FILED
AUGUST 4, 2020
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 the Matter of the Personal Restraint of ) No. 36753-3-III
)
KYLE ROBERT SICKELS. ) OPINION PUBLISHED
) IN PART
)
SIDDOWAY, J. — Kyle Sickels seeks relief from personal restraint in the form of
an indeterminate sentence of 58.5 months to life and lifetime community custody for his
conviction of second degree attempted rape of a child. He challenges community custody
conditions and the trial court’s refusal to consider imposing a special sex offender
sentencing alternative (SSOSA).
We grant limited relief by directing the superior court to strike or modify five
community custody conditions in the first, published portion of the opinion. The
personal restraint petition (PRP) is otherwise dismissed.
FACTS AND PROCEDURAL BACKGROUND
Kyle Sickels was arrested as part of a sting operation in July 2018, after he
responded to a Craigslist advertisement and arranged and appeared for what he expected
to be a sexual encounter with a 13-year-old girl and her friend. He pleaded guilty to
No. 36753-3-III
State v. Sickels
second degree attempted rape of a child within a matter of weeks and was sentenced the
following month.
A presentence investigation report was prepared and recounted Mr. Sickels’s
admission that in “the month prior to being charged with this crime he began
masturbating twice a day and watching more pornography. On average, he stated he
watches pornography about 3-4 times a week.” PRP, Ex. 4, at 6. Mr. Sickels believed
his viewing of pornography was unrelated to his offense.
The author of the presentence investigation report identified as sentencing options
either a standard range sentence or a special sex offender sentencing alternative
(SSOSA). He concluded that a SSOSA was not appropriate because Mr. Sickels had not
had the required sex offender evaluation, had not been found amenable to treatment, and
had not taken full responsibility for an offense that Mr. Sickels, while repentant, viewed
as resulting from a “high level of entrapment.” PRP, Ex. 4, at 8.
At sentencing, the State recommended the low end of the standard range as the
minimum confinement term. It recommended that the court impose most of the
conditions of community custody included within a January 2016 version of a form
“Appendix H,” although it stated that the prohibition on consuming alcohol was
inappropriate since “[t]here [was] no indication in this case that alcohol was a precursor
or in any way contributed to the offense.” PRP, Ex. 2, at 4. The State also recommended
omitting the condition that Mr. Sickels “‘have no direct or indirect contact with the
2
No. 36753-3-III
State v. Sickels
victims of this offense,’” because “[t]he victims would be the State of Washington or the
under-cover detectives.” PRP, Ex. 2, at 4.
The sentencing court noted the suggestion in the presentence report that SSOSA
was an option and disagreed, saying, “I’m not exactly sure how DOC[1] is missing the
problem that the person has to have an established relation with the victim other than just
the offense.” PRP, Ex. 2, at 8. It observed that it “I don’t know how a case like this
would ever get over that, unless they changed the law.” Id.
Mr. Sickels did not file a direct appeal but timely filed this petition.
ANALYSIS
In his pro se PRP, Mr. Sickels challenges seven of his community custody
conditions, asks us to strike all of his nonmandatory conditions because they were not
disclosed until after he had pleaded guilty, and contends that the trial court’s rejection of
a SSOSA was in error or was based on a statutory eligibility condition that violates his
right to equal protection.
I. CHALLENGES TO COMMUNITY CUSTODY CONDITIONS
Mr. Sickels challenges seven community custody conditions. The State concedes
his right to relief in the case of conditions 10, 14, 21 and 22, the first two of which we
can address summarily. The State agrees that since the sentencing court explicitly
declined to prohibit Mr. Sickels from consuming alcohol, condition 10 need not require
1
The Department of Corrections.
3
No. 36753-3-III
State v. Sickels
him to submit to breathanalysis. It also agrees that condition 14, which prohibits
presently-childless Mr. Sickels from having contact with minors, should contain an
exception for any children he might father in the future.2 Cf. United States v. Loy, 237
F.3d 251, 270 (3d Cir. 2001) (construing a similar condition imposed on a then-childless
defendant as applying only to other people's children). We accept the State’s concessions
on those conditions and direct the court to make those modifications.
We decline to consider arguments Mr. Sickels raises for the first time in his reply
brief, including those to which he contends the State “open[ed] the door.” Reply to
State’s Resp. to PRP (Pet’r’s Reply Br.) at 3; e.g., Cowiche Canyon Conservancy v.
Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (“An issue raised and argued for the
first time in a reply brief is too late to warrant consideration.”).
We address his remaining challenges by category.
A. Statutory challenge: crime-relatedness
When a court sentences a person to a term of community custody, RCW
9.94A.703 requires that it impose conditions of community custody. In addition to its
identification of statutory conditions that are mandatory or waivable by the court, the
2
Mr. Sickels makes other conclusory challenges to condition 14, but his argument
that it should contain an exception for biological children is the only challenge that is
sufficiently argued to warrant consideration. RAP 16.10(d) incorporates RAP 10.3(6),
which requires a party’s opening brief to contain citations to legal authority. We do not
consider conclusory arguments that are unsupported by citation to authority. Brownfield
v. City of Yakima, 178 Wn. App. 850, 876, 316 P.3d 520 (2013).
4
No. 36753-3-III
State v. Sickels
statute gives trial courts discretion to order additional conditions, including compliance
with any “crime-related prohibitions.” RCW 9.94A.703(3)(f). A “‘[c]rime-related
prohibition’ . . . prohibit[s] conduct that directly relates to the circumstances of the crime
for which the offender has been convicted.” RCW 9.94A.030(10). “‘Directly related’
includes conditions that are ‘reasonably related’ to the crime.” State v. Irwin, 191 Wn.
App. 644, 656, 364 P.3d 830 (2015) (quoting State v. Kinzle, 181 Wn. App. 774, 785, 326
P.3d 870 (2014)). A causal relationship is not required. State v. Letourneau, 100 Wn.
