’s consistent reasoning was that a restriction on contact with minors can be imposed
where, as here, the defendant’s victim was a minor.
Romantic relationships
Mr. Peters contends that requiring him to obtain the prior approval of his CCO
before entering into a romantic relationship is invalid for three reasons: he argues that
“romantic relationship” is vague, the condition is not crime related, and giving veto
power over his adult relationships violates his federal and state constitutional rights to
form intimate relationships. The State concedes that the term “romantic relationships” is
vague but asks that rather than strike the condition, we direct the trial court to substitute
“dating relationship.” In Hai Minh Nguyen, the Supreme Court held that “dating
relationship” is not unconstitutionally vague. 191 Wash. 2d at 683.
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We agree that “romantic relationships” is vague.7 Mr. Peters accepts the State’s
proposed solution to the vagueness problem that “dating relationships” be substituted.
He argues that his other two challenges remain. With the vagueness problem solved, we
turn to whether Mr. Peters’s remaining challenges are eligible for review.
The crime relatedness of the condition is not eligible for review. The Supreme
Court emphasized in Hai Minh Nguyen that we review sentencing conditions for an abuse
of discretion, and “[a] court does not abuse its discretion if a ‘reasonable relationship’
between the crime of conviction and the community custody condition exists”; stated
differently, “there must be ‘some basis for the connection.’” 191 Wash. 2d at 684 (quoting
Irwin, 191 Wash. App. at 658-59, 657). We review the factual basis for a trial court’s
implicit finding that a condition is crime related using a “substantial evidence” standard.
State v. Padilla, 190 Wash. 2d 672, 683, 416 P.3d 712 (2018).
As this court recently pointed out in Casimiro, where there is no objection to
community custody conditions in the trial court, there is no reason for the parties or the
court to create a record on the relationship between the crime and the conditions imposed.
8 Wash. App. 2d at 249. We are not required to consider an argument that a sentencing
7
We previously came to that conclusion in State v. Dickerson, No. 32899-6-III,
slip op. at 2, 9-10 (Wash. Ct. App. May 26, 2016) (unpublished)
https://www.courts.wa.gov/opinions/pdf/328996.unp.pdf. The unpublished opinion has
no precedential value, is not binding on any court, and is cited only for what we deem its
persuasive value.
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condition is not crime related when the offender had the opportunity to raise the
contention in the trial court, creating a record, and failed to do so. See id.
The delegation of authority to a CCO to approve dating relationships is not
manifest constitutional error nor is it illegal or erroneous as a matter of law. In State v.
Autrey, 136 Wash. App. 460, 468, 150 P.3d 580 (2006), this court held that imposing a
prior approval condition as it relates to adult sexual contact was sufficiently related to
two defendants’ sexual offenses against children, explaining that “the offender’s freedom
of choosing even adult sexual partners is reasonably related to their crimes because
potential romantic partners may be responsible for the safety of live-in or visiting
minors.” Id. The court also observed that if, after release, the supervision as applied
“appears intrusive as appellants fear, they may seek a sentencing condition review.” Id.
at 469.
Mr. Peters argues that Autrey’s “broad holding has been eroded over time,” citing
Kinzle as upholding a narrower condition requiring that the defendant not “‘date women
nor form relationships with families who have minor children, as directed by the
supervising Community Corrections Officer.’” Br. of Appellant at 17 (quoting Kinzle,
181 Wash. App. at 785). The decision in Kinzle involved a narrower restriction, but the
court did not state or imply disagreement with Autrey. Mr. Peters’s implicit acceptance
of Kinzle demonstrates that a prior approval condition for dating relationships can be
exercised constitutionally. And cf. Hai Minh Nguyen, 191 Wash. 2d at 685 (citing Kinzle
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with approval; a prohibition against forming relationships with women who have minor
children was crime related because it “aimed to prevent the defendant from
reoffending”). Because the condition can be constitutionally applied depending on the
circumstances, Mr. Peters is not entitled to review.
Notification of employers
Mr. Peters challenges the requirement that he notify any employers regarding the
nature of his offenses. He challenges the condition as vague and as not crime related.
We decline to address his challenge to the condition’s crime relatedness because he failed
to raise the issue in the trial court.
