Fl LED
MARCH 15, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In re the Matter of the Personal Restraint )
of ) No. 33554-2-111
)
)
)
CHRISTOPHER JAMES RIDLEY. )
) UNPUBLISHED OPINION
)
FEARING, J. - Christopher Ridley seeks relief from personal restraint imposed by
his 2012 Yakima County conviction on a guilty plea of attempted first degree child
molestation. The judgment and sentence became final on April 11, 2012, the date of
filing. RCW 10.73.090(3)(a). Two years later, Ridley filed a first personal restraint
petition, contending the trial court used an incorrect offender score and erred by imposing
noncrime-related conditions of community custody. We dismissed his first petition as
untimely and mixed under RCW 10.73.090(1) and RCW 10.73.100. See In re Pers.
Restraint ofRidley, no. 32445-1-111 (Wash. Ct. App. 2015). When one or more of the
grounds asserted for relief falls within the exceptions to the one-year statutory bar in
RCW 10.73.100 and one or more does not, we characterize the petition as "mixed" and
No. 33554-2-111
In re Pers. Restraint ofRidley
dismiss the petition. In re Pers. Restraint of Weber, 155 Wn.2d 247, 255, 284 P.3d 734
(2012); RCW 10.73.100.
Three months after dismissal of his first petition, Christopher Ridley filed this
second personal restraint petition. He again challenges the conditions of community
custody and the offender score. He adds a new claim that the judgment and sentence
incorrectly computed the amount of legal financial obligations.
We hold that two of Christopher Ridley's conditions of community custody are
invalid on the face of the judgment and sentence. We also hold that the trial court
incorrectly computed the amount of the legal financial obligations. As a result, we
remand for resentencing. We dismiss the remaining claims.
STANDARDS OF REVIEW
Christopher Ridley filed this personal restraint petition, like the previous one,
more than one year after finality of his case. Therefore, RCW 10.73.090(1) bars the
petition as untimely unless the judgment and sentence is invalid on its face, the trial court
lacked competent jurisdiction, or the petition is based solely on one or more of the
exceptions set forth in RCW 10.73.100(1)-(6). These exceptions include: (1) the
petitioner has newly discovered evidence, (2) the conviction statute was unconstitutional,
(3) the conviction violated double jeopardy, (4) the petitioner pled not guilty and the
evidence was insufficient to support conviction, (5) the sentence exceeded the trial
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court's jurisdiction, or (6) there was a significant intervening change in the law material
to the conviction or sentence. RCW 10.73.100.
When one or more of the grounds asserted for relief falls within the exceptions in
RCW 10.73.100 and one or more does not, the petition is "mixed" and must be
dismissed. In re Pers. Restraint of Turay, 150 Wn.2d 71, 85-86, 74 P.3d 1194 (2003);
RCW 10.73.100. This court need not state which claims are time-barred under RCW
10.73.100 and which are not, and will not decide claims that are not time-barred. Turay,
150at86.
This court lacks jurisdiction to consider a successive personal restraint petition
unless the petitioner certifies that he has not filed a previous petition on similar grounds
and shows good cause why he did not raise any new grounds in the previous petition.
RCW 10.73.140. Although Christopher assigns as errors rulings, in this second petition,
he challenged in his first petition, the second petition is not barred as successive, because
the issues raised in the prior petition were not determined on the merits. See In re Pers.
Restraint of Hankerson, 149 Wn.2d 695, 703, 72 P.3d 703 (2003). "Where claims are
dismissed because they are contained in a mixed petition[,] the claims have not been
considered on the merits; the dismissal is on procedural grounds." Hankerson, 149
Wn.2d at 704.
Christopher Ridley's claims challenging the facial validity of his judgment and
sentence are reviewable under RCW 10.73.090(1). Hankerson, 149 Wn.2d at 704. Any
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other claims must qualify for one or more of the exceptions in RCW 10.73.100(1)-(6).
