                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                       December 20, 2016
         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    STATE OF WASHINGTON,                                           No. 48141-3 -II

                                Respondent,

    v.

    JOSHUA NEAL HENSLEY,
                                                                   Consolidated with
                                 Appellant.
    In the Matter of Two Personal Restraint                        Nos. 48168-5-II
    Petitions of                                                          and
                                                                        48170-7-II
    JOSHUA NEAL HENSLEY,

                                                             UNPUBLISHED OPINION
                                Petitioner.

          WORSWICK, J. — Joshua Hensley appeals the sentencing court’s denial of a motion to

modify his judgment and sentence. Hensley pleaded guilty to one count of second degree

possession of depictions of minors engaged in sexually explicit conduct. Hensley argues, and the

State concedes, that the sentencing court erred when it refused to modify a community custody

condition prohibiting contact between Hensley and all minor children, including his biological

children. Hensley specifically argues that the sentencing condition deprives him of his

fundamental right to parent. We accept the State’s concession, reverse, the sentencing court’s

order, and remand for proceedings consistent with this opinion.1



1
 Hensley also seeks waiver of appellate costs, but the State maintains it will not be seeking
costs.
No. 48141-3-III
Cons. with Nos. 48168-5-II; 48170-7-II

                                             FACTS

       After Hensley pleaded guilty to one count of second degree possession of depictions of

minors engaged in sexually explicit conduct, the sentencing court imposed a condition of

community custody, which stated, “The defendant shall have no contact with minor-aged

children without prior approval from the Community Corrections Officer and treatment

provider.” Clerk’s Papers at 38. After sentencing, Hensley filed a motion for relief from

judgment seeking to have the community custody condition modified to allow Hensley to have

contact with his own biological minor children. The sentencing court denied the modification:

       I’m denying the motion because in your case there is an indication in the affidavit
       of probable cause that there was child pornography on your laptop computer and
       that you downloaded all types of pornography. Therefore, I find that you are a threat
       to those children, and I’m not going to allow—I’m not going to amend the
       Judgment and Sentence to reflect that you can have contact with your children.

Verbatim Report of Proceedings (July 29, 2015) at 4. Hensley now appeals the sentencing

court’s denial of his request to modify the no contact condition.2

                                           ANALYSIS

       Hensley argues, and the State concedes, that the sentencing court erred by imposing a

community custody condition that prohibits him from having contact with minor children

because the condition interferes with his fundamental constitutional right to parent. We agree.




2
 On September 29, 2010, the sentencing court sentenced Hensley to 15 months confinement,
plus 36 months community custody, for a total of 51 months. The court gave Hensley credit for
104 days served. By our calculations, even if Hensley served his entire sentence, his period of
community custody would have expired mid-September 2014—well before Hensley moved to
modify the condition. For reasons not explained to us, Hensley, the State, and the sentencing
court proceeded as though Hensley was still bound by the community custody no-contact
condition. Although this case may be moot, we address Hensley’s issue in an abundance of
caution.
                                                 2
No. 48141-3-III
Cons. with Nos. 48168-5-II; 48170-7-II

       The Sentencing Reform Act of 1981 authorizes the sentencing court to impose crime-

related prohibitions. RCW 9.94A.505(8). We review impositions of crime-related prohibitions

for abuse of discretion. State v. Ancira, 107 Wn. App. 650, 653, 27 P.3d 1246 (2001). A court

abuses its discretion when the decision is manifestly unreasonable or based on untenable grounds

or untenable reasons. 107 Wn. App. at 653. A sentencing condition that infringes on a

constitutional right, such as a parent’s right to his children, “must be ‘sensitively imposed’” so

that [the condition is] “‘reasonably necessary to accomplish the essential needs of the State and

public order.’” In re Pers. Restraint of Rainey, 168 Wn.2d 367, 374, 229 P.3d 686 (2010)

(quoting State v. Warren, 165 Wn.2d 17, 32, 195 P.3d 940 (2008). Any “crime-related

prohibitions affecting fundamental rights must be narrowly drawn” and “[t]here must be no

reasonable alternative way to achieve the State’s interest.” Warren, 165 Wn.2d at 34-35.

       Sentencing courts can restrict fundamental parenting rights by conditioning a criminal

sentence if the condition is reasonably necessary to further the State’s compelling interest in

preventing harm and protecting children. State v. Corbett, 158 Wn. App. 576, 598, 242 P.3d 52

(2010) (condition that prohibited contact with all minor children, including defendant’s own

biological children was valid when defendant had molested a child he parented). Conversely,

courts will vacate contact prohibition conditions where they are not sufficiently related to the

harm they seek to prevent, such as protecting a child. See State v. Letourneau, 100 Wn. App.

424, 438, 997 P.2d 436 (2000) (a condition prohibiting defendant who pleaded guilty to second

degree child rape from contact with her biological minor children was not reasonably necessary

to prevent her from harming them because there was no evidence that she posed a danger of

molesting her children).




                                                 3
No. 48141-3-III
Cons. with Nos. 48168-5-II; 48170-7-II

       Here, Hensley argues that the sentencing court did not find that the prohibition was

reasonably necessary to protect children and did not consider any less restrictive alternatives to

achieve the State’s objective of protecting children. The State concedes that the sentencing court

erred by imposing the condition because there was no evidence that Hensley is a threat to his

own children.

       We agree with Hensley and the State that there is no evidence that Hensley is a threat to

his own children. Hensley’s biological children were not victims of his crime and were not

pictured in any pornography on Hensley’s computer. See Ancira, 107 Wn. App. at 654-57.

There is no evidence that the condition prohibiting Hensley’s contact with his children is

reasonably necessary to protect Hensley’s children from harm.

       Thus, we reverse and remand to the sentencing court to first consider whether Hensley

remains on community custody, and, if so, to strike the community custody condition prohibiting

contact with his minor children.

       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.




                                                                      Worswick, J.
 We concur:



 Maxa, A.C.J.



 Lee, J.


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