[Nos. 24670-1-III; 24952-2-III. Division Three. December 28, 2006.]
THE STATE OF WASHINGTON , Respondent , v. JUSTIN DANIEL AUTREY , Appellant . THE STATE OF WASHINGTON , Respondent , v. DARRELL R. ABBOTT , Appellant .
[1] Criminal Law - Punishment - Sentence - Conditions - Community Placement - Review - Standard of Review. The imposition of a crime-related prohibition as a condition of community placement under the Sentencing Reform Act of 1981 (chapter 9.94A RCW) is reviewed for an abuse of discretion.[2] Criminal Law - Punishment - Sentence - Conditions - Community Placement - Purposes. Crime-related prohibitions
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imposed as conditions of community placement are meant to further the purposes of the Sentencing Reform Act of 1981 (chapter 9.94A RCW), including just punishment, protection of the public, and affording the offender an opportunity for self-improvement.
[3] Criminal Law - Punishment - Sentence - Conditions - Community Placement - Relationship to Crime - Necessity. A crime-related prohibition imposed as a condition of community placement must be directly related to the crime the offender was convicted of committing but need not be causally connected to the crime.
[4] Criminal Law - Punishment - Sentence - Conditions - Community Placement - Sex Offenders - Proscription Against Sexual Contact Without Explicit Consent - "Crime-Related". A condition of community placement imposed on an offender convicted of a sex offense involving a minor that prohibits the offender from having sexual contact with any person without that person's explicit consent constitutes a "crime-related prohibition" within the meaning of RCW 9.94A.505 (8) and .030(13).
[5] Criminal Law - Punishment - Sentence - Conditions - Community Placement - Vagueness - Review - Standard of Review. A claim that a community placement condition is unconstitutionally vague is reviewed de novo.
[6] Criminal Law - Due Process - Vagueness - Scope of Protection. The due process vagueness doctrine requires fair warning of proscribed conduct.
[7] Criminal Law - Punishment - Sentence - Conditions - Community Placement - Vagueness - Test. A crime-related prohibition imposed as a condition of community placement is not unconstitutionally vague if it defines the prohibited conduct with sufficient definiteness that an ordinary person can understand what conduct is proscribed and it provides standards of guilt that are clear enough to preclude arbitrary enforcement.
[8] Criminal Law - Punishment - Sentence - Conditions - Community Placement - Construction - Meaning of Words - Absence of Definition - Ordinary Meaning. A word in a crimerelated prohibition imposed as a condition of community placement that is not otherwise defined is given its ordinary meaning.[9] Criminal Law - Punishment - Sentence - Conditions - Community Placement - Sex Offenders - Proscription Against Sexual Contact Without Explicit Consent - "Explicit" - What Constitutes. For purposes of a crime-related prohibition imposed on a convicted sex offender as a condition of community placement that prohibits the offender from having sexual contact with any person without that person's explicit con
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sent, "explicit" means "characterized by full clear expression; leaving nothing implied; unequivocal, such that there might be no mistake as to the meaning, unreserved and unambiguous in expression, externally visible, clearly observable."
[10] Criminal Law - Punishment - Sentence - Conditions - Community Placement - Sex Offenders - Proscription Against Sexual Contact Without Explicit Consent - Validity - Vagueness. A crime-related prohibition imposed on a convicted sex offender as a condition of community placement that prohibits the offender from having sexual contact with any person without that person's explicit consent is not unconstitutionally vague.
[11] Criminal Law - Punishment - Sentence - Conditions - Community Placement - Sex Offenders - Child Victim - Proscription Against Sexual Contact With Anyone Without Explicit Consent - Validity. As a condition of community placement, an offender convicted of a sex crime against a minor may be prohibited from having sexual contact with any person, including an adult, without that person's explicit consent. The prohibition, even as it applies to relations with other adults, is sufficiently crime related to satisfy the requirements of the Sentencing Reform Act of 1981 (chapter 9.94A RCW).
