Opinion
No. 58955-5-I.
July 21, 2008.
Appeal from a judgment of the Superior Court for King County, No. 05-1-06510-5, Deborah D. Fleck, J., entered September 18, 2006.
Remanded by unpublished per curiam opinion.
Richard Rusher pleaded guilty to three counts of first degree child molestation — domestic violence. He challenges the duration of his community custody and eight of his community custody conditions. In a pro se statement of additional grounds, he also contends that the sentencing court was biased against him and failed to properly consider a SSOSA (Special Sex Offender Sentencing Alternative). We conclude that Rusher's bias and SSOSA contentions are without merit. However, we agree that the length of community custody and several of the conditions imposed are not statutorily authorized or are not supported by the evidence. Accordingly, we remand for resentencing.
FACTS
Richard Rusher was charged by amended information with two counts of first degree child rape, three counts of first degree child molestation, and two counts of second degree child molestation. He pleaded guilty to three counts of first degree child molestation — domestic violence, involving K.D. and L.D. As part of the plea agreement, he stated that he would "not ask for SSOSA." He also stipulated that the facts set forth in the certification for determination of probable cause were real and material facts for purposes of sentencing. The certification alleges that Rusher sexually assaulted K.D., the daughter of his ex-girlfriend, beginning when she was seven or eight years old. K.D. stated that Rusher touched her vagina with his mouth, penetrated her with his fingers, and placed her hand on his penis after stating that it "won't bite." After K.D. disclosed Rusher's abuse, the King County Sheriff's Office interviewed K.D.'s three sisters. One of her sisters, L.D., described similar sexual abuse, beginning when she was eight years old. K.D.'s other two sisters described inappropriate touching that made them feel uncomfortable, and they also testified at a pretrial hearing that Rusher would offer them alcohol to try to get them to come up to his cabin.
The charging period for the three counts of child molestation ranged from August 30, 1992, to July 22, 1998. At the sentencing hearing, the parties agreed that for this charging period, different community placement and community custody rules applied. For sex offenses committed between July 1, 1990, and June 6, 1996, the statute mandated two years of community placement, and for offenses committed on or after June 6, 1996, the statute required three years of community custody. Former RCW 9.94A.120(9)(b), (10)(a) (June 1996). Because the State agreed that two years of community placement applied to Rusher's offenses the sentencing court imposed two years of community placement in the judgment and sentence form. But it neglected to modify Appendix H to the judgment and sentence form, which imposed three years of community custody and 29 conditions. On appeal, Rusher challenges eight of these conditions.
"Community custody" is a subset of "community placement," in which the offender is monitored by the Department of Corrections while in the community. See In re Pers. Restraint of McNeal, 99 Wn. App. 617, 621, 994 P.2d 890 (2000); In re Postsentence Review of Smith, 139 Wn. App. 600, 603, 161 P.3d 483 (2007). This case does not involve community placement that is not community custody.
Appendix H is a preprinted form containing 29 conditions applicable to community custody or community placement.
(16). Do not possess or peruse sexually explicit materials unless given prior approval by your sexual deviancy treatment specialist.
(17). Do not attend X-rated movies, peep shows or adult bookstores without the prior approval of your sexual deviancy treatment specialist.
. . . .
(20). Do not use or possess illegal or controlled substances without the written prescription of a licensed physician and to verify compliance, submit to testing and reasonable searches of your person, residence and vehicle by the Community Corrections Officer.
(21). Do not purchase, possess, or use alcohol (beverage or medicinal), and submit to testing and reasonable searches of your person, residence, property and vehicle by the Community Corrections Officer.
. . . .
(23). Obey all laws.
. . . .
(26). Within 30 days of sentencing, submit to DNA [deoxyribonucleic acid] and HIV [human immunodeficiency virus] testing as required by law.
. . . .
(28). Do not access the Internet without the prior approval of your supervising Community Corrections Officer and sex offender treatment provider.
(29). Abide by any additional conditions imposed by the Washington State Department of Corrections.
Clerk's Papers (CP) at 50-51. Rusher does not challenge however a requirement that he undergo a sexual deviancy evaluation and follow all treatment recommendations.
