IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
In the Matter of the Personal Restraint No. 78994-5-I of: DIVISION ONE RICKY DESHAWN KING, UNPUBLISHED OPINION Petitioner,
LEACH, J. — Ricky DeShawn King filed a personal restraint petition to
challenge three conditions of community custody imposed by the trial court after
his conviction for first degree child molestation. Because the trial court did not
have statutory authority to impose one condition, did not make required findings to
support restrictions on King’s contact with his children while under community
supervision, and an intervening Supreme Court decision clarified the requirements
for the third condition, we remand for further proceedings consistent with this
opinion.
BACKGROUND
In December 2014, Ricky DeShawn King pleaded guilty to first degree child
molestation for molesting his young stepdaughter who lived with King and the
victim’s mother and their four younger children. He also agreed with the State’s
recommendation for a special sex offender sentencing alternative (SSOSA) in lieu
of a standard range indeterminate prison sentence. He agreed to various
community custody conditions, including abstaining from alcohol, staying out of
Citations and pincites are based on the Westlaw online version of the cited material. No. 78994-5-I/2
parks, playgrounds, schools and other places where minors congregate, and to
have no unsupervised contact with any minors without prior approval.
In February 2016 and April 2016, the Department of Corrections filed
notices of violations of King’s community custody conditions. The violations
included King failing to attend treatment; being seen with a young girl after leaving
a court hearing; regularly contacting the victim’s mother and their children; drinking
alcohol; and being at the home where his children and the victim live. The
sentencing court then revoked King’s SSOSA and imposed the original sentence
of 96 months to life including all original community custody conditions. This court
affirmed the SSOSA revocation on direct appeal.1 King then filed a personal
restraint petition on September 24, 2018.
ANALYSIS
King challenges three conditions imposed as part of his judgment and
sentence, prohibiting unsupervised contact with minor children, prohibiting use of
alcohol, and prohibiting him from entering “parks/playgrounds/schools and/or any
places where minors congregate.” Each of these conditions is related to the crime
King committed.
Appellate courts review the imposition of crime related prohibitions for
abuse of discretion.2 A trial court abuses its discretion if it makes a manifestly
unreasonable decision or exercises its discretion on untenable grounds or for
1 State v. King, No. 75306-1-I, slip op. (Wash. Ct. App. Sept. 25, 2017) (unpublished), https://www.courts.wa.gov/opinions/pdf/753061.pdf. 2 State v. Williams, 157 Wn. App. 689, 691, 239 P.3d 600 (2010). 2 No. 78994-5-I/3
untenable reasons.3 We review the factual basis for crime related conditions for
substantial evidence.4 A court does not abuse its discretion if a reasonable
relationship between the crime of conviction and the community custody condition
exists. 5
Contact with Biological Children
King challenges a condition which states he shall, “Have no direct and/or
indirect contact with minors without the supervision of a responsible adult who has
knowledge of this conviction and the defendant's status as a registered sex
offender without prior approval of the court, CCO, and treatment provider, and the
informed consent of the minor's parent or guardian.” He claims “the condition of
community custody restricting contact with minors violates his constitutional right
to parent.” We address this challenge as applied in two situations, when King is
under community supervision and when King is incarcerated in the custody of the
Department of Corrections.
Parents have a fundamental right to raise their children without State
interference.6 But, parental rights are not absolute and may be subject to
reasonable regulation.7 Sentencing courts can restrict fundamental parenting
rights with a criminal sentence condition if the condition is reasonably necessary
3 State v. Rodriguez, 163 Wn. App. 215, 224, 259 P.3d 1145 (2011). 4 State v. Irwin, 191 Wn. App. 644, 656, 364 P.3d 830 (2015) 5 Irwin, 191 Wn. App. at 659. 6 In re Custody of Smith, 137 Wn.2d 1, 15, 969 P.2d 21 (1998) aff'd sub nom. Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 67 L. Ed. 1042 (1923). 7 Prince v. Massachusetts, 321 U.S. 158, 166, 64 S. Ct. 438, 88 L. Ed. 645 (1944). 3 No. 78994-5-I/4
to further the State's compelling interest in preventing harm and protecting
children.8 Conversely, courts will vacate contact prohibition conditions that are not
sufficiently related to the harm they seek to prevent, such as protecting a child. 9
“Such conditions must be ‘sensitively imposed’ so that they are reasonably
necessary to accomplish the essential needs of the State and public order.”10 A
no-contact order must be drawn narrowly to serve the interests of protecting the
child.11
The State agrees with King the trial court should have entered findings to
justify any limitations on his contact with King’s biological children during
community custody. It also agrees with King the trial court should specifically
address the parameters and scope of community custody limitations regarding his
biological children as separate from prohibitions on contacting minors in general.
We accept the State’s concession on these points. We are confident that on
remand the trial court will also resolve King’s concerns about the ambiguity of the
current condition. Any further appellate review of limitations on King’s contact with
his biological children while on community custody is premature and must await
the trial court’s entry of findings and revision of any condition it narrowly tailors to
protect the children.
