State v. Irwin
| Decision Date | 14 December 2015 |
| Docket Number | No. 72338–3–I.,72338–3–I. |
| Citation | 364 P.3d 830,191 Wash.App. 644 |
| Parties | STATE of Washington, Respondent, v. Samuel Lee IRWIN, Appellant. |
| Court | Washington Court of Appeals |
Nielsen Broman Koch PLLC, Attorney at Law, Mary Swift, Nielsen, Broman & Koch P.L.L.C., Seattle, WA, for Appellant.
Skagit County Prosecuting Atty., Erik Pedersen Attorney at Law, Mount Vernon, WA, for Respondent.
¶ 1 Samuel Irwin pleaded guilty to three counts of child molestation and one count of possession of depictions of minors engaged in sexually explicit conduct. On appeal, Irwin argues that a community custody condition ordering him not to "frequent areas where minor children are known to congregate" is unconstitutionally vague and that a community custody condition prohibiting him from possessing access to certain technology was not crime-related and was too broad. Finding that the condition prohibiting Irwin from frequenting areas where children congregate is unconstitutionally vague, we reverse that condition and remand for resentencing. Further, we affirm the condition prohibiting Irwin from possessing any digital media storage device.
¶ 2 Samuel Irwin had sexual contact with three underage females between June 1, 2013 and September 15, 2013. After reports of these incidents came to the attention of the Anacortes Police Department and child protective services, the Anacortes Police Department and the Spokane County Sheriff's Office began interviewing the children and investigating Irwin.
¶ 3 On January 30, 2014, the police took custody of Irwin under an "investigative hold."1 A few days later, on February 3, 2014, the police obtained a warrant for Irwin's arrest.
¶ 4 Several of the parents and children questioned by the police mentioned that Irwin had photographs on his computer that appeared to be child pornography. Officers obtained search warrants to locate Irwin's computer and digital camera and to analyze the contents of both. The searches revealed a history of Internet searches related to child pornography and ten photographs on Irwin's computer of nude or partially nude girls.2 The photographs were all of girls from the waist down. The photographs were of girls' vaginas and anuses. In some photographs, a man's hand is pulling aside the girl's underwear and touching her labia. Officers concluded that these contained depictions of minors based on the size of the girls and the lack of pubic hair or indication of any removal of pubic hair. Further, officers concluded that the subject of one of the photographs was one of Irwin's victims, based on a distinctive T-shirt.
¶ 5 On July 11, 2014, Irwin pleaded guilty under a fourth amended information to three counts of child molestation in the second degree and one count of possessing depictions of minors engaged in sexual conduct in the second degree. The trial court sentenced Irwin to 116 months on the child molestation charges and 60 months on the possession charge. Additionally, the court imposed four months of community custody based on the child molestation charges.
¶ 6 Two of the community custody conditions were:
¶ 7 Irwin's counsel objected to condition 5 because it was unconstitutionally vague and to condition 11 because it was not crime-related and was too broad. Trial counsel requested that, rather than leave the definition of condition 5 to the discretion of the CCO, the court should list prohibited places as examples. The trial court explained that that Irwin should not 5 The court, considering Irwin's arguments related to condition 11, struck the language about digital cameras, and added permission for Irwin to reside somewhere that contained a prohibited device. Regarding condition 11, the court added:
After these comments and changes, the final version of condition 11 read:
¶ 8 The State argues that the community custody condition requiring Irwin not to "frequent areas where minor children are known to congregate, as defined by the supervising CCO," is not ripe for review. Community custody conditions are 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.’ " State v. Bahl, 164 Wash.2d 739, 751, 193 P.3d 678 (2008) (quoting First United Methodist Church v. Hearing Exam'r, 129 Wash.2d 238, 255–56, 916 P.2d 374 (1996) ). Courts should also consider the hardship to the parties if they are forced to wait. State v. Sanchez Valencia, 169 Wash.2d 782, 790, 239 P.3d 1059 (2010).