ANALYSIS
Statutory Authority for Disputed Conditions
We first address Rusher's contention that the sentencing court erred by applying community custody provisions of the Sentencing Reform Act (SRA) that were not in effect at the time of his offenses. Any sentence imposed under the authority of the SRA must be in accordance with the law in effect at the time the offense was committed. RCW 9.94A.345. Therefore, the law in effect between August 30, 1992, and June 6, 1996, governs the validity of Rusher's sentence. Whether the challenged aspects of his sentence were imposed with the requisite statutory authority is a question of law, reviewed de novo. See State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007); State v. Murray, 118 Wn. App. 518, 521, 77 P.3d 1188 (2003).
Fourteen versions of the SRA were applicable at various points during this range. To resolve the issues raised here, we find it sufficient to refer to the version in effect immediately prior to June 6, 1996, which we cite with the "(May 1996)" parenthetical and on or after June 6, 1996, which we cite with the "(June 1996)" parenthetical.
Initially, Rusher challenges the three-year duration of community custody. When a court sentences a person for a sex offense committed between July 1, 1990, and June 6, 1996, former RCW 9.94A.120(9)(b) (May 1996) requires that it impose "community placement for two years or up to the period of earned early release . . . whichever is longer." Here, the child molestation offenses Rusher pleaded guilty to occurred prior to June 6, 1996, so the sentencing court should have imposed two years of community placement. Indeed, one page of the judgment and sentence form properly orders community placement for 24 months. However, in Appendix H to the judgment and sentence form, the court sentenced Rusher to "community custody for three years." CP at 50. It appears from the sentencing transcript that the court intended to impose a two-year term, but inadvertently neglected to modify Appendix H to reflect this. We accept the State's concession of error because under former RCW 9.94A.120(9)(b) (May 1996), the proper period of community placement is two years.
Rusher next disputes the condition that he "[a]bide by any additional conditions imposed by the Washington State Department of Corrections." CP at 51. He argues that the department was not statutorily authorized to impose supervision conditions on an offender at the time of his offenses. The State responds that former RCW 9.94A.120(13) provided the necessary authorization. That provision subjected offenders to the supervision of the Department of Corrections and required that they "follow explicitly the instructions of the secretary . . ." Former RCW 9.94A.120(13) (May 1996). After Rusher's offenses, the statute was amended to require offenders to "follow explicitly the instructions and conditions of the department of corrections." Former RCW 9.94A.120(14) (June 1996) (emphasis added). The 1996 Final Legislative Report accompanying this change stated, "Under current law, all conditions of supervision must be imposed at the time of sentencing by the court and may not be altered later except to make them less restrictive. The department does not have the statutory authority to impose additional supervision conditions . . ." 1996 Final Legislative Report, Substitute Senate Bill 6274, 54th Legis., Reg. Sess. (Wash. 1996). This legislative history shows that the legislature intended to give the department authority to impose additional supervision conditions independent of those that had been ordered by the sentencing court. But the law in effect at the time of Rusher's offenses did not authorize the department to impose additional supervision conditions.
Rusher also objects to the requirement that he submit to HIV (human immunodeficiency virus) testing. He contends that the legislature did not authorize mandatory HIV testing for sex offenders until 1997, citing RCW 70.24.340. In fact, this statute was enacted in 1988. See Laws of 1988, ch. 206, § 703 (effective Mar. 23, 1988). It required a sentencing court to order HIV testing for all persons convicted of a sexual offense under RCW 9A.44 if the offense was committed after March 23, 1988. Former RCW 70.24.340 (1988). This version of the statute was still in effect when Rusher's offenses occurred. Former RCW 70.24.340 (May 1996). Child molestation in the first degree was classified as a sex offense at that time, as it is today. Compare former RCW 9A.44.083 (May 1996) with RCW 9A.44.083. Thus, HIV testing was a required condition of his sentence and the sentencing court did not err in imposing it. While RCW 70.24.340 was amended in 1997, the amendments pertained to the disclosure of an offender's HIV status to certain jail personnel and are not relevant here. See Laws of 1997, ch. 345, § 3 (effective July 27, 1997). The HIV testing requirement is proper.
