                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                         April 7, 2020

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
 STATE OF WASHINGTON,                                               No. 54421-1-II

                       Respondent,

        v.
                                                             UNPUBLISHED OPINION
 JAMES LEROY FRIEDRICH,

                       Appellant.



       SUTTON, J. — James Leroy Friedrich pled guilty to two counts of first degree possession

of depictions of a minor engaged in sexually explicit conduct. The trial court sentenced him to 89

months in confinement followed by 36 months in community custody on both counts to run

concurrently. Friedrich appeals his sentence, arguing that the trial court erred by (1) imposing a

sentence that exceeds the statutory maximum of 120 months by five months and (2) imposing three

unconstitutionally vague community custody conditions. The State concedes that the trial court

erred by imposing a sentence that exceeds the statutory maximum of 120 months by five months

and that the three community custody conditions need clarification on remand. Friedrich also

raises several issues in a statement of additional grounds (SAG).

       We accept the State’s concession that the length of Friedrich’s sentence exceeds the

statutory maximum by five months and remand to the trial court to remove five months from

Friedrich’s period of community custody. We hold that the community custody conditions 12 and

17 are unconstitutionally vague but condition 14 is not unconstitutionally vague, and we accept
No. 54421-1-II


the State’s concession that all three conditions require clarification by the trial court on remand.

We also hold that Friedrich raises no issues requiring reversal in his SAG.

                                              FACTS

       The State charged Friedrich with four counts of first degree possession of depictions of a

minor engaged in sexually explicit conduct, class B felonies. By agreement, the trial court

reviewed the arresting officer’s affidavit of facts for a factual basis to support the plea. The court

found support for each conviction. Friedrich pled guilty to two counts of first degree possession

of depictions of a minor engaged in sexually explicit conduct and the ability to withdraw the plea

if federal charges were filed.     The court found that Friedrich entered the plea knowingly,

intelligently, and voluntarily, and accepted the plea.

       After the plea, but before sentencing, defense counsel questioned whether Friedrich was

legally competent when entering his guilty plea. Friedrich’s counsel moved to withdraw the plea,

questioning Friedrich’s competency due to a letter sent by Friedrich asking the court for a reduced

sentence, contrary to the plea agreement previously entered. The trial court heard a lengthy

competency motion. The court denied the motion to withdraw the plea.

       The trial court sentenced Friedrich to 89 months confinement on the standard range of 77-

102 months. The court also ordered 36 months community custody on both counts to run

concurrently, subject to conditions outlined in Appendix H attached to the judgment and sentence.

       Appendix H included three community custody conditions which Friedrich challenges for

the first time on appeal: (1) condition 12: “Do not use/possess pornographic materials without

[community corrections officer] and/or [t]herapist approval;” (2) condition 14: “Do not frequent

places where minors congregate including but not limited to parks, pools, playgrounds, schools,



                                                  2
No. 54421-1-II


shopping malls and video arcades without CCO and/or [t]herapist approval;” and (3) condition 17:

“That you do not engage in a romantic/sexual relationship without prior approval from your CCO

and [t]herapist.” Clerk’s Papers (CP) at 164.

       The aggregate total of Friedrich’s sentence, 125 months, exceeds the statutory maximum

for his class B felonies by five months. There was no objection below to the error. Friedrich

appeals the judgment and sentence.

                                            ANALYSIS

       Friedrich argues that the trial court erred by imposing a sentence that exceeds the statutory

maximum of 120 months by five months. The State concedes that the trial court erred. We accept

the State’s concession and remand to the trial court to remove five months from Friedrich’s period

of community custody and amend the judgment and sentence accordingly.

       Friedrich next argues that the trial court erred by imposing three unconstitutionally vague

community custody conditions.          The State concedes that conditions 12 and 17 are

unconstitutionally vague and requests a remand for the court to clarify all three conditions. We

hold that the community custody conditions 12 and 17 are unconstitutionally vague but condition

14 is not unconstitutionally vague, and we accept the State’s concession that all three conditions

require clarification by the trial court on remand.

