State v. Geyer

• Citation: 496 P.3d 322
• Decision Date: 28 September 2021
• Docket Number: No. 37406-8-III,37406-8-III
• Parties: STATE of Washington, Respondent, v. Joseph Edward GEYER, Appellant.
• Court: Washington Court of Appeals

496 P.3d 322

STATE of Washington, Respondent,

v.Joseph Edward GEYER, Appellant.

No. 37406-8-III

Court of Appeals of Washington, Division 3.

FILED September 28, 2021

Gregory Charles Link, Thomas Michael Kummerow, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, Sara Sofia Taboada, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-3647, for Appellant.

Gregory Lee Zempel, Carole Louise Highland, Kittitas County Prosecuting Attorney's Office, 205 W 5th Ave. Ste. 213, Ellensburg, WA, 98926-2887, for Respondent.

PUBLISHED OPINION

Pennell, C.J.

¶ 1 A judge imposing a term of community custody must select conditions of supervision. This is not merely an administrative task. Community custody conditions must be consistent with the limited authority granted by the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW. In addition, community custody conditions must be harmonized with a defendant's competing constitutional rights. Although an appellate court affords broad discretion to a sentencing judge's community custody decisions, conditions that stray beyond statutory or constitutional limits are subject to reversal.

¶ 2 Joseph Geyer challenges various community custody conditions imposed in relation to his conviction for attempted rape of a child. He argues all-encompassing restrictions on contact with children and intimate partners impermissibly burden his constitutional rights to marry and parent; broad restrictions on the use of computers impinge on his constitutional freedom of expression; and prohibitions pertaining to photography and video equipment, and dangerous weapons and animals, are not crime related as required by statute. Mr. Geyer's objections to his community custody conditions are well founded. We therefore grant relief and remand for further proceedings, consistent with the terms of this decision.

FACTS

¶ 3 Joseph Geyer pleaded guilty to one count of attempted first degree rape of a child after he was caught in an Internet sting operation conducted by the Washington State Patrol. Mr. Geyer had communicated with an undercover officer, "Kellie," through an online dating application. Clerk's Papers (CP) at 40. Kellie and Mr. Geyer discussed having sexual contact with Kellie's (fictitious) minor children. The two messaged on the application, texted back and forth, met in person once, and arranged for Mr. Geyer to meet with the children. When Mr. Geyer arrived at the arranged meeting spot, he was promptly arrested.

¶ 4 Mr. Geyer told detectives he was interested in Kellie, not her children. However, he later admitted he had a sexual interest in children and that the detectives would find large amounts of pornography on his electronic devices. Mr. Geyer also said he conducted an Internet search for 10-year-old girls in bikinis on the day of his arrest, explaining "he was interested in what to expect [from] a ten year old[’]s body." Id . at 41.

¶ 5 The trial court accepted Mr. Geyer's guilty plea and imposed an indeterminate sentence of 92.25 months to life of confinement with lifetime community custody. As part of community custody, the court imposed 9 conditions identified as "mandatory." Id . at 30. The court also imposed 18 additional conditions described as "other conditions." Id . at 31-32. Although the court waived discretionary legal financial obligations (LFOs) based on Mr. Geyer's indigence, it did not strike language on the prewritten judgment and sentence form requiring payment of community custody "supervision fees as determined by" the Washington State Department of Corrections (DOC). Id . at 21.

¶ 6 Mr. Geyer appeals seven of the community custody conditions listed as "other conditions." He also challenges the court's imposition of DOC supervision fees.

ANALYSIS

Applicable legal principles

¶ 7 Community custody is a form of post-incarceration supervision, monitored by the DOC. RCW 9.94A.030(5). "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 re Pers. Restraint of Sickels , 14 Wash. App. 2d 51, 59, 469 P.3d 322 (2020). Trial courts do not have unfettered discretion in choosing community custody conditions. Rather, as is true with all aspects of sentencing, a judge's authority is rooted in statute. In selecting terms of community custody, a court must generally¹ confine itself to the mandatory, waivable, and discretionary conditions set forth at RCW 9.94A.703(1) - (3).

