IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Personal Restraint ) No. 80545-2-I
Petition of: )
) DIVISION ONE
MARK ALLEN FAGIN )
) UNPUBLISHED OPINION
Petitioner. )
)
)
)
HAZELRIGG, J. — Mark A. Fagin pleaded guilty to attempted rape of a child
in the second degree and rape of a child in the third degree. The court imposed
numerous community custody conditions as a part of his sentence. Fagin later
filed a personal restraint petition. The petition was denied in part and the surviving
challenges were referred to a panel of this court for consideration of the
constitutional validity of several of those community custody conditions. We
accept the State’s concessions on a number of the challenged conditions, grant
the petition, and remand to the trial court for correction of the various deficiencies
identified herein.
FACTS
In December 2017, Mark Fagin was charged with two counts of attempted
rape of a child in the first degree, attempted commercial sexual abuse of a minor,
and rape of a child in the second degree. Fagin pleaded guilty as charged to the
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amended information filed by the State, pursuant to a plea agreement, which
reduced the charges to count 1, attempted rape of a child in the second degree,
and count 2, rape of a child in the third degree. The plea statement permitted the
court to review the police reports and probable cause affidavit to establish a factual
basis for the plea.
Fagin’s conviction for count 1 arose from an incident where he responded
to an advertisement on Craigslist1 posted by law enforcement, which involved
officers posing as a mother offering up her two fictitious daughters for sexual
activity. During a text exchange with Fagin that evolved from his response to the
ad, a detective posing as the mother said her “daughters” were 11 and 6 years old.
As a result of this communication about the “daughters,” Fagin and the “mother”
agreed on a meeting place. Fagin was arrested when he arrived at the location.
Fagin’s conviction for count 2 was based on events that occurred in 2010 when
Fagin was living with a woman and her daughter, A.R., for two years.
In October 2018, the court imposed an indeterminate sentence of 90
months to life in prison on count 1 and 34 months of confinement on count 2. A
lifetime term of community custody was also imposed. The community custody
conditions imposed by the court are contained in what appears to be a stock form
prepared by the Department of Corrections (DOC) and referenced in the DOC
presentence report.
In October 2019, Fagin filed a pro se personal restraint petition (PRP),
arguing that he received ineffective assistance of counsel, the court incorrectly
1
Craigslist is a website that allows users to post and view classified advertisements and
community notices.
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calculated his sentence on count 1, and that numerous community custody
conditions were improper. The Acting Chief Judge of this court determined that
Fagin’s challenges as to the community custody conditions were not frivolous,
referred those issues to a panel of judges for consideration on the merits, and
appointed counsel to assist Fagin. The remaining PRP claims were dismissed.
ANALYSIS
Fagin challenges numerous community custody conditions on constitutional
grounds. “To receive collateral relief by a PRP, a petitioner must show either a
constitutional error that resulted in actual and substantial prejudice or a
nonconstitutional error that resulted in a fundamental defect that caused a
complete miscarriage of justice.” In re Pers. Restraint of Brettell, 6 Wn. App. 2d
161, 166–67, 430 P.3d 677 (2018).
We review community custody conditions for abuse of discretion. State v.
Irwin, 191 Wn. App. 644, 652, 364 P.3d 830 (2015). “A trial court necessarily
abuses its discretion if it imposes an unconstitutional community custody condition,
and we review constitutional questions de novo.” State v. Wallmuller, 194 Wn.2d
234, 238, 449 P.3d 619 (2019).
I. Plethysmograph Testing
Fagin first challenges the condition under Additional Sentence
Requirements that requires him to “[s]ubmit to a sexual history and periodic
polygraphs and/or plethysmograph assessments at own expense as directed by
[the] Department of Corrections or therapist.” In particular, Fagin argues that this
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condition is unconstitutional because it permits plethysmograph testing at the
direction of the DOC. Here, the State admits that this condition is unconstitutional
under State v. Land, 172 Wn. App. 593, 605–06, 295 P.3d 782 (2013). Land
makes clear that only a treatment provider may order a highly invasive
plethysmograph examination. Id. We agree with the parties and remand for the
trial court to modify this condition to comply with our case law.2
II. Infringement on the Right to Parent
Fagin next challenges two separate conditions, asserting that they violate
his right to parent and that they must provide an exception for his biological child.
Condition #2 under Crime Related Prohibitions reads:
Avoid contact with minors and adhere to the instructions of the
Community Corrections Officer concerning residence and
employment, unless otherwise authorized by the Department of
Corrections and treatment provider with an adult sponsor approved
by the Department of Corrections.
Condition #6 under Additional Sentence Requirements states “You shall not stay
overnight in a residence where there are minor children, as directed by your
Community Corrections Officer.” During the pendency of this PRP, the parties
addressed the primary concern Fagin raised with regard to contact with his
biological son. With permission of a Commissioner of this court, they entered an
agreed order in the trial court amending the language of condition #2 to allow for
contact with his son during his incarceration.
