State v. Wallmuller
| Decision Date | 07 August 2018 |
| Docket Number | No. 50250-0-II,50250-0-II |
| Citation | 423 P.3d 282 |
| Parties | STATE of Washington, Respondent, v. Frank A. WALLMULLER, Appellant. |
| Court | Washington Court of Appeals |
Lise Ellner, Attorney at Law, P.O. Box 2711, Vashon, WA, 98070-2711, Lark Pelling, Attorney at Law, 23615 147th Ave. SW, Vashon, WA, 98070-6823, for Appellant.
Timothy J. Higgs, Mason Co. Pros. Atty. Office, P.O. Box 639, Shelton, WA, 98584-0639, for Respondent.
PART PUBLISHED OPINION
¶ 1 Frank Wallmuller appeals his sentence following a resentencing hearing, arguing the trial court erred in imposing certain community custody conditions. In the published portion of this opinion, we hold that a community custody condition prohibiting Wallmuller from frequenting "places where children congregate such as parks, video arcades, campgrounds, and shopping malls," Clerk’s Papers (CP) at 25, is unconstitutionally vague. In the unpublished portion of the opinion, we address and reject Wallmuller’s other challenges.
¶ 2 Accordingly, we remand to the trial court to vacate or correct the language in this community custody condition that prohibits Wallmuller from frequenting places where children congregate, but we affirm his sentence in all other respects.
¶ 3 Wallmuller pleaded guilty in 2014 to charges of first degree child rape and sexual exploitation of a minor. He appealed his sentence, and this court remanded for resentencing. State v. Wallmuller, No. 46460-8-II, 2015 WL 7259587 (Wash. Ct. App. Nov. 17, 2015) (unpublished), http://www.courts.wa.gov/opinions/pdf/D2% 2046460-8-II% 20Unpublished% 20Opinion.pdf. At resentencing in 2016, the trial court imposed a community custody condition that prohibited Wallmuller from frequenting "places where children congregate." CP at 25.
¶ 4 Wallmuller appeals his sentence.
¶ 5 Wallmuller challenges as unconstitutionally vague a community custody condition that provided: "The defendant shall not loiter in nor frequent places where children congregate such as parks, video arcades, campgrounds, and shopping malls." CP at 25. We agree.
¶ 6 Wallmuller did not object at resentencing to the "places where children congregate" community custody condition. However, vagueness challenges to community custody conditions may be raised for the first time on appeal. State v. Padilla , 190 Wash.2d 672, 677, 416 P.3d 712 (2018).
¶ 7 Vague community custody conditions violate due process under the Fourteenth Amendment to the United States Constitution and article I, section 3 of the Washington Constitution. State v. Irwin , 191 Wash. App. 644, 652, 364 P.3d 830 (2015). A community custody condition is unconstitutionally vague if either "(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." Padilla , 190 Wash.2d at 677, 416 P.3d 712. However, a condition need not identify prohibited conduct with complete certainty. Id.
¶ 8 We review community custody conditions for an abuse of discretion and will reverse them only if they are manifestly unreasonable. Id. But a trial court abuses its discretion by imposing an unconstitutional condition. Id. And unlike statutes challenged on vagueness grounds, there is no presumption of validity for sentencing conditions. State v. Sanchez Valencia, 169 Wash.2d 782, 793, 239 P.3d 1059 (2010).