Generally a judgment and sentence is invalid on its face if the fatal defect is apparent on
the face of the judgment without further elaboration. See In re Pers. Restraint of
Goodwin, 146 Wn.2d 861, 866, 50 P.3d 618 (2002). The judgment is invalid if the trial
court exercised a power it did not have or imposed a sentence that was not authorized by
law. In re Pers. Restraint of Snively, 180 Wn.2d 28, 32, 320 P.3d 1107 (2014); In re
Pers. Restraint of Coats, 173 Wn.2d 123, 135-36, 267 P.3d 324 (2011).
COMMUNITY CUSTODY CONDITIONS
Under RCW 9.94A.507(5), a person convicted of attempted first degree child
molestation shall be sentenced to community custody under the supervision of the
Department of Corrections for any time he or she is released from total confinement
before expiration of the maximum sentence. The sentencing court is required to impose
certain conditions and has discretion to impose others, such as crime-related prohibitions,
affirmative conditions, and statutorily authorized infringements of certain constitutional
rights. RCW 9.94A.505(8) (2010); former RCW 9.94A.703 (2009); State v. Bahl, 164
Wn.2d 739, 744, 193 P.3d 678 (2008); State v. Riles, 135 Wn.2d 326, 346-47, 957 P.2d
655 (1998), abrogated on other grounds by State v. Valencia, 169 Wn.2d 782, 239 P.3d
1059 (2010). We review the trial court's imposition of conditions of community custody
for abuse of discretion. Valencia, 169 Wn.2d at 791-92.
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In re Pers. Restraint of Ridley
Christopher Ridley challenges six conditions of community custody imposed by
the trial court:
[1] Have no direct or indirect contact with victim or the victim[']s family
of this offense, through either direct or indirect means.
[2] Report no later than the next business day after sentencing or release
from jail to a Washington State approved alcohol/drug assessment facility
for evaluation. Cooperate fully with the facility and immediately enter into
and complete any recommended treatment program by the end of
superv1s10n.
[3] Hold no position of authority or trust involving children.
[4] Have no contact with minor children other than own biological
children. Any other minor contact must have the approval of your sexual
deviancy therapist and/or supervising Community Corrections Officer.
Approved contact shall only be in the presence of a responsible adult who
has been approved in advance as a sponsor by the deviance therapist and/or
Community Corrections Officer.
[5] Do not purchase, possess, or view any pornographic material in any
form as defined by the treatment provider.
[6] Submit to regular polygraph and plethysmograph examinations about
deviant sexual behavior upon the request of the supervising Community
Corrections Officer.
Judgment and sentence at 4.
Christopher Ridley first contends conditions 2, 3, and 4 are invalid because they
are not crime related. This claim, however, requires consideration of the facts of this case
and involves the exercise of the trial court's discretion. Consequently, this claim cannot
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be determined from the face of the judgment and sentence and is not reviewable under
RCW 10.73.090(1).
Christopher Ridley also contends his challenge to conditions 2, 3, and 4 qualifies
for the exception found in RCW 10.73.100(5). He contends that the three conditions
exceed the jurisdiction of the court because the court violated RCW 9.94A.030(10) when
it imposed prohibitions that were not crime related. The statute defines "crime-related
prohibition" as a court order prohibiting conduct that directly relates to the circumstances
of the crime. But a sentence i's not jurisdictionally defective merely because it violates a
statute or is based on a misinterpretation of a statute. In re Pers. Restraint ofRichey, 162
Wn.2d 865, 872, 175 P.3d 585 (2008); In re Pers. Restraint of Vehlewald, 92 Wn. App.
197, 201-02, 963 P.2d 903 (1998). Consequently, this court is barred from considering
whether the conditions are crime related.
Christopher Ridley next contends that conditions 1, 3, 4, 5, and 6 are invalid on
the face of the judgment and sentence because they are unconstitutionally vague or
violate other constitutional rights. A condition of community custody is
unconstitutionally vague if ordinary people cannot understand what conduct is
proscribed. State v. Bahl, 164 Wn.2d 739, 754, 193 P.3d 678 (2008).
Conditions 1, 3, and 4 prohibit Christopher Ridley from contact with the victim or
the victim's family, from holding a position of authority or trust with children, and from
contact with a nonbiological child except in the presence of an approved responsible
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adult. Persons of ordinary intelligence can understand what these conditions proscribe.
Consequently, they are not unconstitutionally vague. Furthermore, they are not
constitutionally overbroad, because a convicted defendant's freedom of association may
be restricted when reasonably necessary to accomplish the state's interest in protecting
the public. See Riles, 135 Wn.2d at 346-47. These conditions are not invalid for the
purposes of RCW 10.73.090(1).
Condition 5, however, prohibits the purchase, possession, or viewing of
pornographic material. In Bahl, 164 Wn.2d at 758, the Washington Supreme Court held
that a restriction on accessing or possessing pornographic material is unconstitutionally
vague. Thus, condition 5 is a facially invalid defect in Christopher Ridley's judgment
and sentence because the trial court imposed a sentence not authorized by law. Snively,
180 Wn.2d at 32.
The requirement in condition 6 that Christopher Ridley submit to plethysmograph
examinations upon the request of the community corrections officer violates his
constitutional right to be free from bodily intrusions. State v. Land, 172 Wn. App. 593,
605, 295 P.3d 782 (2013). Plethysmograph testing does not serve a monitoring purpose;
rather, it is a gauge for determining immediate sexual arousal level, used as part of a
treatment program for sexual offenders. Riles, 135 Wn.2d at 345. This "treatment
device" may be imposed as part of a crime-related treatment or counseling, but is not
properly ordered by a community corrections officer to monitor compliance with
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ordinary community custody conditions. Id. Thus, condition 6 is also a facially invalid
defect in the judgment and sentence.
Both condition 5 and condition 6 constitute facially invalid conditions of
Christopher Ridley's judgment and sentence under RCW 10.73.090(1). These conditions
of community custody must be corrected on remand to the superior court.
OFFENDER SCORE
As he did in his first personal restraint petition, Christopher Ridley contends that
his prior class B and class C juvenile adjudications should have washed out. He contends
this claim is reviewable under RCW 10.73.100(5) because the offender score exceeded
the sentencing court's jurisdiction. But a mistake in calculating an offender score does
not deprive a court of jurisdiction. In re Pers. Restraint ofBanks, 149 Wn. App. 513,
517, 204 P .3d 260 (2009) (citing Vehlewald, 92 Wn. App. at 200-01 ). Furthermore, this
issue was decided on the merits in the first petition and Mr. Ridley provides no good
cause for addressing it again. RCW 10.73.140. See Ridley, no. 32445-1-III at 2-3.
CALCULATION OF LEGAL FINANICIAL OBLIGATIONS
Christopher Ridley contends his judgment and sentence is invalid on its face
because the court incorrectly calculated his legal financial obligations. The court
assigned costs of $500 for the crime penalty assessment, $200 for the filing fee, $600 for
the court-appointed attorney, and $100 for the DNA (deoxyribonucleic acid) collection
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fee, for a total obligation of $1,500. The sum of these costs, however, is actually $1,400.
Accordingly, the amount must be corrected on remand to the superior court.
CONCLUSION
We remand Christopher Ridley's judgment and sentence to the Yakima County
Superior Court for the striking of the community custody conditions regarding
pornography and plethysmograph testing and for correction of the error in computing the
amount of the legal financial obligations. Ridley's request for counsel is referred to the
superior court. RAP 16.12; RAP 16.15(g). The remaining portion of his petition is
dismissed as untimely. RCW 10.73.090(1).
i
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
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Fearing,~
WE CONCUR:
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Siddoway, C.J.
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