Opinion
No. 59318-8-I.
August 11, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-1-01416-9, Gregory P. Canova, J., entered December 11, 2006.
Affirmed by unpublished opinion per Lau, J., concurred in by Schindler, C.J., and Ellington, J.
Jarrod Taylor challenges the requirement that he obtain a sexual deviancy evaluation as a condition of his community custody. Taylor argues the evaluation is not statutorily authorized because he pleaded guilty to a non-sex-offense, third degree assault. He further argues that the evaluation order is not justified under the circumstances of his case and that it violates his constitutional rights. We affirm the trial court's decision requiring Taylor to obtain a sexual deviancy evaluation. We also conclude the "real and material facts" Taylor stipulated to when he entered his plea establish that an evaluation is reasonably related to the circumstances of his offense. In addition, we conclude that Taylor's constitutional claims are not ripe for review.
Facts
Jarrod Taylor's seven-year-old nephew told his mother that Taylor had masturbated in his presence and forced him to touch Taylor's penis. The State charged Taylor with child molestation in the first degree. After extensive negotiation, Taylor agreed to plead guilty to an amended information charging him with assault in the third degree. In the statement of defendant on plea of guilty Taylor admitted, "with criminal negligence, I caused bodily harm accompanied by substantial pain that extends for a period sufficient to cause considerable suffering to [my nephew]." While Taylor did not acknowledge in the plea agreement that the assault was committed with sexual motivation, he stipulated to the material facts set forth in the certification of probable cause. The certification for probable cause describes Taylor forcing his nephew to touch his penis and then watch Taylor masturbate.
This language mirrors the wording in RCW 9A.36.031(1)(f) that defines third degree assault. "A person is guilty of assault in the third degree if he or she . . . [w]ith criminal negligence, causes bodily harm accompanied by substantial pain that extends for a period sufficient to cause considerable suffering."
At the sentencing hearing, Taylor professed his innocence and said that he only pleaded guilty to avoid the risk of being convicted of a more serious crime. His attorney stated, "The real fact's [sic] that we stipulated to we are still contesting those facts. . . ." Report of Proceedings (RP) (Dec. 8, 2006) at 6. In his sentencing memorandum Taylor argued against a sexual deviancy evaluation and included a summary of what witnesses would have testified to if the case had gone to trial. According to Taylor, the witness summary showed that he was not alone with his nephew when the alleged incidents occurred and that his nephew was questioned in an improperly suggestive manner.
Taylor's attorney also argued that ordering Taylor to undergo a sexual deviancy evaluation would violate his constitutional rights. The attorney presented evidence that some sexual deviancy evaluations involve penile plethysmograph ("PPG") testing and polygraph testing, which could "potentially" result in self-incrimination in violation of the Fifth Amendment. The attorney also introduced an example of a sexual deviancy evaluation form from Bellevue Community Services. The form indicates that polygraph testing was required and contact with people under 21 years old was prohibited during the evaluation process, but it does not mention PPG testing.
Plethysmograph testing attempts to measure sexual arousal with an electronic recording device attached to the penis while the subject is shown images of males and females of various ages involved in various types of sexual activity. In re Det. of Halgren, 156 Wn.2d 795, 800 n. 1, 132 P.3d 714 (2006).
The court rejected Taylor's arguments and ordered him to obtain a sexual deviancy evaluation with a state certified evaluator and to follow all treatment recommendations as a condition of his community custody. The record shows that in making this determination, the court relied on the facts contained in the certification for determination of probable cause. First, the court asked Taylor's attorney, "[D]oesn't the certification for determination of probable cause set forth fact's [sic] that would lead this court to conclude that there was in fact a sexual motivation behind this assault that would justify the imposition of the condition the State's requesting?"Id. at 5. The court then stated,
The facts which justify that condition of the sentence are based upon the felony plea agreement entered into in this case. . . . As part of the felony plea agreement the defendant and the State stipulated that the following are real and material facts for purposes of this sentencing and that's a quote from the plea agreement. . . . Those facts establish that there is a basis for the referral to sexual deviancy evaluation. . . . Under the circumstances. . . . I believe that evaluation requirement is justified both by the law and the facts.
Id. at 9. The court explained that it did not have enough information to determine whether treatment was warranted and that this was the purpose of the evaluation.
Taylor appeals the portion of his judgment and sentence requiring him to undergo a sexual deviancy evaluation. On July 30, 2007, this court tolled Taylor's period of community custody and stayed the sexual deviancy evaluation pending the outcome of the appeal.
DISCUSSION
Statutory Authority
Taylor argues that the sentencing court exceeded its authority in ordering him to undergo a sexual deviancy evaluation because he pleaded guilty only to assault in the third degree. He maintains that "assault" is not a "sex offense" as defined in the Sentencing Reform Act (SRA) and that sexual motivation is not an element of third degree assault. Whether the SRA authorizes the trial court to impose a sexual deviancy condition is a question of statutory interpretation. This court reviews matters of statutory interpretation de novo. See State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007). The court's purpose in interpreting a statute is to ascertain and carry out the legislature's intent. Id. To determine legislative intent, the court looks first to the plain language of the statute. Id. If the statute is clear on its face, the court need not go further. See Densley v. Dep't of Ret. Sys., 162 Wn.2d 210, 219, 173 P.3d 885 (2007).
