Personal Restraint Petition Of Anthony Cornelius Rowe ( 2020 )

Filed
Washington State
Court of Appeals
Division Two
August 11, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the Personal Restraint of: No. 52575-5-II
ANTHONY CORNELIUS ROWE,
Petitioner.
UNPUBLISHED OPINION
MELNICK, J. — Anthony Rowe seeks relief from personal restraint imposed following his
2005 plea of guilty to rape of a child in the first degree, rape of a child in the second degree, and
possession of depictions of a minor engaged in sexually explicit conduct. In this, at least his
seventh petition challenging his judgment and sentence,1 he argues that the following community
custody conditions are not crime-related and are therefore invalid:
(9) Remain within geographic boundary, as set forth in writing by the
Community Corrections Officer.
....
1
See Order Dismissing Petition, In re Pers. Restraint of Rowe, No. 41543-7-II (Jun. 30, 2011);
Order Dismissing Petition, In re Pers. Restraint of Rowe, No. 44702-9-II (Nov. 19, 2013); Order
Dismissing Petition, In re Pers. Restraint of Rowe, No. 50562-2-II (Oct. 19, 2017); Order
Dismissing Petition, In re Pers. Restraint of Rowe, No. 52225-0-II (Nov. 6, 2018); Order
Dismissing Petition, In re Pers. Restraint of Rowe, No. 52645-0-II (Nov. 6, 2018); and Order
Dismissing Petition, In re Pers. Restraint of Rowe, No. 52935-1-II (Apr. 2, 2019).
52575-5-II
(13) You shall not possess or consume any mind or mood altering
substances, to include alcohol, or any controlled substances without a valid
prescription from a licensed physician.
....
(15) Do not possess or peruse pornographic materials. Your community
corrections officer will define pornographic material.
....
(17) Do not initiate or prolong physical contact with children under the age
of 18 for any reason.
(18) Inform your community corrections officer of any romantic
relationships to verify there are no victim-age children involved.
(19) Submit to polygraph and plethysmograph testing upon direction of
your community corrections officer or therapist at your expense.
....
(21) Avoid places where children congregate. (Fast-food outlets, libraries,
theaters, shopping malls, playgrounds and parks.)
....
(25) You shall not have access to the internet unless the computer has child
blocks in place and active.
Pers. Restraint Petition Attachment (Judgment and Sentence (Felony) Appendix H Community
Placement/Custody.
RCW 10.73.090(1) provides:
No petition or motion for collateral attack on a judgment and sentence in a criminal
case may be filed more than one year after the judgment becomes final if the
judgment and sentence is valid on its face and was rendered by a court of competent
jurisdiction.
Rowe’s judgment and sentence became final on January 14, 2005, when the trial court
entered it. RCW 10.73.090(3)(a). He did not file his petition until September 12, 2018, more than
one year later. Unless he shows that one of the exceptions in RCW 10.73.100 applies or shows
that his judgment and sentence is facially invalid, his petition is time barred. In re Pers. Restraint
of Hemenway, 147 Wash. 2d 529, 532-33, 55 P.3d 615 (2002).
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52575-5-II
Rowe does not argue that any of the exceptions in RCW 10.73.100 apply. His claim that
the above conditions are not crime related cannot be determined from the face of judgment and
sentence, so those claims are time barred. See State v. Johnson, 180 Wash. App. 318, 325-26, 327
P.3d 704 (2014).
Rowe also argues that conditions 9, 15, 18, 19, and 21 are unconstitutionally vague. He
fails to show condition 9 is unconstitutionally vague. As to the argument that condition 15 is
unconstitutionally vague under State v. Bahl, 164 Wash. 2d 739, 757-58, 193 P.3d 678 (2008), the
State concedes that Rowe is correct and that the condition should be modified to make it
constitutionally acceptable. As to the argument that condition 18 is unconstitutionally vague, the
State concedes that under United States v. Reeves, 591 F.3d 77 (2d Cir. 2010), Rowe is correct and
that the condition should be modified to make it constitutionally acceptable. As to condition 19,
the State concedes that under State v. Land, 172 Wash. App. 593, 605-06, 295 P.3d 782 (2013), the
condition must be clarified to provide that the plethysmograph testing can only be for treatment
purposes and not for routine monitoring purposes. Finally, Rowe’s argument that condition 21 is
unconstitutionally vague was rejected in State v. Wallmuller, 194 Wash. 2d 234, 245, 449 P.3d 619
(2019).
We grant Rowe’s petition in part and remand to the trial court to modify community
custody conditions 15, 18, and 19 as provided above. We deny the remainder of his petition. We
deny Rowe’s request for appointment of counsel.
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52575-5-II
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.
Melnick, J.
We concur:
Sutton, A.C.J.
Glasgow, J.
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