                                                                          FILED 

                                                                       APRIL 23, 2015 

                                                                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 


STATE OF WASHINGTON, 	                               )
                                                     )   No. 31678-5-III
                        Respondent,                  )   (consolidated with
                                                     )    No. 32259-9-III)
        v.                                           )
                                                     )
DANIEL L. SCHRECENGOST, 	                            )
                                                     )
                        Appellant.                   )
--------------------------------------------------   )
In re the Petition for Relief from Personal          )
Restraint of:                                        )
                                                     )
DANIEL L. SCHRECENGOST,                              )   UNPUBLISHED OPINION
                                                     )
                        Petitioner. 	                )

        SIDDOWAY, C.J. -After admitting to a year-long sexual relationship with a 12- and

later 13-year-old girl, 38-year-old Daniel Schrecengost pleaded guilty to two counts of

second degree child rape, reserving the right to request a Special Sexual Offender

Sentencing Alternative (SSOSA) disposition. Mr. Schrecengost acknowledged his crimes,

voluntarily sought therapy, and was otherwise eligible for the sentencing alternative. The

sentencing court refused to impose a special disposition, however, explaining that it didn't
Nos. 31678-5-III; 32259-9-III
State v. Schrecengost; PRP o/Schrecengost


think a SSOSA was appropriate given a sexual relationship initiated by Mr. Schrecengost

that it characterized as "way outside the bounds." Report of Proceedings (RP) at 95-96.

       Mr. Schrecengost argues on appeal that the trial court abused its discretion by

failing to take into account all the factors that weighed in favor of his eligibility for a

SSOSA disposition. He also argues that a sentencing condition imposed by the court-

prohibiting contact with minor females-failed to consider that Mr. Schrecengost has an

adolescent daughter and violated his right to parent. In a timely personal restraint

petition (PRP) consolidated with the appeal, Mr. Schrecengost seeks to withdraw his

guilty plea based on an alleged misunderstanding of mandatory terms of community

custody.

       The trial court did not abuse its discretion by basing its refusal to impose a SSOSA

on the extent and circumstances of Mr. Schrecengost's offense. As to the community

custody condition, the record could support an exception in the case of the daughter, and

because there was no express consideration of parent-child contact we remand for

clarification of the condition.

       For those reasons, because Mr. Schrecengost's statement of additional grounds

presents no meritorious challenge, and because his PRP fails to demonstrate actual and

substantial prejudice from any misunderstanding of community custody terms, we affirm

the judgment and sentence, remand for the limited purpose of clarifying the community

custody terms as they relate to Mr. Schrecengost's daughter, and dismiss his PRP.

                                               2

Nos. 31678-5-III; 32259-9-III
State v. Schrecengost; PRP ofSchrecengost


                     FACTS AND PROCEDURAL BACKGROUND

       Between August 2008 and July 2010, Mr. Schrecengost lived in a rental home

with a woman and her two children: a son and a daughter, J.G. Mr. Schrecengost rented

the upstairs of the home and the woman rented the downstairs, but 1.G. slept upstairs on a

couch in the living room.

       About a year into the shared rental, Mr. Schrecengost woke 1.G. up one night and

performed digital and oral intercourse on her. J.G. was then 12 years old. Mr.

Schrecengost continued to engage in this sexual activity with 1.G. until October 2009,

when he began engaging in penile/vaginal intercourse with her. He continued to engage

in the several sorts of intercourse with 1.G. at night and after school, until he moved out

of the shared home in early July 2010. After moving out, he continued to call and visit

1.G. and her family, and in late August 2010 came to the home when J.G. was alone and

had penile/vaginal intercourse with her.

       In September 2011, J.G. disclosed to her mother that Mr. Schrecengost had

engaged in sexual intercourse with her during the time he lived in the home. J.G.'s

mother filed a police report and broke off contact with Mr. Schrecengost. When he used

a key that he had retained and attempted to enter the home in October 2011, 1.G.'s

mother barred the door, and thereafter filed a burglary report, changed the locks, and

obtained an order of protection on behalf of J.G.