¶ 9 In State v. Sanchez Valencia, the court held that a preenforcement challenge to a community custody condition prohibiting the defendant from possessing "paraphernalia" was ripe under a four pronged test. 169 Wash.2d 782, 786–91, 239 P.3d 1059 (2010). First, it was a vagueness challenge, which is often a question of law because "time will not cure the problem." Sanchez Valencia, 169 Wash.2d at 788, 239 P.3d 1059. Second, factual development would not make the issue more clear. Sanchez Valencia, 169 Wash.2d at 789, 239 P.3d 1059. Unlike conditions that impose financial obligations on defendants or require released defendants to submit to searches (where the questions would be, whether the defendant was indigent and whether the search valid), the question in that case would always be whether "the condition as written provide[d] constitutional notice and protection against arbitrary enforcement." Sanchez Valencia, 169 Wash.2d at 789, 239 P.3d 1059. The court rejected the State's argument that the question required factual development because the CCOs had to decide how to impose the conditions. Sanchez Valencia, 169 Wash.2d at 789 n. 2, 239 P.3d 1059. The court "is responsible for imposing the condition" not the CCO. Sanchez Valencia, 169 Wash.2d at 789 n. 2, 239 P.3d 1059. Third, the action was final because the defendants were sentenced. Sanchez Valencia, 169 Wash.2d at 789, 239 P.3d 1059. Lastly, the defendants would suffer hardship if the court declined "to review their challenge on direct appeal" because the conditions would apply to the defendants immediately upon release. Sanchez Valencia, 169 Wash.2d at 789–90, 239 P.3d 1059.
¶ 10 Here, the preenforcement challenge is ripe because Irwin is situated exactly like the defendants in Sanchez Valencia. First, the challenge raises a purely legal question: whether the challenged community custody condition provides him with constitutionally required notice and would protect against arbitrary enforcement. Second, the challengedoes not require factual development. The State, like it did in Sanchez Valencia, argues that the condition is factually dependent because the CCO still has to specify restricted locations. See 169 Wash.2d at 789 n. 2, 239 P.3d 1059. But the sentencing court, not the CCO must impose the condition. See Sanchez Valencia, 169 Wash.2d at 789 n. 2, 239 P.3d 1059. Third, the court sentenced Irwin with this condition. Lastly, this condition will attach to Irwin immediately upon release. Just like the defendants in Sanchez Valencia, Irwin would suffer significant hardship if the court refused to review this condition on direct appeal.8 See 169 Wash.2d at 789, 239 P.3d 1059.
¶ 11 Irwin argues that the following community custody condition is unconstitutionally vague: "Do not frequent areas where minor children are known to congregate, as defined by the supervising CCO."9
¶ 12 This court reviews community custody conditions for abuse of discretion, and will reverse them only if they are "manifestly unreasonable." Sanchez Valencia, 169 Wash.2d at 791–92, 239 P.3d 1059. Imposing an unconstitutional condition will always be "manifestly unreasonable." Sanchez Valencia, 169 Wash.2d at 791–92, 239 P.3d 1059. This court does not presume that community custody conditions are constitutional. Sanchez Valencia, 169 Wash.2d at 793, 239 P.3d 1059.
¶ 13 The guarantee of due process, contained in the Fourteenth Amendment to the United States Constitution and article I, section 3 of the Washington Constitution, requires that laws not be vague. Bahl, 164 Wash.2d at 752–53, 193 P.3d 678. The laws must (1) provide ordinary people fair warning of proscribed conduct, and (2) have standards that are definite enough to " ‘protect against arbitrary enforcement.’ " Bahl, 164 Wash.2d at 752–53, 193 P.3d 678 (quoting City of Spokane v. Douglass, 115 Wash.2d...
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State v. Peters
...with the Supreme Court’s rejection of a vagueness challenge in Riles , followed by Division One’s decision in State v. Irwin , 191 Wash. App. 644, 364 P.3d 830 (2015), which struck such a condition as unconstitutionally vague but signaled modifications that would avoid vagueness problems, f......
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State v. Lee
...Thus, there must be some evidence in the record connecting the community custody condition to the crime. State v. Irwin, 191 Wash. App. 644, 656-57, 364 P.3d 830 (2015). ¶49 Lee first contends that requiring him to disclose his sex offender status prior to any sexual contact violates his ri......
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State v. Teters
... ... Parramore , 53 Wn.App. at 531. Thus, condition 3 is ... crime-related ... As to ... Teters' argument that this condition is ... unconstitutionally vague for failing to provide him ... sufficient notice of what was prohibited, we agree with ... Teters. In State v. Irwin , Division One of our court ... struck down a community custody condition that stated simply: ... "Do not frequent areas where minor children are known to ... congregate, as defined by the supervising [community ... corrections officer]." 191 Wn.App. 644, 652, 364 P.3d ... 830 (2015). The ... ...
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State v. Teters
... ... Parramore , 53 Wn. App. at 531. Thus, condition 3 is crime-related. As to Teters' argument that this condition is unconstitutionally vague for failing to provide him sufficient notice of what was prohibited, we agree with Teters. In State v ... Irwin , Division One of our court struck down a community custody condition that stated simply: "Do Page 23 not frequent areas where minor children are known to congregate, as defined by the supervising [community corrections officer]." 191 Wn. App. 644, 652, 364 P.3d 830 (2015). The court reasoned ... ...