                                                                          Fl LED
                                                                       MARCH 15, 2016
                                                                 In the Office of the Clerk of Court
                                                                WA State Court of Appeals, Division III




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

In re the Matter of the Personal Restraint    )
of                                            )         No. 33554-2-111
                                              )
                                              )
                                              )
CHRISTOPHER JAMES RIDLEY.                     )
                                              )         UNPUBLISHED OPINION
                                              )

       FEARING, J. -   Christopher Ridley seeks relief from personal restraint imposed by

his 2012 Yakima County conviction on a guilty plea of attempted first degree child

molestation. The judgment and sentence became final on April 11, 2012, the date of

filing. RCW 10.73.090(3)(a). Two years later, Ridley filed a first personal restraint

petition, contending the trial court used an incorrect offender score and erred by imposing

noncrime-related conditions of community custody. We dismissed his first petition as

untimely and mixed under RCW 10.73.090(1) and RCW 10.73.100. See In re Pers.

Restraint ofRidley, no. 32445-1-111 (Wash. Ct. App. 2015). When one or more of the

grounds asserted for relief falls within the exceptions to the one-year statutory bar in

RCW 10.73.100 and one or more does not, we characterize the petition as "mixed" and
No. 33554-2-111
In re Pers. Restraint ofRidley


dismiss the petition. In re Pers. Restraint of Weber, 155 Wn.2d 247, 255, 284 P.3d 734

(2012); RCW 10.73.100.

       Three months after dismissal of his first petition, Christopher Ridley filed this

second personal restraint petition. He again challenges the conditions of community

custody and the offender score. He adds a new claim that the judgment and sentence

incorrectly computed the amount of legal financial obligations.

       We hold that two of Christopher Ridley's conditions of community custody are

invalid on the face of the judgment and sentence. We also hold that the trial court

incorrectly computed the amount of the legal financial obligations. As a result, we

remand for resentencing. We dismiss the remaining claims.

                                 STANDARDS OF REVIEW

       Christopher Ridley filed this personal restraint petition, like the previous one,

more than one year after finality of his case. Therefore, RCW 10.73.090(1) bars the

petition as untimely unless the judgment and sentence is invalid on its face, the trial court

lacked competent jurisdiction, or the petition is based solely on one or more of the

exceptions set forth in RCW 10.73.100(1)-(6). These exceptions include: (1) the

petitioner has newly discovered evidence, (2) the conviction statute was unconstitutional,

(3) the conviction violated double jeopardy, (4) the petitioner pled not guilty and the

evidence was insufficient to support conviction, (5) the sentence exceeded the trial




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No. 33554-2-111
In re Pers. Restraint ofRidley


court's jurisdiction, or (6) there was a significant intervening change in the law material

to the conviction or sentence. RCW 10.73.100.

        When one or more of the grounds asserted for relief falls within the exceptions in

RCW 10.73.100 and one or more does not, the petition is "mixed" and must be

dismissed. In re Pers. Restraint of Turay, 150 Wn.2d 71, 85-86, 74 P.3d 1194 (2003);

RCW 10.73.100. This court need not state which claims are time-barred under RCW

10.73.100 and which are not, and will not decide claims that are not time-barred. Turay,

150at86.

       This court lacks jurisdiction to consider a successive personal restraint petition

unless the petitioner certifies that he has not filed a previous petition on similar grounds

and shows good cause why he did not raise any new grounds in the previous petition.

RCW 10.73.140. Although Christopher assigns as errors rulings, in this second petition,

he challenged in his first petition, the second petition is not barred as successive, because

the issues raised in the prior petition were not determined on the merits. See In re Pers.

Restraint of Hankerson, 149 Wn.2d 695, 703, 72 P.3d 703 (2003). "Where claims are

dismissed because they are contained in a mixed petition[,] the claims have not been

considered on the merits; the dismissal is on procedural grounds." Hankerson, 149

Wn.2d at 704.

       Christopher Ridley's claims challenging the facial validity of his judgment and

sentence are reviewable under RCW 10.73.090(1). Hankerson, 149 Wn.2d at 704. Any

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No. 33554-2-111
In re Pers. Restraint ofRidley


other claims must qualify for one or more of the exceptions in RCW 10.73.100(1)-(6).

