leltlii€)§' l9 ltd 8=1i3
iN THE COURT OF APPEALS OF THE STATE OF WASHlNGTON
in the E\/Eattei' of the ) No. 76384-9-i Personal Restraint of ) ) DEV|S|ON ONE JEFFREY SCOTT ESRETTELL1 ) ) PUBLlSl-!ED OPlNiON Petitioner. ) ) Fiied: November19,2018
LEACH, J. _ Jetfrey Scott Brettell coiiateraliy challenges six community custody conditions imposed by the triai court after his conviction for two counts of rape of a chiid in the third degree and one count of commercial sexuai abuse of a minor He claims that two are constitutionally vague and ali six exceed the courts statutory authority.
Bretteil asserts, and the State concedes, that a condition prohibiting him front frequenting “areas where minor children are known to congregate” is unconstitutionally vague Because we disagree with Bretteli’s remaining ciaims, we affirm in part and remand for the trial court to address the invalid condition in a manner consistent with this opinion
FACTS |n 2013 and 2014 Jeftrey Scott Brettell repeatedly sexually assaulted two
14-year‘old giris, l..K. and T.U. The giris first met Brettei! in November 2013.
i\lo. 76384-9-| l 2
lnitiai|y, Brettell offered them jobs at his campground and paid them in cash, alcoho|, marijuana, and cigarettes l_ater, he began inviting L‘K. to drink, smoke marijuana, and have sex. Usually, L.K. was unconscious from marijuana or alcohol intoxication when Brette|i had sex with her. She does remember one episode of sexual intercourse when she was sober. tn Apri| or May of 2014 Brettei| began having sex with T.U. T.U. reported one incident when she was intoxicated and Brettei| had sex with her in his truck.
In June 20t4, l_.K. reported Bretteli to the Snohornish County Sheritf’s Office. its investigation revealed, among other things, explicit text messages sent by Brettei| to the victims and images of a naked girl on his phone. A search of his computer disclosed severai internet searches for images of rape and sexual assauit and more than 100 sexuaily explicit images of children.
Bretteii was arrested on February 15, 2015. On Octot)er 28, 2015, he pleaded guilty to two counts of rape of a child in the third degree and a single count of commerciai sexual abuse of a minor. l~iis plea agreement stated that the State’s aflidavit of probable cause established the factual basis for his plea.
On February 22, 2016, the court sentenced Brettei| to 72 months of
confinement followed by 36 months ot community custody lt imposed 27
No. 76384-9-i l 3
community custody conditions Brette|l did not appeal his sentence Bretteli now challenges his sentence with this personal restraint petition (PRP).1 STANDARD OF REV|EW
To receive coiiateral reiief by a PRP, a petitioner must show either a constitutional error that resulted in actual and substantial prejudice or a nonconstitutional error that resulted in a fundamental defect that caused a complete miscarriage of justice2
This court reviews a community custody condition for abuse ot discretion and will reverse a manifestly unreasonabie condition3 The imposition of an unconstitutional condition is always manifestly unreasonable4 An appellate court does not presume that a community custody condition is constitutionai.5
ANALYS!S Brettell chalienges six community custody conditions the sentencing court
imposed He claims that two conditions are unconstitutionally vague and all six
l Brette|l challenged 10 conditions in his original PRP. in his reply to the State’s response to the PRP, he withdrew his challenges to 4 conditions
2 ln re Pers. Restraint of i-iavertv. 101 Wn.2d 498, 504, 681 P.2d 835 (1984); in re Pers. Restraint of Grantham1 168 Wn.2d 204, 212, 227 P.3d 285 (2030) (quoting ln re Pers. Restraint of lsadore. 151 Wn.2d 294, 298, 88 P.3d 390 (2004)).
