State Of Washington v. Troy Lynn Perkins ( 2013 )


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    IN THE COURT OF APPEALS OF THE STATE OF WASHI - ,'
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    DIVISION II'
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    STATE OF WASHINGTON,                                                                 No. 42793 -1 - II
    Respondent,
    V.
    TROY LYNN PERKINS,                                                              UNPUBLISHED OPINION
    Appellant.
    PENOYAR, J. —            Troy Lynn Perkins appeals six community custody conditions included in
    his judgment and sentence after he pleaded guilty, as an accomplice, to sexual exploitation of a
    minor. Perkins contends that the challenged conditions are either unconstitutionally vague or
    unrelated      to   his   offense.    The State responds that we need not reach the merits of Perkins' s
    appeal   because the trial         court   erroneously imposed         a   determinate   sentence.   We agree with the
    State that the trial court imposed an unlawful sentence and remand for either the withdrawal of
    Perkins'   s   plea       or   his resentencing.      We also address the challenged community custody
    conditions because of their likely imposition on remand.
    FACTS
    The State charged Perkins with sexual exploitation of a minor as an accomplice after he
    persuaded his girl friend to engage in sexual activity with a minor while he watched via a Yahoo!
    chat room " webcam."               Perkins had     a prior " strike"       offense for first degree child rape, and he
    agreed to plead guilty as charged and to accept an exceptional sentence so that he could avoid
    trial   on an amended " second strike"              charge.   His plea agreement stated that the indeterminate
    sentencing      provisions       in RCW 9. 94A. 507      applied.      In its   presentence   investigation ( PSI)   report,
    42793 -1 - II
    the Department of Corrections ( DOC) recommended an exceptional sentence of 100 months as
    well as the community custody conditions contained in an attached Appendix F.
    Perkins' s statement on plea of guilty described the consequences of indeterminate
    sentencing         under   RCW 9. 94A. 507 but did         not   indicate that they    applied   to his     offense.    During
    the plea hearing, the State informed the trial court that the indeterminate sentencing provisions
    did apply to Perkins, and the trial court explained that he would receive a minimum term
    sentence and a maximum term of 120 months, and that he would remain under DOC supervision
    until   the   maximum         term    expired.      The court did not refer to the role of the Indeterminate
    Sentence        Review       Board        in   reviewing   Perkins'    s . sentence.     Despite      its    explanation    of
    indeterminate sentencing, the trial court subsequently imposed the exceptional determinate
    sentence      to   which    the   parties agreed:     100 months of confinement and 36 months of community
    custody.      The court left blank the provisions regarding RCW 9. 94A.507 in the printed judgment
    and sentence.
    The trial court also imposed the DOC- recommended community custody conditions from
    Appendix F. These conditions included the following:
    Possess /access          no   sexually     exploitative    materials (     as   defined      by
    Defendant' s treating therapist or CCO).
    Frequent       no    adult    book   stores,    arcades,   or places     providing       sexual
    entertainment.
    Possess /access                                             explicit     materials,      and /
    or
    no   pornography,      sexually
    information pertaining to minors via computer ( i.e. internet).
    Contact      no "   900" telephone numbers that offer sexually explicit material.
    Provide copies of phone records to CCO.
    Do not loiter or frequent places where children congregate including, but
    not limited to, shopping malls, schools, playgrounds, and video arcades.
    Do not hitchhike or pick up hitchhikers.
    2
    42793 -1 - II
    Clerk'   s    Papers ( CP)         at    51.       Perkins objected to these conditions                  as unconstitutional      and
    unnecessary, but the trial court rejected his challenge.
    After Perkins appealed the community custody conditions set forth above, the State
    moved to remand for resentencing or plea withdrawal and to dismiss his appeal, arguing that the
    trial court had imposed an unlawful determinate sentence where indeterminate sentencing was
    required.         We denied the motion but directed the State to brief the sentencing issue in its
    appellate brief.
    ANALYSIS
    I.           STATE' S SENTENCING CHALLENGE
    The State contends that the trial court imposed an unlawful sentence that we should
    vacate without           addressing Perkins'              s    community custody          conditions.   The State adds that it may
    raise this challenge under RAP 2. 4 despite its failure to file a cross appeal under RAP 5. 1( d).
