IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ;I No. 72338-3-1 -—>
c:Z3 V. o
Respondent, ] DIVISION ONE on
CD '•"T 'Z..' v. UNPUBLISHED OPINION
SAMUEL LEE IRWIN, ' '•'--:---- V.C- - <_• !
Appellant. FILED: October 26, 2015 C.'
Trickey, J. — Samuel Irwin pleaded guilty to three counts of child
molestation and one count of possession of depictions of minors engaged in
sexually explicit conduct. On appeal, Irwin argues that a community custody
condition ordering him not to "frequent areas where minor children are known to
congregate" is unconstitutionally vague and that a community custody condition
prohibiting him from possessing access to certain technology was not crime-
related and was too broad. Finding that the condition prohibiting Irwin from
frequenting areas where children congregate is unconstitutionally vague, we
reverse that condition and remand for resentencing. Further, we affirm the
condition prohibiting Irwin from possessing any digital media storage device.
FACTS
Samuel Irwin had sexual contact with three underage females between
June 1, 2013 and September 15, 2013. After reports of these incidents came to
the attention of the Anacortes Police Department and child protective services,
the Anacortes Police Department and the Spokane County Sheriffs Office began
interviewing the children and investigating Irwin. No. 72338-3-1 / 2
On January 30, 2014, the police took custody of Irwin under an
"investigative hold."1 A few days later, on February 3, 2014, the police obtained
a warrant for Irwin's arrest.
Several of the parents and children questioned by the police mentioned
that Irwin had photographs on his computer that appeared to be child
pornography. Officers obtained search warrants to locate Irwin's computer and
digital camera and to analyze the contents of both. The searches revealed a
history of Internet searches related to child pornography and ten photographs on
Irwin's computer of nude or partially nude girls.2 The photographs were all of
girls from the waist down. The photographs were of girls' vaginas and anuses.
In some photographs, a man's hand is pulling aside the girl's underwear and
touching her labia. Officers concluded that these contained depictions of minors
based on the size of the girls and the lack of pubic hair or indication of any
removal of pubic hair. Further, officers concluded that the subject of one of the
photographs was one of Irwin's victims, based on a distinctive T-shirt.
On July 11, 2014, Irwin pleaded guilty under a fourth amended information
to three counts of child molestation in the second degree and one count of
possessing depictions of minors engaged in sexual conduct in the second
degree. The trial court sentenced Irwin to 116 months on the child molestation charges and 60 months on the possession charge. Additionally, the court
imposed four months of community custody based on the child molestation
charges.
1 Clerk's Papers (CP) at 105, 107. 2 There appear to be four unique photographs, with several copies of some of the pictures. No. 72338-3-1 / 3
Two of the community custody conditions were:
5. Do not frequent areas where minor children are known to congregate, as defined by the supervising [Community Corrections Officer (CCO)].'3'
11. You may not possess or maintain access to a computer unless specifically authorized by CCO. You may not possess any computer parts or peripherals, including but not limited to hard drives, storage devices, digital cameras, web cams, wireless video devices or receivers, CD/DVD [(compact disc/digital video disc)] burners, or any device to store or reproduce digital media or images.141
Park's counsel objected to condition 5 because it was unconstitutionally
vague and to condition 11 because it was not crime-related and was too broad.
Trial counsel requested that, rather than leave the definition of condition 5 to the
discretion of the CCO, the court should list prohibited places as examples. The
trial court explained that that Irwin should not "frequent areas of high
concentration of children, such as swimming pools and schools and things like
that. Public restaurants would be all right."5 The court, considering Irwin's
arguments related to condition 11, struck the language about digital cameras,
and added permission for Irwin to reside somewhere that contained a prohibited
device. Regarding condition 11, the court added:
I think we just let the language ride. If we tried to micromanage that language, we'd have a document a hundred pages long, and if. . . [the Department of Corrections (DOC)] officer believes there's a violation, we'd just have to look at it circumstance by circumstance and see if it was.
