                                                                                            Filed
                                                                                      Washington State
                                                                                      Court of Appeals
                                                                                       Division Two

                                                                                        June 23, 2020




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II

 In the Matter of the Personal Restraint of:                       No. 48755-1-II

 RYAN ROCQUIN,

                               Petitioner,

                                                                 (Consolidated with
 In the Matter of the Personal Restraint of:                      No. 48758-6-II)

 RYAN ROCQUIN,
                                                            UNPUBLISHED OPINION
                               Petitioner.

       LEE, C.J. — Ryan Rocquin seeks relief from personal restraint after he pled guilty to first

degree molestation involving his five-year-old daughter under cause number 14-01-00203-6, and

to sexual exploitation of a minor, first degree possession of depictions of a minor engaged in

sexually explicit conduct, and second degree possession of depictions of a minor engaged in

sexually explicit conduct under cause number, 14-01-00376-8. Rocquin timely filed a personal

restraint petition (PRP) for both cause numbers, which we consolidated. Rocquin contends he is

under unlawful restraint because (1) his defense counsel rendered ineffective assistance and (2)

the sentencing court erred by imposing certain community custody conditions.

       We reject Rocquin’s ineffective assistance of counsel claim. We reverse the community

custody conditions relating to drug paraphernalia; the purchase, possession or consumption of

alcohol; and not entering any business where alcohol is the primary commodity for sale and
No. 48755-1-II (Consolidated w/No. 48758-6-II)


remand for the trial court to strike these conditions from Rocquin’s judgment and sentences. We

also reverse the community custody condition relating to plethysmograph examinations and

remand for the sentencing court to either remove the condition from Rocquin’s judgment and

sentences or correct it to read that the plethysmograph testing is “for treatment purposes only.”

We affirm the remaining community custody conditions. Accordingly, we grant in part and deny

in part Rocquin’s PRP.

                                             FACTS

        The State charged Rocquin with first degree child molestation under Cause No. 14-01-

00203-6 for an incident involving his five-year-old daughter. Four months later, the State filed

another information, this one under Cause No. 14-01-00376-8, charging Rocquin with sexual

exploitation of a minor, first degree possession of depictions of a minor engaged in sexually

explicit conduct, and second degree possession of depictions of a minor engaged in sexually

explicit conduct. Rocquin pled guilty to all charges in both cause numbers.

A.      CAUSE NUMBER 14-01-00203-6: FIRST DEGREE CHILD MOLESTATION

        1.      Plea Agreement

        Paragraph 1.1 of Rocquin’s plea agreement on the child molestation charge states, “The

current offense is subject to indeterminate sentencing pursuant to RCW 9.94A.507.” Br. of Resp’t

at Att. B at 1. The box in front of this statement is not checked. Under “Other current convictions”

in Paragraph 1.8, the plea agreement lists the current charge of “Child Molestation 1st.” Br. of

Resp’t at Att. B at 2.

        Paragraph 1.9 regarding “Sentencing Data” shows an offender score of 9 with a standard

sentencing range of 149 to 198 months to life. Br. of Resp’t at Att. B at 3 (boldface removed)



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(some capitalization removed). Paragraph 1.9 also contains a handwritten insertion that “This

sentence shall run concurrent with Grays Harbor Superior Court Cause No. 14-1-376-8.” Br. of

Resp’t at Att. B at 3.

        Paragraph 1.10(b) shows “Confinement” to be “198 months to Life.” Br. of Resp’t at Att.

B at 3 (boldface removed) (some capitalization removed). Paragraph 1.10(d) shows community

custody for “Life.” Br. of Resp’t at Att. B at 4 (emphasis omitted). And Paragraph 1.14 sets forth

Rocquin’s appeal and collateral attack rights.

