                                                                                                                  CPORT OF APPEALS
                                                                                                                     DIVISION
                                                                                                              2014 DEC   9   1.1H 10: 3.1
                                                                                                              S

                                                                                                              BY
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGT

                                                            DIVISION II

 STATE OF WASHINGTON,                                                                      No. 44674 -0 -11


                                             Respondent,


          v.

                                                                                     UNPUBLISHED OPINION
 JAMES BERNARDE,


                                             Appellant.




         MAxA, J. —              James Bernarde appeals from an order revoking his special sex offender

sentencing alternative ( SSOSA) imposed following his 2003 guilty pleas to seven counts of

second degree child molestation. He argues that the trial court abused its discretion in


terminating his SSOSA, that it improperly delegated the term of his community custody to the

Department      of    Corrections ( DOC),             and that it acted without authority in imposing community

custody   conditions         relating to    prescription medications ( condition           13),   pornographic materials




 condition     15),   and plethysmograph testing (condition 19). 1

         We hold that the trial court ( 1) did not abuse its discretion in terminating Bernarde' s

SSOSA, ( 2)         erred   in   not   setting   a   term   of   community custody, ( 3)   erred in imposing the

community custody conditions relating to prescription medications and pornographic materials,




1 In a statement of additional grounds, Bernarde claims that the trial court abused its discretion
when it revoked his SSOSA and improperly delegated his term of community custody. Because
these   are   the   same    issues     appellate counsel raises, we          do   not address   them separately.
44674 -0 -II




and ( 4) did not err in imposing the community custody condition relating to plethysmograph

testing, with the clarification that such testing can be ordered only for treatment purposes.

Accordingly, we affirm the trial court' s termination of Bernarde' s SSOSA and the imposition of

condition 19, but remand for the trial court to set a term of community custody, strike a portion

of community custody condition 13, and strike community custody condition 15.

                                                        FACTS


          On October 10, 2003, Bernarde pleaded guilty to seven counts of child molestation in the

second degree. The trial court imposed 116 month sentences and suspended all but 180 days

conditioned on Bernarde' s successful completion of a SSOSA. The trial court ordered that


Bernarde "[    u]   ndergo   and   successfully   complete an outpatient .   sex offender treatment program


    for   a period of   3    years or successful completion."    Clerk' s Papers ( CP) at 46. The judgment


and sentence also included a revocation clause:


          The court may revoke the suspended sentence at any time during the period of
          community custody and order execution of the sentence, with credit for any
          confinement served during the period of community custody, if the defendant
          violates the conditions of the suspended sentence or the court finds that the
          defendant is failing to make satisfactory progress in treatment.

CP at 46.


          Bernarde successfully completed treatment in July 2009. In 2010, the trial court entered

a written order stating that Bernarde had completed his SSOSA required treatment and

recommended but did not require aftercare treatment. But in May 2012, Bernarde' s Community

Corrections Officer (CCO) directed Bernarde to resume sex offender treatment after Bernarde


had failed to report having shaken hands in church with a 12- year -old boy. In September 2012,

the trial court ordered Bernarde to continue with treatment.




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        On January 30, 2013, Bernarde was arrested for assaulting his wife. Because a no-

contact order prohibited Bernarde from contacting his wife, he moved into a local motel.

Bernarde did not contact his CCO within 24 hours of his release from jail nor did he report his

address change. After his release from jail, Bernarde went to his residence to gather some

personal items and spoke with his wife while there. He also gave her a ride home after she had

come to the motel to visit him. A few weeks later, Bernarde' s treatment provider terminated

Bernarde from sex offender treatment because he was no longer amenable to treatment in the

community.


        In March 2013, Bernarde disclosed to his polygraph examiner that he had had unreported

contact with children. The first incident was when he was checking into the motel and a family

came into the lobby. The second was when Bernarde was doing electrical work at a family

residence and the owner' s children came home after school. Based on these incidents, the State

petitioned the trial court to revoke Bernarde' s SSOSA.


