State v. Frederick (In re Frederick)

506 P.3d 690

STATE of Washington, Respondent,

v.Mechel N. FREDERICK, Appellant.

In the Matter of the Personal Restraint of: Mechel N. Frederick, Petitioner.

No. 37850-1-III (consolidated with No. 38072-6-III)

Court of Appeals of Washington, Division 3.

FILED FEBRUARY 15, 2022

Ordered Published Date MARCH 15, 2022

Lise Ellner, Kyle Bryce Berti, Law Offices of Lise Ellner, P.O. Box 2711, Vashon, WA, 98070-2711, for Appellant.

Larry D. Steinmetz, Alexis Michelle Lundgren, Spokane County Prosecutor's Office, 1100 W Mallon Ave., Spokane, WA, 99260, Timothy Norman Lang, Washington State Attorney General's Office, 1125 Washington St. Se, Olympia, WA, 98501-2283, Gregory Kennedy Ziser, Washington State Attorney General's Office, P.O. Box 40116, Olympia, WA, 98504-0116, for Respondent.

Lawrence-Berrey, J. ¶1 In this consolidated appeal and personal restraint petition (PRP), Mechel Frederick challenges a number of community custody conditions imposed by the sentencing court and the Indeterminate Sentence Review Board (ISRB or Board). We accept the State's concession that the word "romantic" must be struck from condition 19 and otherwise affirm and dismiss Mr. Frederick's PRP.

FACTS

¶2 In July 2016, Mechel Frederick responded to an Internet Craigslist ad from a woman looking for someone to have sex with her underage children. Mr. Frederick was under the influence of marijuana at the time. He agreed to have sex with the woman's 11-year-old daughter and showed up with condoms and lubricants at what he thought was the woman's residence. The woman was an undercover detective. Mr. Frederick was arrested. He later pleaded guilty to one count of attempted second degree rape of a child. The trial court sentenced Mr. Frederick to a "determinate plus" sentence under RCW 9.94A.507 of a 58.5-month minimum term and a maximum term of life.

¶3 More than one year after sentencing, Mr. Frederick filed a motion under CrR 7.8 challenging five conditions of his community custody. The superior court transferred the motion to this court for consideration as a PRP. The State conceded, and we agreed that the motion fit within the "facial invalidity" exception to RCW 10.73.090(1) and was not time barred. Clerk's Papers (CP) at 22. We remanded to the superior court for consideration of Mr. Frederick's challenges.

¶4 Of the five conditions originally challenged, only two are challenged on appeal. We limit our discussion to those two conditions.

Condition 18: Accessing social media

¶5 Condition 18 originally read: "Do not access social media or dating websites unless approved by [community corrections officer (CCO)] and/or Therapist." CP at 50. After considering the State's proposed modification and Mr. Frederick's objection, the trial court modified condition 18 to read: "Do not access the [I]nternet and/or any social media for the purpose of engaging in sexual co[mm]unication or contact with any minor." CP at 23.

Condition 19: Romantic/sexual relationships

¶6 Condition 19 originally read: "Do not enter into a romantic/sexual relationship without prior approval of your CCO and/or Therapist." CP at 50. After considering the State's proposed modification and Mr. Frederick's objection, the trial court modified condition 19 to read: "Do not enter into a dating and/or a romantic/sexual relationship with an individual that is a parent or guardian to a minor child(ren) without first obtaining approval from your therapist and your Community Corrections Officer." CP at 23.

¶7 Mr. Frederick timely appealed modified conditions 18 and 19.

ANALYSIS

CONDITION 18: ACCESSING SOCIAL MEDIA

¶8 Mr. Frederick contends the phrase "sexual communication" in condition 18 is unconstitutionally vague. We disagree.

¶9 We review community custody conditions for an abuse of discretion and will reverse if the condition is manifestly unreasonable. State v. Hai Minh Nguyen , 191 Wash.2d 671, 678, 425 P.3d 847 (2018). An unconstitutional condition is manifestly unreasonable. Id.

¶10 Under the Fourteenth Amendment to the United States Constitution and article I, section 3 of the Washington Constitution, due process "requires that citizens have fair warning of proscribed conduct." State v. Bahl , 164 Wash.2d 739, 752, 193 P.3d 678 (2008). A community custody condition that does not provide this warning is unconstitutionally vague. Id. at 752-53, 193 P.3d 678.

