State Of Washington v. Michael Donald Stephens

• Court: Court of Appeals of Washington
• Decided: November 10, 2014
• Docket: 72364-2
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

STATE OF WASHINGTON, No. 72364-2-1

Respondent,

v.

MICHAEL DONALD STEPHENS, UNPUBLISHED OPINION

Appellant. FILED: November 10, 2014

Verellen, J. — Michael Stephens appeals from his judgment and sentence for his

conviction of three counts of second degree child rape of his stepdaughters. Specifically,

he challenges several community custody conditions and a no-contact order.

We accept the State's concession that the community custody condition

precluding him from possessing or using alcohol and frequenting establishments that

feature alcohol are not crime related. We also accept the State's concession that the

delegation to his community custody officer (CCO) to compel him to submit to unspecified

physical or psychological testing is overbroad.

We affirm the community custody condition that he not contact or communicate

with minors except as authorized by his CCO and the no-contact order precluding him

from direct or indirect contact with minors except as expressly authorized by the

Department of Corrections (DOC). No. 72364-2-1/2

FACTS

Stephens pleaded guilty to three counts of second degree child rape against two

victims, his stepdaughters. The trial court sentenced Stephens to 155 months of

incarceration and to lifetime community custody. Over several objections from

Stephens's counsel, the trial court entered the community custody conditions

recommended in the presentence investigation report (PSI).

The trial court imposed community custody conditions prohibiting Stephens from

possessing or using alcohol and frequenting establishments that feature alcohol

(condition 9), requiring Stephens to submit to physical or psychological testing whenever

requested by his CCO (condition 11), and prohibiting Stephens from contacting or

communicating with minors except as previously authorized by his CCO (condition 6).

The trial court also entered a no-contact order prohibiting direct or indirect contact with

minors unless expressly authorized by DOC.

ANALYSIS

Alcohol-Related Condition

Stephens contends that the trial court erred in prohibiting him from possessing or

using alcohol and frequenting any establishment "where alcohol is the chief item of

sale."1 We accept the State's concession that this community custody condition should

be stricken because it is neither crime related nor supported by facts in the record.

A community custody condition must be authorized by the legislature.2 While many

conditions are expressly enumerated, additional unenumerated conditions that are also

authorized by the legislature may be imposed to monitor compliance with a trial court's

1 Clerk's Papers (CP) at 19. 2 State v. Pillatos. 159 Wn.2d 459, 469, 150 P.3d 1130 (2007). No. 72364-2-1/3

order.3 Community custody conditions that are expressly enumerated include "affirmative

conduct reasonably related to the circumstances of the offense," a prohibition "from

consuming alcohol," and compliance "with any crime-related prohibitions."4 Community

custody conditions that do not reasonably relate to the circumstances of the crime for

which the offender has been convicted are unlawful unless specifically permitted by

statute.5 Whether a crime and a sentencing condition are related "'will always be

subjective, and such issues have traditionally been left to the discretion of the sentencing

judge.'"6 We review the imposition of crime-related prohibitions for abuse of discretion.7

Here, nothing in the record suggests that alcohol contributed to Stephens's

offenses or that the trial court's prohibition of possessing or using alcohol and frequenting

establishments that feature alcohol was crime related. Although a trial court may

expressly prohibit the consumption of alcohol as a lawful condition, the trial court here

went a step further by prohibiting Stephens from frequenting any establishment "where

alcohol is the chief item of sale."8 The only evidence in the record relating to alcohol is

