IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
THE STATE OF WASHINGTON, ) No. 79736-1-I ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) JESSE LEE ALLEN, ) ) Appellant. )
BOWMAN, J. — Jesse Lee Allen appeals his sentence for two counts of
child molestation in the first degree. Allen challenges the trial court’s authority to
impose a sentence consecutive to his federal sentence for production and
possession of child pornography arising from the same incidents. He claims his
sentence goes against the intent of RCW 9.94A.589(3) because the State
purposefully delayed filing child molestation charges until after his convictions in
federal court. Allen also challenges several conditions of community custody and
the imposition of supervision fees. We affirm Allen’s sentence but remand to
strike or modify certain conditions of community custody and strike the
supervision fees.
Citations and pin cites are based on the Westlaw online version of the cited material. No. 79736-1-I/2
FACTS
In October 2016, Allen’s girlfriend discovered three videos on his cell
phone showing him sexually abusing her six-year-old daughter in Allen’s home.
She confronted Allen about the videos and he confessed to the incidents,
admitting that he “has a problem.”
The State charged Allen with one count of first degree child rape and one
count of first degree child molestation. Three weeks later, the United States
Attorney’s Office charged Allen in federal court with one count of production of
child pornography and one count of possession of child pornography because he
recorded and kept images of the sexual assaults on his cell phone.1 The next
day, the State dismissed its charges without prejudice, noting it “may refile
charges following the federal prosecution.” Allen did not object.
About 15 months later, Allen pleaded guilty as charged in federal court.
The federal judge sentenced Allen in August 2018 to 20 years of confinement on
one count and 10 years of confinement on the other count, running concurrently
with one another.2 On the same day as Allen’s federal court sentencing, the
State filed a new information charging him with two counts of first degree child
molestation stemming from the same 2016 incidents. Allen did not object to the
refiled charges.
Allen pleaded guilty to both charges in January 2019. The State’s
sentencing recommendation indicated the prosecutor planned to seek a
1 Federal jurisdiction attached because a foreign country manufactured Allen’s phone. 2 Allen did not designate his federal judgment and sentence for this appeal. We rely on the parties’ representations and the prosecutor’s certification of criminal history for the details of his federal sentence.
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sentence consecutive to that imposed for Allen’s federal convictions. The felony
plea agreement also included a “real facts” stipulation to the certification for
determination of probable cause and the prosecutor’s case summary.
The trial court sentenced Allen in March 2019. Defense counsel argued
for a sentence within the standard range. He also urged the court to impose a
sentence concurrent with Allen’s federal sentence because all charges stemmed
from “conduct that was occurring at the same time” and because Allen was
already subject to an enhanced offender score based on the federal convictions.3
Counsel argued the legislature presumed that “conduct that occurred
simultaneously” would be sentenced concurrently, despite convictions for the
conduct in different jurisdictions, and asked the judge to “look at the statutes and
to look at the legislative intent and apply that to this situation.” He asserted that a
consecutive sentence was “clearly not what the legislature intended this Court to
do.”
The State requested a sentence at the high end of the standard range to
run consecutive to Allen’s federal sentence. The State argued Allen’s conduct
warranted such a sentence. The State also pointed out that if the case had
stayed in state court, it could have charged one of the molestation counts as rape
of a child in the first degree and could have added counts for possession of
depictions of minors engaged in sexually explicit conduct. It argued that “[e]ach
3 Under RCW 9.94A.525(17), each prior conviction for a sex offense is assigned 3 points, which in Allen’s case raised his offender score from 3 to 9 on each count. His standard sentence range was 149 to 198 months.
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of those would have counted and each would have scored and the State could
have potentially asked for the three crimes or some exceptional sentence.”
The victim’s mother and grandmother addressed the court at sentencing.
