IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

In the Matter of the Personal Restraint         No. 78994-5-I
of:
                                                DIVISION ONE
RICKY DESHAWN KING,
                                                UNPUBLISHED OPINION
                      Petitioner,



      LEACH, J. — Ricky DeShawn King filed a personal restraint petition to

challenge three conditions of community custody imposed by the trial court after

his conviction for first degree child molestation. Because the trial court did not

have statutory authority to impose one condition, did not make required findings to

support restrictions on King’s contact with his children while under community

supervision, and an intervening Supreme Court decision clarified the requirements

for the third condition, we remand for further proceedings consistent with this

opinion.

                                    BACKGROUND

      In December 2014, Ricky DeShawn King pleaded guilty to first degree child

molestation for molesting his young stepdaughter who lived with King and the

victim’s mother and their four younger children. He also agreed with the State’s

recommendation for a special sex offender sentencing alternative (SSOSA) in lieu

of a standard range indeterminate prison sentence.            He agreed to various

community custody conditions, including abstaining from alcohol, staying out of


 Citations and pincites are based on the Westlaw online version of the cited material.
No. 78994-5-I/2


parks, playgrounds, schools and other places where minors congregate, and to

have no unsupervised contact with any minors without prior approval.

       In February 2016 and April 2016, the Department of Corrections filed

notices of violations of King’s community custody conditions.         The violations

included King failing to attend treatment; being seen with a young girl after leaving

a court hearing; regularly contacting the victim’s mother and their children; drinking

alcohol; and being at the home where his children and the victim live.           The

sentencing court then revoked King’s SSOSA and imposed the original sentence

of 96 months to life including all original community custody conditions. This court

affirmed the SSOSA revocation on direct appeal.1 King then filed a personal

restraint petition on September 24, 2018.

                                     ANALYSIS

       King challenges three conditions imposed as part of his judgment and

sentence, prohibiting unsupervised contact with minor children, prohibiting use of

alcohol, and prohibiting him from entering “parks/playgrounds/schools and/or any

places where minors congregate.” Each of these conditions is related to the crime

King committed.

       Appellate courts review the imposition of crime related prohibitions for

abuse of discretion.2 A trial court abuses its discretion if it makes a manifestly

unreasonable decision or exercises its discretion on untenable grounds or for




       1
        State v. King, No. 75306-1-I, slip op. (Wash. Ct. App. Sept. 25, 2017)
(unpublished), https://www.courts.wa.gov/opinions/pdf/753061.pdf.
      2
        State v. Williams, 157 Wn. App. 689, 691, 239 P.3d 600 (2010).
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untenable reasons.3 We review the factual basis for crime related conditions for

substantial evidence.4 A court does not abuse its discretion if a reasonable

relationship between the crime of conviction and the community custody condition

exists. 5

Contact with Biological Children

        King challenges a condition which states he shall, “Have no direct and/or

indirect contact with minors without the supervision of a responsible adult who has

knowledge of this conviction and the defendant's status as a registered sex

offender without prior approval of the court, CCO, and treatment provider, and the

informed consent of the minor's parent or guardian.” He claims “the condition of

community custody restricting contact with minors violates his constitutional right

to parent.” We address this challenge as applied in two situations, when King is

under community supervision and when King is incarcerated in the custody of the

Department of Corrections.

        Parents have a fundamental right to raise their children without State

interference.6    But, parental rights are not absolute and may be subject to

reasonable regulation.7 Sentencing courts can restrict fundamental parenting

rights with a criminal sentence condition if the condition is reasonably necessary




        3
        State v. Rodriguez, 163 Wn. App. 215, 224, 259 P.3d 1145 (2011).
        4
        State v. Irwin, 191 Wn. App. 644, 656, 364 P.3d 830 (2015)
      5
        Irwin, 191 Wn. App. at 659.
      6
        In re Custody of Smith, 137 Wn.2d 1, 15, 969 P.2d 21 (1998) aff'd sub
nom. Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000);
Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 67 L. Ed. 1042 (1923).
      7
        Prince v. Massachusetts, 321 U.S. 158, 166, 64 S. Ct. 438, 88 L. Ed.
645 (1944).
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to further the State's compelling interest in preventing harm and protecting

children.8 Conversely, courts will vacate contact prohibition conditions that are not

sufficiently related to the harm they seek to prevent, such as protecting a child. 9

“Such conditions must be ‘sensitively imposed’ so that they are reasonably

necessary to accomplish the essential needs of the State and public order.”10 A

no-contact order must be drawn narrowly to serve the interests of protecting the

child.11

           The State agrees with King the trial court should have entered findings to

justify any limitations on his contact with King’s biological children during

community custody. It also agrees with King the trial court should specifically

address the parameters and scope of community custody limitations regarding his

biological children as separate from prohibitions on contacting minors in general.