Generally a judgment and sentence is invalid on its face if the fatal defect is apparent on

the face of the judgment without further elaboration. See In re Pers. Restraint of

Goodwin, 146 Wn.2d 861, 866, 50 P.3d 618 (2002). The judgment is invalid if the trial

court exercised a power it did not have or imposed a sentence that was not authorized by

law. In re Pers. Restraint of Snively, 180 Wn.2d 28, 32, 320 P.3d 1107 (2014); In re

Pers. Restraint of Coats, 173 Wn.2d 123, 135-36, 267 P.3d 324 (2011).

                       COMMUNITY CUSTODY CONDITIONS

       Under RCW 9.94A.507(5), a person convicted of attempted first degree child

molestation shall be sentenced to community custody under the supervision of the

Department of Corrections for any time he or she is released from total confinement

before expiration of the maximum sentence. The sentencing court is required to impose

certain conditions and has discretion to impose others, such as crime-related prohibitions,

affirmative conditions, and statutorily authorized infringements of certain constitutional

rights. RCW 9.94A.505(8) (2010); former RCW 9.94A.703 (2009); State v. Bahl, 164

Wn.2d 739, 744, 193 P.3d 678 (2008); State v. Riles, 135 Wn.2d 326, 346-47, 957 P.2d

655 (1998), abrogated on other grounds by State v. Valencia, 169 Wn.2d 782, 239 P.3d

1059 (2010). We review the trial court's imposition of conditions of community custody

for abuse of discretion. Valencia, 169 Wn.2d at 791-92.




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No. 33554-2-III
In re Pers. Restraint of Ridley


       Christopher Ridley challenges six conditions of community custody imposed by

the trial court:

       [1] Have no direct or indirect contact with victim or the victim[']s family
       of this offense, through either direct or indirect means.

       [2] Report no later than the next business day after sentencing or release
       from jail to a Washington State approved alcohol/drug assessment facility
       for evaluation. Cooperate fully with the facility and immediately enter into
       and complete any recommended treatment program by the end of
       superv1s10n.

       [3] Hold no position of authority or trust involving children.

       [4] Have no contact with minor children other than own biological
       children. Any other minor contact must have the approval of your sexual
       deviancy therapist and/or supervising Community Corrections Officer.
       Approved contact shall only be in the presence of a responsible adult who
       has been approved in advance as a sponsor by the deviance therapist and/or
       Community Corrections Officer.

       [5] Do not purchase, possess, or view any pornographic material in any
       form as defined by the treatment provider.

       [6] Submit to regular polygraph and plethysmograph examinations about
       deviant sexual behavior upon the request of the supervising Community
       Corrections Officer.

Judgment and sentence at 4.

       Christopher Ridley first contends conditions 2, 3, and 4 are invalid because they

are not crime related. This claim, however, requires consideration of the facts of this case

and involves the exercise of the trial court's discretion. Consequently, this claim cannot




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No. 33554-2-111
In re Pers. Restraint ofRidley


be determined from the face of the judgment and sentence and is not reviewable under

RCW 10.73.090(1).

       Christopher Ridley also contends his challenge to conditions 2, 3, and 4 qualifies

for the exception found in RCW 10.73.100(5). He contends that the three conditions

exceed the jurisdiction of the court because the court violated RCW 9.94A.030(10) when

it imposed prohibitions that were not crime related. The statute defines "crime-related

prohibition" as a court order prohibiting conduct that directly relates to the circumstances

of the crime. But a sentence i's not jurisdictionally defective merely because it violates a

statute or is based on a misinterpretation of a statute. In re Pers. Restraint ofRichey, 162

Wn.2d 865, 872, 175 P.3d 585 (2008); In re Pers. Restraint of Vehlewald, 92 Wn. App.

197, 201-02, 963 P.2d 903 (1998). Consequently, this court is barred from considering

whether the conditions are crime related.

       Christopher Ridley next contends that conditions 1, 3, 4, 5, and 6 are invalid on

the face of the judgment and sentence because they are unconstitutionally vague or

violate other constitutional rights. A condition of community custody is

unconstitutionally vague if ordinary people cannot understand what conduct is

proscribed. State v. Bahl, 164 Wn.2d 739, 754, 193 P.3d 678 (2008).

