State Of Washington v. Shawn Morgan

Filed
Washington State
Court of Appeals
Division Two
October 1, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 51558-0-II
Respondent,
v.
SHAWN DEE MORGAN, UNPUBLISHED OPINION
Appellant.
WORSWICK, J. — Shawn Morgan appeals various sentencing conditions imposed
following his guilty plea to eight counts of first degree unlawful possession of depictions of a
minor engaged in sexually explicit conduct. He argues that the five conditions should be struck
because they are not crime related, and that two conditions should be struck because they are
unconstitutionally vague. The State and Morgan both argue that certain legal financial
obligations (LFOs) are no longer authorized. We affirm some conditions, but remand to the trial
court to modify community custody conditions relating to entering drug areas, bar, taverns, or
lounges and requiring Morgan to obtain an alcohol evaluation, and to strike certain LFOs
consistent with this opinion.
FACTS
Law enforcement officers discovered child pornography on Morgan’s computer and in
Morgan’s residence. The State initially charged Morgan with 47 counts of first degree unlawful
possession of depictions of a minor engaged in sexually explicit conduct.1 As part of a plea deal,
1
RCW 9.68A.070(1).
No. 51558-0-II
the State amended the information to charge Morgan with eight counts of first degree unlawful
possession of depictions of a minor engaged in sexually explicit conduct, which he pleaded
guilty to.
In the presentence investigation, Morgan reported that he first drank alcohol in
elementary school, but that it had “never caused a problem for him.” Clerk’s Papers (CP) at 156.
He also reported that methamphetamines had been “the most problematic controlled substance
for him.” CP at 156. The presentence investigation report listed Morgan’s drug dependency as a
risk for reoffending.
The court imposed a term of confinement of 102 months, and community custody. The
court imposed various community custody conditions. Relevant here, the court imposed the
following conditions:
SPECIAL CONDITIONS – SEX OFFENSES RCW 9.94A.703 & .704
....
5. Inform the supervising [community corrections officer] CCO and sexual
deviancy treatment provider of any dating relationship.
....
11. Do not use or consume alcohol and/or Marijuana.
....
Offenses Involving Alcohol/Controlled Substances -
19. [X] Do not purchase or possess alcohol.
20. [X] Do not enter drug areas as defined by court or CCO.
21. [X] Do not enter any bars/taverns/lounges or other places where alcohol is
the primary source of business. This includes casinos and or any locations
which requires you to be over 21 years of age.
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No. 51558-0-II
22. [X] Obtain [X] alcohol [and] [X] chemical dependency evaluation upon
referral and follow through with all recommendations of the evaluator.
CP at 112-13.
The court also imposed LFOs, including criminal filing fee, DNA2 collection fee, and
interest. Morgan appeals.
ANALYSIS
Morgan argues that conditions 11, 19, 21, and 22 are not statutorily authorized and that
conditions 5 and 20 are unconstitutional. We hold that (1) the conditions prohibiting Morgan’s
use of alcohol (condition 11) and purchase of alcohol (condition 19) are authorized, (2) the
condition restricting Morgan’s access to locations where alcohol is the primary source of
business (condition 21) is not authorized, (3) the portion of the condition requiring Morgan to
undergo alcohol dependency evaluation (condition 22) is not authorized, (4) the condition
requiring Morgan to inform his CCO of any dating relationship (condition 5) is not
unconstitutionally vague, and (5) the condition prohibiting Morgan from entering “drug areas as
defined by court or CCO” (condition 20) is unconstitutionally vague. Consequently, we affirm
conditions 11, 19, and 5, but remand to the trial court to strike or modify conditions 21, 22, and
20.
A. Legal Principles
The trial court can only impose community custody conditions authorized by statute.
State v. Kolesnik, 146 Wash. App. 790, 806, 192 P.3d 937 (2008). Before determining a sentence,
the court “shall consider the risk assessment report and presentence reports,” and allow
2
Deoxyribonucleic acid.