                                              3

Nos. 31678-5-111; 32259-9-111
State v. Schrecengost; PRP o/Schrecengost


       On the day the protective order was obtained, Mr. Schrecengost voluntarily went

to the offices of the Spokane Police Department where he waived his Miranda l rights and

participated in an interview, largely corroborating J.G.'s accusations. In a voicemail that

Mr. Schrecengost left for J.G.'s mother thereafter, he stated that he fell in love with a

"beautiful young girl" and that he believed she was his "soul mate" and that he should not

go to prison for falling in love. Clerk's Papers (CP) at 1.

       Mr. Schrecengost was charged with four counts of second degree rape of a child. 2

He agreed to plead guilty to two counts with the understanding that he was free to seek a

SSOSA disposition.

       The principal issue at the contested sentencing hearing was whether Mr.

Schrecengost should be given a standard range sentence or the sentencing alternative he

was requesting. Substantial evidence was presented by both sides. The court was

presented with a presentence investigation report; letters from treatment providers to Mr.

Schrecengost; a risk assessment by Dr. Paul Wert, to whom Mr. Schrecengost had been

referred by his lawyer; a polygraph test result; and a packet of seven letters delivered in

support of Mr. Schrecengost. The trial court also reviewed the probable cause affidavit.



       1 Miranda   v. Arizona, 384 U.S. 436,86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
       2 "A person is guilty of rape of a child in the second degree when the person has
sexual intercourse with another who is at least twelve years old but less than fourteen
years old and not married to the perpetrator and the perpetrator is at least thirty-six
months older than the victim." RCW 9A.44.076.

                                              4

Nos. 31678-5-111; 32259-9-111
State v. Schrecengost; PRP ofSchrecengost


Four individuals appeared to make statements in opposition to granting the request for a

SSOSA sentence: lG., her mother, her brother, and J.G.'s boyfriend, who had encouraged

her to report the rapes. Mr. Schrecengost's employer, his aunt, friends, a cousin, and his

mother made statements on his behalf. Mr. Schrecengost also called Priscilla Hannon, a

sex offender treatment provider, to testify to Mr. Schrecengost's exemplary record of

attendance and participation ina treatment group that she facilitated.

       The trial court denied Mr. Schrecengost's request for a SSOSA sentence,

explaining that what it "came down to" for the court was "fairly long-term" contact

"between someone who is 37 or 38 and someone who is 12 or 13"-something the court

regarded as "way outside the bounds." RP at 95-96. It concluded, "[I]s it appropriate to

sentence to a SSOSA in this type of a situation? My answer is, no." RP at 96.

       The court imposed the required indeterminate sentence, with the minimum being

102 months, the low end of the standard range. Among the conditions imposed for the

period of community custody was that Mr. Schrecengost "not have contact with female

minors unless such contact is approved by the therapist and CCO [community custody

officer] in writing." CP at 65. Mr. Schrecengost appeals.

                                       ANALYSIS

       Mr. Schrecengost challenges the court's denial ofa SSOSA sentence and the

community custody term that could prevent him from having contact with his daughter,

who was 11 years old at the time of sentencing.

                                             5

Nos. 31678-5-111; 32259-9-111
State v. Schrecengost; PRP ofSchrecengost


                                      Denial ofSSOSA

       The Sentencing Reform Act of 1981, chapter 9.94A RCW, generally provides a

standard range of punishment for criminal offenses. The SSOSA, a special provision for

certain qualifying sex offenders, provides an alternative sentence permitting community

supervision and treatment in lieu of incarceration.

       At the time of Mr. Schrecengost's offenses in 2009 and 2010, an offender was

eligible for the special sex offender sentencing alternative if

          • 	 He or she was convicted of a sex offense that is not a serious violent
              offense or rape in the second degree, and

          • 	 He or she has no prior convictions for a felony sex offense in this or
              any other state; and no adult conviction for a violent offense in the
              five years prior to the date the current offense was committed; and

          • 	 The offense did not result in substantial bodily harm to the victim;
              and

          • 	 There was an established relationship/connection to the victim other
              than that resulting from the crime; and

          • 	 If the conviction results from a guilty plea, the offender must
              voluntarily and affirmatively admit to committing all of the elements
              of the crime; and

          • 	 The standard sentence range for the offense includes the possibility
              of confinement of less than 11 years.