                                       I. SENTENCE LENGTH

       Friedrich argues that the trial court erred by imposing a sentence that exceeds the statutory

maximum of 120 months by five months. The State concedes that the trial court erred by imposing

a sentence that exceeds the statutory maximum of 120 months, and that under RCW 9.94A.701(9),

on remand, the court should reduce his term of community custody from 36 months to 31 months.



                                                  3
No. 54421-1-II


We accept the State’s concession and remand to the trial court to remove five months from

Friedrich’s period of community custody and amend the judgment and sentence accordingly.

       “Possession of depictions of a minor engaged in sexually explicit conduct in the first degree

is a class B felony punishable under chapter 9A.20 RCW.” RCW 9.68A.070(1)(b). 1 The

statutory maximum term of imprisonment for this offense may not exceed 120 months.

RCW 9A.20.021(1)(b). Pursuant to the Sentencing Reform Act:

       The term of community custody specified by this section shall be reduced by the
       court whenever an offender’s standard range term of confinement in combination
       with the term of community custody exceeds the statutory maximum for the crime
       as provided in RCW 9A.20.021.

RCW 9.94A.701(9) (emphasis added).

       The trial court imposed a standard range sentence of 89 months in addition to 36 months

of community custody pursuant to RCW 9.94A.701(1), for a total of 125 months. This sentence

exceeds the permitted statutory maximum and therefore the total term of the community custody

should be reduced to 31 months.

       Friedrich’s presence is not required at the hearing as the correction does not require the

discretion of the trial court and is “purely ministerial.” State v. Ramos, 171 Wn.2d 46, 49, 246

P.3d 811 (2011)




1
 The legislature amended RCW 9.68A.070 in 2019. LAWS OF 2019, ch. 128 § 6. Because these
amendments are not relevant here, we cite to the current version of this statute.


                                                4
No. 54421-1-II


           We accept the State’s concession and remand to the trial court to reduce the term of

Friedrich’s community custody to 31 months and amend the judgment and sentence accordingly.

Because reducing the length of community custody will not require the court to exercise discretion

as to any of the terms or conditions of that custody, the presence of Friedrich is not necessary at

the hearing.

                               II. COMMUNITY CUSTODY CONDITIONS

           Friedrich claims that the following community custody conditions are unconstitutionally

vague: 12, 14, and 17. The State concedes that conditions 12 and 17 are unconstitutionally vague,

but disagrees that condition 14 is unconstitutionally vague. The State agrees that a remand to

clarify all three conditions is appropriate. We hold that conditions 12 and 17 are unconstitutionally

vague, but that condition 14 is not unconstitutionally vague, and we accept the State’s concession

that on remand the trial court must clarify all three conditions. Each condition will be addressed

in turn.

           We review community custody conditions for an abuse of discretion. State v. Irwin, 191

Wn. App. 644, 652, 364 P.3d 830 (2015). Friedrich argues that this court reviews whether the trial

court had statutory authority to impose a community custody condition de novo, but his cited case2

deals with an issue of statutory interpretation which is not at issue here.            Imposing an

unconstitutional condition is always an abuse of discretion. Irwin, 191 Wn. App. at 652.




2
    State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007)


                                                  5
No. 54421-1-II


       “‘Illegal or erroneous sentences may be challenged for the first time on appeal.’” State v.

Bahl, 164 Wn.2d 739, 744, 193 P.3d 678 (2008) (quoting State v. Ford, 137 Wn.2d 472, 477, 973

P.2d 452 (1999)). A defendant may assert a challenge to a vague condition of community custody

if the challenge is sufficiently ripe. Bahl, 164 Wn.2d at 751. When the issue before us is a legal

question and additional facts do not help our inquiry, it is likely the issue is ripe to be heard. Bahl,

164 Wn.2d at 748.

       A community custody condition is unconstitutionally vague when it (1) fails to reasonably

inform a person of ordinary intelligence what behavior is prohibited, (2) fails to provide explicit

standards in order to prevent arbitrary and discriminatory application, or (3) places constraints on

the exercise of basic First Amendment rights and leaves individuals unsure of how to comply.

