IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
STATE OF WASHINGTON, No. 84675-2-I Respondent, ORDER GRANTING IN PART v. MOTION FOR RECONSIDERATION AND ERIC PETERSON, AMENDING OPINION
Appellant.
The respondent, State of Washington, has filed a motion for
reconsideration of the opinion filed August 14, 2023. The appellant, Eric
Peterson, has filed an answer. The panel has considered the motion and has
determined that the motion should be granted in part and the opinion should be
amended. Now, therefore, it is hereby
ORDERED that the motion for reconsideration is granted in part. It is
further
ORDERED that the opinion be amended as follows:
DELETE the first full paragraph, beginning at line six on page three and
ending at line twenty on page three, which reads:
Peterson also argues that the trial court erred by
ordering a condition of community custody prohibiting him from
“form[ing] relationships with families who have minor children, as
directed by the supervising Community Corrections Officer.” A No. 84675-2-I/2
community custody condition that does not provide fair warning of
proscribed behavior is unconstitutionally vague. State v. Bahl, 164
Wn.2d 739, 752-53, 193 P.3d 678 (2008). Without an objective
qualifier for the type of relationship with a family, this community
custody condition does not provide sufficiently ascertainable
standards such that Peterson could understand what is prohibited,
nor does it protect him from arbitrary enforcement. See In re Matter
of Ansell, No. 82506-2-I, slip op. at 17 (Wash. Ct. App. Jan. 18,
2022) (unpublished), https://www.courts.wa.gov/opinions/pdf
825062.pdf; State v. Martinez Zavala, No. 80817-6-I, slip op. at 9-
10 (Wash. Ct. App. April 26, 2021) (unpublished),
https://www.courts.wa.gov/opinions/pdf/808176/pdf.2 We accept
the State’s concession and remand to the lower court to provide
sufficient definiteness regarding the type and matter of relationship
prohibited.3
____________________ 2 See GR 14.1(c) (“Washington appellate courts should not,
unless necessary for a reasoned decision, cite or discuss unpublished opinions in their opinions.”). 3 Because we accept the State’s concessions herein, we
need not address Peterson’s claim that defense counsel was ineffective in failing to argue that the challenged community custody conditions were improper.
REPLACE that paragraph with the following paragraph:
Peterson also argues that the trial court erred by ordering a
condition of community custody prohibiting him from “form[ing]
2 No. 84675-2-I/3
relationships with families who have minor children, as directed by
the supervising Community Corrections Officer.” A community
custody condition that does not provide fair warning of proscribed
behavior is unconstitutionally vague. State v. Bahl, 164 Wn.2d 739,
752-53, 193 P.3d 678 (2008). In re Pers. Restraint of Ansell,
___Wn.3d ___, 533 P.3d 875, 883-84 (2023) held a substantially
similar condition was not unconstitutionally vague when read in
context. The condition is affirmed, but given our remand on other
issues, we direct that Peterson is not precluded from arguing on
remand that the condition should be made more explicit provided
any revision remains consistent with Ansell.
FOR THE COURT:
3 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 84675-2-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION ERIC PETERSON,
PER CURIAM — Eric Peterson pleaded guilty to rape of a child in the first
degree and child molestation in the first degree. The trial court denied Peterson’s
request for a Special Sex Offender Sentencing Alternative (SSOSA) and imposed
an indeterminate sentence consisting of a minimum term of 144 months
confinement and a maximum term of life, plus community custody up to the
maximum term of life. The court found Peterson indigent and imposed the
mandatory $500 victim penalty assessment (VPA) and the $100 DNA collection
fee. An agreed restitution order obligated Peterson to pay $649.10 plus interest
on the restitution principal until paid in full.
