FILED APRIL 2, 2024 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
In the Matter of the Personal Restraint of ) ) No. 39758-1-III PAUL BRATCHER, ) ) Petitioner. ) UNPUBLISHED OPINION )
STAAB, A.C.J. — More than a year after Paul Bratcher’s conviction became final,
he filed this personal restraint petition, arguing that two conditions of his community
custody, one that appears to give the community corrections officer (CCO) unfettered
discretion to set Bratcher’s geographic boundaries and the other that prohibits all Internet
usage, are unconstitutionally vague and overbroad. We agree that the conditions are
unconstitutional, that they render Bratcher’s judgment and sentence invalid on its face,
and that Bratcher has demonstrated prejudice. We accordingly grant his petition and
remand for the trial court to correct the conditions of his community custody.
BACKGROUND
In 2012, Bratcher pleaded guilty to one count of second degree child rape and one
count of third degree child rape. The sentencing court imposed an indeterminate sentence
of 136 months to life. The court also imposed several community custody conditions, No. 39758-1-III In re Pers. Restraint of Bratcher
including requiring Bratcher to “[r]emain within geographic boundary, as set forth in
writing by the Community Corrections Officer” and that he “no[t] access the Internet.”
App. No. 5 at 73.1
Eleven years later, Bratcher filed a personal restraint petition with this court
challenging these terms of community custody.
ANALYSIS
1. TIMELINESS
As an initial matter, we consider whether Bratcher’s personal restraint petition is
time-barred. Bratcher filed this personal restraint petition on June 5, 2023—more than
one year from when the judgement and sentence was filed in September 2012. Under
RCW 10.73.090(1), a collateral attack against a defendant’s judgment and sentenced may
not be brought “more than one year after the judgment becomes final if the judgment and
sentence is valid on its face.” The petition is therefore barred as untimely under RCW
10.73.090(1) unless the judgment is facially invalid or was entered without competent
jurisdiction, or the petition is based solely on one or more of the exceptions to the time
bar as set forth in RCW 10.73.100(1)-(6). In re Pers. Restraint of McKiearnan, 165
Wn.2d 777, 781, 203 P.3d 375 (2009).
2 Bratcher raises several other challenges to these community custody conditions, including that they are not crime related. Because we find that the conditions are unconstitutional and remand, we decline to address these additional arguments. On remand, Bratcher may raise these arguments before the sentencing court.
2 No. 39758-1-III In re Pers. Restraint of Bratcher
“A judgment is facially ‘invalid’ if the trial court exercised power that it did not
have, most typically by exceeding its substantive or statutory authority, as opposed to its
procedural authority.” State v. Fletcher, 19 Wn. App. 2d 566, 573, 497 P.3d 886 (2021).
To be facially invalid requires that “the judgment and sentence evidences the invalidity
without further elaboration.” In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 866, 50
P.3d 618 (2002).
The conditions of community custody that Bratcher challenges are apparent from
the face of the judgment and sentence. Moreover, because we conclude that they are
unconstitutionally vague as written, this renders the judgment and sentence facially
invalid and exempt from the one-year time bar.
2. COMMUNITY CUSTODY CONDITIONS
To obtain relief in a personal restraint petition based on constitutional errors the
petitioner must show, by a preponderance of the evidence, actual and substantial
prejudice resulting from the alleged errors. In re Pers. Restraint of Cook, 114 Wn.2d
802, 814, 792 P.2d 506 (1990). To avoid dismissal, the petitioner must support claims
with facts and not merely bald or conclusory allegations. Id. at 813-14. The supporting
evidence must be based on “more than speculation, conjecture, or inadmissible hearsay,”
and failure to meet this standard calls for dismissal of the petition. In re Pers. Restraint
of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992). This court will dismiss a petition if
it “fails to present an arguable basis for collateral relief either in law or in fact, given the
3 No. 39758-1-III In re Pers. Restraint of Bratcher
constraints of the personal restraint petition vehicle.” In re Pers. Restraint of Khan, 184
Wn.2d 679, 686-87, 363 P.3d 577 (2015).