[12] Criminal Law - Punishment - Sentence - Conditions - Community Placement - Delegation to Department of Corrections - Validity - In General. Sentencing courts have the power to delegate some aspects of community placement to the Department of Corrections. While it is the function of the judiciary to determine guilt and impose sentences, the execution of the sentence and the application of the various provisions for mitigation of punishment and reformation of the offender are administrative in character and are properly exercised by an administrative body.
[13] Criminal Law - Punishment - Sentence - Conditions - Community Placement - Sex Offenders - Approval of Sex Partners - Delegation. As a condition of community placement, a trial court may delegate to a convicted sex offender's community corrections officer or therapist the authority to approve or disapprove of the offender's sexual contact with others.
[14] Criminal Law - Punishment - Sentence - Within Standard Range - No Right of Appeal - Scope - Eligibility for Sentencing Alternative. A convicted offender's argument that the trial court abused its discretion in denying a sentencing alternative and imposing a standard range sentence does not raise an appealable issue.[15] Sexual Offenses - Special Sex Offender Alternative - Review - Standard of Review. A trial court's refusal to grant a special sex offender sentencing alternative to an eligible offender is reviewed for an abuse of discretion. The trial court does not abuse its
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discretion unless its decision is manifestly unreasonable or is based on untenable grounds or reasons.
[16] Sexual Offenses - Special Sex Offender Alternative - Determination - Factors - Marginal Qualification - Exposure to Child Victim. A trial court may deny a special sex offender sentencing alternative to a sex offender convicted of a sex crime involving a child victim where the offender is considered by the State's expert to be "marginally" qualified for the sentencing alternative and the court is not convinced that the victim's parent, who wants the offender to be a part of the parent's family, will protect the victim from the offender.
[17] Criminal Law - Punishment - Sentence - Conditions - Community Placement - Validity - Ripeness for Review - Harm - Necessity. The issue of the validity of a condition of community placement is not ripe for judicial review unless and until the convicted offender is harmfully affected by the condition.
Nature of Action: In separate prosecutions, defendant Autrey was charged with one count of second degree rape of a child and one count of third degree rape of a child and defendant Abbott was charged with second degree assault with sexual motivation, also against a child.
Superior Court: In the Autrey case, the Superior Court for Spokane County, No. 05-1-00114-4, Tari S. Eitzen, J., on October 18, 2005, entered a judgment on a plea of guilty. The court rejected the defendant's request for the special sex offender sentencing alternative and imposed a sentence at the low end of the standard sentencing range, including community custody conditions that the defendant not have sexual contact with anyone without that person's explicit consent and without prior approval of the defendant's therapist and community corrections officer. In the Abbott case, the Superior Court for Spokane County, No. 04-1-01929-1, Linda G. Tompkins, J., on January 19, 2006, entered a judgment on a plea of guilty. The court imposed a standard range sentence, including community custody conditions that the defendant not have sexual contact with anyone without that person's explicit consent and without prior approval of the defendant's therapist. Defendant Abbott also was required to permit the Department of Corrections to conduct home visits to monitor his compliance with the other community custody conditions.
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Court of Appeals: Holding that the trial court did not err by imposing community custody conditions requiring the defendants to obtain explicit consent before sexual contact and prior approval for sexual partners from their therapist and/or community corrections officer, that the trial court did not abuse its discretion by denying defendant Autrey's request for the special sex offender sentencing alternative, and that the issue of the constitutionality of the community custody condition requiring defendant Abbott to permit the Department of Corrections to conduct home visits to monitor the defendant's compliance with the other community custody conditions was not ripe for review, the court affirms the judgments.
William D. Edelblute , for appellants .
Steven J. Tucker , Prosecuting Attorney, and Kevin M. Korsmo , Deputy, for respondent .
