Personal Restraint Petition Of Jeffrey Joel Dilks

• Court: Court of Appeals of Washington
• Decided: May 16, 2023
• Docket: 56855-1
• Status: Unpublished

Opinion

Filed Washington State Court of Appeals Division Two

May 16, 2023

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II In re the Matter of the Personal Restraint of No. 56855-1-II

JEFFERY JOEL DILKS,

Petitioner. UNPUBLISHED OPINION

CRUSER, A.C.J.—In 2016 Jeffery Dilks pleaded guilty to first degree kidnapping and third

degree rape of a child. The resulting judgment and sentence includes a community custody

condition that Dilks shall not “possess or access any sexually explicit material or frequent adult

bookstores, arcades or places where sexual entertainment is provided and shall not access

pornography, sexually explicit materials or any information pertaining to minors via the

computer.” Pet. Exh. 1. It also instructs Dilks, “Do not loiter or frequent places where children

congregate, including but not limited to shopping malls, schools, playgrounds, churches, or video

arcades.” Pet. Exh. 1 [Appx. at 34]. The court sentenced Dilks to the agreed minimum term of 113

months and a maximum term of life on the kidnapping count. As to the child rape count, the court

imposed a 34-month sentence with 36 months of community supervision.

In April 2022, Dilks filed a personal restraint petition arguing that the community custody

restriction on pornography is unlawful and that the total sentence on third degree child rape

exceeds the statutory maximum. The State filed a response conceding that the petition was timely

filed because the judgment and sentence was facially invalid. RCW 10.73.090. Specifically, the No. 56855-1-II

State conceded that the pornography restriction was unconstitutionally vague based on State v.

Bahl, 164 Wn.2d 739, 758, 193 P.3d 678 (2008) (“We conclude that the restriction on accessing

or possessing pornographic materials is unconstitutionally vague.”). And the State conceded that

the total sentence imposed on the third degree rape of a child count, including in custody and

supervision, exceeds the statutory maximum for a C class felony.

The acting chief judge referred this petition to a panel of judges and this court appointed

counsel. RCW10.73.150(4). Counsel filed a supplemental brief again arguing that the pornography

restriction is void. The State rested on its previous response.

ANALYSIS

Areas Where Children Congregate

The State’s response does not address the argument that a community custody condition

prohibiting Dilks from frequenting areas where children congregate is void for vagueness, citing

State v. Irwin, 191 Wn. App. 644, 649, 364 P.3d 830 (2015). But the condition at issue in Irwin

did not include examples of prohibited areas. Irwin explained that the condition failed vagueness

analysis because, “[w]ithout some clarifying language or an illustrative list of prohibited locations

. . . the condition does not give ordinary people sufficient notice to ‘understand what conduct is

proscribed.’ ” 191 Wn. App. at 655 (quoting Bahl, 164 Wn.2d at 753). Here, in contrast, the

community custody condition includes a non-exhaustive list of examples. Including this list of

examples ensures that an ordinary person can understand the prohibited conduct. See State v. Starr,

No. 49327-6-II, slip op. at 5-8 (Wash. Ct. App. Oct. 17, 2017) (unpublished),

https://www.courts.wa.gov/opinions/pdf/D2%2049327-6-II%20Unpublished%20Opinion.pdf

(approving similar condition with list of examples over Irwin objection). In sum, this community

2 No. 56855-1-II

custody condition is not void for vagueness and this claim does not merit relief via personal

restraint petition.

Pornography Restriction

As to the pornography restriction, we accept the State’s concessions for the reasons stated

and remand to the Kitsap County Superior Court with instructions to correct and amend the judgment

and sentence in a manner consistent with this opinion.

Length of Sentence

As noted, the State also conceded that the total sentence imposed on the third degree rape

of a child count exceeds the statutory maximum for a C class felony. We accept this concession as

well and remand for correction of this issue.

CONCLUSION

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 in accordance with RCW 2.06.040,

it is so ordered.

______________________________ Cruser, A.C.J.

We concur:

______________________________ Price, J.

______________________________ Che, J.