Opinion
No. 53913-2-I
Filed: March 7, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 03-1-02613-8. Judgment or order under review. Date filed: 02/23/2004. Judge signing: Hon. Michael J. Heavey.
Counsel for Appellant/Cross-Respondent, Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Eric Broman, Nielsen Broman Koch PLLC, 1908 E Madison St, Seattle, WA 98122-2842.
Jennifer L. Dobson, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Johnson Doc#735672 — Info Onl (Appearing Pro Se)
Counsel for Respondent/Cross-Appellant, Dana Cashman, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2390.
The no-contact orders at issue in this case neither interfere with Shawn Phillip Johnson's right to contact with his daughter, nor constitute additional punishment with respect to which he is entitled to a jury determination. On these points, the trial court is affirmed. However, on the State's cross-appeal of the determination of the offender score, we reverse and remand for resentencing.
FACTS
On June 20, 2001, at sentencing in a domestic violence action, a no-contact order was issued against Shawn Phillip Johnson. The order prohibited him from contacting L.J. until June 15, 2006. Over two years later, on September 25, 2003, Officer Robert Scholl of the Kent Police Department responded to the location of two 9-1-1 hang-up calls. The officer knocked on the door of the trailer and L.J. answered the door. She let the officer into the residence indicating that Johnson was there and that she wanted him out. Johnson came out of a bedroom in the trailer and the officer asked him to step outside for a conversation. Johnson was cooperative and complied with the request.
The officer testified that Johnson said he had been living with L.J. at various times and that he was aware there was a no contact order preventing contact between them. Johnson told the officer L.J. invited him over that evening and explained that seeing L.J. was the only way he could also spend time with their daughter. Additionally, Johnson admitted to an earlier conviction for violating a no contact order. The officer spoke to L.J. who chose not to cooperate and refused to give a statement.
Johnson was charged with two counts of felony violation of a domestic violence no-contact order. The State elected not to proceed on one of the counts, had it dismissed, and proceeded on the other count on the basis of the above-mentioned facts. Neither L.J. nor Johnson testified at the trial. A jury found Johnson guilty.
At sentencing, Johnson challenged his offender score. The State computed his offender score at four, including a juvenile conviction for assault in the second degree committed in 1991. The defense asserted that the offender score should be three because the juvenile offense 'washed-out.' The sentencing court agreed with the defense and determined that Johnson's offender score was three. The court then imposed a low-end sentence of 15 months.
Johnson appeals, arguing for the first time that the no-contact order was issued pursuant to an unconstitutional statute and that there was insufficient evidence to convict him of violating the no-contact order because it was void. He also claims that a jury, not a judge, must find that his current offense was committed between family or household members before the sentencing court could issue an additional domestic violence no-contact order.
The State cross-appeals Johnson's offender score as determined by the sentencing court.
ANALYSIS
Johnson argues for the first time on appeal that the order prohibiting his contact with L.J. had a consequence of precluding contact with his daughter, thus impermissibly interfering with his fundamental right to parent. He claims the statute authorizing the order is unconstitutional on its face and that the resulting order is invalid. Thus he asserts, as a matter of law, there is insufficient evidence to convict because the order is void.
Johnson challenges the constitutionality of RCW 10.99.050; therefore, the issue may be raised for the first time on appeal. RAP 2.5(a)(3).
Johnson does not attempt to invoke any protections of the Washington State Constitution or address independent state constitutional grounds in his argument in accord with the requirements of State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986).
As a preliminary matter, a statute is presumed to be constitutional, and the party seeking to overcome that presumption must meet a substantial burden of proving unconstitutionality beyond a reasonable doubt.
Retired Pub. Employees v. Charles, 148 Wn.2d 602, 623, 62 P.3d 470 (2003).
RCW 10.99.050(1) authorizes the issuance of no-contact orders in cases of domestic violence.
When a defendant is found guilty of a crime and a condition of the sentence restricts the defendant's ability to have contact with the victim, such condition shall be recorded and a written certified copy of that order shall be provided to the victim.
Here, Johnson purports to mount a facial challenge alleging that the statute impermissibly burdens a restrained parent's fundamental right to contact with his or her child. A successful facial challenge means there is no set of circumstances in which the statute, as written, can constitutionally be applied.
In re Custody of Smith, 137 Wn.2d 1, 13-14, 969 P.2d 21 (1998), aff'd sub nom, Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000).
City of Redmond v. Moore, 151 Wn. 2d 664, 669, 91 P.3d 875 (2004).
RCW 10.99.020(3) defines '[f]amily or household members' who are subject to the domestic violence statutes. The statute includes 'persons who have a biological or legal parent-child relationship.' Here, the no-contact order was to protect L.J. from being contacted by Johnson. L.J. is the mother of Johnson's daughter.
Johnson's argument necessarily admits that he and L.J. have a daughter together because he contends he is a parent who is improperly restrained from having contact with his child.
