State v. Nelson

1

STATE OF WASHINGTON, Respondent, v. JASPER JAMES NELSON, Appellant.

No. 39110-8-III

Court of Appeals of Washington, Division 3

February 13, 2024

UNPUBLISHED OPINION

LAWRENCE-BERREY, A.C.J.

Jasper Nelson appeals after the trial court revoked his SSOSA^[1] sentence. He argues the trial court failed to give him adequate notice it would revoke his sentence for not making adequate progress, and the imposed sentence exceeds the maximum term. In addition, he challenges several community custody conditions.

We disagree with Mr. Nelson's first argument, accept the State's concession with respect to his second argument and agree that a number of community custody conditions must either be struck or modified. We reverse and remand for the trial court to correct Mr. Nelson's sentence.

The Steven's County Sheriff's Office received a report from the mother of A.J., a 12-year-old girl, that A.J. had run away with a 19-year-old man named Jasper Nelson. A.J.'s mother was concerned that the pair may be having a sexual relationship. When law enforcement located A.J., she admitted to having sexual intercourse with Mr. Nelson three times. When law enforcement located and interviewed Mr Nelson, he also admitted to having sexual intercourse with A.J. on multiple occasions. He also admitted he knew A.J. was under the legal age of consent and what they did was illegal. Mr. Nelson also disclosed that he had solicited sex from one of A.J.'s classmates.

After further investigation, a detective learned that Mr. Nelson had solicited sex from J.W., an 11-year-old girl. J.W. told the detective she and Mr. Nelson met up several times and described various sorts of sexually inappropriate things Mr Nelson did in her presence.

The State charged Mr. Nelson by amended information with three counts of third degree child rape (counts 1-3), one count of communication with a minor for immoral purposes (count 4) and one count of second degree child molestation (count 5). Mr. Nelson agreed to plead guilty to the charges and agreed that the court could review the police reports and statements of probable cause to establish a factual basis for the guilty plea. In exchange, the State agreed to recommend a SSOSA.

The trial court accepted Mr. Nelson's guilty pleas and ordered a presentence investigation report. The report concluded that Mr. Nelson had "Mild Intellectual Disability and Unspecified Cognitive Disorder," and that he had a "documented history of neurocognitive deficits, ADHD [attention deficit hyperactivity disorder], behavioral problems, and mild intellectual disability." Clerk's Papers (CP) at 54.

Sentencing

At the start of the sentencing hearing, the State explained the reasons for its SSOSA recommendation. It explained that Mr Nelson had the mental capacity of a 12-or 13-year old and, while he understood what he did was wrong, he did not fully appreciate the predatory nature of his actions. Defense counsel asked the court to follow the State's recommendation.

During the hearing, the trial court explained the difficulty it had sending a defendant to prison who is "not only young biologically, but also mentally." Rep. of Proc. (RP) (May 4, 2021) at 29. The court thought Mr. Nelson's actions were similar to a "lack of impulse control" but "more like a 14 year old responding hormonally, and yet having access to the Internet and a world of potential victims." RP (May 4, 2021) at 30.

The court also noted that it "observed there was no indication of drugs or alcohol in your life, . . . thankfully that hasn't been part of the mix for you." RP (May 4, 2021) at 27.

After its colloquy, the court accepted the State's recommendation and granted Mr. Nelson a SSOSA sentence. The court imposed 60 months of confinement on counts 1 through 4, 87 months on count 5, and ran the sentences concurrently. As part of the SSOSA, the court suspended the 87-month confinement term and, as a condition of the suspended sentence, ordered Mr. Nelson to serve (1) 10 months of confinement in county jail, (2) 87 months of community supervision, and (3) five years (60 months) of sex offender treatment with Dr. Clark D. Ashworth, PhD. The court imposed 36 months of community custody should the SSOSA sentence be revoked. The court included a notation on the plea agreement that the combined term of incarceration and community custody should "not exceed 120 months." CP at 102.

The court also imposed a series of community custody conditions, including the following, which Mr. Nelson challenges on appeal:

4.2(a) Community Custody Conditions....The defendant shall comply with the following conditions unless otherwise ordered by the court: ....

(10) pay the supervision fee assessment. ....

(12) . . . shall not reside within any community protection zone (inside 880 feet of the facilities and grounds of a public or private school). RCW 9.94A.030.

