State v. Peters

10 Wash.App.2d 574

455 P.3d 141

STATE of Washington, Respondent,

v.Kevin Arther PETERS, Appellant.

No. 31755-2-III

Court of Appeals of Washington, Division 3.

FILED SEPTEMBER 17, 2019

Neil Martin Fox, Law Office of Neil Fox, PLLC, 2125 Western Ave. Ste. 330, Seattle, WA, 98121-3573, for Appellant(s).

Timothy Rasmussen, Stevens County Prosecutor, 215 S Oak St., Colville, WA, 99114-2862, Will Morgan Ferguson, Attorney at Law, 4448 Sunburst Lane, Stevensville, MT, 59870, for Respondent(s).

OPINION PUBLISHED IN PART

Siddoway, J. ¶1 Charged with raping and drugging his three minor children for years, Kevin Peters pleaded guilty to two counts of first degree rape of a child and one count of first degree child molestation. At sentencing, the trial court sentenced him to a term of total confinement of 216 months to life, lifetime community custody, and dozens of community custody conditions.

¶2 Mr. Peters limits his challenges on appeal to a dozen community custody conditions, none of which were objected to in the trial court. In the published portion of this opinion, we touch on reasons why such conditions might not be reviewable for the first time on appeal. For the conditions that are eligible for review, we identify those that require modification and two that could benefit from clarification. The case is remanded for the entry of a judgment and sentence revised in accordance with the opinion.

FACTS

¶3 Because Kevin Peters pleaded guilty to the three charges, we need not go into the disturbing allegations of his years-long sexual abuse of his three children.

¶4 At sentencing, the trial court imposed the high end of the standard range and 33 community custody conditions requested by the State, 9 of which were identified as mandatory. Mr. Peters made no objection to the conditions at sentencing. He appeals.

ANALYSIS

¶5 For the first time on appeal, Mr. Peters challenges 12 of the community custody conditions imposed by the sentencing court.

¶6 The Sentencing Reform Act of 1981 (SRA)¹ provides that when a court sentences a person to a term of community custody, the court shall impose conditions of community custody. RCW 9.94A.703. The act identifies certain conditions as mandatory, others as waivable, and others as discretionary. Id. Among discretionary conditions that the court is authorized to impose are orders that an offender "[c]omply with any crime-related prohibitions." RCW 9.94A.703(3)(f). "Crime-related prohibitions" are orders "prohibiting conduct that directly relates to the circumstances of the crime for which the offender has been convicted." Former RCW 9.94A.030(13) (2008). They can include prohibitions that address some factor of the crime that might cause the convicted person to reoffend. State v. Hai Minh Nguyen , 191 Wash.2d 671, 684-85, 425 P.3d 847 (2018). The State need not establish that the conduct being prohibited directly caused the crime of conviction or will necessarily prevent the convict from reoffending. Id. at 685, 425 P.3d 847.

¶7 Challenges to sentencing conditions that were not raised in the trial court may not be eligible for review, given RAP 2.5(a) ’s general requirement for issue preservation. State v. Casimiro , 8 Wash. App. 2d 245, 249, 438 P.3d 137, review denied , 193 Wash.2d 1029, 445 P.3d 561 (2019). Appellate courts have authority to consider claims of manifest constitutional error that were not raised in the trial court, provided that an adequate record exists to consider the claim. Id. (citing RAP 2.5(a)(3) ; State v. McFarland , 127 Wash.2d 322, 333, 899 P.2d 1251 (1995) ). Additionally, in Bahl , our Supreme Court recognized that the non-rule based exception for illegal or erroneous sentences created by State v. Ford , 137 Wash.2d 472, 477-78, 973 P.2d 452 (1999), provides a basis for some unpreserved challenges to community custody conditions. State v. Bahl , 164 Wash.2d 739, 744, 193 P.3d 678 (2008).

¶8 Recent decisions have clarified that the non-rule based exception allowing review of unpreserved sentencing errors is limited by the concern for sentence conformity that is the basis for the exception. As explained in State v. Blazina :

We did not want to "permit[ ] widely varying sentences to stand for no reason other than the failure of counsel to register a proper objection in the trial court." Errors in calculating offender scores and the imposition of vague community custody requirements create this sort of sentencing error and properly fall within this narrow category. We thought it justifiable to review these challenges raised for the first time on appeal because the error, if permitted to stand, would create inconsistent sentences for the same crime and because some defendants would receive unjust punishment simply because his or her attorney failed to object.

182 Wash.2d 827, 833-34, 344 P.3d 680 (2015) (alteration in original) (citations and internal quotation marks omitted) (quoting Ford , 137 Wash.2d at 478, 973 P.2d 452 ). Blazina made clear that the exception for illegal or erroneous sentences does not apply when the challenged sentence term, had it been objected to in the trial court, was one that depends on a case-by-case analysis. Id. at 834, 344 P.3d 680. And courts never need consider claims of error—even constitutional error—that were invited or waived.