In Kinzle, this court rejected a challenge that an employment-related condition was
unconstitutionally vague and overbroad because the defendant failed to argue or establish
that his challenge to the condition was ripe for review. 181 Wash. App. at 785-86. The
same is true here.
Further factual development is required because the employer notification
condition can be constitutionally applied. In addressing a constitutional challenge to the
sex offender registration statute,8 25 years ago, our Supreme Court held that
dissemination of information about an offender’s crimes was not punishment in violation
of the ex post facto provisions of the United States and Washington Constitutions
8
RCW 9A.44.130.
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because the information would be disseminated where there was evidence of the
offender’s dangerousness and the information would be limited in content and scope to
counteract the danger presented by the offender. State v. Ward, 123 Wash. 2d 488, 500-04,
869 P.2d 1062 (1994). The same reasoning supports a community custody condition
requiring employer notification that is motivated by concerns for public safety. In
Casimiro, this court even found support for an employer notification provision in
RCW 9.94A.703(2)(b) and (3)(d). 8 Wash. App. 2d at 251.
The condition does not present a risk of hardship that justifies review before
factual development. If Mr. Peters decides to seek employment following his release
from prison and cannot agree with his CCO on the employer notification required, he can
seek review at that time. It appears unlikely that review will ever be required, however.
Mr. Peters’s source of income in and after 2005 has been Social Security disability
benefits based on traumatic brain injuries he suffered as a child and later work-related
injuries. CP at 67. If he was disabled from employment when he was in his 30s and 40s,
it is doubtful he will look for employment upon his release from prison at age 59 or older.
The condition is not ripe for review.
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III. THE CONDITION PROHIBITING THE POSSESSION AND USE OF “SEXUALLY EXPLICIT
MATERIALS” IS NOT UNCONSTITUTIONALLY VAGUE
Mr. Peters challenges the condition prohibiting him from accessing, using or
possessing “sexually explicit materials” unless authorized by his CCO as constitutionally
vague and not crime related. We decline to review his challenge to crime relatedness.
Our Supreme Court has held that the term “sexually explicit” is not
constitutionally vague. In Bahl, the defendant challenged a condition that prevented him
from frequenting “‘establishments whose primary business pertains to sexually explicit
or erotic material.’” 164 Wash. 2d at 758. The Supreme Court rejected his contention that
“sexually explicit” was vague, finding it to mean, based on dictionary definitions,
“‘clearly expressed sexual’ materials or materials that are unequivocally sexual in
nature”—a meaning enabling a person of ordinary intelligence to understand what is
proscribed. Id. at 759. The fact that the term “sexually explicit” is defined in
RCW 9.68.130(1) was found by the court to bolster its conclusion that, in the context
used, the term was not unconstitutionally vague. Id. at 760.
While Bahl involved a restriction on frequenting certain establishments, the
Supreme Court recently had occasion in Hai Minh Nguyen to discuss its application to a
condition prohibiting the access, use, or possession of sexually explicit materials. 191
Wash. 2d at 680-81. The court held that in the context of using and possessing materials,
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“persons of ordinary intelligence can discern ‘sexually explicit material’ from works of
art and anthropological significance.” Id.
Mr. Peters attempts to distinguish Hai Minh Nguyen as involving a sentencing
condition that expressly tied “sexually explicit material” to its statutory definition. But
the court’s decision in Hai Minh Nguyen did not turn on the express reference to the
statutory definition. And the condition in Bahl did not refer to the statutory definition at
all. Mr. Peters’s challenge fails under Bahl and Hai Minh Nguyen.
A majority of the panel having determined that only the foregoing portion of this
opinion will be printed in the Washington Appellate Reports and that the remainder
having no precedential value shall be filed for public record pursuant to RCW 2.06.040,
it is so ordered.
IV. THE CONDITION REQUIRING PLETHYSMOGRAPH TESTING REQUIRES CLARIFICATION
Mr. Peters challenges “Other Condition” 9, that he “[s]ubmit to Plethysmograph
testing as directed” because it does not include language that the testing is only permitted
within the context of treatment. CP at 105. “Trial courts may require sex offenders to
undergo plethysmograph testing as part of a treatment program imposed under
RCW 9.94A.120(9)(c)(iii).” Riles, 135 Wash. 2d at 352. “However, a sentencing court may
not order plethysmograph testing unless it also requires crime-related treatment for sexual
deviancy. Unlike polygraph testing, plethysmograph testing does not serve a general
20
No. 31755-2-III
State v. Peters
monitoring purpose. It is only useful within the context of a comprehensive evaluation or
treatment process.” Id.