3SeeRCW9.94A.030(10). 4 RCW 9.94A.703(3)(d), (e), (f). 5 State v. Jones, 118 Wn. App. 199, 205, 76 P.3d 258 (2003); see also RCW 9.94A.030(10) (defining "crime-related prohibition," which must have a factual nexus to the crime being punished); State v. Parramore, 53 Wn. App. 527, 530, 768 P.2d 530(1989). 6 State v. Berg, 147 Wn. App. 923, 942, 198 P.3d 529 (2008) (quoting Parramore, 53 Wn. App. at 530), abrogated on other grounds by State v. Mutch, 171 Wn.2d 646, 1254 P.3d 803 (2011). 7 Pers. Restraint of Rainev. 168 Wn.2d 367, 374, 299 P.3d 686 (2010). 8 CP at 19. The trial court determined, in imposing community custody condition 9, that "there is a self-report of some excessive use of alcohol which considering the nature of these charges certainly eliminates one's natural inhibitions." Report of Proceedings (RP) (July 30, 2013) at 13. No. 72364-2-1/4

that Stephens "drinks typically about once a month, when he drinks about 2 beers

'typically' [and] [h]e also admits to the 'occasional drunk.'"9 Where the condition does not

relate to the circumstances of the crime, such a condition is unlawful.10 Therefore, we

conclude that the trial court lacked authority to impose community custody condition 9,

and it must be stricken from Stephens's judgment and sentence on remand.

Physical or Psychological Testing Condition

Stephens argues that the community custody condition requiring him to submit to

unspecified physical or psychological testing is both unconstitutionally vague and

overbroad. We accept the State's concession and remand for clarification of this

condition.

Here, the trial court imposed community custody condition 11 requiring Stephens

to "submit to physical and/or psychological testing whenever requested by [cjommunity

[corrections [opcer, at [his] own expense, to assure compliance with [j]udgment and

[s]entence or Department of Corrections' requirements."11 Although this condition is

neither expressly enumerated in RCW 9.94A.703 nor a condition that the DOC may

impose,12 additional conditions, such as requiring an offender to undergo specific

9 CP at 50. At sentencing, Stephens's counsel argued that "occasional drunk" appeared to be a typographical error in the presentence investigation and that it should have read "occasional drink." RP (July 30, 2013) at 12. The State concedes that the record supports only that Stephens had an occasional drink, not that he drank to excess. 10 Jones, 118 Wn. App. at 207-08; see also Parramore, 53 Wn. App. at 531 (striking a condition prohibiting the defendant from consuming alcohol when the State failed to show any connection between his use of alcohol and his delivery of marijuana conviction). 11 CPat19. 12 See RCW 9.94A.704. No. 72364-2-1/5

physical or psychological testing, may be imposed to monitor compliance with the trial

court's order.13

Although community custody condition 11 limits testing to "physical and/or

psychological testing," it does not specify the particular testing to which Stephens may be

exposed (e.g., polygraph testing, plethysmograph testing, or urinalysis testing).14 And the

type of testing covered under this condition may also be encompassed in community

custody condition 13 regarding sexual deviancy treatment.15 Because the delegation to

the CCO is overbroad and vague, we accept the State's concession. On remand, the

trial court may identify any specific testing necessary for monitoring compliance with the

other community custody conditions imposed.16

Contact with Minors

Stephens argues that the trial court's imposition of a no-contact order and a

community custody condition prohibiting contact with minors, including Stephens's non-

victim biological children, violates his fundamental right to parent. We disagree.

Community custody condition 6 states that Stephens "shall not contact or

communicate with: minors under the age of 18 except as previously authorized by

13 See RCW 9.94A.030(10); see also State v. Vant, 145 Wn. App. 592,603, 186 P.3d 1149 (2008) (confirming trial court's authority to order specific testing, such as random polygraph and urinalysis tests, to monitor compliance with sentencing conditions). 14 CP at 19. 15 Community custody condition 13 states that Stephens "shall undergo, maintain continuing progress in, and successfully complete an in-patient/out-patient sex offender treatment as set forth here: obtain a psychosexual evaluation within 30 days of release, enter into, comply with and successfully complete any recommended treatment resulting from this evaluation." Id.

