Opinion
No. 57021-8-I.
December 31, 2007.
Appeal from a judgment of the Superior Court for Snohomish County, No. 05-1-00752-9, Steven J. Dwyer, J., entered August 31, 2005.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Appelwick, C.J., concurred in by Coleman and Baker, JJ.
Phillip Davis brings a preenforcement challenge for vagueness to two community custody conditions imposed by the sentencing court. He requests that we reconsider this court's decision in State v. Bahl, 137 Wn. App. 709, 159 P.3d 416 (2007), to forgo such preenforcement review for vagueness. Davis also challenges the prohibitions for overbreadth and excessive delegation. We reaffirm the decision in Bahl to forgo facial reviews for vagueness on sentencing conditions. But, to satisfy the Sentencing Reform Act (SRA), we remand one of the challenged conditions for clarification.
FACTS
Phillip Davis pleaded guilty to one count of rape of a child in the second degree. The charges stem from an incident involving his neighbor's 13 year old daughter. Davis and his girlfriend went to the neighbor's home looking for a place to stay the night. During the night, Davis went into the daughter's room and raped her digitally. Davis left the room but later returned and digitally raped the girl several more times.
Davis's criminal history consists of a 1994 conviction for third degree rape, a 2005 forgery conviction and seven misdemeanors or gross misdemeanors which include four assault fourth degree convictions and a conviction for violating a protection order. Based on this history, the court sentenced Davis to a maximum term of life and a minimum term of 129 months in prison. He received community custody for life upon release from confinement. The court adopted 21 community custody conditions as recommended by the presentence investigator. Davis appeals two of these conditions.
7. Do not possess or access pornographic materials, as directed by the supervising Community Corrections Officer. Do not frequent establishments whose primary business pertains to sexually explicit or erotic material.
8. Do not possess or control any item designated or used to entertain, attract, or lure children.
The other conditions are unchallenged, including prohibitions against initiating or prolonging contact with minor children without an adult chaperone approved by the community corrections officer, frequenting areas where minors congregate, dating women or forming relationships with families with minor children and remaining overnight in a residence with minors.
On June 7, 2006, a commissioner of this court stayed the appeal pending an opinion in Bahl. Upon resolution and publication of Bahl, the commissioner lifted the stay and directed the parties to file supplemental briefing addressing the impact of Bahl.
DISCUSSION
Under the SRA, the court may impose crime-related prohibitions, against "conduct that directly relates to the circumstances of the crime for which the offender has been convicted." RCW 9.94A.030(13), 505(8). Imposition of crime-related prohibitions is at the discretion of the trial judge and will only be reversed if manifestly unreasonable. State v. Riley, 121 Wn.2d 22, 37, 846 P.2d 1365 (1993). "[A] statute or condition is presumed to be constitutional unless the party challenging it proves that it is unconstitutional beyond a reasonable doubt." State v. Smith, 130 Wn. App. 721, 726-27, 123 P.3d 896 (2005).
I. Vagueness
Davis contends two of his community custody provisions are unconstitutionally vague. "Under the due process clause, a prohibition is void for vagueness if either (1) it does not define the offense with sufficient definiteness such that ordinary people can understand what conduct is prohibited, or (2) it does not provide ascertainable standards of guilt to protect against arbitrary enforcement." State v. Sansone, 127 Wn. App. 630, 638-39, 111 P.3d 1251 (2005). Unconstitutional vagueness means that persons of ordinary intelligence must guess as to the proscribed conduct. City of Spokane v. Douglass, 115 Wn.2d 171, 179, 795 P.2d 693 (1990).
According to Davis, the terms "pornographic materials," "sexually explicit or erotic material," and "any item designated or used to entertain, attract, or lure children" do not provide ascertainable standards of guilt to protect against arbitrary enforcement. This court has previously determined that use of the term "pornography" is unconstitutionally vague in an "as applied" challenge to a similar community custody condition. Sansone, 127 Wn. App. at 638. After Sansone, this court declined to address a pre-enforcement vagueness challenge to the same community custody prohibition. Bahl, 137 Wn. App. at 718. Davis requests that we depart from our previous case law and entertain a preenforcement challenge.
Preenforcement review amounts to a facial challenge. To succeed on a facial challenge, "the complainant must demonstrate that the law is impermissibly vague in all of its applications." Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497, 102 S. Ct. 1186, 71 L. Ed. 2d 362 (1982); see also State v. Worrell, 111 Wn.2d 537, 541, 761 P.2d 56 (1988). Federal courts have chosen to conduct pre-enforcement review and found pornography conditions vague. See United States v. Loy, 237 F.3d 251, 265 (3rd Cir. 2001) (court determined that pornography prohibition "runs afoul of the due process values that the vagueness doctrine is meant to protect"); United States v. Guagliardo, 278 F.3d 868, 872 (9th Cir. 2002) (court entertained a preenforcement challenge and remanded for imposition of a condition with greater specificity since reasonable minds can differ about what "pornography" encompasses and probationer cannot determine how broadly the condition extends).
While federal courts have engaged in such review, we have concerns about "the wisdom of making the appellate courts routinely available as editors to demand that trial courts rewrite sentencing conditions to avoid hypothetical problems." Bahl, 137 Wn. App. at 718. We see no reason to retreat from these concerns. Claims of vagueness are better assessed after enforcement, with a record of specific conduct. We affirm the decision in Bahl to forgo facial challenges for vagueness on sentencing conditions.
II. Overbreadth
"Overbreadth analysis is intended to ensure that legislative enactments do not prohibit constitutionally protected conduct, such as free speech." City of Seattle v. Ivan, 71 Wn. App. 145, 149, 856 P.2d 1116 (1993). "A statute which regulates behavior, and not pure speech, `will not be overturned unless the overbreadth is both real and substantial in relation to the ordinance's plainly legitimate sweep.'" Seattle v. Webster, 115 Wn.2d 635, 641, 802 P.2d 1333 (1990) (internal quotation marks omitted) (quoting Seattle v. Eze, 111 Wn.2d 22, 31, 759 P.2d 366 (1988)). In evaluating an overbreadth challenge, the court considers if the challenged statute reaches constitutionally protected speech or conduct, and whether it proscribes a substantial amount of that speech or conduct. State v. Knowles, 91 Wn. App. 367, 372, 957 P.2d 797 (1998).
Davis claims that the prohibition against possessing pornography and visiting establishments whose primary business pertains to sexually explicit or erotic material is overbroad because no nexus exists between his crime and the condition. He does not challenge the condition as improper under the SRA. The State counters that the condition is an authorized crime-related prohibition and properly applies to Davis's behavior.
The State contends that Davis's opening brief did not adequately address his contention that the prohibitions do not relate to his crime, so the panel should not consider the issue. See also, Bahl, 137 Wn. App. at 714-15. But Davis's opening brief does discuss the disconnect between his crime and the prohibitions, albeit in the vagueness challenge. In addition, the appellant's supplemental brief clearly raises this issue in the overbreadth context.
The SRA allows for imposition of infringements on the defendant's freedom through crime-related prohibitions which forbid "conduct that directly relates to the circumstances of the crime for which the offender has been convicted." RCW 9.94A.030(13), .505(8). Courts have acknowledged that, "[a]n offender's usual constitutional rights during community placement are subject to SRA-authorized infringements." State v. Hea rn, 131 Wn. App. 601, 607, 128 P.3d 139 (2006); See also State v. Riles, 135 Wn.2d 326, 347, 957 P.2d 655 (1998); State v. Ross, 129 Wn.2d 279, 287, 916 P.2d 405 (1996). "Crime-related prohibitions which limit fundamental rights are permissible provided the restrictions are reasonably necessary and narrowly drawn." State v. Warren, 134 Wn. App. 44, 70, 138 P.3d 1081 (2006). In sum, to limit fundamental rights, a sentencing condition must be crime-related, reasonably necessary, and narrowly drawn to satisfy the SRA. To be considered overbroad, a sentencing condition must reach real and substantial constitutionally protected conduct relative to the conduct legitimately regulated by the criminal sentencing. Riles, 135 Wn.2d at 347.
For a prohibition to be crime related, "[n]o causal link need be established between the condition imposed and the crime committed, so long as the condition relates to the circumstances of the crime." State v. Llamas-Villa, 67 Wn. App. 448, 456, 836 P.2d 239 (1992). In Llamas-Villa, the court determined that restrictions on the probationer's association with persons using, possessing, or dealing with controlled substances qualified as a proper crime-related prohibition on a sentence for possession of cocaine with intent to deliver. Id. Because associating with such individuals was "intrinsic to the crime for which Llamas was convicted, it is directly related to the circumstances of the crime." Id. Where the defendants had been convicted of sexual assaults involving minors, the court upheld crime-related prohibitions requiring explicit consent and prior approval for sexual encounters with adults. State v. Autrey, 136 Wn. App. 460, 468, 150 P.3d 580 (2006). "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." Id.
As to the pornography prohibition, this court previously determined that pornography and erotic establishment prohibitions related to the circumstances of a sex offender's crime. Bahl rejected an overbreadth challenge to similar restrictions. Since "the circumstances of his crime . . . showed him to be egregiously unable to control himself when in a state of sexual stimulus," access to sexually stimulating materials and environments directly related to his crime. Bahl, 137 Wn. App. at 715. The circumstances of this sexual assault similarly reflect Davis's inability to regulate his sexual behavior. Davis committed the assault while staying with a friend while the victim's parents and Davis's own girlfriend slept in the home. Davis boldly entered the girl's room and raped her — not once, but twice. Like Bahl, limiting Davis's access to sexually stimulating materials was proper under the SRA and not overbroad. Id.
We note, however, that acceptance of this custody condition in this case and Bahl does not ensure that such pornography prohibitions will be approved for all defendants. The prohibitions must relate to the circumstances of the crime.
Davis claims overbreadth of another condition of his community custody. Once again, he does not allege that the condition violates the SRA. His sentence includes the requirement that he not possess or control any item designated or used to entertain, attract, or lure children." The State counters that the prohibition aiming to restrict Davis's ability to groom minors for sexual contact relates to the circumstances of his crime of rape of a child. But, the State also conceded that the restrictions require an intent element and that it could be clearer by emphasizing possession or control "with the intent to entertain, attract, or lure children." At oral argument, the State claimed that the condition was not defective because the term "designated" connotes intent and therefore further clarification is unnecessary.
We agree that intent is required to make this condition crime related. But, we disagree that "designated" supplies the necessary intent requirement. The term "items used to entertain children" encompasses almost anything, including items of ordinary use like ice cream, candy, or pets. Mere possession, without intent to use, proscribes lawful conduct as well as prohibited conduct. Possessing and utilizing these items for their intended, personal use does not relate to the circumstances of Davis's crime. The intent to use these items to make contact with children, not their mere possession, relates to the circumstances of the crime of second degree rape of a child. Without intent "to contact, entertain, attract, or lure children," the prohibition does not qualify as an appropriate crime-related prohibition under the SRA. We need not reach the overbreadth question. We remand for clarification of the intent required for breach of the condition. See Sansone, 137 Wn. App. at 643.
III. Delegation
In Bahl, the court refused to review the claim of improper delegation because the defendant had failed to raise the issue below when the condition was imposed. 137 Wn. App. at 719 (citing State v. Smith, 130 Wn. App. 721, 729-30, 123 P.3d 896 (2005)). Since Davis did not challenge the conditions for improper delegation during sentencing, he cannot raise the issue on appeal.
We affirm the prohibitions against pornography and frequenting establishments whose primary business pertains to sexually explicit or erotic material. These conditions relate to the circumstances of a sexual assault conviction. But, we remand the condition concerning Davis's possession or control of "items designated or used to entertain, attract, or lure children" for clarification with respect to intent, in order to comply with the SRA.