Peterson now challenges three conditions of community custody set forth
in his judgment and sentence. He also challenges certain legal financial
obligations (LFOs) based on recent statutory amendments. We remand to the trial
court for proceedings consistent with this opinion. No. 84675-2-I/2
Community Custody Conditions
Peterson contends, and the State concedes, that a provision in the
judgment and sentence requiring him to pay supervision fees as a condition of
community custody is a scrivener’s error because the record shows the trial court
did not intend to impose it. See State v. Dillon, 12 Wn. App. 2d 133, 152, 456 P.3d
1199 (2020) (striking community custody supervision fee where the record
demonstrates the court intended to impose only mandatory LFOs). We accept the
State's concession and remand for the trial court to strike the provision imposing
community custody supervision fees. 1
Peterson also challenges a condition requiring him to “[p]ay all restitution
and legal financial obligations, including the costs of crime-related counseling
and medical treatment” required by the victim. This court reviews community
custody conditions for abuse of discretion and will reverse them only if they are
“manifestly unreasonable.” State v. Sanchez Valencia, 169 Wn.2d at 791-92,
239 P.3d 1059 (2010).
Peterson argues, and the State concedes, that the requirement to pay
counseling costs should be stricken because such costs were not included in the
restitution order. Peterson further contends that the “medical treatment” portion
of the condition is problematic to the extent it could be interpreted to require him
to pay future costs of medical treatment not included in the restitution order.
1 Although the State’s concession did not address it, Peterson correctly notes that a recent change in the relevant statute, effective July 1, 2022, removed the authorization for trial courts to impose community custody supervision fees. See LAWS OF 2022, ch. 29 § 8. The amendment applies to cases on direct appeal. State v. Wemhoff, 24 Wn. App. 2d 198, 200, 519 P.3d 297 (2022). 2 No. 84675-2-I/3
However, as the State points out, the order expressly set restitution at $649.10
owed to the Crime Victim Compensation Fund for medical services rendered to
the victim on a specific date. Thus, based on the State’s concession, we remand
for the trial court to strike the language “including the costs of crime-related
counseling” from the conditions of community custody.
Peterson also argues that the trial court erred by ordering a condition of
community custody prohibiting him from “form[ing] relationships with families who
have minor children, as directed by the supervising Community Corrections
Officer.” A community custody condition that does not provide fair warning of
proscribed behavior is unconstitutionally vague. State v. Bahl, 164 Wn.2d 739,
752-53,
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
STATE OF WASHINGTON, No. 84675-2-I Respondent, ORDER GRANTING IN PART v. MOTION FOR RECONSIDERATION AND ERIC PETERSON, AMENDING OPINION
Appellant.
The respondent, State of Washington, has filed a motion for
reconsideration of the opinion filed August 14, 2023. The appellant, Eric
Peterson, has filed an answer. The panel has considered the motion and has
determined that the motion should be granted in part and the opinion should be
amended. Now, therefore, it is hereby
ORDERED that the motion for reconsideration is granted in part. It is
further
ORDERED that the opinion be amended as follows:
DELETE the first full paragraph, beginning at line six on page three and
ending at line twenty on page three, which reads:
Peterson also argues that the trial court erred by
ordering a condition of community custody prohibiting him from
“form[ing] relationships with families who have minor children, as
directed by the supervising Community Corrections Officer.” A No. 84675-2-I/2
community custody condition that does not provide fair warning of
proscribed behavior is unconstitutionally vague. State v. Bahl, 164
Wn.2d 739, 752-53, 193 P.3d 678 (2008). Without an objective
qualifier for the type of relationship with a family, this community
custody condition does not provide sufficiently ascertainable
standards such that Peterson could understand what is prohibited,
nor does it protect him from arbitrary enforcement. See In re Matter
of Ansell, No. 82506-2-I, slip op. at 17 (Wash. Ct. App. Jan. 18,
2022) (unpublished), https://www.courts.wa.gov/opinions/pdf
825062.pdf; State v. Martinez Zavala, No. 80817-6-I, slip op. at 9-
10 (Wash. Ct. App. April 26, 2021) (unpublished),
https://www.courts.wa.gov/opinions/pdf/808176/pdf.2 We accept
the State’s concession and remand to the lower court to provide
sufficient definiteness regarding the type and matter of relationship
prohibited.3
____________________ 2 See GR 14.1(c) (“Washington appellate courts should not,
unless necessary for a reasoned decision, cite or discuss unpublished opinions in their opinions.”). 3 Because we accept the State’s concessions herein, we
need not address Peterson’s claim that defense counsel was ineffective in failing to argue that the challenged community custody conditions were improper.
