State Of Washington, V. Tyre Johnson

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

THE STATE OF WASHINGTON, No. 86004-6-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION TYRE M. JOHNSON,

Appellant.

MANN, J. — Tyre Johnson pleaded guilty to robbery in the first degree. Johnson

appeals and challenges a community custody condition requiring him to remain within

certain geographic boundaries. We remand for the court to strike the community

custody condition.

I

Johnson was charged by amended information with kidnapping in the first degree

and robbery in the first degree. Johnson pleaded guilty to robbery in the first degree

and the State dismissed the kidnapping charge. Johnson was sentenced to a standard

range sentence and community custody. Community custody condition 8 required No. 86004-6-I/2

Johnson to “remain within geographic boundaries, as set forth in writing by the

Department of Corrections Officer or as set forth with SODA1 order.”

Johnson appeals.

II

Johnson argues that community custody condition 8 is unconstitutionally vague.

We agree.

We review community custody conditions for abuse of discretion. A trial court

necessarily abuses its discretion if it imposes an unconstitutional community custody

condition. State v. Wallmuller, 194 Wn.2d 234, 238, 449 P.3d 619 (2019). We review

constitutional questions de novo. Wallmuller, 194 Wn.2d at 238.

Under Article I, section 3 of the Washington State Constitution, the due process

vagueness doctrine requires the State to provide citizens with fair warning of proscribed

conduct. State v. Bahl, 164 Wn.2d 739, 752, 193 P.3d 678 (2008). A community

custody condition is void for vagueness if it “‘(1) . . . does not define the criminal offense

with sufficient definiteness that ordinary people can understand what conduct is

proscribed, or (2) . . . does not provide ascertainable standards of guilt to protect

against arbitrary enforcement.’” Bahl, 164 Wn.2d at 752 (alterations in original) (quoting

City of Spokane v. Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990)).

In State v. Irwin, 191 Wn. App. 644, 652, 364 P.3d 830 (2015), the court

addressed the constitutional vagueness of a similar community custody condition: “Do

not frequent areas where minor children are known to congregate, as defined by the

1 “Stay out of Drug Area.”

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supervising CCO.” The court held that “without some clarifying language or an

illustrative list of prohibited locations . . . the condition does not give ordinary people

sufficient notice to ‘understand what conduct is proscribed.’” Irwin, 191 Wn. App. at

655; see also State v. Greenfield, 21 Wn. App. 2d 878, 508 P.3d 1029 (2022) (holding

“Stay out of drug areas, as defined in writing by the supervising Community Corrections

Officer” to be unconstitutionally vague). The court noted that notice may be sufficient

once the community custody officers set the prohibited locations but the condition

remained “vulnerable to arbitrary enforcement.” Irwin, 191 Wn. App. at 655. Like Irwin,

community custody condition 8 does not give ordinary people sufficient notice because

it does not adequately describe the prohibited geographic boundaries. Nor does it

protect against arbitrary enforcement.

The State relies on State v. Johnson, 197 Wn.2d 740, 487 P.3d 893 (2021), and

asserts that the condition is not unconstitutionally vague. That case is distinguishable.

In Johnson, the community custody condition did not involve geographical boundaries

but instead prevented Johnson from soliciting sex with a minor by prohibiting his use of

the internet unless specifically authorized by a community custody officer. 197 Wn.2d

at 744. Johnson challenged the constitutionality of the condition, claiming it lacked

“sufficiently specific standards to prevent arbitrary enforcement by his future community

custody officer.” Johnson, 197 Wn.2d at 748. Our Supreme Court explained that when

read in the context of the judgment and sentence and related documents, “there are

sufficient benchmarks to prevent arbitrary enforcement.” Johnson, 197 Wn.2d at 748.

But here, community custody condition 8 restricts an individual’s physical movement.

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That is not the same as restricting internet access through filters to prohibit someone

from soliciting sex with a minor online.

The State also relies on State v. Ortega, 21 Wn. App. 2d 488, 506 P.3d 1287

(2022), but that case is distinguishable. In Ortega, the community custody condition

required Ortega to comply with “crime-related prohibitions: Per CCO.” 21 Wn. App. 2d

at 496. The court held that the condition “did not grant Ortega’s CCO unbridled

discretion to proscribe conduct because the Department’s authority is defined by

statute. Thus, this condition is not unconstitutionally vague.” Ortega, 21 Wn. App. 2d at

496. But unlike Ortega, community custody condition 8 limits Johnson’s physical

movement.

Without more information, the community custody condition is not sufficiently

defined and vulnerable to arbitrary enforcement. We remand for the court to strike the

community custody condition.

WE CONCUR:

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