FILED DECEMBER 23, 2025 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) ) No. 40009-3-III Respondent, ) ) v. ) ) FERENCZ GABOR VEREBI, ) UNPUBLISHED OPINION ) Appellant. )
COONEY, J. — A jury found Ferencz Verebi guilty of six counts of possession of
depictions of a minor engaged in sexually explicit conduct in the first degree. Mr. Verebi
maintained his innocence at sentencing. At sentencing, the court noted that Mr. Verebi
lacked recognition of his sexually deviant behavior, thereby making him unamenable to
treatment and sentenced Mr. Verebi to a standard range sentence of 90 months of
incarceration and 36 months of community custody, among other sanctions. No. 40009-3-III State v. Verebi
Mr. Verebi appeals, arguing his right against self-incrimination was violated at
sentencing, multiple conditions of community custody should be struck or amended, and
his attorney was ineffective for failing to object to imposition of the improper community
custody conditions. We disagree that Mr. Verebi’s right against self-incrimination was
violated or that his counsel was ineffective. We remand for one condition of community
custody to be amended and for another to be struck from Appendix H to the judgment
and sentence.
BACKGROUND
In 2018, Mr. Verebi was investigated by the Federal Bureau of Investigations and
the Douglas County Sheriff’s Office for suspected possession of child pornography.
Detective Jason DeMyer discovered child pornography was associated with an address in
East Wenatchee, Washington, where Mr. Verebi resided. Mr. Verebi’s home was
searched by Douglas County Sheriff deputies following the issuance of a search warrant.
During the search, police seized a short barrel shotgun, two computers, and other
electronic devices. Child pornography was discovered on the seized computers.
Mr. Verebi was charged with six counts of possession of depictions of a minor
engaged in sexually explicit conduct in the first degree. 1 While Mr. Verebi was in jail, he
1 Mr. Verebi was also charged with possession of an unlawful firearm but that charge was dismissed at trial for insufficient evidence.
2 No. 40009-3-III State v. Verebi
called his brother and recommended he “go buy some kind of software that does PC
cleaning beyond the normal deleting of internet history and stuff” and “set it up on a
schedule weekly, every three days.” Rep. of Proc. (RP) at 294. Mr. Verebi also spoke to
his brother in Hungarian and asked him to go to his home, look for the “four” guns, and
take “the computer.” RP at 425. His brother responded that the computer “was . . .
gone.” RP at 425. Recordings of these phone calls were played for the jury at trial and
interpreted where necessary.
The case was tried to a jury. The jury found Mr. Verebi guilty of all six counts of
possession of depictions of a minor engaged in sexually explicit conduct.
At sentencing, Mr. Verebi stated:
I do stand on my innocence. With all due respect to the system, we know it is not perfect and things can happen. I was always good through school. I never had a problem in school. I’ve been gainfully employed my entire life. I don’t have a criminal history. I have family and friends that are sticking by me and believe in me. So, I have enough to get me through.
So, I’m just gonna ask that you’re leniency—for your leniency in this, and I’ll transfer it back to you, Your Honor.
RP at 656-57.
In imposing its sentence, the court noted that the Department of Corrections
(DOC) “presentence investigation” stated, “since [Mr.] Verebi is not admitting to the
offense, he will more than likely be deemed not amenable to treatment,” and “[i]f [Mr.]
3 No. 40009-3-III State v. Verebi
Verebi is not amendable to treatment then he will not be able to get any help to address
the sexual deviant behaviors and his risk to reoffend will be higher.” RP at 658.
The court went on to state:
I think that’s really what that DOC report was—was touching on is if—when it says if [Mr.] Verebi is not amenable to treatment then he will not be able to get any help to address his sexual deviant behaviors and his risk to reoffend will be higher. So, it strikes me that a request for a leniency, a request to go below the standard range doesn’t seem to me to be appropriate.
It—it just is what it is. I don’t begrudge Mr. Verebi for wanting a trial, that’s—that’s not a problem. We don’t punish folks for going to trial. But, on the other hand, when there’s a request for leniency, it’s—it makes it a tougher argument to argue I’m innocent. This is all, you know, this is not a legitimate guilty verdict, but nevertheless I’m asking for your leniency. It’s just a tough sell.
RP at 659. The court also considered the fact that Mr. Verebi asked “his brother to go to
the house and obtain the firearm and one or more computers.” RP at 660.
The court sentenced Mr. Verebi to “more or less the middle of the [standard]
range” of “90 months on each of the six counts to be served concurrent.” RP at 660-61.
The court ordered Mr. Verebi to serve 36 months of community custody and comply with
the conditions listed in Appendix H to the judgment and sentence. Mr. Verebi’s attorney
was successful in objecting to the imposition of two community custody conditions.
Mr. Verebi timely appeals.
4 No. 40009-3-III State v. Verebi
ANALYSIS
SELF-INCRIMINATION
Mr. Verebi argues his right against self-incrimination was violated at sentencing
when the court denied his request for “leniency” based on his failure to show remorse or
take responsibility for his crimes. He requests we remand for a resentencing. We
disagree Mr. Verebi’s right against self-incrimination was violated.
As a preliminary matter, the State argues Mr. Verebi’s sentence is not eligible for
appeal because it is within the standard range. We disagree. Generally, a defendant may
not appeal a standard range sentence. State v. Williams, 149 Wn.2d 143, 146, 65 P.3d
1214 (2003); RCW 9.94A.585(1). However, a defendant is “not precluded from
challenging on appeal the procedure by which a sentence within the standard range was
imposed.” State v. Ammons, 105 Wn.2d 175, 183, 713 P.2d 719 (1986). Moreover,
“constitutional challenges to a standard range sentence are always allowed, regardless of
the clear prohibition of RCW 9.94A.210(1).” State v. Mail, 121 Wn.2d 707, 712, 854
P.2d 1042 (1993). Mr. Verebi challenges the procedure by which his sentence was
imposed. His argument focuses on the court allegedly basing its sentencing decision on
his lack of remorse or admission of guilt. He argues the mechanism used to impose his
sentence violated his constitutional right against self-incrimination. Thus, his standard
range sentence is appealable.
