State Of Washington v. Donald L. Hogan ( 2020 )

Filed
Washington State
Court of Appeals
Division Two
June 9, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 52616-6-II
Respondent.
v.
DONALD LEE HOGAN, UNPUBLISHED OPINION
Appellant.
GLASGOW, J.—Donald Lee Hogan engaged in highly sexualized online communications
with someone who he believed was a 13-year-old girl but was actually undercover detectives. He
crafted a plan for the girl to travel by bus to a transit center, but when he arrived at the transit
center to meet her, he was arrested by law enforcement. Hogan ultimately pleaded guilty to five
counts of communication with a minor for immoral purposes.
Hogan appeals his judgment and sentence, arguing that a scrivener’s error on the judgment
and sentence resulted in a sentence exceeding the statutory maximum; a community custody
condition prohibiting him from frequenting places where children tend to congregate unless
approved in advance is unconstitutionally vague; and two community custody conditions
restricting his access to the Internet and electronic devices are overbroad. In a statement of
additional grounds (SAG), Hogan also argues that he was entrapped, the arresting officers lacked
probable cause to arrest him, he never received his Miranda1 warnings, and he received ineffective
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
No. 52616-6-II
assistance of counsel. The State concedes that the judgment and sentence contains a scrivener’s
error that inadvertently imposed a sentence exceeding the statutory maximum.
We accept the State’s concession. We further hold that the community custody condition
prohibiting Hogan from frequenting places where children tend to congregate was not
unconstitutionally vague. We accept both parties’ request that the community custody condition
prohibiting Hogan from possessing electronic devices that can access or record images or videos
be stricken because that condition was not crime-related. We hold that the community custody
condition prohibiting Hogan from possessing any electronic devices that access the Internet
without a monitoring system was not unconstitutionally overbroad. Finally, we conclude that
Hogan’s SAG arguments lack merit.
Accordingly, we affirm Hogan’s convictions and remand to the trial court to correct the
scrivener’s error and strike the community custody condition addressing devices that can access
or record media images or videos from the judgment and sentence.
FACTS
The State charged Hogan with one count of attempted second degree rape of a child and
eight counts of communication with a minor for immoral purposes. The underlying facts are not
disputed.
Hogan sent a Facebook message to an account belonging to La Luch believing he was
conversing with a 13-year-old girl. Hogan began sending sexual messages and asking La Luch to
send him erotic pictures. La Luch contacted the National Center for Missing and Exploited
Children, which forwarded the report to the local police department for investigation.
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Over the next month, undercover detectives continued conversing with Hogan via e-mail
while posing as La Luch, a 13-year-old girl. Hogan sent highly sexualized messages including
erotic pictures of himself and pictures of sex toys. Eventually, Hogan devised a plan for La Luch
to take a bus to meet him. Hogan sent La Luch a detailed itinerary and described the clothing he
would be wearing when he picked her up at the transit center. He established a code word so La
Luch would know it was him.
When Hogan arrived at the transit center as planned, law enforcement arrested him. After
agreeing to waive his Miranda rights, Hogan was interviewed by detectives. Although he initially
claimed he was at the transit center to use the restroom, Hogan eventually admitted to sending the
messages to La Luch, who he believed was 13 years old.
Hogan ultimately pleaded guilty to five counts of communication with a minor for immoral
purposes. His guilty plea statement included, “On multiple dates . . . I sent electronic mail messages
of a sexual nature to a correspondent that I had reason to believe was 13 years old, and I sent them
from my home computer in Kelso in Cowlitz County, Washington.” Clerk’s Papers (CP) at 23.
After pleading guilty, Hogan filed a motion to withdraw his guilty plea for “failure of his
counsel to sufficiently investigate appropriate defenses before pleading him guilty and to avoid a
coerced plea statement.” CP at 55-56. At the sentencing hearing, Hogan told the trial court he
wished to proceed with new counsel. He stated that he believed he was not guilty and he pleaded
guilty because he was coerced. The trial court stated, “[B]ased on what I’ve observed in court, I
don’t think her representation has been deficient, so I’ll deny the request.” Verbatim Report of
Proceedings (VRP) (Oct. 9, 2018) at 15. Defense counsel told the trial court that she and Hogan
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had a “strategic [] difference,” and Hogan had a “different version of culpability of these offenses.”
