leltlii€)§' l9 ltd 8=1i3

iN THE COURT OF APPEALS OF THE STATE OF WASHlNGTON

in the E\/Eattei' of the ) No. 76384-9-i
Personal Restraint of )
) DEV|S|ON ONE
JEFFREY SCOTT ESRETTELL1 )
) PUBLlSl-!ED OPlNiON
Petitioner. )
) Fiied: November19,2018

 

LEACH, J. _ Jetfrey Scott Brettell coiiateraliy challenges six community
custody conditions imposed by the triai court after his conviction for two counts of
rape of a chiid in the third degree and one count of commercial sexuai abuse of a
minor He claims that two are constitutionally vague and ali six exceed the
courts statutory authority.

Bretteil asserts, and the State concedes, that a condition prohibiting him
front frequenting “areas where minor children are known to congregate” is
unconstitutionally vague Because we disagree with Bretteli’s remaining ciaims,
we affirm in part and remand for the trial court to address the invalid condition in
a manner consistent with this opinion

FACTS
|n 2013 and 2014 Jeftrey Scott Brettell repeatedly sexually assaulted two

14-year‘old giris, l..K. and T.U. The giris first met Brettei! in November 2013.

i\lo. 76384-9-| l 2

lnitiai|y, Brettell offered them jobs at his campground and paid them in cash,
alcoho|, marijuana, and cigarettes l_ater, he began inviting L‘K. to drink, smoke
marijuana, and have sex. Usually, L.K. was unconscious from marijuana or
alcohol intoxication when Brette|i had sex with her. She does remember one
episode of sexual intercourse when she was sober. tn Apri| or May of 2014
Brettei| began having sex with T.U. T.U. reported one incident when she was
intoxicated and Brettei| had sex with her in his truck.

In June 20t4, l_.K. reported Bretteli to the Snohornish County Sheritf’s
Office. its investigation revealed, among other things, explicit text messages
sent by Brettei| to the victims and images of a naked girl on his phone. A search
of his computer disclosed severai internet searches for images of rape and
sexual assauit and more than 100 sexuaily explicit images of children.

Bretteii was arrested on February 15, 2015. On Octot)er 28, 2015, he
pleaded guilty to two counts of rape of a child in the third degree and a single
count of commerciai sexual abuse of a minor. l~iis plea agreement stated that the
State’s aflidavit of probable cause established the factual basis for his plea.

On February 22, 2016, the court sentenced Brettei| to 72 months of

confinement followed by 36 months ot community custody lt imposed 27

No. 76384-9-i l 3

community custody conditions Brette|l did not appeal his sentence Bretteli now
challenges his sentence with this personal restraint petition (PRP).1
STANDARD OF REV|EW

To receive coiiateral reiief by a PRP, a petitioner must show either a
constitutional error that resulted in actual and substantial prejudice or a
nonconstitutional error that resulted in a fundamental defect that caused a
complete miscarriage of justice2

This court reviews a community custody condition for abuse ot discretion
and will reverse a manifestly unreasonabie condition3 The imposition of an
unconstitutional condition is always manifestly unreasonable4 An appellate court
does not presume that a community custody condition is constitutionai.5

ANALYS!S
Brettell chalienges six community custody conditions the sentencing court

imposed He claims that two conditions are unconstitutionally vague and all six

 

l Brette|l challenged 10 conditions in his original PRP. in his reply to the
State’s response to the PRP, he withdrew his challenges to 4 conditions

2 ln re Pers. Restraint of i-iavertv. 101 Wn.2d 498, 504, 681 P.2d 835
(1984); in re Pers. Restraint of Grantham1 168 Wn.2d 204, 212, 227 P.3d 285
(2030) (quoting ln re Pers. Restraint of lsadore. 151 Wn.2d 294, 298, 88 P.3d
390 (2004)).

3 State v. irwin1 191 Wn. App. 644, 652, 364 P.Sd 830 (2015).

4 M, 191 Wn. App. at 652.

5 State v. Sanchez Vaiencia, 169 VVn.2d 782, 793, 239 P.3d 1059 (2010).

_3_

No. 76384-9-| l 4

exceed the court's statutory authority.€' The State concedes that the condition
prohibiting Brette|l from frequenting “areas where minor children are known to
congregate” is unconstitutionally vague We accept the State’s concession and
reject Brettell's remaining claims
Unconstitutionailv Vadue Challenge
Constitutionai due process requires fair warning of proscribed behavior.7
A community custody condition that does not provide this warning is
unconstitutionally vague.8 Specifically, a community custody condition must (1)
“define the criminal offense with sufficient definiteness that ordinary people can
understand what conduct is proscribed” and (2) “provide ascertainable standards
ot guilt to protect against arbitrary enforcement.”9 lf a condition implicates First
Arnendment rights, like the right ot assembly, it also must be particularly clear so
as not to “cause a chilling eflect” on the implicated rights.i0
if a person of ordinary intelligence can understand what behavior a

condition torbids, given the context in which its terms are used, the community

 