3 State v. irwin1 191 Wn. App. 644, 652, 364 P.Sd 830 (2015).
4 M, 191 Wn. App. at 652.
5 State v. Sanchez Vaiencia, 169 VVn.2d 782, 793, 239 P.3d 1059 (2010).
_3_
No. 76384-9-| l 4
exceed the court's statutory authority.€' The State concedes that the condition prohibiting Brette|l from frequenting “areas where minor children are known to congregate” is unconstitutionally vague We accept the State’s concession and reject Brettell's remaining claims Unconstitutionailv Vadue Challenge Constitutionai due process requires fair warning of proscribed behavior.7 A community custody condition that does not provide this warning is unconstitutionally vague.8 Specifically, a community custody condition must (1) “define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is proscribed” and (2) “provide ascertainable standards ot guilt to protect against arbitrary enforcement.”9 lf a condition implicates First Arnendment rights, like the right ot assembly, it also must be particularly clear so as not to “cause a chilling eflect” on the implicated rights.i0 if a person of ordinary intelligence can understand what behavior a
condition torbids, given the context in which its terms are used, the community
6 Bretteli originally challenged the imposition of ai| six conditions on the basis that the sentencing court exceeded its statutory authority in his pro se briefing in counsel’s briefing, he raised additional challenges of unconstitutional vagueness against the imposition ot two ot the conditions
7 U.S. CoNST. amend. XlV, § 1; WAsi-i. Col\isT. art. l, § 3; State v. Bah|, 164 Wn.2d 739, 752-53, 193 P.3d 678 (2008).
8 M, 164 Wn.2d at 752-53.
9 B_ah§, 164 Wn.2d at 752-53 (duoting Citv ot Spokane v. Douqlass, 115 Wn.2d 17i, 178, 795 P.2d 693 (1990)).
10 _B__ah_i, 164 Wn.Zd at 753.
_4_
|\io. 76384-9-! / 5
custody condition is valid." And a sufficiently clear condition can survive a vagueness challenge “‘notwithstanding some possible areas of disagreement”'12 The condition does not need to provide “complete certainty as to the exact point at which [the convicted person's] actions would be classified as prohibited conduct."13
A. Prohibr'tion on Brettell Frequenting Where Minor Children Are Known
To Congregate
Brettell contends that the condition prohibiting him from “frequent[ing] areas where minor children are known to congregate, as defined by the supervising Cornmunity Corrections Oflicer” (CCO) is unconstitutionally vague. Brettell does not show actual and substantial prejudice caused by this condition But the State agrees that it is impermissibly vague and should be rewritten. So we do not analyze the merits of Brettei|’s claim.
B. Prohibition on Brettell Associating with Known Users or Sellers of
illegal Drugs
Brettel| also claims that the condition barring him from “associat[ing] with
known users or sellers of illegal drugs” is unconstitutionally vague. lie contends
" State v_ l-iai lV|inh |\lquven, No. 94883-6, slip op. at 6, (Wash. Sept. 13, 2018), http;//www.courts.wa.govlopinionslpdf/948836.pdt; Bah|, 164 Wn.2d at 754.
12 Bahl, 164 Wn.Zd at 754 (quoting Douglass, 115 Wn.2d at 179).
13 l~tai i\/linh Nguyen, No. 94883»6, slip op. at 9.
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No. 76384-9-i l 6
that the condition does not make clear who must have the knowledge required by the “known” term.
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leltlii€)§' l9 ltd 8=1i3
iN THE COURT OF APPEALS OF THE STATE OF WASHlNGTON
in the E\/Eattei' of the ) No. 76384-9-i Personal Restraint of ) ) DEV|S|ON ONE JEFFREY SCOTT ESRETTELL1 ) ) PUBLlSl-!ED OPlNiON Petitioner. ) ) Fiied: November19,2018
LEACH, J. _ Jetfrey Scott Brettell coiiateraliy challenges six community custody conditions imposed by the triai court after his conviction for two counts of rape of a chiid in the third degree and one count of commercial sexuai abuse of a minor He claims that two are constitutionally vague and ali six exceed the courts statutory authority.
Bretteil asserts, and the State concedes, that a condition prohibiting him front frequenting “areas where minor children are known to congregate” is unconstitutionally vague Because we disagree with Bretteli’s remaining ciaims, we affirm in part and remand for the trial court to address the invalid condition in a manner consistent with this opinion
FACTS |n 2013 and 2014 Jeftrey Scott Brettell repeatedly sexually assaulted two
14-year‘old giris, l..K. and T.U. The giris first met Brettei! in November 2013.
i\lo. 76384-9-| l 2
lnitiai|y, Brettell offered them jobs at his campground and paid them in cash, alcoho|, marijuana, and cigarettes l_ater, he began inviting L‘K. to drink, smoke marijuana, and have sex. Usually, L.K. was unconscious from marijuana or alcohol intoxication when Brette|i had sex with her. She does remember one episode of sexual intercourse when she was sober. tn Apri| or May of 2014 Brettei| began having sex with T.U. T.U. reported one incident when she was intoxicated and Brettei| had sex with her in his truck.
