State v. Wallmuller, 96313-4

• Citation: 449 P.3d 619,194 Wash.2d 234
• Decision Date: 26 September 2019
• Docket Number: NO. 96313-4,96313-4
• Parties: STATE of Washington, Petitioner, v. Frank A. WALLMULLER, Respondent.
• Court: United States State Supreme Court of Washington

194 Wash.2d 234

449 P.3d 619

STATE of Washington, Petitioner,

v.Frank A. WALLMULLER, Respondent.

NO. 96313-4

Supreme Court of Washington.

Oral Argument Date: May 14, 2019

Filed SEPTEMBER 26, 2019

Timothy J. Higgs, Mason County Prosecuting Attorney Office, P.O. Box 639, Shelton, WA 98584-0639, for Petitioners.

Lise Ellner, Attorney at Law, P.O. Box 2711, Vashon, WA 98070-2711, for Respondents.

Thomas E. Weaver, Jr., Attorney at Law, P.O. Box 1056, Bremerton, WA 98337-0221, for Amicus Curiae (Washington Association of Criminal Defense Lawyers).

STEPHENS, J.

¶1 The Court of Appeals held that a community custody condition barring a defendant from "places where children congregate" is inherently vague, in violation of due process, unless it is cabined by an exclusive list of specific prohibited places. We hold that this was error. While an illustrative list of prohibited places serves to clarify and define such a condition, crafting an exclusive list is neither constitutionally required nor practically possible. We reverse the Court of Appeals and uphold the challenged condition.

FACTS

¶2 Frank Wallmuller pleaded guilty in 2014 to first degree rape of a child and sexual exploitation of a minor. He successfully appealed on grounds of sentencing error and imposition of improper community custody conditions, and the Court of Appeals remanded for correction of those errors. State v. Wallmuller , No. 46460-8-II, slip op. at 4-5, 2015 WL 7259587 (Wash. Ct. App. Nov. 17, 2015) (unpublished), http://www.courts.wa.gov/opinions/pdf/D2% 2046460-8-II% 20Unpublished% 200pinion.pdf. On remand, the trial court struck the challenged community custody conditions, which related to pornography and businesses selling liquor,¹ but reimposed three of the original conditions relating to contact with children. Those conditions read:

(15) The defendant shall not have contact with minor children under the age of 18 years unless in the presence of a responsible adult who is capable of protecting the child and is aware of the conviction, and contact has been approved by the Community Corrections Officer and the sexual offender’s treatment therapist in advance;

(16) The defendant shall not participate in youth programs, to include, but not limited to, sports programs, scouting programs, and school programs;

(17) The defendant shall not loiter in nor frequent places where children congregate such as parks, video arcades, campgrounds, and shopping malls.

Clerk’s Papers at 25 (boldface omitted). Wallmuller did not object to any of these conditions at the resentencing hearing. On appeal, however, he challenged the condition in paragraph 17 on the ground that it is unconstitutionally vague.

¶3 A divided Court of Appeals agreed and remanded for the trial court to vacate or modify the condition. State v. Wallmuller , 4 Wash. App. 2d 698, 703-04, 423 P.3d 282 (2018). The majority reasoned that the phrase "places where children congregate" is vague because it

gives rise to several questions: (1) Must the children join together in a formal group to "congregate," or is it sufficient that children be at the same place even if they are unconnected? (2) Similarly, must the children intend to join together with other children to "congregate," or can they end up at the same place by happenstance? (3) How many children are required to congregate to invoke the condition? Is two enough, or is some unstated larger number required? (4) How often must children congregate in a place to invoke the condition? Is once enough, or is some unstated frequency required? (5) Assuming that children must have actually rather than potentially congregated at a place to invoke the condition, how recently must they have congregated there? Is one prior instance of children congregating in a place sufficient regardless of when it occurred?

Id. at 703, 423 P.3d 282. The court concluded that, because it was impossible to answer these questions, the nonexclusive list of specific prohibited places in Wallmuller’s condition was insufficient to cure its inherent vagueness. Id. A dissenting judge would have upheld the condition, observing that the condition would put an ordinary person on notice of the prohibited conduct. Id. at 714, 423 P.3d 282 (Lee, J., dissenting).

¶4 We granted the State’s petition for review. State v. Wallmuller , 192 Wash.2d 1009, 432 P.3d 794 (2019).

ANALYSIS

¶5 Conditions of community custody may be challenged for the first time on appeal and, where the challenge involves a legal question that can be resolved on the existing record, preenforcement. State v. Padilla, 190 Wash.2d 672, 677, 416 P.3d 712 (2018) (citing State v. Bahl, 164 Wash.2d 739, 744, 193 P.3d 678 (2008) ). An appellate court reviews community custody conditions for abuse of discretion. Id. (citing State v. Irwin, 191 Wash. App. 644, 652, 364 P.3d 830 (2015) ). A trial court necessarily abuses its discretion if it imposes an unconstitutional community custody condition, and we review constitutional questions de novo. Id.