Former RCW 9.94A.670(2) (2010).

       If a court finds that an offender is eligible for the alternative, it may order an

examination to determine whether the offender is amenable to treatment. RCW



                                               6

Nos. 31678-5-111; 32259-9-II1
State v. Schrecengost; PRP ofSchrecengost


9.94A.670(3). After receiving the reports, the court shall determine whether the

alternative sentence "is appropriate." RCW 9.94A.670(4). The court shall consider

       whether the offender and the community will benefit from use of this
       alternative, consider whether the alternative is too lenient in light of the
       extent and circumstances of the offense, consider whether the offender has
       victims in addition to the victim of the offense, consider whether the
       offender is amenable to treatment, consider the risk the offender would
       present to the community, to the victim, or to persons of similar age and
       circumstances as the victim, and consider the victim's opinion whether the
       offender should receive a treatment disposition under this section. The
       court shall give great weight to the victim's opinion whether the offender
       should receive a treatment disposition under this section.

Former RCW 9.94A.670(4). If the sentence is imposed over the victim's objection, the

court must enter written findings stating its reasons for imposing the treatment disposition.

       The grant ofa SSOSA is entirely at a trial court's discretion, so long as the court

does not abuse its discretion by denying a SSOSA on an impermissible basis, such as the

defendant's race, sex, or religion. State v. Sims, 171 Wn.2d 436,445,256 P.3d 285

(2011). A defendant may appeal if the trial court fails to comply with the procedural

requirements of the SRA, however, or if the sentence is alleged to be unconstitutional.

State v. Osman, 126 Wn. App. 575, 579, 108 P.3d 1287 (2005). In order for a "procedural

appeal to be allowed ... it must be shown that the sentencing court had a duty to follow

some specific procedure required by the SRA, and that the court failed to do so." Id.

(citing State v. Mail, 121 Wn.2d 707,712,854 P.2d 1042 (1993)).




                                             7

Nos. 31678-5-111; 32259-9-111
State v. Schrecengost; PRP ofSchrecengost


       Mr. Schrecengost argues that because the factors to be considered by the court in

determining whether a SSOSA is appropriate are set out in the conjunctive in the statute,

the sentencing court abused its discretion when it elevated the concern that a SSOSA is

"too lenient in light of the extent and the circumstances of the offense" above the others.

RCW 9.94A.670(4). He points out that he met "each and every one of the criteria" for a

SSOSA, and that Dr. Wert found him amenable to treatment. Br. of Appellant at 5-6.

       The legislature has required an offender to meet all of the criteria to qualify for a

SSOSA, however, and the plain language ofRCW 9.94A.670(4) permits a sentencing

court to recognize a single factor as especially significant. Mr. Schrecengost does not

demonstrate that the sentencing court failed to consider the other factors and the record

reveals the opposite: it shows that the court reviewed the materials submitted, heard from

supporters of Mr. Schrecengost and the victim, heard Ms. Hannon's testimony and the

argument of counsel, and even commented that "[c]ertainly there is a possibility that Mr.

Schrecengost would do well under a SSOSA .... Again, the issue comes back to what 1

think is the appropriate sentence in this case at this point in time given the statutory

factors." RP at 95. Moreover, the exceptional impropriety of the relationship was

reflected in the opposition of the victim and her family members to Mr. Schrecengost

receiving a SSOSA, and the victim's opposition is entitled to great weight.

       Mr. Schrecengost fails to demonstrate a procedural error or abuse of discretion by

the sentencing court.

                                              8

Nos. 31678-5-III; 32259-9-III
State v. Schrecengost; P RP ojSchrecengost


                               Community custody condition

       Mr. Schrecengost's second assignment of error is that the condition prohibiting

him from having contact with female minors violates his fundamental rights as a parent

insofar as it prevents him from having contact with his daughter, A.S.

