FILED JULY 31, 2018 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In re Personal Restraint Petition of: ) No. 34866-1-III ) CASEY DULLEA PEPPIN, ) ) UNPUBLISHED OPINION ) Petitioner. )
LAWRENCE-BERREY, C.J. — Casey Dullea Peppin seeks relief from personal
restraint imposed in his 2013 bench trial convictions of three counts of first degree
possession of depictions of minors engaged in sexually explicit conduct. We affirmed
Mr. Peppin’s judgment and sentence in State v. Peppin, 186 Wn. App. 901, 347 P.3d 906
(2015).
In this timely personal restraint petition (PRP), he contends (1) he received
ineffective assistance of counsel, (2) the Department of Corrections (DOC) illegally
denied him a housing voucher and earned early release because he has a disability, (3) the
trial court used an erroneous offender score to determine the standard range for his
sentence, and (4) many of his conditions of community custody are not crime related, are
unconstitutionally vague, or are subject to arbitrary enforcement. We agree that some of No. 34866-1-III In re Pers. Restraint of Peppin
his community custody conditions are unconstitutional and grant his petition to that
extent.
FACTS
The background facts were set forth in Mr. Peppin’s direct appeal, State v. Peppin,
186 Wn. App. 901. We summarize the facts and procedure to the extent necessary to
address the issues Mr. Peppin raises in this PRP.
Summary of facts and trial
On December 29, 2011, Detective Brian Cestnik conducted an online investigation
of the Gnutella network to identify persons possessing and sharing child pornography.
Detective Cestnik used special software called Round Up version 1.5.3. This special
software has capabilities not typically available to the public: it can restrict searches to a
certain geographical area, it can identify the target computer’s Internet protocol (IP)
address, and it can identify files by their hash values, which act as unique fingerprints.
During his search, Detective Cestnik identified a computer in the Spokane area
sharing files known by their hash value to be child pornography. Detective Cestnik
downloaded three of those files from the shared folder of that computer and began
downloading a fourth before the connection failed. Detective Cestnik further investigated
2 No. 34866-1-III In re Pers. Restraint of Peppin
and determined that the fully downloaded files were indeed child pornography, and the
computer and IP address belonged to Mr. Peppin.
Detective Cestnik applied for a search warrant and in his accompanying affidavit,
he described peer-to-peer file sharing, his search, and his full knowledge of the additional
capabilities of Round Up described above. A search warrant issued, and law enforcement
executed a search of Mr. Peppin’s home on January 11, 2012.
Mr. Peppin was present during the search. He admitted that he had child
pornography on his computer and explained that he tried to keep the files out of his
shared folder by moving them to another folder on his desktop.
Later, law enforcement created a mirror image of Mr. Peppin’s hard drive and
confirmed that the three files originally found and downloaded by Detective Cestnik
existed in the shared folder. In addition, law enforcement found over 100 new images of
child pornography in the other folder on his desktop.
The State charged Mr. Peppin by amended information with three counts of first
degree possession of depictions of minors engaged in sexually explicit conduct, and one
count of first degree dealing in depictions of minors engaged in sexually explicit conduct.
Mr. Peppin’s computer expert testified that the default settings of the program
were confusing and the default settings allowed sharing for public browsing. Mr. Peppin
3 No. 34866-1-III In re Pers. Restraint of Peppin
argued he did not knowingly share any files, and that he should not be convicted on the
more serious charge of dealing in depictions of minors engaged in sexually explicit
conduct. The trial court agreed and acquitted him of that charge. The trial court found
Mr. Peppin guilty on the three less serious charges of possession of depictions of minors
engaged in sexually explicit conduct.
Custody and DOC policy regarding release and housing vouchers
DOC policy is that an offender not in compliance with the facility rules or the
offender’s facility plan is ineligible for housing vouchers. DOC policy also requires an
offender sentenced to community custody to identify an appropriate residence for his or
her community custody plan. DOC’s role is to provide information and resources to
facilitate the offender’s timely identification of appropriate resources in the community.
Several months before Mr. Peppin’s early release date, DOC advised Mr. Peppin
of the importance of transition programming. DOC instructed him to contact his assigned
counselor with release address information. On September 30, 2015, Mr. Peppin sent a
message to DOC stating that he had no resources and would need a housing voucher for
release.