¶ 9 In Irwin , Division One of this court addressed a community custody condition that stated, "Do not frequent areas where minor children are known to congregate, as defined by the supervising CCO [community corrections officer]." 191 Wash. App. at 649, 364 P.3d 830. The court held that the phrase "where minor children are known to congregate" was unconstitutionally vague. The court stated:
Irwin , 191 Wash. App. at 654-55, 364 P.3d 830 (quoting State v. Bahl , 164 Wash.2d 739, 753, 193 P.3d 678 (2008) ) (quoting City of Spokane v. Douglass , 115 Wash.2d 171, 178, 795 P.2d 693 (1990) ).1
¶ 10 In State v. Norris , Division One addressed a similar community custody condition that contained a short list of prohibited locations. The condition provided: "Do not enter any parks/playgrounds/schools and or any places where minors congregate." 1 Wash. App. 2d 87, 95, 404 P.3d 83 (2017), review granted , 190 Wash.2d 1002, 413 P.3d 12 (2018). The State conceded on appeal that the phrase "any places where minors congregate" was unconstitutionally void for vagueness, and the court accepted that concession. Id. Quoting Irwin , the court stated that the phrase did not give ordinary people sufficient notice to understand what conduct was proscribed. Id.
¶ 11 However, Norris agreed that striking "and or any places" from the condition would make it constitutionally proper. Id. at 95-96, 404 P.3d 83. The court stated, "We hold the imposition of a condition that states, ‘Do not enter any parks, playgrounds, or schools where minors congregate’ is not unconstitutionally vague or void for vagueness." Id. at 96, 404 P.3d 83.
¶ 12 The three primary dictionary definitions of "congregate" are (1) "to collect together into a group, crowd, or assembly," (2) "to come together, collect, or concentrate in a particular locality or group," and (3) "become situated together or in proximity to each other." WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 478 (2002). This second definition seems most appropriate in this situation.
¶ 13 But even that definition creates uncertainty and 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? These questions suggest that the condition does not sufficiently define the proscribed conduct.
¶ 14 Arguably, the condition here is less vague than in Irwin because it provides a short list of locations where Wallmuller knows he is not allowed to go. However, the condition contains the phrase "such as" before its list of prohibited places, indicating that frequenting more places than just those listed would violate the condition. As in Norris , this short list does not cure the inherent vagueness of the phrase "places where children congregate."
¶ 15 "[A] statute will be considered unconstitutionally vague if enforcement depends on a completely subjective standard." Padilla , 190 Wash.2d at 679, 416 P.3d 712. The community custody condition here invites a completely subjective standard for interpreting "places where children congregate." As a result, we follow Irwin and Norris and hold the condition is unconstitutionally vague.
¶ 16 Division Three recently reached the opposite conclusion in a 2-1 decision in State v. Johnson , in which the court held that a similar "places where children congregate" community custody condition was not vague. State v. Johnson , slip op. at 8-10, ––– Wash.App.2d ––––, –––– – ––––, 421 P.3d 969 (2018), https://www.courts.wa.gov/opinions/pdf/349284_pub.pdf. We do not find the court’s reasoning persuasive.2
¶ 17 We agree with the court in Norris that a modified condition stating, "The defendant shall not loiter in nor frequent parks, video arcades, campgrounds, and shopping malls" would not be unconstitutionally vague. On remand, the trial court can vacate this condition or modify the condition consistent with this opinion.
¶ 18 We remand to the trial court to vacate or modify the language in the community custody condition that prohibits Wallmuller from frequenting places where children congregate, but affirm his sentence in all other respects.
¶ 19 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with RCW 2.06.040, it is so ordered.
¶ 20 Wallmuller also argues that the trial court erred in (1) imposing a community custody condition requiring him to bear the expense of random urinalysis and/or breathalyzer testing, and (2) failing to order a new presentence investigation report (PSI) at resentencing. We disagree.
Unpublished Text Follows
¶ 21 At his original sentencing in 2014, Wallmuller asked the court to waive the PSI requirement and to rely on the PSI presented for a 2009 sentencing on other sex offenses. At the resentencing hearing, the trial court did not order a new PSI, but Wallmuller did not object.
¶ 22 The trial court imposed several community custody conditions, including a condition that required Wallmuller to "at his/her own expense, submit to random urinalysis and/or breathalyzer testing at the request of the CCO or treatment provider." CP at 25. In addition, the court made a finding that Wallmuller "does not have a significant ability...
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