REPLACE that paragraph with the following paragraph:
Peterson also argues that the trial court erred by ordering a
condition of community custody prohibiting him from “form[ing]
2 No. 84675-2-I/3
relationships with families who have minor children, as directed by
the supervising Community Corrections Officer.” A community
custody condition that does not provide fair warning of proscribed
behavior is unconstitutionally vague. State v. Bahl, 164 Wn.2d 739,
752-53, 193 P.3d 678 (2008). In re Pers. Restraint of Ansell,
___Wn.3d ___, 533 P.3d 875, 883-84 (2023) held a substantially
similar condition was not unconstitutionally vague when read in
context. The condition is affirmed, but given our remand on other
issues, we direct that Peterson is not precluded from arguing on
remand that the condition should be made more explicit provided
any revision remains consistent with Ansell.
FOR THE COURT:
3 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 84675-2-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION ERIC PETERSON,
PER CURIAM — Eric Peterson pleaded guilty to rape of a child in the first
degree and child molestation in the first degree. The trial court denied Peterson’s
request for a Special Sex Offender Sentencing Alternative (SSOSA) and imposed
an indeterminate sentence consisting of a minimum term of 144 months
confinement and a maximum term of life, plus community custody up to the
maximum term of life. The court found Peterson indigent and imposed the
mandatory $500 victim penalty assessment (VPA) and the $100 DNA collection
fee. An agreed restitution order obligated Peterson to pay $649.10 plus interest
on the restitution principal until paid in full.
Peterson now challenges three conditions of community custody set forth
in his judgment and sentence. He also challenges certain legal financial
obligations (LFOs) based on recent statutory amendments. We remand to the trial
court for proceedings consistent with this opinion. No. 84675-2-I/2
Community Custody Conditions
Peterson contends, and the State concedes, that a provision in the
judgment and sentence requiring him to pay supervision fees as a condition of
community custody is a scrivener’s error because the record shows the trial court
did not intend to impose it. See State v. Dillon, 12 Wn. App. 2d 133, 152, 456 P.3d
1199 (2020) (striking community custody supervision fee where the record
demonstrates the court intended to impose only mandatory LFOs). We accept the
State's concession and remand for the trial court to strike the provision imposing
community custody supervision fees. 1
Peterson also challenges a condition requiring him to “[p]ay all restitution
and legal financial obligations, including the costs of crime-related counseling
and medical treatment” required by the victim. This court reviews community
custody conditions for abuse of discretion and will reverse them only if they are
“manifestly unreasonable.” State v. Sanchez Valencia, 169 Wn.2d at 791-92,
239 P.3d 1059 (2010).
Peterson argues, and the State concedes, that the requirement to pay
counseling costs should be stricken because such costs were not included in the
restitution order. Peterson further contends that the “medical treatment” portion
of the condition is problematic to the extent it could be interpreted to require him
to pay future costs of medical treatment not included in the restitution order.
1 Although the State’s concession did not address it, Peterson correctly notes that a recent change in the relevant statute, effective July 1, 2022, removed the authorization for trial courts to impose community custody supervision fees. See LAWS OF 2022, ch. 29 § 8. The amendment applies to cases on direct appeal. State v. Wemhoff, 24 Wn. App. 2d 198, 200, 519 P.3d 297 (2022). 2 No. 84675-2-I/3
However, as the State points out, the order expressly set restitution at $649.10
owed to the Crime Victim Compensation Fund for medical services rendered to
the victim on a specific date. Thus, based on the State’s concession, we remand
for the trial court to strike the language “including the costs of crime-related
counseling” from the conditions of community custody.