A review of the record shows the order does not prohibit Johnson from having contact with his daughter; it only prohibits contact with the mother of his daughter. Therefore, Johnson cannot show that the statute will interfere with his right to parent, at least as constitutionally recognized. The case is easily distinguished from State v. Ancira, on which Johnson relies. In Ancira, a lower court order prohibited the defendant from contacting his wife and children. This court reversed, finding the order infringed on his right to parent. Here, that is not the case. Johnson always has had the ability to ask the family court to establish visitation rights with his child while avoiding contact with the mother. While the order may be an inconvenience, any interference is not substantial or beyond that which is justified by the need to protect the mother of the child. Johnson cannot establish there is any infringement on his parental rights on the face of the statute. The statute is not unconstitutional on its face and the no-contact order for which Johnson was charged and convicted was issued pursuant to a valid statute. His conviction is affirmed.
107 Wn. App. 650, 27 P.3d 1246 (2001).
Next, Johnson makes a similar argument regarding the no-contact order entered following this recent conviction, but adds to that argument that any domestic violence designation, as found by the trial court, was an element of the crime that necessarily must be submitted to a jury because the resulting penalty was improperly increased. He cites Apprendi v. New Jersey and Blakely v. Washington as support for his argument. We disagree.
530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
___ U.S. ___, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
The offense of violating a no-contact order under RCW 10.99.050 requires three essential elements: 'the willful contact with another; the prohibition of such contact by a valid no-contact order; and the defendant's knowledge of the no-contact order.' A domestic violence designation is not an 'element' of the crime.
State v. Clowes, 104 Wn. App. 935, 944, 18 P.3d 596 (2001); see also RCW 26.50.110(1) (requiring that the 'respondent or person to be restrained knows of the order').
State v. Goodman, 108 Wn. App. 355, 358-59, 30 P.3d 516 (2001).
In Apprendi, the United States Supreme Court held that any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. In Blakely, the United States Supreme Court clarified that in Washington State the prescribed statutory maximum under Apprendi is the top end of the standard range, rather than the statutory maximum for the offense. Thus, Blakely held that a defendant has a Sixth Amendment right to have a jury determine aggravating facts used to impose an exceptional sentence above the standard range. Johnson's argument that the domestic violence designation subjected him to an increased penalty above the statutory maximum fails. First, Johnson received the low end of a standard range sentence. Second, as noted in Blakely, '[t]he domestic-violence stipulation subjected petitioner to such measures as a 'no-contact' order, . . . but did not increase the standard range sentence.' Third, a no-contact order does not constitute punishment. '[N]o-contact provisions have not been considered punishment. They are civil in nature and are designed to protect third parties.'
Blakely, 124 S. Ct. 2535 n. 3.
In re Personal Restraint of Arseneau, 98 Wn. App. 368, 380, 989 P.2d 1197 (1999).
Arseneau, 98 Wn. App. at 380.
Johnson also claims the domestic violence finding by the court violates Blakely because it will result in reduced early release time. But contrary to his argument, a jury found Johnson guilty of the charge of the crime of 'domestic violence violation of a court order,' contrary to RCW 26.50.110(1). This crime is defined as a crime against persons and, therefore, Johnson was ineligible for a 50 percent earned early release time due to the decision of the jury. Any domestic violence 'finding' at sentencing had no additional effect on Johnson's earned early release eligibility. Even if a domestic violence finding impacted Johnson's potential for early release, such an effect is not prohibited under Apprendi or Blakely, because those cases are not implicated by trial court or sentencing court findings concerning minimum sentences.
See RCW 9.94A.411.
Finally, as noted above, to the extent Johnson's arguments can be read to claim that he is entitled to a jury determination that the crime constituted domestic violence based on he and the victim being family or household members, the underlying facts are necessarily admitted in his argument regarding parental rights. There is no violation of Johnson's Sixth Amendment right to a jury trial on whether the crime was a domestic violence offense.
In a cross-appeal, the State contends the sentencing court erred in determining that Johnson's juvenile conviction for assault in the second degree 'washed-out,' thereby reducing his offender score from four to three. The sentencing court erred. In State v. Varga, the Supreme Court held that the legislature unambiguously requires that sentencing courts include a defendant's previously 'washed out' juvenile prior convictions when calculating a defendant's offender score pursuant to the amended version of RCW 9.94A.030 and RCW 9.94A.525. The effective date of the legislation was June 13, 2002. Johnson was convicted of the felony violation that occurred on September 25, 2003. The sentencing court erred in determining that the juvenile offense 'washed-out' and it was error for the court to determine the offender score was three and not four. The sentence is reversed and remanded for resentencing consistent with Varga and RCW 9.94A.030 and RCW 9.94A.525.
151 Wn.2d 179, 86 P.3d 139 (2004).
Varga, 151 Wn.2d at 184.
GROSSE, AGID and BAKER, JJ.