FILED
COUJ1
i OF APPEALS
DIVISION 11
all If AUG 12
Pil 12: 47
IN THE COURT OF APPEALS OF THE STATE OF
WASHIN4 g ` ` E
ON
DIVISION II
STATE OF WASHINGTON No. 44528 -0 -II
Respondent,
v.
KAREN ELIZABETH LOFGREN, UNPUBLISHED OPINION
Appellant.
LEE, J. — Karen Elizabeth Lofgren appeals the lifetime no- contact orders barring all
contact with her children that were imposed as conditions of sentence after she pleaded guilty to
solicitation to commit second degree murder. In a pro se statement of additional grounds ( SAG),
Lofgren also challenges the length of her standard range sentence. Lofgren cannot appeal the
length of her sentence; therefore, we affirm her sentence. But, because neither the scope nor the
duration of the no- contact orders were reasonably necessary to protect her children, we remand
for the trial court to vacate the lifetime no- contact orders with the children as a condition of her
sentence.
FACTS
Lofgren married Todd Hardin in 2002. The couple' s two daughters were born in 2003
and 2006. Lofgren filed for divorce in 2010, but she had that petition dismissed after the couple
reconciled. Hardin filed a second dissolution petition in 2011.
While the dissolution proceedings were pending, Lofgren asked an acquaintance, Darrell
Burgess, to hire someone to kill Hardin. Burgess reported this to his probation officer, who
No. 44528 -0 -II
contacted Pierce County law enforcement. Using court- authorized surveillance, detectives
recorded conversations between Lofgren and Burgess, as well as conversations between Lofgren
and an undercover officer posing as the " hit man." Clerk' s Papers ( CP) at 3 -4. During one
conversation, Lofgren referred several times to the need to protect her children from Hardin.
During another conversation, when the officer asked about Hardin' s schedule, Lofgren disclosed
that Hardin volunteered at the girls' school and identified both the school and the times that he
was there. She was insistent that the girls should not be around when any violence occurred.
The State charged Lofgren in the alternative with conspiracy to commit first degree
murder and solicitation to commit first degree murder. Lofgren agreed to plead guilty to an
amended charge of solicitation to commit second degree murder.
In its sentencing memorandum, the State recommended a high - nd standard range
e
sentence of 165 months, as well as no- contact orders preventing Lofgren from contacting her
children and Hardin. The defense memorandum sought a sentence either below or at the low end
of the standard range. The defense submitted 55 letters supporting its request for leniency.
Lofgren was released on bail pending sentencing, and one condition of release was that she have
no contact with Hardin or her daughters.
Hardin spoke at the sentencing hearing and stated that he and his children would never be
safe because Lofgren would always be a danger to them. He also described the broader impact
of Lofgren' s actions:
My children' s private school has been on high alert while Karen Lofgren
has beenout of jail. Many parents have expressed fear that Ms. Lofgren might
show up and do something unthinkable to my children in a vindictive attempt to
get to me, and I share those concerns. She is capable of anything. She even
informed the hit man of where my girls go to school when she told him that I
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No. 44528 -0 -II
volunteered for their class, giving him the time and the name of the school. I
lobbied hard for my children to be able to return to this school so that my girls'
lives wouldn' t be further disrupted by the wake having been left by Ms. Lofgren.
It was only because of the no- contact order preventing her from seeing the
children that they were allowed to remain in this private Christian school.
Report of Proceedings ( RP) ( Jan. 25, 2014) at 17. Hardin ended his statement as follows: " I beg
you to keep the no- contact order in place so that my children and I will, at least, have a chance at
some sort of normal life." RP ( Jan. 25, 2014) at 18.
The State argued that no- contact orders between Lofgren and her children were necessary
because Lofgren had placed the children at risk by giving the undercover officer information
about their school and schedules. The defense responded that no- contact orders involving the
children were not appropriate because Lofgren had been trying to protect rather than harm her
daughters.