Id.The parties made a joint recommendation of 60 months of confinement on counts two
through five and zero months on count six with three years of community custody on count six.
The trial court stated that it intended to impose the recommended sentence. However, the judgment
and sentence indicated 36 months of community custody on all counts rather than only count six.
The trial court also imposed the following relevant community custody conditions:
14. Do not possess any electronic devices that can access or record media images
or videos, unless authorized by [community corrections officer (CCO)] and
treatment provider. Your CCO has access to any device.
15. Do not possess any electronic devices that can access the internet without a
monitoring system. Your CCO has access to any device.
....
17. Do not loiter or frequent places where children tend to congregate, including []
but not limited to shopping malls, schools, playgrounds, public pools, skating rinks,
and video arcades without prior permission from CCO.
CP at 76.
Hogan appeals.
ANALYSIS
I. SCRIVENER’S ERROR
Hogan argues—and the State concedes—that the trial court made a scrivener’s error on his
judgment and sentence when it imposed community custody on all five convictions, rather than
only the conviction on count six. We accept the State’s concession.
“A sentence may not exceed the statutory maximum term set by the legislature.” State v.
Hagler, 150 Wn. App. 196, 203, 208 P.3d 32 (2009). When a defendant is sentenced to a term of
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No. 52616-6-II
confinement and community custody that has the potential to exceed the statutory maximum for
the crime, the appropriate remedy is to remand to the trial court to amend the sentence by reducing
the period of community custody so that the sentence does not exceed the statutory maximum.
State v. Boyd, 174 Wn.2d 470, 472, 275 P.3d 321 (2012).
Here, the statutory maximum is 60 months. RCW 9.68A.090(2); 9A.20.021(1)(c). As a
result, the trial court imposed a sentence exceeding the statutory maximum when it sentenced
Hogan to 60 months of confinement and 36 months of community custody on counts two through
five. The record reflects that this was a scrivener’s error. The parties made a joint recommendation
that the trial court impose community custody only on count six, and the trial court stated on the
record its intent to accept that recommendation. Hogan does not assign error to the imposition of
36 months of community custody on count six. Accordingly, the appropriate remedy is to remand
to the trial court to correct the scrivener’s error and remove the term of community custody from
counts two through five, maintaining it for count six.
II. COMMUNITY CUSTODY CONDITIONS
The trial court can only impose community custody conditions authorized by statute. State
v. Kolesnik, 146 Wn. App. 790, 806, 192 P.3d 937 (2008). If the trial court had statutory authority,
we review the trial court’s decision to impose the condition for an abuse of discretion. State v.
Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007). An abuse of discretion occurs when a trial
court’s imposition of a condition is manifestly unreasonable. State v. Hai Minh Nguyen, 191 Wn.2d
671, 678, 425 P.3d 847 (2018). The imposition of an unconstitutional condition is manifestly
unreasonable. Id.5
No. 52616-6-II
A. Prohibition Against Frequenting Places Where Children Congregate
Hogan argues that the trial court erred by imposing a community custody condition stating,
“Do not loiter or frequent places where children tend to congregate, including [] but not limited to
shopping malls, schools, playgrounds, public pools, skating rinks, and video arcades without prior
permission from CCO.” CP at 76. Hogan contends that the condition is impermissibly vague. We
disagree.
Vague community custody conditions violate due process under the Fourteenth
Amendment to the United States Constitution and article I, section 3 of the Washington
Constitution. State v. Irwin, 191 Wn. App. 644, 652-53, 364 P.3d 830 (2015). It is an abuse of
discretion for a sentencing court to impose an unconstitutionally vague condition. Hai Minh
Nguyen, 191 Wn.2d at 678. A community custody condition is unconstitutionally vague if either
“(1) it does not sufficiently define the proscribed conduct so an ordinary person can understand
the prohibition or (2) it does not provide sufficiently ascertainable standards to protect against
arbitrary enforcement.” State v. Padilla, 190 Wn.2d 672, 677, 416 P.3d 712 (2018).