In June 20t4, l_.K. reported Bretteli to the Snohornish County Sheritf’s Office. its investigation revealed, among other things, explicit text messages sent by Brettei| to the victims and images of a naked girl on his phone. A search of his computer disclosed severai internet searches for images of rape and sexual assauit and more than 100 sexuaily explicit images of children.
Bretteii was arrested on February 15, 2015. On Octot)er 28, 2015, he pleaded guilty to two counts of rape of a child in the third degree and a single count of commerciai sexual abuse of a minor. l~iis plea agreement stated that the State’s aflidavit of probable cause established the factual basis for his plea.
On February 22, 2016, the court sentenced Brettei| to 72 months of
confinement followed by 36 months ot community custody lt imposed 27
No. 76384-9-i l 3
community custody conditions Brette|l did not appeal his sentence Bretteli now challenges his sentence with this personal restraint petition (PRP).1 STANDARD OF REV|EW
To receive coiiateral reiief by a PRP, a petitioner must show either a constitutional error that resulted in actual and substantial prejudice or a nonconstitutional error that resulted in a fundamental defect that caused a complete miscarriage of justice2
This court reviews a community custody condition for abuse ot discretion and will reverse a manifestly unreasonabie condition3 The imposition of an unconstitutional condition is always manifestly unreasonable4 An appellate court does not presume that a community custody condition is constitutionai.5
ANALYS!S Brettell chalienges six community custody conditions the sentencing court
imposed He claims that two conditions are unconstitutionally vague and all six
l Brette|l challenged 10 conditions in his original PRP. in his reply to the State’s response to the PRP, he withdrew his challenges to 4 conditions
2 ln re Pers. Restraint of i-iavertv. 101 Wn.2d 498, 504, 681 P.2d 835 (1984); in re Pers. Restraint of Grantham1 168 Wn.2d 204, 212, 227 P.3d 285 (2030) (quoting ln re Pers. Restraint of lsadore. 151 Wn.2d 294, 298, 88 P.3d 390 (2004)).
3 State v. irwin1 191 Wn. App. 644, 652, 364 P.Sd 830 (2015).
4 M, 191 Wn. App. at 652.
5 State v. Sanchez Vaiencia, 169 VVn.2d 782, 793, 239 P.3d 1059 (2010).
_3_
No. 76384-9-| l 4
exceed the court's statutory authority.€' The State concedes that the condition prohibiting Brette|l from frequenting “areas where minor children are known to congregate” is unconstitutionally vague We accept the State’s concession and reject Brettell's remaining claims Unconstitutionailv Vadue Challenge Constitutionai due process requires fair warning of proscribed behavior.7 A community custody condition that does not provide this warning is unconstitutionally vague.8 Specifically, a community custody condition must (1) “define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is proscribed” and (2) “provide ascertainable standards ot guilt to protect against arbitrary enforcement.”9 lf a condition implicates First Arnendment rights, like the right ot assembly, it also must be particularly clear so as not to “cause a chilling eflect” on the implicated rights.i0 if a person of ordinary intelligence can understand what behavior a
condition torbids, given the context in which its terms are used, the community
6 Bretteli originally challenged the imposition of ai| six conditions on the basis that the sentencing court exceeded its statutory authority in his pro se briefing in counsel’s briefing, he raised additional challenges of unconstitutional vagueness against the imposition ot two ot the conditions
7 U.S. CoNST. amend. XlV, § 1; WAsi-i. Col\isT. art. l, § 3; State v. Bah|, 164 Wn.2d 739, 752-53, 193 P.3d 678 (2008).
8 M, 164 Wn.2d at 752-53.
9 B_ah§, 164 Wn.2d at 752-53 (duoting Citv ot Spokane v. Douqlass, 115 Wn.2d 17i, 178, 795 P.2d 693 (1990)).
10 _B__ah_i, 164 Wn.Zd at 753.