They spoke about the continued impact of the crimes on the victim and their
family. Allen submitted a written letter and addressed the court on his own
behalf. Allen’s mother and brother also submitted letters supporting him and
were present at the sentencing hearing. The court imposed an indeterminate
sentence of 198 months to life on each count to run concurrently with each other
but consecutive to the federal sentence.
The prosecutor asked for the “standard” community custody conditions
listed in a preprinted form attached to the judgment and sentence as “Appendix
H.” Appendix H included a requirement that Allen “[p]ay supervision fees as
determined by the Department of Corrections [(DOC)].” The prosecutor also
asked for “special” crime-related conditions, arguing that the conditions “all . . .
have a nexus to this particular offense.” Appendix H listed the special conditions
related to “sex offenses,” requiring that Allen:
5. Inform the supervising CCO[4] and sexual deviancy treatment provider of any dating relationship. Disclose sex offender status prior to any sexual contact. Sexual contact in a relationship is prohibited until the treatment provider approves of such. .... 17. . . . Stay out of areas where children’s activities regularly occur or are occurring. This includes parks used for youth activities, schools, daycare facilities, playgrounds, wading pools, swimming pools being used for youth activities, play areas (indoor or outdoor), sports fields being used for youth sports, arcades, and any specific location identified in advance by DOC or the CCO.
4 Community corrections officer.
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.... 19. . . . Do not purchase or possess alcohol. .... 23. . . . No [I]nternet access or use, including e[-]mail, without the prior approval of the supervising CCO. 24. . . . No use of a computer, phone, or computer-related device with access to the Internet or on-line computer service except as necessary for employment purposes (including job searches). The CCO is permitted to make random searches of any computer, phone, or computer-related device to which the defendant has access to monitor compliance with this condition.
The court imposed all of the requested conditions but amended condition
19 prohibiting Allen from purchasing or possessing alcohol to include “or any
other controlled substances under [the] Uniform Controlled Substances
Act[, chapter 69.50 RCW].” It also imposed only nondiscretionary legal financial
obligations, ordering that Allen pay the mandatory victim penalty assessment of
$500 and the mandatory DNA5 collection fee of $100. Two weeks later, the court
also signed an “Order of Indigency,” waiving fees and appointing counsel at
public expense on appeal. Allen appeals.6
ANALYSIS
Consecutive Sentence
Allen claims the trial court erred by imposing a sentence consecutive to
his federal confinement. He argues we must vacate his sentence and impose a
concurrent sentence because the trial court lacked authority to impose a
5 Deoxyribonucleic acid. 6 Allen moved under RAP 9.11 to supplement the record with the federal complaint and plea agreement so he could argue that we should reverse the superior court convictions on double jeopardy grounds. The State opposed the motion. A commissioner of this court ordered Allen to address the motion in his opening brief. Allen failed to include the issue in his brief so we do not reach the merits of his motion. See RAP 12.1(a).
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consecutive sentence where the State “intentionally delays charges to
manipulate the timing of the sentences.”
We review a trial court’s imposition of consecutive sentences for an abuse
of discretion. State v. Champion, 134 Wn. App. 483, 487, 140 P.3d 633 (2006).
A trial court abuses its discretion when its decision is manifestly unreasonable or
exercised on untenable grounds or for untenable reasons. State v. Lord, 161
Wn.2d 276, 283-84, 165 P.3d 1251 (2007). An abuse of discretion occurs when
the trial court applies the wrong legal standard or bases its ruling on an
erroneous view of the law. State v. Ramirez-Estevez, 164 Wn. App. 284, 289-90,
263 P.3d 1257 (2011).
Here, the trial court imposed a consecutive sentence under RCW
9.94A.589(3),7 which states, in pertinent part:
[W]henever a person is sentenced for a felony that was committed while the person was not under sentence for conviction of a felony, the sentence shall run concurrently with any felony sentence which has been imposed by any court in this or another state or by a federal court subsequent to the commission of the crime being sentenced unless the court pronouncing the current sentence expressly orders that the confinement terms be served consecutively to each other.
