Personal Restraint Petition Of Raymond H Moultrie ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
IN THE MATTER OF THE No. 71580-1-1
PERSONAL RESTRAINT OF:
RAYMOND H. MOULTRIE, DIVISION ONE
UNPUBLISHED OPINION " • GO
Petitioner.
FILED: March 9, 2015
PER CURIAM. Raymond Moultrie was convicted of second degree rape:
following an incident in which he sexually assaulted a developmentally disabled;CO
woman while working as a door-to-door magazine salesman. He filed this
personal restraint petition challenging, among other things, the following
community custody conditions:
(17) Do not purchase, possess or use alcohol (beverage or
medicinal), and submit to testing and reasonable searches of your
person, residence, property and vehicle by the Community
Corrections Officer.
(24) Do not access the Internet without the prior approval of your
Community Corrections Officerand sex offender treatment
provider.1
When, as here, a petitioner raises issues that were afforded no previous
opportunity for judicial review, the petitioner must demonstrate that he is under
restraint and that the restraint is unlawful. RAP 16.4: see also In re Pers.
Restraint of Cashaw, 123 Wash. 2d 138, 148-49, 866 P.2d 8 (1994); In re Pers.
Restraint of Cook, 114 Wash. 2d 802, 813, 792 P.2d 506 (1990).
1The Acting Chief Judge previously dismissed Moultrie's remaining claims as
frivolous.
No. 71580-1-1/2
Asentencing court may impose sentencing conditions that are required
or allowed by law. In re Pers. Restraint of Carle, 93 Wash. 2d 31, 33, 604 P.2d
1293 (1980). Asentencing court also has the ability to enforce the conditions it
imposes. State v. Vant. 145 Wash. App. 592, 603-604, 186 P.3d 1149 (2008).
Former RCW 9.94A.703(5)(d) (2003), in effect at the time of Moultrie's offense,
provides that, as a condition of community custody, an offender "shall not
consume alcohol," unless this condition is explicitly waived by the sentencing
court. Former RCW 9.94A.703(5)(e) (2003) also gives a sentencing court the
discretion to impose "crime-related prohibitions" as a condition of community
custody. A"crime-related prohibition" is one that involves "conduct that directly
relates to the circumstances of the crime for which the offender has been
convicted." RCW 9.94A.030(10).
The State concedes that there is no evidence that alcohol was involved
in Moultrie's crime. Therefore, while the sentencing court was authorized to
prohibit Moultrie from consuming alcohol pursuant to former RCW
9.94A.703(5)(d) (2003) and to require Moultrie to submit to testing to enforce
this condition, it did not have the authority to prohibit him from possessing or
purchasing alcohol. The State also concedes that the condition regarding
access to the Internet must be stricken because there is no evidence that the
Internet contributed to Moultrie's offense. We remand the matter to the
2-
No. 71580-1-1/3
sentencing court to strike the portion of condition (17) related to the purchase
and possession of alcohol and to strike condition (24) in its entirely.2
For the court:
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2Our directions should not be interpreted to preclude the Department of
Corrections from imposing any other conditions authorized by statute, nor to
preclude such restrictions on Moultrie's conduct ifthey are imposed as part of the
sexual deviancy evaluation ordered or treatment recommended.