State Of Washington v. Israel Allen Placencia Mcguire ( 2020 )

Filed
Washington State
Court of Appeals
Division Two
January 28, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 52527-5-II
Respondent,
v.
ISREAL ALLEN PLACENCIA McGUIRE, PUBLISHED OPINION
Appellant.
SUTTON, J. — Israel Allen Placencia McGuire appeals the trial court’s denial of his CrR
7.8 motion to modify the 10-year domestic violence no contact order prohibiting all contact with
the mother of his child. He argues that the no contact order interferes with his fundamental right
to parent their shared child, who was born after the trial court entered the no contact order. Because
the no contact order provided no exception for contact with the mother through the court or counsel
sufficient to allow McGuire to establish paternity and/or seek contact with the child through the
courts, we hold that the trial court erred when it denied McGuire’s CrR 7.8(b)(5) motion to modify
the no contact order, reverse the order denying the motion to modify, and remand for further
proceedings.
FACTS
McGuire assaulted his former girlfriend after breaking down the door to his grandfather’s
residence. The State charged McGuire with residential burglary and fourth degree assault and
alleged that both of these offenses were domestic violence incidents.
No. 52527-5-II
McGuire pleaded guilty to the amended charge of second degree burglary, with a domestic
violence allegation. In his statement of defendant on plea of guilty, McGuire acknowledged that
the State would recommend that he have no contact with the victim.1 The trial court accepted the
guilty plea.
At the sentencing hearing, the State recommended a 10-year no contact order prohibiting
contact with McGuire’s former girlfriend. Defense counsel stated that this was a joint
recommendation. But defense counsel later commented,
The victim in this case is now living, I believe, in West Virginia. I don’t
know her attitude about the no contact order. I do know that the State requested
that; that was our agreement in reaching this plea agreement. I anticipate the
Court’s going to sign it. She’s not present today. I anticipate in the future she may
address the Court in some other forum to have this either lifted or modified. One
of the reasons for that is she is pregnant with Mr. McGuire’s child, and so Mr.
McGuire wants to have contact with that child, although he understands he can’t
have contact with the victim, the victim in this case, so that’s going to complicate
things going forward.
Report of Proceedings (RP) (June 15, 2017) 8-9. Without discussing whether the no contact order
would affect McGuire’s ability to seek contact with the child once it was born, the trial court
advised the parties that it was going to issue a no contact order.
The June 2017 judgment and sentence contains a domestic violence no contact order
prohibiting McGuire from contacting his former girlfriend for 10 years. The court ordered that
“[t]he defendant shall not have contact with [his former girlfriend] including, but not limited to,
1
This acknowledgement states, in its entirety, “The prosecuting attorney will make the following
recommendation to the judge: 22 months, $100 DNA, $200 costs, $500 DAC, Restitution, NCO
w/V, $500 CVPA.” Clerk’s Papers at 9. The acknowledgment does not state the parameters of
the no contact order.
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No. 52527-5-II
personal, verbal, telephonic, written or contact through a third party for 10 years (not to exceed
the maximum statutory sentence).” Clerk’s Papers (CP) at 24.
That same day, the trial court issued a separate 10-year domestic violence no contact order
under chapters 10.99 and 26.50 RCW. The order provided “that [McGuire] shall have no contact,
directly or indirectly, in person, in writing, by telephone, or electronically, either personally or
through any other persons with” his former girlfriend for 10 years. CP at 62. Neither the judgment
and sentence nor the separate no contact order provided for contact through the courts or counsel
in order to establish paternity or to facilitate contact with the then unborn child.
In April 2018, McGuire filed a pro se motion2 in the trial court asking the trial court to
modify the no contact order because the order “ha[d] the collateral consequences of abridging [his]
fundamental right to parent his child without being afforded due process.” CP at 39. McGuire
asserted that the existing no contact order had been entered without any consideration of his
parental rights and was not narrowly tailored. He alleged that the child had been born in November
2017, and requested that the no contact order be modified to allow him to have contact with his
former girlfriend via mail or electronic or telephonic communication.
The trial court denied the motion to modify, stating:
I’m going to deny the motion. Number one, the child wasn’t born when you were
convicted and the child isn’t listed in the no contact order.
Number two, you have a remedy. Your remedy is to get a lawyer, get a
parenting plan, and seek visitation with your kids. There’s nothing in that judgment
and sentence that precludes you from having contact with your children other than
2
In his motion, McGuire states that he was seeking relief under CrR 7.8(b)(1) or (b)(5).