Bratcher challenges two conditions of community custody imposed by the trial
court:
(9) Remain within geographic boundary, as set forth in writing by the Community Corrections Officer. (19) That you do no [sic] access the Internet.
App. No. 5 at 73. He argues that both conditions are unconstitutional and requests this
court remand so that the conditions can be modified.2
Geographic Restrictions
First, Bratcher contends that the geographic boundary condition is invalid because
it is unconstitutionally vague. “A condition of community custody is unconstitutionally
vague if it either fails to give fair warning of what is forbidden or fails to give
ascertainable standards that will prevent arbitrary enforcement.” State v. Johnson, 197
Wn.2d 740, 747, 487 P.3d 893 (2021). “‘If persons of ordinary intelligence can
understand what the [law] proscribes, notwithstanding some possible areas of
disagreement, the [law] is sufficiently definite.’” Id. at 747 (alterations in original)
2 Bratcher raises several other challenges to these community custody conditions, including that they are not crime related. Because we find that the conditions are unconstitutional and remand, we decline to address these additional arguments. On remand, Bratcher may raise these arguments before the sentencing court.
4 No. 39758-1-III In re Pers. Restraint of Bratcher
(internal quotation marks omitted) (quoting State v. Bahl, 164 Wn.2d 739, 754, 193 P.3d
678 (2008)).
Courts have determined that community custody conditions that defer to a CCO to
outline terms or definitions are unconstitutionally vague as they do not protect against
arbitrary enforcement. See Bahl, 164 Wn.2d at 753-54 (condition prohibiting access and
possession of pornographic materials “as directed by the supervising Community
Corrections Officer” failed to protect against arbitrary enforcement); State v. Irwin, 191
Wn. App. 644, 655, 364 P.3d 830 (2015) (holding that geographic boundary condition
requiring CCO to define locations where “children are known to congregate” leaves
Free access — add to your briefcase to read the full text and ask questions with AI
FILED APRIL 2, 2024 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
In the Matter of the Personal Restraint of ) ) No. 39758-1-III PAUL BRATCHER, ) ) Petitioner. ) UNPUBLISHED OPINION )
STAAB, A.C.J. — More than a year after Paul Bratcher’s conviction became final,
he filed this personal restraint petition, arguing that two conditions of his community
custody, one that appears to give the community corrections officer (CCO) unfettered
discretion to set Bratcher’s geographic boundaries and the other that prohibits all Internet
usage, are unconstitutionally vague and overbroad. We agree that the conditions are
unconstitutional, that they render Bratcher’s judgment and sentence invalid on its face,
and that Bratcher has demonstrated prejudice. We accordingly grant his petition and
remand for the trial court to correct the conditions of his community custody.
BACKGROUND
In 2012, Bratcher pleaded guilty to one count of second degree child rape and one
count of third degree child rape. The sentencing court imposed an indeterminate sentence
of 136 months to life. The court also imposed several community custody conditions, No. 39758-1-III In re Pers. Restraint of Bratcher
including requiring Bratcher to “[r]emain within geographic boundary, as set forth in
writing by the Community Corrections Officer” and that he “no[t] access the Internet.”
App. No. 5 at 73.1
Eleven years later, Bratcher filed a personal restraint petition with this court
challenging these terms of community custody.
ANALYSIS
1. TIMELINESS
As an initial matter, we consider whether Bratcher’s personal restraint petition is
time-barred. Bratcher filed this personal restraint petition on June 5, 2023—more than
one year from when the judgement and sentence was filed in September 2012. Under
RCW 10.73.090(1), a collateral attack against a defendant’s judgment and sentenced may
not be brought “more than one year after the judgment becomes final if the judgment and
sentence is valid on its face.” The petition is therefore barred as untimely under RCW
10.73.090(1) unless the judgment is facially invalid or was entered without competent
jurisdiction, or the petition is based solely on one or more of the exceptions to the time
bar as set forth in RCW 10.73.100(1)-(6). In re Pers. Restraint of McKiearnan, 165
Wn.2d 777, 781, 203 P.3d 375 (2009).