5 No. 40009-3-III State v. Verebi
Turning to the merits, the federal and state constitutions guarantee an accused
the right against self-incrimination. U.S. CONST. amend V; WASH. CONST. art. I, § 9.
The right against self-incrimination extends to sentencing proceedings. Mitchell v.
United States, 526 U.S. 314, 326-27, 119 S. Ct. 1307, 143 L. Ed. 2d 424 (1999).
Postconviction silence is also protected where a defendant’s testimony may result in
greater punishment. State v. Strauss, 93 Wn. App. 691, 698, 969 P.2d 529 (1999).
Mr. Verebi primarily relies on State v. Sandefer, 2 State v. Garibay, 3 State v.
Ramires, 4 and a Montana case, State v. Shreves, 5 to support his contention that his right
against self-incrimination was violated. Garibay and Ramires are distinguishable
because each dealt with the trial court’s reliance on the defendant’s silence or lack of
remorse for the imposition of an exceptional sentence. Garibay, 67 Wn. App. at 782;
Ramires, 109 Wn. App. at 765-66. In Garibay, this court held a trial court may not rely
on a defendant’s silence as the basis to impose an exceptional sentence. 67 Wn. App. at
782. In Ramires, this court noted:
Although Mr. Ramires did not apologize, show remorse, or accept responsibility for his actions, it is consistent with his failed defense and right to maintain his innocence. While a failed defense may at times be
2 79 Wn. App. 178, 900 P.2d 1132 (1995). 3 67 Wn. App. 773, 841 P.2d 49 (1992), abrogated by State v. Moen, 129 Wn.2d 535, 919 P.2d 69 (1996). 4 109 Wn. App. 749, 37 P.3d 343 (2002). 5 313 Mont. 252, 60 P.3d 991 (2002).
6 No. 40009-3-III State v. Verebi
used to justify a mitigated exceptional sentence, the State points to no case, and we can find none supporting the proposition that a failed defense may serve as the basis for an aggravated exceptional sentence. To follow such a course may serve to chill a defendant’s right to present a defense in the first place and maintain innocence throughout the criminal process, including appeal.
109 Wn. App. at 766.
Relatedly, the issue in Sandefer was whether the sentencing court improperly
considered the defendant’s decision to stand trial in imposing its sentence. 79 Wn. App.
at 181. There, the trial court imposed the maximum standard range sentence,
commenting:
I frequently . . . in sentencing within the standard range give a defendant a more lenient sentence if the defendant has entered a plea of guilty. And the predominant reason I do that, not because I’m trying to be nice to a defendant, but I know that defendants who do enter pleas of guilty, in cases of this nature, it saves the parent and the child a lot of grief, in that they don’t have to go through this experience, this heart rendering experience in the courtroom in having a poor little girl testify in front of a whole bunch of strangers about what happened to her.
Mr. Sandefer, if you entered a plea of guilty, I very possibly would have given you a more lenient sentence towards the lower end of the range, because of saving the victim being victimized by going through this court process. You didn’t, and I’m not going to give you that break.
Id. at 180. This court held the sentencing court’s remarks did not “indicate improper
consideration” of Mr. Sandefer’s right to stand trial. Id. at 184. The court noted that
“[a]part from correctly explaining why Sandefer could no longer demand the benefit of a
7 No. 40009-3-III State v. Verebi
plea offer he earlier rejected, nothing in the court’s remarks affirmatively indicate[] that
the court improperly considered Sandefer’s decision to stand trial.” Id.
Finally, in Shreves, which is not binding on this court, the Montana Supreme
Court addressed “whether the rule against a negative inference from silence at a criminal
trial applies to sentencing as well, when the defendant has maintained his innocence
throughout the proceedings.” 313 Mont. at 258. The Montana Supreme Court stated:
While we agree with the State that rehabilitation is an important factor to consider at sentencing, and, while we agree that lack of remorse can be considered as a factor in sentencing, we cannot uphold a sentence that is based on a refusal to admit guilt. To do so would reflect an inquisitorial system of justice rather than our adversarial system.
Id. at 260. The Supreme Court stated that the trial court improperly penalized Mr.
Shreves for maintaining his innocence but added, “we make clear that the trial court can
consider as a sentencing factor a defendant’s lack of remorse as evidenced by any
admissible statement made by the defendant pre-trial, at trial, or post-trial.” Id.
Here, the trial court did not base Mr. Verebi’s sentence solely on his silence or
refusal to admit guilt. Instead, the court relied, in part, on Mr. Verebi’s posttrial
statements, but also on the DOC presentence investigation report, and the evidence at
trial, including the fact that Mr. Verebi asked his brother “to go to the house and obtain
the firearm and one or more computers.” RP at 660. The court noted that the DOC
report stated Mr. Verebi will be less amendable to treatment if he does not admit to the
offenses. Albeit the court stated that Mr. Verebi’s request for a sentence “below the
8 No. 40009-3-III State v. Verebi
standard range” was not “appropriate” and a “tough sell,” but it also made clear that it did
not “begrudge Mr. Verebi for wanting a trial.” RP at 659. Ultimately, the court imposed
a mid-range sentence. There is no indication the trial court based its sentencing decision
solely on Mr. Verebi’s silence or refusal to admit guilt. The trial court properly
considered multiple factors in imposing its sentence and, in any event, he was sentenced
well within the standard range.
Mr. Verebi’s right against self-incrimination was not violated during his
sentencing.
CONDITIONS OF COMMUNITY CUSTODY
Mr. Verebi argues numerous community custody conditions, delineated in
Appendix H to the judgment and sentence, are unconstitutional or not crime related and
must either be amended or struck. The State concedes that some conditions should be
amended or struck but argues others are not ripe and should not be addressed. We
remand for condition 4, requiring Mr. Verebi to pay DOC supervision fees, to be struck
and for condition 12, pertaining to Mr. Verebi’s Internet use, to be amended. We affirm
the court’s imposition of all other challenged conditions.
The Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW states that “when
a court sentences a person to a term of community custody, the court shall impose
conditions of community custody.” State v. Peters, 10 Wn. App. 2d 574, 580-81, 455
P.3d 141 (2019). Pursuant to the SRA, community custody provisions are either
9 No. 40009-3-III State v. Verebi
(1) mandatory, (2) waivable, (3) discretionary, or (4) special conditions. RCW
9.94A.703(1)-(4).
Community custody conditions may be challenged for the first time on appeal and,
if the challenge involves a legal question that can be resolved on the existing record, they
may be challenged before enforcement. State v. Wallmuller, 194 Wn.2d 234, 238, 449
P.3d 619 (2019). We review the imposition of community custody conditions for an
abuse of discretion. State v. Padilla, 190 Wn.2d 672, 677, 416 P.3d 712 (2018). “A trial
court abuses its discretion if it imposes an unconstitutional condition.” Id. “[W]e review
constitutional questions de novo.” Wallmuller, 194 Wn.2d at 238.
Geographic Restriction (Condition 8)
Mr. Verebi argues condition 8 is unconstitutionally vague. The State concedes.
However, we disagree with both the State and Mr. Verebi and hold the condition is not
unconstitutionally vague.
Condition 8 reads: “Remain within geographic boundaries, as set forth in writing
by the Department of Correction Officer.” Clerk’s Papers (CP) at 95.
A community custody condition is unconstitutionally vague under the due process
clause of the Fourteenth Amendment to the United States Constitution and article I,
section 3, of the Washington Constitution “‘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
10 No. 40009-3-III State v. Verebi
enforcement.’” Wallmuller, 194 Wn.2d at 238-39 (quoting Padilla, 190 Wn.2d at 677).
“[A] community custody condition ‘is not unconstitutionally vague merely because a
person cannot predict with complete certainty the exact point at which [their] actions
would be classified as prohibited conduct.’” State v. Valencia, 169 Wn.2d 782, 793, 239
P.3d 1059 (2010) (quoting State v. Sanchez, 148 Wn. App. 302, 321, 198 P.3d 1065
(2009), rev’d, 169 Wn.2d 782, 239 P.3d 1059 (2010)).
First, our Supreme Court has stated that “[w]hile the right to travel is recognized
as a fundamental right of citizenship, this right is affected by a criminal conviction.” In
re Pers. Restraint of Winton, 196 Wn.2d 270, 274, 474 P.3d 532 (2020). Infringement on
an offender’s right to travel is authorized while the offender is serving community
custody. Id. at 275.
Recently, in State v. Lundstrom, Division One of this court held the same
community custody condition imposed on Mr. Verebi was not vague. __ Wn. App. __,
572 P.3d 1243 (2025). The court in Lundstrom noted that the condition was authorized
under RCW 9.94A.703(1)(b), (3)(a), and RCW 9.94A.704(3)(b). RCW 9.94A.703(3)(a)
authorizes the trial court to order an offender to “[r]emain within, or outside of, a
specified geographical boundary.” Similarly, RCW 9.94A.704(3)(b) states when DOC
supervises an offender, “the department shall at a minimum instruct the offender to . . .
[r]emain within prescribed geographical boundaries.”
11 No. 40009-3-III State v. Verebi
The Lundstrom court also noted that the community corrections officer’s authority
to impose conditions is limited and must be “‘reasonably related to . . . [t]he crime of
conviction, the offender’s risk of reoffending, or the safety of the community.’” 572
P.3d at 1245-46 (quoting RCW 9.94A.704(7)(b)). Further, if an offender believes a
geographic restriction is not related to one of these categories, the offender has the right
to pursue administrative review. Id. at 1246.
We follow the reasoning in Lundstrom. The condition mandating that Mr. Verebi
stay within a geographic boundary prescribed by his community corrections officer is not
unconstitutionally vague because the statutes authorizes the DOC to set geographic
boundaries and because such restrictions are limited in application and subject to review. 6
Restrictions on Contact with Minors (Conditions 23 & 24)
Next, Mr. Verebi argues the court erred when it imposed community custody
conditions 23 and 24 because they interfere with his right to parent if he has children in
6 Mr. Verebi correctly points out that at least two unpublished decisions out of this division held the condition was unconstitutionally vague. In re Pers. Restraint of Bratcher, No. 39758-1-III, slip op. at *2-3 (Wash. Ct. App. Apr. 2, 2024) (unpublished), https://www.courts.wa.gov/opinions/pdf/397581_unp.pdf; In re Pers. Restraint of Alaniz, No. 39631-2-III, slip op. at *6 (Wash. Ct. App. Mar. 21, 2024) (unpublished), https://www.courts.wa.gov/opinions/pdf/396312_unp.pdf. However, those unpublished opinions have no precedential value, and we instead are persuaded by Division One’s more recent decision in Lundstrom.
12 No. 40009-3-III State v. Verebi
the future. The State responds that this condition is not ripe for review. We agree with
the State.
Condition 23 states:
Have no direct and/or indirect contact with minors (underage 18) without a Supervisor of Contact who has been approved in writing by [community corrections officer] and treatment provider (when active in treatment). Contact during and for the sole purposes of employment duties, that is approved by [community corrections officer] with a safety plan, is permitted without a Supervisor of Contact being present.
CP at 95-96. Condition 24 states: “Do not hold any position of authority or trust
involving minors, includes providing oversight to minors, employment, self-employment,
and/or volunteer positions.” CP at 96. Mr. Verebi contends the court erred in imposing
these conditions without acknowledging his constitutional right to parent and without
modifying the conditions to account for children he may have in the future. Because
Mr. Verebi does not have children, this condition is not ripe for review.
In determining whether a pre-enforcement challenge to a community custody
condition is ripe for review, we determine whether “‘the issues raised are primarily
legal, do not require further factual development, and the challenged action is final.’”