App. 424, 431-32, 997 P.2d 436 (2000). We review crime-related prohibitions for abuse
of discretion. In re Pers. Restraint of Rainey, 168 Wn.2d 367, 374-75, 229 P.3d 686
(2010).
Mr. Sickels may challenge the crime-relatedness of the conditions for the first time
in a timely personal restraint petition. In re Pers. Restraint of Cook, 114 Wn.2d 802, 812,
792 P.2d 506 (1990). To receive collateral review on this nonconstitutional ground,
however, he must establish that the claimed error constitutes a fundamental defect that
inherently results in a complete miscarriage of justice. Id. And to obtain relief, he must
present at least a prima facie showing of the facts underlying the claim of unlawful
restraint and the evidence available to support the factual allegations. In re Pers.
Restraint of Yates, 177 Wn.2d 1, 18, 296 P.3d 872 (2013). Bald assertions and
conclusory allegations are not enough. Id.
5
No. 36753-3-III
State v. Sickels
Mr. Sickels challenges conditions 5 and 9 as not being crime-related. They
provide that Mr. Sickels shall:
5. Inform the supervising CCO[3] and sexual deviancy treatment
provider of any dating relationship. Disclose sex offender status
prior to any sexual contact. Sexual contact in a relationship is
prohibited until the treatment provider approves of such.
....
9. Do not possess, use, access or view any sexually explicit material as
defined by RCW 9.68.130 or erotic materials as defined by RCW
9.68.050 or any material depicting any person engaged in sexually
explicit conduct as defined by RCW 9.68A.011(4) unless given prior
approval by your sexual deviancy provider.
PRP, Ex. 1, at 1.
The first two sentences of condition 5 do not prohibit conduct. Those commands
would not have been imposed under RCW 9.94A.703(3)(f), so “crime-relatedness” is not
the standard. They are affirmative conduct requirements governed by RCW
9.94A.703(3)(d), which provides for a related but arguably broader standard: they must
be “reasonably related to the circumstances of the offense, the offender’s risk of
reoffending, or the safety of the community.” The two commands are reasonably related
to the safety of the community. They protect individuals who Mr. Sickels dates or with
whom he embarks on a sexual relationship by providing them with knowledge of the
potential risk he presents to minors. They make it possible for Mr. Sickels’s CCO and
3
Community corrections officer.
6
No. 36753-3-III
State v. Sickels
treatment provider to take whatever additional steps they might deem appropriate to
protect anyone embarking on a dating or sexual relationship with Mr. Sickels.
Condition 9 and the third command of condition 5 are prohibitions and must be
crime-related.
Condition 5’s requirement for treatment provider approval for sexual contact is a
common condition for sex offenders, and it, or a substantially similar condition, has been
challenged a number of times. Two published decisions addressing the condition have
found it to be crime-related. State v. Autrey, 136 Wn. App. 460, 468, 150 P.3d 580
(2006), upheld a condition that required therapist approval for sexual contact, explaining
that “the offender’s freedom of choosing even adult sexual partners is reasonably related
to their crimes because potential romantic partners may be responsible for the safety of
live-in or visiting minors.” State v. Lee, 12 Wn. App. 2d 378, 403, 460 P.3d 701 (2020),
reasoned the condition was crime-related where Lee was convicted of raping and
assaulting a person in the context of a romantic dating relationship.
In four unpublished decisions, this court has accepted a State concession that the
condition was not crime-related.4 In three unpublished decisions, this court has held that
4
State v. Gray, No. 77860-9-I, slip op. at 8 (Wash. Ct. App. Apr. 29, 2019)
(unpublished), https://www.courts.wa.gov/opinions/pdf/778609.pdf; State v. Stark, No.
76676-7-I, slip op. at 4 (Wash. Ct. App. Oct. 15, 2018) (unpublished), https://www.courts
.wa.gov/opinions/pdf//766767.pdf; State v. Martinez, No. 77776-9-I, slip op. at 11-12
(Wash. Ct. App. July 1, 2019) (unpublished), https://www.courts.wa.gov/opinions
7
No. 36753-3-III
State v. Sickels
the condition was not crime-related.5 In four unpublished decisions, this court has held
that it was crime-related.6
We are persuaded that the condition is crime-related in this case by State v. Sadler,
an unpublished Division One decision in which the panel reasoned persuasively that
when a companion condition requires the offender to obtain a sexual deviancy evaluation
and comply with treatment recommendations, a requirement for treatment provider
approval of sexual contact is crime-related. No. 73525-0-I, slip op. at 14-15 (Wash. Ct.
App. Mar. 27, 2017) (unpublished), https://www.courts.wa.gov/opinions/pdf/735250.pdf.
/pdf/777769.pdf; and State v. Greer, No. 78291-6-I, slip op. at 16 (Wash. Ct. App. Nov.
18, 2019) (unpublished), https://www.courts.wa.gov/opinions/pdf/782916.pdf.
5
In re Pers. Restraint of Tillman, No. 51181-9-II, slip op. at 2 (Wash. Ct. App.
June 5, 2018) (unpublished) (condition not crime related and overbroad), https://
www.courts.wa.gov/opinions/pdf/D2%2051181-9-II%20Unpublished%20Opinion.pdf;
In re Pers. Restraint of Peppin, No. 34866-1-III (unpublished) (Wash. Ct. App. July 31,
2018), order granting in part mot. for recons. at 2 (Sept. 6, 2018), http://www.courts.wa
.gov/opinions/pdf /348661_order; State v. Mecham, No. 79008-1-I, slip op. at 15 (Wash.
Ct. App. Mar. 2, 2020) (unpublished) (court could not conclude from record that the
condition was crime-related), https://www.courts.wa.gov/opinions/pdf/790081.pdf.