6 Bretteli originally challenged the imposition of ai| six conditions on the
basis that the sentencing court exceeded its statutory authority in his pro se
briefing in counsel’s briefing, he raised additional challenges of unconstitutional
vagueness against the imposition ot two ot the conditions

7 U.S. CoNST. amend. XlV, § 1; WAsi-i. Col\isT. art. l, § 3; State v. Bah|,
164 Wn.2d 739, 752-53, 193 P.3d 678 (2008).

8 M, 164 Wn.2d at 752-53.

9 B_ah§, 164 Wn.2d at 752-53 (duoting Citv ot Spokane v. Douqlass, 115
Wn.2d 17i, 178, 795 P.2d 693 (1990)).

10 _B__ah_i, 164 Wn.Zd at 753.

_4_

|\io. 76384-9-! / 5

custody condition is valid." And a sufficiently clear condition can survive a
vagueness challenge “‘notwithstanding some possible areas of disagreement”'12
The condition does not need to provide “complete certainty as to the exact point
at which [the convicted person's] actions would be classified as prohibited
conduct."13

A. Prohibr'tion on Brettell Frequenting Where Minor Children Are Known

To Congregate

Brettell contends that the condition prohibiting him from “frequent[ing]
areas where minor children are known to congregate, as defined by the
supervising Cornmunity Corrections Oflicer” (CCO) is unconstitutionally vague.
Brettell does not show actual and substantial prejudice caused by this condition
But the State agrees that it is impermissibly vague and should be rewritten. So
we do not analyze the merits of Brettei|’s claim.

B. Prohibition on Brettell Associating with Known Users or Sellers of

illegal Drugs

Brettel| also claims that the condition barring him from “associat[ing] with

known users or sellers of illegal drugs” is unconstitutionally vague. lie contends

 

" State v_ l-iai lV|inh |\lquven, No. 94883-6, slip op. at 6, (Wash. Sept. 13,
2018), http;//www.courts.wa.govlopinionslpdf/948836.pdt; Bah|, 164 Wn.2d at
754.

12 Bahl, 164 Wn.Zd at 754 (quoting Douglass, 115 Wn.2d at 179).

13 l~tai i\/linh Nguyen, No. 94883»6, slip op. at 9.

-5-

No. 76384-9-i l 6

that the condition does not make clear who must have the knowledge required by
the “known” term. And he claims that “users or sellers of illegal drugs” does not
sufficiently define the group of people he must avoid. We disagree

Brettel| correctly notes that restrictions on association implicate the First
Amendrnent. When a condition involves a constitutionally protected right, its
language must be clear and necessary.“i But a court may restrict a convicted
offender's association rights if “‘reasonab|y necessary to accomplish the
essential needs ot the state and public order.”’15 And RCW 9.94A.703(3)(b)
gives a sentencing court clear statutory authority to restrict an otfender’s contact
with a specified class of people16 A community custody condition restricting
association is not vague if an ordinary person can understand the people to be
avoided and it provides standards sufficient to protect against arbitrary
enforcement.i7

Brette|| claims that the word “known” makes the condition vague because
it does not state who must “know“ that a particular person used or sold illegal

drugs before he must avoid that person. Brettel| does not cite any cases where

 

14 __B_am, i64 Wn.2d at 757-58

15 State v. Ri|ey, 121 Wn.2d 22, 37-38, 846 P.2d 1365 (1995) (quoting
lVla|one v. United States, 502 F.2d 554, 556 (ch Cir.1974)).

16 The sentencing court has discretion to impose a prohibition on “direct or
indirect contact with . . . a specified class ot individuals." RCW 9.94A.703 3)(b).

17 gram 164 Wn.2d at 752-53 (quoting Douglass, 115 Wn.2d at 178).

NO. 76384-9-| l 7

"known," when used in a community custody condition, refers to the knowledge
of anyone other than the offender.

ln United States v. Ver:ia,18 the Ninth Circuit rejected a vagueness
challenge to a condition for supervised release that stated “defendant shall not
associate with any member of any criminal street gang.” Consistent with what
the court described as “well»established jurisprudence,” it presumed that the
condition prohibited the defendants knowing misconduct19 The V_e_ga court
noted that while constitutionai, the condition would be clearer if it included the
term “known.” l'his would have limited the conditions reach to people known by
the defendant to be gang members20 Brettell does not present legal authority
contrary to y_§ga_ or otherwise show how the term “known" itself makes the
condition vague.