On May 15, 2016, Mr. Peppin sent a message to the DOC asking why he had been
denied a housing voucher. The DOC responded that his custody facility plan requires that
4 No. 34866-1-III In re Pers. Restraint of Peppin
he complete “Achieving Your Potential” (AYP) in order to explore the housing voucher
program. The DOC’s headquarters requested that Mr. Peppin be given the opportunity to
attend an AYP course. When officers went to retrieve him for the course, Mr. Peppin
refused to come out and told the officer he would not attend. He received an infraction
for failure to participate in required programming. Mr. Peppin explicitly stated that he
would not complete AYP. As of February 27, 2017, Mr. Peppin had not completed either
AYP or a release plan.
PRP materials
As part of Mr. Peppin’s petition, he included a letter from his trial counsel. The
letter states in part: “As I recall our conversations, you mentioned you usually kept your
[upload] settings on zero.” Motion to Amend Pers. Restraint Pet., Letter Attach. dated
May 31, 2017. Trial counsel also confirmed that he did not request a mirror image copy
of Mr. Peppin’s hard drive or a copy of the source code for the software used by
Detective Cestnik.
Regardless of Mr. Peppin’s challenges obtaining early release and housing
assistance, he now has been released and is in community custody.
5 No. 34866-1-III In re Pers. Restraint of Peppin
ANALYSIS
A. STANDARD OF REVIEW
“Relief by way of a collateral challenge to a conviction is extraordinary, and the
petitioner must meet a high standard before [the] court will disturb an otherwise settled
judgment.” In re Pers. Restraint of Coats, 173 Wn.2d 123, 132, 267 P.3d 324 (2011).
Relief will only be granted in a PRP if there is constitutional error that caused actual and
substantial prejudice or if a nonconstitutional error resulted in a fundamental defect
constituting a complete miscarriage of justice. In re Pers. Restraint of Woods, 154 Wn.2d
400, 409, 114 P.3d 607 (2005). It is the petitioner’s burden to establish this “threshold
requirement.” Id. To do so, a petition must present competent evidence in support of its
claims. In re Pers. Restraint of Rice, 118 Wn.2d 876, 885-86, 828 P.2d 1086 (1992). If
the facts alleged would potentially entitle the petitioner to relief, a reference hearing may
be ordered to resolve the factual allegations. Id. at 886-87.
As for the evidentiary prerequisite, we view it as enabling courts to avoid the time and expense of a reference hearing when the petition, though facially adequate, has no apparent basis in provable fact. In other words, the purpose of a reference hearing is to resolve genuine factual disputes, not to determine whether the petition actually has evidence to support his allegations. Thus, a mere statement of evidence that the petitioner believes will prove his factual allegations is not sufficient. If the petitioner’s allegations are based on matters outside the existing record, the petition must demonstrate that he has competent, admissible evidence to establish the facts that entitle him to relief. If the petitioner’s evidence is based on
6 No. 34866-1-III In re Pers. Restraint of Peppin
knowledge in the possession of others, he may not simply state what he thinks those others would say, but must present their affidavits or other corroborative evidence. The affidavits, in turn, must contain matters to which the affiants may competently testify. In short, the petitioner must present evidence showing that his factual allegations are based on more than speculation, conjecture, or inadmissible hearsay.
Id. at 886.
A petitioner may not rely on conclusory allegations, but must show with a
preponderance of competent, admissible evidence that the error caused him prejudice. In
re Pers. Restraint of Ruiz-Sanabria, 184 Wn.2d 632, 636, 362 P.3d 758 (2015); In re
Pers. Restraint of Lord, 152 Wn.2d 182, 188, 94 P.3d 952 (2004). This court can
disregard a defendant’s self-serving assertions included in a PRP. See In re Pers.
Restraint of Yates, 180 Wn.2d 33, 43, 321 P.3d 1195 (2014) (Stephens, J., concurring)
(“[W]e need not accept at face value Yates’s self-serving statement, made years after the
fact . . . .”).
B. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
Mr. Peppin contends that his trial counsel was ineffective for failing to investigate
his claim that his upload slots were set to zero so that downloaded files in his file sharing
folder could not be viewed by the public. He further contends that he did not have any
files in his shared folder and that Detective Cestnik’s software must have been able to
unlawfully peer into his private folder.
7 No. 34866-1-III In re Pers. Restraint of Peppin
Related to these arguments, he contends his trial counsel was ineffective for failing
to request a mirror image copy of his computer hard drive and for failing to request the
source code for the software program used by Detective Cestnik. He contends these items
would have enabled him to establish the unlawfulness of the police search.
A defendant has a constitutional right to effective assistance of counsel. In re
Pers. Restraint of Elmore, 162 Wn.2d 236, 251, 172 P.3d 335 (2007) (citing Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). A convicted
defendant seeking relief from personal restraint on a claim of ineffective assistance of
counsel is not required to show actual and substantial prejudice if the defendant has not
had a prior opportunity to appeal the issue to a disinterested judge; instead, he need only
show that he is unlawfully restrained, and establish the elements of his ineffective
assistance of counsel claim. State v. Sandoval, 171 Wn.2d 163, 168, 249 P.3d 1015
(2011); In re Pers. Restraint of Grantham, 168 Wn.2d 204, 214, 227 P.3d 285 (2010).
To prevail on a claim of ineffective assistance, Mr. Peppin must show that his
counsel’s performance fell below an objective standard of reasonableness and that the
deficient performance actually prejudiced him. In re Pers. Restraint of Morris, 176
Wn.2d 157, 166, 288 P.3d 1140 (2012). This court strongly presumes that defense
counsel’s trial decisions constituted sound strategy. Elmore, 162 Wn.2d at 252.
8 No. 34866-1-III In re Pers. Restraint of Peppin
1. Failure to investigate claim that upload slots were set to zero
The failure to investigate, if prejudicial, can amount to ineffective assistance of
counsel. State v. A.N.J., 168 Wn.2d 91, 110, 225 P.3d 956 (2010). A petitioner claiming
failure to investigate must show a reasonable likelihood that the investigation would have
produced new information useful to the defense. In re Pers. Restraint of Davis, 152
Wn.2d 647, 739, 101 P.3d 1 (2004). In evaluating prejudice, this court considers the
strength of the State’s case. Id.
In order to succeed on a claim of ineffective assistance of counsel, Mr. Peppin
must demonstrate that the result of the proceedings would have been different absent the
claimed ineffective assistance. In this case, Mr. Peppin must demonstrate the trial court
would have invalidated the search warrants obtained by Detective Cestnik and the fruits
of those searches. The record is insufficient for him to make that showing.
Once issued, a search warrant is entitled to a presumption of validity, and the court
will give great deference to the magistrate’s determination of probable cause and resolve
any doubts in favor of the warrant. State v. Chenoweth, 160 Wn.2d 454, 477, 158 P.3d
595 (2007). A search warrant may be invalidated and the fruits of a search may be
suppressed if there were intentional or reckless omissions or misstatements of material
information in the warrant affidavit. State v. Atchley, 142 Wn. App. 147, 157-58, 173
9 No. 34866-1-III In re Pers. Restraint of Peppin
P.3d 323 (2007). Negligent omissions or misstatements are insufficient to invalidate a
warrant. Chenoweth, 160 Wn.2d at 462.
Detective Cestnik meticulously detailed both the general and law enforcement
software in his affidavit in support of the search warrant. He explained that normal
software could reach files in the shared folder and only downloaded files in the shared
folder. He later explained at trial that even under the standard program anyone could
view the shared folder:
The only thing that someone can go in and look at is what’s called your “shared file.” In other words, you have a file on your computer labeled “shared file” where videos or music or whatever are put into the shared file. If you’re logged on and the program is turned on, then anyone can then go in and look in your shared file.
Report of Proceedings (RP) (June 26, 2013) at 17. Detective Cestnik’s testimony
explains that anyone can view the contents of a shared folder. He noted that a minority of
users disable the sharing feature. Users do this by changing their upload settings to zero
slots.
Detective Cestnik’s affidavit stated his special program could only access the
shared folder. He explained the special features consisted of the ability to automatically
track or screenshot shared folders and limit searches to geographical areas such as
Spokane. The special program also could flag files that shared a hash value. Mr.
