Opinion
No. 30267-5-II.
Filed: March 9, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Mason County. Docket No. 96-1-00311-5. Judgment or order under review. Date filed: 03/20/2003. Judge signing: Hon. James B II Sawyer.
Counsel for Appellant(s), Patricia Anne Pethick, Attorney at Law, PO Box 7269, Tacoma, WA 98406-0269.
Counsel for Respondent(s), Monty Dale Cobb, Mason County Prosecutors Office, 521 N 4th Ave Ste a, PO Box 639, Shelton, WA 98584.
David Cullerton appeals the trial court's denial of his motion to modify a crime-related prohibition of his sentence that limits contact with his daughter and with his stepdaughter. Because the record demonstrates that the prohibition is reasonably necessary to protect those children, we affirm.
Facts
Following Cullerton's May 1997 conviction of second degree rape of a child, the court imposed a standard range sentence of 65 months of imprisonment, community placement, and twenty one crime related conditions.
Condition eight required:
The defendant shall not have contact with minor children under the age of 18 years unless in the presence of a responsible adult who is capable of protecting the child and is aware of the conviction, and contact has been approved by the community corrections officer and the sexual offender's treatment therapist in advance.
Clerk's Papers (CP) at 126.
In January 2002, the trial court removed five conditions, including conditions that forbid Cullerton from personally possessing alcoholic beverages and consuming such beverages in bars and lounges. The trial court also amended condition eight: "Condition number 8 will be amended to allow contact with his own children by letter only." CP at 119.
Cullerton moved to modify his sentence, asking the court to amend condition eight to allow him unsupervised contact with his five year old biological daughter and supervised contact with his eleven year old stepdaughter. Following a hearing, the court denied the motion.
At the hearing, Cullerton argued that condition eight was unreasonable and that "there is nothing that would indicate that his own child would be at risk." Report of Proceedings (RP) at 1. Brian Keele, Cullerton's Community Corrections Officer (CCO), opposed the motion, explaining that Cullerton continued to illustrate problems of sexual deviance and irresponsible behavior, such as the over consumption of alcohol.
The trial court stated its reasons for denying the motion as follows:
Having sat as the judge in this case and having listened to the trial, I would respectfully disagree with you [Cullerton's counsel]. I think that the record is sufficient for the prohibition and the restriction on contact to continue in effect. Mr. Cullerton, although his offense was specifically at that time toward little boys, there is nothing in the record to indicate that he is less of a threat to little girls. And as such, the limitation on contact is appropriate and will remain in effect. Defense motion is denied.
RP at 4.
Cullerton appeals.
Analysis
Cullerton argues that the trial court abused its discretion when it refused to amend condition eight. He compares the facts here to those in State v. Letourneau, 100 Wn. App. 424, 997 P.2d 436 (2000), and argues that the challenged condition does not relate to his crime because his conviction involved molestation of a young boy, whereas his two children are girls and that "the record is devoid of any evidence" that he will harm his children. Br. of Appellant at 8.
We review a challenge to a sentencing prohibition for an abuse of discretion. State v. Riley, 121 Wn.2d 22, 36-37, 846 P.2d 1365 (1993). A trial court abuses its discretion when its decision is "manifestly unreasonable." Riley, 121 Wn.2d at 37.
A parent has a fundamental right to raise his children without interference from the State. In re Custody of Smith, 137 Wn.2d 1, 969 P.2d 21 (1998). But the Sentencing Reform Act of 1981 authorizes the trial court to impose crime-related prohibitions on a person convicted of a felony sex crime. RCW 9.94A.700. 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(12).
The Supreme Court resolved this tension between a parent's fundamental right to raise his children and the statutory provision allowing the court to limit this right in favor of preventing harm to children as a "compelling state interest." Letourneau, 100 Wn. App. at 439 (citing Prince v. Massachusetts, 321 U.S. 158, 166-67, 64 S.Ct. 438, 88 L.Ed. 645 (1944). The crime-related prohibition must relate to the crime, but the prohibition "need not be causally related to the crime." Letourneau, 100 Wn. App. at 432 (citing State v. Llamas-Villa, 67 Wn. App. 448, 456, 836 P.2d 239 (1992)). And the prohibition must be reasonably necessary to "help prevent the criminal from further criminal conduct for the duration of his or her sentence." Letourneau, 100 Wn. App. at 438.
The Letourneau court struck a crime-related prohibition that did not allow Letourneau to contact her biological children. 100 Wn. App. at 442. The record here, however, is distinguishable from that in Letourneau. The record in Letourneau consisted of the opinions of four evaluators who discussed the merits of the prohibition. They "were unanimous in their conclusions that Letourneau is not a pedophile." Letourneau, 100 Wn. App. at 441. The court found unpersuasive one evaluator's opinion that the prohibition was valid because Letourneau "would `mold' her children's minds based on her distortions as she did with her victim." Letourneau, 100 Wn. App. at 440. Thus, the record did not support the prohibition forbidding Letourneau from contact with her children.
The record here shows that Cullerton twice violated the terms of his community custody by frequenting a place where minors are known to congregate and leaving the restricted area of his community placement without approval from Keele, his CCO.
And Keele stated that Cullerton's "sexual deviancy evaluation has indicated he has problems beyond his sexual deviance." RP at 2. In that evaluation, Cullerton "admitted that he has had to fight the impulse to seek out adolescent males in his desire to [sexually molest] them." CP at 101. It was reasonable to conclude that this impulse was unchanged as five years after his conviction, Cullerton violated a crime-related prohibition by frequenting a place where minors are known to congregate.
And unlike the evaluators in Letourneau, Keele has worked with Cullerton from the beginning of his community custody. Keele based his strong recommendation against amending condition eight on first hand experience. This differs from the "general observation[s]" made by Letourneau's evaluators. Letourneau, 100 Wn. App. at 442. Consequently, it was reasonable for the trial court to award Keele's opinion considerable weight.
Keele stated that "Mr. Cullerton has admitted to me he is consuming alcohol on a regular basis, knowing he's putting the community at risk and possibly increasing his chances to reoffend through his consumption of alcohol." RP at 3. This information is relevant because Cullerton's abuse of alcohol substantially increases the likelihood that he will reoffend against minors. The record in Letourneau did not involve this issue.
Cullerton's children are vulnerable minors. His biological daughter is five years old and his stepdaughter is eleven years old. Thus, the prohibition reasonably relates to his conviction for rape of a child and serves the State's compelling interest to protect children.
Consequently, the trial court did not abuse its broad discretion when it declined to modify condition eight.
We affirm.
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 pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, J. and QUINN-BRINTNALL, A.C.J., concur.