3 CP at 133. 4 Report of Proceedings (RP) (8/7/2014) at 12. 5 RP (8/7/2014) at 12. No. 72338-3-1/4
We've got to hope that they have the common sense that they can determine the wheat from the chaff. Now, some of them may not, knowing DOC. We're not talking about rocket scientists there with that agency.[6]
After these comments and changes, the final version of condition 11 read:
11. You may not possess or maintain access to a computer unless specifically authorized by CCO. You may not possess any computer parts or peripherals, including but not limited to hard drives, storage devices, or any device to store or reproduce digital media or images. Defendant may reside in a residence where a computer or other device capable of storing images is located.171
Irwin timely appeals.
ANALYSIS
Vagueness Challenge to Community Custody Condition Prohibiting Irwin from Frequenting Areas Where Minor Children Congregate
Ripeness
The State argues that the community custody condition requiring Irwin not
to "frequent areas where minor children are known to congregate, as defined by
the supervising CCO," is not ripe for review. Community custody conditions are
ripe for review on direct appeal "'if the issues raised are primarily legal, do not
require further factual development, and the challenged action is final.'" State v.
Bahl, 164 Wn.2d 739, 751, 193 P.3d 678 (2008) (quoting First United Methodist
Church v. Hearing Exam'r. 129 Wn.2d 239, 255-56, 916 P.2d 374 (1996)).
Courts should also consider the hardship to the parties if they are forced to wait.
State v. Sanchez Valencia. 169 Wn.2d 782, 790, 239 P.3d 1059 (2010).
In State v. Sanchez Valencia, the court held that a preenforcement
challenge to a community custody condition prohibiting the defendant from
6 RP (8/7/2014) at 15. 7 CP at 134. No. 72338-3-1 / 5
possessing "paraphernalia" was ripe under a four pronged test. 169 Wn.2d 782,
786-91, 239 P.3d 1059 (2010). First, it was a vagueness challenge, which is
often a question of law because "time will not cure the problem." Sanchez
Valencia, 169 Wn.2d at 788. Second, factual development would not make the
issue more clear. Sanchez Valencia, 169 Wn.2d at 789. Unlike conditions that
impose financial obligations on defendants or require released defendants to
submit to searches (where the questions would be, whether the defendant was
indigent and whether the search valid), the question in that case would always be
whether "the condition as written provide[d] constitutional notice and protection
against arbitrary enforcement." Sanchez Valencia, 169 Wn.2d at 789. The court rejected the State's argument that the question required factual development because the CCOs had to decide how to impose the conditions. Sanchez
Valencia, 169 Wn.2d at 789 n.2. The court "is responsible for imposing the
condition" not the CCO. Sanchez Valencia, 169 Wn.2d at 789 n.2. Third, the
action was final because the defendants were sentenced. Sanchez Valencia,
169 Wn.2d at 789. Lastly, the defendants would suffer hardship if the court
declined "to review their challenge on direct appeal" because the conditions
would apply to the defendants immediately upon release. Sanchez Valencia, 169 Wn.2d at 789-90.
Here, the preenforcement challenge is ripe because Irwin is situated exactly like the defendants in Sanchez Valencia. First, the challenge raises a purely legal question: whether the challenged community custody condition provides him with constitutionally required notice and would protect against No. 72338-3-1 / 6
arbitrary enforcement. Second, the challenge does not require factual
development. The State, like it did in Sanchez Valencia, argues that the
condition is factually dependent because the CCO still has to specify restricted
locations. See 169 Wn.2d at 789 n.2. But the sentencing court, not the CCO
must impose the condition. See Sanchez Valencia, 169 Wn.2d at 789 n.2.
Third, the court sentenced Irwin with this condition. Lastly, this condition will
attach to Irwin immediately upon release. Just like the defendants in Sanchez
Valencia. Irwin would suffer significant hardship ifthe court refused to review this
condition on direct appeal.8 See 169 Wn.2d at 789.