Taylor was convicted of third degree assault — a crime against a person. RCW 9.94A.411(2). Because Taylor's assault was a crime against a person, former RCW 9.94A.715(2)(a) (2004) authorized the court to order him to participate in rehabilitative programs or other affirmative conduct "reasonably related to the circumstances of the offense, [his] risk of reoffending, or the safety of the community" as a condition of his community custody. (Emphasis added.) This language necessarily permits the court to examine the factual context of the crime before ordering evaluation and treatment as a condition of community custody. Thus, a trial court has statutory authority to order a sexual deviancy evaluation if the circumstances of the assault involve sexual misconduct.
Because Taylor's crime took place between June 1, 2004, and August 1, 2004, the statutes in effect at that time govern his sentencing. RCW 9.94A.345; State v. Varga, 151 Wn.2d 179, 191, 86 P.3d 139 (2004).
Factual Support for Evaluation Order
Taylor next argues the evidence before the court did not demonstrate that a sexual deviancy evaluation was related to the circumstances of his assault. He also contends that the sentencing court abused its discretion by ordering an evaluation because it was uncertain whether Taylor needed treatment. This court reviews the imposition of community custody conditions for abuse of discretion. State v. Vant, No. 35779-8-II (Wash. July 1, 2008). We review the factual support for imposing conditions for substantial evidence. State v. Motter, 139 Wn. App. 797, 801, 162 P.3d 1190 (2007).
A sentencing court is entitled to rely on information admitted by a plea agreement. Former RCW 9.94A.530(2) (2004). In his plea agreement, Taylor stipulated to the material facts set forth in the certification of probable cause. The probable cause certification describes how Taylor masturbated in front of his nephew and forced the seven-year-old to touch his penis. These facts amply support the conclusion that a sexual deviancy evaluation reasonably relates to the circumstances of Taylor's assault.
Taylor points out that his attorney attempted to contest these facts at the sentencing hearing and that the court did not make a specific finding that Taylor's offense was sexually motivated. But while the court never explicitly stated that Taylor's assault was sexually motivated, a fair reading of the sentencing hearing transcript shows that the court concluded the assault was sexually motivated. The court asked Taylor's attorney, "[D]oesn't the certification for determination of probable cause set forth fact's [sic] that would lead this court to conclude that there was in fact a sexual motivation behind this assault. . . ." RP (Dec. 8, 2006) at 5. The court then stated,
The facts which justify that condition of the sentence are based upon the felony plea agreement entered into in this case. . . . As part of the felony plea agreement the defendant and the State stipulated that the following are real and material facts for purposes of this sentencing and that's a quote from the plea agreement. . . . Those facts establish that there is a basis for the referral to sexual deviancy evaluation. . . . Under the circumstances. . . . I believe that evaluation requirement is justified both by the law and the facts.
Id. at 9. Implicit in these statements is the sentencing court's conclusion that a sexual deviancy evaluation relates to the circumstances of Taylor's offense.
Taylor also contends that the sentencing court abused its discretion by using the evaluation as an improper "fishing expedition" to determine if he needed treatment. He points out that the court admitted it did not have enough information to determine whether treatment was warranted. But the uncertainty the trial court expressed as to whether treatment was appropriate did not make its order of an evaluation improper. A sexual deviancy evaluation would be reasonably related to the circumstances of Taylor's assault regardless of whether the evaluation ultimately recommended treatment. Under these facts, the sentencing court did not abuse its discretion.
Constitutional Issues
Taylor argues that the order requiring him to undergo a sexual deviancy evaluation and comply with any recommended treatment violates his constitutional rights. In particular, Taylor objects to PPG testing, a sexual history polygraph examination, and restrictions on his contact with minors.
But because an evaluation has not been done, Taylor's claims are not ripe for review. Neither the court nor an evaluator has required PPG testing, and Taylor's evaluator may decide that PPG testing would not be beneficial here. Further, because an evaluation has not occurred, Taylor has not been asked any potentially incriminating questions, he has not refused to answer such questions, and the trial court has not punished him for refusing to answer. Compare United States v. Antelope, 395 F.3d 1128, 1134 (9th Cir. 2005) (where defendant's Fifth Amendment claim was ripe for review because he had been incarcerated for refusing to submit to a sexual polygraph test). In addition, while Taylor may be restricted from contacting minors as part of the evaluation process, the extent and duration of those restrictions have not been established.
There is no evidence in the record showing how frequently state certified evaluators use PPG testing. One of the cases discussed in Taylor's brief notes that only 15 to 25 percent of adult sex offender programs use the procedure. United States v. Weber, 451 F.3d 552, 562 (9th Cir. 2006). We also note that the Bellevue Community Services' sexual deviancy evaluation agreement makes no mention of PPG testing.
An appellate court needs the factual context provided by an application of a community custody condition in order to properly evaluate a defendant's constitutional claim.Motter, 139 Wn. App. at 804; see also State v. Eaton, 82 Wn. App. 723, 735, 919 P.2d 116 (1996) (condition requiring reasonable progress in treatment was not ripe for review until enforced), overruled on other grounds by State v. Frohs, 83 Wn. App. 803, 924 P.2d 384 (1996). If a claim remains speculative and hypothetical without further factual development, it is not ripe for judicial resolution. See State v. McKee, 141 Wn. App. 22, 36-37, 167 P.3d 575 (2007) (declining to rule on the constitutionality of a community custody condition in a "factual vacuum"). Given the lack of factual context here and the hypothetical nature of the claims, we decline to address Taylor's constitutional challenges.
In sum, because the court had statutory authority to order a sexual deviancy evaluation and properly determined that an evaluation was reasonably related to Taylor's third degree assault conviction, we affirm. In addition, Taylor's constitutional claims are not ripe for review.