2 Given that this has been the state of the law on ordering plethysmograph testing pursuant
to community custody conditions since at least 2013, the State would be well served by ensuring
that any pattern forms used at sentencing are appropriately updated or, at minimum, hand-modified
to comport with these constitutional considerations.
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However, Fagin argues that these challenges must still be considered by
this panel because he may potentially have other children in the future. It is unclear
why this aspect of his argument was not also addressed when the parties
appeared before the trial court to modify the language of condition #2, particularly
given that both parties cited the authority for such a remedy in their respective
briefing. In In re Personal Restraint of Sickels, the court accepted a concession
by the State that an exception must be made to some conditions for any potential
biological children Sickels might have in the future, despite the fact that he was
childless at the time that he raised the challenge. 14 Wn. App. 2d 51, 58–59, 469
P.3d 322 (2020); see also United States v. Loy, 237 F.3d 251, 270 (3d Cir. 2001).
Such a modification should be made on remand in this case as well, particularly
given that an exception has already been made for his current biological child as
to condition #2.3
III. Vagueness
Fagin next asserts that several of his other community custody conditions
are unconstitutionally vague. Both under the Fourteenth Amendment of the United
States Constitution and article I, section 3 of our constitution, “[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.” Wallmuller, 194 Wn.2d at
3 The parties appear to agree that Fagin’s minor son will reach the age of majority before
his father is released from prison. As such, condition #6 would only apply to any future children
Fagin may have, which mirrors the facts of Sickels.
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238–39 (internal quotations marks omitted) (quoting State v. Padilla, 190 Wn.2d
672, 677, 416 P.3d 712 (2018)). “If a person of ordinary intelligence can
understand what behavior a condition forbids, given the context in which its terms
are used, the community custody condition is valid.” Brettell, 6 Wn. App. 2d at
168. “[A] community custody 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.” Padilla, 190 Wn.2d at 677
(quoting State v. Valencia, 169 Wn.2d 782, 793, 239 P.3d 1059 (2010)).
A. Avoiding Places Minors Frequent
Fagin challenges condition #3 of the listed Crime Related Prohibitions,
which states that he must:
Avoid schools, playgrounds, child-care centers, church youth
programs, parks and recreational programs, services used by
minors, unless otherwise approved by the Department of Corrections
with a sponsor approved by the Department of Corrections.
The State concedes that the condition is unconstitutional as written and should be
modified. The State proposes amending the condition to read: “Avoid places
where minors congregate including schools, playgrounds, child-care centers,
church youth programs, parks and recreational programs, unless otherwise
approved by the Department of Corrections [with a sponsor approved by the
Department of Corrections].” We accept the concession and remand for this
modification in light of Wallmuller, 194 Wn.2d 234.
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B. Limitations on Forming Relationships
Fagin also challenges one aspect of condition #5 under Additional Sentence
Requirements as ordered by the trial court, which states “Do not date people or
form relationships with families who have minor children, as directed by your
Community Corrections Officer.” Fagin asserts that “form relationships” is
unconstitutionally vague as the condition does not inform him of what constitutes
a “relationship” or what it means to “form” one. As Fagin points out in his briefing,
this court has struck this exact phrasing from nearly identical community custody
conditions numerous times. See State v. Robinett, No. 50653-0-II, slip op. at 7–9,
(Wash. Ct. App. Jan. 15, 2019) (unpublished),
https://www.courts.wa.gov/opinions/pdf/D2%2050653-0-
II%20Unpublished%20Opinion.pdf; In re Pers. Restraint of Hulbert, No. 80870-2-
I, slip op. at 3–4 (Wash. Ct. App. Jul. 27, 2020) (unpublished),
https://www.courts.wa.gov/opinions/pdf/808702.pdf; State v. Mansour, No. 78708-
0-I, slip op. (unpublished portion) at 34–36 (Wash. Ct. App. Aug. 24, 2020),
https://www.courts.wa.gov/opinions/pdf/787080.pdf. We similarly conclude that
the challenged language in condition #5 which prohibits Fagin from, “form[ing]
relationships with families who have minor children, as directed by your
Community Corrections Officer,” is unconstitutionally vague and accordingly, we
remand for the trial court to strike it from the judgment and sentence.
C. Use or Possession of Sexually Explicit Material
Fagin’s next challenge relates to another of his Additional Sentence
Requirements, condition #10, which states “Do not seek out, use, or possess,
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sexually explicit material as defined by treatment provider or Indeterminate
Sentence Review Board [(ISRB)].” The State once again concedes that a portion
of this condition must be stricken in order to comply with due process. The State
agrees with Fagin that the language that grants the ISRB discretion to define
sexually explicit material must be removed. We then need only consider whether
the condition remains unconstitutionally vague if this determination is left to the
sole discretion of the treatment provider. Fagin argues that sufficient notice as to
what constitutes “sexually explicit material” may only be provided by way of a
statutory definition. In response, the State proposes that the definition of sexually
explicit material contained in RCW 9.68.130 is appropriate, in conjunction with the
discretion of the treatment provider.