_4_
|\io. 76384-9-! / 5
custody condition is valid." And a sufficiently clear condition can survive a vagueness challenge “‘notwithstanding some possible areas of disagreement”'12 The condition does not need to provide “complete certainty as to the exact point at which [the convicted person's] actions would be classified as prohibited conduct."13
A. Prohibr'tion on Brettell Frequenting Where Minor Children Are Known
To Congregate
Brettell contends that the condition prohibiting him from “frequent[ing] areas where minor children are known to congregate, as defined by the supervising Cornmunity Corrections Oflicer” (CCO) is unconstitutionally vague. Brettell does not show actual and substantial prejudice caused by this condition But the State agrees that it is impermissibly vague and should be rewritten. So we do not analyze the merits of Brettei|’s claim.
B. Prohibition on Brettell Associating with Known Users or Sellers of
illegal Drugs
Brettel| also claims that the condition barring him from “associat[ing] with
known users or sellers of illegal drugs” is unconstitutionally vague. lie contends
" State v_ l-iai lV|inh |\lquven, No. 94883-6, slip op. at 6, (Wash. Sept. 13, 2018), http;//www.courts.wa.govlopinionslpdf/948836.pdt; Bah|, 164 Wn.2d at 754.
12 Bahl, 164 Wn.Zd at 754 (quoting Douglass, 115 Wn.2d at 179).
13 l~tai i\/linh Nguyen, No. 94883»6, slip op. at 9.
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No. 76384-9-i l 6
that the condition does not make clear who must have the knowledge required by the “known” term. And he claims that “users or sellers of illegal drugs” does not sufficiently define the group of people he must avoid. We disagree
Brettel| correctly notes that restrictions on association implicate the First Amendrnent. When a condition involves a constitutionally protected right, its language must be clear and necessary.“i But a court may restrict a convicted offender's association rights if “‘reasonab|y necessary to accomplish the essential needs ot the state and public order.”’15 And RCW 9.94A.703(3)(b) gives a sentencing court clear statutory authority to restrict an otfender’s contact with a specified class of people16 A community custody condition restricting association is not vague if an ordinary person can understand the people to be avoided and it provides standards sufficient to protect against arbitrary enforcement.i7
Brette|| claims that the word “known” makes the condition vague because it does not state who must “know“ that a particular person used or sold illegal
drugs before he must avoid that person. Brettel| does not cite any cases where
14 __B_am, i64 Wn.2d at 757-58
15 State v. Ri|ey, 121 Wn.2d 22, 37-38, 846 P.2d 1365 (1995) (quoting lVla|one v. United States, 502 F.2d 554, 556 (ch Cir.1974)).
16 The sentencing court has discretion to impose a prohibition on “direct or indirect contact with . . . a specified class ot individuals." RCW 9.94A.703 3)(b).
17 gram 164 Wn.2d at 752-53 (quoting Douglass, 115 Wn.2d at 178).
NO. 76384-9-| l 7
"known," when used in a community custody condition, refers to the knowledge of anyone other than the offender.
ln United States v. Ver:ia,18 the Ninth Circuit rejected a vagueness challenge to a condition for supervised release that stated “defendant shall not associate with any member of any criminal street gang.” Consistent with what the court described as “well»established jurisprudence,” it presumed that the condition prohibited the defendants knowing misconduct19 The V_e_ga court noted that while constitutionai, the condition would be clearer if it included the term “known.” l'his would have limited the conditions reach to people known by the defendant to be gang members20 Brettell does not present legal authority contrary to y_§ga_ or otherwise show how the term “known" itself makes the condition vague.
