IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Personal Restraint ) No. 81806-6-I
of )
)
JOSHUA DEAN MCINTYRE, )
) UNPUBLISHED OPINION
Petitioner. )
)
VERELLEN, J. — We presume defense counsel’s performance was reasonable,
and a petitioner alleging otherwise must overcome this presumption. Because
Joshua McIntyre fails to establish defense counsel’s performance was deficient at
sentencing by declining to discuss inapposite case law, McIntyre fails to demonstrate
resentencing is required for his conviction for second degree rape of a child.
McIntyre alleges resentencing is required to correct errors in his judgment and
sentence regarding his term of community custody from his conviction for third
degree rape of a child, community custody condition 8, and imposition of mandatory
legal financial obligations (LFOs).
Because the combined duration of McIntyre’s incarceration and term of
community custody exceeds the statutory maximum, we accept the State’s
concession that resentencing is required to correct the duration of community
custody for the third degree rape of a child conviction.
Because community custody condition 8 fails to provide ascertainable
standards by requiring approval of a community corrections officer before forming
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“relationships with families who have minor children,” it is unconstitutionally vague.
Resentencing is required to strike or amend the condition.
And because the 2018 amendments to RCW 10.01.160 applied to McIntyre
and the trial court imposed certain LFOs at sentencing without assessing whether
McIntyre was indigent, resentencing is required.
Therefore, we deny in part, grant in part, and remand for resentencing
consistent with this opinion.
FACTS
Joshua McIntyre was in a “catastrophic” car crash in 2010 at age 21 that
caused serious physical injuries.1 He also suffered a traumatic brain injury (TBI).
McIntyre’s personality was altered “significantly” after the crash, changing from being
“ambitious, driven . . . very disciplined and dedicated” to showing “a lot of
immaturity.”2 Because he caused the crash and injured others, McIntyre was
convicted of vehicular assault in 2013.
In March of 2017, McIntyre was convicted of second degree rape of a child,
B.G., and of third degree rape of a child, L.S.3 He raped B.G. in late 2016 while
awaiting trial for having raped L.S. in early 2015. Because the parties agreed his
prior conviction for vehicular assault made him ineligible for an alternative sentence
on the third degree rape conviction, McIntyre requested a special sex offender
sentencing alternative (SSOSA) on the second degree rape conviction only. He
1 App. at 183.
2 Id. at 189.
3State v. McIntyre, No. 76873-5-I, slip op. at 1 (Wash. Ct. App. Feb. 11, 2019)
(unpublished), http://www.courts.wa.gov/opinions/pdf/768735opin.pdf.
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argued he was amenable to treatment because the TBI caused “a real change” 4 that
makes him “think like he’s 14” and not question his conduct.5 The trial court denied
McIntyre’s request, sentencing him to 41 months’ incarceration for the third degree
rape and an indeterminate sentence of a minimum of 158 months’ incarceration with
a maximum of life for the second degree rape, with both sentences running
concurrently. The court also imposed a period of community custody for each
conviction, LFOs, and community custody conditions.
McIntyre timely filed this personal restraint petition.
ANALYSIS
I. Ineffective Assistance of Counsel
McIntyre contends he received ineffective assistance of counsel during
sentencing. We review claims of ineffective assistance of counsel de novo. 6 To
prevail, McIntyre must prove that defense counsel’s performance was deficient and
that without the deficient performance the result, by a reasonable probability, would
have been different.7 McIntyre’s claim fails unless both are proven.8 When
considering a claim of ineffective assistance, we presume defense counsel’s
4 App. at 93.
5 App. at 53.
6Matter of Lui, 188 Wn.2d 525, 538, 397 P.3d 90 (2017) (citing State v.
Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009)).
7 Id. (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984)).
8 In re Crace, 174 Wn.2d 835, 847, 280 P.3d 1102 (2012) (citing Strickland, 466
U.S. at 697).
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performance was not deficient.9 To overcome this presumption, McIntyre “must
establish an absence of any legitimate trial tactic that would explain counsel’s
performance.”10
The premise of McIntyre’s argument is that defense counsel “presented the
sentencing court with a factual argument that McIntyre was immature and deserving
of a SSOSA” but was deficient because he “failed to present the sentencing court
with the legal argument to support his factual claims.”11 This argument is not
persuasive because it relies upon facts unsupported by the record.
Defense counsel did not argue McIntyre’s functional or biological age alone
warranted an alternative sentence. Rather, defense counsel argued McIntyre’s
neurological deficits contributed significantly to his crimes and warranted treatment.