¶1 BROWN, J. - We linked these cases to consider like questions about the validity of "explicit consent" and "prior approval" community custody conditions. Justin D. Autrey additionally contends the court erred in rejecting his special sex offender sentencing alternative (SSOSA) request. Darrell R. Abbott additionally contends the court erred in imposing a community custody condition allowing the Department of Corrections (DOC) to enter his residence upon reasonable suspicion a community custody violation occurred. Finding no error, we affirm.
FACTS
¶2 State v. Autrey . In 2001, Mr. Autrey, who was 21 years old at the time, began a sexual relationship with the 12-year-old daughter of his girl friend, Rebecca Hooven (Ms.
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Hooven). Mr. Autrey repeatedly engaged in sexual contact and intercourse with Ms. Hooven's daughter until around July 2004. The State charged Mr. Autrey with one count of second degree rape of a child and one count of third degree rape of a child. He pleaded guilty as charged in August 2005. Although DOC's presentence investigation report (PSI) disagreed, the State, under a plea agreement, recommended a sentence at the low end of the standard range to be suspended under SSOSA.
¶3 Mr. Autrey was sentenced in October 2005. Defense counsel, with support from the victim and Ms. Hooven, argued for a SSOSA. The State made its agreed recommendation for a SSOSA. Dr. Paul Wert reported he considered Mr. Autrey an appropriate, but marginal, candidate for SSOSA.
¶4 Ms. Hooven explained she wanted to maintain a family relationship with Mr. Autrey, herself, and her daughter, indicating her then 16-year-old daughter would move out when she turned 18. But Ms. Hooven added if her daughter wanted to move back Mr. Autrey would have to find a place of his own.
¶5 The court responded, "I'm speaking frankly . . . you didn't protect your daughter before and now you want to take back the man who had sex with your 12-year-old daughter while he was living with you. This is the man you want to live with. So how do I know that you are going to protect her from him?" Report of Proceedings (RP) at 16. The court observed the mother "is not saying she is going to protect her daughter. I don't hear that." RP at 18. Rejecting a SSOSA, the court ordered Mr. Autrey to 111 months confinement, the low end of the standard range, including community custody conditions:
(20) That you do not have sexual contact with anyone without his or her explicit consent.
(21) That you do not have sexual contact with anyone without prior approval of your therapist and your community corrections officer.
Clerk's Papers (CP) at 29.
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¶6 This appeal followed.
¶7 State v. Abbott . Mr. Abbott pleaded guilty to second degree assault with sexual motivation. The victim was a minor. Over Mr. Abbott's objection, the court imposed the following community custody conditions:
Condition # 20: That you do not have sexual contact with anyone without his or her explicit consent.
Condition # 21: That you do not have sexual contact with anyone without prior approval of your therapist.
Condition # 24: That you permit DOC home visits to moni-tor compliance with the conditions of community custody. . . . Such home visits shall not be conducted unless there exists a well founded, reasonable suspicion that a violation of the terms of Community Custody has occurred.
CP at 42. This appeal followed.
ANALYSIS
A. Community Custody Conditions
¶8 The issue is whether the trial court erred by imposing community custody conditions requiring Mr. Autrey and Mr. Abbott (appellants) to obtain explicit consent before sexual contact and prior approval from their therapist (and Community Corrections Officer (CCO) in Mr. Autrey's case). Appellants contend explicit-consent condition 20 does not relate to their convictions involving minors and is unconstitutionally vague. Appellants contend condition 21 does not relate to their crimes and constitutes and improperly delegates the court's discretion to the therapist (and CCO in Mr. Autrey's case).
[1]¶9 Generally, a court may impose crime-related prohibitions and affirmative conditions. RCW 9.94A.505 (8). A "crime-related prohibition" is an order prohibiting conduct that directly relates to the circumstances of the crime. RCW 9.94A.030 (13). We review whether a community placement
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decision is crime related for abuse of discretion. State v. Riley , 121 Wn.2d 22 , 37, 846 P.2d 1365 (1993).