Rusher also contests the condition requiring him to "obey all laws." Prior to 1984, a sentencing court could order an offender to obey all laws; however, this authority was eliminated when the SRA took effect in July 1984. State v. Jones, 118 Wn. App. 199, 204-05, 76 P.3d 258 (2003). The legislature subsequently amended the SRA to allow a sentencing court to impose such a condition if the crime was committed after July 1, 2000. Id. Here, because Rusher's offenses were committed in the intervening period, there was no statutory authority for the court to order him to "obey all laws" as a condition of his community placement. We accept the State's concession of error because the court lacked statutory authority to impose such a condition.
Finally, Rusher argues that the conditions restricting his purchase, use, and possession of alcohol and/or controlled substances were not statutorily authorized. But former RCW 4.94A.120(9)(b)(iii) and (iv) specifically required that the sentencing court condition an offender's community placement on not consuming or possessing controlled substances except pursuant to lawfully issued prescriptions or a court waiver. Former RCW 4.94A120(9)(b)(iii), (iv) (May 1996). Additionally, the sentencing court had discretionary authority to impose a condition that the offender not consume alcohol. Former RCW 4.94A120(9)(c)(iv) (May 1996). Rusher contends that these conditions were not authorized because they also required that he submit to testing and reasonable searches. He contends that such monitoring procedures were not authorized until after he committed his offenses. In 1997, the legislature amended the SRA to specifically require the offender to "submit to affirmative acts necessary to monitor compliance with the orders of the court as required by the department." Laws of 1997, ch. 144, § 2. However, the Washington Supreme Court has concluded that the legislature made this clarifying amendment to confirm the preexisting practice of using testing to monitor compliance with sentencing conditions. See State v. Riles, 135 Wn.2d 326, 343, 957 P.2d 655 (1998) (affirming use of polygraphs based on this rationale). Consequently, the requirement that Rusher submit to testing and reasonable searches does not render these conditions invalid.
While we reject this challenge to the condition barring Rusher from purchasing, possessing, or using alcohol, we conclude the provisions regarding the purchase and possession of alcohol are improper for other reasons, as discussed below.
Evidentiary Support for Disputed Conditions
We next address several conditions that Rusher contends are not justified by the evidence. Specifically, Rusher argues that the evidence before the sentencing court did not show that the prohibitions regarding sexually explicit material, adult entertainment, the Internet, or his purchase and possession of alcohol were related to his crime. Former RCW 9.94A.120(9)(c)(v) authorized the sentencing court to impose crime-related prohibitions as a condition of Rusher's community placement. Former RCW 9.94A.120(9)(c)(v) (May 1996). We generally review the imposition of a crime-related prohibition for an abuse of discretion. Armendariz, 160 Wn.2d at 110. However, we review the factual support underlying the prohibition for substantial evidence. See State v. Motter, 139 Wn. App. 797, 801, 162 P.3d 1190 (2007), review denied, 163 Wn.2d 1025 (2008). Here, the sentencing court was limited to the facts Rusher admitted in his plea statement and the certification for determination of probable cause. See RCW 9.94A.530(2).
Rusher challenges the conditions prohibiting him from perusing sexually explicit material; attending X-rated movies, peep shows, or adult bookstores; or accessing the Internet without the prior approval of his community corrections officer and sex offender treatment provider. He contends that the prohibited conduct was not directly related to the circumstances of his crimes. The State argues that these conditions were imposed to facilitate sexual deviancy treatment. But Rusher does not challenge the requirement that he complete a sexual deviancy evaluation and follow all treatment recommendations. We agree with Rusher that these conditions constitute prohibitions that can only be justified if they are directly related to the circumstances of his offense. See State v. O'Cain, ___ Wn. App. ___, 184 P.3d 1262 (2008) (concluding that an identical bar on Internet access in rape case was an improper prohibition because it was not crime related). There was no evidence before the court that these prohibitions were directly related to his offenses. This is not a case where pornographic magazines were given to the victims or where the Internet was used to cultivate or groom them. Similarly, adult bookstores, peep shows, or X-rated movies were not involved. The sentencing court erred when it imposed these conditions.
The State argues that these conditions are justified because the psychosexual evaluation Rusher submitted to the sentencing court with his presentence report showed that he had a history of viewing sexually explicit material. There is some dispute between the parties regarding whether the court considered Rusher's presentence report. Regardless of the merits of this dispute, it is clear that nothing in the report or the psychosexual evaluation shows that sexually explicit material was involved in Rusher's offenses against K.D. and L.D.