        2.      Statement of Defendant on Plea of Guilty

        Paragraph 6 of the statement of defendant on plea of guilty (plea statement) on the child

molestation charge concerns the consequences of Rocquin’s guilty plea. Rocquin initialed this

paragraph next to the number “6.”. Br. of Resp’t at Att. C at 2. One of the subsections states that

the Indeterminate Sentence Review Board has the authority to increase the minimum term of

confinement if the Board determines it is more likely than not that Rocquin will reoffend. Rocquin

also specifically initialed Paragraph 6(g), which incorporated the plea agreement by reference.

Contrary to the incorporated terms of the plea agreement, the plea statement shows an offender

score of 1.

        At the end of the plea statement, Rocquin did not check the boxes verifying that he had

previously read and understood the entire plea statement, that Rocquin’s lawyer had previously

read to him the entire plea statement and that he understood it in full, or that an interpreter had

previously read to Rocquin the entire plea statement and that he understood it in full were checked.

        Consistent with the plea agreement, the plea statement sets forth Rocquin’s appeal rights

given up by pleading guilty in paragraph 5, a standard sentencing range of 149 to 198 months to



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No. 48755-1-II (Consolidated w/No. 48758-6-II)


life, and a community custody term of life. Rocquin initialed each paragraph setting forth these

terms.

         3.     Judgment and Sentence

         At the sentencing hearing, the prosecutor advised the sentencing court that the standard

range for the child molestation conviction “is 149 to 198 months to life. It is subject to review by

the indeterminate sentence review board. I believe 198 months is appropriate as a bottom. He will

then—life would be the maximum and it will be up to the department of corrections to determine

his actual release date.” Br. of Petitioner at Ex. H at 23.

         The judgment and sentencing on the child molestation offense lists Rocquin’s offender

score as 9, with a standard sentencing range of 149 to 198 months to life. The statutory maximum

is stated to be “Life.” Br. of Resp’t at Att. D at 2. The court sentenced Rocquin to 198 months to

the “statutory maximum.” Br. of Resp’t at Att. D at 3. The court did not impose community

custody. On the judgment and sentence, the box showing Rocquin is subject to indeterminate

sentencing is checked.

B.       CAUSE NUMBER 14-01-00376-8: FIRST DEGREE SEXUAL EXPLOITATION, FIRST DEGREE
         POSSESSION OF DEPICTIONS OF A MINOR ENGAGED IN SEXUALLY EXPLICIT CONDUCT, AND
         SECOND DEGREE POSSESSION OF DEPICTIONS OF A MINOR ENGAGED IN SEXUALLY EXPLICIT
         CONDUCT

         1.     Plea Agreement

         In Paragraph 1.1 of Rocquin’s plea agreement on the exploitation and possession charges,

it states that the current offense of sexual exploitation is a most serious offense. Paragraph 1.8

lists “Other current convictions” as “Sexual Exploitation of a Minor,” “Poss. Depictions 1st,” and

“Poss. Depictions 2nd.” Br. of Resp’t at Att. F at 2.




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No. 48755-1-II (Consolidated w/No. 48758-6-II)


        The Sentencing Data in Paragraph 1.9 shows an offender score of 9 with first degree sexual

exploitation having a seriousness level of IX and standard range of 129 to 171 months; first degree

possession of depictions of a minor engaged in sexually explicit conduct having a seriousness level

of VI and standard range of 77 to 102 months; and second degree possession of depictions of a

minor engaged in sexually explicit conduct having a seriousness level of V and standard range of

72 to 96 months. Paragraph 1.9 of the plea agreement also has a handwritten insertion that “This

sentence shall run concurrent with Grays Harbor Superior Court Cause No. 14-1-203-6.” Br. of

Resp’t at Att. F at 3.

        Paragraph 1.10(b) of the plea agreement shows “Confinement” to be 171 months for first

degree sexual exploitation, 102 months for first degree possession of depictions of a minor engaged

in sexually explicit conduct, and 96 months for second degree possession of depictions of a minor

engaged in sexually explicit conduct. Br. of Resp’t at Att. F at 3 (boldface removed) (some

capitalization removed). Paragraph 1.10(d) shows community custody for “36 months, or as

required by law.” Br. of Resp’t at Att. F at 4. And Paragraph 1.14 sets forth Rocquin’s appeal and

collateral attack rights.