Defense counsel explained McIntyre’s TBI made sentencing “very complicated,”
presenting a “situation that needs to be looked at neurologically because there is still
time to do something about it.”12 He argued McIntyre was “amenable to [SSOSA]
treatment and would benefit tremendously from it, especially if the treatment involves
a significant neurological component.”13 He explained to the trial court that the
neurological treatment was central to the SSOSA being effective:
The impact of McIntyre’s traumatic brain injury cannot be
overstated. For example, prior to his twenty-first birthday, McIntyre
didn’t exhibit any signs of sexual behavioral problems. It was only after
9 Lui, 188 Wn.2d at 539 (citing State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260
(2011)).
10 Id. (citing Grier, 171 Wn.2d at 33).
11 Pet.’s Br. at 6.
12 App. at 49, 50.
13 App. at 94.
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his auto accident that he took to social media, engaged in on line
friendships with younger girls and ultimately became entangled in his
current legal problems.[14]
Defense counsel argued that McIntyre’s TBI, not his age, warranted a SSOSA.15
McIntyre contends defense counsel should have raised “supporting law,”16 such
as Matter of Light-Roth17 and State v. O’Dell.18 But those cases do not support the
argument defense counsel made at sentencing. Light-Roth addressed procedural
matters around considering youthfulness as a mitigating factor at sentencing. 19 And,
as the Light-Roth court explained, “[T]his court, in O’Dell, again addressed whether
youthfulness may be considered to support a departure from the standard sentencing
range.”20 Neither Light-Roth nor O’Dell addressed the role of neurological deficits as
mitigating factors. McIntyre fails to establish that defense counsel’s decision against
discussing inapposite cases was unreasonable. Because McIntyre fails to rebut the
presumption of reasonableness, his claim of ineffective assistance fails.
II. Sentence Duration for Third Degree Rape
McIntyre contends remand is required to correct the judgment and sentence
for his conviction for third degree rape of a child because his term of confinement and
term of community custody combined exceeds the statutory maximum. Third degree
14 App. at 93.
15 We note that McIntyre does not contend this argument was unreasonable.
16 Pet.’s Br. at 12.
17 191 Wn.2d 328, 422 P.3d 444 (2018).
18 183 Wn.2d 680, 358 P.3d 359 (2015).
19 191 Wn.2d at 330.
20 Id. at 334-35.
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rape of a child is a class C felony,21 which carries a maximum term of 60 months.22
The court sentenced McIntyre to 41 months’ incarceration and 36 months of
community custody on count one of third degree rape of a child. This is greater than
60 months. The State concedes resentencing is required. Because
RCW 9.94A.701(9) requires that a court reduce the duration of any term of
community custody if it exceeds the statutory sentencing maximum when combined
with the period of incarceration,23 we accept the State’s concession.
III. Community Custody Condition
McIntyre argues one of his conditions of community custody must be stricken
because it is unconstitutionally vague. The State contends McIntyre is estopped from
challenging this condition in a PRP because he challenged it in his direct appeal.
Generally, a PRP must raise “new points of facts and law” and should not
“reiterate issues finally resolved at trial and on direct review.” 24 In his direct appeal,
McIntyre challenged this condition as being unrelated to his conviction.25
Specifically, he argued “the court exceeded the statutory authority to impose the
conditions because the conditions are not crime-related.”26 He did not argue and the
court did not consider whether it was unconstitutionally vague. Because the court did
21 RCW 9A.44.079(1). We note that RCW 9A.44.079(1) was amended,
effective during the pendency of this appeal. LAWS OF 2021, ch. 142, § 4. Because
the amendment has no effect on the issues before us, we cite to the current statute.
22 RCW 9A.20.021(1)(c).
23 State v. Boyd, 174 Wn.2d 470, 472-73, 275 P.3d 321 (2012).
24In re Pers. Restraint of Davis, 152 Wn.2d 647, 750, 101 P.3d 1 (2004) (citing
In re Gentry, 137 Wn.2d 378, 388, 972 P.2d 1250 (1999)).
25 McIntyre, slip op. at 7.
26 Id.
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not consider whether the condition was vague, McIntyre has presented a new issue
for review.
Community custody condition 8 prohibits McIntyre from “form[ing] relationships
with families who have minor children.”27 McIntyre argues condition 8 invites
arbitrary enforcement because it fails to provide an ascertainable measure of when a
relationship forms.
