State Of Washington, Res/cross-app. v. Thomas Michael Jones, App/cross-res.

• Court: Court of Appeals of Washington
• Decided: August 5, 2019
• Docket: 78511-7
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) No. 78511-7-1 ) Respondent, ) ) DIVISION ONE v. ) ) THOMAS MICHAEL JONES, ) UNPUBLISHED OPINION ) Appellant. ) FILED: August 5, 2019 )

MANN, A.C.J. — As a condition of Thomas Jones's community custody, the trial

court prohibited Jones from contacting minor children without the approval of his

supervising Community Corrections Officer(CCO). The court also assessed a $200 •

criminal filing fee against Jones. Jones argues that the community custody condition

violates his fundamental right to parent his children because it prohibits his children

from visiting him while he is incarcerated and that the criminal filing fee was erroneous.

Because the community custody condition does not take effect until after Jones is

released from confinement, it does not violate his constitutional rights. We affirm that

part of his sentence. But we reverse in part and remand to the trial court to remove the

criminal filing fee. No. 78511-7-1/2

1.

Between 2015 and 2017, Jones sexually abused two minor children numerous

times. After the mother of Jones's victims discovered what happened, the State

charged Jones with first degree rape of a child and first degree child molestation.

Jones pleaded guilty to both charges.

On May 14, 2018, the trial court sentenced Jones. The court denied Jones's

request for a Special Sex Offender Sentencing Alternative, RCW 9.94A.670. Instead,

the court sentenced Jones to indeterminate sentences of between 140 months and life

on count one and between 78 months and life on count two. The court assessed a

$200 criminal filing fee against Jones.

The court also sentenced Jones to a lifetime term of community custody upon his

release from confinement. The court ordered Jones to "comply with Additional

Conditions of Community Custody as set forth in Appendix 4.2." Additional Condition of

Community Custody number 4 reads:"Do not initiate or prolong contact with minor

children without the presence of an adult who is knowledgeable of the offense and has

been approved by the supervising [CCO]."

Jones argues that community custody condition number 4 violates his

fundamental right to parent his children. He argues that because the condition is a

"crime-related prohibition," it is operable immediately. RCW 9.94A.505(9). He asserts

that since he will not be assigned a CCO until he is released from confinement, no CCO

will be available to approve his visitations with his minor children while he is confined,

-2- No. 78511-7-1/3

and therefore the condition actually prohibits any visitation with his children while he is

incarcerated. We disagree)

Jones's argument is based on a misreading of his sentence because the

condition he takes umbrage with is not operable until his release. Jones's judgment and

sentence reads Title term of community custody begins immediately upon release from

confinement or at the time of sentencing if no confinement is ordered[,]" and lists

condition number 4 as an "additional condition[] of community custody." Since the trial

court ordered Jones to be confined, his term of community custody does not begin until

his release from confinement. As condition number 4 is a condition of community

custody, it necessarily cannot begin to operate before Jones's term of community

custody begins. Therefore, condition number 4 does not prohibit visitation between

Jones and his minor children while Jones is confined.

111.

Jones also argues that the trial court erred by assessing a $200 criminal filing fee

against him because he is indigent. In light of our Supreme Court's opinion in State v.

Ramirez, 191 Wn.2d 732, 426 P.3d 714(2018), the State concedes that this case

should be remanded so the trial court can remove the criminal filing fee. We accept the

State's concession.

Jones further argues that since we will be remanding his case due to the filing

fee, we should instruct the trial court to clarify that community custody condition number

4 does not begin to operate until his release. See State v. Broadawav, 133 Wn.2d 118,

1 Jones only argues that this provision violates his fundamental right to parent his children during his confinement, and therefore we do not consider whether it may violate his constitutional rights during his term of community custody after he is released. -3- No. 78511-7-1/4

136, 942 P.2d 363(1997)("Where a sentence is insufficiently specific about the period

of community placement required by law, remand for amendment of the judgment and

sentence to expressly provide for the correct period of community placement is the

proper course."). We find such a remand unnecessary where, as here, the judgment

and sentence unambiguously provides that Jones's term of community custody, and

therefore all of the community custody provisions, does not begin until Jones's release.

As Jones's sentence is already clear, no further clarity is necessary.

We affirm in part, reverse in part, and remand this case to the trial court to , remove the criminal filing fee.

7,044j A.G.,7": 171

WE CONCUR:

-4-