State v. Padilla, 190 Wn.2d 672, 679, 416 P.3d 712 (2018).

       To determine if a community custody condition is unconstitutionally vague, a two-pronged

analysis is applied. First, we must determine whether the condition “‘fail[s] to provide the kind of

notice that will enable ordinary people to understand what conduct it prohibits.’” Padilla, 190

Wn. 2d at 679 (quoting City of Chicago v. Morales, 527 U.S. 41, 56, 119 S. Ct. 1849, 144 L. Ed.

2d 67 (1999) (plurality opinion)). Second, the provision will be void if it authorizes and even

encourages arbitrary and discriminatory enforcement. Padilla, 190 Wn.2d at 679.

A. COMMUNITY CUSTODY CONDITION 12

       Friedrich claims that condition 12 is unconstitutionally vague and should be stricken from

his judgment and sentence. The State concedes that a remand is necessary for the court to clarify

the condition. We accept the State’s concession and remand for the trial court to clarify community

custody condition 12.



                                                   6
No. 54421-1-II


       Our Supreme Court has held that a community custody restriction “on accessing or

possessing pornographic materials is unconstitutionally vague.” Bahl, 164 Wn.2d at 758. Our

Supreme Court has also determined that the term “pornographic materials,” along with a provided

definition, includes “images of sexual intercourse, simulated or real, masturbation, or the display

of intimate body parts” was unconstitutionally vague as the prohibition against viewing depictions

of simulated sex would encompass any depictions including those in movies or television shows.

Padilla, 190 Wn.2d at 681 (internal quotation marks omitted). When the phrase is stated along

with the directive that a community corrections officer is, at his or her discretion, permitted to

determine what is permissible “the vagueness problem [is] more apparent, since it virtually

acknowledges that on its face it does not provide ascertainable standards for enforcement.” Bahl,

164 Wn.2d at 758.

       Here, the condition states that Friedrich must not “use/possess pornographic materials

without [community corrections officer] and/or [t]herapist approval.” CP at 164. This language

is void for vagueness as it fails to put Friedrich on notice with regard to what materials he is

prohibited from using or possessing. It also leaves enforcement solely in the hands of a CCO or

therapist which subjects him to arbitrary enforcement.

       The State asks us to remand to the trial court to strike “‘pornographic material’ from

condition 12 and replace it with the phrase ‘sexually explicit material as defined by RCW

9.68.130(2).’” Br. of Resp. at 6. Under RCW 9.68.130(2) “sexually explicit material” is defined

as:




                                                7
No. 54421-1-II


        [A]ny pictorial material displaying direct physical stimulation of unclothed
        genitals, masturbation, sodomy (i.e. bestiality or oral or anal intercourse),
        flagellation or torture in the context of a sexual relationship, or emphasizing the
        depiction of adult human genitals: PROVIDED HOWEVER, [t]hat works of art or
        of anthropological significance shall not be deemed to be within the foregoing
        definition.

        We hold that community custody condition 12 is unconstitutionally vague and remand for

the trial court to clarify the condition accordingly.

B. COMMUNITY CUSTODY CONDITION 14

        Friedrich claims that condition 14 is unconstitutionally vague and should be stricken from

the judgment and sentence. The State argues that condition 14 is not unconstitutionally vague, but

agrees that the condition on remand should be clarified. We hold that community custody

condition 14 is not unconstitutionally vague, but we accept the State’s concession and remand for

the trial court to clarify the condition.