When a statute is unambiguous, we derive the legislature’s intent from the
plain language alone. State v. Wentz, 149 Wn.2d 342, 346, 68 P.3d 282 (2003).
Allen concedes that the language of RCW 9.94A.589(3) unambiguously gives
broad discretion to a sentencing court to impose either a concurrent or
consecutive sentence for a crime the defendant committed before serving a
7 We note the legislature amended RCW 9.94A.589(3) in 2020. LAWS OF 2020, ch. 276, § 1. Because the amendment does not substantially change the pertinent language quoted here, we cite the current statute.
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felony sentence for a different crime. See State v. Mathers, 77 Wn. App. 487,
494, 891 P.2d 738 (1995). The court need only expressly order that the
defendant serve the sentence consecutively. RCW 9.94A.589(3); Mathers, 77
Wn. App. at 494.
But Allen argues that “courts must ‘avoid a literal reading of a statute if it
would result in unlikely, absurd, or strained consequences.’ ”8 He asserts that
imposing a consecutive sentence after the State intentionally delayed events to
“ramp up Allen’s prison time” goes against legislative intent. Allen urges us to
interpret the statute “to preclude consecutive sentences under these
circumstances.” Allen offers State v. Moore, 63 Wn. App. 466, 820 P.2d 59
(1991), in support of his argument.
In Moore, the defendant was convicted of two separate second degree
burglary charges in 1987. Moore, 63 Wn. App. at 467. He then failed to appear
for sentencing. Three years later, the defendant was arrested and convicted of
felony assault. Moore, 63 Wn. App. at 467. The court sentenced him on all three
convictions at the same hearing. Moore, 63 Wn. App. at 467-68. It first imposed
concurrent sentences for the burglary convictions. It then expressly ordered the
sentence for the assault to run consecutive to the burglary sentences under
former RCW 9.94A.400(3) (1988).9 Moore, 63 Wn. App. at 468. The defendant
argued that because he was sentenced for all three crimes at the same time, the
convictions were “current offenses” under former RCW 9.94A.400(1)(a) and he
8 Quoting State v. Elgin, 118 Wn.2d 551, 555, 825 P.2d 314 (1992). 9 The legislature recodified RCW 9.94A.400 in 2001 as RCW 9.94A.589. LAWS OF 2001, ch. 10, § 6.
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should have received concurrent sentences. Moore, 63 Wn. App. at 470. We
affirmed the consecutive sentence because the defendant “directly caused the
sentencing delay for the burglary convictions,” and imposing concurrent
sentences would “reward [him] for evading the punishment” for those convictions.
Moore, 63 Wn. App. at 471. We reasoned, “This could not have been the
Legislature’s intent when it created the presumption of concurrent sentences in
subsection (1)(a)” of former RCW 9.94A.400. Moore, 63 Wn. App. at 471.
Allen argues that Moore is “instructive” here “because it shows an attempt
to manipulate the timing of sentencing to achieve advantage will not be
condoned.” He points to dicta10 in the opinion that states:
Clearly, we would not countenance a prosecutor’s action of deliberately scheduling sentencing hearings for a defendant’s multiple convictions in such a way as to avoid the presumption of concurrent sentences under the provisions of the SRA.[11]
Moore, 63 Wn. App. at 471. Allen’s reliance on Moore is misplaced.
Moore addressed a defendant’s purposeful delay in sentencing for
multiple convictions in the same court where his crimes would have been
sentenced separately but for his own misconduct. We concluded he should not
benefit from that delay. Moore, 63 Wn. App. at 471. We also implied that we
would not tolerate intentional delays by the State to sentence concurrent
convictions separately in an attempt to gain an unfair advantage. Moore, 63 Wn.