        In March 2013, the trial court held a revocation hearing. At that hearing, Bernarde' s

CCO testified:


               His behavior since release - -since completing treatment has regressed to pre-
        treatment behavior. His thought processes, his self involvement and his entitlement
        are prime examples of a pre- treatment sex offender where self gratification

        becomes primary and he becomes his own self focus, which is contrary to the
        treatment that he - t-he tools that he was taught in treatment.
            He disregards directives from the Department of Corrections. He' s disregarded
         directives from treatment providers and from the Court.
               He has been ordered, because of his behavior and thought processes, back to
        treatment by this Court and both treatment providers have validated that thought,
        the opinion that he is pre- treatment in his thought pattern, and due to his own
        behavior has been terminated from those treatment providers.


Report of Proceedings ( Mar. 22, 2013) at 77 -78.




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44674 -011



           The trial court revoked Bernarde' s SSOSA based on six violations of the terms of his

community custody: ( 1)            failing to    report a change of address        within 24 hours      of   moving, ( 2)


failing   to obey    all   laws   by violating     a no- contact order, (     3) being terminated from sex offender

treatment, ( 4)    failing   to obey      all   laws   by   assaulting his   wife, (   5) failing to report to DOC within

24 hours of release from custody, and ( 6) failing to report having unauthorized contact with

minors     between March 1          and   March 15, 2013. Bernarde stipulated to the first three of these


violations. The trial court found the latter three following an evidentiary hearing and entered an

order revoking Bernarde' s SSOSA.

           The order revoking Bernarde' s SSOSA committed him to 116 months of incarceration

with credit for 206 days served, and included the following community custody provision:

           The Defendant is additionally sentenced to a term of community custody for that
           period of time that equals the difference between 120 months and the period of time
           spent in total confinement less credit time served and good time; see Appendix F
           attached hereto and incorporated by reference.

CP   at   343.   The trial court also imposed various community custody conditions.

           Bernarde appeals the revocation of his SSOSA and his sentence.


                                                              ANALYSIS


A.         ORDER TERMINATING SSOSA


           Former RCW 9. 94A.670 ( 2002) granted the trial court authority to impose a SSOSA with

discretionary      conditions.      Former RCW 9. 94A. 670( 5) -( 6).             The trial court also had discretion to


revoke the SSOSA:


           The court may revoke the suspended sentence at any time during the period of
           community custody and order execution of the sentence if: a() The offender violates
           the conditions of the suspended sentence, or ( b) the court finds that the offender is
           failing   to    make    satisfactory    progress      in treatment.     All    confinement   time     served
44674 -0 -II




        during the period of community custody shall be credited to the offender if the
        suspended sentence is revoked.


RCW 9. 94A. 670( 11).        We review a trial court' s decision revoking a SSOSA for an abuse of

discretion. State   v.   McCormick, 166 Wn.2d 689, 705, 213 P. 3d 32 ( 2009). A trial court abuses


its discretion when its decision is manifestly unreasonable, or exercised on untenable grounds, or

for untenable reasons. Id. at 706.


        Bernarde argues that because he successfully completed sex offender treatment in 2009,

the trial court could not rely on the lack of satisfactory progress in treatment as a basis for

revocation. However, he never challenged the trial court' s 2012 order requiring him to resume

treatment after he had failed to report two incidents of contact with minor children. At the time


of Bernarde',s revocation hearing, treatment was a condition of his suspended sentence, and he

was terminated after he assaulted his wife. The trial court did not revoke the SSOSA because

Bernarde   was "   failing   to   make   satisfactory   progress   in treatment." RCW 9. 94A. 670( 11).


Instead, the trial court found that Bernarde " was terminated from court ordered sex offender


treatment."    CP 343.


