State of Washington v. Joshua James Lewandowski

FILED
JANUARY 11, 2022
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 37752-1-III
Respondent, )
)
v. )
)
JOSHUA JAMES LEWANDOWSKI, ) UNPUBLISHED OPINION
)
Appellant. )
STAAB, J. — Joshua James Lewandowski pleaded guilty to first degree rape of a
child and was sentenced to community custody conditions prohibiting contact with
minors for the rest of his life, and submitting to urinalysis and breathalyzer testing.
RCW 9A.44.073 (class A felony). Mr. Lewandowski challenges these conditions on
appeal, arguing that he is entitled to an exception for contact with his own future
biological children, and that the urinalysis and breathalyzer testing are unrelated to the
charge. The State concedes both issues. Despite the State’s concession, we hold that the
requirement for urinalysis testing is reasonably related to the valid condition that Mr.
No. 37752-1-III
State v. Lewandowski
Lewandowski not use or consume non-prescribed controlled substances. We affirm the
sentence and remand to modify the community custody condition to allow contact with
future biological children and strike the condition requiring breathalyzer testing.1
FACTS
On November 16, 2016, the sheriff for Whitman County, Brett Myers, was
contacted by Sergeant Keith Cooper regarding a child sexual assault. A full rape kit was
conducted with the child at the hospital. After a full investigation including an interview
of Mr. Lewandowski, Officer Myers determined there was probable cause and arrested
Mr. Lewandowksi. On January 13, 2017, Mr. Lewandowski pleaded guilty to one count
of rape of a child in the first degree. In the charging document, the State alleged that Mr.
Lewandowski had sexual intercourse with a four-year-old boy, K.J. The charges did not
indicate involvement of any alcohol or substance use or abuse.
On March 3, 2017, Mr. Lewandowski was sentenced to 123 months’ incarceration
and lifetime community custody. The court imposed multiple conditions of community
custody. Under the crime related prohibitions number 5, the court prohibited Mr.
Lewandowski from having contact with any minors. Under the affirmative conduct
requirements, the court prohibited Lewandowski from consuming or possessing non-
1
Mr. Lewandowski’s direct appeal was originally consolidated with his personal
restraint petition, No. 38043-2-III. By letter dated June 24, 2021, this court severed the
consolidation and directed that the cases be reviewed independent of each other.
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No. 37752-1-III
State v. Lewandowski
prescribed controlled substances, and required Lewandowski to submit to urinalysis and
breathalyzer testing.
ANALYSIS
Community custody conditions are reviewed for abuse of discretion. State v.
Padilla, 190 Wn.2d 672, 677, 416 P.3d 712 (2018). A trial court’s decision is an abuse
of discretion when it clearly shows that the trial court’s discretion was manifestly
unreasonable, or exercised on untenable grounds, or for untenable reasons. State ex rel.
Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Mr. Lewandowski challenges the community custody condition that prohibits him
from having contact with any minor, arguing that if he has children in the future, this
blanket prohibition will violate his constitutional right to parent his child. Mr.
Lewandowski raises the constitutional issue that one has a “fundamental right to the care,
custody, and companionship of one’s children.” In re Pers. Restraint of Rainey, 168
Wn.2d 367, 374, 229 P.3d 686 (2010). The court has limited these constitutional rights if
the parent’s actions seriously conflict with the physical and mental well-being of the
child. In re Welfare of Sumey, 94 Wn.2d 757, 762, 621 P.2d 108 (1980); RCW
29.09.002. The sentencing court may impose conditions upon the person when they are
essential to accomplish the State’s needs of protecting the child. Rainey, 168 Wn.2d at377 (citing State v. Warren, 165 Wn.2d 17, 32, 195 P.3d 940 (2008)).
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State v. Lewandowski
The condition implemented by the trial court under community custody condition
number 5 prohibits Mr. Lewandowksi from contact with minors. Mr. Lewandowski did
not victimize someone who was his biological child or a child of someone with whom he
was in a relationship. The trial court’s record did not contain evidence that supervised or
indirect contact with biological children would put such children in danger. Mr.
Lewandowski correctly asserts a violation of his fundamental rights. The State
unconstitutionally interfered with his familial relationship. United States v. Loy, 237 F.3d
251, 269-70 (3d Cir. 2001). The State concedes that the condition is overbroad and
should be narrowed.
Mr. Lewandowski also challenges the community custody conditions that require
him to submit to testing by urinalysis and breathalyzer as directed by his community
corrections officer. Although the State concedes on both issues, we are not bound by an
erroneous concession. State v. Lewis, 62 Wn. App. 350, 351, 814 P.2d 232 (1991). As a
condition of his community custody, Mr. Lewandowski was prohibited from possessing
or consuming non-prescribed controlled substances. Because this non-crime related
condition is authorized by RCW 9.94A.703(2)(c), the court has discretion to order
urinalysis testing to enforce this condition. State v. Vant, 145 Wn. App. 592, 604, 186
P.3d 1149 (2008).
On the other hand, the court did not prohibit Mr. Lewandowski from possessing or
consuming alcohol. Consequently, the condition to submit to breathalyzer testing under
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State v. Lewandowski
condition number 10 was not related to the conditions of his community custody and was
therefore untenable.
We affirm Mr. Lewandowski’s sentence but remand with instructions to amend
the community custody conditions so that condition number 5 does not prevent Mr.
Lewandowski from having contact with his own children, and striking condition number
10 requiring breathalyzer testing.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_________________________________
Staab, J.
WE CONCUR:
_________________________________
Fearing, J.
_________________________________
Pennell, C.J.
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