Opinion
No. 25918-8-III.
June 12, 2008.
Appeal from a judgment of the Superior Court for Columbia County, No. 06-1-00030-2, Ray D. Lutes, J. Pro Tem., entered January 19, 2007.
Affirmed as modified by unpublished opinion per Korsmo, J., concurred in by Sweeney and Brown, JJ.
Walter F. Sutton, Jr., challenges his conviction for failure to register as a sex offender and various sentence conditions imposed by the court. We agree with his contention that a treatment condition is not related to his crime. In all other regards we affirm the judgment and sentence.
Mr. Sutton lived in Columbia County and registered there as a sex offender due to a 1991 Columbia County conviction for first degree child molestation. In July 2006, he moved to Walla Walla and registered as a sex offender in that county. He moved back to Dayton in late August 2006. Sheriff's deputies learned that Mr. Sutton had returned to Columbia County when they assisted him with a medical matter on August 24, 2006. Sutton told officers he had moved back, but had not re-registered with the county. He was told not to worry and directed to report in the next day. Instead, he did not register until November 16, 2006.
He was charged by amended information with one count of failure to register as a sex offender. The matter proceeded to jury trial. The jury convicted him as charged. A special interrogatory showed that the jury unanimously found two of the three alternative theories of failure to register argued by the prosecutor. The trial court imposed 366 days of confinement, 36 months of community supervision, and numerous conditions of community custody found in Appendix A to the judgment and sentence. Included among those conditions was a requirement that he take part in alcohol and drug treatment. He then appealed to this court.
The appeal challenges the sufficiency of the charging document, the calculation of his offender score, and the court's authority to impose future registration and other sentence requirements. Many of his contentions are answered by the recent decisions in State v. Castillo, No. 25845-9-III, 2008 Wash. App. LEXIS 1255 (May 15, 2008), and State v. Albright, No. 35890-5-II, Wash. App. LEXIS 1116 (May 13, 2008). We will address his arguments in the order presented, except that those controlled by Castillo and Albright will be treated together.
Charging Document.
Mr. Sutton contends that the charging document inadequately charged a violation of RCW 9A.44.130, claiming that his failure to register at all precluded application of the statute to his conduct. His argument combines charging document sufficiency standards with the evidence found by the jury even though his sole argument is that the charging document was defective. His argument also turns the statute on its head. The failure to register statute does in fact cover failures to report to register.
A charging document must state the elements of the alleged crime in order to give the accused an understanding of the crime charged. "All essential elements of a crime, statutory or otherwise, must be included in a charging document in order to afford notice to an accused of the nature and cause of the accusation against him." State v. Kjorsvik, 117 Wn.2d 93, 97, 812 P.2d 86 (1991). When challenged for the first time after a verdict has been returned, courts will liberally construe the document to see if the necessary facts can be found. If not, the charge will be dismissed without prejudice. Even if the charge is stated, a defendant who shows prejudice from "inartful" pleading also receives a dismissal of charges without prejudice. Id. at 105-106.
As relevant here, the amended information alleged that Mr. Sutton, in Columbia County, after previously being convicted of first degree child molestation and being required to register under RCW 9A.44.130, had knowingly failed to "provide a complete residential address, or if the defendant lacks a fixed address, where the defendant plans to stay, a date and place of birth, a place of employment, convictions, date and place of conviction, and aliases used, social security number, a photograph, and fingerprints." The quoted language tracked that found in a section of RCW 9A.44.130(3)(a):
The jury was unable to agree on the first charged alternative and the prosecutor concedes that alternative three was not applicable to this case. While normally all theories would be considered in determining whether or not the charging document alleged a crime, because of the verdict and the concession, the parties focus only on the second charging theory. In light of our determination that the charging language was sufficient, we too review only the second alternative.
The person shall provide the following information when registering: (i) Name; (ii) complete residential address; (iii) date and place of birth; (iv) place of employment; (v) crime for which convicted; (vi) date and place of conviction; (vii) aliases used; (viii) social security number; (ix) photograph; and (x) fingerprints.
(Emphasis added.)
