Personal Restraint Petition Of: Mark Fagin

• Court: Court of Appeals of Washington
• Decided: November 1, 2021
• Docket: 80545-2
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Personal Restraint ) No. 80545-2-I Petition of: ) ) DIVISION ONE MARK ALLEN FAGIN ) ) UNPUBLISHED OPINION Petitioner. ) ) ) )

HAZELRIGG, J. — Mark A. Fagin pleaded guilty to attempted rape of a child

in the second degree and rape of a child in the third degree. The court imposed

numerous community custody conditions as a part of his sentence. Fagin later

filed a personal restraint petition. The petition was denied in part and the surviving

challenges were referred to a panel of this court for consideration of the

constitutional validity of several of those community custody conditions. We

accept the State’s concessions on a number of the challenged conditions, grant

the petition, and remand to the trial court for correction of the various deficiencies

identified herein.

FACTS

In December 2017, Mark Fagin was charged with two counts of attempted

rape of a child in the first degree, attempted commercial sexual abuse of a minor,

and rape of a child in the second degree. Fagin pleaded guilty as charged to the No. 80545-2-I/2

amended information filed by the State, pursuant to a plea agreement, which

reduced the charges to count 1, attempted rape of a child in the second degree,

and count 2, rape of a child in the third degree. The plea statement permitted the

court to review the police reports and probable cause affidavit to establish a factual

basis for the plea.

Fagin’s conviction for count 1 arose from an incident where he responded

to an advertisement on Craigslist1 posted by law enforcement, which involved

officers posing as a mother offering up her two fictitious daughters for sexual

activity. During a text exchange with Fagin that evolved from his response to the

ad, a detective posing as the mother said her “daughters” were 11 and 6 years old.

As a result of this communication about the “daughters,” Fagin and the “mother”

agreed on a meeting place. Fagin was arrested when he arrived at the location.

Fagin’s conviction for count 2 was based on events that occurred in 2010 when

Fagin was living with a woman and her daughter, A.R., for two years.

In October 2018, the court imposed an indeterminate sentence of 90

months to life in prison on count 1 and 34 months of confinement on count 2. A

lifetime term of community custody was also imposed. The community custody

conditions imposed by the court are contained in what appears to be a stock form

prepared by the Department of Corrections (DOC) and referenced in the DOC

presentence report.

In October 2019, Fagin filed a pro se personal restraint petition (PRP),

arguing that he received ineffective assistance of counsel, the court incorrectly

1 Craigslist is a website that allows users to post and view classified advertisements and community notices.

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calculated his sentence on count 1, and that numerous community custody

conditions were improper. The Acting Chief Judge of this court determined that

Fagin’s challenges as to the community custody conditions were not frivolous,

referred those issues to a panel of judges for consideration on the merits, and

appointed counsel to assist Fagin. The remaining PRP claims were dismissed.

ANALYSIS

Fagin challenges numerous community custody conditions on constitutional

grounds. “To receive collateral relief 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 justice.” In re Pers. Restraint of Brettell, 6 Wn. App. 2d

161, 166–67, 430 P.3d 677 (2018).

We review community custody conditions for abuse of discretion. State v.

Irwin, 191 Wn. App. 644, 652, 364 P.3d 830 (2015). “A trial court necessarily

abuses its discretion if it imposes an unconstitutional community custody condition,

and we review constitutional questions de novo.” State v. Wallmuller, 194 Wn.2d

234, 238, 449 P.3d 619 (2019).

I. Plethysmograph Testing

Fagin first challenges the condition under Additional Sentence

Requirements that requires him to “[s]ubmit to a sexual history and periodic

polygraphs and/or plethysmograph assessments at own expense as directed by

[the] Department of Corrections or therapist.” In particular, Fagin argues that this

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condition is unconstitutional because it permits plethysmograph testing at the

direction of the DOC. Here, the State admits that this condition is unconstitutional

under State v. Land, 172 Wn. App. 593, 605–06, 295 P.3d 782 (2013). Land

makes clear that only a treatment provider may order a highly invasive

plethysmograph examination. Id. We agree with the parties and remand for the

trial court to modify this condition to comply with our case law.2

II. Infringement on the Right to Parent

Fagin next challenges two separate conditions, asserting that they violate

his right to parent and that they must provide an exception for his biological child.

Condition #2 under Crime Related Prohibitions reads:

Avoid contact with minors and adhere to the instructions of the Community Corrections Officer concerning residence and employment, unless otherwise authorized by the Department of Corrections and treatment provider with an adult sponsor approved by the Department of Corrections.

Condition #6 under Additional Sentence Requirements states “You shall not stay

overnight in a residence where there are minor children, as directed by your

Community Corrections Officer.” During the pendency of this PRP, the parties

addressed the primary concern Fagin raised with regard to contact with his

biological son. With permission of a Commissioner of this court, they entered an

agreed order in the trial court amending the language of condition #2 to allow for

contact with his son during his incarceration.

