239 P.3d 1059 (Wash. 2010), 82731-1, State v. Valencia

Docket Nº:82731-1.
Citation:239 P.3d 1059, 169 Wn.2d 782
Opinion Judge:STEPHENS, J.
Party Name:STATE of Washington, Respondent, v. Isidro Sanchez VALENCIA, a/k/a Isaias Vernal, a/k/a Eugencio Gonzales Sanchez, a/k/a Isaias Vernal-Valencial, a/k/a Gonzales Eugencio Sanchez, a/k/a Isidro Valencia Sanchez, and Eduardo Chavez Sanchez, Petitioners.
Attorney:Lisa Elizabeth Tabbut, John A. Hays, Attorneys at Law, Longview, WA, for Petitioners. John Peterson, Michael C. Kinnie, Clark County Prosecutor's Office, Vancouver, WA, for Respondent.
Judge Panel:WE CONCUR: BARBARA A. MADSEN, Chief Justice, CHARLES W. JOHNSON, GERRY L. ALEXANDER, RICHARD B. SANDERS, TOM CHAMBERS, SUSAN OWENS, MARY E. FAIRHURST, and JAMES M. JOHNSON, Justices. J.M. JOHNSON, J. (concurring).
Case Date:September 09, 2010
Court:Supreme Court of Washington
 
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Page 1059

239 P.3d 1059 (Wash. 2010)

169 Wn.2d 782

STATE of Washington, Respondent,

v.

Isidro Sanchez VALENCIA, a/k/a Isaias Vernal, a/k/a Eugencio Gonzales Sanchez, a/k/a Isaias Vernal-Valencial, a/k/a Gonzales Eugencio Sanchez, a/k/a Isidro Valencia Sanchez, and Eduardo Chavez Sanchez, Petitioners.

No. 82731-1.

Supreme Court of Washington, En Banc.

September 9, 2010

Argued May 13, 2010.

Page 1060

Lisa Elizabeth Tabbut, John A. Hays, Attorneys at Law, Longview, WA, for Petitioners.

John Peterson, Michael C. Kinnie, Clark County Prosecutor's Office, Vancouver, WA, for Respondent.

STEPHENS, J.

[169 Wn.2d 785] ¶ 1 Petitioners Isidro Sanchez Valencia and Eduardo Chavez Sanchez were convicted of possession of a controlled substance with intent to deliver and conspiracy to commit that crime. At sentencing, as a condition of community custody, they were barred from using items that could be used to ingest or process controlled substances, or to facilitate the sale or transfer of controlled substances. On appeal, the petitioners challenged this condition as unconstitutionally vague. The Court of Appeals declined to entertain their challenge, concluding it was not ripe for review. We reverse the Court of Appeals and hold that the issue is ripe for review and that the condition is void for vagueness.

FACTS AND PROCEDURAL HISTORY

¶ 2 A jury convicted the petitioners of possession of a controlled substance with intent to deliver and conspiracy to commit that crime. At sentencing, the trial court imposed standard range sentences followed by a term of community custody. Among the conditions of community custody was the following provision:

Defendant shall not possess or use any paraphernalia that can be used for the ingestion or processing of controlled substances or that can be used to facilitate the sale or transfer of controlled substances including scales, pagers, police scanners, and hand held electronic scheduling and data storage devices.

Clerk's Papers (Eduardo Chavez Sanchez) (CP) at 112.

¶ 3 Petitioners appealed, arguing before the Court of Appeals that the condition was unconstitutionally vague. The Court of Appeals concluded that because the petitioners were still incarcerated and had not yet been harmed by the condition of community custody, their vagueness challenge was not ripe. The Court of Appeals also opined that even if the claim were ripe, it would fail on the merits. We granted Valencia's and Sanchez's petitions for review.

[169 Wn.2d 786] ANALYSIS

¶ 4 Petitioners are presently incarcerated and have not been charged with violating the challenged condition of community custody. We must therefore consider whether their vagueness claim is ripe. If it is, we must decide whether the condition is unconstitutionally vague.

A. Ripeness

¶ 5 We recently addressed a preenforcement challenge to a community custody condition in State v. Bahl, 164 Wash.2d 739, 193 P.3d 678 (2008). We recognized such a claim is ripe for review on direct appeal " ‘ if the issues raised are primarily legal, do not require further factual development, and the challenged action is final.’ " Id. at 751, 193 P.3d 678 (quoting First United Methodist Church v. Hr'g Exam'r for Seattle Landmarks Pres. Bd., 129 Wash.2d 238, 255-56, 916 P.2d 374 (1996)). " The court must also consider ‘ the hardship to the parties of withholding court consideration.’ " Id. (quoting First United, 129 Wash.2d at 255, 916 P.2d 374).