Valencia, 169 Wn.2d at 786 (quoting State v. Bahl, 164 Wn.2d 739, 751, 193 P.3d 678
(2008)). We also consider the hardship to the defendant if the challenged condition is not
reviewed on appeal. State v. Cates, 183 Wn.2d 531, 534, 354 P.3d 832 (2015).
13 No. 40009-3-III State v. Verebi
While the challenged action is final and the claim raises primarily legal issues, it
requires further factual development because Mr. Verebi does not presently have
biological children nor is there evidence he is expecting a child. Furthermore, any
hardship Mr. Verebi may face is insufficient to justify review because there is currently
no parent-child relationship that could be affected by the condition, and Mr. Verebi may
seek modification of the condition via the mechanism provided in RCW 9.94A.709(2)(a)
if he does have a child while on community custody.
Because Mr. Verebi’s challenge to conditions 23 and 24 is not ripe, we decline
review.
Condition Related to Controlled Substances (Condition 3)
Mr. Verebi next challenges a community custody condition ordering him not to
possess or consume controlled substances because it is not crime related. The State
concedes. However, we decline to remand for the trial court to strike this condition
because it need not be crime related to be imposed.
Condition 3 states: “Not possess or consume controlled substances except pursuant
to lawfully issued prescriptions.” CP at 95. Mr. Verebi argues there is no evidence drug
use contributed to his crimes. However, his argument fails because this condition need
not be crime related in order for the court to impose it.
Discretionary community custody provisions may be imposed under certain
circumstances depending on the subsection of the statute on which they are based. For
14 No. 40009-3-III State v. Verebi
example, some discretionary conditions must be crime related. See RCW
9.94A.703(3)(c), (f) (“crime-related treatment” and “crime-related prohibitions”).
However, other conditions only need to have a loose connection to the convicted offense.
See State v. Geyer, 19 Wn. App. 2d 321, 326, 496 P.3d 322 (2021); see RCW
9.94A.703(3)(b), (d) (“Refrain from direct or indirect contact with the victim of the crime
or a specified class of individuals” and “Participate in rehabilitative programs or
otherwise perform affirmative conduct related to the circumstances of the offense, the
offender’s risk of reoffending, or the safety of the community.”). Finally, some
conditions do not require any particular connection. See RCW 9.94A.703(3)(a), (e)
(“Remain within, or outside of, a specified geographic boundary” and “Refrain from
possessing or consuming alcohol.”).
Moreover, a court is authorized to order that an offender “[c]omply with any
crime-related prohibitions.” RCW 9.94A.703(3)(f). Crime-related prohibitions are those
that prohibit “conduct that directly relates to the circumstances of the crime for which the
offender has been convicted.” RCW 9.94A.030(10). If there is no evidence in the record
linking the circumstances of the crime to the particular condition, the court must strike
the challenged condition. Padilla, 190 Wn.2d at 683.
For crime-related challenges, a “‘reasonable relationship’” must exist between
the crime of conviction and the community custody condition. State v. Nguyen, 191
Wn.2d 671, 684, 425 P.3d 847 (2018) (quoting State v. Irwin, 191 Wn.2d 22, 37, 846
15 No. 40009-3-III State v. Verebi
P.2d 1365 (1993)). That is, “there must be ‘some basis for the connection.’” Id.
(quoting Irwin, 191 Wn.2d at 657). We will review the “factual basis for a trial court’s
implicit finding that a condition is crime related using a ‘substantial evidence’ standard.”
Peters, 10 Wn. App. 2d at 591.
As discussed above, some conditions must be crime related while others need not
be. RCW 9.94A.703(2)(c) is a waivable condition that states a court shall order an
offender to “[r]efrain from possessing or consuming controlled substances.” A waivable
condition does not have to be crime related in order to be imposed. In re Pers. Restraint
of Brettell, 6 Wn. App. 2d 161, 173, 430 P.3d 677 (2018).
Our Supreme Court recently clarified this issue and held “it is undisputed” that
“conditions prohibiting alcohol and drug use [are] validly imposed pursuant to [a]
sentencing court’s statutory authority.” State v. Nelson, 4 Wn.3d 482, 503-04, 565 P.3d
906 (2025). As such, condition 3 is valid.
Condition Prohibiting Internet Access (Condition 12)
Mr. Verebi argues the community custody condition prohibiting him from using
the Internet unless preapproved and under conditions specified by his community
corrections officer or treatment provider is unconstitutionally vague, overbroad, and
violates his rights under the First Amendment to the United States Constitution and
article I, section 7 of the Washington State Constitution. The State concedes. We
remand for the condition to be amended.
16 No. 40009-3-III State v. Verebi
Condition 12 states: “Do not access the internet unless pre-approved and under the
conditions specified by your community corrections officer and/or treatment provider, if
applicable.” CP at 95.
First, Mr. Verebi argues the condition is unconstitutionally vague. We agree the
condition is vague because it “does not provide sufficiently ascertainable standards to
protect against arbitrary enforcement.” Padilla, 190 Wn.2d at 677. The community
correction officer’s discretion to impose conditions on Internet use “only makes the
vagueness problem more apparent, since it virtually acknowledges that on its face it does
not provide ascertainable standards for enforcement.” Bahl, 164 Wn.2d at 758.
Second, Mr. Verebi contends the condition is unconstitutionally overbroad and
interferes with his First Amendment rights. In State v. Johnson, our Supreme Court
analyzed a community custody condition prohibiting the defendant from using the
Internet unless authorized by his community custody officer and through approved filters.
197 Wn.2d 740, 744, 487 P.3d 893 (2021). There, Mr. Johnson challenged the condition
as being unconstitutionally vague and overbroad. Id. at 745-50. In analyzing
overbreadth, the court recognized some of the SRA’s stated goals were to “prevent[]
recidivism, protect[] the public, and provid[e] offenders with opportunities to improve
themselves.” Id. at 745. It noted Mr. Johnson, like Mr. Verebi, committed his crimes
using the Internet, and a “proper filter restricting his ability to use the internet to solicit
children or commercial sexual activity will reduce the chance he will recidivate and will
17 No. 40009-3-III State v. Verebi
also protect the public.” Id. at 745-46. Moreover, the Johnson court distinguished the
condition analyzed by the United States Supreme Court in Packingham and found the
condition at issue was “significantly narrower than the statute struck” in that case. Id. at
746 (citing Packingham v. North Carolina, 582 U.S. 98, 137 S. Ct. 1730, 198 L. Ed. 2d
273 (2017)). Thus, it found the condition was not overbroad. Id. at 746-47.