Vagueness
Irwin argues that the following community custody condition is
unconstitutionally vague: "Do not frequent areas where minor children are known
to congregate, as defined by the supervising CCO."9 This court reviews community custody conditions for abuse of discretion,
and will reverse them only if they are "manifestly unreasonable." Sanchez
Valencia, 169 Wn.2d at 791-92. Imposing an unconstitutional condition will
always be "manifestly unreasonable." Sanchez Valencia. 169 Wn.2d at 791-92. This court does not presume that community custody conditions are
constitutional. Sanchez Valencia, 169 Wn.2d at 793.
8 Further, the Washington State Supreme Court held that a defendant's violation of the exact same condition challenged here did not have to be willful. State v. McCormick, 166 Wn.2d 689, 213 P.3d 32 (2008). Irwin would suffer "significant hardship" if he did not know until after enforcement whether his actions would violate this condition. Sanchez- Valencia, 169 Wn.2d at 789. 9 CP at 117. No. 72338-3-1 / 7
The guarantee of due process, contained in the Fourteenth Amendment to
the United States Constitution and article I, section 3 of the Washington
Constitution, requires that laws not be vague. Bahl, 164 Wn.2d at 752-53. The
laws must (1) provide ordinary people fair warning of proscribed conduct, and (2)
have standards that are definite enough to "'protect against arbitrary
enforcement.'" Bahl, 164 Wn.2d at 752-53 (quoting City of Spokane v. Douglass,
115 Wn.2d 171, 178, 795 P.2d 693 (1990)). A community custody condition is
unconstitutionally vague if itfails to do either. Bahl, 164 Wn.2d at 753. However,
"'a community custody condition is not unconstitutionally vague merely because
a person cannot predict with complete certainty the exact point at which his
actions would be classified as prohibited conduct.'" Sanchez Valencia, 169
Wn.2d at 793 (internal quotation marks omitted) (quoting State v. Sanchez
Valencia, 148 Wn. App. 302, 321, 198 P.3d 1065 (2009)).
In Sanchez Valencia, the court held that the following condition was
unconstitutionally vague:
"Defendant shall not possess or use any paraphernalia that can be used for the ingestion or processing of controlled substances or that can be used to facilitate the sale or transfer of controlled substances including scales, pagers, police scanners, and hand held electronic scheduling and data storage devices."
169 Wn.2d at 785. It was significant to the court that the condition did not specify
that it prohibited only "drug" paraphernalia and that a CCO could find a violation for possession of common household items, including "sandwich bags or paper." Sanchez Valencia, 169 Wn.2d at 794-95. As the concurrence pointed out, the
condition could likely be saved by adding the word "drug" in front of No. 72338-3-1 / 8
"paraphernalia." Sanchez Valencia. 169 Wn.2d at 795 (J.M. Johnson, J.,
concurring).
The court in State v. Riles upheld the constitutionality of a community
custody condition almost identical to the one in this case. 135 Wn.2d 326, 349,
957 P.2d 655 (1998), abrogated by State v. Valencia. 169 Wn.2d 782, 239 P.3d
1059 (2010). There, the challenged condition prohibited the defendant from
"frequent[ing] places where minors are known to congregate without specific
permission of sexual deviancy counselor or supervising CCO." Riles. 135 Wn.2d
at 333-34 (emphasis omitted). The court upheld that condition but it did so under
a standard of review that the court later disapproved in Sanchez Valencia. Riles,
135 Wn.2d at 349: see Sanchez Valencia, 169 Wn.2d at 792.
In both BahJ and State v. Sansone, 127 Wn. App. 630, 638, 111 P.3d
1251 (2005), courts held that community custody conditions that required further
definition from CCOs were unconstitutionally vague. Both cases addressed
conditions requiring definitions of "pornography," a word that has defied definition
in federal courts. Bahl, 164 Wn.2d at 754-55, 758. In Bahl, the court held that
the fact that a CCO could "direct what falls within the condition only ma[de] the
vagueness problem more apparent, since it virtually acknowledge^] that on its
face it d[id] not provide ascertainable standards for enforcement." 164 Wn. 2d at
758. In Sansone, the court held that "pornography" was unconstitutionally vague
in that context. 127 Wn. App. at 638. That the condition explicitly required that
CCOs define pornography underscored the inherent vagueness of the term.