Peterson also argues that the trial court erred by ordering a condition of
community custody prohibiting him from “form[ing] relationships with families who
have minor children, as directed by the supervising Community Corrections
Officer.” A community custody condition that does not provide fair warning of
proscribed behavior is unconstitutionally vague. State v. Bahl, 164 Wn.2d 739,
752-53, 193 P.3d 678 (2008). Without an objective qualifier for the type of
relationship with a family, this community custody condition does not provide
sufficiently ascertainable standards such that Peterson could understand what is
prohibited, nor does it protect him from arbitrary enforcement. See In re Matter of
Ansell, No. 82506-2-I, slip op. at 17 (Wash. Ct. App. Jan. 18, 2022) (unpublished),
https://www.courts.wa.gov/opinions/pdf825062.pdf; State v. Martinez Zavala, No.
80817-6-I, slip op. at 9-10 (Wash. Ct. App. April 26, 2021) (unpublished),
https://www.courts.wa.gov/opinions/pdf/808176/pdf. 2 We accept the State’s
concession and remand to the lower court to provide sufficient definiteness
regarding the type and matter of relationship prohibited. 3
2 See GR 14.1(c) (“Washington appellate courts should not, unless necessary for a reasoned decision, cite or discuss unpublished opinions in their opinions.”). 3 Because we accept the State’s concessions herein, we need not address Peterson’s claim that defense counsel was ineffective in failing to argue that the challenged community custody conditions were improper. 3 No. 84675-2-I/4
Legal Financial Obligations
Peterson argues that the victim penalty assessment (VPA) should be
stricken from the judgment and sentence based on recent statutory amendments.
The victim penalty assessment was recently addressed in State v. Ellis, 530 P.3d
1048, 1057 (2023). There, Division Two observed that
ESHB 1169 added a subsection to RCW 7.68.035 that prohibits courts from imposing the VPA on indigent defendants as defined in RCW 10.01.160(3). LAWS OF 2023, ch. 449, § 1; RCW 7.68.035(4). The amended statute also requires trial courts to waive any VPA imposed prior to the effective date of the amendment if the offender is indigent, on the offender's motion. LAWS OF 2023, ch. 449, § 1; RCW 7.68.035(5)(b). This amendment will take effect on July 1, 2023. LAWS OF 2023, ch. 449.
The new law applies to cases pending on appeal. Ellis, 530 P.3d at (2023) (citing
State v. Ramirez, 191 Wn.2d 732, 748-49, 426 P.3d 714 (2018).
The State argues that Ellis reaches too far in extending the holding of
Ramirez beyond imposition of costs, but does not object to treating Peterson’s
claim as a post-sentencing VPA waiver motion newly authorized under RCW
7.68.035(5)(b). We disagree, and follow Ellis. The court found Peterson indigent,
so the VPA should be stricken on remand. 4
Peterson also argues, and the State concedes, that the DNA collection fee
should be stricken from the judgment and sentence. The legislature has eliminated
the DNA collection fee, effective July 1, 2023. LAWS OF 2023, ch. 449, § 4. Thus,
the trial court should strike the DNA collection fee as well.
4 The State, citing RAP 2.5(a), also argues that Peterson waived his claim of error regarding the VPA by failing to object below. We disagree. Courts “regularly exercise their discretion to reach the merits of unpreserved LFO arguments.” State v. Glover, 4 Wn. App. 2d 690, 693, 423 P.3d 290 (2018) (citing State v. Blazina, 182 Wn.2d 827, 832, 344 P.3d 680 (2015). 4 No. 84675-2-I/5
Lastly, Peterson argues that the case should be remanded for the trial court
to exercise its discretion on whether to impose interest on restitution. After the
court sentenced Peterson and ordered restitution, RCW 10.82.090 was amended
to allow the court to waive interest on restitution based on a variety of factors,
including indigency. See LAWS OF 2022, ch. 260, § 12 (effective January 1,
2023). The amendment applies to Peterson because his case is on direct appeal.
See Ellis, 530 P.3d at 1057. We decline the State’s invitation to depart from Ellis
or to conclude that Peterson waived this claim by failing to object below. We
therefore remand to the trial court to address whether to impose interest on the
restitution amount based on the factors set forth in RCW 10.82.090(2).
Remanded for proceedings consistent with this opinion.