       Conditions 1, 3, and 4 prohibit Christopher Ridley from contact with the victim or

the victim's family, from holding a position of authority or trust with children, and from

contact with a nonbiological child except in the presence of an approved responsible

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No. 33554-2-111
In re Pers. Restraint ofRidley


adult. Persons of ordinary intelligence can understand what these conditions proscribe.

Consequently, they are not unconstitutionally vague. Furthermore, they are not

constitutionally overbroad, because a convicted defendant's freedom of association may

be restricted when reasonably necessary to accomplish the state's interest in protecting

the public. See Riles, 135 Wn.2d at 346-47. These conditions are not invalid for the

purposes of RCW 10.73.090(1).

       Condition 5, however, prohibits the purchase, possession, or viewing of

pornographic material. In Bahl, 164 Wn.2d at 758, the Washington Supreme Court held

that a restriction on accessing or possessing pornographic material is unconstitutionally

vague. Thus, condition 5 is a facially invalid defect in Christopher Ridley's judgment

and sentence because the trial court imposed a sentence not authorized by law. Snively,

180 Wn.2d at 32.

       The requirement in condition 6 that Christopher Ridley submit to plethysmograph

examinations upon the request of the community corrections officer violates his

constitutional right to be free from bodily intrusions. State v. Land, 172 Wn. App. 593,

605, 295 P.3d 782 (2013). Plethysmograph testing does not serve a monitoring purpose;

rather, it is a gauge for determining immediate sexual arousal level, used as part of a

treatment program for sexual offenders. Riles, 135 Wn.2d at 345. This "treatment

device" may be imposed as part of a crime-related treatment or counseling, but is not

properly ordered by a community corrections officer to monitor compliance with

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No. 33554-2-III
In re Pers. Restraint of Ridley


ordinary community custody conditions. Id. Thus, condition 6 is also a facially invalid

defect in the judgment and sentence.

       Both condition 5 and condition 6 constitute facially invalid conditions of

Christopher Ridley's judgment and sentence under RCW 10.73.090(1). These conditions

of community custody must be corrected on remand to the superior court.

                                   OFFENDER SCORE

       As he did in his first personal restraint petition, Christopher Ridley contends that

his prior class B and class C juvenile adjudications should have washed out. He contends

this claim is reviewable under RCW 10.73.100(5) because the offender score exceeded

the sentencing court's jurisdiction. But a mistake in calculating an offender score does

not deprive a court of jurisdiction. In re Pers. Restraint ofBanks, 149 Wn. App. 513,

517, 204 P .3d 260 (2009) (citing Vehlewald, 92 Wn. App. at 200-01 ). Furthermore, this

issue was decided on the merits in the first petition and Mr. Ridley provides no good

cause for addressing it again. RCW 10.73.140. See Ridley, no. 32445-1-III at 2-3.

             CALCULATION OF LEGAL FINANICIAL OBLIGATIONS

       Christopher Ridley contends his judgment and sentence is invalid on its face

because the court incorrectly calculated his legal financial obligations. The court

assigned costs of $500 for the crime penalty assessment, $200 for the filing fee, $600 for

the court-appointed attorney, and $100 for the DNA (deoxyribonucleic acid) collection




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No. 33554-2-111
In re Pers. Restraint ofRidley


fee, for a total obligation of $1,500. The sum of these costs, however, is actually $1,400.

Accordingly, the amount must be corrected on remand to the superior court.

                                     CONCLUSION

       We remand Christopher Ridley's judgment and sentence to the Yakima County

Superior Court for the striking of the community custody conditions regarding

pornography and plethysmograph testing and for correction of the error in computing the

amount of the legal financial obligations. Ridley's request for counsel is referred to the

superior court. RAP 16.12; RAP 16.15(g). The remaining portion of his petition is

dismissed as untimely. RCW 10.73.090(1).
                                                                                              i
      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.


                                                 ~                J
                                              Fearing,~

WE CONCUR:




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Siddoway, C.J.
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