The State concedes that plethysmograph testing cannot be ordered outside the
context of treatment. Rather than strike the condition, however, it asks that we follow the
approach of State v. Johnson, 184 Wash. App. 777, 781, 340 P.3d 230 (2014) and affirm
the condition but clarify that the CCO’s scope of authority is limited to ordering
plethysmograph testing for the purpose of sexual deviancy treatment and not for
monitoring purposes. Mr. Peters accepts the concession but asks that we require the court
to clarify the condition on remand. We will require clarification on remand.
V. THE CHALLENGE TO THE CONDITION REQUIRING SUBMISSION TO HOME VISITS IS
NOT RIPE FOR REVIEW
Mr. Peters challenges the condition requiring him to “[s]ubmit to Home Visits to
monitor compliance with supervision. Home Visits include access for the purpose of
visual inspection of all areas you live, or have exclusive/joint control or access.” CP at
105. He argues the condition is unconstitutional under the Fourth and Fourteenth
Amendments to the United States Constitution.
The same challenge to a substantially similar home visit condition was rejected by
our Supreme Court in Cates, in which the court held the challenge was not ripe for
review. 183 Wash. 2d at 535-36. Mr. Peters acknowledges Cates, but asks that we hold
that if and when the State wishes to enforce the condition by demanding that he submit to
21
No. 31755-2-III
State v. Peters
a search, the State should first be required to return to court and obtain permission of the
superior court.
Mr. Peters’s proposal would require us to ignore the Supreme Court’s analysis in
Cates of why the risk of hardship presented by a home visit condition is insufficient to
justify review of the challenge before it is factually developed. Cates states:
Compliance here does not require Cates to do, or refrain from doing,
anything upon his release until the State requests and conducts a home visit.
Cates will not “suffer significant risk of hardship” if we decline to review
the merits at this time.
183 Wash. 2d at 536 (quoting Sanchez Valencia, 169 Wash. 2d at 790).
The home visit condition does not give Mr. Peters’s CCO the right to search Mr.
Peters’s home on an inadequate basis over Mr. Peters’s objection. It requires Mr. Peters
to “submit” to a home visit—thus framed, if he believes the CCO lacks an adequate basis,
he can refuse and test the enforcement of the condition.9
9
Mr. Peters cites an unpublished decision of this court that observed—in the
context of penile plethysmograph testing—that a challenge is faced by “an individual
who is compelled to engage in an invasive procedure and who faces contempt for
refusing to comply” and that “[a]n appeal as a matter of right after the invasive procedure
could be a hollow remedy.” Br. of Appellant at 27 (quoting In re Det. of Herrick, No.
69993-8-I, slip op. at 8 n.21 (Wash. Ct. App. Apr. 3, 2017) (unpublished)
http://www.courts.wa.gov/opinions/pdf/699938.pdf). But in that case, which involves the
distinguishable contexts of penile plethysmography and remedies following a finding of
contempt, the State followed the procedure Mr. Peters asks us to require—it filed a
motion and obtained an order requiring the testing. It should also be noted that even in
those distinguishable contexts, the decision pointed out that Mr. Herrick had alternatives
to submitting to plethysmograph testing and then pursuing the “hollow remedy” of a
direct appeal.
22
No. 31755-2-III
State v. Peters
VI. TWO OF THE DRUG-RELATED CONDITIONS REQUIRE CLARIFICATION
Finally, while Mr. Peters concedes that restrictions related to substance abuse
would qualify as crime related in his case, he contends that three drug-related conditions
imposed by the court are unconstitutionally vague.