The trial court imposed a high -
end standard range sentence of 165 months and then
addressed the no- contact orders:
The Court is going to order a no- contact order with the children. I did that
in the last case when it was the man sitting there having killed the woman, the
mother of his children; so I don' t see that I can legitimately say that she is entitled
to have custody where she tried to have her children' s father killed and would not
hold the man accountable. I don' t have a double standard here. She tried to have
her children' s father killed. The burden that would have been placed on those
children was immense, if she had managed to succeed in that plan. To lose a
parent when you' re a small child — I had friends who lost a parent. It is with them
forever; and to have to live with the fact that your mother paid someone to kill
your father would be a burden that I would place on no child, and she chose that
line. She chose to do it. She wasn' t isolated. She has a huge support system of
friends and family. She had a very good attorney. If she was feeling stressed, he
would have set her up in the appropriate counseling. She' s an educated woman.
This isn' t a woman who dropped out of school at 13 or 14 to have children who
had no education and no job
If I was sitting here, and this was the man,
skills.
and he tried to have someone kill his wife, he would be looking at the same
sentence. There just isn' t a double standard here, so no contact with the children.
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No. 44528 -0 -II
When they' re 18, they can decide whether or not they want to have contact with
their mother, but that would be their decision when they are adults.
RP ( Jan. 25, 2014) at 51 - 52.
The court then imposed no- contact orders barring Lofgren from having contact of any
kind with Hardin and the children for life as a sentencing condition. On appeal, Lofgren
challenges the no- contact orders concerning her children, as well as the length of her sentence.
ANALYSIS
A. NO- CONTACT ORDERS
Lofgren argues initially that the no- contact orders barring her from all contact with her
children for life are constitutionally and statutorily invalid.
The Sentencing Reform Act of 1981 authorizes a trial court to impose crime -related
prohibitions for a term of the maximum sentence to a crime, independent of any community
custody conditions. RCW 9. 94A. 505( 8); State v. Warren, 165 Wn.2d 17, 32, 195 P. 3d 940
2008), cert. denied, 556 U.S. 1192 ( 2009). " Crime -
related prohibitions" are orders directly
related to " the circumstances of the crime" and may include no- contact orders. RCW
9. 94A. 030( 10); State v. Armendariz, 160 Wn.2d 106, 120, 156 P. 3d 201 ( 2007). A causal link
between the condition imposed and the crime committed is not necessary as long as the condition
relates to the crime' s circumstances. State v. Llamas -Villa, 67 Wn. App. 448, 456, 836 P.2d 239
1992).
We review such sentencing conditions for abuse of discretion. State v. Riley, 121 Wn.2d
22, 37, 846 P. 2d 1365 ( 1993). "` A court abuses its discretion if, when imposing a crime -related
prohibition, it applies the wrong legal standard. ' State v. Howard, No. 32157 -6 -III, 2014 WL
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No. 44528 -0 -II
2864397, at * 4 ( Wash. Ct. App. June 24, 2014) ( quoting In re Pers. Restraint of Rainey, 168
Wn.2d 367, 374 -75, 229 P. 3d 686 ( 2010)).
Careful review is required when sentencing conditions interfere with a fundamental
constitutional right. Warren, 165 Wn.2d at 32. Parents have a fundamental liberty interest in the
care, custody, and companionship of their children. Warren, 165 Wn.2d at 34; Howard, 2014
WL 2864397, * 4. This fundamental right to parent can be restricted by a condition of a criminal
sentence only if that condition is reasonably necessary to prevent harm to the children. State v.
Ancira, 107 Wn. App. 650, 654, 27 P. 3d 1246 ( 2001). This " reasonable necessity" requirement
involves an interplay of sentencing conditions and fundamental rights that is " delicate and fact -
specific." Rainey, 168 Wn.2d at 377; see also Warren, 165 Wn.2d at 32 ( conditions that
interfere with fundamental rights must be reasonably necessary to accomplish the essential needs
of the State and public order, and they must be sensitively imposed). To survive scrutiny, both
the scope and duration of a no- contact order affecting a defendant' s parental rights must be
reasonably necessary. Rainey, 168 Wn.2d at 381.