King also complains the Department of Corrections (DOC) is prohibiting
visitation with his children while he is in total confinement. This Court cannot
8 State v. Corbett, 158 Wn. App. 576, 598, 242 P.3d 52 (2010). 9 State v. Letourneau, 100 Wn. App. 424, 438, 997 P.2d 436 (2000). 10 In re Rainey, 168 Wn.2d 367, 374, 229 P.3d 686 (2010). 11 Rainey, 168 Wn.2d at 378. 4 No. 78994-5-I/5
address this complaint in this case. The DOC is not a party here. And, the
complaint does not involve an issue of community custody. Neither the federal nor
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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
In the Matter of the Personal Restraint No. 78994-5-I of: DIVISION ONE RICKY DESHAWN KING, UNPUBLISHED OPINION Petitioner,
LEACH, J. — Ricky DeShawn King filed a personal restraint petition to
challenge three conditions of community custody imposed by the trial court after
his conviction for first degree child molestation. Because the trial court did not
have statutory authority to impose one condition, did not make required findings to
support restrictions on King’s contact with his children while under community
supervision, and an intervening Supreme Court decision clarified the requirements
for the third condition, we remand for further proceedings consistent with this
opinion.
BACKGROUND
In December 2014, Ricky DeShawn King pleaded guilty to first degree child
molestation for molesting his young stepdaughter who lived with King and the
victim’s mother and their four younger children. He also agreed with the State’s
recommendation for a special sex offender sentencing alternative (SSOSA) in lieu
of a standard range indeterminate prison sentence. He agreed to various
community custody conditions, including abstaining from alcohol, staying out of
Citations and pincites are based on the Westlaw online version of the cited material. No. 78994-5-I/2
parks, playgrounds, schools and other places where minors congregate, and to
have no unsupervised contact with any minors without prior approval.
In February 2016 and April 2016, the Department of Corrections filed
notices of violations of King’s community custody conditions. The violations
included King failing to attend treatment; being seen with a young girl after leaving
a court hearing; regularly contacting the victim’s mother and their children; drinking
alcohol; and being at the home where his children and the victim live. The
sentencing court then revoked King’s SSOSA and imposed the original sentence
of 96 months to life including all original community custody conditions. This court
affirmed the SSOSA revocation on direct appeal.1 King then filed a personal
restraint petition on September 24, 2018.
ANALYSIS
King challenges three conditions imposed as part of his judgment and
sentence, prohibiting unsupervised contact with minor children, prohibiting use of
alcohol, and prohibiting him from entering “parks/playgrounds/schools and/or any
places where minors congregate.” Each of these conditions is related to the crime
King committed.
Appellate courts review the imposition of crime related prohibitions for
abuse of discretion.2 A trial court abuses its discretion if it makes a manifestly
unreasonable decision or exercises its discretion on untenable grounds or for
1 State v. King, No. 75306-1-I, slip op. (Wash. Ct. App. Sept. 25, 2017) (unpublished), https://www.courts.wa.gov/opinions/pdf/753061.pdf. 2 State v. Williams, 157 Wn. App. 689, 691, 239 P.3d 600 (2010). 2 No. 78994-5-I/3
untenable reasons.3 We review the factual basis for crime related conditions for
substantial evidence.4 A court does not abuse its discretion if a reasonable
relationship between the crime of conviction and the community custody condition
exists. 5
Contact with Biological Children
King challenges a condition which states he shall, “Have no direct and/or
indirect contact with minors without the supervision of a responsible adult who has
knowledge of this conviction and the defendant's status as a registered sex
offender without prior approval of the court, CCO, and treatment provider, and the
informed consent of the minor's parent or guardian.” He claims “the condition of
community custody restricting contact with minors violates his constitutional right
to parent.” We address this challenge as applied in two situations, when King is
under community supervision and when King is incarcerated in the custody of the
Department of Corrections.
Parents have a fundamental right to raise their children without State
interference.6 But, parental rights are not absolute and may be subject to
reasonable regulation.7 Sentencing courts can restrict fundamental parenting
rights with a criminal sentence condition if the condition is reasonably necessary
3 State v. Rodriguez, 163 Wn. App. 215, 224, 259 P.3d 1145 (2011). 4 State v. Irwin, 191 Wn. App. 644, 656, 364 P.3d 830 (2015) 5 Irwin, 191 Wn. App. at 659. 6 In re Custody of Smith, 137 Wn.2d 1, 15, 969 P.2d 21 (1998) aff'd sub nom. Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 67 L. Ed. 1042 (1923). 7 Prince v. Massachusetts, 321 U.S. 158, 166, 64 S. Ct. 438, 88 L. Ed. 645 (1944). 3 No. 78994-5-I/4
to further the State's compelling interest in preventing harm and protecting
children.8 Conversely, courts will vacate contact prohibition conditions that are not
sufficiently related to the harm they seek to prevent, such as protecting a child. 9
“Such conditions must be ‘sensitively imposed’ so that they are reasonably
necessary to accomplish the essential needs of the State and public order.”10 A
no-contact order must be drawn narrowly to serve the interests of protecting the
child.11
The State agrees with King the trial court should have entered findings to
justify any limitations on his contact with King’s biological children during
community custody. It also agrees with King the trial court should specifically
address the parameters and scope of community custody limitations regarding his
biological children as separate from prohibitions on contacting minors in general.