    We   agree     that   review of            this issue is       warranted    despite the lack    of a cross appeal.   See
    RAP 2. 4( a)       (   appellate court may grant affirmative relief to respondent despite failure to file a
    cross    appeal        if demanded           by   the    necessities of       the   case). "   Courts have the duty and power to
    correct an erroneous sentence upon                            its   discovery." In re Pers. Restraint of Call, 
    144 Wash. 2d 315
    ,
    334, 
    28 P.3d 709
    ( 2001);               see also In re Pers. Restraint ofMoore, 
    116 Wash. 2d 30
    , 38 -39, 
    803 P.2d 300
    ( 1991) (          court could not allow sentence to stand where it exceeded the authority vested in the
    trial court       by     the legislature).              If an erroneous sentence is not corrected otherwise, DOC is
    authorized to seek its correction in the trial court and, if necessary, to file a post- sentence petition
    seeking its review. RAP 16. 18. We thus turn to the substance of the State' s challenge.
    If   an    offender        is   subject      to        an   indeterminate    sentence   under    RCW 9. 94A.507, the
    sentencing       court shall       impose         a maximum              term    and a minimum      term.   RCW 9. 94A. 507( 3)( a).
    9
    42793 -1 - II
    The maximum term shall consist of the statutory maximum sentence for the offense, and the
    minimum term shall be either within the statutory standard range or outside that range under
    RCW        9. 94A. 535.     RCW      9. 94A. 507( 3)( b), (      c)(   i).   When the      minimum      term   expires,   the
    Indeterminate Sentence Review Board decides whether to release the defendant into community
    custody for the time left under the maximum term or impose a second minimum term of
    incarceration. In. re Postsentence Review ofHudgens, 
    156 Wash. App. 411
    , 421 -22, 
    233 P.3d 566
    2010); RCW 9. 95. 420( 3)(        a).    Such reviews have the potential to extend imprisonment to the
    maximum         sentence.       See State    v.   Brundage,       126 Wn.        App.     55, 63,   
    107 P.2d 742
    ( 2005)
    discussing indeterminate sentencing as previously codified under former RCW 9. 94A.712).
    An offender who is not a persistent offender shall be sentenced under RCW 9. 94A.507 if
    he has     a prior conviction      for   a " strike"   offense and is convicted of any sex offense other than
    failure to    register.   RCW 9. 94A. 507( 1)( b). Perkins' s prior conviction of first degree child rape is
    a strike offense, and his current conviction of sexual exploitation of a minor is a sex offense.
    Former RCW 9. 94A. 030( 36)( b)( i), ( 45)(             a)(   iii) ( 2010).      Consequently, he should have been
    sentenced under the indeterminate sentencing provisions of RCW 9. 94A.507 to a maximum term
    of   120    months    and   a   minimum      term      determined        by   the trial   court.    The trial court instead
    imposed an exceptional determinate sentence of 100 months, with 36 months of community
    custody.        See RCW 9. 94A.030( 18) ( determinate sentence states with exactitude the number of
    months of confinement and community custody).
    Perkins argues that the agreed sentence must be imposed because he pleaded guilty in
    exchange for the State' s agreement not to sentence him as a persistent offender under the " two
    strikes" law. See In re Pers. Restraint of Carrier, 
    173 Wash. 2d 791
    , 797 -98, 
    272 P.3d 209
    ( 2012)
    under " two strikes" option, defendant qualifies as persistent offender if convicted of at least two
    M
    42793 -1 - II
    enumerated sex offenses);              RCW 9. 94A. 570.         This     argument   is   somewhat   misleading. The State
    agreed that if Perkins pleaded guilty, it would not amend his charge to one that would require a
    life   sentence as      a persistent     offender   if    a   jury   found him guilty.        Perkins' s current charge of
    sexual exploitation of a minor is not one of the enumerated " two strikes" offenses. Former RCW
    9. 94A.030( 36)( b)( i), ( ii).          Consequently,         contrary to     his       argument   here,   invalidating the
    determinate sentence does not automatically render him susceptible to a life sentence as a
    persistent offender.
    Moreover, the remedy of specific performance of a plea agreement is not available where
    the resulting        sentence   is   unlawful.    State v. Barber, 
    170 Wash. 2d 854
    , 873, 
    248 P.3d 494
    ( 2011).
    Where the parties have agreed to a sentence that is contrary to law, the defendant may elect to
    withdraw his plea, particularly where, as here, he was not accurately informed of the direct
    consequences of          his   plea.    
    Barber, 170 Wash. 2d at 858
    , 872 -74; see 
    Hudgens, 156 Wash. App. at 415
    -17 ( plea was involuntary where defendant was not fully informed of its consequences due to
    mistaken     understanding that determinate sentencing                     applied).      If Perkins decides to endorse his
    plea, however, he must be resentenced under RCW 9. 94A.507.
