        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


 THE STATE OF WASHINGTON,                                       No. 81368-4-

                         Appellant,                             DIVISION ONE

                 v.                                             UNPUBLISHED OPINION

 JOHN FREDRICK FLYNN, III,

                          Respondent.


        Hazelrigg, J. — John F. Flynn, III was resentenced in 2016 for crimes

committed in 1993.         In December 2018, he was found in violation of several

conditions of community custody at a superior court hearing and received a 120-

day jail sanction. Flynn appeals the 2018 order modifying his sentence and argues

that multiple conditions he was found to have violated were not authorized by the

statute under which he was sentenced.             He also raises ineffective assistance of

counsel for failure to challenge the validity of the community custody conditions at

the violation hearing. We find the conditions at issue are valid affirmative acts to

monitor compliance with court ordered conditions and that counsel was not

deficient for not objecting to the violations on that basis. We affirm.




  Citations and pinpoint citations are based on the Westlaw online version of the cited material.
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                                      FACTS


       In May 1994, John Flynn was found guilty of rape in the first degree and

burglary in the first degree committed in 1993. Flynn was sentenced to 280 months

in prison. The court also imposed two years of community custody supervised by

a community corrections officer (CCO) from the Department of Corrections (DOC),

as required by statute. While incarcerated, Flynn filed a personal restraint petition

alleging incorrect calculation of his offender score based on the inclusion of

convictions in his criminal history which were not his.        The State ultimately

conceded that the challenged convictions in Flynn's criminal history were not his.

In July 2016, the Washington Supreme Court remanded Flynn's case to the trial

court for recalculation of his offender score and resentencing.

       Flynn was resentenced on the 1994 convictions in October 2016. The court

sentenced Flynn to 240 months for the rape conviction and 89 months for the

burglary charge, to run concurrently.      The court also imposed two years of

community custody to follow Flynn's release from prison as it had at his original

sentencing in 1994. The court ordered Flynn to abide by numerous conditions

during his period of DOC supervision. The conditions included performance of

affirmative acts to confirm compliance with court orders, enrollment in electronic

monitoring if ordered by DOC, compliance with any additional conditions imposed

under RCW 9.94A.704 and RCW 9.94A.706, and observance of any crime related

prohibitions: "per CCO." Flynn filed a notice of appeal after resentencing, but his

appeal was dismissed.
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       Flynn began his term of community custody in February 2018 after release

from civil commitment proceedings.       In October 2018, DOC alleged Flynn had

violated his conditions by consuming alcohol.        The next month, DOC alleged

further violations including failure to abide by curfew, failing to report to DOC, and

failing to comply with urinalysis. The State filed a petition for a hearing to determine

noncompliance which asserted the following violations:

       1.   Consuming alcohol on or about 10/15/18;
       2.   Consuming alcohol on or about 10/22/18;
       3.   Failure to abide by curfew on 11/17/18;
       4.   Failure to report as directed to CCO on 11/19/18;
       5.   Failure to be available for urinalysis on 11/19/18;
       6.   Failing to report [to DOC] as directed since on or about 11/26/18
            and 11/27/18;
       7. Failing to comply with curfew on or about 11/26/18;
       8. Failure to be available for urinalysis testing since on or about
            11/26/18;
       9. Failing to attend sex offender/sexual deviancy treatment for the
          last several weeksf.]

The court conducted a hearing on the alleged violations on December 7, 2018.

Flynn stipulated to all nine violations, but presented argument as to the sanction.

The court imposed 120 days jail for the violations. Flynn timely appeals the order

modifying sentence.


                                     ANALYSIS


       Flynn argues the trial court improperly imposed numerous conditions of

community placement during his resentencing in 2016. Flynn contends that the

conditions were not authorized by former RCW 9.94A.120(8)(b) or (c) and

therefore must be stricken from his judgment and sentence.
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I.     Collateral Attack on Conditions of Sentence

       The State avers that Flynn's broad challenge to the conditions of his 2016

sentence, including those that were not at issue or relevant to the trial court's ruling

at his December 2018 violation hearing, is an improper attempt to collaterally

attack the 2016 judgment and sentence. We agree that our scope of review is

more limited than that which Flynn seeks.

       To appeal a decision by a trial court, a notice of appeal must be filed within

30 days after entry of the decision for which the party seeks review. RAP 5.2(a).

A party may not try and use an appeal of a specific issue that is not time barred to

attack the underlying judgment and sentence where the allowed time to appeal the

judgment and sentence has expired. See State v. Gaut. 111 Wn. App. 875, 880-

81, 46 P.3d 832 (2002): See also State v. Larranqa. 126 Wn. App. 505, 509, 108

P.3d 833 (2005).

