                                                                                              FILED
                                                                                     COURT OF APPEALS
                                                                                           DIVISION II

                                                                                    2014 AUG - 5       10: 140

                                                                                    STATE OF WASHINGTON

                                                                                    i3Y


      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                   DIVISION II


STATE OF WASHINGTON,                                                           No. 44451 -8 -II


                                         Respondent,                       UNPUBLISHED OPINION


            v.



NICHOLAS B. WINTERBERGER,


                                         Appellant.


            BJORGEN, A.C. J. =          Nicholas Winterberger appeals from sentencing conditions imposed

following        his guilty   plea   to third degree   rape.   Agreeing that some of the sentencing conditions

were imposed in error, we remand to the trial court to strike them.'


                                                          FACTS


            The State charged Winterberger, then age 18, with second degree rape of a girl he met while

both   were       taking   classes at   Remann Hall.      He   entered a   Newton   plea   to third degree   rape.   A


presentence investigation report informed the trial court that he had a prior juvenile adjudication for

third degree assault with sexual motivation and that he had completed a substance abuse treatment


program.           The presentence investigation report recommended a sentence of 15 months of




    A commissioner of this court initially considered Winterberger' s appeal as a motion on the
merits under RAP 18. 14 and then transferred it to a panel of judges.

2
    State   v.   Newton, 87 Wn.2d 363, 372 -73, 552 P. 2d 682 ( 1976); see also N Carolina v. Alford,
400 U. S. 25, 31, 91 S. Ct. 160, 27 L. Ed. 2d 162 ( 1970).
No. 44451 -8 -II



confinement, to be followed by 36 months of community custody under conditions contained in

Exhibit H attached to the presentence report. Among those conditions were the following:

       11.    Enter and complete, following release, a state approved sexual deviancy
       treatment       program (       if Court- Ordered)
                                                    through a certified sexual deviancy
       counselor.       You are to sign all necessary releases to ensure your Community
       Corrections Officer will be able to monitor your progress in treatment.
       12. You shall not change sexual deviancy treatment providers without prior
       approval from the Court and your Community Corrections Officer.
       13. You shall not possess or consume any controlled substances without a valid
       prescription from a licensed physician.
        14. Have      no contact with      the    victim ( CTS),   or any minor children. This includes
       but is not limited to personal, verbal, written or contact through a third party.
       Contact with minor children, if any, will need to be supervised, and will require
       prior approval by the Sexual Deviancy Treatment Provider and the CCO.
       15. Hold no position of authority or trust involving children under the age of 18.
       16. Do not initiate, or have in any way, physical contact with children under the
       age of 18 for any reason, unless approved as per # 14 above. Do not have any

       contact with physically or mentally vulnerable individuals.
       17. Inform your Community Corrections Officer of any romantic relationships to
       verify there is [ sic] no victim -
                                        age children involved.
       18. Submit to polygraph and /or plethysmograph testing upon direction of your
       Community Corrections Officer and /or therapist at your expense.
        19. Register as a sex offender in your county of residence per current Statute
       requirements pertaining to your crime of conviction.
       20. Do    not go    to   or   frequent   places where children congregate, (            Fast -
                                                                                                    food outlets,
       libraries,     theaters,      shopping    malls,   play    grounds     and    parks.)   unless   otherwise

       approved by the Court.
       21. Submit to testing for DNA purposes, and for an HIV test also if Court-
        ordered.

        22. Follow all conditions imposed by your treatment provider( s) and CCO.
        23. Obey all laws, and abide by any curfew that may be imposed by your CCO.
        24. You shall not have access to the Internet at any location nor shall you have
        access   to    computers ( with         the   exception    of   for   employment       purposes)   unless


        otherwise approved by the CCO. You also are prohibited from joining or perusing
        any   public     social      websites (    Face book, MySpace,              etc.)   or telephoning any
        sexually -oriented " 900" telephone numbers.
        25. Do not possess or peruse any sexually explicit materials in any medium. Your
        sexual deviancy treatment provider will define sexually explicit material. Do not
        patronize prostitutes or establishments that promote the commercialization of sex.

        Also, do not possess or use any cell phone that may provide access to the Internet
        as well.




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No. 44451 -8 -II



         26. Obtain a Substance Abuse Evaluation, and then follow any recommended
         treatment as directed until successful completion of any compulsory treatment
         program.




Clerk' s Papers ( CP) at 71 -72 ( emphasis omitted).


