State v. Sansone
| Decision Date | 23 May 2005 |
| Docket Number | No. 53584-6-I.,53584-6-I. |
| Citation | 111 P.3d 1251,127 Wash. App. 630,127 Wn. App. 630 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Richard Thomas SANSONE, Appellant. |
Susan Wilk, Washington Appellate Project, Seattle, WA, for Appellant.
Amy Holt, King County Prosecutor Office, Seattle, WA, for Respondent.
¶ 1 Richard Sansone appeals his sentence for violating a condition of his community placement. The condition required that he not possess or peruse pornography without prior approval of his probation officer, and that the term "pornography" was to be defined by his probation officer. His probation officer found him in possession of photographs she deemed inappropriate. Sansone claims that the condition prohibiting pornography was unconstitutionally vague, both facially and as applied. He also claims that the sentencing court's delegation to the Department of Corrections (DOC) to define the term "pornography" violates separation of powers principles. In addition, he argues that there was insufficient evidence to find him in violation of the condition, and that the sentencing court abused its discretion in refusing to admit certain evidence. The state has conceded that the condition was improperly applied to Sansone's conduct in this instance, and we accept this concession. We hold that the term "pornography" is unconstitutionally vague. Although delegation to the probation officer or treatment provider to define a term in a community placement condition may be permissible in some circumstances, the vagueness is not cured by the delegation here. We reverse and remand.
¶ 2 Richard Sansone was charged with one count each of attempted unlawful imprisonment, assault in the third degree and rape in the third degree. These charges stemmed from an incident with Sansone's then-girlfriend. Sansone pleaded guilty to all three charges. In November 2000, he was sentenced to eight months imprisonment for the assault charge, and 12 months and one day for the rape charge, to run concurrently. He was also sentenced to community placement after his release. One of the terms of Sansone's community placement was that he
¶ 3 On August 26, 2003, Sansone met with Kathi Bulman, his Community Corrections Officer (CCO). During the meeting, Sansone opened his notebook to look for something, and Bulman noticed that Sansone had some photographs in the briefcase.1 Bulman looked at the photographs, which depicted clothed women in low-cut blouses, a woman clothed only from the waist down but covering her breasts with her arms, and a woman covered in somewhat sheer material. The photographs were laminated. Bulman believed that the photographs were inappropriate for a sex offender to possess, so she took Sansone into custody for possessing pornographic materials in violation of his community placement condition. ¶ 4 On October 20, 2003, the trial court held a hearing on whether Sansone had violated his community placement condition. Sansone argued that the photographs were not pornography, and, to support his argument, offered some clippings from mainstream magazines that he argued were no worse than the photos he possessed. The trial court did not consider the clippings, holding that they were irrelevant to the issue of whether Sansone had violated his probation. The state argued that even though the photographs would not have been pornography in someone else's hands, they were inappropriate for Sansone to possess. The trial court agreed, found that Sansone had willfully violated his community placement condition, and sentenced Sansone to 60 days confinement, with credit for time served. Sansone appeals the trial court's order.2
¶ 5 Sansone claims that his sentence condition is unconstitutionally vague on its face, in violation of his due process rights. He also asserts that the condition is vague as applied. In addition, Sansone argues that the sentencing condition violated the principles of separation of powers. He also claims that the state failed to sufficiently prove that he violated the condition, and that the sentencing court abused its discretion by refusing to admit some of Sansone's evidence. The state has conceded that the prohibition of pornography was improperly applied to Sansone's conduct in this case and the order modifying his judgment and sentence should be reversed. The threshold question is whether this case is moot in light of the state's concession.
¶ 6 "A moot case is one which seeks to determine an abstract question which does not rest upon existing facts or rights." Hansen v. West Coast Etc. Co., 47 Wash.2d 825, 827, 289 P.2d 718 (1955). In general, a case presenting a moot issue on appeal is dismissed. City of Seattle v. Johnson, 58 Wash.App. 64, 66-67, 791 P.2d 266 (1990). A case is not moot if the court can still provide effective relief. State v. Turner, 98 Wash.2d 731, 733, 658 P.2d 658 (1983).