¶ 6 Using this test, the Court of Appeals concluded that the petitioners' claims were not ripe. Focusing on the first prong, whether the issues raised are primarily legal, the Court of Appeals reasoned that " vagueness challenges which do not involve First Amendment rights must be evaluated in light of the particular facts of each case, rather than for facial invalidity, a purely legal analysis." State v. Sanchez Valencia, 148 Wash.App. 302, 320, 198 P.3d 1065 (citing

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City of Spokane v. Douglass, 115 Wash.2d 171, 182, 795 P.2d 693 (1990)), review granted, 166 Wash.2d 1010, 210 P.3d 1019 (2009). Because the petitioners do not claim the condition of community custody infringes upon their First Amendment rights, the Court of Appeals concluded that their challenge could not be facial and must be treated as an as-applied challenge. Id. From this premise the Court of Appeals reasoned that the issues involved are not primarily legal because an as-applied challenge requires factual development about the specific facts alleged to violate the condition. Id.

[169 Wn.2d 787] ¶ 7 The Court of Appeals' analysis misunderstands our opinion in Bahl. There, we considered a challenge to a condition of community custody prohibiting the possession of or access to pornography, beginning with consideration of whether the challenge was ripe. The State argued that " when First Amendment rights are not at issue, the court should consider vagueness challenges to conditions only with respect to the challenger's conduct," Bahl, 164 Wash.2d at 750, 193 P.3d 678, and because the petitioner had not yet engaged in conduct violating the conditions, the claim was not ripe. Id. This court disagreed, noting that the State's argument related not to ripeness, but to whether Bahl had standing to bring a vagueness challenge to the conditions of community custody. Id. We recognized that " a criminal defendant always has standing to challenge his or her sentence on grounds of illegality." Id. 1

¶ 8 In Bahl, the State conceded that the condition at issue " ‘ arguably’ concern[ed] First Amendment rights," id., a concession the Court of Appeals in this case found it significant. Sanchez, 148 Wash.App. at 320, 198 P.3d 1065. It thus distinguished the petitioners' challenge on the ground that no such rights are implicated here. Id. But our ripeness analysis in Bahl did not rest on singling out a First Amendment challenge as unique, as the Court of Appeals seemed to believe. Rather, we applied a general, prudential ripeness test, emphasizing that courts routinely entertain preenforcement challenges to sentencing conditions. Bahl, 164 Wash.2d at 745-52, 193 P.3d 678. Only upon turning to the merits of Bahl's vagueness claim did we find the First Amendment context significant, noting that the context requires " ‘ a heightened level of clarity and precision’ " in defining proscribed conduct. Id. at 752-53, 193 P.3d 678 (quoting [169 Wn.2d 788] United States v. Williams , 444 F.3d 1286, 1306 (11th Cir.2006), rev'd on other grounds, 553 U.S. 285, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008)). But in determining whether review of the imposed condition was ripe, we did not find the First Amendment implication significant. The fact that no party has argued a First Amendment violation in this case is therefore of no relevance to whether this case is ripe for review.

¶ 9 Nevertheless, the Court of Appeals below was correct that in order to determine if a question is ripe for review, a court must first decide whether the issue is primarily legal. Id. at 751, 193 P.3d 678. The Bahl court noted that " [i]n many cases, vagueness questions will be amenable to resolution as questions of law." Id. at 752, 193 P.3d 678. The case upon which Bahl principally relied for its ripeness analysis, United States v. Loy, 237 F.3d 251 (3d Cir.2001), offers a sound prescription for determining whether a question is purely legal. " In this case, the question is purely one of law: whether the pornography proscription is unconstitutionally vague and does not provide Loy with sufficient notice of what he may do. Nothing about this contention will change between now and the time when he is released from prison. " Id. at 258 (emphasis added). Although the conditions in Bahl and Loy are distinguishable from the condition here, it is equally true of the condition here that if it suffers from vagueness, time will not cure the problem. The reasoning in Loy is persuasive: " The government's approach would have Loy discover the meaning of his supervised release condition only under continual threat of reimprisonment, in sequential hearings before the court. Such an exercise is

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not necessary, nor will it clarify the issues." Id. We conclude that, as in Bahl and Loy, the claim here is primarily legal and therefore meets the first prong of the ripeness test.

¶ 10 The second prong of the ripeness test asks whether the issues require further factual development. Again, although the Court of Appeals treated the petitioners' claim as an as-applied challenge that required further factual development, in the context of ripeness, the question of whether the condition is unconstitutionally vague does not [169 Wn.2d 789] require further factual development. The condition at issue places an immediate restriction on the petitioners' conduct, without the necessity that the State take any action. This is in contrast to conditions imposing financial obligations or allowing for the search of a person or residence, as identified in Bahl. 164 Wash.2d at 749, 193 P.3d 678 (citing State v. Ziegenfuss, 118 Wash.App. 110, 113-15, 74 P.3d 1205 (2003) (challenge to sentencing condition imposing financial obligation not ripe until State takes action to collect fines); State v. Massey, 81 Wash.App. 198, 200-01, 913 P.2d 424 (1996) (challenge to sentencing condition subjecting defendant to search premature until search actually conducted); State v. Phillips, 65 Wash.App. 239, 243-44, 828 P.2d 42 (1992) (same as Ziegenfuss )). Such conditions are not ripe for review until the State attempts to enforce them because their validity depends on the particular circumstances of the attempted enforcement. With respect to a financial obligation, for example, the relevant question is whether the defendant is indigent at the time the State...

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