    We therefore remand with instructions to the trial court to vacate Perkins' s sentence and
    allow    him to      either withdraw      his   plea or   be    resentenced under         RCW 9. 94A. 507.     Although this
    result does not require us to consider Perkins' s challenge to the community custody conditions,
    we do so because of the likelihood that the same conditions will be imposed on resentencing.
    See State      v.   Slert, 169 Wn.       App.    766, 768, 
    282 P.3d 101
    ( 2012) (             addressing issues that are
    technically     moot    but    likely   to   recur on remand),          review granted on other grounds, 
    176 Wash. 2d 1031
    ( 2013).
    5
    42793 - 1 - II
    II.          COMMUNITY CUSTODY CONDITIONS
    Perkins argues that six of his community custody conditions are unlawful either because
    they are unconstitutionally vague or because they are unrelated to the circumstances of his
    offense.
    Community custody conditions generally will be reversed only if their imposition is
    unreasonable.   State   v.   Valencia, 
    169 Wash. 2d 782
    , 791 - 92, 
    239 P.3d 1059
    ( 2010).      The
    manifestly
    imposition          of an unconstitutional condition       is manifestly   unreasonable.    
    Valencia, 169 Wash. 2d at 792
    .     An offender challenging a condition of custody does not have to overcome a presumption
    of constitutionality because a sentencing condition is not a law enacted by the legislature and
    does     not    have the   same presumption of         validity.    
    Valencia, 169 Wash. at 792
    ; State v. Bahl, 
    164 Wash. 2d 739
    , 753, 
    193 P.3d 678
    ( 2008).                    Nor does the challenger need to demonstrate that the
    condition has been enforced; a preenforcement challenge is ripe for review. 
    Bahl, 164 Wash. 2d at 752
    . With these standards in mind, we turn to Perkins' s vagueness challenge.
    A.       VOID FOR VAGUENESS
    Perkins argues that three of the conditions imposed are unconstitutionally vague:
    Possess /access no sexually exploitive materials ( as defined by Defendant' s
    treating therapist or CCO).
    Possess /access     no     pornography,     sexually   explicit    materials,   and /
    or
    information pertaining to minors via computer ( i.e. internet)[.]
    Do not loiter or frequent places where children congregate including, but
    not limited to, shopping malls, schools, playgrounds, and video arcades.
    CPat51.
    The due process vagueness doctrine under the state and federal constitutions requires that
    citizens have fair warning of proscribed conduct. 
    Bahl, 164 Wash. 2d at 752
    ( citing WASH. CONST.
    art.   I,   sec.   3; U.S. CONST.,   amend.      XIV).   A sentencing condition is unconstitutionally vague if it
    1
    42793 -1 - II
    does not define the proscribed conduct with sufficient definiteness that ordinary people can
    understand what is prohibited, or if it does not provide ascertainable standards of guilt to protect
    against   arbitrary      enforcement.            
    Bahl, 164 Wash. 2d at 752
    -53.     The requirement of sufficient
    definiteness does not demand impossible standards of specificity or absolute agreement
    concerning       a   term'   s   meaning;   some amount of           imprecision in the language is        allowed.      State v.
    Coria, 
    120 Wash. 2d 156
    , 163, 
    839 P.2d 890
    ( 1992).
    When conditions implicate a defendant' s First Amendment rights, an added layer of
    protection      is   provided.      
    Bahl, 164 Wash. 2d at 757
    .   Although a defendant' s constitutional rights
    while serving community custody are subject to restrictions authorized by the Sentencing
    Reform Act, such conditions must be imposed sensitively and demand a greater degree of
    specificity. 
    Bahl, 164 Wash. 2d at 757
    . Perkins asserts that all of the conditions at issue implicate
    his First Amendment rights. See Virginia St. Bd. of Pharmacy v. Virginia Citizens Consumer
    Council, Inc., 
    425 U.S. 748
    , 756, 
    96 S. Ct. 1817
    , 
    48 L. Ed. 2d 346
    ( 1976) (                             protection afforded
    under First Amendment " is to the communication, to its source and to its recipients both ").
    Perkins       argues      initially     that   the   restriction       on   possessing   and   accessing " sexually
    exploitive      materials"         is unconstitutionally vague because the quoted term is not statutorily
    defined.     He asserts that this vagueness is underscored by the fact that the term is to be defined
    his treating therapist                              corrections officer ( CCO),          and he points out that this same
    by                                  or   community
    type of delegation supported a vagueness challenge in Bahl.