¶ 8 Imposition of discretionary community custody conditions is the most complex aspect of the statute. Some discretionary conditions must "be crime-related." See RCW 9.94A.703(3)(c) (treatment or counseling services); RCW 9.94A.703(3)(f) ("crime-related prohibitions"). Others need only have a more loose connection to the offense of conviction. RCW 9.94A.703(3)(b) (refrain from contact with the victim or a specified class of individuals); RCW 9.94A.703(3)(d) (rehabilitative programs or affirmative conduct reasonably related to the offense, the risk of reoffending, or safety of the community). And for some conditions, the wording of the statute does not require any specific connection. RCW 9.94A.703(3)(a) (geographic restrictions); RCW 9.94A.703(3)(e) (alcohol restrictions).

¶ 9 Selection of discretionary conditions can raise constitutional concerns.² As is true of physical custody, individuals serving community custody are subject to limitations on otherwise-applicable constitutional liberties. See In re Pers. Restraint of Winton , 196 Wash.2d 270, 275, 474 P.3d 532 (2020) ; State v. Riley , 121 Wash.2d 22, 37, 846 P.2d 1365 (1993). But not all rights are lost. Judges imposing discretionary community custody must take care³ that the discretionary community custody conditions not only comply with statutory requirements, but also do not excessively burden a defendant's constitutional rights. See State v. Johnson , 197 Wash.2d 740, 746-49, 487 P.3d 893 (2021).

¶ 10 We review a sentencing judge's decision about whether to impose particular community custody conditions for abuse of discretion. Id. at 744, 487 P.3d 893. A judge abuses their discretion in imposing community custody conditions in violation of the legal parameters set by RCW 9.94A.703. See State v. Rohrich , 149 Wash.2d 647, 654, 71 P.3d 638 (2003) (abuse of discretion when a judge applies "the wrong legal standard").

It is also an abuse of discretion to impose unconstitutional conditions of community custody. Johnson , 197 Wash.2d at 744, 487 P.3d 893. Once statutory and constitutional requirements are met, the abuse of discretion standard requires deference to the trial court. We will not overturn a community custody condition simply because we think the court should have acted differently. The lawful exercise of discretion is a broad power, allocated to the sentencing judge, not the reviewing court.

Community custody conditions 4 & 7

¶ 11 Mr. Geyer makes a constitutional challenge to community custody conditions 4 and 7, which read as follows:

4. Have no direct or indirect contact with minors (under the age of 18) without prior permission from supervising community corrections officer and the treating sexual deviancy treatment provider.

....

7. Do not enter into and/or remain in any romantic/sexual relationship with a partner who has minor(s) or has custody/control over any minor(s) (under 18) without prior permission from the supervising community corrections officer and the treating sexual deviancy treatment provider.

CP at 31. Mr. Geyer points out that conditions 4 and 7 make no exceptions for contact with his own wife and children. Without this allowance, Mr. Geyer argues the conditions impermissibly burden his constitutional rights pertaining to family and association. The State concedes Mr. Geyer's argument. We accept this concession.

¶ 12 The right to marry and associate with one's spouse and children are important constitutional freedoms. State v. Warren , 165 Wash.2d 17, 34, 195 P.3d 940 (2008). Yet like all rights, there are no absolutes. An individual serving time in custody necessarily loses many associational rights. In addition, after release from custody, the SRA affords judges discretionary authority to order a defendant to "[r]efrain from direct or indirect contact with the victim of the crime or a specified class of individuals." RCW 9.94A.703(3)(b). When imposing restrictions on contact under this statute, a sentencing judge must consider a defendant's constitutionally-protected rights of association and impose any restriction in a sensitive way, guided by what is " ‘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) ). A trial court abuses its discretion if it imposes a community custody provision that does not comport with constitutional scrutiny. Johnson , 197 Wash.2d at 744, 487 P.3d 893.

¶ 13 Under the particular facts of this case, the broad restrictions on Mr. Geyer's right to interact with children and intimate partners fail to meet the constitutional balancing test. Mr. Geyer has been married for approximately eight years and has three children. Although Mr. Geyer's offense raises concerns about children in general, there is no indication Mr. Geyer's wife or children played any role whatsoever in his offense conduct. Instead, Mr. Geyer's victims were all fictitious. We recognize the State has a compelling interest in preventing harm to children. Nevertheless, the facts here do not indicate the State's interests will be furthered by restricting Mr. Geyer's contact with his wife and children during the period of community custody. The trial court therefore exceeded its authority in imposing broad restrictions on contact with children and intimate partners that do not account for Mr. Geyer's right to associate with his own wife and children. See State v....