Mr. Verebi argues that, unlike in Johnson, the condition imposed on him is
not narrowly tailored enough to avoid violating his First Amendment rights.
Restrictions on Internet use implicate the First Amendment to the United States
Constitution. Packingham, 582 U.S. at 104. However, “the First Amendment permits
a State to enact specific, narrowly tailored laws that prohibit a sex offender from
engaging in conduct that often presages a sexual crime, like contacting a minor or using a
website to gather information about a minor.” Id. at 107. A court may restrict a
defendant’s Internet access if those restrictions are “narrowly tailored to the dangers
posed by the specific defendant.” Johnson, 197 Wn.2d at 745. We have previously held
that a blanket prohibition on using the Internet is impermissibly broad, even where, as
here, the defendant used the Internet to commit a sex offense. In re Pers. Restraint of
Sickels, 14 Wn. App. 2d 51, 73, 469 P.3d 322 (2020), abrogated by State v. J.M.-H, 4
Wn.3d 648, 566 P.3d 847 (2025). In Sickels, we endorsed the State’s suggestion that the
condition prohibiting Internet use be amended to require “no internet use of websites
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including email, to contact minors, to gather information about minors, or access personal
webpages of minors.” Id. at 71, 74.
We remand with instructions for the trial court to amend condition 12 to a more
narrowly-tailored restriction. Adopting similar language to that in Sickels would resolve
the vagueness issue and prevent interference with Mr. Verebi’s First Amendment rights.
Home Visits (Condition 18)
Mr. Verebi challenges the condition requiring him to submit to home visits,
including visual inspection of all areas he lives, as unconstitutional under the Fourth and
Fourteenth Amendments. The State responds that the issue is not ripe for review. We
agree with the State.
Condition 18 states: “Consent to DOC home visits to monitor compliance with
supervision. Home visits include access for the purposes of visual inspection of all areas
of residence in which the offender lives or has exclusive/joint control/access.” CP at 95.
Generally, warrantless searches are per se unreasonable. State v. Ladson, 138
Wn.2d 343, 349, 979 P.2d 833 (1999). However, there are some “‘carefully drawn
exceptions.’” State v. Cornwell, 190 Wn.2d 296, 301, 412 P.3d 1265 (2018) (quoting
Ladson, 138 Wn.2d at 349).
Offenders on community custody are not entitled to the full protection of article I,
section 7 of the Washington Constitution because they are persons that a court has
sentenced to confinement but who are “‘serving their time outside the prison walls.’” Id.
19 No. 40009-3-III State v. Verebi
(quoting State v. Olsen, 189 Wn.2d 118, 124-25, 399 P.3d 1141 (2017)). Thus, “it is
constitutionally permissible for a [community corrections officer] to search an individual
based only on a ‘well-founded or reasonable suspicion of a probation violation,’ rather
than a warrant supported by probable cause.” Id. at 302 (quoting State v. Winterstein,
167 Wn.2d 620, 628, 220 P.3d 1226 (2009)).
This exception is codified at RCW 9.94A.631(1), which states, “If there is
reasonable cause to believe that an offender has violated a condition or requirement of the
sentence, a community corrections officer may require an offender to submit to a search
and seizure of the offender’s person, residence, automobile, or other personal property.”
A community corrections officer “must have ‘reasonable cause to believe’ a probation
violation has occurred before conducting a search at the expense of the individual’s
privacy.” Cornwell, 190 Wn.2d at 304 (quoting RCW 9.94A.631(1)). Further, the
offender’s “privacy interest is diminished only to the extent necessary for the State to
monitor compliance with the particular probation condition that gave rise to the search.”
Id.
The same challenge to an identical home visit condition was rejected by our
Supreme Court in State v. Cates, in which the court held the challenge was not ripe for
review. 183 Wn.2d 531, 535-36, 354 P.3d 832 (2015). In Cates, the Supreme Court also
stated, “[c]ompliance here does not require Cates to do, or refrain from doing, anything
upon his release until the State requests and conducts a home visit. Cates will not ‘suffer
20 No. 40009-3-III State v. Verebi
significant risk of hardship’ if we decline to review the merits at this time.” Id. at 536
(quoting Valencia, 169 Wn.2d at 790). We are bound by Cates.
Because community custody condition 18 is not ripe for review, we decline to
remand for the condition to be struck.
Community Custody Supervision Fees (Condition 4)
Finally, Mr. Verebi challenges the imposition of community custody supervision
fees because he is indigent. The State concedes. We remand for the trial court to strike
this condition.
Condition 4 requires Mr. Verebi to “[p]ay supervision fees as determined by
the Department of Corrections.” CP at 95. Mr. Verebi was found to be indigent at
sentencing. Former RCW 9.94A.703(2) (2009) provided that “[u]nless waived by
the court, as part of any term of community custody, the court shall order an offender
to . . . (d) [p]ay supervision fees as determined by the department.” House Bill 1818
struck the language allowing a court to impose DOC supervision from the statute, and
RCW 9.94A.703 (2022) now reflects that change. Thus, the court did not have the
authority to order him to pay DOC supervision fees when Mr. Verebi was sentenced.
We remand for condition 4 to be struck from Appendix H to Mr. Verebi’s
judgment and sentence.
21 No. 40009-3-III State v. Verebi
INEFFECTIVE ASSISTANCE OF COUNSEL
Mr. Verebi argues, as an alternative, that his attorney was ineffective for failing to
object to his challenged community custody conditions. We disagree that his attorney
was ineffective.