Sansone, 127 Wn. App. at 639. Further, it made it more likely that the condition
8 No. 72338-3-1 / 9
could be arbitrarily enforced, which would render it vague under the second
prong of the test. Sansone, 127 Wn. App. at 639.
While Bahl and Sansone involved the intractably undefinable term
"pornography," this case simply requires ordinary people to understand where
"children are known to congregate."10 But, as Irwin points out, whether that
would include "public parks, bowling alleys, shopping malls, theaters, churches,
hiking trails" and other public places where there may be children is not
immediately clear.11 Trial counsel requested that, rather than leave the definition
of this condition to the discretion of the CCO, the court should list prohibited
places as examples. When presented with this argument at sentencing, the trial
court explained that that Irwin should not "frequent areas of high concentration of
children."12 But, the final condition did not include that clarification.
Without some clarifying language or an illustrative list of prohibited
locations (as suggested by trial counsel), the condition does not give ordinary
people sufficient notice to "understand what conduct is proscribed." See Bahl, 164 Wn.2d at 753. This conflicts with the holding in Riles, but, at that time, the
condition was given a presumption of constitutionality. 135 Wn.2d at 349. That presumption no longer applies. See Sanchez Valencia, 169 Wn.2d at 792. If ordinary people cannot understand what conduct is proscribed, the statute is unconstitutionally vague. Bahl. 164 Wn.2d at 753. If a statute is unconstitutionally vague, it is manifestly unreasonable, and therefore an abuse of discretion. Sanchez Valencia. 169 Wn.2d at 791-92.
10 CP at 117. 11 Appellant's Br. at 8. 12 RP (8/7/2014) at 12. No. 72338-3-1/10
It may be true that, once the CCO sets locations where "children are
known to congregate" for Irwin, Irwin will have sufficient notice of what conduct is
proscribed.13 But, although that would help the condition satisfy the first prong of
the vagueness analysis, it would leave the condition vulnerable to arbitrary
enforcement. See Bahl, 164 Wn.2d at 753; Sansone, 127 Wn. App. at 639. The
potential for arbitrary enforcement would render the condition unconstitutional
under the second prong of the vagueness analysis. See Bahl, 164 Wn.2d at 753.
Therefore, this court reverses the trial court, strikes the condition as being void
for vagueness, and remands to the trial court for resentencing.
Crime-Related Challenge to Condition Prohibiting Irwin from Possessing a Computer or Any Digital Media Storage Device
Irwin argues that it was error for the trial court to impose a technology-
related community custody condition based on Irwin's molestation convictions.
Because Irwin's molestation of his victims included taking photographs (which he
stored on his computer), the community custody condition was crime-related and
was not an abuse of discretion.
Trial courts may impose crime-related prohibitions while a defendant is in
community custody. RCW 9.94A.505(8), 703(3)(f). A "'[c]rime-related prohibition'
. . . prohibits] conduct that directly relates to the circumstances of the crime for which the offender has been convicted." RCW 9.94A.030(10). "Directly related"
includes conditions that are "reasonably related" to the crime. State v. Kinzle,
181 Wn. App. 774, 785, 326 P.3d 870, review denied, 337 P.3d 325 (2014).
13 CP at 117.
10 No. 72338-3-1/11
This court reviews a trial court's imposition of crime-related community
custody conditions for abuse of discretion. State v. Cordero, 170 Wn. App. 351, 373, 248 P.3d 773 (2012). A sentencing court abuses its discretion if its decision
is manifestly unreasonable or if exercised on untenable grounds or for untenable reasons. State v. Riley, 121 Wn.2d 22, 37, 846 P.2d 1365 (1993). This court
reviews the factual bases for crime-related conditions under a "substantial
evidence" standard. State v. Motter, 139 Wn. App. 797, 801, 162 P.3d 1190
(2007), disapproved of by Sanchez Valencia, 169 Wn.2d 782; see also State v. Brockob. 159 Wn.2d 311, 343, 150 P.3d 59 (2006) (holding than an "appellate
court reviews whether substantial evidence supports the trial court's findings of
fact").