        Even if we accepted Bernarde' s argument that the trial court could not rely on his failed

treatment in revoking his SSOSA, the failed treatment was not the only basis for revocation. The

five additional violations are sufficient to support the trial court' s decision, in the exercise of its

discretion, to revoke his suspended sentence.


        In his statement of additional grounds, Bernarde relies on State v. Miller, 159 Wn. App.

911, 247 P. 3d 457 ( 2011) to argue that his violations were not as serious as Miller' s and

therefore the trial court here abused its discretion. But Bernarde' s burden is to show that the trial




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court      had   untenable reasons or grounds   for   revocation.   He fails to do   so.   The trial court found


six violations of his community custody, including his failure to disclose contact with minors and

assaulting his wife. Those violations provide a sufficient basis for revoking his SSOSA.

            We hold that the trial court did not abuse its discretion in revoking Bernarde' s SSOSA.

Accordingly, we affirm that revocation.

B.          TERM OF COMMUNITY CUSTODY


            Bernarde argues that the trial court imposed an illegal sentence because his sentence


combined with his term of community custody violates the statutory maximum allowed. We

agree.



            Under RCW 9. 94A. 505( 5),      a sentencing court may not impose a sentence in which the

terms of confinement and community custody combined exceed the statutory maximum sentence

for the crime. The statutory maximum for Bernarde' s offenses, which are class B felonies, is

120   months.       RCW 9A.44. 086; RCW 9A. 20. 021( 1)( b).        The order revoking Bernarde' s SSOSA

provided:




            The Defendant is additionally sentenced to a term of community custody for that
            period of time that equals the difference between 120 months and the period of time
            spent in total confinement less credit time served and good time; see Appendix F
            attached hereto and incorporated by reference.

CP    at   343.    In other words, the trial court allowed the DOC to determine Bernarde' s community

custody term.

            Bernarde argues, and the State concedes, that the trial court' s notation, approved in In re

Pers. Restraint of Brooks, 166 Wn.2d 664, 211 P. 3d 1023 ( 2009), is no longer valid. In 2009,


the legislature       enacted   legislation providing that the community custody term " shall be         reduced
44674 -0 -II




by the court whenever an offender' s standard range term of confinement in combination with the

term of community custody       exceeds    the statutory       maximum   for the   crime."   RCW 9. 94A.701( 9)


 emphasis added).    Because Bernarde was sentenced after this statute became effective, the trial


court was required to reduce his term of community custody to avoid a sentence in excess of the

statutory maximum instead of delegating this task to the DOC. State v. Boyd, 174 Wn.2d 470,

473, 275 P. 3d 321 ( 2012). On remand, the trial court must correct this error.


C.      COMMUNITY CUSTODY CONDITIONS


        Former RCW 9. 94A.700 ( 2003) authorized a trial court to impose conditions during

community custody. If the trial court has statutory authority to impose a sentencing condition,

we review the trial court' s imposition of the condition for an abuse of discretion. State v. Riley,

121 Wn.2d 22, 37, 846 P. 2d 1365 ( 1993).


        1.     Lawfully Issued Prescriptions

        Condition 13   provides: "     You shall not possess or consume any mind or mood altering

substances, to include alcohol, or any controlled substances without a validprescription from a

licensed physician." CP    at   58 (   emphasis added).        Bernarde argues that the prohibition of any

controlled substance use without a valid prescription from a " licensed physician" exceeded the


trial court' s statutory authority. We agree.

        Former RCW 9. 94A.700( 3)(         c) (   2003) allows the trial court to limit an offender' s use of


controlled substances   to those   with "   lawfully    issued   prescriptions."   Condition 13 is too


restrictive because other health care providers besides " licensed physicians" can lawfully issue

prescriptions. See RCW 69. 41. 030. The State concedes that condition 13 exceeds the trial


court' s authority and that it should be limited only to lawfully issued prescriptions. We accept



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this concession. We remand for the trial court to strike the language " from a licensed physician"

from this condition. CP at 58.


