State v. Jones

• Decision Date: 26 February 2019
• Docket Number: No. 50398-1-II,50398-1-II
• Parties: STATE OF WASHINGTON, Respondent, v. CLIFF ALAN JONES, Appellant.
• Court: Washington Court of Appeals

STATE OF WASHINGTON, Respondent, v. CLIFF ALAN JONES, Appellant.

No. 50398-1-II

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

February 26, 2019

UNPUBLISHED OPINION

JOHANSON, J. — Cliff A. Jones appeals his second degree child molestation conviction and sentence. Jones argues that (1) the sentencing condition prohibiting him from having contact with his minor children deprives him of his fundamental right to parent, (2) the superior court miscalculated his offender score which rendered his guilty plea involuntary, and (3) the deoxyribonucleic acid (DNA) database and criminal filing fee legal financial obligations (LFOs) should be stricken. In his statement of additional grounds (SAG), Jones also asserts violations of his right to be present and his right to a speedy trial, ineffective assistance of counsel, and structural error created by a biased judge.

We affirm his convictions and sentence. But we strike and remand for consideration consistent with this opinion the sentencing condition prohibiting Jones from contact with his minor children. We also remand for the superior court to strike the DNA fee, criminal filing fee, and interest on nonrestitution LFOs.

FACTS

I. BACKGROUND FACTS - CRAIGSLIST CASE

On December 15, 2015, Jones responded to a Craiglist ad posted by the Missing and Exploited Children's Task Force as part of their investigation of sex crimes against children. The Craiglist ad described a single mom with three children for "'family fun.'" Clerk's Papers (CP) at 67. Detective Sergeant Rodriguez received a responsive e-mail from "'cliff jones.'" CP at 67.

Their communication turned to text messaging. Acting as the mother from the ad, Detective Sergeant Rodriguez told Jones that the children were 13, 11, and 8, with the two youngest being girls. Jones explained in some detail the sex acts that he would like to watch and perform with the mother and children. Jones was sent a photo of what he believed was the 11-year-old and he sent a photo back of himself. The conversation continued and he stated that he wanted to engage in sex acts with the "mother" and her daughters but expressed that he was "freighted [sic] of legal problems." CP at 68.

The text conversation led to a phone call. Jones said he was interested in the 8-year-old and the 11-year-old. Jones asked if they had been with other men. The "mother" said that they had not because the "mother" was looking for the perfect person, and Jones said, "'Hopefully I can be that person.'" CP at 68. He said that he "'got away with lots of sexual relations with little girls when I was, before I got caught because my wife had a little sister that really liked me and we would always sneak away and do things together.'" CP at 68. Jones stated the youngest he had been with was 5 years old. The "mother" said she would be in the room to make sure everything is okay, and Jones responded, "'That is, oh yeah. That's, that's an even bigger turn on.'" CP at 68.

On December 23, the State charged Jones with two counts of attempted first degree rape of a child for the Craigslist case, cause number 15-1-05135-2. The State later filed an amended information and added two counts of attempted first degree child molestation and one count of communication with a minor for immoral purposes. At the time the charges were originally filed, Jones was out on bail pending two counts of first degree child molestation for cause number 15-1-02630-7, referred to herein as "H.W.'s case," using the child victim's initials.

II. GUILTY PLEA

On March 8, 2017, Jones entered into a global plea agreement for the two separate cause numbers under In re Personal Restraint of Barr¹ to amended informations. For the Craigslist case, cause number 15-1-05135-2, Jones pleaded guilty to one count of second degree child molestation. For H.W.'s case, cause number 15-1-02630-7, Jones pleaded guilty to two counts of second degree child molestation and one count of second degree child assault. For the Craigslist case, the superior court "read the declaration of determination of probable cause, and I have reviewed the case carefully. There's a factual basis to support the original charges." Verbatim Report of Proceedings (VRP) (March 8, 2017) at 175.

The superior court stated that it also read the declaration of determination of probable cause for H.W.'s case and determined that there is a factual basis to support the original charges. Jones signed a statement of defendant on plea of guilty that said he gave up his "right to a speedy and public trial" and understood that his "right to appeal is limited." CP at 2-3.

III. SENTENCING

On April 28, the superior court held a combined sentencing hearing for both cases. Jones filed a motion to withdraw his guilty plea, but his attorneys did not endorse it. The court struck Jones's motion and proceeded with sentencing.