16 See, e.g., State v. Johnson, 180 Wn. App. 318, 332, 327 P.3d 704 (2014); Vant, 145 Wn. App. at 607. No. 72364-2-1/6

CCO."17 The no-contact order states that Stephens "shall not have direct or indirect

contact with the following specified class of individuals: children under 18 years unless

expressly authorized by DOC."18

In addition to crime-related conditions, a court may order an offender to have no

contact with victims or a "specified class of individuals."19 The specified class must bear

some relationship to the crime.20 We review "sentencing conditions for abuse of

discretion."21 A parent has the constitutional right to raise children without State

interference.22 "But parental rights are not absolute and may be subject to reasonable

regulation."23 A sentencing court may impose limitations on this right when reasonably

necessary to further the State's compelling interest in protecting children.24 A sentencing

condition that affects the fundamental right to parent must be "sensitively imposed" so

that it is "reasonably necessary to accomplish the essential needs of the State and public

order."25

In State v. Corbett, the court held a no-contact order prohibiting the defendant

from contact with all minor children, including his non-victim biological children, was a

"valid crime-related prohibition that does not unduly burden [the defendant's] fundamental

17 CP at 19. 18 Id, at 10. 19 RCW 9.94A.703(3)(b). 20 State v. Riles, 135 Wn.2d 326, 350, 957 P.2d 655 (1998), abrogated on other grounds by State v. Valencia. 169 Wn.2d 782, 239 P.3d 1059(2010). 21 State v. Warren. 165 Wn.2d 17, 32, 195 P.3d 940 (2008). 22 State v. Corbett. 158 Wn. App. 576, 598, 242 P.3d 52 (2010). 23 ]g\ 24 Id.; see also Warren, 165 Wn.2d at 32. 25 Warren, 165 Wn.2d at 32. No. 72364-2-1/7

parenting rights."26 In upholding the order, the court determined that the defendant's

children were at risk because he acted as a parent to the victim and abused his parenting

role by sexually abusing a minor in his care.27 Similarly, in State v. Berg, the court upheld

an order prohibiting the defendant from unsupervised contact with female minors.28 The

victim, a female minor, lived with the defendant in his home where the crime occurred.29

The court determined that "[a]n order restricting contact with other female children who

lived in the home," including his biological child, "was therefore reasonable to protect

those children from the same type of harm."30

Here, the crimes involved Stephens's role as a parent to his stepdaughters, the

victims. It was therefore directly related to the crime and within the discretion of the trial

court to limit contact with his two sons because his sons fell within the class of persons

he had victimized like in Corbett and Berg.31 Insofar as Stephens contends the condition

and no-contact order are not narrowly tailored to meet the State's objectives, he is not

completely restricted from having contact with his biological children. Both of Stephens's

sons will be adults when he is released to community custody. While he remains in

prison, it is reasonable for the trial court to anticipate that DOC will have a role in

26 158 Wn. App. 576, 601, 242 P.3d 52 (2010). 27 Id at 599-600. 28 147 Wn. App. 923, 943, 198 P.3d 529 (2008). 29 jcL at 942-43. 30 \± at 943. 31 M.J.S., the younger biological son, lived in Stephens's home. R.A.S., the older biological son by a prior marriage, did not live in Stephens's home. While the trial court found that "[t]here's no indication that the biological children are victims in this particular incident," it found that "they're entitled to the same protection [as the victims.]" RP (July 30, 2013) at 13. No. 72364-2-1/8

determining contact with his sons—in visitations, correspondence, and phone calls. It

was not therefore an abuse of discretion to delegate to DOC the terms and conditions of

Stephens's contact with his sons while he remains in prison. Accordingly, we affirm

community custody condition 6 and the no-contact order prohibiting contact with minor

children, including Stephens's biological children, as a valid crime-related prohibition that

does not unduly burden his fundamental parenting rights.

We reject the State's argument that these issues are not ripe for review because it

is not clear what limitations, if any, DOC might impose. A claim is ripe and therefore fit

for judicial determination ifthe issue is primarily legal, does not require further factual

development, and the challenged action is final.32 We read Stephens's challenge as

primarily a legal issue: whether the trial court abused its discretion in making this

delegation to DOC. Such a legal question need not wait for further factual development.

We affirm in part, reverse in part, and remand for proceedings consistent with this

opinion.

WE CONCUR:

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32 State v. Bah I. 164 Wn.2d 739, 751, 193 P.3d 678 (2008).