       The SRA authorizes the trial court to impose "crime-related prohibitions" as a

condition of a sentence. RCW 9.94A.505(8). A "crime-related prohibition" prohibits

"conduct that directly relates to the circumstances of the crime for which the offender has

been convicted." RCW 9.94A.030(10). We generally review the imposition of crime-

related prohibitions for abuse of discretion, but we more carefully review conditions that

interfere with fundamental constitutional rights, such as the right to the care, custody, and

companionship of one's children. In re Pers. Restraint ojRainey, 168 Wn.2d 367,374,

229 P.3d 686 (2010). Where there is such interference, the conditions "must be

'sensitively imposed' so that they are 'reasonably necessary to accomplish the essential

needs of the State and public order.'" Id. (quoting State v. Warren, 165 Wn.2d 17, 32,

195 P.3d 940 (2008».

       In State v. Berg, in which Mr. Berg had been convicted of molesting his wife's 14­

year-old daughter, the sentencing court imposed a no-contact order covering all minor

females, thereby extending to Mr. Berg's 2-year-old biological daughter. State v. Berg,

147 Wn. App. 923,941, 198 P.3d 529 (2008), overruled on other grounds by State v.

Mutch, 171 Wn.2d 646, 254 P.3d 803 (2011). The court upheld the no-contact order as a

                                             9

Nos. 31678-5-III; 32259-9-III
State v. Schrecengost; PRP ofSchrecengost


reasonable crime-related prohibition, stating that the 14-year-old victim had lived in a

home with Berg acting as her parent when the abuse occurred, and "the court reasonably

feared that it would be putting A.B. in the same situation that A.A. was in when Berg

sexually abused her. Thus, the trial court's order restricting contact was reasonably

necessary to protect A.B." Berg, 147 Wn. App. at 942-43.

       Other reported cases have found error when a sentencing court imposes a

restriction on parental contact with a child. In State v. Letourneau, 100 Wn. App. 424,

427,997 P.2d 436 (2000), for example, Ms. Letourneau was a teacher and the victim was

a male student with whom she had sex; he was not a family member and did not live in

her home. Ms. Letourneau's evaluators were unanimous that she was not a pedophile and

nothing in the record suggested she posed a threat to her own children. Id. at 428-29.

       In State v. Ancira, 107 Wn. App. 650,654-55,27 P.3d 1246 (2001), in which the

defendant had been convicted of violating a domestic violence no-contact order obtained

by his wife, a sentencing condition prohibiting him from all contact with his children was

based solely on their having witnessed domestic violence between their father and

mother. Observing that the parents were in the process of dissolving their marriage and

an existing order prohibited the defendant from contact with his wife, the appellate court

struck the condition prohibiting contact with the children as a matter better addressed by

the family court in the dissolution proceeding.



                                           ·10 

Nos. 31678-5-111; 32259-9-111
State v. Schrecengost; PRP o/Schrecengost


       In support of his argument that his daughter does not need protection from him,

Mr. Schrecengost points to a pretrial order that had allowed him to have telephone

contact with his daughter, A.S., and allowed for supervised visits with the consent of

A.S. 's mother, thereby suggesting that "the State had little fear that Mr. Schrecengost's

continued contact with his daughter would be detrimental to her." Br. of Appellant at 13.

Since there was no specific discussion of A.S. at sentencing, he argues that at a minimum

the sentence needs to be clarified.

       The State denies the inference that it was previously unconcerned about Mr.

Schrecengost's contact with A.S., pointing out that the earlier order was a pretrial release

condition, at a time when Mr. Schrecengost enjoyed the presumption of innocence.

       In this case, like Letourneau, the court was presented with no expert opinion that

Mr. Schrecengost presents a risk to his daughter. Given the pretrial order, given the risk

assessment, given the absence of any discussion whether A.S. should or should not be

included in the prohibition on contact, and given the liberty interest at stake, we remand

the sentence for the limited purpose of clarifying the intended scope of the prohibition of

contact with female minors.

                      STATEMENT OF ADDITIONAL GROUNDS

       In a pro se statement of additional grounds (SAG), Mr. Schrecengost complains of

ineffective assistance of counsel and bias on the part of the sentencing court.