2 Given that this has been the state of the law on ordering plethysmograph testing pursuant

to community custody conditions since at least 2013, the State would be well served by ensuring that any pattern forms used at sentencing are appropriately updated or, at minimum, hand-modified to comport with these constitutional considerations.

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However, Fagin argues that these challenges must still be considered by

this panel because he may potentially have other children in the future. It is unclear

why this aspect of his argument was not also addressed when the parties

appeared before the trial court to modify the language of condition #2, particularly

given that both parties cited the authority for such a remedy in their respective

briefing. In In re Personal Restraint of Sickels, the court accepted a concession

by the State that an exception must be made to some conditions for any potential

biological children Sickels might have in the future, despite the fact that he was

childless at the time that he raised the challenge. 14 Wn. App. 2d 51, 58–59, 469

P.3d 322 (2020); see also United States v. Loy, 237 F.3d 251, 270 (3d Cir. 2001).

Such a modification should be made on remand in this case as well, particularly

given that an exception has already been made for his current biological child as

to condition #2.3

III. Vagueness

Fagin next asserts that several of his other community custody conditions

are unconstitutionally vague. Both under the Fourteenth Amendment of the United

States Constitution and article I, section 3 of our constitution, “[a] legal prohibition,

such as a community custody condition, is unconstitutionally vague if (1) it does

not sufficiently define the proscribed conduct so an ordinary person can

understand the prohibition or (2) it does not provide sufficiently ascertainable

standards to protect against arbitrary enforcement.” Wallmuller, 194 Wn.2d at

3 The parties appear to agree that Fagin’s minor son will reach the age of majority before his father is released from prison. As such, condition #6 would only apply to any future children Fagin may have, which mirrors the facts of Sickels.

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238–39 (internal quotations marks omitted) (quoting State v. Padilla, 190 Wn.2d

672, 677, 416 P.3d 712 (2018)). “If a person of ordinary intelligence can

understand what behavior a condition forbids, given the context in which its terms

are used, the community custody condition is valid.” Brettell, 6 Wn. App. 2d at

168. “[A] community custody condition is not unconstitutionally vague merely

because a person cannot predict with complete certainty the exact point at which

his actions would be classified as prohibited conduct.” Padilla, 190 Wn.2d at 677

(quoting State v. Valencia, 169 Wn.2d 782, 793, 239 P.3d 1059 (2010)).

A. Avoiding Places Minors Frequent

Fagin challenges condition #3 of the listed Crime Related Prohibitions,

which states that he must:

Avoid schools, playgrounds, child-care centers, church youth programs, parks and recreational programs, services used by minors, unless otherwise approved by the Department of Corrections with a sponsor approved by the Department of Corrections.

The State concedes that the condition is unconstitutional as written and should be

modified. The State proposes amending the condition to read: “Avoid places

where minors congregate including schools, playgrounds, child-care centers,

church youth programs, parks and recreational programs, unless otherwise

approved by the Department of Corrections [with a sponsor approved by the

Department of Corrections].” We accept the concession and remand for this

modification in light of Wallmuller, 194 Wn.2d 234.

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B. Limitations on Forming Relationships

Fagin also challenges one aspect of condition #5 under Additional Sentence

Requirements as ordered by the trial court, which states “Do not date people or

form relationships with families who have minor children, as directed by your

Community Corrections Officer.” Fagin asserts that “form relationships” is

unconstitutionally vague as the condition does not inform him of what constitutes

a “relationship” or what it means to “form” one. As Fagin points out in his briefing,

this court has struck this exact phrasing from nearly identical community custody

conditions numerous times. See State v. Robinett, No. 50653-0-II, slip op. at 7–9,

(Wash. Ct. App. Jan. 15, 2019) (unpublished),

https://www.courts.wa.gov/opinions/pdf/D2%2050653-0-

II%20Unpublished%20Opinion.pdf; In re Pers. Restraint of Hulbert, No. 80870-2-

I, slip op. at 3–4 (Wash. Ct. App. Jul. 27, 2020) (unpublished),

https://www.courts.wa.gov/opinions/pdf/808702.pdf; State v. Mansour, No. 78708-

0-I, slip op. (unpublished portion) at 34–36 (Wash. Ct. App. Aug. 24, 2020),

https://www.courts.wa.gov/opinions/pdf/787080.pdf. We similarly conclude that

the challenged language in condition #5 which prohibits Fagin from, “form[ing]

relationships with families who have minor children, as directed by your

Community Corrections Officer,” is unconstitutionally vague and accordingly, we

remand for the trial court to strike it from the judgment and sentence.

C. Use or Possession of Sexually Explicit Material

Fagin’s next challenge relates to another of his Additional Sentence

Requirements, condition #10, which states “Do not seek out, use, or possess,

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sexually explicit material as defined by treatment provider or Indeterminate

Sentence Review Board [(ISRB)].” The State once again concedes that a portion

of this condition must be stricken in order to comply with due process. The State

agrees with Fagin that the language that grants the ISRB discretion to define

sexually explicit material must be removed. We then need only consider whether

the condition remains unconstitutionally vague if this determination is left to the

sole discretion of the treatment provider. Fagin argues that sufficient notice as to

what constitutes “sexually explicit material” may only be provided by way of a

statutory definition. In response, the State proposes that the definition of sexually

explicit material contained in RCW 9.68.130 is appropriate, in conjunction with the

discretion of the treatment provider.

