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                                                                                                          2013 DEC 20
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    IN THE COURT OF APPEALS OF THE STATE OF WASHI - ,'
                                                                                                                                  SHM T01q
                                                     DIVISION II'
                                                                                                                     0      lay
STATE OF WASHINGTON,                                                                 No. 42793 -1 - II


                                        Respondent,


         V.



TROY LYNN PERKINS,                                                              UNPUBLISHED OPINION


                                        Appellant.


         PENOYAR, J. —            Troy Lynn Perkins appeals six community custody conditions included in

his judgment and sentence after he pleaded guilty, as an accomplice, to sexual exploitation of a

minor. Perkins contends that the challenged conditions are either unconstitutionally vague or

unrelated      to   his   offense.    The State responds that we need not reach the merits of Perkins' s

appeal   because the trial         court   erroneously imposed         a   determinate   sentence.   We agree with the


State that the trial court imposed an unlawful sentence and remand for either the withdrawal of

Perkins'   s   plea       or   his resentencing.      We also address the challenged community custody


conditions because of their likely imposition on remand.

                                                           FACTS


          The State charged Perkins with sexual exploitation of a minor as an accomplice after he

persuaded his girl friend to engage in sexual activity with a minor while he watched via a Yahoo!

chat room " webcam."               Perkins had     a prior " strike"       offense for first degree child rape, and he


agreed to plead guilty as charged and to accept an exceptional sentence so that he could avoid
trial   on an amended " second strike"              charge.   His plea agreement stated that the indeterminate


sentencing      provisions       in RCW 9. 94A. 507      applied.      In its   presentence   investigation ( PSI)   report,
42793 -1 - II



the Department of Corrections ( DOC) recommended an exceptional sentence of 100 months as


well as the community custody conditions contained in an attached Appendix F.

         Perkins' s statement on plea of guilty described the consequences of indeterminate

sentencing         under   RCW 9. 94A. 507 but did         not   indicate that they    applied   to his     offense.    During

the plea hearing, the State informed the trial court that the indeterminate sentencing provisions

did apply to Perkins, and the trial court explained that he would receive a minimum term

sentence and a maximum term of 120 months, and that he would remain under DOC supervision

until   the   maximum         term    expired.      The court did not refer to the role of the Indeterminate


Sentence        Review       Board        in   reviewing   Perkins'    s . sentence.     Despite      its    explanation    of


indeterminate sentencing, the trial court subsequently imposed the exceptional determinate

sentence      to   which    the   parties agreed:     100 months of confinement and 36 months of community


custody.      The court left blank the provisions regarding RCW 9. 94A.507 in the printed judgment

and sentence.



          The trial court also imposed the DOC- recommended community custody conditions from

Appendix F. These conditions included the following:

                      Possess /access          no   sexually     exploitative    materials (     as   defined      by
          Defendant' s treating therapist or CCO).
                      Frequent       no    adult    book   stores,    arcades,   or places     providing       sexual
          entertainment.

                      Possess /access                                             explicit     materials,      and /
                                                                                                                   or
                                               no   pornography,      sexually
          information pertaining to minors via computer ( i.e. internet).
                      Contact      no "   900" telephone numbers that offer sexually explicit material.
          Provide copies of phone records to CCO.


                  Do not loiter or frequent places where children congregate including, but
          not limited to, shopping malls, schools, playgrounds, and video arcades.
                  Do not hitchhike or pick up hitchhikers.




                                                                  2
42793 -1 - II



Clerk'   s    Papers ( CP)         at    51.       Perkins objected to these conditions                  as unconstitutional      and


unnecessary, but the trial court rejected his challenge.

             After Perkins appealed the community custody conditions set forth above, the State

moved to remand for resentencing or plea withdrawal and to dismiss his appeal, arguing that the

trial court had imposed an unlawful determinate sentence where indeterminate sentencing was

required.         We denied the motion but directed the State to brief the sentencing issue in its

appellate brief.


                                                                         ANALYSIS


I.           STATE' S SENTENCING CHALLENGE


             The State contends that the trial court imposed an unlawful sentence that we should


vacate without           addressing Perkins'              s    community custody          conditions.   The State adds that it may

raise this challenge under RAP 2. 4 despite its failure to file a cross appeal under RAP 5. 1( d).