10 No. 34866-1-III In re Pers. Restraint of Peppin
Peppin’s computer expert described the hash value as a “fingerprint.” RP (June 13, 2013)
at 10. The affidavit in support of the search warrant notes Mr. Peppin’s computer was
using the default setting that allowed any other software user to browse the contents of his
shared folder. This browsing alerted the special program that files with matching hash
values to known child pornography values were in Mr. Peppin’s shared folder. Once
alerted, Detective Cestnik downloaded three files from Mr. Peppin’s shared folder, but
something interrupted the fourth download. At trial, he confirmed these statements. This
evidence is inconsistent with Mr. Peppin’s PRP argument that no files were in his shared
folder and that he had changed his upload settings to zero slots.
The record further contradicts Mr. Peppin’s claim that he changed his upload
settings to zero slots. Mr. Peppin did not tell Detective Cestnik that his shared folder
could not be accessed. Rather, he implied that it could be accessed when he told the
detective that he “attempted to keep files out of his shared folder.” RP (June 26, 2013) at
63. Mr. Peppin explained to the detective that he “removed” files from his shared folder
and put them into another folder on his desktop. RP (June 26, 2013) at 63.
Mr. Peppin also is judicially estopped from arguing that he changed his settings so
that the files in his shared folder could not be shared with others. Judicial estoppel bars a
litigant from prevailing on an argument and then later attempting to prevail on a contrary
11 No. 34866-1-III In re Pers. Restraint of Peppin
argument. Miller v. Campbell, 164 Wn.2d 529, 539, 192 P.3d 352 (2008). Mr. Peppin’s
computer expert testified that the default settings of Mr. Peppin’s program were
confusing and that the default settings allowed sharing. This testimony permitted Mr.
Peppin to argue, and the trial court to find, that Mr. Peppin did not knowingly have the
settings on share. This finding caused the trial court to dismiss the most serious charge
against Mr. Peppin.
Contrary to this argument, Mr. Peppin now argues that he understood the default
settings and changed them so that no one could view his shared folder. So not only is his
argument contrary to the record, it contradicts his earlier argument that resulted in the
most serious charge being dismissed. Mr. Peppin cannot have it both ways.
In light of the entirety of the record, Detective Cestnik made good faith, accurate
claims in his affidavit in support of the search warrant. Mr. Peppin cannot show that
Detective Cestnik made intentional or reckless statements in his request for a search
warrant. In fact, the trial record contradicts his new claims.
2. Failure to obtain mirror image of hard drive and the source code
Mr. Peppin argues that trial counsel was ineffective for not obtaining a mirror
image of his hard drive and the source code for law enforcement’s software. Mr. Peppin
relies on State v. Boyd, 160 Wn.2d 424, 158 P.3d 54 (2007). In Boyd, the State charged
12 No. 34866-1-III In re Pers. Restraint of Peppin
the defendant with 28 crimes related to five victims, allegedly depicted in hundreds of
images. Id. at 429. The State also claimed to have tens of thousands of commercial
images of unidentified minors on a hard drive engaged in sexually explicit conduct
recovered from devices allegedly owned by the defendant. Id. The defendant moved to
compel the State to give him a mirror image copy of his hard drive to enable independent
testing by an expert. Id. at 430. The court denied the motion, reasoning the defendant
needed only reasonable access rather than a mirror image copy. Id.
Our Supreme Court reversed and held that CrR 4.7(a) controlled the issue and
required the State to comply. Id. at 433-35. The court also noted, “[w]here the nature of
the case is such that copies are necessary in order that defense counsel can fulfill this
critical role, CrR 4.7(a) obliges the prosecutor to provide copies of the evidence as a
necessary consequence of the right to effective representation and a fair trial.” Id. at 435;
see also State v. Grenning, 169 Wn.2d 47, 234 P.3d 169 (2010).
Boyd is distinguishable. There, the mirror image copy was necessary so that
defense counsel could provide effective representation. Here, as explained above, it is
speculative whether the mirror image of the hard drive or the source code for the police
software would assist Mr. Peppin. Had the mirror image shown that Mr. Peppin had
13 No. 34866-1-III In re Pers. Restraint of Peppin
changed the settings, it would have undercut his successful argument that the program
was confusing and that he did not knowingly share files.