We agree with the State’s proposal to define sexually explicit material by

way of RCW 9.68.130 as it provides clear and sufficient notice to the supervised

person. We, however, decline to allow a treatment provider to further define or

limit access to the prohibited sexually explicit material. A treatment provider may

not be familiar with the legal nuance regarding free speech concerns that our

courts have had to address previously. See State v. Bahl, 164 Wn.2d 739, 753–

58, 193 P.3d 678 (2008); see also State v. Nguyen, 191 Wn.2d 671, 679–81, 425

P.3d 847 (2018).

D. Monitoring Software for Internet Access

Fagin argues that the following condition contained in the list of Additional

Sentence Requirements is unconstitutionally vague: “You shall not access the

Internet on any device without approved monitoring software.” He asserts that this

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condition is subject to arbitrary enforcement because the CCO may approve or

otherwise decide the scope of the monitoring software. We first question whether

the condition actually specifies that the discretion rests with the CCO in the

absence of specific language to that effect, particularly in light of other conditions

listed in Appendix F that expressly note the discretion of the treatment provider,

ISRB, CCO, or DOC. In the absence of language that puts Fagin on notice as to

who may approve the monitoring software, we must remand as the condition is

vague. We cannot conclude that a person of ordinary intelligence, when reading

this condition in the context of the conditions as a whole, would be able to ascertain

who approves the required monitoring software. Throughout the appendix to the

judgment and sentence that contains these conditions, the grants of discretion to

various supervising authorities are otherwise relatively specific.

As to the substance of the condition requiring use of approved monitoring

software for any internet access, we are bound by our Supreme Court’s recent

opinion in State v. Johnson. 197 Wn.2d 740, 487 P.3d 839 (2021). The Johnson

court reviewed a vagueness challenge to a condition which prohibited the, “use or

access [of] the World Wide Web unless specifically authorized by [his community

custody officer] through approved filters.” Id. at 744 (alterations in original). The

court reasoned that the crime Johnson committed, factually similar to Fagin’s

crimes of conviction, informed what sort of filter would be appropriate for use. Id.

at 749. The court also noted that, when reading the context of the conditions

overall, the scope of limitations the filter should provide was ascertainable to an

ordinary person. Id. We remand to the trial court to adapt this condition of Fagin’s

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community custody to ensure that the delegation of authority for approving the

monitoring software is clear. Contrary to Fagin’s assertion, Johnson makes clear

that we need not direct that the condition expressly specify the type of filter. Id.

740. Because we remand for correction on the bases specified here, we need not

consider Fagin’s further challenges to this condition.4

IV. Limitations on Accessing Social Media

Fagin’s final challenge is to condition #11 of Additional Sentence

Requirements, which provides “You shall not visit, have accounts for or utilize

social media or websites which advertise or promote dating, prostitution, casual

sexual relationships, or similar content.” Fagin specifically argues that this

condition infringes on his First Amendment rights such that the condition requires

narrow tailoring. We agree and remand for consideration on such grounds as the

record lacks any indication of an overbreadth analysis by the trial court, which is a

prerequisite to imposing a condition of this sort.

“A regulation implicating First Amendment speech must be narrowly tailored

to further the State’s legitimate interest.” Padilla, 190 Wn.2d at 678. For this

reason, “a restriction implicating First Amendment rights demands a greater

degree of specificity and must be reasonably necessary to accomplish the

essential needs of the state and public order.” Id. Additionally, “[t]here must be

no reasonable alternative way to achieve the State’s interest.” State v. Warren,

165 Wn.2d 17, 34–35, 195 P.3d 940 (2008). A condition is unconstitutionally

4On remand, the parties may further litigate any issues they identify as to free speech or warrantless searches arising from this condition.

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overbroad if it infringes on an individual’s right to free speech or free association

beyond what may legitimately be regulated by the State. State v. Riles, 135 Wn.2d

326, 346, 957 P.2d 655 (1998), overruled on other grounds by Valencia, 169

Wn.2d 782. Restrictions on social media may violate an individual’s First

Amendment rights. Packingham v. North Carolina, 137 S. Ct. 1730, 1735–38, 198

L. Ed. 2d 273 (2017). The trial court must establish on the record that the condition

is narrowly tailored to achieve the State’s legitimate interest and no other

reasonable alternative to prevent the concerned conduct exists. State v. DeLeon,

11 Wn. App. 2d 837, 840–41, 456 P.3d 405 (2020).

Here, the record is devoid of any consideration as to how this condition was

drafted, its impact on Fagin’s First Amendment rights, or whether there were less

restrictive alternatives to achieve the State’s interest. On remand, the trial court

must conduct the required overbreadth analysis on the record as required by

DeLeon, 11 Wn. App. 2d 837.

We grant Fagin’s petition and remand to strike or revise the various

conditions identified.

WE CONCUR:

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