         Winterberger objected to condition 26 because there was no evidence that controlled


substances or alcohol was         involved in the        crime.       He objected to the conditions regarding minors,

other than the victim, because the victim was only one year younger than him, so he did not take

advantage of any age differential. In addition, he objected to conditions 23, 24 and 25 to the extent

that they created a curfew, forbade him from possessing or perusing sexually explicit materials, and

restricted   his   access   to the Internet   and   to   computers.      The trial court imposed all of the conditions


contained in Exhibit H of the presentence investigation report, and Winterberger appeals.

                                                         ANALYSIS


         Winterberger renews his arguments objecting to the imposition of conditions 24, 25 and 26.

He also, for the first time on appeal, objects to condition 18 to the extent it obliges him to undergo

                                                                                                                    3
penile plethysmograph          testing   upon   direction     of a      community   corrections   officer ( CCO).       We


review de novo the trial court' s statutory authority to impose conditions of community custody

and    any   questions of    statutory interpretation relating to that authority.           State v. Armendariz, 160


Wn.2d 106, 110, 156 P. 3d 201 ( 2007).                   However, if the trial court has authority to impose the

condition, we review its decision to do so for an abuse of discretion. Armendariz, 160 Wn.2d at

110.




3
    Illegal or erroneous sentences may be challenged for the first time on appeal. State v. Bahl, 164
Wn.2d 739, 744, 193 P. 3d 678 ( 2008).


                                                                  3
No. 44451 -8 -II



          First, Winterberger argues that the trial court erred in imposing condition 26, requiring a

substance abuse evaluation and any recommended treatment, because it did not make a finding

under RCW 9.94A.607( 1) that he has a chemical dependency that contributed to the crime. State

v.   Jones, 118 Wn.             App. 199,     207 -08, 76 P. 3d 258 ( 2003).            The State responds that Winterberger


admitted to using marijuana at least three to four times per week during the year prior to the

crime, so      the   condition was           properly imposed.        But without the trial court making a finding that

Winterberger' s marijuana use contributed to the crime, we agree that it abused its discretion in

                                                                                                                                   4
imposing       condition         26   and remand    for the trial    court     to   strike   that   condition   in its entirety.


           Second, he argues that the trial court erred in imposing condition 25 to the extent it

ordered    that he        could not " possess or peruse            any sexually       explicit materials        in any   medium."      Br.


of    Appellant      at    8.     He    contends   that the       condition     is unconstitutionally           vague.    In Bahl, the


Supreme Court considered a challenge to a similar, but not identical condition of community

custody that stated:

           Do not possess or access pornographic materials, as directed by the supervising
          Community Corrections Officer. Do not frequent establishments whose primary
          business pertains to sexually explicit or erotic material."

Bahl, 164 Wn.2d             at   743 ( quoting 1 Clerk' s Papers          at   28).    The court held first that the ban on


possessing pornographic materials was vague and that the discretion of the CCO only made the



4
     The State correctly                 Autrey held that "` [a] lthough the conduct prohibited
                                  points out    that State   v.

during community custody must be directly related to the crime, it need not be causally related to
the crime. "'        136 Wn.          App.   460, 467, 150 P. 3d 580 ( 2006) ( quoting     State v. Letourneau, 100
Wn.     App.   424, 432, 997 P. 2d 436 ( 2000)).                  Recognizing that the line between causing a
condition and contributing to it may be indistinct, Autry nonetheless cannot be read as effacing
the requirement of RCW 9. 94A.607( 1) that the court find a chemical dependency that
contributed to the crime before requiring a substance abuse evaluation and treatment. That
finding or its equivalent was not made here.

                                                                      4
No. 44451 -8 -II


vagueness more apparent because it was apparent there were no ascertainable standards for

enforcement.       Bahl, 164 Wn.2d      at   758. The court also held, though, that the references to


 sexually explicit" and " erotic" were not vague, since in their context the terms, their dictionary

definitions, and the statutory definition in RCW 9. 68. 130( 2) restricted Bahl " from patronizing

adult   bookstores,   adult   dance   clubs, and   the like."   Bahl, 164 Wn.2d at 759.