       Flynn's appeal is limited to the conditions relevant to the court's decision at

the violation hearing in December 2018. Though Flynn asks this court to review

five community custody conditions, only two relate to the trial court's order from

that hearing. The conditions properly before this court on review are: performing

affirmative acts to confirm compliance with the orders of the court and submission

to electronic monitoring (GPS) if imposed by DOC.


II.    Violation of Conditions of Community Custody

       We review sentencing conditions for abuse of discretion. In re Per. Restraint

Pet, of Rainev, 168 Wn.2d 367, 374, 229 P.3d 686 (2010). The trial court abuses

its discretion when it applies the wrong legal standard. State v. Dixon, 159 Wn.2d



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65, 75-76, 147 P.3d 991 (2006). "When we review whether a trial court applied an

incorrect legal standard, we review de novo the choice of law and its application to

the facts in the case." State v. Corona. 164 Wn. App. 76, 79, 261 P.3d 680 (2011).

       Under the Sentencing Reform Act of 1981 (SRA),1 a defendant must be

sentenced in accordance with the law in effect at the time of their offense. State v.

Medina. 180 Wn.2d 282, 287, 324 P.3d 682 (2014). RCW 9.94A.120 (1993)

controls for the felony offenses for which Flynn was convicted. Ifsentenced to the

statutory maximum for a sex crime, RCW 9.94A.120(8)(b) (1993) required the

convicted individual to serve two years of community placement following

incarceration. The following community placement conditions were required for

offenders supervised for a sex offense, unless waived by the court:

      (i)     The offender shall report to and be available for contact with
              the assigned community corrections officer as directed;
      (ii)    The offender shall work at department of corrections-
              approved education, employment, and/or community service;
      (iii)   The offender shall not consume controlled substances except
              pursuant to lawfully issued prescriptions;
      (iv)    An offender in community custody shall not unlawfully
              possess controlled substances;
      (v)     The offender shall pay supervision fees as determined by the
              department of corrections; and
      (vi)    The residence location and living arrangements are subject to
              the prior approval of the department of corrections during the
              period of community placement.

RCW 9.94A.120(8)(b)(i)-(vi) (1993). The following special conditions could also

be authorized by the court:

      (i)     The offender shall remain within, or outside of, a specified
              geographic boundary;
      (ii)    The offender shall not have direct or indirect contact with the
              victim of the crime or a specified class of individuals;


      1 Ch. 9.94A RCW.



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      (iii)   The offender shall participate in crime-related treatment or
              counseling services;
      (iv)    The offender shall not consume alcohol; or
      (v)     The offender shall comply with any crime-related prohibitions.

RCW 9.94A.120(8)(c)(i)-(v) (1993).

      Sex offenders were also required to abide by the general conditions for

felony offenders. RCW 9.94A. 120(12) (1993). These conditions included reporting

as directed to a community corrections officer, remaining within prescribed

geographic boundaries, notifying the community corrections officer of changes in

address or employment, and paying the supervision fee and assessment. Id.

       Under the statute in effect at the time of Flynn's conviction and original

sentencing, RCW 994A.120 (1993), the trial court had exclusive authority to set

community placement conditions for sex offenders. In re Per. Restraint Pet. Of

Capello. 106 Wn. App. 576, 584-85, 24 P.3d 1074 (2001) (superseded in part by

In re Pers. Restraint of Stewart. 115 Wn. App. 319, 75 P.3d 521 (2003)). The

statute was later amended in 1996, allowing the court and DOC to impose

conditions for offenders on community custody. Jd. at 584.          However, this

amendment only applied to offenders sentenced after its enactment, id. In 1997,

further amendments to RCW 9.94A.120 and RCW 9.94A.030 were passed which

authorized the court to order a supervised individual to engage in affirmative acts

to monitor compliance with conditions. State v. Riles. 135 Wn.2d 326, 342-43, 957

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

782, 239 P.3d 1059 (2010)). These amendments were found by our supreme court

to be clarifying existing law. kL at 343. Amendments clarifying existing law, and

not changing the substantive law, are considered remedial and curative, and apply



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retroactively. State v. Jones. 110 Wn.2d 74, 82, 750 P.2d 620 (1988). In State v.