The court has struck crime-related community custody conditions when
there is "no evidence" in the record that the circumstances of the crime related to
the community custody condition. See State v. Zimmer. 146 Wn. App. 405, 413, 190 P.3d 121 (2008) (reversing condition that defendant not have a cell phone after finding "no evidence in the record" that defendant used cell phones to facilitate drug possession or distribution); State v. O'Cain, 144 Wn. App. 772, 775, 184 P.3d 1262 (2008) (striking condition that prohibited defendant's Internet use after finding "no evidence that [the defendant] accessed the Internet before the rape or that Internet use contributed in any way to the crime"); State v. Johnson. 180 Wn. App. 318, 330-31, 327 P.3d 704 (2014) (striking Internet related community custody condition because "there [were] no findings
11 No. 72338-3-1/12
suggesting any nexus between [the defendant's] offense and any computer use
or Internet use").
Conversely, this court has upheld crime-related community custody
decisions when there is some basis for the connection. In State v. Kinzle, the
court upheld a condition prohibiting the defendant from dating women with minor
children or forming relationships with families who have minor children because
the defendant's victims in that case were "children with whom he came into
contact through a social relationship with their parents." 181 Wn. App. 774, 785,
326 P.3d 870 (2014). In that case, the defendant had molested the children of a
platonic male friend, but there was no allegation that he had molested the children of any women he had been romantically involved with. Kinzle, 181 Wn.
App. at 777. In Riley, the court upheld a condition prohibiting a defendant convicted of "computer trespass" from having a computer. 121 Wn.2d 22, 37, 846 P.2d 1365 (1993). There, the defendant conceded that he should not be allowed to have a modem, but argued that, because he "[could] not commit
computer trespass without a modem" a condition prohibiting him from having a
computer was not crime-related. Riley, 121 Wn.2d at 37.
Here, the challenged condition, in its final version, read:
11. You may not possess or maintain access to a computer unless specifically authorized by CCO. You may not possess any computer parts or peripherals, including but not limited to hard drives, storage devices, or any device to store or reproduce digital media or images. Defendant may reside in a residence where a computer or other device capable of storing images is located.[14]
14 CP at 134.
12 No. 72338-3-1/13
The court struck language that would have prohibited Irwin from having a digital
camera and added the last sentence, allowing Irwin to reside somewhere with
the prohibited technology.
Irwin argues that the technology condition is related to his possessing
depictions of minors engaged in sexually explicit conduct charge, but is not
related to his child molestation charges. The court imposed community
conditions only for child molestation in the second degree, counts I, II, and III.
Therefore, the community custody conditions must be reasonably related to the
child molestation charges, not the possessing depictions of minors engaged in
sexually explicit conduct in the second degree charge.
This is not a case where no evidence connects the crime and the
community custody condition. Unlike in State v. O'Cain, here, there is evidence
in the record that technology contributed to Irwin's crime. 144 Wn. App. 772,
775, 184 P.3d 1262 (2008). The presentence investigation contains evidence
that Irwin took and stored pornographic images as part of his act of molesting
underage females. Officers found ten pictures of minors engaged in sexually
explicit conduct on Irwin's computer that were taken with the same kind of
camera Irwin owned. One of those photographs depicted a man's hand touching
the labia of one of Irwin's victims. The officers concluded that "[i]t appears based
upon the evidence that the child pornography images described above were self- produced by Samuel Irwin."15 Irwin contends that the photographs do not form
the basis for his convictions for child molestation because the convictions were
based on incidents as described by the underage females. This argument is
15 CP at 111.
13 No. 72338-3-1 /14
unconvincing. The guilty plea for each count of child molestation refers to neither
the girls' accounts of the incidents nor the photographs. But it does provide a
date range for the acts, June 1, 2013 through September 15, 2013. The
photographs were all taken on either August 2, 2013 or September 15, 2013.