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No. 51558-0-II
arguments from the State, defense counsel, the offender, victim(s), and law enforcement. RCW
9.94A.500(1).
We review de novo whether the trial court had statutory authority to impose a sentencing
condition. State v. Armendariz, 160 Wash. 2d 106, 110, 156 P.3d 201 (2007). If the trial court had
statutory authority, we review the trial court’s decision to impose the condition for an abuse of
discretion. Armendariz, 160 Wash. 2d at 110. An abuse of discretion occurs when a trial court’s
imposition of a condition is manifestly unreasonable. State v. Hai Minh Nguyen, 191 Wash. 2d
671, 678, 425 P.3d 847 (2018). The imposition of an unconstitutional condition is manifestly
unreasonable. Hai Minh Nguyen, 191 Wash. 2d at 678.
Due process precludes the enforcement of vague laws, including sentencing conditions.
State v. Bahl, 164 Wash. 2d 739, 752-53, 193 P.3d 678 (2008); State v. Irwin, 191 Wash. App. 644,
652, 364 P.3d 830 (2015). A community custody condition is unconstitutionally vague if the
condition does not define the prohibited conduct with sufficient definiteness that ordinary people
can understand what conduct is proscribed or if the condition does not provide ascertainable
standards of guilt to protect against arbitrary enforcement. Bahl, 164 Wash. 2d at 752-53. If the
condition fails either prong of the vagueness analysis, the condition is void for vagueness. Bahl,
164 Wash. 2d at 753. A condition is not vague, however, merely because a person cannot predict
with complete certainty the exact point at which his or her actions would be classified as
prohibited conduct. State v. Sanchez Valencia, 169 Wash. 2d 782, 793, 239 P.3d 1059 (2010).
“[A]ll that is required is that the proscribed conduct is sufficiently definite in the eyes of an
ordinary person.” Hai Minh Nguyen, 191 Wash. 2d at 681.
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No. 51558-0-II
RCW 9.94A.703(3) authorizes a trial court to impose discretionary community custody
conditions. The trial court may order an offender to
(a) Remain within, or outside of, a specified geographical boundary;
(b) Refrain from direct or indirect contact with the victim of the crime or a specified
class of individuals;
(c) Participate in crime-related treatment or counseling services;
(d) Participate in rehabilitative programs or otherwise perform affirmative conduct
reasonably related to the circumstances of the offense, the offender’s risk of
reoffending, or the safety of the community;
(e) Refrain from possessing or consuming alcohol;
(f) Comply with any crime-related prohibitions.
RCW 9.94A.703(3).
Crime-related prohibitions disallow conduct that directly or reasonably relates to the
circumstances of the offense. Hai Minh Nguyen, 191 Wash. 2d at 683-84; Irwin, 191 Wash. App. at
657. “The prohibited conduct need not be identical to the crime of conviction, but there must be
‘some basis for the connection.’” Hai Minh Nguyen, 191 Wash. 2d at 678 (quoting Irwin, 191 Wn.
App. at 657).
1. Conditions 11, 19—Prohibiting Use and Purchase of Alcohol
Morgan argues that the trial court exceeded its authority by prohibiting him from using
alcohol (condition 11) and purchasing alcohol (condition 19) because prohibitions on the “use”
and “purchase” of alcohol are not authorized by statute.3 Br. of Appellant at 8. We disagree.
A trial court has authority to prohibit the consumption and possession of alcohol as a
community custody condition regardless of the underlying offense’s nature. RCW
9.94A.703(3)(e).
3
The condition also prohibits the use or consumption of marijuana, but Morgan does not offer
argument related to marijuana.
