Opinion
No. 66068-3-I.
Filed: September 12, 2011. UNPUBLISHED OPINION.
Appeal from a judgment of the Superior Court for King County, No. 08-1-04249-5, Michael J. Fox, J., entered September 8, 2010.
Affirmed in part and remanded by unpublished opinion per Dwyer, C.J., concurred in by Grosse and Appelwick, JJ.
Peter Ansell pleaded guilty to three counts of child molestation in the first degree. As a condition of Ansell's sentence, the trial court imposed a lifetime no-contact order with the victims and their families. In addition, the trial court ordered that Ansell have no contact with his own two young children, who were not victims of the offenses, until they reach the age of majority. Ansell filed a motion to modify the condition of his sentence prohibiting him from having contact with his own children. The trial court denied the motion. Ansell appeals.
I
Based upon offenses committed against three young girls, Ansell pleaded guilty to three counts of child molestation in the first degree. Ansell was provided access to the girls though a babysitting cooperative arrangement between three families, including Ansell's, who lived in the same neighborhood. Ansell has two young children of his own, who, at the time of the offenses, were less than seven years old.
The anticipated terms of the State's sentencing recommendation, other than the period of incarceration, were set forth in Ansell's plea agreement. Pursuant to the plea agreement, Ansell agreed to a lifetime no-contact order with the victims and their families. With regard to contact with other minors, the agreement provided that Ansell would be required to seek the approval of his community corrections officer (CCO) and that any such contact "must be in [the] company of [a] responsible adult aware of these convictions." Clerk's Papers (CP) at 7. With regard to Ansell's own children, the plea agreement provided for contact "as approved by [the] CCO and when in [the] company of [an] adult aware of these charges." CP at 7. It further provided that "this may be modified by [the] treatment provider with respect to [Ansell's] children dependent on [whether Ansell's] performance in treatment is acceptable." CP at 7.
The State's sentencing recommendation to the trial court, however, was much less detailed. The State recommended that the court impose a lifetime no-contact order with the victims and their families. In addition, the State recommended that Ansell have no contact with "any minors without the supervision of a responsible adult who has knowledge of this conviction and order." CP at 32. However, the sentencing recommendation did not specifically address Ansell's contact with his own children.
At Ansell's sentencing hearing, on June 19, 2009, the trial court ordered that the defendant have no contact for life with the victims and their families. With respect to Ansell's own children, the trial court ordered:
With regard to his own children, I will provide for no contact until the children reach the age of majority. At that point, it's up to the children to determine whether or not they want to have contact with their family — with their father and how contact is to be reestablished, if it is.
There are individuals who are professionals who can . . . be involved in family reconciliation if it is appropriate. But that's a matter that these children, who are now young, should be capable of exercising when they reach the age of majority and have their own personal sovereignty.
CP at 66-67. Similarly, the judgment and sentence provided that Ansell shall have "no contact with [his] children until they reach the age of majority (18)." CP at 38.
On July 6, 2010, Ansell filed a motion to modify the conditions of his sentence, requesting that the trial court strike the portion of the no-contact order pertaining to his own children. Ansell contended that the condition impermissibly restricts his "fundamental right to parent" and that there was no evidence that he was a danger to, or had engaged in misconduct with, his own children. CP at 48. Ansell requested that the court "defer to family court to determine if and when, and under what circumstances, [he] should be allowed to have contact with his children." CP at 49.
On September 8, 2010, the trial court denied Ansell's motion to modify the conditions of his sentence.
Ansell appeals.
II
Ansell contends that the trial court erred by prohibiting him from having contact with his own children until they reach the age of majority and by denying his motion to modify the conditions of his sentence by either limiting or deleting that condition. Ansell asserts that the trial court impermissibly failed to weigh his "fundamental right to parent" against the State's interest in protecting his children. Because it does not appear that the sentencing court considered whether the condition imposed is reasonably necessary to effectuate a compelling state interest, we strike the no-contact order pertaining to Ansell's children and remand for further proceedings consistent with this opinion.
The Sentencing Reform Act of 1981, chapter 9.94A RCW, authorizes the trial court to impose "crime-related prohibitions" as a condition of a sentence. RCW 9.94A.505(8). A "crime-related prohibition" prohibits "conduct that directly relates to the circumstances of the crime for which the offender has been convicted." RCW 9.94A.030(10). "[B]ecause the imposition of crime-related prohibitions is necessarily fact-specific and based upon the sentencing judge's in-person appraisal of the trial and the offender, the appropriate standard of review [is] abuse of discretion." In re Pers. Restraint of Rainey, 168 Wn.2d 367, 374-75, 229 P.3d 686 (2010). With regard to the imposition of a crime-related prohibition, the trial court abuses its discretion if it applies the wrong legal standard. Rainey, 168 Wn.2d at 375.