1. “Congregate” and the illustrative list are not impermissibly vague
Hogan argues that the term “congregate” is impermissibly vague and not cured by the
illustrative list. We disagree.
We recognize that the parties did not have the benefit of the Washington Supreme Court’s
opinion in State v. Wallmuller when they submitted their briefs in this appeal. 194 Wn.2d 234, 449
P.3d 619 (2019). There, the Supreme Court addressed a nearly identical community custody
condition that included a nonexclusive list of prohibited locations and held that it was not
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No. 52616-6-II
unconstitutionally vague. Id. at 245. In so holding, the Supreme Court concluded that the term
“‘places where children congregate’ . . . puts an ordinary person on notice that they must avoid
places where one can expect to encounter children, and it does not invite arbitrary enforcement.”
Id. The Supreme Court further concluded that the constitutional vagueness doctrine does not
require sentencing courts “to specifically list every place a person convicted of victimizing
children is prohibited from loitering.” Id. at 244.
Like the condition at issue in Wallmuller, Hogan’s condition contains a nonexclusive list
that clarifies areas where children tend to congregate. By providing such a list, an ordinary person
can understand the scope of the prohibited conduct. Thus, we reject Hogan’s argument that the
condition is unconstitutionally vague.
2. “Children” in this context is not vague
Hogan also argues that the community custody condition’s use of “children” is
impermissibly vague. Br of Appellant at 14. The State did not address this specific argument. We
disagree with Hogan.
Hogan relies on State v. Johnson, 4 Wn. App. 2d 352, 360, 421 P.3d 969 (2018), where
Division Three looked to the relevant criminal statutes implicated in that case and concluded that
“children” in a nearly identical community custody condition referred to children under 16 years
old. Division Three required the sentencing court to amend the condition on remand to expressly
refer to children under 16 years old. Id. at 361, n.3.
Even so, in Wallmuller, which was decided after Johnson, the Supreme Court upheld a
nearly identical community custody condition that referred only to “children” without expressly
providing an age limit. 194 Wn.2d at 234. And RCW 9.94A.703 permits crime-related community
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No. 52616-6-II
custody conditions. Even if we were to follow Johnson’s reasoning, the relevant criminal statute
involving communication with a minor for immoral purposes, the crime at issue here, applies to
communications with people under the age of 18, a far more commonly understood definition of
“children.” RCW 9.68A.011(5). As a result, we conclude that the use of the word “children”
without more, does not render this condition unconstitutionally vague.
3. Prior CCO approval does not invite arbitrary enforcement
Hogan also argues that the community custody condition requirement that he obtain prior
permission from his CCO invites arbitrary enforcement. He contends that the requirement of
“‘prior permission’ from his CCO” is functionally equivalent to the phrase “‘as defined by the
supervising [CCO],’” which was found impermissible in Irwin, 191 Wn. App. at 649. Br. of
Appellant at 16. We disagree.
The scope of the prohibited conduct is guided by the nonexclusive list that sufficiently
clarifies areas where children tend to congregate and is understandable to an ordinary person.
Requiring CCO approval before engaging in otherwise prohibited conduct—the scope of which is
understandable to an ordinary person—does not invite arbitrary enforcement. State v. Johnson, 12
Wn. App. 2d 201, 216, 460 P.3d 1091 (2020) (holding that requiring prior approval from a CCO
to access the Internet did not invite arbitrary enforcement); see also Wallmuller, 194 Wn.2d at 245
(holding that a similarly worded condition with a nonexclusive list of “‘places where children
congregate’” “does not invite arbitrary enforcement” (quoting the relevant condition)).
In sum, the community custody condition restricting Hogan from visiting a place where
children tend to congregate without prior approval from his CCO sufficiently defines the
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No. 52616-6-II
proscribed conduct; does not provide for arbitrary enforcement; and is, therefore, not
unconstitutionally vague.