            2.     Pornographic Materials


            Condition 15      provides: "   Do   not possess or peruse pornographic materials.          Your


community         corrections officer will       define pornographic   material."    CP at 58 ( emphasis added).


Bernarde claims that the prohibition on viewing pornographic materials exceeded the trial court' s

authority and violated his first amendment and due process rights. We agree.

            In State   v.   Bahl, 164 Wn.2d 739, 193 P. 3d 678 ( 2008), the trial court imposed the


following         community custody       condition: "   Do not possess or access pornographic materials, as


directed     by the    supervising   Community       Corrections Officer." Id.      at   743.   Noting that

 pornography" lacks a precise legal definition, the court in Bahl concluded:

             T] he     restriction   on     accessing     or   possessing   pornographic          materials    is

            unconstitutionally       vague.      The fact that the condition provides that Bahl' s
            community corrections officer can direct what falls within the condition only makes
            the vagueness problem more apparent, since it virtually acknowledges that on its
            face it does not provide ascertainable standards for enforcement.

Id.   at   758.   The community custody condition at issue here is deficient for the same reasons.

            The State responds that the trial court ordered Bernarde to undergo sexual deviancy

treatment and left the definition of "pornographic" to the treatment provider. But we find no

such provision in the community custody conditions and certainly not in the challenged

condition 15. Nor does the State cite any authority to support its contention that the treatment

provider can         define pornography.
44674 -041




       Condition 15 is unconstitutionally vague. We remand for the trial court to strike this

condition.2

       3.     Plethysmograph Testing

       Condition 19      provides: "   Submit to polygraph and plethysmograph testing upon direction

ofyour community       corrections officer or   therapist   at your expense."   CP at 58 ( emphasis added).


Bernarde claims that requiring plethysmograph testing violates his right to be free from

governmental intrusion into his private affairs. We hold that this condition is proper, with the


clarification that the CCO can order plethysmograph testing only for the purpose of sexual

deviancy treatment.

       Former RCW 9. 94A. 505( 9) (        2002) states that an offender is required to participate in

crime- related treatment or counseling services. Requiring plethysmograph testing incident to

crime -related treatment is a valid community custody condition that the trial court is authorized

to impose    under   former RCW 9. 94A.505( 9).      State v. Riles, 135 Wn.2d 326, 345 -46, 957 P. 3d

655 ( 1998), abrogated on other grounds, State v. Sanchez Valencia, 169 Wn.2d 782, 239 P. 3d


1059 ( 2010);   State v. Land, 172 Wn. App. 593, 605 -06, 295 P. 3d 782, review denied, 177 Wn.2d

1016 ( 2013).   However, using plethysmograph testing as a monitoring tool is improper. Riles,

135 Wn.2d at 345. The issue is whether a condition can authorize the CCO to require


plethysmograph testing for purposes other than treatment.




2 We do not hold that the sexual deviancy provider cannot limit Bernarde' s use of sexually
explicit materials. We merely hold that the condition allowing the CCO to define pornography is
unconstitutionally vague.



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        We recently addressed this issue in State v. Johnson, No. 44194 -2, 2014 WL 6778299

 Wash. Ct.     App.   Dec. 2, 2014).   We held that a community custody provision allowing a CCO to

order plethysmograph testing is proper, but the CCO' s scope of authority is limited to ordering

such testing only for purposes of sexual deviancy treatment and not for monitoring. Johnson,

WL 6778299, at * 2. Accordingly, we affirm the trial court' s imposition of condition 19, with the

clarification that the CCO has authority to order plethysmograph testing only for purposes of

sexual deviancy treatment. We also direct the State to provide a copy of this portion of the

opinion to DOC and the CCO.


        We affirm the trial court' s termination of Bernarde' s SSOSA and imposition of condition


19, but remand for the trial court to set a term of community custody, strike a portion of

community custody condition 13, and strike community custody condition 15.

        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:




                           A.cX



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