Filed Washington State Court of Appeals Division Two
April 19, 2022 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II In the Matter of the Personal Restraint of No. 56044-5-II SETH JAMES CURRAN, UNPUBLISHED OPINION Petitioner.
GLASGOW, C.J.—Seth James Curran seeks relief from personal restraint imposed following
his 2019 plea of guilty to two counts of second degree child molestation (counts I and II) and two
counts of communication with a minor for immoral purposes (counts III and IV). He argues: (1)
his sentences on counts I and II of 87 months of confinement and 36 months of community custody
exceed the statutory maximum sentence of 120 months; (2) his conviction on counts III and IV
should not have been felonies; (3) the trial court improperly used a multiplier to increase his
offender score; (4) his convictions were parts of the same criminal conduct; and (5) the trial court
improperly imposed a long list of community custody conditions regarding possessing or
consuming alcohol or entering “location[s] where alcohol is the primary product,” supervision
fees, psychosexual and substance abuse evaluations, “sexually explicit materials that are intended
for sexual gratification,” access to social media, frequenting areas where children congregate,
notifying his community corrections officer of romantic relationships, curfew, polygraph and
plethysmograph examinations, electronic home detention, urinalysis testing, and no contact with
victims or their families. Br. in Supp. of Personal Restraint Pet. at 15, 18 (underscore omitted). No. 56044-5-II
RCW 10.73.090(1) provides:
No petition or motion for collateral attack on a judgment and sentence in a criminal case may be filed more than one year after the judgment becomes final if the judgment and sentence is valid on its face and was rendered by a court of competent jurisdiction.
Curran’s judgment and sentence became final on January 7, 2019, when the trial court entered it.
RCW 10.73.090(3)(a). He did not file his petition until July 13, 2021. Unless he shows that one of
the exceptions in RCW 10.73.100 applies or shows that the trial court lacked jurisdiction or the
judgment and sentence is facially invalid, his petition is time barred. In re Pers. Restraint of
Hemenway, 147 Wn.2d 529, 532-33, 55 P.3d 615 (2002). Because several of Curran’s claims
address neither facial invalidity nor trial court jurisdiction, and he does not show that they meet
the RCW 10.73.100 exceptions, his petition is “mixed.” In re Pers. Restraint of Stenson, 150
Wn.2d 207, 220, 76 P.3d 241 (2003). Only those claims that would render the judgment and
sentence facially invalid or would establish the trial court lacked jurisdiction will be addressed
where a petitioner has brought a mixed petition with multiple claims. Id.
A showing that the sentencing court imposed a sentence in excess of its statutory authority
will demonstrate facial invalidity. In re Pers. Restraint of Coats, 173 Wn.2d 123, 136, 267 P.3d
324 (2011). Even if Curran demonstrates a facial error, he still “must show actual and substantial
prejudice” or “that a fundamental defect of a nonconstitutional nature has resulted in a complete
miscarriage of justice” to obtain relief. In re Pers. Restraint of Yates, 180 Wn.2d 33, 41, 321 P.3d
1195 (2014); In re Pers. Restraint of Carrier, 173 Wn.2d 791, 818, 272 P.3d 209 (2012).
“The term of community custody . . . shall be reduced by the court whenever an offender's
standard range term of confinement in combination with the term of community custody exceeds
the statutory maximum for the crime as provided in RCW 9A.20.021.” RCW 9.94A.701(10). The
statutory maximum sentence for second degree child molestation is 120 months. RCW
2 No. 56044-5-II
9A.44.086(2), .20.021(1)(b). Curran’s sentence of confinement and community custody totals 123
months. The State concedes that the 123-month total sentence exceeds the statutory maximum and
renders Curran’s judgment and sentence facially invalid. Therefore, this issue is not time barred.
Stenson, 150 Wn.2d at 220; In re Pers. Restraint of McWilliams, 182 Wn.2d 213, 215-16, 340 P.3d
223 (2014). And the error is a fundamental defect resulting in a complete miscarriage of justice
because the practical effect is a total sentence beyond the statutory maximum. See Carrier, 173
Wn.2d at 818.
We therefore accept the State’s concession. Where the trial court erroneously imposed a
sentence in excess of the statutory maximum, we must remand for the trial court to amend the
community custody term. RCW 9.94A.701(10); State v. Boyd, 174 Wn.2d 470, 473, 275 P.3d 321
(2012).