We agree with the State’s proposal to define sexually explicit material by
way of RCW 9.68.130 as it provides clear and sufficient notice to the supervised
person. We, however, decline to allow a treatment provider to further define or
limit access to the prohibited sexually explicit material. A treatment provider may
not be familiar with the legal nuance regarding free speech concerns that our
courts have had to address previously. See State v. Bahl, 164 Wn.2d 739, 753–
58, 193 P.3d 678 (2008); see also State v. Nguyen, 191 Wn.2d 671, 679–81, 425
P.3d 847 (2018).
D. Monitoring Software for Internet Access
Fagin argues that the following condition contained in the list of Additional
Sentence Requirements is unconstitutionally vague: “You shall not access the
Internet on any device without approved monitoring software.” He asserts that this
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condition is subject to arbitrary enforcement because the CCO may approve or
otherwise decide the scope of the monitoring software. We first question whether
the condition actually specifies that the discretion rests with the CCO in the
absence of specific language to that effect, particularly in light of other conditions
listed in Appendix F that expressly note the discretion of the treatment provider,
ISRB, CCO, or DOC. In the absence of language that puts Fagin on notice as to
who may approve the monitoring software, we must remand as the condition is
vague. We cannot conclude that a person of ordinary intelligence, when reading
this condition in the context of the conditions as a whole, would be able to ascertain
who approves the required monitoring software. Throughout the appendix to the
judgment and sentence that contains these conditions, the grants of discretion to
various supervising authorities are otherwise relatively specific.
As to the substance of the condition requiring use of approved monitoring
software for any internet access, we are bound by our Supreme Court’s recent
opinion in State v. Johnson. 197 Wn.2d 740, 487 P.3d 839 (2021). The Johnson
court reviewed a vagueness challenge to a condition which prohibited the, “use or
access [of] the World Wide Web unless specifically authorized by [his community
custody officer] through approved filters.” Id. at 744 (alterations in original). The
court reasoned that the crime Johnson committed, factually similar to Fagin’s
crimes of conviction, informed what sort of filter would be appropriate for use. Id.
at 749. The court also noted that, when reading the context of the conditions
overall, the scope of limitations the filter should provide was ascertainable to an
ordinary person. Id. We remand to the trial court to adapt this condition of Fagin’s
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community custody to ensure that the delegation of authority for approving the
monitoring software is clear. Contrary to Fagin’s assertion, Johnson makes clear
that we need not direct that the condition expressly specify the type of filter. Id.
740. Because we remand for correction on the bases specified here, we need not
consider Fagin’s further challenges to this condition.4
IV. Limitations on Accessing Social Media
Fagin’s final challenge is to condition #11 of Additional Sentence
Requirements, which provides “You shall not visit, have accounts for or utilize
social media or websites which advertise or promote dating, prostitution, casual
sexual relationships, or similar content.” Fagin specifically argues that this
condition infringes on his First Amendment rights such that the condition requires
narrow tailoring. We agree and remand for consideration on such grounds as the
record lacks any indication of an overbreadth analysis by the trial court, which is a
prerequisite to imposing a condition of this sort.
“A regulation implicating First Amendment speech must be narrowly tailored
to further the State’s legitimate interest.” Padilla, 190 Wn.2d at 678. For this
reason, “a restriction implicating First Amendment rights demands a greater
degree of specificity and must be reasonably necessary to accomplish the
essential needs of the state and public order.” Id. Additionally, “[t]here must be
no reasonable alternative way to achieve the State’s interest.” State v. Warren,
165 Wn.2d 17, 34–35, 195 P.3d 940 (2008). A condition is unconstitutionally
4On remand, the parties may further litigate any issues they identify as to free speech or
warrantless searches arising from this condition.
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overbroad if it infringes on an individual’s right to free speech or free association
beyond what may legitimately be regulated by the State. State v. Riles, 135 Wn.2d
326, 346, 957 P.2d 655 (1998), overruled on other grounds by Valencia, 169
Wn.2d 782. Restrictions on social media may violate an individual’s First
Amendment rights. Packingham v. North Carolina, 137 S. Ct. 1730, 1735–38, 198
L. Ed. 2d 273 (2017). The trial court must establish on the record that the condition
is narrowly tailored to achieve the State’s legitimate interest and no other
reasonable alternative to prevent the concerned conduct exists. State v. DeLeon,
11 Wn. App. 2d 837, 840–41, 456 P.3d 405 (2020).
Here, the record is devoid of any consideration as to how this condition was
drafted, its impact on Fagin’s First Amendment rights, or whether there were less
restrictive alternatives to achieve the State’s interest. On remand, the trial court
must conduct the required overbreadth analysis on the record as required by
DeLeon, 11 Wn. App. 2d 837.
We grant Fagin’s petition and remand to strike or revise the various
conditions identified.
WE CONCUR:
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