Lofgren cites three cases where far less restrictive orders than those at issue here did not
satisfy the reasonable necessity requirement. In State v. Letourneau, 100 Wn. App. 424, 997
P. 2d 436 ( 2000), a defendant who pleaded guilty to second degree child rape successfully
challenged the scope of a sentencing condition prohibiting her from having unsupervised contact
with her biological minor children after her release from prison. Division One concluded that the
State had failed to demonstrate that allowing the defendant only supervised contact with her
children was reasonably necessary to protect them from the harm of sexual molestation by their
mother. Letourneau, 100 Wn. App. at 441. The defendant had not molested her own children,
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No. 44528 -0 -II
and there was no evidence that she was a pedophile. Letourneau, 100 Wn. App. at 442.
Consequently, allowing the defendant only supervised contact with her children following her
release unconstitutionally infringed on her right to raise those children without State interference.
Letourneau, 100 Wn. App. at 438, 442.
Division One found a similar infringement in Ancira, where the trial court imposed a no-
contact order prohibiting the defendant from contacting his children after he was convicted of
violating a no- contact order requiring him to stay away from his wife. 107 Wn. App. at 652 -53.
The trial court was trying to protect the children from witnessing further violence, but Division
One concluded that the resulting no- contact order was not reasonably necessary to achieve this
goal: " The State has not explained why prohibiting Ancira from contacting his wife would not
protect the children from the harm of witnessing domestic violence between their parents."
Ancira, 107 Wn. App. at 655. Prohibiting the defendant from all contact with his children for the
five -
year maximum term was " extreme and unreasonable given the fundamental rights
involved." Ancira, 107 Wn. App. at 655.
Finally, where a defendant was convicted of assaulting his children' s mother, a
subsequent restriction allowing him only supervised contact with the children violated his
fundamental right to parent. State v. Sanford, 128 Wn. App. 280, 288, 115 P. 3d 368 ( 2005). The
children did not know about, see, or hear the assault, and there were no allegations that the
defendant had ever committed or threatened any violence against them. Sanford, 128 Wn. App.
at 289. Accordingly, the trial court erred in restricting the defendant to supervised visitation with
his children as a condition of sentence. Sanford, 128 Wn. App. at 289.
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No. 44528 -0 -II
In contrast to the cases cited above, courts have upheld no- contact orders involving a
defendant' s children where the children were either victims of the crimes for which the
defendant was being sentenced or within the same class as the victim. In Rainey, the daughter
who was the subject of the no- contact order was the victim of the current kidnapping conviction.
168 Wn.2d at 379. In addition, the defendant had a history of involving his daughter in attempts
to gain leverage over his ex -
wife and to harass her. Rainey, 168 Wn.2d at 379 -80. The scope of
the resulting order limiting the defendant' s contact with his daughter was necessary to protect the
child from additional harm. Rainey, 168 Wn.2d at 380. And, in two cases where defendants
were convicted of sexually abusing children within their households, the resulting restrictions on
contact with their biological children did not constitute an abuse of discretion. State v. Corbett,
158 Wn. App. 576, 600, 242 P. 3d 52 ( 2010); State v. Berg, 147 Wn. App. 923, 941 -44, 198 P. 3d
529 ( 2008), abrogated on other grounds, State v. Mutch, 171 Wn.2d 646, 254 P. 3d 803 ( 2011).
As we observed in Corbett, the no- contact order restricting the defendant' s contact with his
biological children was directly related to his crime because the children fell within the class of
persons he had victimized. 158 Wn. App. at 601. In each case, the restricted contact was
necessary to protect the other children from a risk of similar harm. Corbett, 158 Wn. App. at
600; Berg, 147 Wn. App. at 944.