B. Restrictions On Hogan’s Access to the Internet and Electronic Devices
Hogan also argues that the trial court abused its discretion by imposing overbroad
conditions restricting Hogan’s access to the Internet and electronic devices. The State concedes
that community custody condition 14, which prohibits Hogan from possessing any electronic
devices that can access or record media images or videos unless authorized by his CCO or
treatment provider, is not crime-related and should be stricken. The State acknowledges that the
record does not reflect any use of digital devices to record media images, and the purpose of the
condition is better accomplished through condition 15. We accept the State’s concession and
instruct the trial court to strike condition 14 on remand. But we disagree with Hogan that condition
15 is unconstitutionally overbroad.
“A community custody condition is not impermissibly overbroad if it is crime-related.”
State v. Lee, 12 Wn. App. 2d 378, 401, 460 P.3d 701 (2020). “Conditions on a sentence that impose
limitations on a fundamental right must be ‘sensitively imposed’ so that they are ‘reasonably
necessary to accomplish the essential needs of the State and public order.’” State v. Aguilar, 176
Wn. App. 264, 277, 308 P.3d 778 (2013) (quoting State v. Warren, 165 Wn.2d 17, 32, 195 P.3d
940 (2008)). “A criminal statute that encompasses constitutionally protected speech activities
within its prohibitions may be overbroad and violate the First Amendment.” Johnson, 12 Wn. App.
2d at 214.
Hogan cites Packingham v. North Carolina, 137 S. Ct. 1730, 198 L. Ed. 2d 273 (2017), to
support his argument. There, the United States Supreme Court held that a North Carolina statute
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No. 52616-6-II
that made it a felony for a registered sex offender “‘to access a commercial social networking Web
site where the sex offender knows that the site permits minor children to become members or to
create or maintain personal Web pages,’” impermissibly restricted lawful speech in violation of
the First Amendment. Id. at 1733 (quoting statute). The Court observed that the modern Internet
constitutes one of the most important places for the exchange of views in today’s society and
cautioned that courts must “exercise extreme caution before suggesting that the First Amendment
provides scant protection for access to vast networks.” Id. at 1736.
Hogan’s restriction on possessing electronic devices that can access the Internet without a
monitoring system is different from the statute in Packingham, which criminalized Internet use by
sex offenders. Here, Hogan is not categorically barred from accessing the Internet. Rather, the
community custody condition is sensitively imposed in that it simply requires that any of Hogan’s
devices capable of accessing the Internet be outfitted with a monitoring system and that Hogan’s
CCO have access to any such device.
Recently, in Johnson we upheld an even broader community custody condition that
restricted Johnson from using or accessing the Internet unless specifically authorized by his CCO.
12 Wn. App. 2d at 215-16. There, we held that the condition was sufficiently tailored to Johnson’s
crimes because he was prohibited from using the medium through which he committed his crimes
without permission from his CCO. Id. 2 Here, condition 15 imposes even fewer limitations on
Hogan’s free speech activities because he does not need prior approval before accessing the
2
In Johnson, we recognized that Division One of this court recently came to a different conclusion
in an unpublished opinion regarding a similar community custody condition in State v. Forler, No.
79079-0-I, slip op. at 27-28 (Wash. Ct. App. June 10, 2019) (unpublished),
http://www.courts.wa.gov/opinions/pdf/790790.pdf. 12 Wn. App. 2d at 216, n.6.
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Internet, so long as the electronic device is outfitted with a monitoring system and his CCO has
access.
This limited deprivation of Hogan’s interest in freely accessing the Internet is related to
Hogan’s crimes of communicating with a minor for immoral purposes, which were committed
using the Internet. To the extent this condition implicates Hogan’s First Amendment rights, the
restriction is reasonably necessary to accomplish the essential needs of the State and public order
by mitigating the likelihood that Hogan would use Internet-accessible electronic devices to contact
and endanger minor children. The restriction also helps to ensure discovery should Hogan engage
in similar illegal behavior again.
Hogan also argues that condition 15 is overbroad because it limits his ability to possess
devices that cannot be outfitted with monitoring systems. He asserts that such devices are
ubiquitous and can include refrigerators, injectable glucose monitors, key finders, breast pumps,
home security systems, and automobiles. He contends that given the widely expanded scope of
devices that access the Internet, the condition burdens more First Amendment activities than
necessary to further the State’s legitimate interests. But Hogan provides no authority for his
contention that any device that uses the Internet implicates First Amendment protections.