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No. 52527-5-II
you can’t contact your wife,[3] but you have other remedies, so I’m going to deny
the motion.
RP (May 18, 2018) at 3.
McGuire appeals the trial court’s denial of his motion to modify the no contact order.
ANALYSIS
I. USE OF CRR 7.8 MOTION AND PLEA AGREEMENT
As a preliminary matter, we must first address the State’s arguments that (1) McGuire could
not request modification of the no contact order through a CrR 7.8 motion, and (2) he waived any
defect in the no contact order because he agreed to the no contact order in his plea. We disagree.
The State argues that the trial court did not err in denying the CrR 7.8 motion because the
birth of the child was not an extraordinary or unforeseen circumstance warranting relief and the
circumstances were known when the trial court entered the judgment and sentence. 4 “CrR
7.8(b)(5) will not apply when the circumstances used to justify the relief existed at the time the
judgment was entered.” State v. Smith, 159 Wash. App. 694, 700, 247 P.3d 775 (2011) (citing State
v. Cortez, 73 Wash. App. 838, 842, 871 P.2d 660 (1994)). Here, although the trial court and the
parties were aware of the pregnancy, there was no child in existence at the time the trial court
issued the no contact order and, at least in the context of the court’s issuance of a no contact order,
McGuire had no parental rights to protect until the birth of the child. Thus, the circumstances used
3
The record does not show that McGuire’s former girlfriend was his wife.
4
The State also argues that the trial court did not err in denying the CrR 7.8 motion because
McGuire brought the motion under the “inadvertence” prong of CrR 7.8(b)(1) and failed to
establish inadvertence because the trial court was aware of the pregnancy at the time of the
sentencing. Br. of Resp’t at 9. Because we hold that McGuire properly challenged the no contact
order under CrR 7.8(b)(5), we do not address this argument.
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No. 52527-5-II
to justify relief did not exist when the no contact order was entered and McGuire properly brought
his motion to modify under CrR 7.8(b)(5).
The State also suggests that McGuire is bound by the no contact order because he agreed
to it as part of his plea deal. Although McGuire agreed to a no contact order, he did not agree to
the specific parameters of the no contact order. Thus, there is nothing in the record demonstrating
that McGuire agreed to limit contact with his former girlfriend to the extent it precluded his ability
to contact the child once it was born.
II. CONSTITUTIONAL RIGHT TO PARENT
We now turn to McGuire’s argument. McGuire argues that the trial court abused its
discretion when it denied his CrR 7.85 motion to modify the no contact order because the no contact
order interfered with his fundamental right to parent his child by prohibiting all direct or indirect
contact with his former girlfriend. We agree.
A. LEGAL PRINCIPLES
We review a trial court’s denial of a CrR 7.8 motion for abuse of discretion. State v.
Bratton, 193 Wash. App. 561, 563, 374 P.3d 178, 179 (2016). “A trial court abuses its discretion
when it bases its decisions on untenable or unreasonable grounds.” Bratton, 193 Wash. App. at 563.
“A court has jurisdiction to amend a judgment to correct an erroneous sentence, where
justice requires, under CrR 7.8.” State v. Hardesty, 129 Wash. 2d 303, 315, 915 P.2d 1080 (1996).
CrR 7.8(b)(5) allows a defendant to move to modify a judgment and sentence for “[a]ny other
5
We note that McGuire could have also moved to modify the separate no contact order under
RCW 26.50.130, but such a motion would have required notice to all parties and there is nothing
in the record demonstrating that such notice was provided. Nor is it clear that McGuire could have
provided the required notice without violating the no contact order.
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No. 52527-5-II
reason justifying relief from the operation of the judgment.” A violation of a fundamental
constitutional right, such as the right to parent, would be a reason to justify relief.
RCW 9.94A.505(9)6 authorizes trial courts to impose “crime-related prohibitions,” such as
no contact orders, as a condition of a sentence. State v. Armendariz, 160 Wash. 2d 106, 120, 156
P.3d 201 (2007). But the right to the care, custody, and companionship of one’s children
constitutes a fundamental constitutional right, so sentencing conditions burdening this right “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)). A crime-related
prohibition that interferes with a fundamental constitutional right is lawful only when it is narrowly
drawn and there is “no reasonable alternative way to achieve the State’s interest.” Warren, 165
Wn .2d at 34-35).