Brette|i also asserts that the condition is unclear because the terms “users
and sellers” might refer to people’s actions in the distant past and/or those they
are no longer engaged in. A court interprets an undefined term in a community
custody condition based on its plain meaning, which includes the dictionary

definition21 The definition of “user” is “one that uses; specif[icai|y] : a person

 

18 545 F.3d 743, 746 (9th Cir. 2008).
19 Vega, 545 F.Sd at 750.
20 Vega, 545 F.3d at 749-50 (discussing the use of “known" in a condition
found valid in United States v. Soltero, 510 F.3d 858, 865-67 (9th Cir. 2007)).
21 §a_h_l, 164 Wn.2d at 754.
_7_

l\lo. 76384-9-i l 8

who uses alcoholic beverages or narcotics."22 The definition of “use” is “the act
or practice of using something"23 The definition of “seller” is “one that offers for
sale.”24 Thus, the terms “users or sellers” refer to ongoing current activity. Like
the terms “using, possessing or dealing” found constitutional in State v. t.lamas-
MQ,ZS they effectively notify a person of ordinary intelligence what behavior is
prohibited

Brettel| also contends that the term "i|legal drugs” reinforces the
vagueness of “known.” With some states’ decrimina|ization of “recreationai
marijuana, it does not provide fair notice to write conditions in terms of ‘il|ega|

jil

drugs. V\lashington no longer criminalizes the use and possession of limited
quantities of marijuana26 But this conduct remains a federal offense, governed
by the Controlled Substances Act (CSA).27 The CSA preempts state law, even
for marijuana wholly grown and distributed intrastate28 The complication of

different state and federal drug enforcement policies does not excuse a person

from knowing that for marijuana, it is still “illegal.” The mere fact that only the

 

22 WEBsTER’s Tniao NEw lNrERNATloNAL DicTioNARY 2524 (2002).

23 WEBs'rER’s at 2523.

24 WEBern’s at 2062.

25 67 Wn. App. 448, 456, 836 P.2d 239 (1992).

26 See, e.g., RCW 69.50.360.

27 21 U.S.C. §§ 812, 844.

23 Gonzales v. Raich, 545 U.S. ‘l, 29-30, 125 S. Ct. 2195, 162 t.. Ed. 2d 1
(2005).

_8_

No. 76384-9-| / 9

federal government prohibits recreational marijuana use and possession does
not make the term “illegal drugs” vague as applied to marijuana29

l:inally, Brette|l asks this court to consider dicta from its unpublished
decision in State v. Eirown.30 |n an aside, the w court indicated approval of
the trial court’s rejection of a condition, recommended during sentencing
forbidding Brown from associating with “known drug users.”3i

We are not bound by unpublished decisions let alone dicta in tl'rern.32
Aiso, the condition in _l_B_r_g__w_i;\_ is not the same as the condition at issue here. The
challenged condition prohibits Brettell from associating with “known users and

sellers of illegal drugs.” ln contrast the condition in Brown prohibited association

 

with “known drug users” and did not limit the restriction to “illegal" users.33 We

conclude that this condition is not.impermissibly vaguel

 

29 Even apart from the fact that the petitioner is responsible for knowledge
of currently applicable laws, the widespread media coverage of the federal
enforcement of mariiuana possession and use renders this argument specious
Seel e.g., Donna Leinwand Leger, Marijuana to remain illegal under federal law,
DEA says USA `l'ODAY, Aug. 11, 2016
https:l/www.usatoday.com/story/newleO16108/1 l/dea»marijuana»remains-illegal-
under-faderal-lawl88550804/.

33 State v. Brown, No. 75458-»1-| (Wash. Ct. App. Mar. 12, 2018)
(unpublished), http://www.courts.wa.gov/opinions/pdf/754581.pdf.

31 Brown, No. 75458-1-|, slip op. at 25.

32 V\le note that in State v. Snyder, another unpublished decision, this
court upheld the same condition at issue here, albeit against a charge that it
failed to be crime related rather than against a vagueness charge No. 75717-2-
l, slip op. at 11~12 (Wash. Ct. App. Feh. 26, 2018) (unpublished),
http:l/Www.courts.Wa.gov/oplnions/pdf/757172.pdf.