Defendants have a constitutionally guaranteed right to effective assistance of
counsel. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22; State v. Lopez, 190 Wn.2d
104, 115, 410 P.3d 1117 (2018). A claim of ineffective assistance of counsel is an issue
of constitutional magnitude that may be considered for the first time on appeal. State v.
Nichols, 161 Wn.2d 1, 9, 162 P.3d 1122 (2007). Ineffective assistance of counsel claims
are reviewed de novo. State v. White, 80 Wn. App. 406, 410, 907 P.2d 310 (1995).
The defendant bears the burden of showing (1) that his counsel’s performance fell
below an objective standard of reasonableness based on consideration of all the
circumstances and, if so, (2) that there is a reasonable probability that but for counsel’s
poor performance, the outcome of the proceedings would have been different. State v.
McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). If either element is not
satisfied, the inquiry ends. State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009).
A defendant alleging ineffective assistance of counsel bears the burden of showing
deficient representation. McFarland, 127 Wn.2d at 335. In reviewing the record, there is
a strong presumption that counsel’s performance was reasonable. Id. “The
reasonableness of counsel’s performance is to be evaluated from counsel’s perspective at
22 No. 40009-3-III State v. Verebi
the time of the alleged error and in light of all the circumstances.” Kimmelman v.
Morrison, 477 U.S. 365, 384, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986). “When
counsel’s conduct can be characterized as a legitimate trial strategy or tactic, their
performance is not deficient.” Kyllo, 166 Wn.2d at 863. “We can presume counsel did
not request limiting instructions to avoid reemphasizing damaging evidence.” State v.
Dow, 162 Wn. App. 324, 335, 253 P.3d 476 (2011); see also State v. Yarbrough, 151 Wn.
App. 66, 210 P.3d 1029 (2009) (failure to request a limiting instruction presumed to be a
legitimate trial tactic not to reemphasize damaging evidence); State v. Kloepper, 179 Wn.
App. 343, 356, 317 P.3d 1088 (2014) (“The decision to not object to or seek a cure for
damaging evidence is a classic tactical decision.”).
Even if we find that counsel’s performance was deficient, a defendant must
affirmatively prove prejudice. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816
(1987). This requires more than simply showing that “the errors had some conceivable
effect on the outcome.” Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984). A defendant demonstrates prejudice by showing that the
proceedings would have been different but for counsel’s deficient representation.
McFarland, 127 Wn.2d at 337.
Mr. Verebi argues counsel was ineffective for failing to object to his challenged
community custody conditions. We disagree.
23 No. 40009-3-III State v. Verebi
Mr. Verebi’s attorney was not ineffective because his decision not to object could
be characterized as a legitimate trial strategy. As Mr. Verebi recognizes, his attorney did
successfully object to conditions 19 and 20. His attorney also unsuccessfully objected to
condition 21. It was a legitimate trial strategy for counsel to refrain from continued
objections to Mr. Verebi’s community custody conditions. In other words, it was a
strategic decision for counsel to quit while they were ahead. Because counsel was not
deficient, we need not analyze whether the failure to object was prejudicial.
CONCLUSION
We affirm Mr. Verebi’s sentence and remand for the trial court to amend
condition 12 to a more narrowly-tailored restriction, and to strike condition 4 from
Appendix H to the judgment and sentence.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Cooney, J.
I CONCUR:
Murphy, J.
24 NO. 40009-3-III
FEARING, J — (dissent/concurrence) I dissent from the majority’s affirmation of
the sentencing court’s imposition of community custody condition 8, the geographic
boundary restriction. I concur with the majority’s affirmation of the sentencing court’s
community custody condition 18, the submittal to home searches. The affirmation of
condition 18 obeys the Washington Supreme Court’s decade-old opinion, State v. Cates,
183 Wn.2d 531, 354 P.3d 832 (2015). Nevertheless, I write separately about condition 18
because State v. Cates contradicts fundamental principles of constitutional law and other
Supreme Court decisions on home searches.
Condition 8—Geographic Boundaries
Community custody condition 8 orders Ferencz Verebi to “remain within
geographic boundaries, as set forth in writing by the Department of Correction Officer.”
Clerk’s Papers (CP) at 95. Ferencz Verebi contends this condition violates his
constitutional right to due process because the condition imposes no ascertainable
standards on his community custody officer when the officer draws the boundaries. The
State agrees. I agree. The majority erroneously disagrees.
RCW 9.94A.703 empowers the sentencing court to impose geographic boundaries
in which the offender must stay put. In the alternative, RCW 9.94A.704(3)(b) authorizes
Department of Corrections (DOC) to instruct the offender to “remain within prescribed
geographic boundaries.” Ferencz Verebi’s sentencing court directed the DOC community
custody officer to establish the confined borders. No. 40009-3-III State v. Verebi (dissent/concurrence)
A condition of community custody is unconstitutionally vague if it either fails to
give fair warning of the forbidden conduct or fails to set ascertainable standards that will
prevent arbitrary enforcement. State v. Johnson, 197 Wn.2d 740, 747, 487 P.3d 893
(2021); State v. Padilla, 190 Wn.2d 672, 677, 416 P.3d 712 (2018). This appeal involves
the potential for arbitrary enforcement of the community custody condition.
Community custody condition 8 demands that Ferencz Verebi remain in a
geographic boundary established by his community custody officer. The condition
bestows the officer unrestrained authority. The officer could permit Verebi to travel
anywhere within the Milky Way galaxy or to constrict Verebi within a one square city
block. The officer could bidaily modify the circumscribed quarters depending on his or
her changing gastronomy.
The majority and another division writing in State v. Lundstrom, 34 Wn. App. 2d
977, 572 P.3d 1243 (2025) justify the violation of Ferencz Verebi’s due process rights by
citing RCW 9.94A.704(7)(b). This statutory subsection demands that the community
custody officer impose only conditions “reasonably related to . . . [t]he crime of
conviction, the offender’s risk of reoffending, or the safety of the community.” RCW
9.94A.704(7)(b). We know now that any geographic travel restriction meets none of
these three criteria.