6
State v. Staples, No. 78460-9-I, slip op. at 10 (Wash. Ct. App. Dec. 30, 2019)
(unpublished) (crime-related where defendant’s propensity for sex crimes was not limited
to strangers), https://www.courts.wa.gov/opinions/pdf/784609.pdf; State v. Sadler, No.
73525-0-I, slip op. at 14-15 (Wash. Ct. App. Mar. 27, 2017) (unpublished) (crime-related
where defendant would also be submitting to a sexual deviancy evaluation), https://
www.courts.wa.gov/opinions/pdf/735250.pdf; State v. Rene-Gomez, No. 77561-8-I, slip
op. at 27 (Wash. Ct. App. Oct. 7, 2019) (unpublished), https://www.courts.wa.gov
/opinions/pdf/775618.pdf; State v. Airhart-Bryon, No. 78805-1-I, slip op. at 25-26 (Wash.
Ct. App. Apr. 13, 2020) (unpublished), https://www.courts.wa.gov/opinions/pdf
/788051.pdf.
8
No. 36753-3-III
State v. Sickels
The evaluation and treatment condition “ensure[d] that Sadler [would] have a treatment
provider who could give approval for sexual contact.” Slip op. at 15.
Similar to Sadler, Mr. Sickels’s judgment and sentence requires him to obtain a
sexual deviancy evaluation within 30 days of his release from confinement and to follow
any recommended treatment. PRP, Ex. 1, at 1 (Special Condition 4). Reasonably read,
condition 5 does not require Mr. Sickels to get contact-by-contact approval for sexual
contact for life. Reasonably read, it requires that he not have sexual contact “until” his
treatment provider is satisfied that sexual contact does not put others at risk. It is not a
total ban on protected activity and can be challenged as applied in the event the treatment
provider’s approval is exercised unreasonably. When, as here, the condition is imposed
on a sex offender along with a requirement for early evaluation it is crime-related.
As for condition 9, Mr. Sickels argues that “there’s no evidence that erotic or
sexually explicit materials played any part in the attempted crime.” PRP at 10-11; Pet’r’s
Reply Br. at 4. To the contrary, the presentence investigation report provides evidence of
Mr. Sickels’s increasing use of pornography in the month before the crime, even if Mr.
Sickels did not believe it contributed to his commission of the crime.
While Mr. Sickels focuses on the fact he did not contact the fictional 13 year old
after viewing sexually explicit materials, our Supreme Court takes a broader view of the
crime-relatedness of prohibiting sex offenders from having access to such materials. In
State v. Hai Minh Nguyen, 191 Wn.2d 671, 686, 425 P.3d 847 (2018), in which a
9
No. 36753-3-III
State v. Sickels
defendant convicted of child rape and child molestation challenged the same community
custody condition imposed on Mr. Sickels as condition 9,7 the Supreme Court found it to
be crime-related, explaining:
Nguyen committed sex crimes and, in doing so, established his inability to
control his sexual urges. It is both logical and reasonable to conclude that a
convicted person who cannot suppress sexual urges should be prohibited
from accessing “sexually explicit materials,” the only purpose of which is
to invoke sexual stimulation.
The condition is crime-related.
B. Vagueness challenges
Under the Fourteenth Amendment to the United States Constitution and article I,
section 3 of the Washington State Constitution, the due process vagueness doctrine
“requires that citizens have fair warning of proscribed conduct.” State v. Bahl, 164
Wn.2d 739, 752, 193 P.3d 678 (2008). A community custody condition must afford the
same fair warning as a law, although a community custody condition does not enjoy the
same presumption of constitutionality. State v. Sanchez Valencia, 169 Wn.2d 782, 793,
239 P.3d 1059 (2010) (Sanchez Valencia II). “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.”
7
In Nguyen’s case, it was special condition 11, reproduced at 191 Wn.2d at 676.
10
No. 36753-3-III
State v. Sickels
State v. Padilla, 190 Wn.2d 672, 677, 416 P.3d 712 (2018). Such 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.” Sanchez
Valencia II, 169 Wn.2d at 793 (internal quotation marks omitted) (quoting State v.
Sanchez Valencia, 148 Wn. App. 302, 321, 198 P.3d 1065 (2009) (Sanchez Vallencia I)).
Mr. Sickels contends that conditions 9 and 16 are unconstitutionally vague.
He contends that condition 9 (set forth above) is unconstitutionally vague in its use
of the terms “sexually explicit material,” “erotic materials,” and “material depicting any
person engaged in sexually explicit conduct.”
The Supreme Court held in Nguyen that “sexually explicit material” is not an
unconstitutionally vague term, a conclusion it held was bolstered by the incorporation of
the definition appearing at RCW 9.68.130. 191 Wn.2d at 680. The statutory definition
explicitly excludes “works of art or of anthropological significance,” which defeats Mr.
Sickels’s argument that the condition chills his First Amendment rights. RCW
9.68.130(2).
As for the term “erotic,” our Supreme Court held in Bahl that while undefined by
the community custody condition in that case, “erotic” is not vague. 164 Wn.2d at 758-
59. It relied on a dictionary definition of “erotic” in finding the condition sufficiently
11
No. 36753-3-III
State v. Sickels
clear.8 Id. at 759. The clarity of the meaning of “erotic” in condition 9 is bolstered by
the condition’s incorporation of the statutory definition at RCW 9.68.050, a definition
that our Supreme Court upheld as constitutional in Soundgarden v. Eikenberry, 123
Wn.2d 750, 759, 771, 871 P.2d 1050 (1994) (striking down RCW 9.68.050 for due
process concerns not relevant to this appeal).
The last clause, prohibiting Mr. Sickels from possessing, using, accessing, or
viewing “any material depicting any person engaged in sexually explicit conduct as
defined by RCW 9.68A.011(4),” is problematic. The definition on which it relies appears
in the chapter of Title 9 RCW that deals with the sexual exploitation of children. The
defined term “sexually explicit conduct” identifies conduct by a minor which, if
photographed or used in a live performance, subjects certain participants to prosecution
for sexual exploitation of a minor. RCW 9.68A.040. It is a crime under the chapter for
persons to deal in, send, possess, or view depictions of such conduct by a minor. RCW
9.68A.050, .060-.075. Given the purpose of the chapter, “sexually explicit conduct” is
broad, and includes conduct such as simulated sexual intercourse that—engaged in by
adults—appears in mainstream media.
8
“‘of, devoted to, or tending to arouse sexual love or desire: as a :
treating of or depicting sexual love . . . : AMATORY . . . b : tending to
excite sexual pleasure or desire . . . c : directed toward sexual gratification
. . . d : strongly affected by sexual desire.’” Bahl, 164 Wn.2d at 759
(alterations in original) (quoting WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY 772 (2002)).
12
No. 36753-3-III
State v. Sickels
In Padilla, our Supreme Court found a prohibition on viewing “‘images of sexual
intercourse, simulated or real, masturbation, or the display of intimate body parts’”
vague, in part because mainstream films and television shows depict simulated sexual
intercourse. 190 Wn.2d at 681 (quoting the record). Padilla is controlling authority that
the definition incorporated from RCW 9.68A.011(4) is unconstitutionally vague. We
direct the sentencing court to strike or modify it.
Mr. Sickels’s final vagueness challenge to condition 9 is that it authorizes his
treatment provider to make exceptions to its restrictions on the possession, use, or
viewing of materials, which he argues permits arbitrary enforcement in violation of due
process. He cites no legal authority for the proposition that if a blanket prohibition on
conduct would be constitutional, the authority of a treatment provider to make an
exception violates due process. Where no authorities are cited in support of a
proposition, we are not required to search out authorities, but may assume that the party,
after diligent search, has found none. DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d
122, 126, 372 P.2d 193 (1962). The argument does not warrant consideration.
Mr. Sickels’s second vagueness challenge is to condition 16, which provides:
Stay out of areas where children’s activities regularly occur or are
occurring. This includes parks used for youth activities, schools, daycare
facilities, playgrounds, wading pools, swimming pools being used for youth
activities, play areas (indoor or outdoor), sports fields being used for youth
sports, arcades, and any specific location identified in advance by DOC or
CCO.
13
No. 36753-3-III
State v. Sickels
PRP, Ex. 1, at 2. He relies for his challenge on State v. Wallmuller, 4 Wn. App. 2d 698,
423 P.3d 282 (2018), but that decision was reversed by the Washington Supreme Court,
which held that a similar condition was not unconstitutionally vague. State v.
Wallmuller, 194 Wn.2d 234, 236-37, 449 P.3d 619 (2019) (Wallmuller II).
Mr. Sickels also argues that the authority granted to DOC or his CCO to identify
proscribed locations in advance invites arbitrary enforcement, but he overlooks the fact
that the condition’s only command is its first sentence—“Stay out of areas where
children’s activities regularly occur or are occurring”—and no authority is granted to
DOC or his CCO to vary that command. The condition simply places a burden on DOC
or the CCO to affirmatively identify locations they deem to be prohibited by the
command. This spares Mr. Sickels the burden and risk of self-identifying locations he
might fear are prohibited. In this respect, it addresses a concern expressed by the dissent
in Wallmuller II that an offender should be able to consult a list to know where he can or
cannot go. See Wallmuller II, 194 Wn.2d at 248-50 (Wiggins, J., dissenting).
C. Overbreadth
Mr. Sickels’s remaining constitutional challenges are to conditions that, while not
vague, are overbroad. “A clear and precise enactment may nevertheless be ‘overbroad’ if
in its reach it prohibits constitutionally protected conduct.” Grayned v. City of Rockford,
408 U.S. 104, 114, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972) (citing Zwickler v. Koota, 389
U.S. 241, 249-50, 88 S. Ct. 391, 19 L. Ed. 2d 444 (1967) and cases cited). “Overbreadth
14
No. 36753-3-III
State v. Sickels
analysis measures how enactments that prohibit conduct fit with the universe of
constitutionally protected conduct.” City of Tacoma v. Luvene, 118 Wn.2d 826, 839, 827
P.2d 1374 (1992) (citing Richard Fallon, Jr., Making Sense of Overbreadth, 100 YALE
L.J. 853 (1990-1991). Overbreadth goes to the question of whether State action is
couched in terms so broad that it may not only prohibit unprotected behavior but may
also prohibit constitutionally protected activity as well. Blondheim v. State, 84 Wn.2d
874, 878, 529 P.2d 1096 (1975) (citing Grayned, 408 U.S. at 114).
An offender can challenge a community custody condition as too broadly
impinging on any constitutional right as long as the challenge is ripe. Parties sometimes
get that wrong by relying on case law dealing with standing to assert the overbreadth of a
statute—case law that gives special treatment to challenges based on the First
Amendment. Courts generally decide the constitutionality of a statute as applied to
specific people in specific situations and disfavor facial challenges; an exception to this
high bar has been carved out for overbreadth challenges under the First Amendment.
June Med. Servs. LLC v. Russo, ___ U.S. ___, 140 S. Ct. 2103, 2175, 207 L. Ed.
2d 566 (2020) (Gorsuch, J., dissenting).
This court wrongly refused to consider overbreadth challenges to community
custody conditions by misapplying standing jurisprudence in State v. Bahl, noted at 137
Wn. App. 1021, 2007 WL 575436, at *1-2, rev’d in part, 164 Wn.2d 739, 190 P.2d 678
(2008), and Sanchez Valencia I, 148 Wn. App. at 320, rev’d, 169 Wn.2d 782, 239 P.3d
15
No. 36753-3-III
State v. Sickels
1059 (2010). In Bahl, the error was in viewing “overbreadth doctrine” as related only to
standing to challenge a statute. In Sanchez Valencia I, the error was in assuming that
only an “as applied” challenge, not a “facial” challenge, could be raised to a condition
that was based on a constitutional right other than one guaranteed by the First
Amendment.
In reversing this court’s decision in Bahl, the Washington Supreme Court
explained:
[T]he parties’ arguments respecting Bahl’s ability to bring a facial
vagueness claim are misplaced. In contrast to a constitutional challenge to
a statute, the challenge is to sentencing conditions that apply uniquely to an
individual defendant, who clearly has standing to challenge them, as terms
of his or her sentence, on the basis of claimed illegality.
164 Wn.2d at 750-51. The Supreme Court did require that a pre-enforcement claim be
ripe for review, which it will be “‘if the issues raised are primarily legal, do not require
further factual development, and the challenged action is final.’” Id. at 751, (quoting
First United Methodist Church v. Hr’g Exam’r, 129 Wn.2d 238, 255-56, 916 P.2d 374
(1996)). “The court must also consider ‘the hardship to the parties of withholding court
consideration.’” Id. (quoting First United, 129 Wn.2d at 255).
In reversing this court’s decision in Sanchez Valencia, the Supreme Court stated
that in determining whether an offender is asserting a ripe constitutional challenge to a
community custody condition, “[t]he fact that no party [argues] a First Amendment
violation . . . is . . . of no relevance.” Sanchez Valencia II, 169 Wn.2d at 788.
16
No. 36753-3-III
State v. Sickels
Of course, the mere fact that a custody condition impinges upon a constitutional
right does not invalidate it, because “[a]n offender’s usual constitutional rights during
community placement are subject to SRA-authorized[9] infringements.” State v. Hearn,
131 Wn. App. 601, 607, 128 P.3d 139 (2006) (citing State v. Riles, 135 Wn.2d 326, 347,
957 P.2d 655 (1998)). At issue in a ripe constitutional challenge to a custody condition is
the point at which an SRA-authorized infringement is constitutionally overbroad.
Our Supreme Court has repeatedly looked to the Ninth Circuit Court of Appeals’
en banc decision in United States v. Consuelo-Gonzalez, 521 F.2d 259 (9th Cir. 1975) for
guidance on that score. Consuelo-Gonzalez “set out a general test for evaluating
probation conditions imposed pursuant to the Federal Probation Act which may impinge
upon constitutional freedoms,” holding that the conditions must be “reasonably related”
to the purposes of the Act. United States v. Pierce, 561 F.2d 735, 739 (9th Cir. 1977)
(citing Act of Mar. 4, 1925, ch. 521, 43 Stat. 1259). To determine whether a reasonable
relationship exists, it considered and balanced “(1) the purposes sought to be served by
probation; (2) the extent to which constitutional rights enjoyed by law-abiding citizens
should be accorded to probationers; and (3) the legitimate needs of law enforcement.”
Id. (citing Consuelo-Gonzalez, 521 F.2d at 262).
The Washington Supreme Court cited Consuelo-Gonzalez in holding, in State v.
Riley, 121 Wn.2d 22, 37, 846 P.2d 1365 (1993), that “[l]imitations upon fundamental
9
Sentencing Reform Act of 1981, chapter 9.94A RCW.
17
No. 36753-3-III
State v. Sickels
rights are permissible, provided they are imposed sensitively.” See, accord State v.
Warren, 165 Wn.2d 17, 32, 195 P.3d 940 (2008); State v. K.H.-H., 185 Wn.2d 745, 751-
52, 374 P.3d 1141 (2016). And see Riley, 121 Wn.2d at 37-38 (quoting Malone v. United
States, 502 F.2d 554, 556 (9th Cir.1974) as holding that “[the convict’s] ‘freedom of
association may be restricted if reasonably necessary to accomplish the essential needs of
the state and public order’” (alteration in original)).
Consuelo-Gonzalez found that the purposes to be served by probation under the
federal Probation Act were the rehabilitation of the convicted person and the protection
of the public. 521 F.2d at 264. It held that “[c]onditions that unquestionably restrict
otherwise inviolable constitutional rights may properly be subject to special scrutiny to
determine whether the limitation does in fact serve the dual objectives of rehabilitation
and public safety.” Id. at 265. It emphasized that “this is not to say that there is any
presumption, however weak, that such limitations are impermissible.”
Rather, it is necessary to recognize that when fundamental rights are
curbed it must be done sensitively and with a keen appreciation that the
infringement must serve the broad purposes of the Probation Act.
Id.
The reasonableness of some custody conditions that curb fundamental rights can
be analyzed somewhat categorically, avoiding the need for a defendant-specific analysis
in every case. See, e.g., Consuelo-Gonzalez, 521 F.2d at 263 (identifying how broadly
probation searches can be authorized in light of the Fourth Amendment); K.H.-H., 185
18
No. 36753-3-III
State v. Sickels
Wn.2d at 754-56 (requiring an unrepentant juvenile defendant to write a letter of apology
is consistent with the Juvenile Justice Act of 1977). Others, such as no-contact orders
that extend to persons other than victims, require an analysis that is “delicate and fact-
specific.” Rainey, 168 Wn.2d at 377 (condition prohibiting contact with family
members).
RCW 9.94A.010 describes the purposes of the SRA. Most relevant to community
custody are the purposes of protecting the public, offering the offender an opportunity to
improve himself or herself, making frugal use of government resources, and reducing the
risk of reoffending. RCW 9.94A.010(4)-(7).
Mr. Sickels challenges conditions 21 and 22 as overbroad. They provide:
21. No internet access or use, including email, without the prior
approval of the supervising CCO.
22. No use of a computer, phone, or computer-related device with access
to the Internet or on-line computer service except as necessary for
employment purposes (including job searches). The CCO is
permitted to make random searches of any computer, phone or
computer-related device to which the defendant has access to
monitor compliance with this condition.
PRP, Ex. 1, at 2. He argues they are not sensitively imposed or reasonably necessary to
accomplish the essential needs of the State and public order.
The State concedes overbreadth, and suggests substituting a single condition that
states, “No internet use of websites including email, to contact minors, to gather
information about minors, or access personal webpages of minors.” Resp. to PRP at 13.
19
No. 36753-3-III
State v. Sickels
Mr. Sickels argues that the State’s suggested language is vague and “appears to be a
clever attempt to circumvent the Constitution and a United States Supreme Court ruling
in Packingham v. North Carolina,” __ U.S. __, 137 S. Ct. 1730, 1735, 198 L. Ed. 2d 273
(2017). Pet’r’s Reply Br. at 13.
In Packingham, the Supreme Court struck down a North Carolina law that made it
a felony for any registered sex offender “to access a commercial social networking Web
site where the sex offender knows that the site permits minor children to become
members or to create or maintain personal Web pages.” 137 S. Ct. at 1731. The Court
observed that today, the Internet, and “social media in particular,” are “the most
important places . . . for the exchange of views.” Id. at 1735. It concluded that the
statute was overbroad because “to foreclose access to social media altogether is to
prevent the user from engaging in the legitimate exercise of First Amendment rights. It is
unsettling to suggest that only a limited set of websites can be used even by persons who
have completed their sentences. Even convicted criminals—and in some instances
especially convicted criminals—might receive legitimate benefits from these means for
access to the world of ideas, in particular if they seek to reform and to pursue lawful and
rewarding lives.” Id. at 1737.
Mr. Sickels overstates the significance of Packingham to our review of conditions
21 and 22. To begin with, the United States Supreme Court observed in Packingham that
“it can be assumed that the First Amendment permits a State to enact specific, narrowly
20
No. 36753-3-III
State v. Sickels
tailored laws that prohibit a sex offender from engaging in conduct that often presages a
sexual crime, like contacting a minor or using a website to gather information about a
minor.” Id.
More importantly, Packingham involved the distinguishable context of a criminal
statute applicable to registered sex offenders who had completed their sentences. The
Supreme Court in that case was not dealing with a challenge to probation conditions.
One of the key concerns of the majority was that North Carolina’s law applied to
“persons who have completed their sentences” rather than persons on probation. Id.
When it comes to the constitutionality of probation conditions, the United States Supreme
Court has been noticeably absent from the discussion for decades.10 For that reason,
reliance on Packingham is misplaced in the community custody context. Notably, federal
circuit courts have rejected arguments that a prohibition on access to the internet in a
supervisory release condition is plain error after Packingham. E.g., United States v.
Carson, 924 F.3d 467, 473 (8th Cir. 2019), cert. denied, 140 S. Ct. 405, 205 L. Ed. 2d
10
If presented with a probation condition case, the Supreme Court would likely
begin with standards applied in Pell v. Procunier, 417 U.S. 817, 822, 94 S. Ct. 2800, 41
L. Ed. 2d 495 (1974) (“[A] prison inmate retains those First Amendment rights that are
not inconsistent with his status as a prisoner or with the legitimate penological objectives
of the corrections system.”) and Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed.
2d 64 (1987) (rejecting prisoners’ argument that prison regulations infringing on first
amendment rights should be subject to strict scrutiny, asking instead whether the
regulation that burdened the prisoners’ fundamental rights was “reasonably related” to
“legitimate penological interests”).
21
No. 36753-3-III
State v. Sickels
239 (2019); United States v. Halverson, 897 F.3d 645, 657-58 (5th Cir. 2018); United
States v. Browder, 866 F.3d 504, 511 n.26 (2d Cir. 2017); United States v. Rock, 863 F.3d
827, 831 (D.C. Cir. 2017). A Third Circuit decision observed that “internet bans and
restrictions have a role in protecting the public from sexual predators,” although on the
record, the Third Circuit panel saw no justification for stopping the offender from
accessing websites where he will probably never encounter a child. United States v.
Holena, 906 F.3d 288, 292-93 (3d Cir. 2018). It suggested it would be enough for the
court to give the probation office some categories of websites that could not be visited, or
a guiding principle. Id.
Even a Second Circuit opinion that viewed Packingham as establishing that
citizens have a First Amendment right to access the internet observed that a restriction
under which the offender’s internet use was monitored by the federal probation office
“remained to all outward appearances a viable option.” United States v. Eaglin, 913 F.3d
88, 98 (2d Cir. 2019).
Balancing the SRA’s purposes against what would otherwise be Sickels’s inviolate
right to computer and internet access and use, we hold that condition 22’s limitation of
internet use to employment purposes is overly broad and condition 21’s provision for
“[n]o internet access or use, including email” is even more objectionable. Delegating
authority to Mr. Sickels’s supervising CCO to approve internet access does not solve the
problem; a sentencing court may not wholesaledly abdicate its judicial responsibility for
22
No. 36753-3-III
State v. Sickels
setting the conditions of release. State v. Sansone, 127 Wn. App. 630, 642, 111 P.3d
1251 (2005) (citing Loy, 237 F.3d at 266). Condition 22’s provision for random searches
to monitor compliance is reasonable as long as the restrictions on internet and computer
use are revised.
The State’s suggested language would work; it is not vague or overbroad. An
even more restrictive condition could also pass constitutional muster.11 We will direct
the superior court to strike conditions 21 and 22 and consider whether to impose a more
narrowly-tailored condition.
We transfer the PRP to the trial court with directions to provide the following
relief:
Strike “or any material depicting any person engaged in sexually explicit conduct
as defined by RCW 9.68A.011(4)” from condition 9 of Appendix H and consider
whether to substitute language that is not unconstitutionally vague;
Strike “breathanalysis” from condition 10;
Add “with the exception of Defendant’s biological children” to condition 14; and
Strike conditions 21 and 22 and consider whether to impose the State’s proposed
condition or some other condition or conditions that more narrowly restrict
computer and internet access and use.
11
Division Two has upheld a condition prohibiting a defendant convicted of child
molestation and communication with a minor for immoral purposes from “joining or
perusing any public social websites, i.e., Facebook, MySpace, Craigslist, Backpage, etc.”
State v. Stock, No. 52179-2-II, slip op. at 3 (Wash. Ct. App. Dec. 24, 2019) (unpublished),
http://www.courts.wa.gov/opinions/pdf/D2%2052179-2-II%20Unpublished
%20Opinion.pdf. Like Mr. Sickels, the defendant had used Craigslist to engage in
sexually explicit conversations with a person he believed was 13 years old, so the
prohibition was reasonably necessary to protect children. Stock, slip op. at 3.
23
No. 36753-3-III
State v. Sickels
The PRP is otherwise dismissed.
The remainder of this opinion has no precedential value. Therefore, it will be filed
for public record in accordance with RCW 2.06.040, the rules governing unpublished
opinions.
II. MR. SICKELS WAS NOT ENTITLED TO NOTICE OF THE PARTICULAR RESTRICTIONS
THAT WOULD BE IMPOSED DURING COMMUNITY CUSTODY BEFORE ENTERING HIS
GUILTY PLEA
Mr. Sickels’s PRP asks that all of the nonmandatory community custody
conditions imposed by his judgment and sentence “be stricken[,] as they were added after
the guilty plea had been entered and accepted by the court.” PRP at 32. He asks that we
“remand back to the sentencing court for specific performance of the signed plea
agreement.” Id. (citing In re Pers. Restraint of Powell, 117 Wn.2d 175, 199, 814 P.2d
635 (1991)).
Mr. Sickels did not move to withdraw his plea in the trial court under CrR 4.2(f) as
necessary to correct a manifest injustice. The State responds as if he did, however, and as
if this is a direct appeal of the denial of such a motion. It treats the only question
presented as being whether Mr. Sickel’s plea was invalid for lack of notice. Resp. to PRP
at 9-10.
“Due process requires that a defendant’s guilty plea be knowing, voluntary, and
intelligent,” and “[a] guilty plea is not knowingly made when it is based on
misinformation of sentencing consequences.” In re Pers. Restraint of Isadore, 151
24
No. 36753-3-III
State v. Sickels
Wn.2d 294, 297-98, 88 P.3d 390 (2004) (citing Boykin v. Alabama, 395 U.S. 238, 242, 89
S. Ct. 1709, 23 L. Ed. 2d 274 (1969)).
While a defendant must be informed of all “direct consequences” of his plea, he
“need not be informed of all possible consequences.” Isadore, 151 Wn.2d at 298. A
direct consequence of sentencing is “‘a definite, immediate and largely automatic effect
on the range of the defendant’s punishment.’” In re Pers. Restraint of Ness, 70 Wn.
App. 817, 822, 855 P.2d 1191 (1993) (quoting State v. Barton, 93 Wn.2d 301, 305, 609
P.2d 1353 (1980)).
That a defendant will be subject to a mandatory period of community placement
following his prison sentence is a direct consequence of a guilty plea, and failure to so
inform a defendant renders that plea invalid. State v. Ross, 129 Wn.2d 279, 280, 916
P.2d 405 (1996). In In re Pers. Restraint of Waggy, this court held that the same was not
true of a failure to inform a defendant of the specific restrictions to be imposed,
concluding that “Ross impliedly held that a guilty plea is valid if the defendant is
informed that he will be required to serve a term of community placement but is not
informed of the specific restrictions to be associated with that placement.” 111 Wn. App.
511, 517, 45 P.3d 1103 (2002). The fact that imposing such restrictions is discretionary
means they are not “definite” or “largely automatic” and thus are not direct consequences
of the guilty plea. Ness, 70 Wn. App. at 822;
Mr. Sickels’s statement on plea of guilty states,
25
No. 36753-3-III
State v. Sickels
In addition to the period of confinement, I will be sentenced to community
custody for any period of time I am released from total confinement before
the expiration of the maximum sentence. During the period of community
custody I will be under the supervision of the Department of Corrections
and I will have restrictions and requirements placed upon me, which may
include electronic monitoring, and I may be required to participate in
rehabilitative programs.
PRP, Ex. 3, at 4. This clause conveys materially equivalent information to that found in
the plea agreement in Waggy, which was, in turn, “similar in all pertinent respects” to
guilty plea language quoted with approval in Ross. 111 Wn. App. at 516. Mr. Sickels
was not entitled to any more detailed notice before entering his guilty plea.
III. THE SENTENCING COURT DID NOT ERR IN REFUSING TO CONSIDER A SSOSA
Mr. Sickels raises two challenges to the sentencing court’s refusal to consider
imposing a SSOSA. He argues (a) that the sentencing court erred in concluding he was
not eligible and (b) if he was ineligible, it was based on a requirement that violates his
right to equal protection.
A. Mr. Sickels was ineligible because he did not have an established
relationship or connection with the victim
Statutory eligibility requirements for a SSOSA exclude certain repeat and violent
sex offenders and require, if the conviction resulted from a guilty plea, that the offender
voluntarily and affirmatively admit committing all of the elements of his or her crime.
RCW 9.94A.670(2). In addition, RCW 9.94A.670(2)(e) requires, to be eligible, that the
offender “had an established relationship with, or connection to, the victim such that the
26
No. 36753-3-III
State v. Sickels
sole connection with the victim was not the commission of the crime.” “‘Victim’ means
any person who has sustained emotional, psychological, physical, or financial injury to
person or property as a result of the crime charged. ‘Victim’ also means a parent or
guardian of a victim who is a minor child unless the parent or guardian is the perpetrator
of the offense.” RCW 9.94A.670(1)(c).
The seemingly anomalous requirement that the offender have an established
relationship or connection to the victim is explained by the history and purpose of the
sentencing alternative, which seeks to encourage otherwise reluctant victims to come
forward. In adding the requirement that the offender have an established relationship
with the victim in 2004, the legislature’s goal was to balance the need to punish those
who harm children and the reality that victims, who are often related to the offender,
might not come forward if the penalty is too harsh. State v. Pratt, 11 Wn. App. 2d 450,
460-61, 454 P.3d 875 (2019) (citing H.B. REP. on ENGROSSED SUBSTITUTE H.B. 2400,
58th Leg., Reg. Sess. (Wash. 2004)), review granted, 195 Wn.2d 1023, 464 P.3d 231
(2020). In sentencing Mr. Sickels, the sentencing court observed that this eligibility
requirement makes all who commit crimes against fictional victims in “sting” operations
ineligible for a SSOSA.
Mr. Sickels points out that the prosecutor observed at sentencing that the State is
the “victim” of an offender charged with an attempted crime against a child in a sting
operation. He argues that he, “as a lifetime resident of the State does have an ‘established
27
No. 36753-3-III
State v. Sickels
relationship’ . . . or ‘connection to’ the State ‘other than the commission of the crime.’”
PRP at 26-27. Since he satisfied the requirement, he argues it was an abuse of discretion
for the sentencing court to refuse to consider imposing a SSOSA.
“Where a defendant has requested a sentencing alternative authorized by statute, a
trial court’s failure to consider that alternative is effectively a failure to exercise
discretion and is subject to reversal.” State v. Landsiedel, 165 Wn. App. 886, 889, 269
P.3d 347 (2012), aff’d sub nom. Landsiedel v. Ransome, 765 Fed. App’x 148 (9th Cir.
2019). However, whether an offender meets the statutory requirements for SSOSA
eligibility is a question of statutory interpretation, which we review de novo. Id.
In a statutory interpretation analysis, the court’s fundamental objective is to
ascertain and carry out the legislature’s intent, and if a statute’s meaning is plain on its
face, we give effect to that plain meaning as an expression of legislative intent. Dep’t of
Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002).
When the identity of a crime victim is relevant, the law sometimes treats the
public at large as the victim. An example is determining whether multiple crimes
constitute the “same criminal conduct” under RCW 9.94A.589(1)(a), where one or more
of the crimes is an undercover operation carried out by law enforcement. E.g., State v.
Garza-Villarreal, 123 Wn.2d 42, 47, 864 P.2d 1378 (1993) (citing State v. Rodriguez, 61
Wn. App. 812, 816, 812 P.2d 868 (1991)). Here, however, the statute provides us with a
definition of “victim,” and it plainly requires a victim who is a “person.” RCW
28
No. 36753-3-III
State v. Sickels
9.94A.670(1)(c). Moreover, it requires a “person who has sustained emotional,
psychological, physical, or financial injury to person or property.” Id.
While the State could be the victim of Mr. Sickels’s crime for other purposes, it
could not be a “victim” for purposes of the eligibility requirement imposed by RCW
9.94A.670(1)(e). The sentencing court correctly concluded that Mr. Sickels was
ineligible for a SSOSA.
B. The “established relationship or connection” requirement does not violate
Mr. Sickels right to equal protection
Mr. Sickels challenges the “established relationship or connection” requirement as
violating his constitutional right to equal protection. “Under the equal protection clause
of the Washington State Constitution, article I, section 12, and the Fourteenth
Amendment to the United States Constitution, persons similarly situated with respect to
the legitimate purpose of the law must receive like treatment.” State v. Coria, 120 Wn.2d
156, 169, 839 P.2d 890 (1992). Where the law treats different classes of persons
differently, the level or scrutiny applied depends on the nature of the classification or
rights involved. State v. Hirschfelder, 170 Wn.2d 536, 550, 242 P.3d 876 (2010).
“Absent a fundamental right or suspect class, or an important right or semisuspect class, a
law will receive rational basis review.” Id.
Mr. Sickels falls within the class of persons convicted of sex offenses who do not
have an established relationship or connection with their victim. This is not a suspect or
29
No. 36753-3-III
State v. Sickels
quasi-suspect class and no fundamental right is implicated, so the appropriate standard of
review is rational basis. Id.
“Under the rational basis test, state action does not violate the equal protection
clause if there is a rational relationship between the classification and a legitimate state
interest.” State v. Osman, 157 Wn.2d 474, 486, 139 P.3d 334 (2006).
We have already addressed the history of the sentencing alternative and why the
established relationship eligibility requirement was added. In the context of sex offenses,
victim cooperation is essential to prosecuting offenders and preventing them from
victimizing other people. While an offender who does not know his or her victim may
not be any less deserving of leniency, the legislature has a rational basis for affording
leniency in cases where it will encourage reporting and denying leniency in cases where
it will not.
We transfer the PRP to the trial court with directions to provide the following
relief:
Strike “or any material depicting any person engaged in sexually explicit conduct
as defined by RCW 9.68A.011(4)” from condition 9 of Appendix H and consider
whether to substitute language that is not unconstitutionally vague;
Strike “breathanalysis” from condition 10;
Add “with the exception of Defendant’s biological children” to condition 14; and
Strike conditions 21 and 22 and consider whether to impose the State’s proposed
condition or some other condition or conditions that more narrowly restrict
computer and internet access and use.
30
No. 36753-3-III
State v. Sickels
The PRP is otherwise dismissed.12
_____________________________
Siddoway, J.
WE CONCUR:
_____________________________
Fearing, J.
_____________________________
Pennell, C.J.
12
Mr. Sickels asks that we deny an award of costs to the State if it is deemed to be
the substantially prevailing party. Under a general order of this division, waiver of an
award of appellate costs is decided by the clerk or the commissioner in accordance with
RAP Title 14.” Gen. Order of Division III, In re the Matter of Court Admin. Order re:
Appellate Costs (Wash. Ct. App. Feb. 19, 2019).
31