193 P.3d 678 (Wash. 2008), 79988-1, State v. Bahl

Docket Nº:79988-1.
Citation:193 P.3d 678, 164 Wn.2d 739
Opinion Judge:MADSEN, J.
Party Name:STATE of Washington, Respondent, v. Eric G. BAHL, Petitioner.
Attorney:Andrew Peter Zinner, Nielsen, Broman & Koch, PLLC, Seattle, WA, for Petitioner. Mary Kathleen Webber, Snohomish County Prosecutor's Office, Everett, WA, for Respondent.
Case Date:October 09, 2008
Court:Supreme Court of Washington

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193 P.3d 678 (Wash. 2008)

164 Wn.2d 739

STATE of Washington, Respondent,


Eric G. BAHL, Petitioner.

No. 79988-1.

Supreme Court of Washington, En Banc.

October 9, 2008

Argued Feb. 28, 2008.

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[Copyrighted Material Omitted]

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Andrew Peter Zinner, Nielsen, Broman & Koch, PLLC, Seattle, WA, for Petitioner.

Mary Kathleen Webber, Snohomish County Prosecutor's Office, Everett, WA, for Respondent.


[164 Wn.2d 743] ¶ 1 The defendant argues that he is entitled to bring a preenforcement vagueness challenge to conditions of community custody imposed as part of his sentence. We agree and hold that several of the conditions are unconstitutionally vague. We remand for resentencing.


¶ 2 Petitioner Eric Bahl was charged with second degree rape, first degree burglary, residential burglary, indecent exposure, and first degree criminal trespass. He was convicted of second degree rape and first degree burglary, and sentenced to the statutory maximum of life in prison and a minimum term within the standard range. The court imposed a community placement term of 18-36 months on the burglary charge. The court also imposed a mandatory life term of community custody on the rape charge, which included the following conditions:

Do not possess or access pornographic materials, as directed by the supervising Community Corrections Officer. Do not

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frequent establishments whose primary business pertains to sexually explicit or erotic material.

Do not possess or control sexual stimulus material for your particular deviancy as defined by the supervising Community Corrections Officer and therapist except as provided for therapeutic purposes.[1]

1 Clerk's Papers (CP) at 28. Bahl objected to these conditions on the ground that there was no evidence to suggest that pornographic materials, erotic materials, or sexual stimulus played any part in his offenses; his counsel stated, " [T]here is simply no evidence that he has ever viewed any of this material." Verbatim Report of Proceedings at 8-9 (July 26, 2005).

¶ 3 Bahl appealed, arguing, among other things, that the community custody conditions were vague and overbroad. [164 Wn.2d 744] The Court of Appeals refused to consider his vagueness challenges because Bahl had not been accused of violating any of the conditions. The Court of Appeals also rejected his overbreadth claim and other arguments, and affirmed the convictions. State v. Bahl, 137 Wash.App. 709, 159 P.3d 416 (2007).


¶ 4 Washington sentencing courts are required to impose certain community custody conditions in specified circumstances and may impose others. RCW 9.94A.712(6)(a)(i); .715(2)(a); .700(4), (5). One condition that may be imposed is that an offender " shall comply with any crime-related prohibitions." RCW 9.94A.700(5)(e). At sentencing Bahl objected to imposition of the challenged conditions on the ground that they were not crime-related, but he does not make this argument to this court. The only issues Before the court concern Mr. Bahl's vagueness challenges to the conditions of community custody.

¶ 5 The State contends Bahl's vagueness challenges should not be reviewed because they were raised for the first time on appeal. Contrary to the State's position, " [i]n the context of sentencing, established case law holds that illegal or erroneous sentences may be challenged for the first time on appeal." State v. Ford, 137 Wash.2d 472, 477, 973 P.2d 452 (1999); see, e.g., State v. Moen, 129 Wash.2d 535, 543-48, 919 P.2d 69 (1996) (imposition of a criminal penalty that does not comply with sentencing statutes may be raised for the first time on appeal); State v. Jones, 118 Wash.App. 199, 204 n. 9, 207-08, 76 P.3d 258 (2003) (challenge to sentencing conditions raised for the first time on appeal); State v. Paine, 69 Wash.App. 873, 884, 850 P.2d 1369 (1993) (case law has " established a common law rule that when a sentencing court acts without statutory authority in imposing a sentence, that error can be addressed for the first time on appeal" ); State v. Anderson, 58 Wash.App. 107, 110, 791 P.2d 547 (1990) (" a challenge to a sentence that is contrary [164 Wn.2d 745] to law may be raised on appeal for the first time" ); see also In re Pers. Restraint of Fleming, 129 Wash.2d 529, 532, 919 P.2d 66 (1996); State v. Loux, 69 Wash.2d 855, 858, 420 P.2d 693 (1966), overruled in part by Moen, 129 Wash.2d at 545, 919 P.2d 69; State v. Nitsch, 100 Wash.App. 512, 519, 997 P.2d 1000 (2000); State v. Roche, 75 Wash.App. 500, 513, 878 P.2d 497 (1994). In accord with these authorities, we hold that vagueness challenges to conditions of community custody may be raised for the first time on appeal.