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No. 51558-0-II
Morgan acknowledges that the trial court had discretion to prohibit his possession or
consumption of alcohol, but argues that the “use” and “purchase” are distinct from possession or
consumption. Morgan has not explained how it is possible to use an item without also being in
possession of the same. Moreover, it is difficult to purchase an item without also being in
possession of that item. This is particularly true for alcohol, which is highly regulated in order to
limit access by end users. The trial court’s restrictions on using alcohol and purchasing alcohol
were logically related to the restriction on possession and consumption. Accordingly, we hold
that the trial court’s decision to prohibit the use and purchase of alcohol is reasonable and was
not a manifest abuse of discretion.
2. Condition 21—Prohibiting Entry Into Establishments Where Alcohol is Primary
Business
Morgan argues that the trial court exceeded its authority by prohibiting him from entering
establishments where alcohol is the primary source of business (condition 21). We agree.
Courts are authorized to impose crime-related prohibitions on defendants. RCW
9.94A.703(f). Crime-related prohibitions prohibit conduct that directly or reasonably relates to
the circumstances of the offense. Hai Minh Nguyen, 191 Wash. 2d at 683-84.
Here, the court exceeded its authority and ordered Morgan to “not enter any
bars/taverns/lounges or other places where alcohol is the primary source of business.” CP at
113. However, nothing in the record indicates that alcohol contributed to Morgan’s offenses.
Therefore, the court’s community custody condition prohibiting Morgan’s entry into “places
where alcohol is the primary source of business” is not a crime-related prohibition and was not
properly imposed.
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No. 51558-0-II
3. Condition 22—Alcohol Evaluation and Chemical Dependency Evaluation
Morgan argues that the trial court exceeded its authority by requiring him to complete an
alcohol dependency and chemical dependency evaluation (condition 22) because there is no
evidence that alcohol or controlled substances contributed to his offense. We hold that the
portion of the condition requiring alcohol dependency evaluation is not authorized, but that the
portion requiring chemical dependency evaluation is authorized.
The court may require a defendant to participate in crime-related treatment, counseling
services, rehabilitative programs, or other “affirmative conduct reasonably related to the
circumstances of the offense, the offender’s risk of reoffending, or the safety of the community.”
RCW 9.94A.703(3)(c)-(d); see State v. Warnock, 174 Wash. App. 608, 612, 299 P.3d 1173 (2013);
see also State v. Munoz-Rivera, 190 Wash. App. 870, 893, 361 P.3d 182 (2015).
The State argues that because the record shows that Morgan has a history of substance
abuse issues, particularly methamphetamine, the conditions related to alcohol are reasonably
related to the circumstances of his crime. The State’s argument assumes that abuse of alcohol is
interchangeable with the abuse of other substances. But, alcohol abuse is not interchangeable
with the abuse of other substances, like methamphetamine. Munoz-Rivera, 190 Wash. App. at 893;
see State v. Jones, 118 Wash. App. 199, 207, 76 P.3d 258 (2003).
Here, there is no evidence that alcohol played a role in Morgan’s offenses, or evidence
demonstrating a reasonable connection between alcohol and Morgan’s offenses or his risk of
reoffending. Thus, the portion of the condition that Morgan complete an alcohol dependency
evaluation is not authorized.
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No. 51558-0-II
Conversely, the portion of the condition requiring Morgan to complete a chemical
dependency evaluation is authorized.4 Morgan asserts that the certification of probable cause
does not mention alcohol or controlled substances. But, it is clear from Morgan’s offender
history and current offenses score that Morgan manufactured methamphetamines during the
period of his offenses, and the presentence investigation report lists methamphetamine use
among Morgan’s risks for reoffending. Thus, the portion of the condition requiring Morgan to
undergo chemical dependency evaluation is related to his offense and to his risk of reoffending.
This portion requiring a chemical dependency evaluation is authorized.
4. Condition 5—Notification of Dating Relationship
Morgan argues that the condition requiring him to inform his CCO of any dating
relationship (condition 5) is unconstitutionally vague. We disagree.