                                             11 

Nos. 31678-5-III; 32259-9-II1
State v. Schrecengost; PRP a/Schrecengost


       Ineffective assistance 0/ counsel. Mr. Schrecengost complains that his lawyer

failed to object during sentencing to a "plethora of false matters," and that his lawyer

failed to investigate or educate himself about Mr. Schrecengost's case. SAG at 6. To

succeed on a claim of ineffective assistance, Mr. Schrecengost must show that counsel's

performance was both deficient and that the deficient performance prejudiced him.

       Mr. Schrecengost first points to several instances where his lawyer allegedly

should have objected to statements being made by J.G. and her family members, or

disputed points being made by the State during the sentencing hearing. See SAG at 6-8.

The discrepancies he points out are sometimes inconsequential and sometimes matters

that were more effectively addressed by the affirmative testimony of Ms. Hannon or by

argument. 3 Given the purpose of a sentencing hearing-at which the defendant's guilt is

a given-attempted cross-examination of victims, friends or family who come to court to

express their feelings is a dubious strategy. This was illustrated when the State briefly

tried it below, drawing the court's warning that a sentencing hearing is not a probation

hearing and is not a trial. Mr. Schrecengost's lawyer was wise to forgo it. And Mr.

Schrecengost's suggestion that his lawyer should have characterized J.G. as the aggressor

in their relationship and pointed out the "hundreds" of love letters she sent him illustrates

how important it was that Mr. Schrecengost's lawyer was making the strategic decisions.



       3   E.g., by pointing out in argument that Mr. Schrecengost had a G.E.D. RP at 79.

                                             12 

Nos. 31678-5-111; 32259-9-111
State v. Schrecengost; PRP o/Schrecengost


To argue that 12-year-old lG. had "enticed" Mr. Schrecengost at the same time he was

requesting a treatment alternative would have been ill-considered, to say the least.

       The record reveals an able handling of the sentencing hearing by a well-prepared

lawyer. It is clear from the trial court's announcement of its sentence and its reasons that

denial of the SSOSA would not have been affected by the details touched upon in the

SAG. We find neither deficient representation nor prejudice.

       Mr. Schrecengost also argues that his lawyer failed to interview witnesses and

failed to adequately acquaint himself with the facts to be able to properly advocate. But

the record reveals that Mr. Schrecengost's lawyer presented written evidence, called Ms.

Hannon, lodged appropriate objections, and actively and zealously advocated for his

client. Here, too, Mr. Schrecengost shows neither deficient representation nor prejudice.

       Judicial bias. Mr. Schrecengost contends that the sentencing judge's statements

revealing his personal attitude toward the underlying offense revealed bias.

       In considering whether a SSOSA is appropriate, the trial court is required to

consider whether the alternative is "too lenient in light of the extent and circumstances of

the offense." RCW 9.94A.670(4). Mr. Schrecengost fails to explain how the sentencing

court could have fulfilled its obligation without making a normative judgment about that

factor. In any event, Mr. Schrecengost did not raise a claim of judicial bias or a violation

of the appearance of fairness at the trial court. An appearance of fairness claim is not




                                             13 

Nos. 31678-5-III; 32259-9-III
State v. Schrecengost; PRP ofSchrecengost


constitutional in nature and may not be raised for the first time on appeal. RAP 2.5(a);

State v. Morgensen, 148 Wn. App. 81, 90-91,197 P.3d 715 (2008).

                          PERSONAL RESTRAINT PETITION

       In a timely personal restraint petition Mr. Schrecengost argues that his plea

agreement was based upon misinformation, because nowhere in his plea statement was

there any disclosure that he would be subject to mandatory evaluation for treatment for

sexual deviancy, yet it was included as a condition of his community custody. He

contends that because of the misinformation, his guilty plea was involuntary and invalid;

that it thereby constitutes a manifest injustice; and that we are required to allow him to

withdraw his plea. His argument conflates standards and results that do not apply to a

collateral attack such as his PRP.

       An involuntary plea constitutes a manifest injustice within the meaning of erR

4.2(f). State v. Walsh, 143 Wn.2d 1, 6, 17 P.3d 591 (2001). Thus, if a motion to

withdraw the plea is made before judgment, a trial court must allow a defendant to

withdraw it under that criminal rule.