        Our Supreme Court recently upheld a community custody condition prohibiting a

defendant from “loiter[ing]in nor frequent[ing] places where children congregate such as parks,

video arcades, campgrounds, and shopping malls,” because it “puts an ordinary person on notice

that they must avoid places where one can expect to encounter children, and it does not invite

arbitrary enforcement.” State v. Wallmuller, 194 Wn.2d 234, 237, 245, 449 P.3d 619 (2019).

        The State directs our attention to State v. Peters, 10 Wn. App. 2d 574, 455 P.3d 141 (2019)

(published in part). In Peters, we rejected a vagueness challenge to a community custody condition

that prohibited Peters from contact with minors unless approved by his CCO. Peters, 10 Wn. App.

2d at 589-90. We determined that chapter 9.68A RCW provides a clear meaning for the term

defining “minor” as “any person under eighteen years of age.” Peters, 10 Wn. App. 2d at 589-90;




                                                   8
No. 54421-1-II


RCW 9.68A.011(5). We remanded to the trial court to clarify the condition to state that Peters

could “have no contact with minors under 18” unless approved by his CCO as this language

provided notice to persons outside the criminal justice system of the specific restriction. Peters,

10 Wn. App. 2d at 589-90.

        We hold that although community custody condition 14 is not unconstitutionally vague,

we accept the State’s concession and remand for the trial court to clarify the condition.

C. COMMUNITY CUSTODY CONDITION 17

        Friedrich claims that condition 17 is unconstitutionally vague and should be stricken from

his judgment and sentence. The State concedes that condition 17 is unconstitutionally vague, but

claims that the trial court on remand should clarify it instead of striking it entirely. The State

proposes that the term “romantic” should be replaced with the term “dating.” We accept the State’s

concession that community custody condition 17 is unconstitutionally vague and remand for the

trial court to clarify the condition.

        In State v. Nguyen, 191 Wn.2d 671, 425 P.3d 847 (2018), our Supreme Court distinguished

“dating relationship” from “significant romantic relationship.” The court reasoned that “[t]he

terms ‘significant’ and ‘romantic’ are highly subjective qualifiers, while ‘dating’ is an objective

standard that is easily understood by persons of ordinary intelligence” and therefore “dating

relationship” is not an unconstitutionally vague term. Nguyen, 191 Wn.2d at 683. Additionally,

we remanded a community custody condition in Peters for the term “romantic relationship” to be

replaced with “dating relationship.” 10 Wn. App. 2d at 590-91




                                                 9
No. 54421-1-II


        Here, the trial court imposed condition 17 which states, “That you do not engage in a

romantic/sexual relationship without prior approval from your CCO and [t]herapist. CP at 164.

The State concedes that our Supreme Court has indicated that the word “romantic” is

unconstitutionally vague and therefore should be replaced with “dating.” Thus, we accept the

State’s concession that community custody condition 17 is unconstitutionally vague and remand

for the trial court to clarify the condition.

                             III. STATEMENT OF ADDITIONAL GROUNDS

        In all three of his SAG issues, Friedrich requests that we consider his behavior and actions

during his incarceration to reconsider the length of his sentence. Under RAP 10.10(a), a defendant

may file a SAG to “identify and discuss those matters related to the decision under review.” Here,

Friedrich’s SAG does not pertain to matters related to the decision under review; rather, they

exclusively contain pleas to this court for consideration of his good behavior. Consequently, we

hold that he raises no issues requiring reversal.




                                                    10
No. 54421-1-II


                                          CONCLUSION

        We accept the State’s concession regarding the length of Friedrich’s sentence and remand

to the trial court to remove five months from Friedrich’s period of community custody and amend

the judgment and sentence accordingly. We hold that conditions 12 and 17 are unconstitutionally

vague, but that condition 14 is not unconstitutionally vague, and remand for the trial court to clarify

the three community custody conditions and amend the judgment and sentence accordingly. We

also hold that Friedrich raises no issues requiring reversal in his SAG.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                       SUTTON, A.C.J.
 We concur:



 MAXA, J.




 GLASGOW, J.




                                                  11