¶11To comply with due process, a community custody provision must " ‘define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is proscribed [and] provide ascertainable standards of guilt to protect against arbitrary enforcement.’ " Hai Minh Nguyen , 191 Wash.2d at 678, 425 P.3d 847 (quoting Bahl , 164 Wash.2d at 752-53, 193 P.3d 678 ). When the prohibition concerns matters protected by the First Amendment, "a stricter standard of definiteness applies." Bahl , 164 Wash.2d at 753, 193 P.3d 678.

¶12 "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.’ " Hai Minh Nguyen , 191 Wash.2d at 679, 425 P.3d 847 (quoting City of Seattle v. Eze , 111 Wash.2d 22, 27, 759 P.2d 366 (1988) ). Rather, to be valid, a condition must put a person of ordinary intelligence on notice of the behavior the condition prohibits. Id. Some possible areas of disagreement are permissible. Id. The condition is considered in "a commonsense fashion" in a context including "the judgment and sentence, and related documents that will be available to [a] future community corrections officer." State v. Johnson , 197 Wash.2d 740, 748, 487 P.3d 893 (2021).

¶13 Mr. Frederick analogizes the term "sexual communication" to "romantic relationship," a term that we have held to be unconstitutionally vague in the context of community custody conditions. See State v. Peters , 10 Wash. App. 2d 574, 591, 455 P.3d 141 (2019). Mr. Frederick's condition, however, has important differences that render it sufficiently definite.

¶14 First, "sexual communication" has a clear meaning when read in a commonsense fashion in the context of condition 18 in full, Mr. Frederick's other community custody conditions, his judgment and sentence, and related documents. Mr. Frederick was convicted of attempting to rape a child. He committed his offense by using the Internet to contact a person purportedly offering her child for commercial sex. Accordingly, the court imposed community custody condition 18, which prohibits accessing the Internet and social media "for the purpose of engaging in sexual co[mm]unication or contact with any minor." CP at 23.

¶15 In condition 18, the word "sexual" modifies both "communication" and "contact." Applying the normal rules of grammar, "sexual" must have the same meaning in both contexts. See Estate of Telfer v. Bd. of County Comm'rs , 71 Wash. App. 833, 836, 862 P.2d 637 (1993). And "sexual contact" has been defined by our legislature in the same chapter as Mr. Frederick's crime of conviction: " ‘Sexual contact’ means any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party or a third party." RCW 9A.44.010(2). This accords with one of the dictionary definitions of "sexual:" "of or relating to the sphere of behavior associated with libidinal gratification." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2082 (1993). In the context of Mr. Frederick's crime of conviction and the method in which he committed the crime, a person of ordinary intelligence would understand that "sexual communication" refers to communication relating to or associated with the gratification of sexual desire.

¶16Second, the condition specifically addresses communication between Mr. Frederick and a minor, which minimizes the risk of arbitrary enforcement. A wide range of potentially flirtatious communication might be acceptable between adults so that it may be difficult to distinguish between appropriate and inappropriate communications. But there is no acceptable range of flirtatious communication between a convicted child sex offender and a child.

¶17 For example, Mr. Frederick suggests that the condition is subject to arbitrary enforcement "because one officer could find the discussion of kissing as constituting sexual communication while another" might not. Br. of Appellant at 6. We disagree. Any community corrections officer of ordinary intelligence would consider a "discussion of kissing" between a convicted child sex offender and a child a sexual communication, i.e., communication intended to gratify the offender's sexual desire. There is no such thing as innocent flirtatious banter between a convicted child sex offender and a child. We conclude that the challenged condition is not unconstitutionally vague.

CONDITION 19: ROMANTIC RELATIONSHIPS

¶18 Mr. Frederick contends the limitation on "romantic/sexual relationship[s]" in condition 19 is unconstitutionally vague. The State concedes vagueness.

¶19 As noted above, "romantic relationship" is unconstitutionally vague. See Peters , 10 Wash. App. 2d at 591, 455 P.3d 141. The State concedes this and requests that we direct the trial court to strike the word "romantic." We accept the State's concession and remand for the trial court to strike the word "romantic" in condition 19.

PRP SUPPLEMENTAL FACTS

¶20 The Board ordered Mr. Frederick to be released on August 26, 2020, but cancelled his release after he refused to sign the conditions of release. Mr. Frederick's refusal was due to his belief that signing the conditions would result in his forfeiting any right to challenge them. At a hearing on February 25, 2021, the Board informed Mr. Frederick that he could challenge the conditions through a PRP even after signing that he agreed to abide by them.

¶21 The Board released Mr. Frederick on April 14, 2021. Before his release, Mr. Frederick filed this PRP challenging five conditions of...