The State of Washington convicted Ferencz Verebi with possession of depictions
of minors engaged in sexually explicit conduct. We do not know the victims of the crime
2 No. 40009-3-III State v. Verebi (dissent/concurrence)
or their locations such that we do not know whether any particular travel restriction
benefits the victims. The State presents no evidence that Verebi traveled to gain
possession of the child pornography let alone evidence of any location where he gained
possession. Most offenders stay at home in the basement and download the pornography
through the Internet. Thus, any restriction does not decrease recidivism. Any travel
restriction does not protect the community nor bear any relationship to the crime. DOC
may restrain Verebi’s travel inside the world wide web but not in the real world.
The majority and a sibling division, writing in State v. Lundstrom, 34 Wn. App. 2d
977 (2025) also excuse the due process violation when commenting that the offender may
challenge, according to RCW 9.94A.704(7)(b), the geographical limitation after the
community custody officer establishes the demarcations. We do not know how long this
challenge will take, but Verebi’s liberty to travel will be restricted in the meantime.
Regardless, the availability of post-deprivation procedures does not necessarily satisfy
due process dictates. Rivera-Powell v. New York City Board of Elections, 470 F.3d 458,
465 (2d Cir. 2006). Only when the State cannot anticipate and prevent a random
deprivation of a liberty interest may post-deprivation remedies satisfy due process.
Zinermon v. Burch, 494 U.S. 113, 132, 110 S. Ct. 975, 108 L. Ed. 2d 100 (1990). DOC
knows in advance that its community custody officer possessing discretion to ascertain
geographic boundaries violates constitutional standards. In fact, the State has conceded
the unconstitutionality of the community custody condition.
3 No. 40009-3-III State v. Verebi (dissent/concurrence)
Condition 18—Home Visits
Ferencz Verebi contends that community custody condition 18, which allows DOC
officers access to his residence, violates his constitutional rights under the Fourth and
Fourteenth Amendments of the United States Constitution. The State asks this court to
decline review on ripeness grounds. The majority grants the State’s request.
I am bound by State v. Cates, 183 Wn.2d 531 (2015) to join in the majority’s
refusal to address Ferencz Verebi’s challenge to a community custody condition that
declares Verebi to have consented to searches of his residence. Under Cates, the
challenge lacks the necessary maturity. I consider Cates to be wrongly decided, however.
The three dissenting justices in State v. Cates correctly reasoned that a challenge to
unlimited searches of the offender’s residence violates article I, section 7 of the
Washington Constitution and the Fourth Amendment to the United States Constitution.
More importantly, as rightly concluded by the dissenters in Cates, the challenge
is ripe for review.
The superior court sentenced Ferenz Verebi to 90 months of incarceration and 36
months of community custody thereafter. One condition during community custody
demands that Verebi:
Consent to DOC home visits to monitor compliance with supervision. Home visits include access for the purposes of visual inspection of all areas of residence in which the offender lives or has exclusive/joint control/access.
4 No. 40009-3-III State v. Verebi (dissent/concurrence)
CP at 95. Presumably Verebi remains incarcerated. Therefore, DOC has not yet sought
to enforce the challenged community custody condition.
Awkward language in the community custody condition could raise anomalies in
the future. The superior court could have written that “DOC enjoys the right to enter
Ferencz Verebi’s residence and search the premises at any time in order to monitor
compliance with supervision.” Instead, the court phrased the community custody
condition as imposing an obligation on Verebi to “consent to home visits . . . to monitor
compliance.” CP at 95. The language may be read in a variety of ways.
The majority’s dismissal of Ferencz Verebi’s challenge to the community custody
condition on ripeness grounds assumes that Verebi may challenge the constitutionality of
the search of his home at the time of the search. The plain meaning of the community
custody condition establishes, however, that Verebi, in advance, consents to any search,
regardless of whether specifically asked before entry and regardless of the reason for the
search. He has no choice but to consent when DOC seeks to enter his abode. When
consenting to a search, the offender foregoes the right to later challenge the
constitutionality of the search. State v. Bustamante-Davila, 138 Wn.2d 964, 983 P.2d 590
(1999). Thus, with the community custody condition, Verebi lacks any opportunity to
challenge a search after its completion.
On the other hand, use of the word “consent” in the community custody condition
may require that DOC, before entering Ferencz Verebi’s, must ask Verebi for consent to
5 No. 40009-3-III State v. Verebi (dissent/concurrence)
do so. In turn, since DOC must ask, Verebi may have the right to deny consent. By
denying consent, Verebi may preclude the search of his premises. Nevertheless, Verebi
probably violates the community custody condition, and the court may penalize him for
this violation.
DOC may have no legitimate grounds to enter Ferencz Verebi’s residence because
it lacks a reasonable articulable suspicion that any objects or activities inside the home
hold a nexus to a purported community custody violation. DOC might engage in a
hunting expedition. Verebi might ask DOC for the basis of entering and searching his
home and learn that DOC lacks grounds. Verebi may then justifiably reject consent.
DOC may still punish him, however, for violating the community custody condition
under which he possesses the obligation to consent to all searches. He is darned if he
consents and darned if he withholds consent.
The State does not argue against the illegality of Ferencz Verebi’s community
custody condition. The condition is unconstitutional. In the context of a community
custody violation, our Supreme Court held in State v. Cornwell, 190 Wn.2d 296, 301, 412
P.3d 1265 (2018) that article I, section 7 of the Washington Constitution requires a nexus
between the property searched and the suspected probation violation. In addition, a
community custody officer must hold reasonable cause to believe the offender committed
a probation violation before conducting a search at the expense of the individual’s
privacy. State v. Cornwell, 190 Wn.2d 296, 304 (2018). The search may diminish an
6 No. 40009-3-III State v. Verebi (dissent/concurrence)
individual’s privacy only to the extent necessary for the State to monitor compliance with
the probation condition that gave rise to the search. State v. Cornwell, 190 Wn.2d 296,
304 (2018).