    At issue in Bahl was a community custody condition prohibiting the defendant from
    directed         his CCO.   
    164 Wash. 2d 754
    . The
    possessing      or   accessing     pornographic materials as                         by                           at
    court observed that the term " pornography" had never been given a precise legal definition and
    that many courts, including Division One of this court, had rejected sentencing conditions
    VA
    42793- 1- 11
    access   to   or possession of        pornography      as   unconstitutionally   vague.    164 Wn.2d at
    prohibiting
    754 -56 ( citing State,        v.   Sansone, 127 Wn.           App. 630,     
    111 P.3d 1251
    ( 2005)).      The Bahl court
    agreed that the restriction on accessing or possessing pornography was constitutionally infirm,
    adding that the fact that the CCO could direct what fell within the condition made the vagueness
    problem more 
    apparent. 164 Wash. 2d at 758
    .
    The State responds that the term " sexually exploitive materials" is not vague because of
    two    related   statutory definitions.          The first provides that a person is guilty of sexual exploitation
    of a minor if he compels a minor by threat or force to engage in sexually explicit conduct
    knowing that such conduct will be photographed or part of a live performance; or if he aids,
    invites, employs, authorizes, or causes a minor to engage in sexually explicit conduct, knowing
    that   such conduct will            be   photographed        or part of a   live   performance.   RCW 9. 68A.040( 1)( a),
    b).   According     to the State, it follows that " sexually               exploitive materials"   are those that feature
    live or photographic performances of people engaged in sexually explicit conduct, which is
    defined by statute as actual or simulated:
    a)Sexual intercourse, including genital- genital, oral -genital, anal- genital,
    or oral -anal, whether between persons of the same or opposite sex or between
    humans and animals;
    b)   Penetration of the vagina or rectum by any object;
    c)   Masturbation;
    d) Sadomasochistic abuse;
    e)    Defecation or urination for the purpose of sexual stimulation of the
    viewer;
    f) Depiction of the genitals or unclothed pubic or rectal areas of any
    minor, or the unclothed breast of a female minor, for the purpose of sexual
    stimulation of        the      viewer... ;   and
    g)        Touching of a person' s clothed or unclothed genitals, pubic area,
    buttocks, or breast area for the purpose of sexual stimulation of the viewer.
    RCW 9. 68A.011( 4).
    42793 -1 - II
    When viewed together, these statutes do not require persons of ordinary intelligence to
    guess   at   what       is    meant      by    the       condition   prohibiting       access   to   or    possession    of "   sexually
    exploitive      materials."            See   City    of Spokane      v.    Douglass, 
    115 Wash. 2d 171
    ,             180, 
    795 P.2d 693
    1990) (   where citizens may seek clarification by resorting to statements of law in statutes and
    court rulings,       term     in   enactment        is   not   unconstitutionally      vague even     if   undefined).    It would be
    impossible to list every type                   of prohibited        conduct; "[      s] entencing courts must inevitably use
    categorical     terms to frame the             contours of supervised release conditions."                    United States v. Paul,
    
    274 F.3d 155
    , 167 ( 5th Cir. 2001); see United States v. Phipps, 
    319 F.3d 177
    , 192 -93 ( 5th Cir.
    2003) ( reading          condition           barring      possession       of "   sexually oriented or sexually stimulating
    materials"      in   commonsense              way    and    rejecting     vagueness challenge).           While there may be areas
    of disagreement concerning the materials that fall within this condition, and while Perkins' s
    therapist and        CCO have            some control over           its   scope, we       hold that the     reference   to " sexually
    exploitive materials"              is   not so subjective as         to    be constitutionally       suspect.   See 
    Douglass, 115 Wash. 2d at 181
    (    statute supplies adequate standards unless it proscribes conduct by resort to
    inherently subjective terms).'
    Perkins next contends that the prohibition on accessing " pornographic, sexually explicit
    materials" is unconstitutionally vague. This is the language of the condition recommended in the
    PSI   report rather          than the language of the             condition       imposed in the judgment        and sentence.      The
    condition      in Perkins'        s    judgment         and   sentence        prohibits   him from possessing " pornography,
    explicit materials,                  or
    and /       information pertaining to          minors via computer."          CP at 51.
    sexually
    The State concedes that the reference to pornography is unconstitutionally vague under Bahl. As
    Reference to the statutes defining " sexually exploitive materials" in any future orders would
    help avoid future vagueness claims.