Appellant contends that the emphasized statutory command that the information be provided "when registering" precludes application of the statute to his conduct of failing to register at all. His argument neglects the opening sentence of former RCW 9A.44.130(1) (2003), which states in pertinent part: "Any adult or juvenile residing . . . in this state who has been . . . convicted of any sex offense . . . shall register with the county sheriff for the county of the person's residence." (Emphasis added.) The gravamen of the offense is the duty to register by reason of a prior conviction for a felony sex offense and a failure to do so. The charging document filed here certainly made those allegations. It was sufficient. Appellant does not contend that he was prejudiced by the language used in the charging document. Accordingly, his challenge to the amended information fails.
In essence, his challenge is actually to the sufficiency of the evidence rather than the adequacy of the charging document. However, as Mr. Sutton has not argued that the evidence is insufficient to support the verdict, we will not address that issue.
Definitional Claims.
Appellant's next claims are controlled by the recent decisions in State v. Castillo, supra, and State v. Albright, supra. The basic problem is that the Legislature in 2006 amended the failure to register statute by adding a new section (7) and renumbering the subsequent provisions. As a result, the penalty provisions for failure to register as a sex offender were renumbered to subparagraph (11), and the penalty provisions for failure to register as a kidnapping offender were renumbered to subparagraph (12). When it renumbered the penalty provisions, however, the Legislature failed to amend all the statutes that cross-referenced those provisions. State v. Castillo, supra.
Laws of 2006, ch. 129, § 2.
A similar error occurred with this statute earlier. See State v. King, 111 Wn. App. 430, 45 P.3d 221 (2002) (addressing problem created by Laws of 1999, 1st Spec. Sess., ch. 6, § 2).
One of those statutes is the Sentencing Reform Act of 1981's definition of "sex offense" found in RCW 9.94A.030(42). In part, a "sex offense" is "A felony that is a violation of chapter 9A.44 RCW other than RCW 9A.44.130(11)." RCW 9.94A.030(42)(a)(i). When written, this statute exempted the kidnapping registration statute, also found as part of RCW 9A.44.130, from the definition of sex offense, but included the offense of failure to register as a sex offender. By failing to amend the definition, however, the status of the two statutes is now reversed. Failure to register as a sex offender is no longer a sex offense, while failure to register as a kidnapper is a sex offense. Finding no legislative intent to make such fundamental changes in the definition, both Albright and Castillo treated this oversight as an error and maintained the original understanding of the definition — failure to register as a sex offender is a "sex offense," while failure to register as a kidnapper is not. See State v. Castillo, No. 25845-9-III, 2008 Wash. App. LEXIS 1255, at *7-*10; State v. Albright, No. 35890-5-II, 2008 Wash. App. LEXIS 1116, at *1-*9; accord, State v. King, 111 Wn. App. 430, 45 P.3d 221 (2002).
Applying the Castillo understanding of the statute resolves Mr. Sutton's next three claims. First, he claims that his offender score was wrongly calculated as "four" because the current conviction is no longer under RCW 9A.44.130(10), and thus his prior conviction for child molestation no longer adds three points to his score under RCW 9.94A.525(18). That statute directs trial courts scoring a failure to register as sex offender case to include prior sex offenses as three points in the offender score. As noted, the failure to address the cross references does not change the scoring rules any more than it changed the definition of sex offense. See State v. Castillo, supra.
This provision was codified at RCW 9.94A.525(17) at the time of sentencing in this case.
Inexplicably, the parties included a 1986 conviction for indecent liberties in the criminal history noted on the judgment and sentence form, but do not appear to have included it in the offender score. Prior sex offenses such as indecent liberties never "wash out" of the offender score calculation. RCW 9.94A.525(2). Thus, the indecent liberties should have been included in the offender score, resulting in a total of seven points under RCW 9.94A.525(17). Since the prosecutor did not raise this issue by cross appeal, and since we are not remanding for a new sentencing proceeding, Mr. Sutton gets the benefit of this mistake.
Appellant makes a similar argument with respect to the registration requirement imposed by virtue of the new conviction for failure to register. He claims that because the new conviction is not a "sex offense," he has no duty to register as a sex offender by virtue of that new conviction. As determined in Albright and Castillo, his conviction is a "sex offense." Thus, the conviction does trigger a duty to register. RCW 9A.44.130(1)(a).