C. DENIAL OF HOUSING VOUCHER
Mr. Peppin next contends the DOC unlawfully denied him a housing voucher to
assist with his postconfinement housing needs, and this is his only avenue for relief. 1 The
DOC responds that Mr. Peppin is not complying with DOC policy. We decline to review
this issue because it is moot.
“A case is moot if a court can no longer provide effective relief.” In re Det. of
Cross, 99 Wn.2d 373, 376-77, 662 P.2d 828 (1983). The DOC’s housing voucher
program has certain eligibility requirements. One requirement is that the offender “[w]ill
remain incarcerated past the [early release date] without assistance.” Resp. of DOC, Ex.
3, Attach. E, at 1 (DOC Policy 350.210). Mr. Peppin’s claim is moot because he no
longer is incarcerated.
1 He additionally alleges that DOC has repeatedly violated his civil rights, illegally discriminated against him due to his disability, and in general treated him maliciously. We agree with DOC that these claims, if meritorious, should be pursued in a civil action.
14 No. 34866-1-III In re Pers. Restraint of Peppin
D. OFFENDER SCORE CALCULATION
Mr. Peppin claims his offender score was incorrectly calculated because the trial
courts findings of fact and conclusions of law are not sufficient to establish that each
video had a separate victim. We disagree with this claim.
A PRP may not relitigate an issue that was raised and rejected on direct appeal
unless relitigation is required in the interests of justice. In re Pers. Restraint of Yates, 177
Wn.2d 1, 17, 296 P.3d 872 (2013). “[R]eexamination of an issue decided in a prior
appeal is limited to cases where an intervening change in the law or some other
circumstance justified the failure to raise a crucial argument on appeal.” In re Pers.
Restraint of Mines, 190 Wn. App. 554, 570, 364 P.3d 121 (2015).
Mr. Peppin already made this challenge on direct appeal in his statement of
additional grounds for review. This court held the trial court’s undisputed findings of fact
found each of the three videos contained a different victim. Mr. Peppin does not explain
how the interests of justice require relitigation of this issue.
E. COMMUNITY CUSTODY CONDITIONS
Mr. Peppin challenges nearly all of the mandatory and discretionary community
custody conditions imposed as part of his judgment and sentence. He claims they are
15 No. 34866-1-III In re Pers. Restraint of Peppin
variously vague, overbroad, or not crime related. We agree that some of his community
custody conditions should be struck.
We review community custody conditions for an abuse of discretion. State v.
Irwin, 191 Wn. App. 644, 652, 364 P.3d 830 (2015). The abuse of discretion standard
applies whether this court is reviewing a crime-related community custody condition or
reviewing a community custody condition for vagueness. See id. at 652, 656; State v.
Sanchez Valencia, 169 Wn.2d 782, 791-92, 239 P.3d 1059 (2010); State v. Cordero, 170
Wn. App. 351, 373, 284 P.3d 773 (2012). Imposing an unconstitutional condition is
always an abuse of discretion. Irwin, 191 Wn. App. at 652.
The guarantee of due process contained in the Fourteenth Amendment to the
United States Constitution and article I, section 3 of the Washington Constitution requires
that laws not be vague. State v. Magana, 197 Wn. App. 189, 200, 389 P.3d 654 (2016).
Because a violation of a community custody condition can subject a person to arrest and
incarceration, vagueness prohibitions extend to community custody conditions. See
Sanchez Valencia, 169 Wn.2d at 791-92. A community custody condition is not
unconstitutionally vague so long as it (1) provides ordinary people with fair warning of
the proscribed conduct, and (2) has standards that are definite enough to “‘protect against
arbitrary enforcement.’” Magana, 197 Wn. App. at 200-01 (internal quotation marks
16 No. 34866-1-III In re Pers. Restraint of Peppin
omitted) (quoting State v. Bahl, 164 Wn.2d 739, 753, 193 P.3d 678 (2008)). “Unless a
statute or rule defines its terms, the words have their ordinary meaning.” State v. Autrey,
136 Wn. App. 460, 468, 150 P.3d 580 (2006).
The Sentencing Reform Act of 1981, chapter 9.94A RCW, empowers trial courts
to impose “crime-related prohibitions” during the period of community custody. Former
RCW 9.94A.505(8) (2010). “Crime-related prohibition” means an order directly related
to “the circumstances of the crime for which the offender has been convicted.”