"More careful review of sentencing conditions is required where those conditions interfere with a fundamental constitutional right." State v. Warren, 165 Wn.2d 17, 32, 195 P.3d 940 (2008). The right to the care, custody, and companionship of one's children constitutes such a fundamental constitutional right. Rainey, 168 Wn.2d at 374. Thus, 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.'" Rainey, 168 Wn.2d at 373 (quoting Warren, 165 Wn.2d at 32).
A crime-related prohibition that interferes with a fundamental constitutional right is lawful only where there is no reasonable alternative way to achieve the State's interest. Warren, 165 Wn.2d at 34-35. For instance, we have held that a no-contact order prohibiting a defendant from all contact with his children was "extreme and unreasonable given the fundamental rights involved," where less stringent limitations on contact would successfully realize the State's interest in protecting the children. State v. Ancira, 107 Wn. App. 650, 655, 27 P.3d 1246 (2001). There, the trial court imposed the no-contact order, prohibiting Ancira from all contact with his wife and children, as a condition of Ancira's sentence for felony violation of a domestic no-contact order. Ancira, 107 Wn. App. at 652-53. Although we recognized the State's interest in preventing the children from witnessing domestic violence, we determined that the State had "failed to demonstrate that this severe condition was reasonably necessary" to prevent that harm. Ancira, 107 Wn. App. at 654. Rather, indirect contact, such as mail, or supervised contact without the mother's presence, we concluded, might successfully satisfy the State's interest in protecting the children. Ancira, 107 Wn. App. at 655.
Similarly, in Rainey, our Supreme Court struck a lifetime no-contact order prohibiting Rainey from all contact with his child, because the sentencing court did not articulate any reasonable necessity for the lifetime duration of that order. 168 Wn.2d at 381-82. In reaching this decision, the court noted that the fact that the child was a victim of Rainey's crime was not in itself determinative as to whether the no-contact order was proper: "It would be inappropriate to conclude that, simply because [the child] was a victim of Rainey's crime, prohibiting all contact with her was reasonably necessary to serve the State's interest in her safety." Rainey, 168 Wn.2d at 378. Recognizing "the fact-specific nature of the inquiry," the court remanded to the trial court for resentencing so that the court could "address the parameters of the no-contact order under the `reasonably necessary' standard." Rainey, 168 Wn.2d at 382.
Here, the trial court ordered that Ansell have "no contact with [his] children until they reach the age of majority (18)." CP at 38. Because the no-contact order implicates Ansell's fundamental right to the care, custody, and companionship of his children, "[t]he question is whether, on the facts of this case, prohibiting all contact with [his children], including indirect or supervised contact, is reasonably necessary to realize [a compelling State interest]." Rainey, 168 Wn.2d at 379. In order for the sentencing condition to be constitutionally valid, "[t]here must be no reasonable alternative way to achieve the State's interest." Warren, 165 Wn.2d at 34-35.
The State contends that the trial court did not abuse its discretion in imposing the no-contact order pertaining to Ansell's children. This is so, the State asserts, because Ansell agreed to the sentencing condition as part of his plea agreement. This is not true. Rather, the plea agreement provided that the State was to recommend to the sentencing court that Ansell have contact with his own children "as approved by [the] CCO and when in [the] company of [an] adult aware of these charges." CP at 7. It further provided that the condition "may be modified by [Ansell's] treatment provider . . . dependent on [whether Ansell's] performance in treatment is acceptable." CP at 7. The State's sentencing recommendation to the court, however, was silent as to Ansell's contact with his own children.
We will not deem Ansell to have agreed to this sentencing condition by virtue of the terms of his plea agreement. Contrary to the State's factually unsupported argument on appeal, Ansell never agreed to a sentencing condition prohibiting him from having any contact with his children. We will not construe the record herein in such a way as to deprive Ansell of that for which he bargained in entering his plea.
In imposing the challenged sentencing condition, the trial court set forth no explanation as to whether the no-contact order is reasonably necessary to realize a compelling state interest. See Rainey, 168 Wn.2d at 381-82. Moreover, although the State has a compelling interest in protecting children from harm, the State has failed to demonstrate how prohibiting all contact between Ansell and his children until they reach the age of majority, particularly where the children were not victims of Ansell's offenses, is reasonably necessary in order to effectuate that interest. Because the sentencing condition implicates Ansell's fundamental constitutional right to parent his children, the State must show that no less restrictive alternative would prevent harm to those children. We do not conclude that Ansell's contact with his children must be subject to no limitations. Any such limitations, however, must be narrowly drawn. See Warren, 165 Wn.2d at 34 ("[C]rime-related prohibitions affecting fundamental rights must be narrowly drawn.").
Because whether a particular crime-related prohibition satisfies the "reasonably necessary" standard is a fact-specific inquiry, we strike the sentencing condition prohibiting Ansell's contact with his children and remand for further proceedings. We are confident that, on remand, the trial court will determine the parameters of Ansell's sentencing conditions pursuant to the proper standard.
We concur: