In re Pers. Restraint of Winton

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FILE THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
IN CLERK’S OFFICE SEPTEMBER 17, 2020
SUPREME COURT, STATE OF WASHINGTON
SEPTEMBER 17, 2020
SUSAN L. CARLSON
SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

In the Matter of the Personal Restraint of ) No. 97452-7
)
DON WESLEY WINTON, ) En Banc
)
Petitioner. )
) Filed : September 17, 2020

JOHNSON, J.—This case involves the discretion of the Indeterminate

Sentence Review Board (ISRB), under chapter 9.94A RCW and chapter 9.95

RCW, to restrict a parolee’s ability to travel while serving community custody.

The State seeks reversal of an unpublished Court of Appeals decision granting Don

Wesley Winton’s personal restraint petition (PRP) and striking a geographic

community custody condition imposed pursuant to RCW 9.95.420(2) that

restricted his travel into Clark County without prior approval. The Court of

Appeals analyzed the condition as implicating a fundamental constitutional right to

travel, applied strict scrutiny, found the condition was not narrowly tailored, and

vacated the condition. We reject the Court of Appeals’ analytical lens on the
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In re Pers. Restraint of Winton, No. 97452-7

grounds that a parolee remains under state custody and their constitutional right to

travel is curtailed and can be restricted under the statute. We reverse the Court of

Appeals and dismiss the PRP.

FACTS AND PROCEDURAL HISTORY

In 2007, Winton pleaded guilty in Clark County Superior Court to two

counts of first degree child molestation and one count of third degree child

molestation. The sentencing court imposed an indeterminate sentence of 98 months

to life on one of the counts of first degree child molestation. The sentencing court

also imposed no contact orders with respect to the two victims, one permanent and

one for five years. The victims live in Clark County.

In September 2014, the ISRB granted Winton’s conditional release. The

initial conditions of release included geographic restrictions prohibiting Winton

from traveling to Seattle, Clark County, or Clallam County without prior written

approval from his community corrections officer and the ISRB. In October 2014,

the ISRB added an additional condition prohibiting travel to Skamania County and

the portion of Oregon north of Highway 20 without prior permission. In 2016, the

ISRB added Arch Cape, Oregon to the list of prohibited locations. In May 2018,

Winton filed this personal restraint petition seeking the removal of the

geographical conditions of his community custody. In July 2018, the ISRB

removed all geographic restrictions except the condition that he not enter Clark

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In re Pers. Restraint of Winton, No. 97452-7

County without prior written approval; the victims still lived in Clark County and

Winton had requested and received permission to travel through the county in the

past. Winton asserts that he periodically travels to visit with his biological daughter

in Oregon and asserts that the Clark County restriction is burdensome because it

prohibits traveling to Oregon using Interstate 5 without first obtaining permission.1

Winton filed this challenge as a PRP in the Court of Appeals. The Court of

Appeals granted Winton’s PRP, analyzing the restriction as impacting Winton’s

constitutional right to travel, applying strict scrutiny to the ISRB’s travel condition,

and finding that it was not narrowly tailored. 2

ANALYSIS

We review questions of law in PRPs de novo. In re Pers. Restraint of Coats,

173 Wn.2d 123, 133, 267 P.3d 324 (2011). Community custody conditions are

reviewed for an abuse of discretion, but we review whether an entity had authority

to impose such restrictions de novo. State v. Armendariz, 160 Wn.2d 106, 110, 156

P.3d 201 (2007). The State’s primary concern and argument centers on the

standard of review applied by the Court of Appeals.

1
The ISRB narrowed the Clark County travel restriction in December 2018, allowing
Winton to travel through Clark County, requiring permission only if Winton desires Clark
County to be his final destination.
2
The Washington Association of Criminal Defense Attorneys [Lawyers] filed an amicus
curiae brief in this case.

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In re Pers. Restraint of Winton, No. 97452-7

While the right to travel is recognized as a fundamental right of citizenship,

this right is affected by a criminal conviction. See Bagley v. Harvey, 718 F.2d 921,

924 (9th Cir. 1983); see also Jones v. Helms, 452 U.S. 412, 420, 101 S. Ct. 2434,

69 L. Ed. 2d 118 (1981) (“[A]ppellee’s own misconduct had qualified his right to

travel interstate before he sought to exercise that right.”). Bagley addressed

whether a parole commission’s decision to parole Bagley to Iowa violated his right

to travel. After noting that other courts have found that parolees have a right to

travel, the Bagley court reached the opposite conclusion and upheld the travel

condition, reasoning that

[t]here can be no doubt that Bagley’s constitutional right to
interstate travel was extinguished upon his valid convictions and
imprisonment. Since, to this date, Bagley has never regained that
freedom of travel he lost upon conviction, he may not invoke the due
process clause of the fifth amendment to compel the Government to
grant him the desired right.

718 F.2d at 924 (internal citation omitted).

We find the analysis in Bagley to be persuasive and applicable here.

Following a conviction and during the period of imprisonment, the limitation on

the right to travel is similar to the loss of other constitutional rights. 3 This

reasoning applies to individuals serving community custody. Community custody

is an extension of incarceration where an individual’s “‘constitutional rights . . . are

3We do not reach the question of whether the right to travel is restored to individuals
who fully complete their sentences.

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In re Pers. Restraint of Winton, No. 97452-7

subject to the infringements authorized by the SRA [Sentencing Reform Act of

1981], RCW 9.94A.’” State v. Ross, 129 Wn.2d 279, 287, 916 P.2d 405 (1996)

(second alteration in original) (quoting In re Pers. Restraint of Caudle, 71 Wn.

App. 679, 683, 863 P.2d 570 (1993) (Sweeney, J., concurring)). Because an

individual who is transferred from total confinement to community custody

remains under the continuing jurisdiction of the ISRB, the right to travel is not

entirely restored. To the extent that the Court of Appeals cases have held that a

parolee under community custody possesses an unrestricted constitutional right to

travel and have held that strict scrutiny applies when reviewing such conditions,

we reject that analysis and level of scrutiny. See In re Pers. Restraint of Martinez,

2 Wn. App. 2d 904, 913, 413 P.3d 1043 (2018); State v. Sims, 152 Wn. App. 526,

531, 216 P.3d 470 (2009), aff’d on other grounds, 171 Wn.2d 436, 256 P.3d 285

(2011). We decline to adopt the factored analysis from State v. Schimelpfenig, 128

Wn. App. 224, 229, 115 P.3d 338 (2005), to the analysis of a community custody

condition, as the Schimelpfenig factors are premised on a constitutional strict

scrutiny standard of review. 4

4
We acknowledge, however, that some of the Schimelpfenig factors align with the
considerations the ISRB must undertake in imposing conditions of community custody under
RCW 9.94A.704(10)(c). Schimelpfenig sets out nonexclusive factors for courts to consider under
the strict scrutiny standard of review: “(1) whether the restriction is related to protecting the
safety of the victim or witness of the underlying offense; (2) whether the restriction is punitive
and unrelated to rehabilitation; (3) whether the restriction is unduly severe and restrictive

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In re Pers. Restraint of Winton, No. 97452-7

Instead, we derive guidance from the statutory authority defining the ISRB’s

discretion to impose community custody conditions. The ISRB is authorized to

“exercise independent judgment” regarding decisions concerning “offenders’

release, revocation, reinstatement, or the imposition of conditions of supervision.”

RCW 9.95.0002(8). When imposing community custody conditions, the ISRB

must comply with the statutory definition of “community custody” under RCW

9.94A.704:

“Community custody” means that portion of an offender’s sentence
subject to controls including crime-related prohibitions and
affirmative conditions from the court, the board, or the department of
corrections based on risk to community safety, that is served under
supervision in the community, and which may be modified or revoked
for violations of release conditions.

RCW 9.95.0001(2) (emphasis added).5 “Crime-related prohibition” is defined as

“an order of a court prohibiting conduct that directly relates to the circumstances

of the crime for which the offender has been convicted.” RCW 9.94A.030(10)

(emphasis added); see RCW 9.95.0001(3). Moreover, an imposed condition must

be reasonably related to the crime of the conviction, the offender’s risk of

because the defendant resides or is employed in the area from which he is banished; (4) whether
the defendant may petition the court to temporarily lift the restriction if necessary; and (5)
whether less restrictive means are available to satisfy the State’s compelling interest.” 128 Wn.
App. at 229.
5
Based on the language, “including crime-related prohibitions and affirmative
conditions,” we recognize that RCW 9.95.0001(2) establishes nonexclusive considerations.
However, in this case, our focus is on “crime-related prohibitions,” and those additional
considerations are not before us.

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In re Pers. Restraint of Winton, No. 97452-7

reoffending, and the safety of the community or it will be removed. RCW

9.94A.704(10)(c)(i)-(iii). Taken together, any community custody condition

imposed by the ISRB, even those that implicate constitutional freedoms, must bear

a reasonable relation to the circumstances of the crime, the offender’s risk of

reoffense, and public safety.

Based on the statutory sentencing authority, we have evaluated sentencing

conditions for their reasonableness. In State v. Riley, we reviewed a sentencing

condition that infringed on the defendant’s freedom of association because it

prevented him from associating with other computer hackers. 121 Wn.2d 22, 36-

38, 846 P.2d 1365 (1993). We reasoned that because “crime-related” prohibitions

serve a primarily punitive purpose and are left to the discretion of the sentencing

authority, the sentence will be reversed only if it is manifestly unreasonable. Our

analysis instead recognized that “[l]imitations upon fundamental rights are

permissible” for the duration of the offender’s sentence where restrictions are

“imposed sensitively. . . . [and are] ‘reasonably necessary to accomplish the

essential needs of the state and public order.’” Riley, 121 Wn.2d at 37-38 (quoting

Malone v. United States, 502 F.2d 554, 556 (9th Cir. 1974)). In that case, the

condition was not unconstitutional; it was reasonably related to the defendant’s

crime of computer trespass and was imposed to prevent the defendant from

reoffending.

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In re Pers. Restraint of Winton, No. 97452-7

While sentencing conditions are distinguishable in some aspects, we later

undertook a similar analysis in the context of community custody conditions. State

v. Bahl, 164 Wn.2d 739, 753, 193 P.3d 678 (2008). In reviewing a vagueness

challenge to a community custody condition, we recognized that the imposition of

“conditions of community custody is within the discretion of the sentencing court

and will be reversed if manifestly unreasonable.” Bahl, 164 Wn.2d at 753 (citing

Riley, 121 Wn.2d at 37). Further, the imposition of an unconstitutional condition

would be manifestly unreasonable. Recognizing this rule in State v. Hai Minh

Nguyen, 191 Wn.2d 671, 678, 425 P.3d 847 (2018), we assessed whether a

condition imposed by the sentencing court was crime related. We held that

community custody conditions are reviewed for an abuse of discretion and that a

court does not abuse its discretion if a reasonable relationship exists between the

crime and the condition. Nguyen, 191 Wn.2d at 678, 683-84.

While these cases analyzed community custody conditions imposed by the

sentencing court, the same reasoning applies here to community custody conditions

imposed by the ISRB. Both authorities possess broad discretion to impose crime-

related community conditions. RCW 9.94A.703(3)(f); RCW 9.95.0001(2); RCW

9.95.0002(8). Accordingly, we review whether the ISRB abused its discretion in

imposing a particular community custody condition. See Nguyen, 191 Wn.2d at

683. Given that parolees under community custody are still serving their sentences,

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In re Pers. Restraint of Winton, No. 97452-7

conditions may implicate a parolee’s diminished constitutional rights. Based on the

statutory authority, the relevant inquiry is whether the imposed condition is

“crime-related,” meaning it is reasonably related to the crime, the offender’s risk of

reoffense, and the protection of public safety. RCW 9.94A.704(10)(c)(i)-(iii); see

RCW 9.95.0001(2). If the condition fails to meet these statutory requirements, it is

manifestly unreasonable and should be removed.

Turning to the condition imposed in this case, we hold that it was reasonable

to require Winton to obtain written approval before entering Clark County.

Contrary to Winton’s characterization of this condition as akin to a banishment

order, even if Winton possessed an unrestricted constitutional right to travel, this

condition would not infringe on that right. Winton does not reside or work in Clark

County. He expresses a need to travel through the area via the interstate highway to

visit his daughter in Oregon, but he does not demonstrate any need to otherwise

stop or engage in activity within Clark County.

The condition does not ban Winton from Clark County. The record does not

indicate that Winton was ever denied approval to travel through Clark County or

that Winton ever violated the condition and was punished. Nor does Winton

complain of any alleged prohibitions on his ability to enter the county. Rather, the

condition requires preapproval from the ISRB and community corrections officer

to justifiably notify the victims when Winton anticipates entering the area.

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In re Pers. Restraint of Winton, No. 97452-7

The condition complies with the statutory requirements, that is, it bears a

reasonable relation to the crime, the risk of reoffense, and public safety. The

condition directly relates to the crime because Winton’s victims reside, work, and

attend school within Clark County. It also reasonably reduces the risk of reoffense,

ensures public safety, and notably, protects the victims and their families by

preventing contact with Winton. The ISRB properly exercised its discretion in

imposing this condition.

CONCLUSION

We reject the Court of Appeals’ holding that strict scrutiny applies to parole

conditions and its conclusion that persons serving community custody possess an

unqualified constitutional right to travel. An individual’s right to travel is limited

by a criminal conviction during the period of imprisonment and release on

community custody does not alter this limitation. Where a community custody

condition is imposed by the ISRB, it must be reasonably related to the crime,

recidivism, and public safety. The ISRB has broad discretion in individual cases to

craft appropriate conditions. We hold that the condition requiring Winton to obtain

preapproval before entering Clark County was a reasonable exercise of authority.

We reverse the Court of Appeals and dismiss the PRP.

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In re Pers. Restraint of Winton, No, 97452�7

WE CONCUR:

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In re Pers. Restraint of Winton, No. 97452-7
(Gordon McCloud, J., concurring)

No. 97452-7

GORDON McCLOUD, J. (concurring)—The majority holds that Don

Wesley Winton, who has been conditionally released from prison, has lost his

fundamental, constitutional right to travel for the length of his sentence. Because

Winton’s community custody sentence lasts the rest of his life, the majority’s

holding means that Winton has lost that fundamental, constitutional right for the

rest of his life. I certainly agree that while he is serving community custody, the

Indeterminate Sentence Review Board (ISRB) may restrict Winton’s right to

travel. And I agree that the narrow restriction now imposed on Winton (that he

must get permission to enter Clark County if that county is his final destination) is

permissible, both statutorily and constitutionally.

But I disagree with the majority’s conclusion that Winton has lost all

constitutional protections for the rest of his life and that only the statutory scheme

protects him from ISRB overreach. I therefore respectfully concur.

Originally, upon his conditional release from prison, the ISRB barred

Winton from entering Seattle, Clark County, and Clallam County, without written

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In re Pers. Restraint of Winton, No. 97452-7
(Gordon McCloud, J., concurring)

approval, for the rest of his life. Personal Restraint Pet. Ex. D at 1-2, In re Pers.

Restraint of Winton, No. 52371-0-II (Wash. Ct. App. 2018). Later, the ISRB

added Skamania County and “the state of Oregon north of Highway 20” to the list

of places from which Winton was barred. Id. Ex. I. Highway 20 splits Oregon

roughly in half, meaning that the ISRB effectively banned Winton from the entire

northern half of the state. Id. Ex. K. Winton claimed that these restrictions

unconstitutionally burdened his fundamental right to travel.

We recognize a fundamental right to travel. See State v. Lee, 135 Wn.2d

369, 389, 957 P.2d 471 (1998) (“The freedom to travel throughout the United

States has long been recognized as a basic right under the United States

Constitution.” (citing Dunn v. Blumstein, 405 U.S. 330, 92 S. Ct. 995, 31 L. Ed. 2d

274 (1972))); see also Eggert v. City of Seattle, 81 Wn.2d 840, 841-44, 505 P.2d

801 (1973) (discussing the origins of the right). In fact, we recognize that a

convicted criminal retains that right: “A defendant’s fundamental rights limit the

sentencing court’s ability to impose sentencing conditions.” In re Pers. Restraint

of Rainey, 168 Wn.2d 367, 377, 229 P.3d 686 (2010).

And until today, we had held that “[t]he extent to which a sentencing

condition affects a constitutional right is a legal question subject to strict scrutiny.”

Id. at 374 (emphasis added) (citing State v. Warren, 165 Wn.2d 17, 34, 195 P.3d

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In re Pers. Restraint of Winton, No. 97452-7
(Gordon McCloud, J., concurring)

940 (2008)). In this context, we have described two different strict-scrutiny

standards of review. We have said that “‘[c]onditions that interfere with

fundamental rights’ must be ‘sensitively imposed’ so that they are ‘reasonably

necessary to accomplish the essential needs of the State and public order.’” Id. at

377 (alteration in original) (quoting Warren, 165 Wn.2d at 32). We have also said

that “crime-related prohibitions affecting fundamental rights must be narrowly

drawn” so that there is “no reasonable alternative way to achieve the State’s

interest.” Warren, 165 Wn.2d at 34-35 (citing State v. Riley, 121 Wn.2d 22, 37-38,

846 P.2d 1365 (1993); State v. Ancira, 107 Wn. App. 650, 655, 27 P.3d 1246

(2001)). Either way, we have always subjected these conditions to exacting

constitutional review.

Our Courts of Appeals have appropriately followed our precedent and

strictly scrutinized sentencing conditions that affect a defendant’s right to travel.

In re Pers. Restraint of Martinez, 2 Wn. App. 2d 904, 913-14, 413 P.3d 1043

(2018); State v. Sims, 152 Wn. App. 526, 531, 216 P.3d 470 (2009), aff’d on other

grounds, 171 Wn.2d 436, 256 P.3d 285 (2011); State v. Alphonse, 147 Wn. App.

891, 909, 197 P.3d 1211 (2008); State v. Schimelpfenig, 128 Wn. App. 224, 226,

115 P.3d 338 (2005).

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In re Pers. Restraint of Winton, No. 97452-7
(Gordon McCloud, J., concurring)

Despite all this precedent, the majority relies on an out-of-jurisdiction case

to hold that people on community custody have no constitutional right to travel at

all. Majority at 4 (quoting Bagley v. Harvey, 718 F.2d 921, 924 (9th Cir. 1983)).

The majority reasons that “[f]ollowing a conviction and during the period of

imprisonment, the limitation on the right to travel is similar to the loss of other

constitutional rights.” Id. It continues that this “reasoning applies to individuals

serving community custody.” Id. I hope the majority does not mean what it says.

Until now, a conviction has not meant a loss of constitutional rights. See, e.g.,

State v. Olsen, 189 Wn.2d 118, 126, 399 P.3d 1141 (2017) (holding that “even

though probationers do not enjoy the same expectation of privacy as other

citizens,” they still have “reduced privacy interests under [Wash. Const.] article I,

section 7”). Even if the majority means something other than what it says and

intends to strip only those on community custody of their fundamental right to

travel (rather than strip all convicted people of all their constitutional rights), it

would still be overruling all our precedent subjecting sentencing conditions that

affect fundamental rights to strict scrutiny. Rainey, 168 Wn.2d at 374; Warren,

165 Wn.2d at 34-35.

It is certainly possible that citywide, countywide, and other travel

restrictions could survive strict scrutiny. As the Schimelpfenig court recognized,

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In re Pers. Restraint of Winton, No. 97452-7
(Gordon McCloud, J., concurring)

“the propriety of such restrictions must turn on the facts of each case.” 128 Wn.

App. at 230; see also id. at 229 (listing five nonexclusive factors to consider).

Although this standard of review is demanding,

the state has far more latitude in determining what would qualify as
legitimate [government] objectives when dealing with a convicted
criminal than it would if it sought to apply a restrictive condition in
another setting. A less rigorous standard of review displays an
insufficient level of respect for the continuing constitutional rights of
offenders. Any hope that an offender might be rehabilitated or have
some respect for the criminal justice system in the future would seem
to follow more naturally from the imposition of a sentence that
respects the rights and dignity of the offender than from the
imposition of a sentence that shows a disregard for those vital issues.

Andrew Horwitz, Coercion, Pop-Psychology, and Judicial Moralizing: Some

Proposals for Curbing Judicial Abuse of Probation Conditions, 57 WASH. & LEE

L. REV. 75, 158 (2000). In other words, the State certainly has legitimate interests

in the safety of victims, the safety of the general public, and the rehabilitation of

offenders that could justify limitation or even deprivation of certain constitutional

rights (for example, the right to possess arms or the right to associate with certain

people).

The majority, however, goes even further than simply adopting a less-

onerous standard of review: it strips Winton of his constitutional right to travel

altogether. And since Winton will serve community custody for the rest of his life,

he will never regain that constitutional right.

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In re Pers. Restraint of Winton, No. 97452-7
(Gordon McCloud, J., concurring)

As the majority lays out in detail, Winton is protected to some extent by the

statutory scheme. I certainly agree with the majority’s observation that “any

community custody condition imposed by the ISRB, even those that implicate

constitutional freedoms, must bear a reasonable relation to the circumstances of the

crime, the offender’s risk of reoffense, and public safety.” Majority at 7. This will

go a long way toward ensuring that most conditions are “‘reasonably necessary to

accomplish the essential needs of the State and public order,’” Rainey, 168 Wn.2d

at 377 (quoting Warren, 165 Wn.2d at 32), if not “narrowly drawn” so that there is

“no reasonable alternative way to achieve the State’s interest,” Warren, 165 Wn.2d

at 34-35 (citing Riley, 121 Wn.2d at 37-38; Ancira, 107 Wn. App. at 655). But by

relying on the statutory scheme, while eliminating Winton’s constitutional rights,

the majority is able to avoid the exacting constitutional standard of review and

instead employ the abuse-of-discretion standard. See majority at 8. In all this,

those conditionally released from prison, those who hope to move on from their

convictions and restart their lives, lose.

Apparently recognizing the questionable constitutionality of banning Winton

from Washington’s largest city, three counties, and half the state of Oregon, the

ISRB, over the course of this litigation, has significantly narrowed its conditions.

Now, the ISRB bars Winton only from entering Clark County without approval,

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In re Pers. Restraint of Winton, No. 97452-7
(Gordon McCloud, J., concurring)

and then only if Clark County is Winton’s final destination. Majority at 2-3 & n.1.

For many of the same reasons that the majority holds that this current condition is

statutorily permissible, see id. at 9-10, I would hold that this condition, as it now

exists, is constitutionally permissible, too.

But I would also make clear that Winton retains his constitutional rights. I

therefore respectfully concur.

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