       If a motion to withdraw a plea is made after judgment, it is governed by erR

7 .8(b), a potentially higher standard, in addition to erR 4.2(f). In re Pers. Restraint of

Stockwell, 179 Wn.2d 588, 595, 602, 316 P.3d 1007 (2014). On direct appeal,

misinformation giving rise to an involuntary plea would be presumed prejudicial and,

unless waived, would support a motion to withdraw the plea. Id. at 596.

                                              14 

Nos. 31678-5-111; 32259-9-111
State v. Schrecengost; PRP ofSchrecengost


       Challenges raised in a PRP are subject to an even more demanding standard. "A

PRP ... is not a substitute for an appeal." Id. "[C]ollateral review is distinct from a

direct appeal because collateral relief 'undermines the principles of finality of litigation,

degrades the prominence of the trial, and sometimes costs society the right to punish

admitted offenders.'" Id. at 597 (quoting In re Pers. Restraint ofHagler, 97 Wn.2d 818,

824,650 P.2d 1103 (1982)). In Stockwell, addressing a question of first impression, our

Supreme Court clarified prior decisions, holding that a petitioner seeking to withdraw an

allegedly involuntary plea based on misinformation (in Stockwell, a misstatement of the

statutory maximum) "is required to satisfy the actual and substantial prejudice standard

on collateral attack." Id. at 603.

       A petitioner must support a PRP with facts or evidence upon which the claims of

unlawful restraint are based; conclusory statements alone are insufficient. RAP

16.7(a)(2)(i); In re Pers. Restraint of Williams, 111 Wn.2d 353,365, 759 P.2d 436

(1988). The evidence must consist of more than speCUlation, conjecture, or inadmissible

hearsay. In re Pers. Restraint ofSpencer, 152 Wn. App. 698, 707, 218 P.3d 924 (2009)

(quoting In re Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992)).

       Mr. Schrecengost assumes that a guilty plea based on misinformation automatically

entitles him to withdraw his guilty plea, quoting In re Hews, 99 Wn.2d 80, 88, 660 P.2d

263 (1983) as stating "[a]n invalid plea of guilty constitutes actual prejudice." Reply Br.

at 6. He takes the statement out of context. In Hews, the court applied the requirement

                                              15 

Nos. 31678-5-III; 32259-9-III
State v. Schrecengost; PRP ofSchrecengost


that a petitioner must show actual prejudice. It identified a clear misunderstanding that

was reflected in the record of the plea hearing and found that it amounted to a prima facie

showing of prejudice, but not proof of prejudice. As the court explained, a petition that

fails to make a threshold showing of actual prejudice should be dismissed; a petition that

makes a convincing showing of actual prejudice should be granted; and a petition that falls

in between-making a prima facie showing of prejudice but on an insufficient record and

therefore not convincing-may be remanded for further hearing. The Hews court

remanded Mr. Hews petition for a hearing but with the admonition, "This being a

collateral review, petitioner has the burden of establishing that, more likely than not, he

was actually prejudiced by the claimed error." [d. at 89.

       Mr. Schrecengost has made no effort to identifY facts or evidence showing that he

was actually prejudiced by the error he alleges, evidently because he viewed relief as

automatic. The declaration supporting his PRP offers only that "had I been duly

informed that I would be subject to a mandatory evaluation for treatment for sexual

deviancy as a result of my guilty plea, I would not have entered into such a plea in this

matter." PRP at 28. But "a materiality inquiry, involving a hindsight review of

defendant's motivations, is distinct from consideration of actual and substantial prejudice,

which looks to the practical effects of a sentence." Stockwell, 179 Wn.2d at 602.

       Mr. Schrecengost fails to meet his burden of demonstrating actual and substantial

prejudice.

                                             16
Nos. 31678-5-111; 32259-9-111
State v. Schrecengost; PRP o/Schrecengost


       We affinn the judgment and sentence, remand to the trial court for the purpose of

clarifying the community custody provision as it relates to contact with A.S., and dismiss

the personal restraint petition.




WE CONCUR: 





       Brown, 1.




                                            17 