The first of the three challenged conditions, “Other Condition” 22, states, “Do not
possess Drug Paraphernalia.” CP at 106. Mr. Peters cites Sanchez Valencia as support
for a vagueness challenge to the condition, but one of the problems with the condition
imposed in Sanchez Valencia was that it did not use the term “drug paraphernalia,” which
is a well-known defined term in the Uniform Controlled Substances Act.10 Instead, it
prohibited possession of what the court characterized as a “much broader” category of
items: “any paraphernalia” usable for ingesting or processing controlled substances or
facilitating their sale or transfer. Sanchez Valencia, 169 Wash. 2d at 794. Because the
condition in this case uses the well known and much narrower term “drug paraphernalia,”
the condition is not unconstitutionally vague. See id. at 795 (Johnson, J.M., concurring)
(“On remand, the sentencing court can easily correct its error by changing the prohibition
on ‘paraphernalia’ to ‘drug paraphernalia.’”).
The second of the three conditions, “Other Condition” 23, states, “Do not
associated [sic] with known abusers/sellers of Illegal and prescribed Drugs.” CP at 106.
We reject Mr. Peters’s argument that use of the word “known” is confusing. This court
10
RCW 69.50.102.
23
No. 31755-2-III
State v. Peters
recently held that community custody conditions prohibit knowing misconduct, and using
the term “known”—referring to the knowledge of the offender—makes the condition
clearer. In re Pers. Restraint of Brettell, 6 Wash. App. 2d 161, 170, 430 P.3d 677 (2018).
The condition is problematic in going so far as to prohibit Mr. Peters from associating
with a pharmacist, a “known . . . seller[ ]” of “prescribed Drugs.” It requires clarification.
As Mr. Peters points out, in a prior unpublished decision of this court, we
suggested the following wording where a condition motivated by the same concern
required clarification:
[Do not] associate with persons involved in the unlawful use, sale, and/or
possession of controlled substances.
State v. Martin, No. 34037-6-III, slip op. at 5 (Wash. Ct. App. May 4, 2017)
(unpublished), https://www.courts.wa.gov/opinions/pdf/340376_unp.pdf. (The
unpublished opinion has no precedential value, is not binding on any court, and is cited
only for what we deem its persuasive value.).
The last of the three conditions, “Other Condition” 24, states, “Do not enter areas
identified by your Community Corrections Officer as Drug Locations.” CP at 106. As
framed, the condition does not treat “Drug Locations” as having meaning independent of
the discretion of the CCO. By giving Mr. Peters’s CCO unfettered authority to designate
prohibited spaces, the condition is susceptible to arbitrary enforcement. Cf. Magana, 197
Wash. App. at 201. Mr. Peters points out that in our unpublished decision in Martin, we
24
No. 31755-2-III
State v. Peters
provided the following suggested language for a flawed condition attempting to address
the same concern:
[Do not] enter into or remain in areas where controlled substances are being
unlawfully sold/purchased, possessed, and/or consumed.
Martin, No. 34037-6-III, slip op. at 5.
We remand to the trial court for modification or clarification of “Other
Conditions” 3, 7, 8, 10, 13, 23, and 24. For the convenience of the trial court on remand,
we repeat our directions or the parties’ suggestions for revised wording:
For “Other Condition” 3, dealing with contact with minors, we direct the
court to modify the condition to specify that Mr. Peters is to “have no contact with
minors under 18 unless approved . . . .”
For “Other Condition” 7, dealing with prior approval of romantic
relationships, the State proposed, and Mr. Peters accepted its proposal, that “dating
relationships” be substituted for “romantic relationships.”
For “Other Condition” 9, dealing with plethysmograph testing, the court
should clarify that the CCO’s scope of authority is limited to ordering
plethysmograph testing for the purpose of sexual deviancy treatment and not for
monitoring purposes.
For “Other Condition” 10, dealing with places where children congregate,
we direct the court to modify the condition to specify that the venues to be avoided
are those where “children under 16 congregate. . . .”
For “Other Condition” 13, dealing with community protection zones, the
State proposed that the condition be revised to say, “Do not reside within a
community protection zone, as defined in RCW 9.94A.030(6).”
For “Other Condition” 23, dealing with “known abusers/sellers,” Mr. Peters
has suggested substituting, “Do not associate with persons involved in the
unlawful use, sale, and/or possession of controlled substances.”
25
No. 31755-2-111
State v. Peters
Finally, for "Other Condition" 24, dealing with "drug locations," Mr. Peters
has suggested substituting, "Do not enter into or remain in areas where controlled
substances are being unlawfully sold/purchased, possessed, and/or consumed."
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WE CONCUR:
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Pennell, A.CJ.
26