¶ 6 The next question is whether, as the Court of Appeals held, we should decline to address Mr. Bahl's vagueness challenges because he has not been charged with violating any of the conditions. This issue was raised by the Court of Appeals sua sponte. That court refused to address Bahl's preenforcement challenge, reasoning that in any vagueness challenge the first question is whether the challenge is facial or as-applied. The court said that even in the case of a facial challenge a factual record is " ‘ not unimportant’ " because the challenger must show that the challenged rule is impermissibly vague in all of its applications. Bahl, 137 Wash.App. at 716, 159 P.3d 416 (quoting

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City of Spokane v. Douglass, 115 Wash.2d 171, 182 n. 8, 795 P.2d 693 (1990)).2 The Court of Appeals said that Bahl simply anticipates that he might at some point be accused of engaging in conduct that violates the conditions and that there is no actual conduct or factual record for a court to review. Id.

¶ 7 But as Bahl correctly maintains, courts routinely reach the merits of preenforcement vagueness challenges to sentencing conditions, including Washington courts that have considered such challenges without addressing whether it is proper to do so in the preenforcement setting. [164 Wn.2d 746] E.g., State v. Riles, 135 Wash.2d 326, 347-51, 957 P.2d 655 (1998) (challenges to community placement conditions prohibiting one defendant from having contact with minors or frequenting places where children congregate, and requiring another defendant to make reasonable progress in treatment); State v. Llamas-Villa, 67 Wash.App. 448, 836 P.2d 239 (1992) (challenge to condition that the defendant not associate with persons using, possessing, or dealing with controlled substances); State v. Hearn, 131 Wash.App. 601, 607-09, 128 P.3d 139 (2006) (challenge to condition that the defendant not associate with known drug offenders); State v. Autrey, 136 Wash.App. 460, 466-69, 150 P.3d 580 (2006) (challenges to conditions that the defendants not have sexual contact with anyone without that individual's explicit consent and that the defendants not have sexual contact with anyone without prior approval of their therapists); accord, e.g., State v. Simpson, 136 Wash.App. 812, 816-17, 150 P.3d 1167 (2007); State v. Acrey, 135 Wash.App. 938, 947-48, 146 P.3d 1215 (2006).

¶ 8 Courts in other jurisdictions have also considered preenforcement vagueness challenges to sentencing conditions without discussing whether preenforcement review was proper. E.g., United States v. Paul, 274 F.3d 155, 165-67 (5th Cir.2001) (challenge to conditions of supervised release); United States v. Phipps, 319 F.3d 177, 192-94 (5th Cir.2003) (same); United States v. Guagliardo, 278 F.3d 868, 872 (9th Cir.2002) (same); McVey v. State, 863 N.E.2d 434, 446-50 (Ind.Ct.App.2007) (challenges to special conditions of probation).

¶ 9 The leading case addressing a government claim that preenforcement vagueness challenges to sentencing conditions are not reviewable is United States v. Loy, 237 F.3d 251 (3d Cir.2001).3 In Loy, the government asked the court to refrain as a matter of judicial policy from reviewing due [164 Wn.2d 747] process challenges to conditions of release prior to a violation of those conditions. In addition, and similar to the State's argument in this case, the government argued in Loy that " because vagueness challenges may typically only be made in the context of particular purported violations, Loy must wait until he is facing revocation proceedings Before he will be able to raise his claim." Id. at 256.

¶ 10 The Third Circuit first observed that federal courts uniformly permit defendants sentenced to probation to challenge the validity of probation conditions on direct appeal and that if a defendant fails to do so, he would likely be found to have waived the right to object. Id. at 257; see United States v. Stine, 646 F.2d 839, 846-47, 846 n. 16 (3d Cir.1981); United States v. Ofchinick, 937 F.2d 892 (3d Cir.1991).

¶ 11 The court in Loy also addressed the prudential ripeness doctrine implicated by the government's arguments pursuant to which a court considers the hardship to the parties if the court does not decide the issue and the fitness of the legal issue for judicial

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review. Loy, 237 F.3d at 257. The Third Circuit reasoned that " the fact that a party may be forced to alter his behavior so as to avoid penalties under a potentially illegal regulation is, in itself, a hardship." Loy, 237 F.3d at 257. The court rejected the government's claim that a defendant must " face revocation proceedings Before being permitted to challenge his conditions of release," concluding that a defendant does not have to " ‘ expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights.’ " Id. (quoting Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974)).4

[164 Wn.2d 748]...

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