In re Sickels

• Decision Date: 04 August 2020
• Docket Number: No. 36753-3-III,36753-3-III
• Citation: 14 Wash.App.2d 51,469 P.3d 322
• Parties: In the MATTER OF the Personal Restraint of Kyle Robert SICKELS.
• Court: Washington Court of Appeals

14 Wash.App.2d 51

469 P.3d 322

In the MATTER OF the Personal Restraint of Kyle Robert SICKELS.

No. 36753-3-III

Court of Appeals of Washington, Division 3.

FILED AUGUST 4, 2020

Andrew Kelvin Miller, Terry Jay Bloor, Benton County Prosecutors Office, 7122 W Okanogan Pl. Bldg. A., Kennewick, WA, 99336-2359, for Respondent.

OPINION PUBLISHED IN PART

Siddoway, J. ¶ 1 Kyle Sickels seeks relief from personal restraint in the form of an indeterminate sentence of 58.5 months to life and lifetime community custody for his conviction of second degree attempted rape of a child. He challenges community custody conditions and the trial court's refusal to consider imposing a special sex offender sentencing alternative (SSOSA).

¶ 2 We grant limited relief by directing the superior court to strike or modify five community custody conditions in the first, published portion of the opinion. The personal restraint petition (PRP) is otherwise dismissed.

FACTS AND PROCEDURAL BACKGROUND

¶ 3 Kyle Sickels was arrested as part of a sting operation in July 2018, after he responded to a Craigslist advertisement and arranged and appeared for what he expected to be a sexual encounter with a 13-year-old girl and her friend. He pleaded guilty to second degree attempted rape of a child within a matter of weeks and was sentenced the following month.

¶ 4 A presentence investigation report was prepared and recounted Mr. Sickels's admission that in "the month prior to being charged with this crime he began masturbating twice a day and watching more pornography. On average, he stated he watches pornography about 3-4 times a week." PRP, Ex. 4, at 6. Mr. Sickels believed his viewing of pornography was unrelated to his offense.

¶ 5 The author of the presentence investigation report identified as sentencing options either a standard range sentence or a special sex offender sentencing alternative (SSOSA). He concluded that a SSOSA was not appropriate because Mr. Sickels had not had the required sex offender evaluation, had not been found amenable to treatment, and had not taken full responsibility for an offense that Mr. Sickels, while repentant, viewed as resulting from a "high level of entrapment." PRP, Ex. 4, at 8.

¶ 6 At sentencing, the State recommended the low end of the standard range as the minimum confinement term. It recommended that the court impose most of the conditions of community custody included within a January 2016 version of a form "Appendix H," although it stated that the prohibition on consuming alcohol was inappropriate since "[t]here [was] no indication in this case that alcohol was a precursor or in any way contributed to the offense." PRP, Ex. 2, at 4. The State also recommended omitting the condition that Mr. Sickels " ‘have no direct or indirect contact with the victims of this offense,’ " because "[t]he victims would be the State of Washington or the under-cover detectives." PRP, Ex. 2, at 4.

¶ 7 The sentencing court noted the suggestion in the presentence report that SSOSA was an option and disagreed, saying, "I'm not exactly sure how DOC^{[1 ]} is missing the problem that the person has to have an established relation with the victim other than just the offense." PRP, Ex. 2, at 8. It observed that it "I don't know how a case like this would ever get over that, unless they changed the law." Id .

¶ 8 Mr. Sickels did not file a direct appeal but timely filed this petition.

ANALYSIS

¶ 9 In his pro se PRP, Mr. Sickels challenges seven of his community custody conditions, asks us to strike all of his nonmandatory conditions because they were not disclosed until after he had pleaded guilty, and contends that the trial court's rejection of a SSOSA was in error or was based on a statutory eligibility condition that violates his right to equal protection.

I. CHALLENGES TO COMMUNITY CUSTODY CONDITIONS

¶ 10 Mr. Sickels challenges seven community custody conditions. The State concedes his right to relief in the case of conditions 10, 14, 21 and 22, the first two of which we can address summarily. The State agrees that since the sentencing court explicitly declined to prohibit Mr. Sickels from consuming alcohol, condition 10 need not require him to submit to breathanalysis. It also agrees that condition 14, which prohibits presently-childless Mr. Sickels from having contact with minors, should contain an exception for any children he might father in the future.² Cf. United States v. Loy , 237 F.3d 251, 270 (3d Cir. 2001) (construing a similar condition imposed on a then-childless defendant as applying only to other people's children). We accept the State's concessions on those conditions and direct the court to make those modifications.