Here, the defendant' s children were neither the direct victims of her offense nor within
the same class as Hardin, her victim. The State nonetheless argued below that a lifetime ban on
contact with the children was necessary to protect them as well as Hardin. The State reminded
the trial court that Lofgren had revealed the name of her daughters' school and their schedules to
the undercover officer. The State did not add that Lofgren also told the officer that she did not
No. 44528 -0 -II
want the children involved in any violence, nor did it cite her repeated assertions in other
conversations that she was trying to protect her children. On appeal, the State again points to
Lofgren' s disclosure of the school information. The State maintains that allowing Lofgren
contact with her children will permit her to gain information about Hardin' s whereabouts that she
can reveal to potential assassins, thereby placing her children within the " line of fire." Br. of
Resp' t at 16. The State also argues that without these orders, the children may have to change
schools.
These speculative claims of harm do not show that the restrictive orders at issue are
reasonably necessary to protect the children. Moreover, there is no indication that these orders
were delicately or sensitively drawn. See Warren, 165 Wn.2d at 34 ( crime -
related prohibitions
affecting fundamental rights must be narrowly construed). The trial court referred neither to the
need to protect the children nor to the impact on Lofgren' s constitutional rights when it imposed
the orders at issue.
We also take issue with the duration of the no- contact orders. See Rainey, 168 Wn.2d at
381 ( restriction' s length, as well as scope, must be reasonably necessary). Although the trial
court stated during sentencing that the children could consider contact with Lofgren when they
turned 18, the no- contact orders were imposed for life, which is the maximum sentence possible
for Lofgren' s offense. RCW 9A.28. 030( 2); RCW 9A.28. 020( 3)( a); RCW 9A.20. 021( 1)( a). The
State attempts to justify the lifetime duration as necessary to protect Hardin, but there is an
unchallenged lifetime no- contact order in place that applies to him. Any additional protection
afforded by a lifetime ban on contact between Lofgren and her children is not reasonably
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No. 44528 -0 -II
necessary. See Rainey, 168 Wn.2d at 381 -82 ( rejecting lifetime ban on contact where the
sentencing court provided no reason for duration).
We agree with Lofgren that the proper forum to resolve the issue of her contact with her
children is the family court. As the court in Letourneau explained:
The Legislature has provided more appropriate forums than the criminal
sentencing process to address the best interests of dependent children with respect
to most visitation issuesthe family court in the case of marital dissolution and
paternity issues, and the juvenile court in the case of dependency proceedings... .
It is the business of the family and juvenile courts to address the best interests of
minor children with respect to most other kinds of harm that could arise during
visitation with a parent who has been convicted of a crime.... To that end, the
family and juvenile courts have authority to appoint guardians ad litem to
investigate the best interests of minor children and those courts have broad
discretion to tailor orders that address the needs of children in ways that
sentencing courts in criminal proceedings cannot.
100 Wn. App. at 443. And, when child visitation issues are addressed in the context of
dissolution or dependency proceedings, there are statutory procedures in place that protect a
parent' s right to procedural due process where the fundamental right to parent is at stake.
Ancira, 107 Wn. App. at 655 -56.
In summary, we conclude that the lifetime orders barring Lofgren from all contact with
her children were not reasonably necessary to protect the children from harm. The matter and
manner of contact between the children and Lofgren is best resolved by the family court in the
dissolution proceeding.'
1 Moreover, our opinion does not preclude a court from issuing a no- contact order grounded on
other statutory bases.
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No. 44528 -0 -II
B. LENGTH OF SENTENCE
In her SAG, Lofgren asks us to modify the length of her sentence due to mitigating
circumstances. The law is well settled that a defendant cannot appeal the length of a standard
range sentence so long as the punishment falls within the correct sentencing range. RCW
9. 94A. 585( 1); State v. Williams, 149 Wn.2d 143, 146, 65 P. 3d 1214 ( 2003). Consequently, this
sentencing challenge fails.
We affirm the length of Lofgren' s standard range sentence. But, we remand for the trial
court to vacate the lifetime no- contact orders with the children as a condition of her sentence.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
We concur:
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