Maples, the Supreme Court determined a sentencing court may order an offender

to perform affirmative acts as required by DOC to monitor compliance with existing

conditions for crimes committed prior to the 1997 changes. 171 Wn. App. 44, 51,

286 P.3d 386 (2012).


      A.     Affirmative Acts Condition


       Flynn argues the imposition of a curfew and use of GPS monitoring, both

conditions he was found to have violated at the December 2018 hearing, were not

authorized by law and therefore void. Though Flynn argued that he could not be

required to submit to other affirmative acts that DOC deems necessary to monitor

compliance with court orders, this argument is out of line with Maples and not well

taken. See Id-


       State v. McClinton is informative as to DOC's authority to require a

supervised individual to submit to monitoring of their location and movement prior

to the statutory amendment and passage of RCW 9.94A.704(5)(b) which explicitly

authorizes such monitoring. 186 Wn. App. 826, 833-34, 347 P.3d 889 (2015). In

McClinton, this court reviewed DOC's authority to impose GPS monitoring on a

sex offender sentenced in 1995. jd. at 828. We rejected the argument that DOC's

authority to require a supervised individual to submit to electronic monitoring was

analogous to Capello, wherein DOC required preapproval of Capello's proposed

residence and living arrangement prior to him being transferred to community

supervision. ]d. at 829-31. In Capello, the court had the authority but declined to

order such a condition. Id.
No. 81368-4-1/8


       The following passage is extremely instructive as to this condition and

Flynn's challenge to affirmative acts generally:

   [l]t is unnecessary to determine whether such authority can be deduced
   from the 2008 amendment. Because McClinton committed his crimes in
   1995 (between July 1, 1990, and June 6, 1996), under Riles, he is
   subject to the 1997 clarifying amendment. He must "submit to affirmative
   acts necessary to monitor compliance with the orders of the court as
   required by the department."

\± 834 (quoting Riles, 135 Wn.2d at 342-43). The court in McClinton went on to

find that GPS monitoring was an affirmative act necessary to monitor compliance

with the condition that had been imposed to remain within prescribed geographic

boundaries.   That condition was refined with the following language: "[d]o not

attend X-rated movies, peep shows or adult book stores without the approval of

the sexual deviancy treatment specialist or Community Corrections Officer," and

"[d]o not enter any business where alcohol is the primary commodity for sale." Id.

at 836.   This court expressly held that DOC had authority to impose GPS

monitoring in this context. Id.

       The record demonstrates that Flynn also had requirements like McClinton

to, "not be in any place where alcoholic beverages are the primary sale item," and

"not enter liquor stores or where alcohol is the primary commodity for sale." The

trial court also ordered that Flynn "[rjemain within or outside of geographic

boundaries as specified." We cannot ignore the guidance from McClinton. DOC

was vested with the authority to monitor compliance with court ordered conditions

through affirmative acts. Flynn's two alcohol related conditions are nearly identical

to the requirement in McClinton of "[d]o not enter any business where alcohol is

the primary commodity for sale." .kL at 836. Our holding in McClinton is directly


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No. 81368-4-1/9


implicated in the issue Flynn raises here regarding his submission to electronic

monitoring, yet he does not attempt to distinguish or otherwise address the case.

Flynn was required to submit to electronic monitoring as an act to ensure his

compliance with his conditions regarding not entering locations primarily focused

on the sale of alcohol and, following McClinton, we find that the requirement of

GPS monitoring is necessary to assess Flynn's compliance.

      Flynn next challenges DOC's imposition of a curfew as a condition of his

supervision. At the December 2018 hearing, the court found Flynn violated this

condition and he advances the same argument as to the condition for GPS

monitoring; that DOC had no authority to impose a curfew. Flynn concedes that a

court-imposed curfew could qualify as a crime-related condition under RCW

9.94A.120(8)(c)(v) (1993), but focuses his challenge on the authority of DOC to

impose a curfew independently from the court. However, we consider compliance

with a curfew to be an affirmative act necessary to monitor Flynn's compliance with

the court-ordered conditions of residing at a location or in a living arrangement

approved by DOC (RCW 9.94A.120(88)(b)(vi) (1993)) and remaining within, or

outside of, a particular geographic boundary (RCW 9.94A.120(8)(c)(i) (1993)). As

in McClinton, Flynn committed his crime between July 1, 1990 and June 6, 1996

and is thereby subject to the 1997 clarifying amendment, jd. at 834. The 1997

clarifying amendment allows for affirmative acts for monitoring court-imposed

conditions of supervision.     Maples is clear that this amendment applies

retroactively. 171 Wn. App. at 51. Though Flynn challenges the curfew as a distinct

condition, we find it is an affirmative act in order to monitor that Flynn remains
No. 81368-4-1/10


within prescribed geographical boundaries, specifically as to his condition to

abstain from locations where the primary sale is alcohol, and to reside at his DOC-

approved address.

       We find the requirement that Flynn submit to GPS tracking to monitor his

compliance with not entering locations where the primary business if the sale

alcohol is in line with our precedent in McClinton. 186 Wn. App. 826. We also find

that the requirement to abide by a curfew is a valid affirmative act that relates to

the conditions of his supervision as legally authorized by the sentencing court.

       Flynn also asserts that he received ineffective assistance of counsel

because his attorney did not object to the conditions as unauthorized by law at his

violation hearing. Because we find that these conditions were proper, this claim

fails as a matter of law.


       Affirmed.




WE CONCUR:




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