¶ 11 We decline to consider arguments Mr. Sickels raises for the first time in his reply brief, including those to which he contends the State "open[ed] the door." Reply to State's Resp. to PRP (Pet'r’s Reply Br.) at 3; e.g ., Cowiche Canyon Conservancy v. Bosley , 118 Wash.2d 801, 809, 828 P.2d 549 (1992) ("An issue raised and argued for the first time in a reply brief is too late to warrant consideration.").

¶ 12 We address his remaining challenges by category.

A. Statutory challenge: crime-relatedness

¶ 13 When a court sentences a person to a term of community custody, RCW 9.94A.703 requires that it impose conditions of community custody. In addition to its identification of statutory conditions that are mandatory or waivable by the court, the statute gives trial courts discretion to order additional conditions, including compliance with any "crime-related prohibitions." RCW 9.94A.703(3)(f). A " ‘[c]rime-related prohibition’ ... prohibit[s] conduct that directly relates to the circumstances of the crime for which the offender has been convicted." RCW 9.94A.030(10). " ‘Directly related’ includes conditions that are ‘reasonably related’ to the crime." State v. Irwin , 191 Wash. App. 644, 656, 364 P.3d 830 (2015) (quoting State v. Kinzle , 181 Wash. App. 774, 785, 326 P.3d 870 (2014) ). A causal relationship is not required. State v. Letourneau , 100 Wash. App. 424, 431-32, 997 P.2d 436 (2000). We review crime-related prohibitions for abuse of discretion. In re Pers. Restraint of Rainey , 168 Wash.2d 367, 374-75, 229 P.3d 686 (2010).

¶ 14 Mr. Sickels may challenge the crime-relatedness of the conditions for the first time in a timely personal restraint petition.

In re Pers. Restraint of Cook , 114 Wash.2d 802, 812, 792 P.2d 506 (1990). To receive collateral review on this nonconstitutional ground, however, he must establish that the claimed error constitutes a fundamental defect that inherently results in a complete miscarriage of justice. Id. And to obtain relief, he must present at least a prima facie showing of the facts underlying the claim of unlawful restraint and the evidence available to support the factual allegations. In re Pers. Restraint of Yates , 177 Wash.2d 1, 18, 296 P.3d 872 (2013). Bald assertions and conclusory allegations are not enough. Id.

¶ 15 Mr. Sickels challenges conditions 5 and 9 as not being crime-related. They provide that Mr. Sickels shall:

5. Inform the supervising CCO^[3] and sexual deviancy treatment provider of any dating relationship. Disclose sex offender status prior to any sexual contact. Sexual contact in a relationship is prohibited until the treatment provider approves of such.

....

9. Do not possess, use, access or view any sexually explicit material as defined by RCW 9.68.130 or erotic materials as defined by RCW 9.68.050 or any material depicting any person engaged in sexually explicit conduct as defined by RCW 9.68A.011(4) unless given prior approval by your sexual deviancy provider.

PRP, Ex. 1, at 1.

¶ 16 The first two sentences of condition 5 do not prohibit conduct. Those commands would not have been imposed under RCW 9.94A.703(3)(f), so "crime-relatedness" is not the standard. They are affirmative conduct requirements governed by RCW 9.94A.703(3)(d), which provides for a related but arguably broader standard: they must be "reasonably related to the circumstances of the offense, the offender's risk of reoffending, or the safety of the community." The two commands are reasonably related to the safety of the community. They protect individuals who Mr. Sickels dates or with whom he embarks on a sexual relationship by providing them with knowledge of the potential risk he presents to minors. They make it possible for Mr. Sickels's CCO and treatment provider to take whatever additional steps they might deem appropriate to protect anyone embarking on a dating or sexual relationship with Mr. Sickels.

¶ 17 Condition 9 and the third command of condition 5 are prohibitions and must be crime-related.

¶ 18 Condition 5's requirement for treatment provider approval for sexual contact is a common condition for sex offenders, and it, or a substantially similar condition, has been challenged a number of times. Two published decisions addressing the condition have found it to be crime-related. State v. Autrey , 136 Wash. App. 460, 468, 150 P.3d 580 (2006), upheld a condition that required therapist approval for sexual contact, explaining that "the offender's freedom of choosing even adult sexual partners is reasonably related to their crimes because potential romantic partners may be responsible for the safety of live-in or visiting minors." State v. Lee , 12 Wash. App. 2d 378, 403, 460 P.3d 701 (2020), reasoned the condition was crime-related where Lee was convicted of raping and assaulting a person in the context of a romantic dating relationship.

¶ 19 In four unpublished decisions, this court has accepted a State concession that the condition was not crime-related.⁴ In three unpublished decisions, this court has held that the condition was not crime-related.⁵ In four unpublished decisions, this court has held that it was crime-related.⁶

¶ 20 We are persuaded that the condition is crime-related in this case by State v. Sadler , an unpublished Division One decision in which the panel...