App. at 471. But here, Allen does not claim the prosecutor purposefully delayed
10 “A statement is dicta when it is not necessary to the court’s decision in a case.” State v. Burch, 197 Wn. App. 382, 403, 389 P.3d 685 (2016) (citing Protect the Peninsula’s Future v. City of Port Angeles, 175 Wn. App. 201, 215, 304 P.3d 914 (2013)). Dicta is not binding authority. Burch, 197 Wn. App. at 403. 11 Sentencing Reform Act of 1981, chapter 9.94A RCW.
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sentencing hearings for multiple convictions in the same court. Instead, he
challenges the State’s exercise of its filing discretion, which subjected him to the
possibility of a consecutive sentence under RCW 9.94A.589(3). See State v.
Lewis, 115 Wn.2d 294, 299, 797 P.2d 1141 (1990) (prosecuting attorneys are
vested with great discretion in determining how and when to file criminal
charges).
The conduct about which Allen complains—that the State intentionally
delayed charges to manipulate the timing of sentencing—occurred well before he
chose to plead guilty to the state charges, and he had the chance to challenge
the State’s exercise of its discretion when the State dismissed the charges
without prejudice and again when the State refiled the charges. See State v.
Oppelt, 172 Wn.2d 285, 287, 257 P.3d 653 (2011) (Where a defendant is
prejudiced from either negligent or intentional delay in prosecuting an offense so
that “fundamental conceptions of justice would be violated by allowing the
prosecution,” he is entitled to relief.). Instead, Allen sought relief at the discretion
of the sentencing court. After receiving his federal sentence, he pleaded guilty to
the State’s charges, understanding that it would seek a consecutive sentence.
He then asked the judge to exercise discretion under RCW 9.94A.589(3) and
grant him a concurrent sentence to offset what he believed would be an unduly
harsh result.
The trial court considered, and soundly rejected, Allen’s argument. It
determined that “[u]nder the egregious facts of this case,” a consecutive
sentence was appropriate despite Allen’s perceived overreaching by the State.
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The court found Allen’s crimes were “horrifying offenses, extremely serious,” and
“have harmed the victim and her family and will continue to harm them for the
rest of their lives.” It also explained that Allen’s written statement to the court
before sentencing did not “begin to explain or show appropriate remorse for his
conduct.” And while the judge found Allen’s oral statements at sentencing to be
“more appropriate,” Allen’s words did not “go far enough to convince this Court
that leniency is in any way appropriate under the circumstances of this case.”
Unhappy with his sentence, Allen now argues the trial court “lacked
authority to impose consecutive sentences under RCW 9.94A.589(3)” because it
produced an absurd result. We disagree and conclude that the trial court
properly exercised its broad discretion when it considered Allen’s arguments and
expressly determined his crimes warranted a sentence consecutive to his federal
confinement.12
Community Custody Conditions
We review community custody conditions for abuse of discretion and will
reverse only conditions that are manifestly unreasonable. State v. Wallmuller,
194 Wn.2d 234, 238, 449 P.3d 619 (2019); State v. Irwin, 191 Wn. App. 644,
652, 364 P.3d 830 (2015). We usually uphold conditions of community custody if
they are “crime-related.” State v. Riley, 121 Wn.2d 22, 37, 846 P.2d 1365
(1993). A “crime-related prohibition” is “an order of a court prohibiting conduct
12 Allen also suggests his sentences could not have run consecutively if the State had refiled charges before his federal conviction. His claim is speculative at best. Had state court convicted him before his federal conviction, the federal judge would also have broad discretion to impose a consecutive sentence. See 18 U.S.C. § 3584(a); United States v. Lynn, 912 F.3d 212, 217 (4th Cir.), cert. denied, 140 S. Ct. 86, 205 L. Ed. 2d 82 (2019) (federal judges have discretion to impose a consecutive or concurrent sentence as they deem appropriate).