B. UNCONSTITUTIONAL LIMITATION OF THE RIGHT TO PARENT
Citing Rainey, State v. Torres, 198 Wash. App. 685, 393 P.3d 894 (2017), and State v. Ancira,
107 Wash. App. 650, 27 P.3d 1246 (2001), McGuire argues that the no contact order prohibiting all
contact with his former girlfriend impairs his fundamental right to parent his child. He contends
that because the no contact order fails to provide any exception for contact through the courts or
counsel, it places him in fear of violating the order should he attempt to seek or maintain contact
with the child. Rainey, Torres, and Ancira are inapposite because they address no contact orders
6
The legislature amended this statute in 2019, renumbering the relevant subsection. Laws of 2019,
ch. 191 § 3. Because the text of the subsection has not changed, we cite to the current version of
the statute.
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No. 52527-5-II
expressly prohibiting contact with the child, which is not the case here. Rainey, 168 Wash. 2d at 373-
74; Torres, 198 Wash. App. at 689; Ancira, 107 Wash. App. at 652-53. But we agree with McGuire
that the broad scope of the no contact order here interferes with his right to parent.
The trial court refused to modify the no contact order because the no contact order did not
apply to the child and McGuire could seek contact with the child through the family court. But
the trial court failed to consider that the broad language of the no contact order could prohibit
McGuire from pursuing any parentage or parenting plan action in the family court if he was unable
to contact his former girlfriend by any means. See State v. Long, 169 N.H. 283, 285, 287, 146
A.3d 619 (2016) (holding that a no contact provision precluding defendant from contact with the
mother of his child “in any manner whatsoever,” “precluded [the defendant] from exercising his
constitutional right to access the courts to protect his fundamental right to parent”).
For instance, if McGuire were to pursue a parentage action he would be required to give
notice of the proceeding to “[t]he woman who gave birth to the child,” here his former girlfriend.
RCW 26.26A.410(1)(a). Since this “[n]otice must be by service of the summons and complaint,”
it would require contact with his former girlfriend through a third party, which is expressly
prohibited, without exception, by the no contact order. RCW 26.26A.410(4). Because the no
contact order prohibited all contact, including contact through the court or counsel, the trial court
erred when it denied the motion to modify.
The State’s reliance on State v. Foster, 128 Wash. App. 932, 117 P.3d 1175 (2005), does not
alter our conclusion. In Foster, Division One of this court addressed whether a no contact order
that the defendant violated was valid. 128 Wash. App. at 938. The court determined that because
the no contact order prohibited contact with only the child’s other parent and did not include the
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No. 52527-5-II
child and because the defendant “always had the ability to ask the family court to establish
visitation rights with his daughter and avoid contact with” the child’s mother, the order did not
violate the defendant’s constitutional right to parent the child and was a valid no contact order.
Foster, 128 Wash. App. at 939-40.
But in Foster, unlike here, there was already an existing parenting plan. Additionally, the
court presumed, without citation to authority, that the defendant could address parenting issues
through the family court despite the broad language in the no contact order. 128 Wash. App. at 939-
40. As discussed above, the no contact order here prohibits all contact and provides no exception
for contact through the courts or counsel, which precludes McGuire from attempting to address
any parentage or parenting issue through the court. Accordingly, we are not persuaded by Foster.
The State further argues that the trial court did not err in denying the motion to modify the
no contact order because McGuire failed to make an affirmative showing that he is the father of
the child. The State asserts that McGuire must first establish parentage through the family court
under RCW 26.26A.400, before he can assert he has a fundamental right to parent and argues that
allowing McGuire “a lever against his domestic violence victim is not the proper remedy for
[McGuire’s] grievance.” Br. of Resp’t at 11.
The State fails to acknowledge that if McGuire were to pursue a parentage action he would
be required to give notice of the proceeding to “[t]he woman who gave birth to the child,” here his
former girlfriend, and that this notice itself could violate the no contact order. RCW
26.26A.410(1)(a); RCW 26.26A.410(4). Because the act of pursuing a parentage action would
itself violate the no contact order, we decline to require McGuire to establish parentage before
seeking to modify the no contact order.
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No. 52527-5-II
CONCLUSION
We hold that the trial court erred when it denied McGuire’s CrR 7.8(b)(5) motion to modify
the no contact order, we reverse the order denying the motion to modify, and we remand for further
proceedings. On remand, the trial must reconsider the no contact order in light of its potential to
impair McGuire’s fundamental right to parent and ensure that any restriction on contact is
“‘reasonably necessary to accomplish the essential needs of the State and public order.’” Rainey,
168 Wash. 2d at 377 (quoting Warren, 165 Wash. 2d at 32).
SUTTON, J.
We concur:
WORSWICK, P.J.
CRUSER, J.
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