        2.      Statement of Defendant on Plea of Guilty

        The plea statement specifically incorporates the plea agreement by reference under

paragraph 6(g). Contrary to the plea agreement, the plea statement shows no community custody

for any the three convictions. Also, first degree sexual exploitation of a minor is a most serious

offense, but paragraph 6(p) stating that the offense is a most serious offense is crossed out.

        Consistent with the plea agreement, the plea statement shows an offender score of 9 for all

three convictions with a standard sentencing range of 129 to 171 months for sexual exploitation of



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No. 48755-1-II (Consolidated w/No. 48758-6-II)


a minor, 77 to 102 months for first degree possession of depictions of a minor engaged in sexually

explicit conduct, and 72 to 96 months for second degree possession of depictions of a minor

engaged in sexually explicit conduct.

       3.      Judgment and Sentence

       The judgment and sentence lists Rocquin’s standard sentencing range as 129 to 171 month

for first degree sexual exploitation of a minor, 77 to 102 months for first degree possession of

depictions of a minor engaged in sexually explicit conduct, and 63 to 84 months (rather than 72-

96 months as stated in the plea agreement) on the second degree possession of depictions of a

minor engaged in sexually explicit conduct.         The seriousness level for first degree sexual

exploitation of a minor is IX; for first degree possession of depictions of a minor engaged in

sexually explicit conduct is X (rather than VI as stated in the plea agreement); and for second

degree possession of depictions of a minor engaged in sexually explicit conduct is V (should be

IV).

       The sentencing court sentenced Rocquin to 120 months on the exploitation offence, 102

months on the first degree possession offense, and 60 months on the second degree possession

offense. The sentencing court imposed community custody of 36 months for all three offenses.

C.     COMMUNITY CUSTODY CONDITIONS

       In Appendix H to the judgment and sentence under both cause numbers, the court imposed

29 community custody conditions. The community custody conditions include submitting to a

plethysmograph examination as directed by Rocquin’s community corrections officer; not

possessing or perusing sexually explicit materials; not possessing drug paraphernalia; not




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No. 48755-1-II (Consolidated w/No. 48758-6-II)


purchasing, possessing or consuming alcohol; and not entering any business where alcohol is the

primary commodity for sale.

D.     PERSONAL RESTRAINT PETITION

       Rocquin filed a personal restraint petition challenging his guilty pleas and sentences under

both cause numbers. Given the above irregularities, we stayed the matter pending a reference

hearing by the trial court to determine whether Rocquin understood the consequences of his plea.

After holding a reference hearing, the trial court entered findings and conclusions. These findings

and conclusions are addressed below.


                                           ANALYSIS

A.     STANDARD OF REVIEW

       We have three available options when reviewing a personal restraint petition: (1) deny the

petition, (2) transfer the petition to a superior court for a full determination on the merits or a

reference hearing, or (3) grant the petition. In re Pers. Restraint of Hews, 99 Wn.2d 80, 88, 660

P.2d 263 (1983); RAP 16.11(b); RAP 16.12. We review reference hearing findings to determine

if substantial evidence supports them. In re Pers. Restraint of Stenson, 174 Wn.2d 474, 488, 276

P.3d 286 (2012). Unchallenged findings of fact will be treated as verities on appeal. In re Pers.

Restraint of Davis, 152 Wn.2d 647, 679, 101 P.3d 1 (2004).

B.     INEFFECTIVE ASSISTANCE OF COUNSEL

       Rocquin contends he was denied effective assistance of counsel based on counsel’s failure

(1) to advise Rocquin as to the direct consequences of his guilty pleas, (2) to argue that Rocquin’s

first degree child molestation and sexual exploitation convictions entailed the same criminal




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No. 48755-1-II (Consolidated w/No. 48758-6-II)


conduct for sentencing purposes, (3) to argue that the two convictions violate double jeopardy

principles, and (4) to offer mitigating evidence to the sentencing court. We disagree.