We review community custody conditions for an abuse of discretion.28 A court
“necessarily” abuses its discretion by imposing an unconstitutionally vague
condition.29 We review constitutional questions de novo.30
A community custody condition is unconstitutionally vague when “‘(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.’”31 The condition must provide “‘fair warning of
proscribed conduct’” 32 by allowing an ordinary person to be “sufficiently definite”
about what conduct is prohibited and permitted. 33
27 App. at 24.
28 State v. Wallmuller, 194 Wn.2d 234, 238, 449 P.3d 619 (2019) (citing State v.
Padilla, 190 Wn.2d 672, 677, 416 P.3d 712 (2018)).
29 Id. (citing Padilla, 190 Wn.2d at 677).
30 Id. (citing Padilla, 190 Wn.2d at 677).
31 Id. at 239 (quoting Padilla, 190 Wn.2d at 677).
32
Id. (internal quotation marks omitted) (quoting State v. Sanchez Valencia, 169
Wn.2d 782, 791, 239 P.3d 1059 (2010)).
33
State v. Nguyen, 191 Wn.2d 671, 681, 425 P.3d 847 (2018) (citing City of
Spokane v. Douglass, 115 Wn.2d 171, 179, 795 P.2d 693 (1990)).
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In State v. Nguyen, our Supreme Court concluded a similar community
custody condition provided sufficient guidance and was not vague.34 That condition
required a defendant convicted of second degree child molestation to notify her
community corrections officer of any “dating relationship” she entered.35 The court
upheld the condition, explaining “a person of ordinary intelligence can distinguish a
‘dating relationship’ from other types of relationships,” such as being “just friends” or
“engag[ing] in a single social activity.”36
The State argues the condition challenged by McIntyre provides sufficient
guidance because it “clearly prohibits the defendant from having more than [a]
passing acquaintance with any family who has children.”37 The State’s argument
illustrates why this condition is distinguishable from the condition in Nguyen. An
ordinary person can readily ascertain objective indicia to distinguish a romantic,
dating relationship from other social relationships. Here, however, condition 8
provides no guidance about when routine, friendly interactions between McIntyre and
a family slips from a mere passing acquaintance into more than a passing
acquaintance. Indeed, an ordinary person could easily regard routine neighborliness
as forming a relationship. Although “a subjective element in a [community custody]
condition may be sufficiently specific if tethered to objective criteria,”38 condition 8
34 191 Wn.2d 671, 682-83, 425 P.3d 847 (2018).
35 Id. at 681.
36 Id. at 682.
37 Resp’t’s Br. at 23.
38United States v. Reeves, 591 F.3d 77, 81 (2d Cir. 2010); accord Nguyen, 191
Wn.2d at 683 (upholding a condition pairing “highly subjective qualifiers” with “an
objective standard”).
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provides none. Because community custody condition 8 fails to provide
ascertainable standards, it is unconstitutionally vague. The court abused its
discretion by imposing the condition. Resentencing is required for the court to strike
or clarify the prohibition.
IV. Discretionary LFOs
McIntyre argues two LFOs must be stricken because he was indigent at the
time of sentencing. McIntyre was sentenced in April of 2017. The court imposed
the $200 criminal filing and $100 biological sample fees. The court did not assess
his ability to pay at that time. In May of 2017, the court found McIntyre was indigent
and authorized appointment of an attorney at public expense to prosecute his
appeal. His direct appeal was considered in early 2019, and the mandate issued in
September 2019. While his appeal was pending, the legislature amended RCW
10.01.160 and prohibited courts from imposing LFOs on defendants found to be
indigent at the time of sentencing.39 These changes applied prospectively to
defendants whose cases were pending on direct review. 40 McIntyre did not
challenge these LFOs in his direct appeal and this PRP was timely filed, so this
issue is properly raised for the first time.41 Because the sentencing court did not
39State v. Ramirez, 191 Wn.2d 732, 747, 426 P.3d 714 (2018) (citing LAWS OF
2018, ch. 269, § 6).
40 Id.
41 See Gentry, 137 Wn.2d at 388-89 (explaining a PRP “should raise new points
of fact and law that were not or could not have been raised in the principal action, to
the prejudice of the defendant”). The State appears to argue we should not consider
McIntyre’s challenge to these LFOs because he did not challenge them on direct
review. It cites no authority for the proposition that declining to raise an issue on direct
review precludes a petitioner from raising it in a timely-filed PRP.
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assess whether McIntyre was indigent and RCW 10.01.160 required that it do so, a
resentencing hearing is necessary to determine whether he was indigent when
originally sentenced in 2017.42
Therefore, we deny in part, grant in part, and remand for a resentencing
hearing consistent with this opinion.
WE CONCUR:
42 Because this conclusion resolves the issue, we do not reach McIntyre’s claim
of ineffective assistance of appellate counsel.
10