[2, 3]¶10 "Crime-related prohibitions" during the period of community custody following release from total confinement further the "purposes of the Sentencing Reform Act of 1981[, chapter 9.94A RCW which include] imposition of just punishment, protection of the public, and offering the offender an opportunity for self-improvement." State v. Letourneau , 100 Wn. App. 424 , 431, 997 P.2d 436 (2000). " 'Crime-related prohibition' means an order of a court prohibiting conduct that directly relates to the circumstances of the crime for which the offender has been convicted, and shall not be construed to mean orders directing an offender affirmatively to participate in rehabilitative programs or to otherwise perform affirmative conduct." RCW 9.94A.030 (13). "Although the conduct prohibited during community custody must be directly related to the crime, it need not be causally related to the crime." Letourneau , 100 Wn. App. at 432 .
[4]¶11 Here, Mr. Autrey was convicted of rape of a child and Mr. Abbott was convicted of second degree assault with sexual motivation, involving a minor. As a community custody condition, appellants were prohibited from having sexual contact with anyone without that person's explicit consent. Generally, nonconsensual sex is criminal conduct. Thus, the "explicit consent" requirement is reasonably crime-related. Appellants' actions involved children too young to legally consent. Hence, the trial court did not abuse its discretion by finding this condition reasonably necessary to accomplish the State's purpose of protecting the public.
[5-7]¶12 Turning to appellants' vagueness argument, we review alleged due process violations de novo. State v. Sandoval , 123 Wn. App. 1 , 4, 94 P.3d 323 (2004). Due process requires that citizens have fair warning of what constitutes prohibited conduct. City of Spokane v. Douglass , 115 Wn.2d 171 , 178, 795 P.2d 693 (1990). To satisfy due process, a prohibition must be definite enough that an
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ordinary person can understand what conduct is prohib ited. Id. at 178. The prohibition must provide standards of guilt that are clear enough to preclude arbitrary enforcement. Id. This prohibition is plain, needing no interpretation.
[8, 9]¶13 Unless a statute or rule defines its terms, the words have their ordinary meaning. State v. Smith , 118 Wn. App. 480 , 484, 93 P.3d 877 (2003), review denied , 151 Wn.2d 1014 (2004). "Explicit" means: "characterized by full clear expression; . . . leaving nothing implied: UNEQUIVOCAL [, such] that there might be no mistake as to the meaning, . . . unreserved and unambiguous in expression: externally visible: clearly observable." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 801, definition 1, 4, 5 (1993).
[10]¶14 While precise application of "explicit" in a given context may vary, that does not mean a prohibition using the word is unconstitutional. Although the prohibition plainly requires expressed assent, appellants' concerns are groundless because the State would likely prosecute any nonconsensual sexual conduct rather than seek a sentencing condition review. In that case, the issue of the victim's consent would be decided beyond a reasonable doubt. The trial court did not err.
[11]¶15 Next, appellants contend the prior approval condition as it relates to adult sexual contact does not relate to their crimes involving children. We disagree. As noted, a court is generally permitted to impose crime-related prohibitions on a convicted sex offender's period of community custody to protect the public and offer the offender an opportunity for self-improvement. Letourneau , 100 Wn. App. at 431 . Here, 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.
[12]¶16 Appellants argue the court improperly delegated its authority to the therapist (and CCO in Mr. Autrey's case) by requiring their prior approval before they have sexual contact with anyone. Generally, "[s]entencing
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courts have the power to delegate some aspects of community placement to the DOC." State v. Sansone , 127 Wn. App. 630 , 642, 111 P.3d 1251 (2005). "While it is the function of the judiciary to determine guilt and impose sentences, 'the execution of the sentence and the application of the various provisions for the mitigation of punishment and the reformation of the offender are administrative in character and are properly exercised by an administrative body.' " Id. (quoting State v. Mulcare , 189 Wash. 625 , 628, 66 P.2d 360 (1937)).