Jones stipulated to an exceptional sentence under the two cause numbers. Jones also stipulated to his criminal history and an offender score of 11. This included a first degree child molestation conviction committed in 1998 (3 points) and a third degree domestic violence assault committed in 2000 (1 point). His convictions in H.W.'s case committed in 2015 included two counts of second degree child molestation (3 points each) and one count of second degree child assault (1 point). The following chart summarizes his criminal history:

2.2 CRIMINAL HISTORY (RCW 9.94A.525):

   CRIME  DATE OFSENTENCE  SENTENCINGCOURT  DATE OFCRIME A or JADULTJUV  TYPEOFCRIME  1  NVOL   PIERCE, WA  08-26-1991  A  MISD  2  NVOL   PUYALLUP, WA  09-20-1991  A  MISD  3  POSS MARIJUANA   PIERCE, WA  06-06-1993  A  MISD  4  FTA   TACOMA, WA  08-03-1992  A  MISD  5  FTA   PIERCE, WA  08-31-1992  A  MISD  6  FTA   PIERCE, WA  10-17-1992  A  MISD  7  FTA   TACOMA, WA  10-27-1992  A  MISD  8  FTA   KITSAP, WA  12-16-1992  A  MISD  9  FTA   KITSAP, WA  03-07-1993  A  MISD  10  DWLS 2   PORT ORCHARD, WA  04-27-1993  A  MISD  11  DV - ASSAULT   TACOMA, WA  08-01-1994  A  MISD  12  DV - ASSAULT   TACOMA, WA  08-01-1994  A  MISD  13  DWLS 3   PIERCE, WA  09-16-1995  A  MISD  14  DWLS 3   TACOMA, WA  11-06-1995  A  MISD  15  DV - ASSAULT   TACOMA, WA  01-12-1996  A  MISD  16  DV - DEST OFPROPERTY   TACOMA, WA  01-12-1996  A  MISD  17  RECKLESS DRIVING   TACOMA, WA  06-18-1996  A  MISD  18  NVOL   TACOMA, WA  06-18-1996  A  MISD  19  DWLS 3   LAKEWOOD, WA  06-16-1997  A  MISD  20  DV - ASSAULT 4   LAKEWOOD MUNICOURT  07-19-1997  A  MISD  21  RECKENDANGERMENT   LAKEWOOD, WA  07-19-1997  A  MISD  22  DV - THREATS TOHARM   LAKEWOOD, WA  07-19-1997  A  MISD  23  COMM W/ MINOR-IMMORAL PURP  12-15-2000  KING, WA  12-01-1998  A  MISD  24  POSS DRUG PARA   PIERCE, WA  03-02-1999  A  MISD  25  DWLS 3   PUYALLUP, WA  05-19-1999  A  MISD  26  MAL MISCHIEF 3   LAKEWOOD, WA  06-01-2009  A  MISD  27  CHILD MOLESTATION1  09-22-2000  KITSAP, WA  11-08-1998  A  NV  28  DV - ASSAULT 3  11-20-2000  KITSAP, WA  06-04-2000  A  NV  29  15-1-02630-7CHILD MOLEST 2   PIERCE, WA  01/01/15-04/02/15  A  NV  30  15-1-02630-7CHILD MOLEST 2   PIERCE, WA  01/01/15-04/02/15  A  NV  31  15-1-02630-7ASLT CHILD 2   PIERCE, WA  04/02/15  A  V 

CP at 27.

Jones's plea of guilty for the Craigslist case acknowledged that he had an offender score of 9+ with a minimum range of 87 to 116 months, followed by 36 months of community custody and a maximum term of 10 years. He also acknowledged that the parties stipulated to an exceptional indeterminate sentence as part of the plea bargain. They agreed that for the Craigslist case, the prosecutor would recommend that Jones should serve an indeterminate sentence with a minimum term of 116 months to a statutory maximum term of 120 months consecutive to all other counts in the H.W. case. They also stipulated that Jones should serve the sentences imposed onboth cause numbers consecutively and that the prosecutor would recommend a total of "348 months to 360 months, followed by 120 months of community custody." CP at 9 (bold omitted).

Jones's judgment and sentence also reflects that he has an offender score of 11. Jones's criminal history does not show that he committed any crimes between 2000 and 2015.

The superior court imposed an exceptional sentence on Jones's cause numbers as stipulated by the parties. In the judgment and sentence for the Craigslist case, the superior court imposed for the second degree child molestation conviction an indeterminate sentence with a minimum term of 116 months to a maximum term of 120 months consecutive to all other counts. Jones is subject to community custody for any period that he is released from total confinement before the expiration of the maximum sentence. The findings of fact for the exceptional sentence states,

This departure from the guidelines recognizes the defendant's pleas of guilt to four Class B felony offenses, a substantial prison sentence, a substantial period of community custody, offender treatment, registration as a sex offender, no contact with the victim, and it spares the victim from testifying in a trial. In exchange, the defendant is spared from two life sentences without the possibility of parole, had he been convicted of the original charges.

CP at 23.

Jones addressed the superior court:

[M]y main concern is all this time get down is I'll be able to have some contact with my own children. I've never done any harm to them. There's no evidence of any harm towards them. And I would hope that you would find it in your heart that I at least be able to have some type of contact with them where I can write them and receive letters from them, pictures, and maybe even contacts in the prison with them.

VRP (Apr. 28, 2017) at 195. Defense counsel stated that if the prison censored Jones's mail, then counsel would later bring a motion that would allow Jones to write to his children. The Stateobjected to any kind of contact with minors "given his history, given the facts in these two cases." VRP (Apr. 28, 2017) at 196.

The court ordered...