In re Winton

• Citation: 196 Wash.2d 270,474 P.3d 532
• Decision Date: 17 September 2020
• Docket Number: No. 97452-7,97452-7
• Court: United States State Supreme Court of Washington
• Parties: In the MATTER OF the Personal Restraint of Don Wesley WINTON, Petitioner.

196 Wash.2d 270

474 P.3d 532

In the MATTER OF the Personal Restraint of Don Wesley WINTON, Petitioner.

No. 97452-7

Supreme Court of Washington.

Filed: September 17, 2020

Alicia O. Young, WA State Attorney General's Office, P.O. Box 40100, Olympia, WA, 98504-0100, Holger Kurt Sonntag, Attorney at Law, 1125 Washington St. Se, Olympia, WA, 98501-2283, for Petitioner.

Elizabeth Mount Penner, McKinley Irvin, 1501 4th Ave. Ste. 1750, Seattle, WA, 98101-3611, for Respondent.

David L. Donna, Meryhew Law Group, 200 Broadway, Suite 301, Seattle, WA, 98122, Amy Irene Muth, Law Office of Amy Muth, PLLC, 1000 Second Avenue, Suite 3140, Seattle, WA, 98104, Thomas E. Weaver Jr., Attorney at Law, P.O. Box 1056, Bremerton, WA, 98337-0221, for Amicus Curiae on behalf of WA Association of Criminal Defense Lawyers.

JOHNSON, J.

¶1 This case involves the discretion of the Indeterminate Sentence Review Board (ISRB), under chapter 9.94A RCW and chapter 9.95 RCW, to restrict a parolee's ability to travel while serving community custody. The State seeks reversal of an unpublished Court of Appeals decision granting Don Wesley Winton's personal restraint petition (PRP) and striking a geographic community custody condition imposed pursuant to RCW 9.95.420(2) that restricted his travel into Clark County without prior approval. The Court of Appeals analyzed the condition as implicating a fundamental constitutional right to travel, applied strict scrutiny, found the condition was not narrowly tailored, and vacated the condition. We reject the Court of Appeals’ analytical lens on the grounds that a parolee remains under state custody and their constitutional right to travel is curtailed and can be restricted under the statute. We reverse the Court of Appeals and dismiss the PRP.

FACTS AND PROCEDURAL HISTORY

¶2 In 2007, Winton pleaded guilty in Clark County Superior Court to two counts of first degree child molestation and one count of third degree child molestation. The sentencing court imposed an indeterminate sentence of 98 months to life on one of the counts of first degree child molestation. The sentencing court also imposed no contact orders with respect to the two victims, one permanent and one for five years. The victims live in Clark County.

¶3 In September 2014, the ISRB granted Winton's conditional release. The initial conditions of release included geographic restrictions prohibiting Winton from traveling to Seattle, Clark County, or Clallam County without prior written approval from his community corrections officer and the ISRB. In October 2014, the ISRB added an additional condition prohibiting travel to Skamania County and the portion of Oregon north of Highway 20 without prior permission. In 2016, the ISRB added Arch Cape, Oregon to the list of prohibited locations. In May 2018, Winton filed this personal restraint petition seeking the removal of the geographical conditions of his community custody. In July 2018, the ISRB removed all geographic restrictions except the condition that he not enter Clark County without prior written approval; the victims still lived in Clark County and Winton had requested and received permission to travel through the county in the past. Winton asserts that he periodically travels to visit with his biological daughter in Oregon and asserts that the Clark County restriction is burdensome because it prohibits traveling to Oregon using Interstate 5 without first obtaining permission.¹

¶4 Winton filed this challenge as a PRP in the Court of Appeals. The Court of Appeals granted Winton's PRP, analyzing the restriction as impacting Winton's constitutional right to travel, applying strict scrutiny to the ISRB's travel condition, and finding that it was not narrowly tailored.²

ANALYSIS

¶5 We review questions of law in PRPs de novo. In re Pers. Restraint of Coats , 173 Wash.2d 123, 133, 267 P.3d 324 (2011). Community custody conditions are reviewed for an abuse of discretion, but we review whether an entity had authority to impose such restrictions de novo. State v. Armendariz , 160 Wash.2d 106, 110, 156 P.3d 201 (2007). The State's primary concern and argument centers on the standard of review applied by the Court of Appeals.