We accept the State’s concession on these points. We are confident that on

remand the trial court will also resolve King’s concerns about the ambiguity of the

current condition. Any further appellate review of limitations on King’s contact with

his biological children while on community custody is premature and must await

the trial court’s entry of findings and revision of any condition it narrowly tailors to

protect the children.

       King also complains the Department of Corrections (DOC) is prohibiting

visitation with his children while he is in total confinement. This Court cannot




       8
         State v. Corbett, 158 Wn. App. 576, 598, 242 P.3d 52 (2010).
       9
         State v. Letourneau, 100 Wn. App. 424, 438, 997 P.2d 436 (2000).
       10
          In re Rainey, 168 Wn.2d 367, 374, 229 P.3d 686 (2010).
       11
          Rainey, 168 Wn.2d at 378.
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address this complaint in this case. The DOC is not a party here. And, the

complaint does not involve an issue of community custody. Neither the federal nor

our state constitution creates a protected liberty interest in visitation between an

inmate and his children while in a DOC facility.12 The superior court does not have

personal jurisdiction over the DOC on issues of visitation while in a DOC facility. 13

As the State correctly notes in its briefing, the trial court could suggest visitation if

it believed it to be appropriate, but that suggestion would not be binding on the

DOC. The DOC has its own rules and directives for controlling visits. Any issues

King has with the DOC’s visitation decisions while he is in prison must be pursued

through the appropriate administrative process or other litigation.

Alcohol Consumption Condition

       King asserts the trial court exceeded its authority by imposing the

community condition prohibiting him to “not use or consume alcohol.” The State

concedes this case should be remanded to amend the condition to strike the words

“use or.”

       Former RCW 9.94A.703(3)(e) authorized the court to impose a condition

that prohibits offenders from consuming alcohol regardless of whether alcohol

contributed to the offense.14        This court has previously held that former

RCW 9.94A.703(3)(e) authorizes conditions that refer to “consuming alcohol” but

not using alcohol. 15 So, we accept the State’s concession and remand to the trial



       12
          Matter of Gossett, 7 Wn. App. 2d 610, 623-24, 435 P.3d 314 (2019).
       13
          Gossett, 7 Wn. App. 2d at 625.
       14
          State v. Norris, 1 Wn. App.2d 87, 99-100, 404 P.3d 83 (2017) rev’d on
other grounds, State v. Nguyen, 191 Wn.2d 671, 425 P.3d 847 (2018)).
       15
          Norris, 1 Wn. App.2d at 100.
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court to strike the words “use or” from the challenged condition prohibiting alcohol

use or consumption.

Frequenting Areas where Minor Children Congregate

       King next claims the community custody condition prohibiting him from

frequenting areas where           minor children are known to congregate is

unconstitutionally vague.

       Due process, guaranteed by the Fourteenth Amendment to the United

States Constitution and article I, section 3 of the Washington Constitution, requires

that legal standards like community custody conditions not be vague.16 The

rationale for this rule equally applies to community custody conditions.

       To avoid vagueness, the condition must (1) provide ordinary people fair

warning of proscribed conduct, and (2) have standards that are definite enough to

protect     against   arbitrary    enforcement. 17   A   sentencing     condition    is

unconstitutionally vague if it fails to do either.18 But, a sentencing condition is not

unconstitutionally vague merely because a person cannot predict with complete

certainty the exact point at which the actions would be classified as prohibited

conduct.19

       The community custody condition King challenges as unconstitutionally

vague orders King to “not enter any parks/playgrounds/schools and/or any places

where minors congregate.” He claims this condition is not sufficiently definite to




       16
          Irwin, 191 Wn. App. at 652-53
       17
          Irwin, 191 Wn. App. at 652-53.
       18
          Irwin, 191 Wn. App. at 653.
       19
          Irwin, 191 Wn. App. at 653.
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apprise him of prohibited conduct and allows for the arbitrary enforcement by his

community corrections officer.

       In September 2019, our supreme court held that a community custody

condition that, “The defendant…shall not loiter in nor frequent places where

children congregate such as parks, video arcades, campgrounds, and shopping

malls,” was not unconstitutionally vague and satisfied due process.20          The

Supreme Court held that a nonexclusive list of examples cured any vagueness in

the phrase “where children congregate.” 21

       The State suggests that we should remand to the trial court to rewrite the

challenged condition to read, “Do not enter any places where minors congregate,

such as parks, playgrounds, and schools” to comport with Wallmuller. We agree.

                                   CONCLUSION

       The trial court did not have statutory authority to impose a condition about

using alcohol and did not make required findings to support restrictions on King’s

contact with his children while under community supervision. And, an intervening

Supreme Court decision clarified the requirements for the condition restricting

access to places where minors congregate. So, we remand for further proceedings

consistent with this opinion.


WE CONCUR:




       20
            State v. Wallmuller, 194 Wn.2d 234, 237, 245, 449 P.3d 619, 620 (2019).
       21
            Wallmuller, 194 Wn.2d at 244-45.
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