[13]¶17 Here, the court properly delegated therapeutic decisions, including the appropriateness of Mr. Autrey and Mr. Abbott's sexual partners, to the therapist (and CCO in Mr. Autrey's case). It is well settled that some delegation of the court's power is permitted, and if the condition of approval before sexual contact is permitted for treatment purposes, assigning the responsibility of such approval to Mr. Autrey and Mr. Abbott's therapist (and Mr. Autrey's CCO) would not constitute an excessive delegation.
¶18 If, after their release, the supervision as applied appears intrusive as appellants fear, they may seek a sentencing condition review. Given all, we conclude the sentencing court did not err in ordering sentencing condition 21.
B. SSOSA
¶19 The issue is whether the trial court erred in reasoning the victim's mother was unable to protect her daughter and denying Mr. Autrey's SSOSA request.
[14]¶20 Generally, "[a] criminal defendant is permitted to appeal a standard range sentence only if the sentencing court failed to follow a procedure required by the Sentencing Reform Act [of 1981]." State v. J.W. , 84 Wn. App. 808 , 811, 929 P.2d 1197 (1997); RCW 9.94A.585 (1). In other words, "[s]imply arguing that the court abused its discretion in imposing a standard range sentence [as opposed to imposing a SSOSA sentence] does not raise an appealable
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issue." J.W. , 84 Wn. App. at 811 (citing State v. Onefrey , 119 Wn.2d 572 , 574 n.1, 835 P.2d 213 (1992)).
¶21 Here, Mr. Autrey does not argue the trial court committed a procedural error. Instead, he merely argues the trial court abused its discretion by mischaracterizing the mother's testimony. But the court engaged in fact-finding discretion. Mr. Autrey's argument fails because the trial court's reasons are supported by the record. The victim's mother failed to protect her child for two years.
[15]¶22 We review SSOSA decisions for an abuse of discretion. State v. Frazier , 84 Wn. App. 752 , 753, 930 P.2d 345 (1997). The standard is breached "when the decision or order of the court is 'manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.' " State v. Hays , 55 Wn. App. 13 , 16, 776 P.2d 718 (1989) (quoting State v. Cunningham , 96 Wn.2d 31 , 34, 633 P.2d 886 (1981)). Based upon the PSI report, DOC would be unlikely to control Mr. Autrey. At best, Dr. Wert considered Mr. Autrey "marginally" qualified for a SSOSA. CP at 64.
[16]¶23 Moreover, Ms. Hooven related she wanted Mr. Autrey to be part of her family. Although Ms. Hooven testified Mr. Autrey would have to find a different place to live if her daughter chose to live with her, the court possessed fact-finding discretion to disbelieve her, as the court did. Therefore, we conclude the court did not err.
C. DOC Search
¶24 The issue is whether the trial court erred in imposing community custody condition 24, requiring Mr. Abbott to allow DOC compliance monitoring based upon "a well founded, reasonable suspicion that a violation of the terms of Community Custody has occurred." CP at 42. Mr. Abbott contends this condition violates state and federal constitutional rights. The State responds that this issue is not ripe for review.
[17]¶25 The unconstitutionality of a community custody condition is not ripe for review unless the person is
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harmfully affected by the part of the condition alleged to be unconstitutional. State v. Massey , 81 Wn. App. 198 , 200, 913 P.2d 424 (1996). In Massey , the court reviewed a community placement order that required Mr. Massey to submit to searches by a CCO; the order lacked a statement that searches must be based on reasonable suspicion. The court held Mr. Massey's claim was premature until he was subjected to a search that he deemed unreasonable. Id. The Massey court concluded whether a community custody order expressly states so or not, "the standard for adjudicating a challenge to any subsequent search remains the same: Searches must be based on reasonable suspicion." Id. at 201.
¶26 Similarly, Mr. Abbott's issue is not yet ripe for review because a search has not taken place. Even so, the sentencing court properly included the reasonable suspicion standard prerequisite for a community placement search.
¶27 Affirmed.\
SCHULTHEIS , A.C.J., and KATO , J., concur.