Since the new conviction has no effect on his prior sex offense convictions, Mr. Sutton would not benefit from this ruling even if we agreed with his argument. He still is required to register as a sex offender by virtue of his 1986 and 1991 convictions.
Appellant also argues that by virtue of the cross reference error, he cannot be placed on community custody, citing to RCW 9.94A.545. This argument fails for two reasons. First, as with his other arguments, the failure to pick up the cross references does not change the meaning of those statutes in this context. Community custody is appropriately ordered because failure to register remains a sex offense per Albright and Castillo. See RCW 9.94A.715 (requiring community custody for offenders convicted of sex offenses who serve more than one year incarceration). Second, RCW 9.94A.545, relied upon by appellant, only applies to individuals sentenced to one year or less of incarceration. See RCW 9.94A.545(1). Subparagraph (2) of that section, governing failure to register as a sex offender, was designed to include that crime among the list of crimes to which community custody applied even when the underlying sentence did not exceed a year. Here, Mr. Sutton was sentenced to one year plus one day in custody. RCW 9.94A.545 was not applicable to his case. Community custody was properly ordered under RCW 9.94A.715.
Community Custody Conditions.
Appellant challenges several conditions of community supervision, contending that they are not truly related to his offense. We believe that all but one of those conditions was properly ordered.
A trial court has authority to impose conditions of community custody that are directly authorized by statute or are related to the crime of conviction. RCW 9.94A.700(4), (5); RCW 9.94A.715; State v. Julian, 102 Wn. App. 296, 304-305, 9 P.3d 851 (2000), review denied, 143 Wn.2d 1003 (2001). The court can order affirmative acts necessary to monitor compliance with the conditions. Id. at 305. A court also can order an offender to participate in rehabilitative programs that are "reasonably related to the circumstances of the offense." RCW 9.94A.715(2)(a). The decision to impose a crime-related prohibition is a matter of discretion for the trial judge. State v. Riley, 121 Wn.2d 22, 37, 846 P.2d 1365 (1993).
Appellant contends that the condition that he undergo alcohol/drug treatment and participate in other programs deemed necessary by the Department of Corrections is not related to the crime of failure to register. RCW 9.94A.700(5)(c) authorizes a court to order participation "in crime-related treatment or counseling services." In turn, a "`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." RCW 9.94A.030(13).
There is nothing in the record that suggests the appellant's failure to register upon returning to Dayton was related to an alcohol or drug problem. It is not a crime-related condition and should be stricken from Appendix A to the judgment and sentence. State v. Julian, supra at 305.
Appellant also challenges the condition that he "participate in any and all programs deemed necessary by his Community Supervision Officer for successful completion of his probation period." We do not believe this condition is meant to include affirmative conduct unrelated to the terms of supervision or the crime. Rather, we construe this provision to simply be an acknowledgement that appellant can be ordered to attend programs or activities necessary to monitor compliance with the supervision program.
The other challenged conditions also were appropriately ordered to monitor compliance with the conditions of the judgment and sentence. Mr. Sutton challenges the order permitting his community supervision officer to conduct a reasonable search of his residence. Such a condition is reasonably related to the crime of failure to register. The Department needs to know where Mr. Sutton is living and confirm that he is where he says he is staying. The condition is proper.
He also challenges the requirement that he undergo polygraph or urinalysis testing as directed. These requirements are proper. State v. Julian, supra at 305. The trial court prohibited Mr. Sutton from using alcohol or controlled substances. Urinalysis can be required to assure that the condition is being met. Similarly, the polygraph requirement is proper since it also can monitor the drug/alcohol condition as well as the condition limiting Mr. Sutton's association with others who are on probation or supervision. Id.
Mr. Sutton also challenges the provision that limits his contact with individuals on probation or parole. This limitation is both reasonable and authorized. The Legislature permits trial judges to limit an offender's contact with both victims and classes of individuals. RCW 9.94A.700(5)(b). Discouraging felons on supervision from associating with each other is a time-honored limit designed to encourage compliance with the law by disrupting old associational patterns with others who also have failed to observe the law. This decision was within the trial judge's discretion. State v. Riley, supra.
We affirm the conviction and the sentence, with the exception of the alcohol/drug treatment condition. The trial court is directed to delete that provision from Appendix A.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
We Concur: SWEENEY, J. BROWN, J.