Ferencz Verebi’s community custody condition violates the safeguards established
in State v. Cornwell. The condition gives community custody officers an unrestricted
right to search Verebi’s residence.
Ferencz Verebi’s community custody condition also breaches a Washington
statute. RCW 9.94A.631 provides an exception to the warrant requirement.
RCW 9.94A.631(1) reads:
If an offender violates any condition or requirement of a sentence, a community corrections officer may arrest or cause the arrest of the offender without a warrant, pending a determination by the court or by the department. If there is reasonable cause to believe that an offender has violated a condition or requirement of the sentence, a community corrections officer may require an offender to submit to a search and seizure of the offender’s person, residence, automobile, or other personal property.
The phrase “reasonable cause” in RCW 9.94A.631(1) demands the officer to have
a well-founded suspicion that a violation has occurred. State v. Jardinez, 184 Wn. App.
518, 524, 338 P.3d 292 (2014). Reasonable suspicion requires specific and articulable
facts and rational inferences. State v. Jardinez, 184 Wn. App. 518, 524 (2014). Ferencz
Verebi’s community custody condition does not comply with these statutory restrictions
on home visits.
7 No. 40009-3-III State v. Verebi (dissent/concurrence)
To repeat, the majority declines to review the constitutional challenge based on the
ripeness doctrine. A preenforcement challenge to a community custody condition is ripe
for review when the issues raised are primarily legal, do not require further factual
development, and the challenged action is final. State v. Nelson, 4 Wn.3d 482, 494, 565
P.3d 906 (2025); State v. Cates, 183 Wn.2d 531, 534 (2015); State v. Sanchez Valencia,
169 Wn.2d 782, 786, 239 P.3d 1059 (2010).
In addition, when assessing ripeness, the court must consider the hardship the
offender will face on declination of the preenforcement challenge. State v. Nelson, 4
Wn.3d 482, 494 (2025); State v. Sanchez Valencia, 169 Wn.2d 782, 789 (2010). The
Washington Supreme Court recognizes that the risk of hardship to the offender may
justify review of a challenge to a community custody condition regardless of the need for
factual development. State v. Nelson, 4 Wn.3d 482, 494 (2025); State v. Cates, 183
Wn.2d 531, 535 (2015). The risk looms greatest when the challenged conditions will
immediately restrict the offender’s conduct on release from prison. State v. Sanchez
Valencia, 169 Wn.2d 782, 791 (2010).
No facts need to be developed to declare Ferencz Verebi’s community custody
condition invalid. Verebi does not challenge the condition based on any discrete facts,
but on its face. The condition is now invalid and will remain invalid until the cows come
home no matter what action DOC takes regarding Verebi.
8 No. 40009-3-III State v. Verebi (dissent/concurrence)
A court’s invalidation of the community custody condition harms DOC none.
Even without the language in the judgment and sentence, DOC may enter and search
Ferencz Verebi’s domicile if it has reasonable suspicion that evidence inside the home
holds relevance to a community custody violation. RCW 9.94A.631(1); State v. Jardinez,
184 Wn. App. 518 (2014).
Contemporaneously on his release, Ferencz Verebi suffers limits to his liberty
based on the community custody condition. On return to his home, Verebi must pattern
his conduct on the assumption that DOC may enter his home at any time. He may as well
hand DOC a key to his residence. One may argue that Verebi should already conform his
behavior to comply with community custody conditions and to the law such that he incurs
no prejudice by unlimited searches. But American law takes a more mature approach to
individual liberties. Article I, section 7 of the Washington Constitution and
RCW 9.94A.631 demands a reasonable articulable suspicion to search even for a released
offender’s domicile. Verebi also incurs prejudice on release, because, as already noted,
he may be harmed if he consents and harmed if he denies consent. Because of this
prejudice to Verebi and because the issue is purely a legal question that needs no factual
development, this court should now strike the community custody condition.
Unfortunately, a majority of the Supreme Court, in State v. Cates, 183 Wn.2d 531
(2015), ruled that a preenforcement suit to invalidate the same community custody
condition was not ripe. Michael Cates contested a condition that read:
9 No. 40009-3-III State v. Verebi (dissent/concurrence)
You must consent to [Department of Corrections] home visits to monitor your compliance with supervision. Home visits include access for the purposes of visual inspection of all areas of the residence in which you live or have exclusive/joint control/access, to also include computers which you have access to.
State v. Cates, 183 Wn.2d 531, 533 (2015). For our purposes, the condition is identical to
Ferencz Verebi’s community custody condition. Cates argued his challenge did not
require further factual development because the condition, on its face, authorized
unconstitutional searches. When declaring the challenge premature, the Supreme Court
surprisingly wrote that the condition as written did not authorize any searches. Despite
the language demanding that Cates grant consent, the court commented that DOC must
attempt to enforce the condition by requesting a home visit. This court followed the
Cates decision in State v. Peters, 10 Wn. App. 2d 574, 455 P.3d 141 (2019).
The dissent, in State v. Cates, characterized Michael Cates’ challenge to the
community custody condition as primarily legal in nature. The dissent also reasoned that
the contest did not require further factual development. Cates did not challenge the
legality of any particular search, but the condition on its face. DOC did not need to
conduct an illegal search before the Supreme Court could resolve the constitutionality of
the condition. The language of the community custody condition demanded that Cates
consent to all entries and searches. The condition permitted searches without reasonable
cause.
10 No. 40009-3-III State v. Verebi (dissent/concurrence)
In State v. Cates, the Supreme Court held that the risk of hardship to Michael
Cates was insufficient to justify review because complying with the challenged condition
did not require the defendant to do, or refrain from doing, anything on his release until
the State requested and conducted a home visit. But, although the court suggested
otherwise, the community custody condition imposed no requirement that DOC request a
visit before doing so. The dissent in Cates correctly concluded that Michael Cates
suffered hardship. On release, Cates needed to immediately and repeatedly consent to
entry into his home. He needed to alter his behavior accordingly to avoid a violation of
the community custody condition.
Fearing, J.