¶6 While the right to travel is recognized as a fundamental right of citizenship, this right is affected by a criminal conviction. See Bagley v. Harvey , 718 F.2d 921, 924 (9th Cir. 1983) ; see also Jones v. Helms , 452 U.S. 412, 420, 101 S. Ct. 2434, 69 L. Ed. 2d 118 (1981) ("[A]ppellee's own misconduct had qualified his right to travel interstate before he sought to exercise that right."). Bagley addressed whether a parole commission's decision to parole Bagley to Iowa violated his right to travel. After noting that other courts have found that parolees have a right to travel, the Bagley court reached the opposite conclusion and upheld the travel condition, reasoning that

[t]here can be no doubt that Bagley's constitutional right to interstate travel was extinguished upon his valid convictions and imprisonment. Since, to this date, Bagley has never regained that freedom of travel he lost upon conviction, he may not invoke the due process clause of the fifth amendment to compel the Government to grant him the desired right.

718 F.2d at 924 (internal citation omitted).

¶7 We find the analysis in Bagley to be persuasive and applicable here. Following a conviction and during the period of imprisonment, the limitation on the right to travel is similar to the loss of other constitutional rights.³ This reasoning applies to individuals serving community custody. Community custody is an extension of incarceration where an individual's " ‘constitutional rights ... are subject to the infringements authorized by the SRA [Sentencing Reform Act of 1981], RCW 9.94A.’ " State v. Ross , 129 Wash.2d 279, 287, 916 P.2d 405 (1996) (second alteration in original) (quoting In re Pers. Restraint of Caudle , 71 Wash. App. 679, 683, 863 P.2d 570 (1993) (Sweeney, J., concurring)). Because an individual who is transferred from total confinement to community custody remains under the continuing jurisdiction of the ISRB, the right to travel is not entirely restored. To the extent that the Court of Appeals cases have held that a parolee under community custody possesses an unrestricted constitutional right to travel and have held that strict scrutiny applies when reviewing such conditions, we reject that analysis and level of scrutiny. See In re Pers. Restraint of Martinez , 2 Wash. App. 2d 904, 913, 413 P.3d 1043 (2018) ; State v. Sims , 152 Wash. App. 526, 531, 216 P.3d 470 (2009), aff'd on other grounds , 171 Wash.2d 436, 256 P.3d 285 (2011). We decline to adopt the factored analysis from State v. Schimelpfenig , 128 Wash. App. 224, 229, 115 P.3d 338 (2005), to the analysis of a community custody condition, as the Schimelpfenig factors are premised on a constitutional strict scrutiny standard of review.⁴

¶8 Instead, we derive guidance from the statutory authority defining the ISRB's discretion to impose community custody conditions. The ISRB is authorized to "exercise independent judgment" regarding decisions concerning "offenders’ release, revocation, reinstatement, or the imposition of conditions of supervision." RCW 9.95.0002(8). When imposing community custody conditions, the ISRB must comply with the statutory definition of "community custody" under RCW 9.94A.704 :

"Community custody" means that portion of an offender's sentence subject to controls including crime-related prohibitions and affirmative conditions from the court, the board, or the department of corrections based on risk to community safety, that is served under supervision in the community, and which may be modified or revoked for violations of release conditions.

RCW 9.95.0001(2) (emphasis added).⁵ "Crime-related prohibition" is defined as "an order of a court prohibiting conduct that directly relates to the circumstances of the crime for which the offender has been convicted." RCW 9.94A.030(10) (emphasis added); see RCW 9.95.0001(3). Moreover, an imposed condition must be reasonably related to the crime of the conviction, the offender's risk of reoffending, and the safety of the community or it will be removed. RCW 9.94A.704(10)(c)(i)-(iii). Taken together, any community custody condition imposed by the ISRB, even those that implicate constitutional freedoms, must bear a reasonable relation to the circumstances of the crime, the offender's risk of reoffense, and public safety.

¶9 Based on the statutory sentencing authority, we have evaluated sentencing conditions for their reasonableness. In State v. Riley , we reviewed a sentencing condition that infringed on the defendant's freedom of association because it prevented him from associating with other computer hackers. 121 Wash.2d 22, 36-38, 846 P.2d 1365 (1993). We reasoned that because "crime-related" prohibitions serve a primarily punitive purpose and are left to the discretion of the sentencing authority, the sentence will be reversed only if it is manifestly unreasonable. Our analysis instead recognized that "[l]imitations upon fundamental rights are permissible" for the duration of the offender's sentence where restrictions are "imposed sensitively.... [and are] ‘reasonably necessary to accomplish the essential needs of the state and public order.’ " Riley , 121 Wash.2d at 37-38, 846 P.2d 1365 (quoting Malone v. United States , 502 F.2d 554, 556 (9th Cir. 1974) ). In that case, the condition was not unconstitutional; it was reasonably related to the defendant's crime of computer trespass and was imposed to prevent the defendant from reoffending.

¶10 While sentencing conditions are distinguishable in some aspects, we later undertook a similar analysis in the context of community custody conditions. State v. Bahl , 164 Wash.2d 739, 753, 193 P.3d 678 (2008). In reviewing a vagueness challenge to a community custody condition, we recognized that the imposition of "conditions of...