Personal Restraint Petition Of Craig Donald Olson

• Court: Court of Appeals of Washington
• Decided: November 23, 2021
• Docket: 55850-5
• Status: Unpublished

Opinion

Filed Washington State Court of Appeals Division Two IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON November 23, 2021 DIVISION II

In the Matter of the Personal Restraint of No. 55850-5-II CRAIG DONALD OLSON, UNPUBLISHED OPINION Petitioner.

GLASGOW, A.C.J.—Craig Donald Olson seeks relief from personal restraint imposed

following his 2005 plea of guilty to one count of attempted second degree rape of a child and two

counts of possession of depictions of a minor engaged in sexually explicit conduct, crimes that

were committed in part via use of the Internet. The trial court initially imposed a special sex

offender sentencing alternative (SSOSA) sentence but revoked the SSOSA sentence in 2010. In

the 2010 amended judgment and sentence, the trial court imposed an indeterminate sentence of

confinement for 93.75 months to life and community custody for 36 to 48 months to life. The trial

court also imposed conditions including, “[N]o use of Internet for any reason” and “[d]o not access

the Internet or make use of any computer modem.” Am. J. & Sentence at 5, § 4.4 & App. H(b)(10).

Olson now seeks modification of those conditions.

RCW 10.73.090(1) provides that no petition for a collateral attack in a criminal case “may

be filed more than one year” after the final judgment, so long as the judgment and sentence is

facially valid. Whether a judgment and sentence is facially valid “depends on whether the court

exceeded its substantive authority.” In re Pers. Restraint of Flippo, 187 Wn.2d 106, 110, 385 P.3d

128 (2016).

Olson’s amended judgment and sentence became final in March 2012, when we issued the

mandate of the direct appeal of his SSOSA revocation. RCW 10.73.090(3)(b). He did not file his No. 55850-5-II

petition until October 2020, more than one year later.1 Unless he shows that one of the exceptions

in RCW 10.73.100 applies or that his judgment and sentence is facially invalid, his petition is time

barred. In re Pers. Restraint of Hemenway, 147 Wn.2d 529, 531-32, 55 P.3d 615 (2002). Facial

invalidity requires more than a technical mistake that has no actual effect on the petitioner’s rights.

In re Pers. Restraint of Toledo-Sotelo, 176 Wn.2d 759, 767, 297 P.3d 51 (2013).

Olson does not argue that any of the exceptions in RCW 10.73.100 apply. The question

remains whether the blanket prohibition on Internet use renders his amended judgment and

sentence facially invalid. A sentence can restrict a convicted defendant’s access to the Internet so

long as the restriction is crime related, but the restriction must be “narrowly tailored to the dangers

posed by the specific defendant.” State v. Johnson, 197 Wn.2d 740, 744-45, 487 P.3d 893 (2021);

State v. O’Cain, 144 Wn. App. 772, 775, 184 P.3d 1262 (2008).

The State contends that because Olson committed his crimes in part via the Internet, the

prohibition on Internet use is a facially valid crime-related condition. It relies primarily on State v.

Riley, 121 Wn.2d 22, 37, 846 P.2d 1365 (1993), which upheld a condition prohibiting Riley, who

had been convicted of computer trespass, from possessing any computers. However, the ubiquity

of Internet use in daily life in 2021 renders Riley of little use in addressing restrictions on Internet

use.

Recently, in Johnson the Washington Supreme Court suggested that a blanket prohibition

on Internet use would be a facially invalid condition. The court noted that restrictions on Internet

use have due process and First Amendment implications. 197 Wn.2d at 744-45 (citing Packingham

v. North Carolina, ___ U.S. ___, 137 S. Ct. 1730, 1735, 198 L. Ed. 2d 273 (2017)). The court

1 Olson filed a motion in the trial court “to get his Internet privileges reinstated.” Mot. at 1. That court transferred his motion to us under CrR 7.8(c) to be considered as a personal restraint petition, but not until February 11, 2021.

2 No. 55850-5-II

upheld the trial court’s condition that “Johnson shall ‘not use or access the World Wide Web unless

specifically authorized by [his community custody officer] through approved filters’ as a condition

of community custody.” Id. at 744 (alteration in original). The court explained that although a

blanket ban on Internet use “might well reduce his ability to improve himself” and therefore be

unconstitutionally overbroad, “a properly chosen filter should not.” Id. at 746.

Based on this observation, the State suggests that a proper remedy would be to remand the

condition on Internet use to the trial court to modify the condition to include filters, as approved

in Johnson. We agree with the State’s suggestion. We conclude that Olson’s amended judgment

and sentence is facially invalid because it imposes an overbroad blanket ban on use of the Internet.

See Flippo, 187 Wn.2d 110; In re Pers. Restraint of Snively, 180 Wn.2d 28, 32, 320 P.3d 1107

(2014). Thus, Olson’s petition is not time barred. We grant Olson’s petition and remand the

condition on Internet use to the trial court for modification as addressed above.

A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports but will be filed for public record under RCW 2.06.040, it is so

ordered.

Glasgow, A.C.J. We concur:

Cruser, J.

Veljacic, J.