Curran also contends that his conviction and the duration of his sentence were invalid for
other reasons, but none would render his judgment and sentence facially invalid, nor does he show
that any of the exceptions to the one-year time bar in RCW 10.73.100 applies. Thus, none of these
claims warrants relief.
Finally, Curran asserts that multiple conditions of community custody imposed as part of
his judgment and sentence are invalid. To the extent he argues that certain community custody
conditions fail to comply with statutes or are not crime related, Curran does not show how those
claims survive the time bar. Thus, these arguments fail.
An unconstitutional community custody condition can render a judgment and sentence
facially invalid in some circumstances. See State v. Johnson, 197 Wn.2d 740, 745-46, 487 P.3d
893 (2021); State v. Fletcher, 19 Wn. App. 2d 566, 573-75, 497 P.3d 886 (2021). Curran contends
that the condition requiring evaluation and compliance with treatment recommendations is
3 No. 56044-5-II
unconstitutionally vague, but he fails to explain how this condition is constitutionally improper.
He also asserts that a condition requiring him to stay out of areas frequented by children and
providing an illustrative list is unconstitutionally vague and overbroad. But the Washington
Supreme Court recently rejected this argument in State v. Wallmuller, 194 Wn.2d 234, 245, 449
P.3d 619 (2019). Curran mentions that the prohibitions on possessing sexually explicit materials
and accessing social media are overbroad.
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Filed Washington State Court of Appeals Division Two
April 19, 2022 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II In the Matter of the Personal Restraint of No. 56044-5-II SETH JAMES CURRAN, UNPUBLISHED OPINION Petitioner.
GLASGOW, C.J.—Seth James Curran seeks relief from personal restraint imposed following
his 2019 plea of guilty to two counts of second degree child molestation (counts I and II) and two
counts of communication with a minor for immoral purposes (counts III and IV). He argues: (1)
his sentences on counts I and II of 87 months of confinement and 36 months of community custody
exceed the statutory maximum sentence of 120 months; (2) his conviction on counts III and IV
should not have been felonies; (3) the trial court improperly used a multiplier to increase his
offender score; (4) his convictions were parts of the same criminal conduct; and (5) the trial court
improperly imposed a long list of community custody conditions regarding possessing or
consuming alcohol or entering “location[s] where alcohol is the primary product,” supervision
fees, psychosexual and substance abuse evaluations, “sexually explicit materials that are intended
for sexual gratification,” access to social media, frequenting areas where children congregate,
notifying his community corrections officer of romantic relationships, curfew, polygraph and
plethysmograph examinations, electronic home detention, urinalysis testing, and no contact with
victims or their families. Br. in Supp. of Personal Restraint Pet. at 15, 18 (underscore omitted). No. 56044-5-II
RCW 10.73.090(1) provides:
No petition or motion for collateral attack on a judgment and sentence in a criminal case may be filed more than one year after the judgment becomes final if the judgment and sentence is valid on its face and was rendered by a court of competent jurisdiction.
Curran’s judgment and sentence became final on January 7, 2019, when the trial court entered it.
RCW 10.73.090(3)(a). He did not file his petition until July 13, 2021. Unless he shows that one of
the exceptions in RCW 10.73.100 applies or shows that the trial court lacked jurisdiction or the
judgment and sentence is facially invalid, his petition is time barred. In re Pers. Restraint of
Hemenway, 147 Wn.2d 529, 532-33, 55 P.3d 615 (2002). Because several of Curran’s claims
address neither facial invalidity nor trial court jurisdiction, and he does not show that they meet
the RCW 10.73.100 exceptions, his petition is “mixed.” In re Pers. Restraint of Stenson, 150
Wn.2d 207, 220, 76 P.3d 241 (2003). Only those claims that would render the judgment and
sentence facially invalid or would establish the trial court lacked jurisdiction will be addressed
where a petitioner has brought a mixed petition with multiple claims. Id.
A showing that the sentencing court imposed a sentence in excess of its statutory authority
will demonstrate facial invalidity. In re Pers. Restraint of Coats, 173 Wn.2d 123, 136, 267 P.3d
324 (2011). Even if Curran demonstrates a facial error, he still “must show actual and substantial
prejudice” or “that a fundamental defect of a nonconstitutional nature has resulted in a complete
miscarriage of justice” to obtain relief. In re Pers. Restraint of Yates, 180 Wn.2d 33, 41, 321 P.3d
1195 (2014); In re Pers. Restraint of Carrier, 173 Wn.2d 791, 818, 272 P.3d 209 (2012).