    9
    42793- 1- 11
    Perkins       admits,     the condition is otherwise valid under Bahl, which rejected a vagueness
    challenge      to   a   condition      restricting the defendant'     s   access   to sexually   explicit   
    material. 164 Wash. 2d at 760
    .
    Perkins' s final vagueness challenge is to the condition prohibiting him from loitering in
    or    frequenting         places       where    children   congregate,       including     shopping     malls,    schools,
    playgrounds,        and video       arcades.    Perkins    complains      that the   reference   to " shopping   malls"   is
    unconstitutionally            vague.   Our Supreme Court has held that it is proper for a court to order a sex
    offender not to frequent places where minors are known to congregate. State v. Riles, 
    135 Wash. 2d 326
    , 347 -49, 
    957 P.2d 655
    ( 1998), abrogated on other grounds, State v. Valencia, 
    169 Wash. 2d 782
    , 
    239 P.3d 1059
    ( 2010);              see also 
    Paul, 274 F.3d at 166
    -67 ( affirming condition prohibiting
    defendant from visiting locations " frequented                  by    minors ").     The fact that the trial court here
    chose to give specific examples of such places does not render this condition unconstitutionally
    vague.    The case, Perkins cites to assert that the term " shopping mall" carries many meanings is
    unpersuasive;           the   fact that the term " shopping      center"    is   vague   does   not mean    that " shopping
    mall"    is   vague      as well.      See In   re   Joshua Slocum Ltd., 
    922 F.2d 1081
    ,            1087 ( 3d Cir. 1990)
    to " shopping               in federal   bankruptcy     code).   We reject Perkins' s
    interpreting       reference                        center"
    vagueness challenge.
    B.            CRIME- RELATED PROHIBITIONS
    At issue here are the community custody conditions prohibiting Perkins from hitchhiking
    or   picking up hitchhikers, contacting " 900"                  telephone numbers that offer sexually explicit
    material, and frequenting adult bookstores, arcades, or places providing sexual entertainment.
    RCW 9. 94A.505( 8) authorizes the trial court to impose " crime- related prohibitions" as a
    condition      of sentence.           In re Pers. Restraint of Rainey, 
    168 Wash. 2d 367
    , 374, 
    229 P.3d 686
                                                                     10
    42793 -1 - II
    20 10).    Crime -related prohibitions allow the sentencing court to prohibit conduct that relates
    to the                        the           for           the   offender   has been    convicted.   State v.
    directly            circumstances   of         crime         which
    Berg,   147 Wn.     App. 923,   942, 
    198 P.3d 529
    ( 2008), abrogated on other grounds, State v. Mutch,
    
    171 Wash. 2d 646
    , 
    265 P.3d 803
    ( 2011).            No causal link need be established between the conditions
    imposed and the crime committed as long as the condition relates to the circumstances of the
    crime. State v. Llamas -Villa, 
    67 Wash. App. 448
    , 456, 
    836 P.2d 239
    ( 1992).
    The State   concedes   that the     condition     addressing    hitchhiking   is   not crime related.   The
    State    defends the     restrictions    on    calling " 900"      telephone numbers and frequenting adult
    bookstores, arcades, or places providing sexual entertainment, however, as valid crime -related
    prohibitions.       Perkins' s crime occurred when he persuaded a woman, during contact on a
    website,   to have a      sexual   encounter with      a minor.        The State contends that
    sexually- oriented
    limiting the possibility of similar future contact is reasonably related to the circumstances of his
    crime.     According to the State, adult bookstores and 900 numbers are not so different from an
    adult website that they are not related to the circumstances of Perkins' s crime.
    Perkins argues that 900 numbers and adult bookstores are legal and licensed businesses,
    but the Yahoo!        website was   legal      and   licensed   as well.    Prohibiting him from seeking sexual
    entertainment by calling 900 numbers or visiting places that provide such entertainment is not
    unrelated    to the   circumstances of    his   offense.     We uphold the conditions at issue as valid crime -
    related prohibitions.
    We remand for vacation of Perkins' s sentence and for either the withdrawal of his plea or
    his resentencing      under   RCW 9. 94A.507.         Upon resentencing, the trial court shall not reimpose
    the community custody conditions barring Perkins from possessing or accessing pornography
    and from hitchhiking or picking up hitchhikers.
    11
    42793 - 1 - II
    A majority of the panel having determined that this opinion will not be printed in the
    Washington Appellate Reports, but will be filed for public record in accordance with RCW
    2. 06. 040, it is so ordered.
    We concur:
    Maxa, J.
    4pe-
    4ar          man, J.
    12