       1.      Legal Principles

       To prevail on an ineffective assistance claim, a petitioner must prove that counsel’s

performance was deficient and the petitioner was prejudiced by the deficient performance. State

v. Estes, 188 Wn.2d 450, 457-58, 395 P.3d 1045 (2017) (citing Strickland v. Washington, 466 U.S.

668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). If a defendant fails to show both deficient

performance and resulting prejudice this court need not inquire further. Id. Deficient performance

occurs when counsel’s performance falls below an objective standard of reasonableness. Id. at

458. To show prejudice, Rocquin must demonstrate there is a probability that, but for counsel’s

deficient performance, the result of the proceeding would have been different. Id.

       There is a strong presumption of effective assistance of counsel, and Rocquin bears the

burden of demonstrating the absence of a legitimate strategy or tactical reason for the challenged

conduct. State v. Grier, 171 Wn.2d 17, 32-33, 246 P.3d 1260 (2011), cert. denied, 574 U.S. 860

(2014). “[I]f a personal restraint petitioner makes a successful ineffective assistance of counsel

claim, he has necessarily met his burden to show actual and substantial prejudice.” In re Pers.

Restraint of Crace, 174 Wn.2d 835, 846-47, 280 P.3d 1102 (2012).

       Due process requires that a defendant’s guilty plea be knowing, voluntary, and intelligent,

and a defendant has a Sixth Amendment right to effective assistance of counsel in deciding whether

to plead guilty. In re Pers. Restraint of Isadore, 151 Wn.2d 294, 297, 88 P.3d 390 (2004); State

v. Osborne, 102 Wn.2d 87, 99, 684 P.2d 683 (1984). Defense counsel must inform the defendant

of all direct consequences of the guilty plea. State v. A.N.J., 168 Wn.2d 91, 113-14, 225 P.3d 956



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No. 48755-1-II (Consolidated w/No. 48758-6-II)


(2010). Moreover, a plea was involuntary where the defendant was not fully informed of its

consequences due to mistaken understanding that determinate sentencing applied.                 In re

Postsentence Review of Hudgens, 156 Wn. App. 411, 415-17, 233 P.3d 566 (2010).

         2.     Knowing, Voluntary and Intelligent Plea

         As discussed above, a number of irregularities in the various plea documents and

judgments necessitated a reference hearing to determine whether Rocquin understood the

consequences of his pleas.       The trial court conducted a reference hearing to address the

irregularities and its effect on Rocquin’s understanding of the consequences of his pleas. The trial

court made the following findings of fact, which are unchallenged and are verities on appeal:1

                 [1.] In cause number 14-1-376-8, [Rocquin] was informed, prior to entry
         of his guilty plea, that the offense of Sexual Exploitation of a Minor is a “most
         serious offense" as defined in RCW 9.94A.030.

                [2.] [Rocquin] was informed, prior to entry of his guilty plea, of the impact
         of the other current convictions had upon his offender score. [Rocquin] was
         properly advised that his offender score on each count was nine points.

                  [3.] [Rocquin] was fully informed that he would be on community custody
         for life, after his release from incarceration with the Department of Corrections.

                [4.] [Rocquin] was properly advised of the seriousness levels of the crimes
         to which he was pleading guilty, with the exception of Count 3 in cause number 14-
         1-376-8.

                 [5.] Count 3 in cause number 14-1-376-8 should have listed the seriousness
         level as IV. However, this error had no impact on the ultimate sentence imposed
         upon [Rocquin] and did not result in him being misinformed regarding the
         consequences of his pleas.

                [6.] [Rocquin] was properly advised of the standard sentencing ranges for
         each crime under both cause numbers, with the exception of Count 3 in cause
         number 14-1-376-8.


1
    State v. O’Neill, 148 Wn.2d 564, 571, 62 P.3d 489 (2003).


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No. 48755-1-II (Consolidated w/No. 48758-6-II)



              [7.] Count 3 in cause number 14-1-376-8 should have listed the standard
       range as 63-84 months. However, this error had not [sic] impact on the ultimate
       sentence imposed upon [Rocquin] and did not result in him being misinformed
       regarding the consequences of his pleas.

               [8.] In cause number 14-1-203-6, [Rocquin] was fully informed as to the
       differences between a determinate and indeterminate sentence, and that he was
       facing an indeterminate sentence. [Rocquin] acknowledged his full understanding
       by his initialing of paragraph 6 of the Statement of Defendant on Plea of Guilty.

              [9.] [Rocquin] reviewed all of the plea documents at one meeting with trial
       counsel. As a result of reading the documents as a whole, [Rocquin] was fully
       aware of his offender score and that the multiple current convictions resulted in an
       offender score of nine on each count charged.

Clerk’s Papers (CP) at 1-3. Based on these findings, Rocquin was aware of the direct consequences

of his plea as required under A.N.J., 168 Wn.2d at 113-14. Specifically, Rocquin was fully

informed that indeterminate sentencing applied as required under Hudgens, 156 Wn. App. at 415-

17. Accordingly, counsel’s performance was not deficient. Therefore, Rocquin cannot establish

ineffective assistance of counsel.

       3.      Same Criminal Conduct

       Rocquin contends he received ineffective assistance of counsel when defense counsel

failed to argue his offenses constituted the same criminal conduct. We disagree.

       Under the Sentencing Reform Act, multiple current offenses are presumptively counted

separately in determining a defendant’s offender score unless the trial court finds that current

offenses encompass the “same criminal conduct” and the crimes are then counted as one crime in

determining the offender score. RCW 9.94A.589(1)(a). Rocquin alleges that by failing to ask the

trial court for a finding of same criminal conduct under RCW 9.94A.589(1)(a), defense counsel

was ineffective.



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No. 48755-1-II (Consolidated w/No. 48758-6-II)


       However, this case involved a negotiated plea agreement. The State agreed to not file

additional charges and recommended the sentence agreed to in the plea agreement. Defense

counsel strategically negotiated with the State on Rocquin’s behalf. The plea agreement may have

been undermined if counsel requested a same criminal conduct finding. Thus, there was strategic

reason for counsel’s conduct. Considering the plea agreement between the parties and the

legitimate tactic of counsel, Rocquin fails to show that defense counsel’s performance fell below

an objective standard of reasonableness. Thus, his ineffective assistance of counsel claim fails.

       4.      Double Jeopardy

       Rocquin next contends defense counsel was ineffective for not arguing that his molestation

and sexual exploitation convictions violate double jeopardy. We disagree.

       The double jeopardy clauses of the Fifth Amendment to the United States Constitution and

article I, section 9 of the Washington Constitution prohibit the imposition of multiple punishments

for a single offense. State v. French, 157 Wn.2d 593, 612, 141 P.3d 54 (2006). “A ‘defendant’s

double jeopardy rights are violated if he or she is convicted of offenses that are identical both in

fact and in law.’” State v. Fuentes, 179 Wn.2d 808, 824, 318 P.3d 257 (2014) (quoting State v.

Calle, 125 Wn.2d 769, 777, 888 P.2d 155 (1995)).

       For the reasons discussed above regarding same criminal conduct, defense counsel

strategically negotiated with the State on Rocquin’s behalf. Thus, there was tactical reason for

counsel’s conduct. Considering the plea agreement between the parties and the legitimate tactic

of counsel, Rocquin fails to show that defense counsel’s performance fell below an objective

standard of reasonableness. Thus, his ineffective assistance of counsel claim fails.




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No. 48755-1-II (Consolidated w/No. 48758-6-II)


       5.      Failure to Present Mitigating Evidence at Sentencing

       Rocquin next contends that defense counsel was ineffective for failing to investigate and

present mitigating evidence at sentencing. We disagree.

       To establish ineffective assistance of counsel based on counsel’s failure to investigate and

present mitigating evidence, a petitioner must submit sufficient facts to support his or her claim.

In re Pers. Restraint of Rice, 118 Wn.2d 876, 885-86, 828 P.2d 1086 (1992). Rocquin does not

offer evidence to show what investigation was or was not done by defense counsel. To the

contrary, our evidence shows that defense counsel was successful in helping Rocquin negotiate a

plea agreement. There was no mitigation to be sought beyond the terms reached by the parties.

Rocquin fails to show that defense counsel’s performance fell below an objective standard of

reasonableness. Thus, his ineffective assistance of counsel claim fails.

B.     COMMUNITY CUSTODY CONDITIONS

       Rocquin contends several of his community custody conditions do not relate to his crimes.

Specifically, he challenges the court’s conditions that he not possess or peruse sexually explicit

materials; he not possess drug paraphernalia; he not purchase, possess or consume alcohol; he not

enter any business where alcohol is the primary commodity for sale; and he submit to a

plethysmograph examination as directed by Rocquin’s community corrections officer.

       Pursuant to RCW 9.94A.505(9) and RCW 9.94A.703(3)(f), a sentencing court may impose

crime-related prohibitions while a defendant is in community custody.           A “‘[c]rime-related

prohibition’ means an order of a court prohibiting conduct that directly relates to the circumstances

of the crime for which the offender has been convicted.” RCW 9.94A.030(10). “‘Directly related’

includes conditions that are ‘reasonably related’ to the crime.” State v. Irwin, 191 Wn. App. 644,



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No. 48755-1-II (Consolidated w/No. 48758-6-II)


656, 364 P.3d 830 (2015) (quoting State v. Kinzle, 181 Wn. App. 774, 785, 326 P.3d 870, review

denied, 181 Wn.2d 1019 (2014)). The State concedes that the challenged conditions, except the

condition relating to sexually explicit materials, should be stricken.

       We accept the State’s concession regarding drug paraphernalia; the purchase, possession

or consumption of alcohol; and not entering any business where alcohol is the primary commodity

for sale because these prohibitions do not directly relate to the circumstances of Rocquin’s crime.

See State v. Jones, 118 Wn. App. 199, 208, 76 P.3d 258 (2003) (evidence must show drugs and

alcohol contributed to the offense to support community custody prohibition). We also accept the

State’s concession that the condition that Rocquin submit to a plethysmograph examination as

directed by his community corrections officer be stricken. (Br. of Respondent at 23) See State v.

Land, 172 Wn. App. 593, 605, 295 P.3d 782, review denied, 177 Wn.2d 1016 (2013)

(plethysmograph testing cannot be used as a routine monitoring tool but must be ordered “incident

to crime-related treatment by a qualified provider.”).

       However, the community custody condition that Rocquin not possess or peruse sexually

explicit materials directly relates to his crimes. Therefore, it was properly imposed by the

sentencing court. Irwin, 191 Wn. App. at 656.

                                          CONCLUSION

       We grant Rocquin’s PRP in part and reverse the community custody conditions relating to

drug paraphernalia; the purchase, possession or consumption of alcohol; and not entering any

business where alcohol is the primary commodity for sale and remand for the sentencing court to

strike these conditions from Rocquin’s judgment and sentences. We also reverse the community

custody condition relating to plethysmograph examinations and remand for the sentencing court



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No. 48755-1-II (Consolidated w/No. 48758-6-II)


to either remove the condition from Rocquin’s judgment and sentences or correct it to read that

the plethysmograph testing is “for treatment purposes only.”

        We affirm the remaining community custody conditions and deny the remainder of

Rocquin’s PRP.

        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.



                                                    Lee, C.J.
 We concur:



 Maxa, J.




 Sutton, J.




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