Our holding should not be construed to preclude such restrictions on Rusher's conduct if they are imposed as part of the treatment recommended as part of the sexual deviancy evaluation.
Rusher also argues that there was insufficient evidence that his crime was related to alcohol to support the prohibition on his purchase and possession of alcohol. The State does not argue that alcohol was involved in Rusher's molestation of K.D. or L.D. Instead, it points to pretrial hearing testimony from the victims' two sisters suggesting that Rusher may have attempted to use alcohol to lure them to a secluded place where he could have abused them too. This does not provide an adequate factual basis to support the prohibition. First, the sentencing court was not entitled to rely on this testimony because it was not admitted as part of the plea agreement. Second, even if such evidence were properly before the court, it does not show that alcohol was directly related to his offenses. Nothing in the certification for determination of probable cause references alcohol in connection with Rusher's molestation of K.D. or L.D. Accordingly, the sentencing court erred by imposing this condition.
Unlike a prohibition on the consumption of alcohol, which was specifically authorized pursuant to former RCW 4.94A.120(9)(c)(iv) (May 1996) regardless of whether alcohol contributed to the offense, a prohibition on purchasing or possessing alcohol would not have been authorized unless it were "crime-related." See RCW 4.94A.120(9)(c)(v) (May 1996); Jones, 118 Wn. App. at 206.
Additional Grounds
In a pro se statement of additional grounds, Rusher asks this court to review his case de novo and remand it to enable the sentencing court to properly consider a SSOSA. He contends that the sentencing court denied him equal protection and due process because of an alleged bias against him. We conclude that Rusher's arguments are without merit.
First, Rusher argues that the sentencing court erred by its "refusal to meaningfully consider whether a SSOSA was appropriate." Appellant's Statement of Additional Authorities at 2. We review a sentencing court's refusal to order a SSOSA for an abuse of discretion. State v. Frazier, 84 Wn. App. 752, 753, 930 P.2d 345 (1997). Rusher's argument relies primarily on Grayson, which held that "where a defendant has requested a sentencing alternative authorized by statute, the categorical refusal to consider the sentence" is an abuse of discretion. Grayson, 154 Wn.2d 333, 342, 111 P.3d 1183 (2005). In Grayson, the sentencing court denied the defendant's motion for a DOSA (Drug Offender Sentencing Alternative) because of a funding deficiency in the DOSA program. Id. at 337. Grayson is readily distinguishable from Rusher's case. First, Rusher did not request a SSOSA. In fact, he agreed that he would not ask for a SSOSA as part of his plea agreement with the State. Second, the basis for the sentencing court's decision was focused on Rusher's individual case, not consideration of some external issue like funding. Specifically, the court stated,
The recommendation from the defense is for the low end of the range, followed by treatment, perhaps, with a hope that I might, on my own, do something else in the nature of a S[S]OSA. If that was the hope or expectation, it is not something that I feel is appropriate in this case, given the status of the case and where we are.
Report of Proceedings (RP) (Sept. 15, 2006) at 56-57. While the court's rationale could have been more clearly expressed, it was not required to spell out a detailed justification for its determination. State v. Hays, 55 Wn. App. 13, 15, 776 P.2d 718 (1989). So long as the sentencing court's decision is not "manifestly unreasonable," it does not abuse its discretion. State v. McDougal, 120 Wn.2d 334, 354, 841 P.2d 1232 (1992). Here, the court did not abuse its discretion.
Rusher also contends that he was deprived of various rights because the sentencing hearing was tainted by judicial bias. He points out that the court stated it was "impressed" by the victims' statements during the hearing. He also asserts that in other cases, offenders have been treated more leniently. Rusher is correct that the appearance of fairness doctrine requires that all parties receive a fair, impartial, and neutral hearing. State v. Bilal, 77 Wn. App. 720, 722, 893 P.2d 674 (1995). However, the presumption is that the sentencing court performed its functions properly without bias or prejudice. See Wolfkill Feed Fertilizer Corp. v. Martin, 103 Wn. App. 836, 841, 14 P.3d 877 (2000). Here, while the sentencing court stated that it was impressed by the victims, it also emphasized positive statements regarding Rusher and ultimately imposed less time than the State sought. Rusher does not demonstrate judicial bias. His other complaints are without merit.
We remand for resentencing.