Morgan argues that the condition requiring him to inform his CCO of “any dating
relationship” is unconstitutionally vague because it is unclear what type of relationship
constitutes a “dating relationship.” Br. of App. at 12. His argument fails. The Supreme Court
recently rejected his precise argument. Hai Minh Nguyen, 191 Wash. 2d at 682. The court held
that the term “dating relationship” provided sufficient information for a person of ordinary
intelligence to distinguish it from other types of relationships.5 Hai Minh Nguyen, 191 Wash. 2d at
682.
4
Morgan does not separately address the portion of the condition requiring him to complete a
chemical dependency evaluation.
5
Morgan cites United States v. Reeves, 591 F.3d 77 (2nd Cir. 2010) in support. But the Hai
Minh Nguyen court distinguished Reeves, and held that the appellant’s reliance on Reeves was
unpersuasive. Hai Minh Nguyen, 191 Wash. 2d at 682-83.
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No. 51558-0-II
5. Condition 20—Prohibiting Entry Into Drug Areas
Morgan argues that the condition prohibiting him from entering drug areas is
unconstitutionally vague. Specifically, he argues that a “drug area[] defined by court or CCO” is
not sufficiently definite. Br. of Appellant at 10. We agree.
Washington courts have held that conditions that leave significant discretion to the
individual CCOs is unconstitutionally vague. Sanchez Valencia, 169 Wash. 2d at 795. Division
One of this court held that a similar community custody condition that required further definition
from a CCO was unconstitutionally vague. Irwin, 191 Wash. App. at 655. Irwin concerned a
community custody condition barring the defendant from places where “children are known to
congregate,” as defined by his CCO. Irwin, 191 Wash. App. at 649. The Irwin court concluded
that “[w]ithout 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 Wash. App. at 655 (internal quotation marks omitted). The authority
given to the CCO to interpret the condition also allowed for unconstitutionally arbitrary
enforcement. Irwin, 191 Wash. App. at 655. Thus, the condition was unconstitutionally vague.
Irwin, 191 Wash. App. at 655.
Here, the State concedes that the portion of the condition allowing the CCO to define
“drug areas” is unconstitutionally vague. Br. of Resp’t at 26. The State argues, however, that
the portion allowing the court to define “drug areas” is proper because it is not left to the
discretion of the CCO. We accept the State’s concession, but reject the State’s distinction
between the court and the CCO.
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No. 51558-0-II
The constitutional deficiency identified in Sanchez Valencia and Irwin is not based on the
fact that the CCO instead of the court had discretion. See Sanchez Valencia, 169 Wash. 2d at 795;
Irwin, 191 Wash. App. at 654-55. Rather, the deficiency is that condition does not provide
sufficient notice of prohibited areas and allows for arbitrary enforcement. See Irwin, 191 Wn.
App. at 649, 655.
Here, the condition prohibiting entry into an undefined area does not provide ordinary
people fair warning of the proscribed conduct, and does not provide standards that are definite
enough to protect against arbitrary enforcement—regardless of whether the court or the CCO has
the discretion to define the drug areas. Leaving the definition of “drug areas” open to the
discretion of the court and CCO deprives Morgan of fair warning and allows for arbitrary
enforcement.6
B. LFOs
Morgan argues, and the State concedes, that we should strike the criminal filing fee,
DNA collection fee, and interest accrual on nonrestitution LFOs. We agree.
The State concedes that the criminal filing fee, DNA collection fee, and the interest
provision are improper under recent legislative amendments and State v. Ramirez, 191 Wash. 2d
732, 426 P.3d 714 (2018). We accept the State’s concession and remand to the trial court to
strike the criminal filing fee, DNA collection fee, and interest accrual on nonrestitution LFOs.
6
Morgan also argues that this condition is not statutorily authorized because it is not crime
related. Because the condition is unconstitutionally vague, we do not address whether the
condition is statutorily authorized.
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No. 51558-0-II
We affirm conditions 11, 19, and 5, but remand to the trial court to strike or modify
conditions 21, 22, and 20, as consistent with this opinion.
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.
Worswick, J.
We concur:
Lee, A.C.J.
Cruser, J.
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