Brette|i also asserts that the condition is unclear because the terms “users and sellers” might refer to people’s actions in the distant past and/or those they are no longer engaged in. A court interprets an undefined term in a community custody condition based on its plain meaning, which includes the dictionary
definition21 The definition of “user” is “one that uses; specif[icai|y] : a person
18 545 F.3d 743, 746 (9th Cir. 2008). 19 Vega, 545 F.Sd at 750. 20 Vega, 545 F.3d at 749-50 (discussing the use of “known" in a condition found valid in United States v. Soltero, 510 F.3d 858, 865-67 (9th Cir. 2007)). 21 §a_h_l, 164 Wn.2d at 754. _7_
l\lo. 76384-9-i l 8
who uses alcoholic beverages or narcotics."22 The definition of “use” is “the act or practice of using something"23 The definition of “seller” is “one that offers for sale.”24 Thus, the terms “users or sellers” refer to ongoing current activity. Like the terms “using, possessing or dealing” found constitutional in State v. t.lamas- MQ,ZS they effectively notify a person of ordinary intelligence what behavior is prohibited
Brettel| also contends that the term "i|legal drugs” reinforces the vagueness of “known.” With some states’ decrimina|ization of “recreationai marijuana, it does not provide fair notice to write conditions in terms of ‘il|ega|
jil
drugs. V\lashington no longer criminalizes the use and possession of limited quantities of marijuana26 But this conduct remains a federal offense, governed by the Controlled Substances Act (CSA).27 The CSA preempts state law, even for marijuana wholly grown and distributed intrastate28 The complication of
different state and federal drug enforcement policies does not excuse a person
from knowing that for marijuana, it is still “illegal.” The mere fact that only the
22 WEBsTER’s Tniao NEw lNrERNATloNAL DicTioNARY 2524 (2002).
23 WEBs'rER’s at 2523.
24 WEBern’s at 2062.
25 67 Wn. App. 448, 456, 836 P.2d 239 (1992).
26 See, e.g., RCW 69.50.360.
27 21 U.S.C. §§ 812, 844.
23 Gonzales v. Raich, 545 U.S. ‘l, 29-30, 125 S. Ct. 2195, 162 t.. Ed. 2d 1 (2005).
_8_
No. 76384-9-| / 9
federal government prohibits recreational marijuana use and possession does not make the term “illegal drugs” vague as applied to marijuana29
l:inally, Brette|l asks this court to consider dicta from its unpublished decision in State v. Eirown.30 |n an aside, the w court indicated approval of the trial court’s rejection of a condition, recommended during sentencing forbidding Brown from associating with “known drug users.”3i
We are not bound by unpublished decisions let alone dicta in tl'rern.32 Aiso, the condition in _l_B_r_g__w_i;\_ is not the same as the condition at issue here. The challenged condition prohibits Brettell from associating with “known users and
sellers of illegal drugs.” ln contrast the condition in Brown prohibited association
with “known drug users” and did not limit the restriction to “illegal" users.33 We
conclude that this condition is not.impermissibly vaguel
29 Even apart from the fact that the petitioner is responsible for knowledge of currently applicable laws, the widespread media coverage of the federal enforcement of mariiuana possession and use renders this argument specious Seel e.g., Donna Leinwand Leger, Marijuana to remain illegal under federal law, DEA says USA `l'ODAY, Aug. 11, 2016 https:l/www.usatoday.com/story/newleO16108/1 l/dea»marijuana»remains-illegal- under-faderal-lawl88550804/.
33 State v. Brown, No. 75458-»1-| (Wash. Ct. App. Mar. 12, 2018) (unpublished), http://www.courts.wa.gov/opinions/pdf/754581.pdf.
31 Brown, No. 75458-1-|, slip op. at 25.
32 V\le note that in State v. Snyder, another unpublished decision, this court upheld the same condition at issue here, albeit against a charge that it failed to be crime related rather than against a vagueness charge No. 75717-2- l, slip op. at 11~12 (Wash. Ct. App. Feh. 26, 2018) (unpublished), http:l/Www.courts.Wa.gov/oplnions/pdf/757172.pdf.