¶ 7 However, a court may address a moot issue if "matters of continuing and substantial public interest are involved." Sorenson v. City of Bellingham, 80 Wash.2d 547, 558, 496 P.2d 512 (1972). "Three criteria must be considered when determining whether the requisite degree of public interest exists: (1) the public or private nature of the question presented, (2) the need for a judicial determination for future guidance for public officers, and (3) the likelihood of future recurrences of the issue." Matter of Eaton, 110 Wash.2d 892, 895, 757 P.2d 961 (1988). A fourth factor is arguably present: the level of genuine adverseness and the quality of advocacy of the issues. Hart v. Social & Health Svcs., 111 Wash.2d 445, 448, 759 P.2d 1206 (1988).
¶ 8 Because the state has conceded that the condition was improperly applied to Sansone's conduct here, some of Sansone's claims are moot. Sansone's claim that the condition is vague as applied to his conduct in this instance is moot, because the state has conceded that the condition was improperly applied. In addition, Sansone's claims that the state did not prove he violated the sentence condition and that the sentencing court abused its discretion by not admitting certain evidence have also been mooted. We can provide no further effective relief with respect to these claims, as the state has properly conceded and recommended we overturn the October 30, 2003, order.
¶ 9 We will address Sansone's vagueness challenge because it is a matter of continuing and substantial public interest. All of the required elements are present. The nature of the issue is public, as the community placement condition has the potential to affect a great number of offenders. A decision on this issue would provide future guidance to public officers interacting with offenders on community placement. The issue is also one that is likely to recur. Although Sansone is no longer under community placement and therefore is not subject to the condition, many other sex offenders are subject to the condition. Further, the parties have adequately briefed the constitutional issues. In addition, prior case law supports a decision in this case. Sansone has argued that the condition deprived him of due process of law, and courts have held that "[w]here a technically moot issue implicates due process rights, it is one in which there is sufficient public interest to warrant deciding it." In re Dependency of H., 71 Wash.App. 524, 528, 859 P.2d 1258 (1993). Thus, we may decide the vagueness and delegation issues.
¶ 10 Sansone has not challenged the community placement condition on First Amendment grounds; he only cites due process as a basis for invalidating the statute. However, the state's brief suggests that this court use a First Amendment analysis in assessing Sansone's claim. We wish to clarify that since Sansone has not raised any First Amendment claims, we will only address his due process vagueness arguments.
¶ 11 Further, when a challenged prohibition does not involve First Amendment rights, it is not properly evaluated for facial vagueness; instead, it must be evaluated as-applied. Spokane v. Douglass, 115 Wash.2d 171, 182, 795 P.2d 693 (1990). Thus, under the reasoning in Douglass, Sansone can only challenge the condition as applied to his conduct. Douglass, 115 Wash.2d at 182, 795 P.2d 693.
¶ 12 Sansone argues that the community placement condition prohibiting him from possessing pornography without the prior consent of his parole officer is unconstitutionally vague, thereby denying him due process of law. He relies on the reasoning of two recent federal cases that found the term "pornography" to be unconstitutionally vague in the context of a condition of community placement. United States v. Guagliardo, 278 F.3d 868 (9th Cir.2002); United States v. Loy, 237 F.3d 251 (3rd Cir.2001). We find that the term "pornography" is unconstitutionally vague in this context.
¶ 13 The due process vagueness doctrine "serves two important purposes: first, to provide citizens with fair warning of what conduct they must avoid; and second, to protect them from arbitrary, ad hoc, or discriminatory law enforcement." State v. Halstien, 122 Wash.2d 109, 116-17, 857 P.2d 270 (1993). Under the due process clause, a prohibition is void for vagueness if either (1) it does not define the offense with sufficient definiteness such that ordinary people can understand what conduct is prohibited, or (2) it does not provide ascertainable standards of guilt to protect against arbitrary enforcement. Douglass, 115 Wash.2d at 178, 795 P.2d 693. However, a statute or condition is presumed to be constitutional unless the party challenging it proves that it is...
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Table of Cases
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