2 Bratcher raises several other challenges to these community custody conditions, including that they are not crime related. Because we find that the conditions are unconstitutional and remand, we decline to address these additional arguments. On remand, Bratcher may raise these arguments before the sentencing court.
2 No. 39758-1-III In re Pers. Restraint of Bratcher
“A judgment is facially ‘invalid’ if the trial court exercised power that it did not
have, most typically by exceeding its substantive or statutory authority, as opposed to its
procedural authority.” State v. Fletcher, 19 Wn. App. 2d 566, 573, 497 P.3d 886 (2021).
To be facially invalid requires that “the judgment and sentence evidences the invalidity
without further elaboration.” In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 866, 50
P.3d 618 (2002).
The conditions of community custody that Bratcher challenges are apparent from
the face of the judgment and sentence. Moreover, because we conclude that they are
unconstitutionally vague as written, this renders the judgment and sentence facially
invalid and exempt from the one-year time bar.
2. COMMUNITY CUSTODY CONDITIONS
To obtain relief in a personal restraint petition based on constitutional errors the
petitioner must show, by a preponderance of the evidence, actual and substantial
prejudice resulting from the alleged errors. In re Pers. Restraint of Cook, 114 Wn.2d
802, 814, 792 P.2d 506 (1990). To avoid dismissal, the petitioner must support claims
with facts and not merely bald or conclusory allegations. Id. at 813-14. The supporting
evidence must be based on “more than speculation, conjecture, or inadmissible hearsay,”
and failure to meet this standard calls for dismissal of the petition. In re Pers. Restraint
of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992). This court will dismiss a petition if
it “fails to present an arguable basis for collateral relief either in law or in fact, given the
3 No. 39758-1-III In re Pers. Restraint of Bratcher
constraints of the personal restraint petition vehicle.” In re Pers. Restraint of Khan, 184
Wn.2d 679, 686-87, 363 P.3d 577 (2015).
Bratcher challenges two conditions of community custody imposed by the trial
court:
(9) Remain within geographic boundary, as set forth in writing by the Community Corrections Officer. (19) That you do no [sic] access the Internet.
App. No. 5 at 73. He argues that both conditions are unconstitutional and requests this
court remand so that the conditions can be modified.2
Geographic Restrictions
First, Bratcher contends that the geographic boundary condition is invalid because
it is unconstitutionally vague. “A condition of community custody is unconstitutionally
vague if it either fails to give fair warning of what is forbidden or fails to give
ascertainable standards that will prevent arbitrary enforcement.” State v. Johnson, 197
Wn.2d 740, 747, 487 P.3d 893 (2021). “‘If persons of ordinary intelligence can
understand what the [law] proscribes, notwithstanding some possible areas of
disagreement, the [law] is sufficiently definite.’” Id. at 747 (alterations in original)
2 Bratcher raises several other challenges to these community custody conditions, including that they are not crime related. Because we find that the conditions are unconstitutional and remand, we decline to address these additional arguments. On remand, Bratcher may raise these arguments before the sentencing court.
4 No. 39758-1-III In re Pers. Restraint of Bratcher
(internal quotation marks omitted) (quoting State v. Bahl, 164 Wn.2d 739, 754, 193 P.3d
678 (2008)).
Courts have determined that community custody conditions that defer to a CCO to
outline terms or definitions are unconstitutionally vague as they do not protect against
arbitrary enforcement. See Bahl, 164 Wn.2d at 753-54 (condition prohibiting access and
possession of pornographic materials “as directed by the supervising Community
Corrections Officer” failed to protect against arbitrary enforcement); State v. Irwin, 191
Wn. App. 644, 655, 364 P.3d 830 (2015) (holding that geographic boundary condition
requiring CCO to define locations where “children are known to congregate” leaves
condition open to arbitrary enforcement and therefore renders it void for vagueness). A
condition that gives a CCO such discretion “only makes the vagueness problem more
apparent, since it virtually acknowledges that on its face it does not provide ascertainable
standards for enforcement.” Bahl, 164 Wn.2d at 758.