We accept the State’s concession on these points. We are confident that on
remand the trial court will also resolve King’s concerns about the ambiguity of the
current condition. Any further appellate review of limitations on King’s contact with
his biological children while on community custody is premature and must await
the trial court’s entry of findings and revision of any condition it narrowly tailors to
protect the children.
King also complains the Department of Corrections (DOC) is prohibiting
visitation with his children while he is in total confinement. This Court cannot
8 State v. Corbett, 158 Wn. App. 576, 598, 242 P.3d 52 (2010). 9 State v. Letourneau, 100 Wn. App. 424, 438, 997 P.2d 436 (2000). 10 In re Rainey, 168 Wn.2d 367, 374, 229 P.3d 686 (2010). 11 Rainey, 168 Wn.2d at 378. 4 No. 78994-5-I/5
address this complaint in this case. The DOC is not a party here. And, the
complaint does not involve an issue of community custody. Neither the federal nor
our state constitution creates a protected liberty interest in visitation between an
inmate and his children while in a DOC facility.12 The superior court does not have
personal jurisdiction over the DOC on issues of visitation while in a DOC facility. 13
As the State correctly notes in its briefing, the trial court could suggest visitation if
it believed it to be appropriate, but that suggestion would not be binding on the
DOC. The DOC has its own rules and directives for controlling visits. Any issues
King has with the DOC’s visitation decisions while he is in prison must be pursued
through the appropriate administrative process or other litigation.
Alcohol Consumption Condition
King asserts the trial court exceeded its authority by imposing the
community condition prohibiting him to “not use or consume alcohol.” The State
concedes this case should be remanded to amend the condition to strike the words
“use or.”
Former RCW 9.94A.703(3)(e) authorized the court to impose a condition
that prohibits offenders from consuming alcohol regardless of whether alcohol
contributed to the offense.14 This court has previously held that former
RCW 9.94A.703(3)(e) authorizes conditions that refer to “consuming alcohol” but
not using alcohol. 15 So, we accept the State’s concession and remand to the trial
12 Matter of Gossett, 7 Wn. App. 2d 610, 623-24, 435 P.3d 314 (2019). 13 Gossett, 7 Wn. App. 2d at 625. 14 State v. Norris, 1 Wn. App.2d 87, 99-100, 404 P.3d 83 (2017) rev’d on other grounds, State v. Nguyen, 191 Wn.2d 671, 425 P.3d 847 (2018)). 15 Norris, 1 Wn. App.2d at 100. 5 No. 78994-5-I/6
court to strike the words “use or” from the challenged condition prohibiting alcohol
use or consumption.
Frequenting Areas where Minor Children Congregate
King next claims the community custody condition prohibiting him from
frequenting areas where minor children are known to congregate is
unconstitutionally vague.
Due process, guaranteed by the Fourteenth Amendment to the United
States Constitution and article I, section 3 of the Washington Constitution, requires
that legal standards like community custody conditions not be vague.16 The
rationale for this rule equally applies to community custody conditions.
To avoid vagueness, the condition must (1) provide ordinary people fair
warning of proscribed conduct, and (2) have standards that are definite enough to
protect against arbitrary enforcement. 17 A sentencing condition is
unconstitutionally vague if it fails to do either.18 But, a sentencing condition is not
unconstitutionally vague merely because a person cannot predict with complete
certainty the exact point at which the actions would be classified as prohibited
conduct.19
The community custody condition King challenges as unconstitutionally
vague orders King to “not enter any parks/playgrounds/schools and/or any places
where minors congregate.” He claims this condition is not sufficiently definite to
16 Irwin, 191 Wn. App. at 652-53 17 Irwin, 191 Wn. App. at 652-53. 18 Irwin, 191 Wn. App. at 653. 19 Irwin, 191 Wn. App. at 653. 6 No. 78994-5-I/7
apprise him of prohibited conduct and allows for the arbitrary enforcement by his
community corrections officer.
In September 2019, our supreme court held that a community custody
condition that, “The defendant…shall not loiter in nor frequent places where
children congregate such as parks, video arcades, campgrounds, and shopping
malls,” was not unconstitutionally vague and satisfied due process.20 The
Supreme Court held that a nonexclusive list of examples cured any vagueness in
the phrase “where children congregate.” 21
The State suggests that we should remand to the trial court to rewrite the
challenged condition to read, “Do not enter any places where minors congregate,
such as parks, playgrounds, and schools” to comport with Wallmuller. We agree.
CONCLUSION
The trial court did not have statutory authority to impose a condition about
using alcohol and did not make required findings to support restrictions on King’s
contact with his children while under community supervision. And, an intervening
Supreme Court decision clarified the requirements for the condition restricting
access to places where minors congregate. So, we remand for further proceedings
consistent with this opinion.
WE CONCUR:
20 State v. Wallmuller, 194 Wn.2d 234, 237, 245, 449 P.3d 619, 620 (2019). 21 Wallmuller, 194 Wn.2d at 244-45. 7