The overbreadth doctrine generally applies to protect the First Amendment’s restrictions
preventing government from infringing on protected speech or expressive conduct. See State v.
Riles, 135 Wn.2d 326, 346, 957 P.2d 655 (1998), abrogated on other grounds by State v. Sanchez
Valencia, 169 Wn.2d 782, 239 P.3d 1059 (2010); see also State v. Aljutily, 149 Wn. App. 286,
292, 202 P.3d 1004 (2009). To be considered overbroad, a sentencing condition must reach real
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and substantial constitutionally protected conduct relative to the conduct legitimately regulated by
the criminal sentencing. Aljutily, 149 Wn. App. at 292-93.
Hogan fails to establish how a restriction on possessing devices such as an appliance that
connects to the Internet or a glucose pump reaches constitutionally protected expressive conduct.
In Packingham the Court emphasized that social media provides an important venue for “the
exchange of views.” 137 S. Ct. at 1735. “A fundamental principle of the First Amendment is that
all persons have access to places where they can speak and listen, and then, after reflection, speak
and listen once more.” Id. No such speech or expressive conduct is impacted by the inability to
possess devices like an appliance that connects to the Internet. Hogan’s claim fails.
In sum, to the extent condition 15 restricts Hogan’s First Amendment rights, we hold that
the condition is reasonably necessary to accomplish the essential needs of the State and is
sufficiently tailored to Hogan’s crimes.
III. STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW
A. Entrapment
Hogan entitles his first SAG argument “entrapment,” but the nature of his argument is
unclear. SAG at 2. He emphasizes his belief that the undercover police officer initiated online
contact with him and concludes with “[i]f it’s against the law for me to drive over the speed limit
that law should apply to everyone on the road.” SAG at 2. Although RAP 10.10 does not require
an appellant to refer to the record or cite authority, he is required to inform us of the “nature and
occurrence of alleged errors.” Hogan’s first assertion of error is too vague to allow us to identify
the issue and we do not reach it.
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B. Probable Cause
Hogan appears to argue that law enforcement lacked probable cause for his arrest. He
contends, “When I was arrested the detectives told me that I was under arrest and why I was being
arrested without positive proof that I had committed a crime. My arrest was presumptuous in
nature.” SAG at 2-3. But the record does not support his contention. “Probable cause exists where
the facts and circumstances are within the officer’s knowledge and the facts and circumstances are
such that the officer has reasonably trustworthy information sufficient to warrant a person of
reasonable caution to believe that an offense has been committed.” State v. Racus, 7 Wn. App. 2d
287, 301, 433 P.3d 830, review denied, 193 Wn.2d 1014 (2019).
Here, the probable cause statement recounted in detail ongoing communications between
Hogan and La Luch, who Hogan believed was a 13-year-old girl. The communications were highly
sexual in nature. Hogan devised a plan for La Luch to take a bus to meet him at a transit center in
Longview, Washington. Law enforcement observed Hogan arrive at the transit center as Hogan
had planned. Accordingly, the facts and circumstances within the arresting officers’ knowledge
were sufficient to warrant the suspicion of criminal activity, and Hogan’s claim fails.
C. Miranda Warnings
Hogan also appears to argue that his rights were violated because the arresting officers did
not read him his Miranda rights or offer him the opportunity to have an attorney present. But the
statement of probable cause states that Hogan agreed to waive his Miranda rights before being
interviewed by detectives upon his arrest. Hogan’s claim fails.
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D. Ineffective Assistance of Counsel
Hogan also argues that he received ineffective assistance of counsel. He contends that his
counsel was overburdened with too many cases and failed to provide him with documents he
requested. He further alleges that his defense counsel admitted that she felt she was ineffective.
We disagree.