10 No. 79736-1-I/11
that directly relates to the circumstances of the crime for which the offender has
been convicted.” RCW 9.94A.030(10). The prohibited conduct need not be
identical to the crime of conviction, but there must be “some basis for the
connection.” Irwin, 191 Wn. App. at 657. A court’s imposition of an
unconstitutional condition is manifestly unreasonable. Wallmuller, 194 Wn.2d at
238. We review constitutional questions de novo. Wallmuller, 194 Wn.2d at 238.
1. Internet and Computer Restrictions
Allen argues that the ban on his “[I]nternet access or use, including
e[-]mail, without the prior approval of the supervising CCO” and the ban on “use
of a computer, phone, or computer-related device with access to the Internet or
on-line computer service except as necessary for employment purposes” are
unconstitutionally overbroad. We agree.
“Overbreadth analysis is intended to ensure that legislative enactments do
not prohibit constitutionally protected conduct, such as free speech.” City of
Seattle v. Ivan, 71 Wn. App. 145, 149, 856 P.2d 1116 (1993). “Overbreadth goes
to the question of whether State action is couched in terms so broad that it may
not only prohibit unprotected behavior but may also prohibit constitutionally
protected activity as well.” In re Pers. Restraint of Sickels, ___ Wn. App. 2d ___,
469 P.3d 322, 332 (2020). The mere fact that a community custody condition
“impinges upon a constitutional right” does not invalidate it. Sickels, 469 P.3d at
332-33. “ ‘[L]imitations upon fundamental rights are permissible, provided they
are imposed sensitively.’ ” Sickels, 469 P.3d at 333 (quoting Riley, 121 Wn.2d at
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37); accord State v. Warren, 165 Wn.2d 17, 32, 195 P.3d 940 (2008); State v.
K.H.-H., 185 Wn.2d 745, 751-52, 374 P.3d 1141 (2016).
In Sickels, the State conceded and Division Three of our court agreed that
the same conditions of community custody challenged here were not “sensitively
imposed or reasonably necessary to accomplish the essential needs of the
State.” Sickels, 469 P.3d at 333-34, 335.
Balancing the SRA’s purposes against what would otherwise be Sickels’s inviolate right to computer and [I]nternet access and use, we hold that [the] limitation of [I]nternet use to employment purposes is overly broad and [the] provision for “[n]o [I]nternet access or use, including e[-]mail” is even more objectionable. Delegating authority to Mr. Sickels’s supervising CCO to approve [I]nternet access does not solve the problem; a sentencing court may not wholesaledly abdicate its judicial responsibility for setting the conditions of release.
Sickels, 469 P.3d at 33513 (citing State v. Sansone, 127 Wn. App. 630, 642, 111
P.3d 1251 (2005)).
We agree with the reasoning and holding in Sickels and conclude that the
community custody conditions restricting Internet use and use of electronic
devices with access to the Internet as written are overbroad. We remand to
strike or modify the conditions.
2. Dating Restrictions
Allen challenges the community custody provision requiring that he must
“[i]nform the supervising CCO and sexual deviancy treatment provider of any
dating relationship” and “[d]isclose sex offender status prior to any sexual
contact,” and that “[s]exual contact in a relationship is prohibited until the
13 Fifth alteration in original.
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treatment provider approves of such.” He argues the condition is not crime-
related, overbroad, and impermissibly impacts his “constitutional freedoms”
because his offenses were against a child, not an adult. The State concedes that
prohibiting sexual contact in a relationship without prior approval is not crime-
related. We accept the State’s concession and remand to strike that portion of
the condition.
Allen urges us to narrow the requirements to disclose any dating
relationship to his CCO and treatment provider and to disclose his sex-offender
status prior to any sexual contact to only adults who “have minor children.” In
State v. Autrey, 136 Wn. App. 460, 468, 150 P.3d 580 (2006), we rejected a
similar challenge and held an “offender’s freedom of choosing even adult sexual
partners is reasonably related to their crimes because potential romantic partners
may be responsible for the safety of live-in or visiting minors.” We again affirmed
identical conditions in Sickels, concluding that the conditions
are reasonably related to the safety of the community. They protect individuals who Mr. Sickels dates or with whom he embarks on a sexual relationship by providing them with knowledge of the potential risk he presents to minors. They make it possible for Mr. Sickels’s CCO and treatment provider to take whatever additional steps they might deem appropriate to protect anyone embarking on a dating or sexual relationship with [him].
