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State v. Dedios

The Court of Appeals of Washington, Division Three
Jan 17, 2008
142 Wn. App. 1031 (Wash. Ct. App. 2008)

Opinion

No. 25510-7-III.

January 17, 2008.

Appeal from a judgment of the Superior Court for Yakima County, No. 05-1-02365-7, Susan L. Hahn, J., entered September 11, 2006.


Affirmed by unpublished opinion per Sweeney, C.J., concurred in by Schultheis and Kulik, JJ.


This case involves a condition of community custody. A jury found Jose Dedios guilty of first degree rape of a child. As a condition of his community custody, Mr. Dedios could not possess, view, or purchase pornography. Mr. Dedios appeals this condition of community custody. We conclude the condition is appropriate and affirm the sentence.

FACTS

A jury convicted Jose Dedios of first degree rape of a child. The trial court sentenced Mr. Dedios to life in prison with a standard minimum range sentence of 160 months.

As a condition of community custody Mr. Dedios cannot "purchase, possess, or view any pornographic material." Clerk's Papers at 6. He appeals that condition.

DISCUSSION

Overbroad

Mr. Dedios argues that the condition of his community custody prohibiting him from purchasing, possessing, or viewing any pornographic materials is unconstitutionally overbroad. The State responds that the condition regarding the possession or viewing of pornography is easily related to his crime of first degree rape of a child and therefore not overbroad. Or alternatively if we conclude that the condition is overbroad, then the sentencing judge should be given the chance to more narrowly tailor the condition.

"The assignment of crime-related prohibitions has traditionally been left to the discretion of the sentencing judge and will be reversed only if it is manifestly unreasonable." State v. Bahl, 137 Wn. App. 709, 714, 159 P.3d 416 (2007), review granted, (Wash. Jan. 8, 2008) (No. 799881); State v. Riley, 121 Wn.2d 22, 37, 846 P.2d 1365 (1993).

The Sentencing Reform Act of 1981, chapter 9.94A RCW, authorizes the imposition of crime-related prohibitions as part of community placement. Bahl, 137 Wn. App. at 714; see RCW 9.94A.700(5)(e). Here, a jury found Mr. Dedios guilty of first degree rape of a child. An order limiting Mr. Dedios from "sexually stimulating materials and environments relates directly to that aspect of his crime." Bahl, 137 Wn. App. at 715. These conditions have been held appropriate and crime related. Id. They are not constitutionally overbroad. Id.

Vagueness

Mr. Dedios also argues that the condition of community custody prohibiting him from viewing, purchasing, or possessing pornography is unconstitutionally vague on its face.

The State responds that we should not consider this challenge because no one claims that Mr. Dedios violated the prohibition. The State cites to Bahl. In Bahl, the court refused to pass on a vagueness challenge to conditions of a sentence because of a "factual vacuum" — no record or conduct. Id. at 718-19.

We review constitutional challenges de novo. State v. Brown, 95 Wn. App. 952, 956, 977 P.2d 1242 (1999), aff'd, 142 Wn.2d 57, 11 P.3d 818 (2000); Fusato v. Wash. Interscholastic Activities Ass'n, 93 Wn. App. 762, 767, 970 P.2d 774 (1999) (citing Washam v. Sonntag, 74 Wn. App. 504, 507, 874 P.2d 188 (1994)). A statute can be unconstitutionally vague as applied in a specific fact scenario or it can be facially invalid if its terms are obscure to the point they cannot be clearly applied in any context. Bahl, 137 Wn. App. at 716; State v. Lalonde, 35 Wn. App. 54, 57, 665 P.2d 421 (1983); City of Bellevue v. Miller, 85 Wn.2d 539, 536 P.2d 603 (1975).

Yet, "[t]he assignment of crime-related prohibitions has traditionally been left to the discretion of the sentencing judge and will be reversed only if it is manifestly unreasonable." Bahl, 137 Wn. App. at 714; Riley, 121 Wn.2d at 37. Here, the judge did not discuss this prohibition. We nonetheless review it for an abuse of discretion. Bahl, 137 Wn. App. at 714.

This sentencing condition is presumed to be constitutional. Id. at 715. The due process vagueness doctrine has two significant purposes. Id. The first is "`to provide adequate notice of proscribed conduct, and second, to protect against [an] arbitrary [rule].'" Id. (quoting State v. Acrey, 135 Wn. App. 938, 947, 146 P.3d 1215 (2006)). When determining if adequate standards are met for enforcement, we must decide whether the condition prohibits conduct by resorting to inherently subjective terms. Bahl, 137 Wn. App. at 715. But we do not view those terms in a vacuum. Id.

A rule is invalid facially if its terms are obscure to the point that they cannot be clearly applied in any context. Id. at 716; City of Spokane v. Douglass, 115 Wn.2d 171, 182 n. 7, 795 P.2d 693 (1990) (quoting Basiardanes v. City of Galveston, 682 F.2d 1203, 1210 (5th Cir. 1982)).

Here, there is no conduct by Mr. Dedios or context to apply the condition. Mr. Dedios merely anticipates that he may be accused of violating this condition in the future.

He "must show that the challenged rule is impermissibly vague in all of its applications." Bahl, 137 Wn. App. at 716. Mr. Dedios has not done this. A record of what happened and how the condition was applied is also very important. Id.; Douglass, 115 Wn.2d at 182 n. 8. The Bahl court refused to review a vagueness challenge to the same prohibition in the abstract. Bahl, 137 Wn. App. at 718-19. In Bahl, the defendant was convicted of second degree rape and he too appealed the prohibition against viewing, possessing, and purchasing pornography. Id. at 716-19.

As in Bahl, Mr. Dedios has not explained why his vagueness challenge requires the court to evaluate the community condition "in a factual vacuum." Id. at 718-19. "We have reservations about the wisdom of making the appellate courts routinely available as editors to demand that trial courts rewrite sentencing conditions to avoid hypothetical problems." Id. at 718.

There is no actual conduct for this court to review. Id. at 716-18.

We affirm the condition of community custody prohibiting Mr. Dedios of viewing, possessing, and purchasing pornography. Id. at 716-19.

A majority of the panel has determined that 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.

SCHULTHEIS, J. and KULIK, J., concur.


Summaries of

State v. Dedios

The Court of Appeals of Washington, Division Three
Jan 17, 2008
142 Wn. App. 1031 (Wash. Ct. App. 2008)
Case details for

State v. Dedios

Case Details

Full title:THE STATE OF WASHINGTON, Respondent, v. JOSE LUIS DEDIOS, Appellant

Court:The Court of Appeals of Washington, Division Three

Date published: Jan 17, 2008

Citations

142 Wn. App. 1031 (Wash. Ct. App. 2008)
142 Wash. App. 1031