RCW 9.94A.030(10). “The philosophy underlying the ‘crime-related’ provision is that
‘[p]ersons may be punished for their crimes and they may be prohibited from doing things
which are directly related to their crimes, but they may not be coerced into doing things
which are believed will rehabilitate them.’” State v. Riley, 121 Wn.2d 22, 36-37, 846 P.2d
1365 (1993) (alteration in original). However, “a court is generally permitted to impose
crime-related prohibitions on a convicted sex offender’s period of community custody to
protect the public and offer the offender an opportunity for self-improvement.” Autrey,
136 Wn. App. at 468.
Mr. Peppin makes 19 separate claims challenging most of his community custody
conditions. In large part, these challenges are pedantic complaints that words or phrases
are unconstitutionally vague or allow for arbitrary enforcement. For the reasons noted in
17 No. 34866-1-III In re Pers. Restraint of Peppin
the State’s responsive and reply memoranda, all challenges with the exception of those
noted below fail.
1. Condition 12
Condition 12 reads: “That you enter into and successfully complete sexual
deviancy therapy and mental health treatment with state certified therapists.” Resp. of
DOC, Ex. 1, Attach. A, App. H (appendix to judgment and sentence) at 2. Mr. Peppin
notes that the trial court did not make the required finding to order mental health
treatment under RCW 71.24.025. The State concedes this issue and asks that we remand
for the trial court to make the required findings or to strike the condition.
If the trial court does not make the required findings, condition 13 will need to be
struck and condition 19 will need to be modified. Condition 13 requires compliance with
medication management and directives of the therapist. Condition 19 requires approval
from the community corrections officer and the therapist for contact with minor children.
2. Condition 17
Condition 17 requires Mr. Peppin to not “possess any form of Pornography or
sexually explicit material.” Resp. of DOC, Ex. 1, Attach. A, App. H at 2. He challenges
this condition for vagueness. The parties agree that a prohibition on possessing
pornography is unconstitutional but disagree about whether the term “sexually explicit
18 No. 34866-1-III In re Pers. Restraint of Peppin
material” clarifies pornography. The State argues that RCW 9.68.130(2) contains the
definition of “sexually explicit material.” It does. But condition 17 does not refer to
RCW 9.68.130(2).
The parties did not have the benefit of State v. Padilla, ___ Wn.2d ___, 416 P.3d
712 (2018). That case makes clear that a vague term cannot be rescued if it relies on a
vague definition. Id. at 719. In Padilla, the community custody condition defined
“pornographic material” as “‘images of sexual intercourse, simulated or real,
masturbation, or the display of intimate body parts.’” Id. at 715. Padilla reasoned that
the definition of “pornographic material” was overly broad because it included art not
produced for the purpose of sexual gratification, such as scenes from the film Titanic or
the television show Game of Thrones. Id. at 717.
Here, the term “sexually explicit material” is defined as:
any pictorial material displaying direct physical stimulation of unclothed genitals, masturbation, sodomy (i.e. bestiality or oral or anal intercourse), flagellation or torture in the context of a sexual relationship, or emphasizing the depiction of adult human genitals: PROVIDED HOWEVER, That works of art or of anthropological significance shall not be deemed to be within the foregoing definition.
We believe that the statute’s narrower and more precise definition removes the
problems noted in Padilla.
19 No. 34866-1-III In re Pers. Restraint ofPeppin
Nevertheless, the term "pornography" is not defined or narrowed. We,
therefore, remand with directions that the trial court strike "form of Pornography or"
from condition 17 and add after the phrase "sexually explicit material," "as defined by
RCW 9.68.130(2)." Explicit reference to the statute removes enforcement issues.
In summary, we generally deny Mr. Peppin's petition. But we remand for the trial
court to consider whether to enter the required findings for condition 12 and to amend
condition 17 as directed.
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.
Lawrence-Be~ey, C.J.
WE CONCUR:
(Result only) Pennell, J.