¶6 Under the due process principles of the Fourteenth Amendment to the United States Constitution and article I, section 3 of the Washington Constitution, "[a] legal prohibition, such as a community custody condition, is unconstitutionally vague if (1) it does not sufficiently define the proscribed conduct so an ordinary person can understand the prohibition or (2) it does not provide sufficiently ascertainable standards to protect against arbitrary enforcement." Id. (citing Bahl, 164 Wash.2d at 752-53, 193 P.3d 678 ). " ‘[A]... condition is not unconstitutionally vague merely because a person cannot predict with complete certainty the exact point at which his actions would be classified as prohibited conduct.’ " Id. (internal quotation marks omitted) (quoting State v. Sanchez Valencia, 169 Wash.2d 782, 793, 239 P.3d 1059 (2010) ). Instead, both " ‘the Fourteenth Amendment and article I, section 3 of the state constitution require[ ] that citizens have fair warning of proscribed conduct.’ " Sanchez Valencia, 169 Wash.2d at 791, 239 P.3d 1059 (quoting Bahl, 164 Wash.2d at 752, 193 P.3d 678 ). That standard is satisfied where "ordinary people can understand what is and is not allowed, and are protected against arbitrary enforcement." Id. (citing Bahl, 164 Wash.2d at 752-53, 193 P.3d 678 (quoting City of Spokane v. Douglass, 115 Wash.2d 171, 178, 795 P.2d 693 (1990) (citing Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983) ))). For purposes of the vagueness doctrine, our cases do not distinguish between state and federal protections, see, e.g., id., and the parties to this case do not argue any such distinction.²

¶7 Several appellate decisions in recent years have considered vagueness challenges to community custody conditions similar to the one at issue here, including Irwin, 191 Wash. App. 644, 364 P.3d 830, and State v. Norris, 1 Wash. App. 2d 87, 404 P.3d 83 (2017) rev’d in part on other grounds by State v. Hai Minh Nguyen , 191 Wash.2d 671, 687-88, 425 P.3d 847 (2018). In Irwin, the court held unconstitutionally vague a condition that read, " ‘Do not frequent areas where minor children are known to congregate, as defined by the supervising [community corrections officer (CCO) ].’ " 191 Wash. App. at 649, 364 P.3d 830 (alteration in original). It reasoned that "[w]ithout some clarifying language or an illustrative list of prohibited locations ... ordinary people cannot understand what conduct is proscribed ... [and] the condition [is] vulnerable to arbitrary enforcement" by the CCO. Id. at 655, 364 P.3d 830 (emphasis added). Later, in Norris, the court invalidated a condition that stated, " ‘Do not enter any parks/playgrounds/schools and or any places where minors congregate.’ " 1 Wash. App. 2d at 95, 404 P.3d 83. With no explanatory analysis, the court accepted the State’s concession that the condition was vague under Irwin and struck the phrase " ‘and or any places,’ " so that the condition would read, " ‘Do not enter any parks/playgrounds/schools where minors congregate.’ " Id. at 95-96, 404 P.3d 83. This revision to the condition suggests that the court was concerned with the alternative "and or" phrasing that arguably left the phrase, "where children congregate" unmodified.

¶8 Expressly relying on Irwin and Norris, the Court of Appeals majority in this case held that the phrase " ‘places where children congregate’ " is so inherently vague that a "short [nonexclusive] list" of exemplifying places cannot render it constitutional. Wallmuller, 4 Wash. App. 2d at 703, 423 P.3d 282. The majority acknowledged that Irwin was "arguably" distinguishable because it involved a condition with no list of exemplifying places but concluded that, because the "short list" in the condition at issue in Norris did not cure vagueness, Wallmuller’s condition was unconstitutionally vague under both Irwin and Norris . Id. This analysis is flawed for two reasons.

¶9 First, the Court of Appeals majority purports to follow Norris, without recognizing that the modified condition approved in Norris would suffer from the same vagueness problem the majority identifies in Wallmuller’s condition.

That vagueness inheres in the term "congregate," which the court describes as posing unanswerable questions, such as "[h]ow many children are required to congregate ... [and] [h]ow often must children congregate ... to invoke the condition?" Id. The condition approved in Norris —" ‘[d]o not enter any parks, playgrounds, or schools where minors congregate,’ " 1 Wash. App. at 96, 404 P.3d 83—begs all these questions. It is therefore impossible to tell what rule the majority below actually applied in this case. The majority’s holding amounts to a rule against nonexclusive lists,³ which may be consistent with Norris' s (unexplained) result, but its reasoning suggests a prohibition on the word "congregate," which cannot be reconciled with Norris.

¶10 Second, in addition to its misalignment with the...