To demonstrate that he received ineffective assistance of counsel, Hogan must show both
that defense counsel’s performance was deficient and the deficient performance resulted in
prejudice. State v. Linville, 191 Wn.2d 513, 524, 423 P.3d 842 (2018). In the context of a
defendant’s claim that his defense counsel rendered ineffective assistance during the plea
bargaining stage, this test requires the defendant to show that (1) counsel failed to “actually and
substantially [assist the] client in deciding whether to plead guilty,” and (2) “but for counsel’s
failure to adequately advise [the defendant], [the defendant] would not have pleaded guilty.” State
v. Cameron, 30 Wn. App. 229, 232, 633 P.2d 901 (1981); State v. McCollum, 88 Wn. App. 977,
982, 947 P.2d 1235 (1997). We strongly presume that defense counsel’s performance was not
deficient. State v. Emery, 174 Wn.2d 741, 755, 278 P.3d 653 (2012).
Hogan fails to overcome the presumption that defense counsel was not deficient. The
record reflects that Hogan’s defense counsel consistently communicated with him regarding the
State’s plea negotiations and filed motions as Hogan requested. At sentencing, the trial court stated
that it had not observed anything to suggest that defense counsel’s representation had been
deficient.
Moreover, Hogan cannot show that but for counsel’s allegedly deficient performance he
would not have pleaded guilty. Hogan contends that he only entered his guilty plea because he felt
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he had no other choice based on his attorney’s ineffective assistance. Hogan signed a written plea
statement in which he declared that he was freely and voluntarily pleading guilty to five counts of
communication with a minor for immoral purposes. When a defendant completes a written plea
statement and admits to reading, understanding, and signing it, a strong presumption arises that
the plea was voluntary. State v. Smith, 134 Wn.2d 849, 852, 953 P.2d 810 (1998). And where, as
here, the trial court has inquired into the voluntariness of the plea on the record, the presumption
of voluntariness is nearly irrefutable. State v. Davis, 125 Wn. App. 59, 68, 104 P.3d 11 (2004).
Hogan’s claim fails.
Finally, on May 15, 2020, we received an additional pro se filing dated May 10, 2020. We
have reviewed the contents and conclude that it also does not establish that reversal of Hogan’s
conviction is warranted.
CONCLUSION
In conclusion, we accept the State’s concession that the judgment and sentence contains a
scrivener’s error that inadvertently imposed a sentence exceeding the statutory maximum. We
further hold that the community custody condition prohibiting Hogan from frequenting places
where children tend to congregate was not unconstitutionally vague. We accept both parties’
request that the community custody condition prohibiting Hogan from possessing electronic
devices that can access or record images or videos be stricken because that condition was not
crime-related. We hold that the community custody condition prohibiting Hogan from possessing
any electronic devices that access the Internet without a monitoring system was not
unconstitutionally overbroad. Finally, we conclude that Hogan’s SAG arguments lack merit.
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Accordingly, we affirm Hogan’s convictions and remand for the trial court to amend the judgment
and sentence by correcting the scrivener’s error and striking community custody condition 14.
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.
Glasgow, J.
I concur:
Lee, C.J.
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MELNICK, J. (dissent in part)—I concur in the majority opinion except I disagree that the
use of “children” as part of Donald Lee Hogan’s community custody condition is not susceptible
to more than one interpretation. For that reason, I respectfully dissent on that issue. I would
remand to the trial court to clarify.
One condition of Hogan’s community custody prohibits him from frequenting places where
children tend to congregate. Hogan pleaded guilty to five counts of communication with a minor
for immoral purposes in violation of RCW 9.68A.090(2). That statute uses the term “minor,” not
child or children. RCW 9.68A.090(2). “Minor” is defined in RCW 9.68A.011(5) as “any person
under eighteen years of age.”
On the other hand, RCW 9A.44.079, rape of a child in the third degree, and RCW
9A.44.089(1), child molestation in the third degree, criminalize sexual intercourse and sexual
contact with people under the age of sixteen. But RCW 9A.44.190(2) defines “child” as “a person
under the age of eighteen” for purposes of criminal trespass against children crimes. This
definition is consistent with the definition of a “child” used in RCW 26.44.020(2) regarding
domestic relation cases.
Because our legislature has not made it clear what age limit is encompassed in the word
“children,” and I cannot discern the meaning from the pleadings in this case, I would remand for
the court to clarify.
Melnick, J.
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