APPENDIX H

....

(5) Pay supervision fees as determined by the Department of Corrections;

....

(12) Do not possess or consume alcohol containers or possess alcohol containers.

(13) Submit to breathalyzer testing or any other testing to ensure no alcohol consumption. ....

(17) Do not enter bars, taverns, lounges, or other establishments where the primary source of income is the sale of alcoholic beverages to include liquor stores.

(18) Do not enter known drug locations as defined by your supervising CCO.^[2]

(19) Do not use or possess marijuana or other products containing THC^[3]without a valid Washington authorization for use of medical marijuana obtained by a process approved in advance by your CCO and SOTP.^[4]

(20) Do not associate with anyone involved in criminal activities as defined by your CCO.

(21) Have no contact with minors unless approved by your supervising CCO and Sex Offender Treatment Provider.

(22) Do not use or possess drug paraphernalia.

(23) Do not use or possess deadly weapons or body armor.

....

(26) Submit to Polygraph testing at the direction of your assigned CCO.

(27) Submit to urinalysis testing or other testing to ensure drug-free status. ....

(30) No internet access without prior approval of your CCO and/or Sex Offender Treatment Provider. This condition is not intended to prevent approved use of internet resources for purposes of seeking employment. ....

(38) Do not live within 888 [sic] feet of any community protection zone. CP at 64, 72-74. Defense counsel did not object to any of the community custody conditions.

SSOSA violations

In November 2021, the Department of Corrections (DOC) filed a notice of violation, alleging that Mr. Nelson failed to abide by the social media and electronic device monitoring agreement that was a part of his SSOSA sentence. During his required polygraph testing, Mr. Nelson admitted to accessing his mother's laptop computer approximately five times. A few days later, Mr. Nelson's CCO alleged a second violation, that Mr. Nelson used his cell phone to access social media and view pornography.^[5] One month later, the court held a hearing to address the violations. Mr. Nelson stipulated to the two violations, and the court sanctioned him with 30 days of electronic home monitoring.

On June 2, 2022, the State petitioned to revoke Mr. Nelson's SSOSA sentence for three additional violations that occurred in late May. Mr. Nelson's CCO alleged that Mr. Nelson (1) possessed an Internet capable device without permission (a tablet), (2) accessed social media, and (3) accessed sexually explicit materials intended for sexual gratification. The CCO's report also noted that Mr. Nelson had "concerning" conversations with his biological mother and sister that were of "graphic sexual nature." CP at 142.

Twelve days later, the State supplemented its petition to revoke Mr. Nelson's SSOSA with three more violations. Mr. Nelson's CCO alleged that Mr. Nelson (4) accessed the Internet without prior approval from his CCO and treatment provider, (5) failed to inform his CCO and treatment provider of sexual activities, and (6) failed to include serious relationship partners in his treatment plan. The CCO's report noted that during the week Mr. Nelson had the tablet, he had several inappropriate conversations with females and he may have impregnated a high school student. The CCO also noted that Dr. Ashworth was unaware of Mr. Nelson's sexual activity and that the doctor had concerns over Mr. Nelson's behaviors and dishonesty. The CCO recommended revoking Mr. Nelson's SSOSA if he was found guilty of one or more of the alleged violations.

Revocation hearing

The trial court held a revocation hearing on July 12, 2022. At the start of the hearing, Mr. Nelson stipulated to each of the six violations. The State asked the court to revoke Mr. Nelson's SSOSA sentence. Defense counsel opposed revocation.

During the hearing the court also heard from Dr. Ashworth, who told the court:

My major concern with Mr. Nelson is the amount of time we've focused on these issues. We've worked on the consequences that are likely. We've talked about the consequences he's already experienced. We spent significant time looking at the conditions of his [judgment and sentence] and community supervision.

And what I learned recently, and we're talking since he was jailed 41 days ago, is that there's a lot of things that he just has not talked to me about. He has appeared to understand. We've gone through it. I've been very concrete with him, which is appropriate for his intellectual deficits, and he's not told me about the sexual relationship. He's not told me about some of the accessing of pornography or having that laptop computer.

If he's going to continue in treatment with me at any time we're going to have to deal with that, because I can't do it with somebody who's not willing to be candid and

...