“The term of community custody . . . shall be reduced by the court whenever an offender's
standard range term of confinement in combination with the term of community custody exceeds
the statutory maximum for the crime as provided in RCW 9A.20.021.” RCW 9.94A.701(10). The
statutory maximum sentence for second degree child molestation is 120 months. RCW
2 No. 56044-5-II
9A.44.086(2), .20.021(1)(b). Curran’s sentence of confinement and community custody totals 123
months. The State concedes that the 123-month total sentence exceeds the statutory maximum and
renders Curran’s judgment and sentence facially invalid. Therefore, this issue is not time barred.
Stenson, 150 Wn.2d at 220; In re Pers. Restraint of McWilliams, 182 Wn.2d 213, 215-16, 340 P.3d
223 (2014). And the error is a fundamental defect resulting in a complete miscarriage of justice
because the practical effect is a total sentence beyond the statutory maximum. See Carrier, 173
Wn.2d at 818.
We therefore accept the State’s concession. Where the trial court erroneously imposed a
sentence in excess of the statutory maximum, we must remand for the trial court to amend the
community custody term. RCW 9.94A.701(10); State v. Boyd, 174 Wn.2d 470, 473, 275 P.3d 321
(2012).
Curran also contends that his conviction and the duration of his sentence were invalid for
other reasons, but none would render his judgment and sentence facially invalid, nor does he show
that any of the exceptions to the one-year time bar in RCW 10.73.100 applies. Thus, none of these
claims warrants relief.
Finally, Curran asserts that multiple conditions of community custody imposed as part of
his judgment and sentence are invalid. To the extent he argues that certain community custody
conditions fail to comply with statutes or are not crime related, Curran does not show how those
claims survive the time bar. Thus, these arguments fail.
An unconstitutional community custody condition can render a judgment and sentence
facially invalid in some circumstances. See State v. Johnson, 197 Wn.2d 740, 745-46, 487 P.3d
893 (2021); State v. Fletcher, 19 Wn. App. 2d 566, 573-75, 497 P.3d 886 (2021). Curran contends
that the condition requiring evaluation and compliance with treatment recommendations is
3 No. 56044-5-II
unconstitutionally vague, but he fails to explain how this condition is constitutionally improper.
He also asserts that a condition requiring him to stay out of areas frequented by children and
providing an illustrative list is unconstitutionally vague and overbroad. But the Washington
Supreme Court recently rejected this argument in State v. Wallmuller, 194 Wn.2d 234, 245, 449
P.3d 619 (2019). Curran mentions that the prohibitions on possessing sexually explicit materials
and accessing social media are overbroad. But the limitation on social media access is not an
unconstitutional total ban on Internet use and we cannot conclude from the face of the judgment
and sentence that the social media limitation was improperly broad under the facts of Curran’s
case. See Johnson, 197 Wn.2d at 745-46. And prohibiting a sex offender from possessing sexually
explicit materials intended for sexual gratification is not unconstitutionally vague or overbroad.
See State v. Hai Min Nguyen, 191 Wn.2d 671, 681, 425 P.3d 827 (2018). Thus, Curran fails to
show that any of these conditions is constitutionally improper or that they render his judgment and
sentence facially invalid.
Curran challenges the condition requiring him to report romantic relationships to his
community corrections officer. Division Three has held that the term “‘romantic relationships’” in
a community custody condition is unconstitutionally vague, while “‘dating relationships’” is a
permissible replacement. State v. Peters, 10 Wn. App. 2d 574, 591, 455 P.3d 141 (2019); see also
Hai Min Nguyen, 191 Wn.2d at 683. We can determine the unconstitutionality of this condition
from the face of the judgment and sentence. Accordingly, on remand, the trial court should
substitute the term “dating relationship” into Curran’s community custody conditions in place of
“romantic relationship.”
4 No. 56044-5-II
The remainder of Curran’s petition addresses claims that do not relate to facial invalidity
of his judgment and sentence. These claims are time barred and we cannot review them. Stenson,
150 Wn.2d at 220.
In sum, we grant Curran’s petition in part and remand his judgment and sentence for the
trial court to amend the community custody term and amend the condition that addresses romantic
relationships. We dismiss the remainder of the petition because his remaining claims are all
untimely.
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.
Glasgow, C.J. We concur:
Worswick, J.
Veljacic, J.