33 Brown, No. 75458~1-l, slip op. at 25.
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No. 76384-9-| l 10
Statutogr Authority
Brettell next claims the court exceeded its statutory authority by imposing conditions involving controlled substances and treatment because they are not sufficiently crime related He also claims the court exceeded its statutory authority by imposing a condition requiring plethysmograph testing We disagree
RCW 9.94A.703 describes the conditions a court can impose when sentencing a person to a term of community custody lt identifies four categories of conditions: mandatory waivable, discretionary and special.34 The statute defines “waivable conditions” as those that “the court shall order” unless “waived by the court."35 The statute defines “discretionary conditions” as those that the court may order and lists six conditions.36 These include a requirement that the offender “[cjomply with any crime-related prohibitions.”37 "Crime-related" means “conduct that directly relates to the circumstances of the crime for which the offender has been convicted." 33 A sentencing court can also require that an offender perform “affirmative acts necessary to monitor compliance” with the
community custody conditions39
34 now 9.94A.703(i)-(4). 35Rcw 94A.703(2). 36 now 94A.703(3). 37 now 9.94A.703(3)(r). 38 now 9.94A.030(10)_ 39 Rcw 9.94A.030(10)_ ' -10-
No. 76384-9-| l 11
A. Walvabie Cono'itions
Brettell asserts that the condition requiring that he “not possess or consume controlled substances unless [he has] a legally issued prescription” is not crime reiated. But RCW 9.94A.703(2)(c) defines this as a waivable and not a discretionary condition40 So the court had authority to impose it without it being related to Brettell’s underlying crimes
B. Discretionary Conditions
Brettell claims that the sentencing court exceeded its authority by imposing these four conditions: condition 12: “Do not associate with known users or sellers of illegal drugs”; condition 13: “Do not possess drug paraphernalla”; condition 22: “Pariicipate in urinalysis, Breathalyzer, and polygraph examinations as directed by the supervising Community Corrections Ofiicer, to monitor compliance with conditions of community custody”; and condition 23: “Submit to plethysmograph testing, as directed by a certified sexual deviancy treatment provider.”
Brettell does not identify sufficient evidence to show that the challenged conditions unlawfully restrain him. Even if he had provided more than just conclusory assertions the sentencing court did not abuse its discretion by
imposing these conditions
43 “Refrain from possessing or consuming controlled substances except pursuant to lawfully issued prescriptions.” -11-
No. 76384~9~l / 12
i. Druq and alcohol-related conditions
Brettell challenges as not sufficiently crime related the condition restricting his association with “known users or sellers of illegal drugs," the condition restricting his “possess[ion] of drug paraphernalia,” and the condition requiring he participate in "urinalysis [and] Breathalyzer” testing
A petitioner claiming that a “crirne-related prohibition” is not reasonably related to the underlying offense must include evidence of the circumstances of the crime to support his argument l-iere, Brettell provides only bare assertions So he does not make the required prima facie showing that the court erred
Even if Brettell supported his assertion with evidence, the uncontested facts identified by the State in response to his PRP demonstrate that these conditions are sufficiently crime related Brettell gave his victims alcohol and marijuana before and during the assaults During many of the assaults the victims Were intoxicated sometimes to the point of unconsciousness l-le also used the promise of drugs and alcohol to entice at least one of his victims i_.K., to him, and thus facilitate the assault The court did not err in imposing drug and alcohol related conditions
ii. P|ethvsmoqraph Testind
Last, Brettell challenges the condition requiring that he “{s]ubmit to plethysmograph testing as directed by a certified sexual deviancy treatment
_12_
th. 76384-9-i l 13
provider.” Brettell acknowledges that a court may order plethysmograph testing when it orders crime-related deviancy treatment i-le asserts that the sentencing court did not order him to "participate in sexual deviancy treatment” because the pertinent condition does not include the express phrase “participate in sexual deviancy treatment."
Brettell minces words A community custody condition required that Brettell be evaluated by and follow the recommended course of treatment of a certified sexual deviancy counselor The court had authority to require plethysmograph testing as a means for assessment and monitoring compliance during the treatment
Brettell also claims the plethysmograph testing is invalid because the court was “without authority to order plethysmograph testing upon direction of the Community Corrections Officer." ilowever, the condition itself does not authorize the CCO to order a plethysmograph test, only a “certified sexual deviancy treatment provider.” So this argument lacks merit.
timeliness
Brettell notes that the one_year time restriction on collateral attacks may bar his vagueness challenge to condition 12. Because his claim fails on its merits and the State does not challenge the timeliness of the attack, we do not address this issue.
_13_
NO. 76384-9-| l 14
CONCt_USlON Because the State agrees that condition six is unconstitutionally vaguel we vacate it and remand to the trial court to address it in a manner consistent with this decision. As Brettell fails to show the invalidity of any other challenged
condition, we otherwise deny his request for relief.
WE CONCUR: ,l '\ \\ diain et ii*;»
_14_