             We   agree     that   review of            this issue is       warranted    despite the lack    of a cross appeal.   See


RAP 2. 4( a)       (   appellate court may grant affirmative relief to respondent despite failure to file a

cross    appeal        if demanded           by   the    necessities of       the   case). "   Courts have the duty and power to

correct an erroneous sentence upon                            its   discovery." In re Pers. Restraint of Call, 144 Wn.2d 315,

334, 28 P. 3d 709 ( 2001);               see also In re Pers. Restraint ofMoore, 116 Wn.2d 30, 38 -39, 803 P. 2d

300 ( 1991) (          court could not allow sentence to stand where it exceeded the authority vested in the

trial court       by     the legislature).              If an erroneous sentence is not corrected otherwise, DOC is

 authorized to seek its correction in the trial court and, if necessary, to file a post- sentence petition

 seeking its review. RAP 16. 18. We thus turn to the substance of the State' s challenge.

             If   an    offender        is   subject      to        an   indeterminate    sentence   under    RCW 9. 94A.507, the


 sentencing       court shall       impose         a maximum              term    and a minimum      term.   RCW 9. 94A. 507( 3)( a).

                                                                              9
42793 -1 - II




The maximum term shall consist of the statutory maximum sentence for the offense, and the

minimum term shall be either within the statutory standard range or outside that range under

RCW        9. 94A. 535.     RCW      9. 94A. 507( 3)( b), (      c)(   i).   When the      minimum      term   expires,   the



Indeterminate Sentence Review Board decides whether to release the defendant into community

custody for the time left under the maximum term or impose a second minimum term of

incarceration. In. re Postsentence Review ofHudgens, 156 Wn. App. 411, 421 -22, 233 P. 3d 566

 2010); RCW 9. 95. 420( 3)(        a).    Such reviews have the potential to extend imprisonment to the


maximum         sentence.       See State    v.   Brundage,       126 Wn.        App.     55, 63,   107 P. 2d 742 ( 2005)


 discussing indeterminate sentencing as previously codified under former RCW 9. 94A.712).

           An offender who is not a persistent offender shall be sentenced under RCW 9. 94A.507 if

he has     a prior conviction      for   a " strike"   offense and is convicted of any sex offense other than

failure to    register.   RCW 9. 94A. 507( 1)( b). Perkins' s prior conviction of first degree child rape is


a strike offense, and his current conviction of sexual exploitation of a minor is a sex offense.

Former RCW 9. 94A. 030( 36)( b)( i), ( 45)(             a)(   iii) ( 2010).      Consequently, he should have been

sentenced under the indeterminate sentencing provisions of RCW 9. 94A.507 to a maximum term

of   120    months    and   a   minimum      term      determined        by   the trial   court.    The trial court instead


imposed an exceptional determinate sentence of 100 months, with 36 months of community


custody.        See RCW 9. 94A.030( 18) ( determinate sentence states with exactitude the number of


months of confinement and community custody).


           Perkins argues that the agreed sentence must be imposed because he pleaded guilty in

 exchange for the State' s agreement not to sentence him as a persistent offender under the " two

 strikes" law. See In re Pers. Restraint of Carrier, 173 Wn.2d 791, 797 -98, 272 P. 3d 209 ( 2012)

  under " two strikes" option, defendant qualifies as persistent offender if convicted of at least two
                                                                  M
42793 -1 - II




enumerated sex offenses);              RCW 9. 94A. 570.         This     argument   is   somewhat   misleading. The State


agreed that if Perkins pleaded guilty, it would not amend his charge to one that would require a

life   sentence as      a persistent     offender   if    a   jury   found him guilty.        Perkins' s current charge of


sexual exploitation of a minor is not one of the enumerated " two strikes" offenses. Former RCW

9. 94A.030( 36)( b)( i), ( ii).          Consequently,         contrary to     his       argument   here,   invalidating the

determinate sentence does not automatically render him susceptible to a life sentence as a

persistent offender.



          Moreover, the remedy of specific performance of a plea agreement is not available where

the resulting        sentence   is   unlawful.    State v. Barber, 170 Wn.2d 854, 873, 248 P. 3d 494 ( 2011).

Where the parties have agreed to a sentence that is contrary to law, the defendant may elect to

withdraw his plea, particularly where, as here, he was not accurately informed of the direct

consequences of          his   plea.    Barber, 170 Wn.2d at 858, 872 -74; see Hudgens, 156 Wn. App. at

415 -17 ( plea was involuntary where defendant was not fully informed of its consequences due to
mistaken     understanding that determinate sentencing                     applied).      If Perkins decides to endorse his


plea, however, he must be resentenced under RCW 9. 94A.507.