The photographs could easily have been part of the basis for conviction if the
case had gone to trial.
The relationship between Irwin's crime and this technology community
custody condition is at least as strong as the connection between Kinzle's crime
and the condition that he not form romantic relationships with women with minor
children. See Kinzle, 181 Wn. App. at 777, 785. Irwin actually took and stored
photographs of himself molesting some of his victims; Kinzle had no romantic
relationship with the mother of the girls he molested. Kinzle, 181 Wn. App. at
777. Irwin's crimes were at least "reasonably related" to the community custody
condition imposed by the trial court. See Kinzle, 181 Wn. App. at 785.
Irwin argues that, even ifthis court finds that the condition is crime-related,
it should narrow the condition by removing the language "any device to store or
reproduce digital media or images."16 Irwin does not point to any authority that
suggests that a crime-related condition is too broad. While it is true that this
condition will make it virtually impossible for Irwin to possess a cell phone after
release, this court cannot say that it was an abuse of discretion to retain that
language. This court affirms the trial court's imposition of this condition.
16 Appellant's Br. at 15. 14 No. 72338-3-1/15
Statement of Additional Grounds for Review
Irwin raises seven additional grounds for review. None of them require
reversal on direct appeal.17 Several of Irwin's arguments refer to material outside
the record on appeal. This court will not consider grounds for review that rely on
evidence not in the record. See RAP 10.10(c). Irwin's recourse in this case is to
bring a properly supported personal restraint petition. See RAP 16.4. Those
grounds were (1) that he was denied his speedy trial rights, (2) that he was
prejudiced by the court's denial of his motion for a new attorney, and (5) that he
received ineffective assistance of counsel.
Irwin's fourth ground for review is that there was insufficient evidence to
convict him on count IV. When defendants plead guilty, they waive their right to
contest the sufficiency of the State's proof against them. State v. Carrier, 36 Wn.
App. 755, 757, 677 P.2d 768 (1984). Irwin pleaded guilty to count IV. Therefore,
he waived his right to challenge the sufficiency of the State's evidence on this
count. See Carrier, 36 Wn. App. at 757.
Irwin's sixth ground for review is that he was prejudiced by being arrested
at home before the State issued a warrant for his arrest. He does not allege any
specific prejudice from this arrest (such as items being discovered incident to an
unconstitutional arrest). The record suggests that all incriminating items were
discovered pursuant to a valid search warrant, obtained after Irwin's arrest.
Seventh, Irwin argues that he was prejudiced by the State repeatedly
amending the information against him. Washington's court rules state that "[t]he
17 Irwin crossed out his third additional ground, so the grounds are numbered 1, 2, 4, 5, 6, 7, and 8. For ease of reference, this opinion refers to the arguments by their designated number, even though there is no "third" ground. 15 No. 72338-3-1/16
court may permit any information or bill of particulars to be amended at any time
before verdict or finding if substantial rights of the defendant are not prejudiced."
CrR 2.1(d). It is not error for the court to allow repeated amendments unless the
defendant can show prejudice. State v. Collins. 45 Wn. App. 541, 551, 726 P.2d
491 (1986). Irwin has not alleged any prejudice beyond the fact that the
amendments were allowed. Therefore, the court will not reverse on this ground.
See Collins, 45 Wn. App. at 551.
Eighth, Irwin argues that his warrant of commitment and judgment and
sentence were not signed properly. The judge's or court commissioner's
signature on the sentence is illegible and his or her name is not printed beneath,
but it can reasonably be interpreted as Michael Rickert. The warrant of
commitment contains Judge Rickert's stamp, rather than a signature. Irwin does
not indicate any prejudice resulting from these authorizations or point to any
authority that indicates this is error.
We affirm the community custody conviction related to technology, and
reverse the community custody condition prohibiting Irwin from frequenting areas
where children are known to congregate, as defined by the supervising CCO.
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