Here, the community custody condition requires Bratcher to remain within the
“geographic boundary” set by his CCO. It does not provide any guidance or clarification
regarding the geographic boundaries to be set such that an ordinary person would
understand the conduct proscribed or otherwise define “geographic boundary.” Further,
it appears to give the CCO unfettered discretion to set geographic boundaries, risking
arbitrary enforcement. Thus, the condition is unconstitutionally vague on its face as it
5 No. 39758-1-III In re Pers. Restraint of Bratcher
both fails to give Bratcher fair warning of the conduct that is forbidden and does not
provide ascertainable standards to protect against arbitrary enforcement.
The State maintains that the geographic boundary issue is not ripe because
Bratcher “[has] not indicate[d] whether he has requested travel outside the DOC-
described geographic boundary or where the geographic boundary is.” Br. of Resp’t at
11. The State argues that further factual development is necessary to determine whether,
as applied, the geographic boundary condition is unconstitutional. We disagree.
“Preenforcement challenges to community custody conditions are ripe for review when
the issue raised is primarily legal, further factual development is not required, and the
challenged action is final.” State v. McWilliams, 177 Wn. App. 139, 153, 311 P.3d 584
(2013).
Here, Bratcher is challenging the travel restriction as unconstitutionally vague.
This is primarily a legal question. State v. Valencia, 169 Wn.2d 782, 788, 239 P.3d 1059
(2010). “In many cases, vagueness questions will be amenable to resolution as questions
of law.” Bahl, 164 Wn.2d at 752.
Nor does the issue require further factual inquiry. “[T]he question of whether the
condition is unconstitutionally vague does not require further factual development.”
Valencia, 169 Wn.2d at 788-89. Whether the condition gives unfettered discretion to the
CCO is not an analysis that will change with application of the condition.
We conclude that condition (9) is unconstitutionally vague.
6 No. 39758-1-III In re Pers. Restraint of Bratcher
Internet Use
Second, Bratcher argues that the community custody condition prohibiting him
from accessing the Internet violates his First Amendment to the United States
Constitution rights under the federal constitution and is unconstitutionally overbroad. He
requests this court order the trial court to modify the blanket ban and authorize him to use
the Internet provided he installs a monitoring software. Although it contests some of
Bratcher’s arguments, the State ultimately agrees that this court should order the trial
court to amend the condition to comport with the requirements of the First Amendment as
outlined in Johnson. 197 Wn.2d 740.
Community custody conditions that restrict Internet access implicate the First
Amendment. Id. at 744. “Judges may restrict a convicted defendant’s access to the
Internet, but those restrictions must be narrowly tailored to the dangers posed by the
specific defendant.” Id. at 745.
In Johnson, our Supreme Court upheld a community custody condition, stating
that “Johnson shall ‘not use or access the World Wide Web unless specifically authorized
by [his community custody officer] through approved filters.’” Id. at 744 (alteration in
original). However, the court indicated that a blanket prohibition on Internet use would
be facially invalid as such a ban “might well reduce his ability to improve himself” and
would thus be unconstitutionally overbroad. Id. at 746.
7 No. 39758-1-III In re Pers. Restraint of Bratcher
Here, Bratcher’s conditions of community custody contain a blanket prohibition
on accessing the Internet. This condition is unconstitutionally overbroad as written.
The two conditions are unconstitutional and facially invalid. Accordingly, we
grant Bratcher’s personal restraint petition and remand for the limited purpose of
allowing the superior court to correct the two community custody conditions so that they
comport with constitutional standards.
Unpublished.
A majority of the panel has determined 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.
_________________________________ Staab, J.
WE CONCUR:
_________________________________ Fearing, J.
_________________________________ Lawrence-Berrey, C.J.