           If the term " sexually explicit material" is not vague in a ban on visiting establishments

whose primary business pertains to that material, it would not be vague in a ban on possessing or

accessing    such material.     Condition 25 does vest discretion in a third party to " define" that

material, but we see a gulf between this situation and the CCO' s discretion found suspect in


Bahl. Here, the discretion rests in Winterberger' s sexual deviancy treatment provider and is

exercised in the course of providing that treatment. This is not the sort of personal or arbitrary

discretion which the vagueness doctrine is designed to limit. See Burien Bark Supply v. King

County,     106 Wn. 2d 868, 871, 725 P. 2d 994 ( 1986) ( ordinance void for vagueness because


criteria   for   enforcement   is left entirely to the discretion   of   county   officials).   Rather, condition 25


recognizes the discretion and flexibility a therapist or other treatment provider must have to

respond to the unique circumstances posed by each client or patient. This recognition does not

insulate a grant of discretion from a vagueness challenge if it in fact is exercised in an arbitrary

or irrational manner. It does mean that a reasonable grant of therapeutic discretion such as this is

not void for vagueness on its face. The trial court was authorized to impose this condition and




                                                            5
No. 44451 -8 -II



did not abuse its discretion in doing so.

         Third, Winterberger argues that the trial court erred in imposing condition 25 to the

extent that it ordered him to not " patronize prostitutes or establishments that promote the


commercialization of sex."            CP at 71 -72. The State suggests that this condition is also a


condition of his sexual deviancy treatment, but concedes that if the condition were imposed

independently, it should be stricken. We conclude that the condition is independent of

Winterberger' s sexual deviancy treatment and accept the State' s concession. Accordingly, we

remand with      instructions to     strike   the   portion of condition       25 that   states, "   Do not patronize


prostitutes or establishments         that   promote    the   commercialization of sex."             CP at 71 -72.


Winterberger remains subject to unchallenged condition 22, requiring him to follow all

conditions imposed by his treatment provider and CCO and unchallenged condition 23, requiring

him to obey all laws and abide by any curfew imposed by the CCO.

         Fourth, he argues that the trial court erred in imposing conditions 24 and 25 to the extent

they restricted his access to the Internet, to computers, to public social web sites and to cell

phones with      Internet   access.    He contends that none of them are related to his crime and so they

cannot   be imposed         as "    crime- related      prohibitions"         under   RCW      9. 94A.703( 3)( f).      Br.   of



Appellant   at   11.    The State concedes that the trial court erred, in this regard, and we accept that


concession.      See State     v.   Zimmer, 146 Wn.           App.     405, 414, 190 P. 3d 121 ( 2008) ( striking a


condition prohibiting cell phone use when no evidence in the record supported a finding that

defendant   used       the device in    connection with        the    crime);    State v. O' Cain, 144 Wn. App. 772,

775, 184 P. 3d 1262 ( 2008) (          striking condition prohibiting Internet access because no evidence

that Internet    use    contributed    to    or   facilitated the    rape).    We remand with instructions to strike



                                                                6
No. 44451 -8 -II



condition    24    and   the   portion of condition             25 that    states, "   Also, do not possess or use any cell

phone   that may     provide access          to the Internet as       well."    CP at 71 -72.


         Finally, Winterberger argues that the trial court erred in imposing condition 18 to the

extent that it requires him to undergo penile plethysmograph testing upon direction of a CCO. He

contends that because such testing serves only a diagnostic or treatment purpose, and does not

serve a monitoring purpose, there is no rational basis for allowing a CCO to order him to

undergo     that   testing. In State        v.   Riles, 135 Wn. 2d 326, 337, 345, 957 P. 2d 655 ( 1998),                 overruled




on other grounds         by   State   v.   Valencia, 169 Wn.2d 782, 239 P. 3d 1059 ( 2010), the court upheld a

                                  placements




condition of       community                           requiring plethysmograph testing " upon the request of your

therapist    and /
                 or [    CCO]"     as      long   as   the trial   court also required "         crime- related treatment which



reasonably would rely upon plethysmograph testing as a physiological assessment measure."

Condition 11 of Winterberger' s community custody required him to enter and complete a state

approved sexual deviancy treatment program through a certified sexual deviancy counselor.

Plethysmograph testing is an essential element in the assessment and treatment of the sexual

aggressor.      Riles, 135 Wn.2d 344                   n. 58,   345 -46.   Therefore, requiring this testing along with

Winterberger' s sexual deviancy treatment is authorized under Riles.

         To    summarize,        we remand to the trial court to strike (                   1)    all   of condition   24; ( 2) that


portion of condition           25 that     states, "   Do not patronize prostitutes or establishments that promote


the commercialization of sex. Also, do not possess or use any cell phone that may provide




s
    Former RCW 9. 94A. 120( 9)( b) ( 1998), the statute under which this condition was imposed on
Riles, was recodified in 2001 as RCW 9. 94A.505, a provision dealing with community custody.
LAws    of   2001,    ch.   10, § 6.
                                                                      7
No. 44451 -8 -II



access   to the Internet   as well ";   and ( 3) all of condition 26.


         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:




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