          We therefore remand with instructions to the trial court to vacate Perkins' s sentence and

allow    him to      either withdraw      his   plea or   be    resentenced under         RCW 9. 94A. 507.     Although this


result does not require us to consider Perkins' s challenge to the community custody conditions,

we do so because of the likelihood that the same conditions will be imposed on resentencing.

 See State      v.   Slert, 169 Wn.       App.    766, 768, 282 P. 3d 101 ( 2012) (             addressing issues that are

 technically     moot    but    likely   to   recur on remand),          review granted on other grounds, 176 Wn.2d

 1031 ( 2013).




                                                                     5
42793 - 1 - II




II.          COMMUNITY CUSTODY CONDITIONS


             Perkins argues that six of his community custody conditions are unlawful either because

they are unconstitutionally vague or because they are unrelated to the circumstances of his

offense.




             Community custody conditions generally will be reversed only if their imposition is

                    unreasonable.   State   v.   Valencia, 169 Wn.2d 782, 791 - 92, 239 P. 3d 1059 ( 2010).      The
manifestly


imposition          of an unconstitutional condition       is manifestly   unreasonable.    Valencia, 169 Wn.2d at


792.     An offender challenging a condition of custody does not have to overcome a presumption

of constitutionality because a sentencing condition is not a law enacted by the legislature and

does     not    have the   same presumption of         validity.    Valencia, 169 Wn. at 792; State v. Bahl, 164


Wn.2d 739, 753, 193 P. 3d 678 ( 2008).                    Nor does the challenger need to demonstrate that the


condition has been enforced; a preenforcement challenge is ripe for review. Bahl, 164 Wn.2d at

752. With these standards in mind, we turn to Perkins' s vagueness challenge.

              A.       VOID FOR VAGUENESS


              Perkins argues that three of the conditions imposed are unconstitutionally vague:

                        Possess /access no sexually exploitive materials ( as defined by Defendant' s
              treating therapist or CCO).
                        Possess /access     no     pornography,     sexually   explicit    materials,   and /
                                                                                                            or


              information pertaining to minors via computer ( i.e. internet)[.]

                      Do not loiter or frequent places where children congregate including, but
              not limited to, shopping malls, schools, playgrounds, and video arcades.

 CPat51.


              The due process vagueness doctrine under the state and federal constitutions requires that


 citizens have fair warning of proscribed conduct. Bahl, 164 Wn.2d at 752 ( citing WASH. CONST.

 art.   I,   sec.   3; U.S. CONST.,   amend.      XIV).   A sentencing condition is unconstitutionally vague if it
                                                                1
42793 -1 - II




does not define the proscribed conduct with sufficient definiteness that ordinary people can

understand what is prohibited, or if it does not provide ascertainable standards of guilt to protect


against   arbitrary      enforcement.            Bahl, 164 Wn.2d            at   752 -53.     The requirement of sufficient


definiteness does not demand impossible standards of specificity or absolute agreement

concerning       a   term'   s   meaning;   some amount of           imprecision in the language is        allowed.      State v.


Coria, 120 Wn.2d 156, 163, 839 P. 2d 890 ( 1992).


          When conditions implicate a defendant' s First Amendment rights, an added layer of

protection      is   provided.      Bahl, 164 Wn.2d            at   757.   Although a defendant' s constitutional rights


while serving community custody are subject to restrictions authorized by the Sentencing

Reform Act, such conditions must be imposed sensitively and demand a greater degree of

specificity. Bahl, 164 Wn.2d                at   757. Perkins asserts that all of the conditions at issue implicate


his First Amendment rights. See Virginia St. Bd. of Pharmacy v. Virginia Citizens Consumer

Council, Inc., 425 U. S. 748, 756, 96 S. Ct. 1817, 48 L. Ed. 2d 346 ( 1976) (                             protection afforded




under First Amendment " is to the communication, to its source and to its recipients both ").

          Perkins       argues      initially     that   the   restriction       on   possessing   and   accessing " sexually


exploitive      materials"         is unconstitutionally vague because the quoted term is not statutorily

defined.     He asserts that this vagueness is underscored by the fact that the term is to be defined

     his treating therapist                              corrections officer ( CCO),          and he points out that this same
by                                  or   community


type of delegation supported a vagueness challenge in Bahl.

          At issue in Bahl was a community custody condition prohibiting the defendant from
                                                                           directed         his CCO.   164 Wn.2d        754. The
 possessing      or   accessing     pornographic materials as                         by                           at




 court observed that the term " pornography" had never been given a precise legal definition and

 that many courts, including Division One of this court, had rejected sentencing conditions
                                                                      VA
42793- 1- 11



                 access   to   or possession of        pornography      as   unconstitutionally   vague.    164 Wn.2d at
prohibiting


754 -56 ( citing State,        v.   Sansone, 127 Wn.           App. 630,     111 P. 3d 1251 ( 2005)).      The Bahl court


agreed that the restriction on accessing or possessing pornography was constitutionally infirm,

adding that the fact that the CCO could direct what fell within the condition made the vagueness

problem more apparent.               164 Wn.2d at 758.


          The State responds that the term " sexually exploitive materials" is not vague because of

two    related   statutory definitions.          The first provides that a person is guilty of sexual exploitation

of a minor if he compels a minor by threat or force to engage in sexually explicit conduct

knowing that such conduct will be photographed or part of a live performance; or if he aids,
invites, employs, authorizes, or causes a minor to engage in sexually explicit conduct, knowing

that   such conduct will            be   photographed        or part of a   live   performance.   RCW 9. 68A.040( 1)( a),


 b).   According     to the State, it follows that " sexually               exploitive materials"   are those that feature


live or photographic performances of people engaged in sexually explicit conduct, which is

defined by statute as actual or simulated:

                     a)Sexual intercourse, including genital- genital, oral -genital, anal- genital,
          or oral -anal, whether between persons of the same or opposite sex or between
          humans and animals;
                     b)   Penetration of the vagina or rectum by any object;
                     c)   Masturbation;
                     d) Sadomasochistic abuse;
                     e)    Defecation or urination for the purpose of sexual stimulation of the
          viewer;

                     f) Depiction of the genitals or unclothed pubic or rectal areas of any
          minor, or the unclothed breast of a female minor, for the purpose of sexual
          stimulation of        the      viewer... ;   and

                     g)        Touching of a person' s clothed or unclothed genitals, pubic area,
          buttocks, or breast area for the purpose of sexual stimulation of the viewer.


 RCW 9. 68A.011( 4).
42793 -1 - II




         When viewed together, these statutes do not require persons of ordinary intelligence to

guess   at   what       is    meant      by    the       condition   prohibiting       access   to   or    possession    of "   sexually


exploitive      materials."            See   City    of Spokane      v.    Douglass, 115 Wn.2d 171,             180, 795 P. 2d 693


 1990) (   where citizens may seek clarification by resorting to statements of law in statutes and

court rulings,       term     in   enactment        is   not   unconstitutionally      vague even     if   undefined).    It would be


impossible to list every type                   of prohibited        conduct; "[      s] entencing courts must inevitably use

categorical     terms to frame the             contours of supervised release conditions."                    United States v. Paul,


274 F. 3d 155, 167 ( 5th Cir. 2001); see United States v. Phipps, 319 F. 3d 177, 192 -93 ( 5th Cir.


2003) ( reading          condition           barring      possession       of "   sexually oriented or sexually stimulating

materials"      in   commonsense              way    and    rejecting     vagueness challenge).           While there may be areas

of disagreement concerning the materials that fall within this condition, and while Perkins' s

therapist and        CCO have            some control over           its   scope, we       hold that the     reference   to " sexually



exploitive materials"              is   not so subjective as         to    be constitutionally       suspect.   See Douglass, 115


Wn.2d      at   181 (    statute supplies adequate standards unless it proscribes conduct by resort to

inherently subjective terms).'

           Perkins next contends that the prohibition on accessing " pornographic, sexually explicit


materials" is unconstitutionally vague. This is the language of the condition recommended in the

PSI   report rather          than the language of the             condition       imposed in the judgment        and sentence.      The


 condition      in Perkins'        s    judgment         and   sentence        prohibits   him from possessing " pornography,


             explicit materials,                  or
                                              and /       information pertaining to          minors via computer."          CP at 51.
 sexually


 The State concedes that the reference to pornography is unconstitutionally vague under Bahl. As



  Reference to the statutes defining " sexually exploitive materials" in any future orders would
 help avoid future vagueness claims.
                                                                           9
42793- 1- 11



Perkins       admits,     the condition is otherwise valid under Bahl, which rejected a vagueness


challenge      to   a   condition      restricting the defendant'     s   access   to sexually   explicit   material.   164


Wn.2d at 760.


          Perkins' s final vagueness challenge is to the condition prohibiting him from loitering in

or    frequenting         places       where    children   congregate,       including     shopping     malls,    schools,




playgrounds,        and video       arcades.    Perkins    complains      that the   reference   to " shopping   malls"   is


unconstitutionally            vague.   Our Supreme Court has held that it is proper for a court to order a sex


offender not to frequent places where minors are known to congregate. State v. Riles, 135 Wn.2d

326, 347 -49, 957 P. 2d 655 ( 1998), abrogated on other grounds, State v. Valencia, 169 Wn.2d


782, 239 P. 3d 1059 ( 2010);              see also Paul, 274 F.3d at 166 -67 ( affirming condition prohibiting

defendant from visiting locations " frequented                  by    minors ").     The fact that the trial court here


chose to give specific examples of such places does not render this condition unconstitutionally

vague.    The case, Perkins cites to assert that the term " shopping mall" carries many meanings is

unpersuasive;           the   fact that the term " shopping      center"    is   vague   does   not mean    that " shopping



mall"    is   vague      as well.      See In   re   Joshua Slocum Ltd., 922 F. 2d 1081,            1087 ( 3d Cir. 1990)


                                   to " shopping               in federal   bankruptcy     code).   We reject Perkins' s
 interpreting       reference                        center"




vagueness challenge.



          B.            CRIME- RELATED PROHIBITIONS


          At issue here are the community custody conditions prohibiting Perkins from hitchhiking

 or   picking up hitchhikers, contacting " 900"                  telephone numbers that offer sexually explicit


 material, and frequenting adult bookstores, arcades, or places providing sexual entertainment.

          RCW 9. 94A.505( 8) authorizes the trial court to impose " crime- related prohibitions" as a

 condition      of sentence.           In re Pers. Restraint of Rainey, 168 Wn.2d 367, 374, 229 P. 3d 686
                                                                 10
42793 -1 - II



 20 10).    Crime -related prohibitions allow the sentencing court to prohibit conduct that relates

           to the                        the           for           the   offender   has been    convicted.   State v.
directly            circumstances   of         crime         which




Berg,   147 Wn.     App. 923,   942, 198 P. 3d 529 ( 2008), abrogated on other grounds, State v. Mutch,


171 Wn.2d 646, 265 P. 3d 803 ( 2011).            No causal link need be established between the conditions


imposed and the crime committed as long as the condition relates to the circumstances of the

crime. State v. Llamas -Villa, 67 Wn. App. 448, 456, 836 P. 2d 239 ( 1992).

           The State   concedes   that the     condition     addressing    hitchhiking   is   not crime related.   The


State    defends the     restrictions    on    calling " 900"      telephone numbers and frequenting adult

bookstores, arcades, or places providing sexual entertainment, however, as valid crime -related

prohibitions.       Perkins' s crime occurred when he persuaded a woman, during contact on a

                       website,   to have a      sexual   encounter with      a minor.        The State contends that
sexually- oriented


limiting the possibility of similar future contact is reasonably related to the circumstances of his
crime.     According to the State, adult bookstores and 900 numbers are not so different from an

adult website that they are not related to the circumstances of Perkins' s crime.

           Perkins argues that 900 numbers and adult bookstores are legal and licensed businesses,

but the Yahoo!        website was   legal      and   licensed   as well.    Prohibiting him from seeking sexual

entertainment by calling 900 numbers or visiting places that provide such entertainment is not
unrelated    to the   circumstances of    his   offense.     We uphold the conditions at issue as valid crime -


related prohibitions.



           We remand for vacation of Perkins' s sentence and for either the withdrawal of his plea or

 his resentencing      under   RCW 9. 94A.507.         Upon resentencing, the trial court shall not reimpose

 the community custody conditions barring Perkins from possessing or accessing pornography

 and from hitchhiking or picking up hitchhikers.
                                                              11
42793 - 1 - II




         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.




We concur:




          Maxa, J.




 4pe-
    4ar          man, J.




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