Casimiro , 8 Wash. App. 2d at 249, 438 P.3d 137 (citing State v. Studd , 137 Wash.2d 533, 545-49, 973 P.2d 1049 (1999) (invited error); State v. Mierz , 127 Wash.2d 460, 468, 901 P.2d 286 (1995) (waived)).

¶9 Even if an alleged error is preserved, it may not be ripe for review on its merits under a prudential ripeness test adopted by our Supreme Court in Bahl . It is ripe " ‘if the issues raised are primarily legal, do not require further factual development, and the challenged action is final.’ " State v. Cates , 183 Wash.2d 531, 534, 354 P.3d 832 (2015) (citations and internal quotation marks omitted) (quoting State v. Sanchez Valencia , 169 Wash.2d 782, 786, 239 P.3d 1059 (2010) ). Further factual development will be required if the condition would only violate the constitution if misapplied, but could be constitutionally applied depending on the circumstances of the enforcement. Id. at 535, 354 P.3d 832.

¶10 Before refusing to review a preenforcement challenge on direct appeal, a reviewing court must also consider the hardship to the offender. Id. at 535–39, 354 P.3d 832. In Sanchez Valencia and Bahl , our Supreme Court held that the risk of hardship will justify review before factual development if the challenged condition immediately restricts an offender’s conduct upon release from prison. Cates , 183 Wash.2d at 535-36, 354 P.3d 832.

¶11 To summarize, for an objection to a community custody condition to be entitled to review for the first time on appeal, it must (1) be manifest constitutional error or a sentencing condition that, as Blazina explains, is "illegal or erroneous" as a matter of law, and (2) it must be ripe. If it is ineligible for review for one reason, we need not consider the other.

¶12 We review conditions of community custody for abuse of discretion, reversing such conditions only if they are manifestly unreasonable. State v. Padilla , 190 Wash.2d 672, 677, 416 P.3d 712 (2018). The imposition of an unconstitutional condition is manifestly unreasonable. Sanchez Valencia , 169 Wash.2d at 792, 239 P.3d 1059.

I. THE CHALLENGE TO THE LIFETIME NO-CONTACT ORDER IS NOT MANIFEST CONSTITUTIONAL ERROR NOR IS IT ILLEGAL OR ERRONEOUS AS A MATTER OF LAW

¶13 Mr. Peters challenges "Other Condition" 1, that he have no contact with his children for life. He argues that the lifetime no-contact order violates his fundamental constitutional right as a parent to raise his children without government interference. See State v. Corbett , 158 Wash. App. 576, 598, 242 P.3d 52 (2010). The condition is ripe for review because it already restricts his actions. But it is not manifest constitutional error nor is it illegal or erroneous as a matter of law.

¶14 The alleged error raises a constitutional issue. Community custody conditions interfering with a parent’s fundamental constitutional right to parent may be imposed, but they "must be ‘sensitively imposed’ so that they are ‘reasonably necessary to accomplish the essential needs of the State and public order.’ "

In re Pers. Restraint of Rainey , 168 Wash.2d 367, 377, 229 P.3d 686 (2010) (quoting State v. Warren , 165 Wash.2d 17, 32, 195 P.3d 940 (2008) ). In the case of a no-contact order, the order, its scope, and its duration must all be reasonably necessary. Id. at 381, 229 P.3d 686. These are "fact-specific" inquiries. Id. at 382, 229 P.3d 686.

¶15 In Rainey , the Supreme Court struck a lifetime no-contact order in part and remanded for consideration of whether it was "reasonably necessary." But there—unlike here—the defense made a timely objection to the condition in the trial court. Id. at 373, 229 P.3d 686. The condition was struck and the case remanded because there was no indication that Rainey’s argument against its scope and duration had been considered by the trial court. Id. at 382, 229 P.3d 686.

¶16 If there was error in Mr. Peters’s case it is not manifest because actual prejudice is not shown. See McFarland , 127 Wash.2d at 333, 899 P.2d 1251. Victim impact statements considered by the sentencing court included a statement by Mr. Peters’s oldest child that "I hate your guts and I wish you were dead." Clerk’s Papers (CP) at 80. His middle child stated he "does not want his dad to get out (of prison) and hurt other people." CP at 87. His youngest child stated, "He should be in jail for longer than he will live," and "I hate you." CP at 78. In the CASA’s² statement at the sentencing hearing, she described Mr. Peters’s actions toward his children as "pervasive and protracted," "creat[ing] for them a world of fear," and that his actions were going to leave the children "vulnerable, and dysfunctional, I believe, for the rest of their lives."...