Sickels, 469 P.3d at 328. We reach the same conclusion here.14
14 Further, the requirements that Allen disclose dating relationships and his sex-offender status do not prohibit conduct: They are affirmative conduct requirements governed by RCW 9.94A.703(3)(d), which provides for a related but arguably broader standard: they must be “reasonably related to the circumstances of the offense, the offender’s risk of reoffending, or the safety of the community.” Sickels, 469 P.3d at 328.
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3. Possession of Controlled Substances Restriction
Allen argues that the prohibition against “purchas[ing] or possess[ing]
alcohol, or any other controlled substances under [the] Uniform Controlled
Substances Act,” is too broad and should be amended to add language that
provides an exception for “lawfully issued prescriptions.” The State concedes.
We accept the State’s concession and remand to modify the condition.
4. Areas Where Children Congregate Restriction
Allen challenges the condition that he
[s]tay out of areas where children’s activities regularly occur or are occurring. This includes parks used for youth activities, schools, daycare facilities, playgrounds, wading pools, swimming pools being used for youth activities, play areas (indoor or outdoor), sports fields being used for youth sports, arcades, and any specific location identified in advance by DOC or the CCO.
Recognizing that Wallmuller, 194 Wn.2d at 245, rejected a challenge to
the same notice condition, Allen objects only to the portion of the condition that
he stay out of “any specific location identified in advance by DOC or the CCO.”
He argues that the condition is unconstitutionally vague and that DOC or his
CCO could arbitrarily enforce the condition.
We also addressed the same condition in Sickels.15 We determined that
“[t]he condition simply places a burden on DOC or the CCO to affirmatively
identify locations they deem to be prohibited by the command.” Sickels, 469
P.3d at 331. We concluded the condition does not invite arbitrary enforcement
because the language does not empower a CCO to define prohibited areas
15 See also State v. Terrones, No. 79781-6-I (Wash. Ct. App. Apr. 27, 2020) (unpublished), http://www.courts.wa.gov/opinions/pdf/797816.pdf.
14 No. 79736-1-I/15
unrelated to the nonexhaustive list, and the condition requires notice to the
defendant in advance when adding any restricted locations to the list. Sickels,
469 P.3d at 331-32. We affirm the condition.
Supervision Fees
Allen argues that we should strike the imposition of supervision fees
because the court found him to be indigent. We agree.16 RCW 9.94A.703(2)(d)
gives the sentencing court discretion to order that the defendant “[p]ay
supervision fees as determined by [DOC].“ Here, the trial court imposed only
nondiscretionary costs or assessments at sentencing. The court also declared
Allen indigent for appellate purposes. Despite the court’s finding of indigence,
Appendix H to Allen’s judgment and sentence includes the discretionary
supervision fee as a condition of community custody. Because the record
reflects the court’s intent to waive all nondiscretionary legal financial obligations,
we remand for the trial court to strike the provision. See State v. Dillon, 12 Wn.
App. 2d 133, 152, 456 P.3d 1199, review denied, 195 Wn.2d 1022, 464 P.3d 198
(2020).
16 The State argues Allen waived his right to appeal this issue because he failed to object to supervision fees below. While appellate courts normally decline to review issues raised for the first time on appeal, “RAP 2.5(a) grants appellate courts discretion to accept review of claimed errors not appealed as a matter of right.” State v. Blazina, 182 Wn.2d 827, 834-35, 344 P.3d 680 (2015). We exercise our discretion to do so here.
15 No. 79736-1-I/16
We affirm Allen’s consecutive sentence but remand to strike or modify
certain community custody conditions consistent with this opinion and to strike
the supervision fees.
WE CONCUR: