State v. Riles
| Decision Date | 04 June 1998 |
| Docket Number | 65734-3,Nos. 65546-4,s. 65546-4 |
| Citation | 957 P.2d 655,135 Wn.2d 326 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Respondent, v. Ronald Erik RILES, Petitioner. STATE of Washington, Respondent, v. Richard Lee GHOLSTON, Petitioner. |
Nielsen, Broman & Associates, Kelly Curtin, Christopher Gibson, Seattle, for petitioner.
Norm Maleng, King County Prosecutor, James Leslie, Roger Davidheiser, Lisa O'Toole, Ann Foerschler, Cynthia Gannett, Deputies, Seattle, for respondent.
In these consolidated cases Petitioners Roland Erik Riles and Richard Lee Gholston each seek review of decisions of the Court of Appeals, Division I, affirming decisions by the King County Superior Court which imposed conditions for mandatory post-release community placement under the Sentencing Reform Act of 1981, RCW chapter 9.94A. We affirm, but strike one condition from the order in each case.
The primary question in both cases is whether the trial courts imposed improper conditions on Petitioners during their mandatory community placement upon their release from prison.
In answering that question we must determine (1) whether the trial courts exceeded their authority by requiring Petitioners to submit to polygraph and plethysmograph testing during their period of community placement; (2) whether the conditions ordering Petitioner Roland Erik Riles to have no contact with children, avoid places where children congregate, and not frequent places where minors are known to congregate are unconstitutionally vague, and whether the "no contact" condition is also overbroad; (3) whether the condition ordering Petitioner Richard Lee Gholston to have no contact with any minor-age children is unconstitutionally vague and overbroad when the victim of his rape was an adult woman; and (4) whether the condition ordering Petitioner Gholston to make reasonable progress in mental health counseling or sexual deviancy therapy is without statutory authority and is unconstitutionally vague.
On January 14, 1993, Petitioner Roland Erik Riles was convicted by a jury in the King County Superior Court of first degree child rape in violation of RCW 9A.44.073 for anally raping a six-year-old boy. 1 On March 12, 1993, the Honorable Ricardo S. Martinez sentenced him within the standard range to confinement for 102 months. 2 In addition, the court sentenced him to two years of community placement following his release from prison as required by RCW 9.94A.120(9)(b) under the Sentencing Reform Act of 1981 (SRA). 3 That provision states in relevant part:
When a court sentences a person to a term of total confinement to the custody of the department of corrections for an offense categorized as a sex offense committed on or after July 1, 1990, but before June 6, 1996, ... the court shall in addition to other terms of the sentence, sentence the offender to community placement for two years or up to the period of earned early release awarded pursuant to RCW 9.94A.150(1) and (2), whichever is longer.... Unless a condition is waived by the court, the terms of community placement for offenders sentenced pursuant to this section shall include the following conditions:
(i) The offender shall report to and be available for contact with the assigned community corrections officer as directed;
(ii) The offender shall work at department of corrections-approved education, employment, and/or community service;
(iii) The offender shall not consume controlled substances except pursuant to lawfully issued prescriptions;
(iv) An offender in community custody shall not unlawfully possess controlled substances;
(v) The offender shall pay supervision fees as determined by the department of corrections; and
(vi) The residence location and living arrangements are subject to the prior approval of the department of corrections during the period of community placement....
(Emphasis added). The trial court imposed those six mandatory conditions and imposed additional ones, including the following:
(6) Have no contact w/victim or any minor-age children w/o approval of CCO and mental health treatment counselor;
....
(8) submit to polygraph & plethysmograph testing upon request of therapist and/or CCO, at own expense;
(9) hold no position of authority or trust involving children;
(10) avoid places where children congregate;
(11) do not initiate or prolong physical contact w/children for any reason;
(12) do not frequent places where minors are known to congregate without specific permission of sexual deviancy counselor or supervising CCO; and
(13) Inform CCO of any romantic relationships to verify that there are no minor children involved.[ 4
(Emphasis added). Petitioner challenges only conditions six (6), eight (8), ten (10) and twelve (12). 5
Petitioner argues the trial court erred in requiring him to submit to polygraph and plethysmograph testing under condition eight (8). 6 He claims the condition constitutes affirmative conduct and is invalid because RCW 9.94A.030(11) expressly excludes affirmative conduct from the definition of "crime-related prohibition." 7 Under RCW 9.94A.120(9)(b), a court is required to sentence the defendant to community placement for two years in addition to other terms of the sentence if the person is sentenced to a term of total confinement for a sex offense committed after July 1, 1990 and before June 6, 1996. "Community placement" is defined by the Sentencing Reform Act as:
[T]hat period during which the offender is subject to the conditions of community custody and/or postrelease supervision, which begins either upon completion of the term of confinement (postrelease supervision) or at such time as the offender is transferred to community custody in lieu of earned early release. Community placement may consist of entirely community custody, entirely postrelease supervision, or a combination of the two.[ 8
There are six conditions of community placement which must be imposed unless waived by the court. 9 Under RCW 9.94A.120(9)(c) the court may impose additional special conditions:
(c) As part of any sentence imposed under (a) or (b) of this subsection, the court may also order any of the following special conditions:
(i) The offender shall remain within, or outside of, a specified geographical boundary;
(ii) The offender shall not have direct or indirect contact with the victim of the crime or a specified class of individuals;
(iii) The offender shall participate in crime-related treatment or counseling services;
(iv) The offender shall not consume alcohol;
(v) The offender shall comply with any crime-related prohibitions; or
(vi) For an offender convicted of a felony sex offense against a minor victim after June 6, 1996, the offender shall comply with any terms and conditions of community placement imposed by the department of corrections relating to contact between the sex offender and a minor victim or a child of similar age or circumstance as a previous victim.[ 10
"Crime-related prohibition" is defined as "[a]n order of a court prohibiting conduct that directly relates to the circumstances of the crime for which the offender has been convicted, and shall not be construed to mean orders directing an offender affirmatively to participate in rehabilitative programs or to otherwise perform affirmative conduct." 11
Petitioner Riles contends that submitting to polygraph or plethysmograph testing is affirmative conduct which constitutes an impermissible crime-related prohibition under RCW 9.94A.120(9)(c)(v) and RCW 9.94A.030(11). 12 The Court of Appeals disagreed and concluded the tests do not prohibit conduct, but are "merely a means to monitor compliance with other community placement conditions." 13
Petitioner also claims conditions six (6), ten (10) and twelve (12) are unconstitutionally vague and that the "no contact" with children condition is unconstitutionally overbroad. 14 The Court of Appeals rejected those contentions. 15 The Court of Appeals also dismissed Petitioner's argument on overbreadth, noting that the challenged order is expressly authorized by the Sentencing Reform Act and that the offender's "freedom of association may be reasonably restricted." 16 The Court of Appeals affirmed the judgment and sentence. 17 Petitioner Riles sought review by this Court, which was granted on October 7, 1997.
On December 14, 1994, Petitioner Richard Lee Gholston was convicted by a jury in the King County Superior Court of two counts of first degree rape, one count of first degree kidnapping and one count of first degree robbery. 18 The rape victim was a nineteen-year-old woman. The Honorable Richard M. Ishikawa on March 20, 1995 imposed exceptional sentences of 185 months, 110 months and 185 months on counts I, II and III to run consecutively (totaling 480 months) and 102 months on count IV to run concurrently. In addition, the court imposed six mandatory conditions of community placement on Petitioner Gholston under RCW 9.94A.120(9)(b). 19 The court also imposed twelve "special conditions" under RCW 9.94A.120(9)(c), only three of which Petitioner challenges on appeal: 20
(1) Within thirty days of release from confinement, enter into and make reasonable progress in mental health counseling, and/or sexual deviancy therapy, with a therapist approved by your Community Corrections Officer.
(2) Have no contact with the victim, or the victim's family or any minor-age children without the approval of your Community Corrections Officer and mental health treatment counselor.
....
(4) Submit to polygraph and plethysmograph testing upon the request of your therapist and/or Community Corrections Officer, at your own expense.[ 21
(Emphasis added).
Petitioner challenges condition one (1), contending the court does not have authority to order sex offenders to make "reasonable progress" in treatment and that the order violates...
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