In Re Rainey

229 P.3d 686
CourtWashington Supreme Court
DecidedMarch 11, 2010
Docket81244-6
StatusPublished
Cited by140 cases

This text of 229 P.3d 686 (In Re Rainey) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Rainey, 229 P.3d 686 (Wash. 2010).

Opinion

229 P.3d 686 (2010)
168 Wash.2d 367

In the Matter of the Personal Restraint Petition of Shawn RAINEY, Petitioner.

No. 81244-6.

Supreme Court of Washington, En Banc.

Argued October 29, 2009.
Decided March 11, 2010.

*687 David L. Donnan, Nancy P. Collins, Washington Appellate Project, Seattle, WA, for Petitioner.

Steven J. Tucker, Mark Erik Lindsey, Spokane County Prosecutor's Office, Spokane, WA, for Respondent.

STEPHENS, J.

¶ 1 This case involves a challenge to a no-contact order imposed as a condition of a criminal sentence. A jury convicted Shawn Rainey of first degree kidnapping and telephone harassment. In addition to imposing a standard range sentence and community custody, the sentencing court ordered Rainey to have no contact with his ex-wife and daughter for the statutory maximum for his crime: life. Rainey challenges the lifetime no-contact order with his daughter as violative of his rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and of his fundamental constitutional right to parent. We hold that the order did not violate Rainey's Apprendi/Blakely rights. However, because the sentencing court did not consider whether the lifetime duration of the order was reasonably necessary to serve the State's interests, we strike the no-contact order and remand for resentencing.

FACTS AND PROCEDURAL HISTORY

¶ 2 In 2005, Rainey was convicted of telephone harassment of his wife, Kimberly,[1] and of first degree kidnapping of his three-year-old daughter, L.R. State v. Rainey, noted at 137 Wash.App. 1050, 2007 WL 858750, at *1-2 (2007), review denied, 162 Wash.2d 1017, 178 P.3d 1032 (2008). After a bitter divorce predicated on Rainey's domestic violence and threats, Kimberly started dating another man. Rainey repeatedly telephoned and harassed Kimberly, threatening to leave town with their daughter. He accused Kimberly's new boyfriend of child abuse, but child protective services determined that no evidence of child abuse existed. Rainey also began refusing to return L.R. from visitation in accordance with the parenting plan. Finally, Rainey sold his home and disappeared with L.R., taking her to Mexico. Weeks later, he called Kimberly and demanded that she move "a thousand miles away, pay his attorney fees, give him custody, and tell the police that she knew he had taken L.R. on vacation." Id. at *1. When she refused, he told her, "`happy hunting.'" Id. Rainey and L.R. were later apprehended at the Mexico-Texas border.

¶ 3 While in custody in Texas, Rainey sent several letters to L.R. in which he blamed Kimberly for keeping the family apart. For *688 example, he said: "I'm sorry that Mommy doesn't want to let us be a family. She has no idea what she's making the two of you miss." and "It's too bad for Mommy that she couldn't swallow her pride and remember how much we did love each other at one time. All she wants to do now is hurt me and you but Daddy and his family won't let that happen." Verbatim Report of Proceedings (VRP) (Oct. 12, 2005) at 385-87.

¶ 4 The State charged Rainey with, among other things, first degree kidnapping and telephone harassment. The basis for the kidnapping charge (a class A felony) was that Rainey intentionally abducted L.R. to inflict extreme emotional distress upon Kimberly.[2] The jury convicted Rainey of these charges.

¶ 5 At sentencing, L.R.'s grandfather offered a statement[3] in which he described the "great financial and measurable emotional damage" Rainey had inflicted upon Kimberly and L.R.: "[Shawn] spent the precious time he had with [L.R.] harassing Kim. He spent his money on himself, not child support. . . . Shawn took [L.R.] for one purpose only: To get back at Kim, to scare and hurt her." VRP (Sentencing Hr'g Nov. 30, 2005) at 15. The grandfather also discussed Rainey's refusal to take responsibility for his actions, describing how he "continued to blame everything on his wife" during the trial and had even blamed L.R. at one point. Id. In closing, he urged:

[M]y daughter . . . will, unfortunately, spend a considerable amount of time . . . speculating [about] when and if Shawn will seek revenge on Kim or [L.R.], regardless of [the] restrictions placed on him. . . .
Finally, my family's overriding concern is for our granddaughter [L.R.]. We hope the Court can impose the longest time . . . and most protective Order to shield her from Shawn's influence. Until Shawn accepts responsibility for his lies and acts, he will not change.

Id. at 16.

¶ 6 The prosecutor reminded the court that first degree kidnapping is a statutory serious violent felony and emphasized the domestic violence context of the crime. She pointed out that the defendant had shown no remorse or respect for protection orders, violating them consistently over the course of the case, and that he had used child protective services to harass his ex-wife. For that reason, the State asked for an order of no contact with Kimberly or L.R. for the "maximum amount of time, or until such time as the Family Courts have looked into the matter and have decided that there should be some type of supervised visitation." Id. at 13.

¶ 7 Defense counsel pointed out that no physical harm came to L.R. and strongly objected to the no-contact order:

I think that imposes a sanction against the child. I think that all children look up to their father as kind of a hero and, when your hero is taken away and you can no longer communicate with that person, it does more harm with the child. I think, obviously, the communications in this case need to be monitored in some sort . . . but I don't see any need to have absolutely no contact with the child.

Id. at 18-19. Mr. Rainey himself added: "I would like to apologize. . . . Sometimes things are hard to deal with, and I don't always make the right decisions. I understand that. I don't feel that I am a threat to anybody, especially my daughter." Id. at 21.

¶ 8 The sentencing judge noted that domestic violence had "permeated these offenses." Id. at 22. She imposed the highest standard range sentence of 68 months, plus a statutorily mandated 24-48 month period of community custody. Id. The judge also "recognize[d] the requested conditions," imposing an order of no contact with Kimberly and, because the child was the victim of the kidnapping, with L.R. Id. The judge did not specify the order's length. Id. The judgment and sentence imposes the order for the statutory maximum of a class A felony: life. Pet'r's Suppl. Br.App. B at 6 (no-contact *689 order in judgment and sentence). The defense attorney later verified that the court intended to impose a lifetime no-contact order with L.R. VRP (Sentencing Hr'g Nov. 30, 2005) at 27.

¶ 9 Rainey filed a pro se personal restraint petition (PRP) challenging, inter alia, the lifetime no-contact order with L.R. as violative of his rights under Apprendi and Blakely and of his fundamental right to parent. The Court of Appeals dismissed the PRP. We granted discretionary review solely as to the imposition of the no-contact order.

ANALYSIS

I. Standard of Review

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Cite This Page — Counsel Stack

Bluebook (online)
229 P.3d 686, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-rainey-wash-2010.