33 Brown, No. 75458~1-l, slip op. at 25.

_g_

No. 76384-9-| l 10

Statutogr Authority

Brettell next claims the court exceeded its statutory authority by imposing
conditions involving controlled substances and treatment because they are not
sufficiently crime related He also claims the court exceeded its statutory
authority by imposing a condition requiring plethysmograph testing We
disagree

RCW 9.94A.703 describes the conditions a court can impose when
sentencing a person to a term of community custody lt identifies four categories
of conditions: mandatory waivable, discretionary and special.34 The statute
defines “waivable conditions” as those that “the court shall order” unless “waived
by the court."35 The statute defines “discretionary conditions” as those that the
court may order and lists six conditions.36 These include a requirement that the
offender “[cjomply with any crime-related prohibitions.”37 "Crime-related" means
“conduct that directly relates to the circumstances of the crime for which the
offender has been convicted." 33 A sentencing court can also require that an
offender perform “affirmative acts necessary to monitor compliance” with the

community custody conditions39

 

34 now 9.94A.703(i)-(4).
35Rcw 94A.703(2).
36 now 94A.703(3).
37 now 9.94A.703(3)(r).
38 now 9.94A.030(10)_
39 Rcw 9.94A.030(10)_
' -10-

No. 76384-9-| l 11

A. Walvabie Cono'itions

Brettell asserts that the condition requiring that he “not possess or
consume controlled substances unless [he has] a legally issued prescription” is
not crime reiated. But RCW 9.94A.703(2)(c) defines this as a waivable and not a
discretionary condition40 So the court had authority to impose it without it being
related to Brettell’s underlying crimes

B. Discretionary Conditions

Brettell claims that the sentencing court exceeded its authority by
imposing these four conditions: condition 12: “Do not associate with known
users or sellers of illegal drugs”; condition 13: “Do not possess drug
paraphernalla”; condition 22: “Pariicipate in urinalysis, Breathalyzer, and
polygraph examinations as directed by the supervising Community Corrections
Ofiicer, to monitor compliance with conditions of community custody”; and
condition 23: “Submit to plethysmograph testing, as directed by a certified sexual
deviancy treatment provider.”

Brettell does not identify sufficient evidence to show that the challenged
conditions unlawfully restrain him. Even if he had provided more than just
conclusory assertions the sentencing court did not abuse its discretion by

imposing these conditions

 

43 “Refrain from possessing or consuming controlled substances except
pursuant to lawfully issued prescriptions.”
-11-

No. 76384~9~l / 12

i. Druq and alcohol-related conditions

Brettell challenges as not sufficiently crime related the condition restricting
his association with “known users or sellers of illegal drugs," the condition
restricting his “possess[ion] of drug paraphernalia,” and the condition requiring he
participate in "urinalysis [and] Breathalyzer” testing

A petitioner claiming that a “crirne-related prohibition” is not reasonably
related to the underlying offense must include evidence of the circumstances of
the crime to support his argument l-iere, Brettell provides only bare assertions
So he does not make the required prima facie showing that the court erred

Even if Brettell supported his assertion with evidence, the uncontested
facts identified by the State in response to his PRP demonstrate that these
conditions are sufficiently crime related Brettell gave his victims alcohol and
marijuana before and during the assaults During many of the assaults the
victims Were intoxicated sometimes to the point of unconsciousness l-le also
used the promise of drugs and alcohol to entice at least one of his victims i_.K.,
to him, and thus facilitate the assault The court did not err in imposing drug and
alcohol related conditions

ii. P|ethvsmoqraph Testind

Last, Brettell challenges the condition requiring that he “{s]ubmit to
plethysmograph testing as directed by a certified sexual deviancy treatment

_12_

th. 76384-9-i l 13

provider.” Brettell acknowledges that a court may order plethysmograph testing
when it orders crime-related deviancy treatment i-le asserts that the sentencing
court did not order him to "participate in sexual deviancy treatment” because the
pertinent condition does not include the express phrase “participate in sexual
deviancy treatment."

Brettell minces words A community custody condition required that
Brettell be evaluated by and follow the recommended course of treatment of a
certified sexual deviancy counselor The court had authority to require
plethysmograph testing as a means for assessment and monitoring compliance
during the treatment

Brettell also claims the plethysmograph testing is invalid because the court
was “without authority to order plethysmograph testing upon direction of the
Community Corrections Officer." ilowever, the condition itself does not authorize
the CCO to order a plethysmograph test, only a “certified sexual deviancy
treatment provider.” So this argument lacks merit.

timeliness

Brettell notes that the one_year time restriction on collateral attacks may
bar his vagueness challenge to condition 12. Because his claim fails on its
merits and the State does not challenge the timeliness of the attack, we do not
address this issue.

_13_

NO. 76384-9-| l 14

CONCt_USlON
Because the State agrees that condition six is unconstitutionally vaguel
we vacate it and remand to the trial court to address it in a manner consistent
with this decision. As Brettell fails to show the invalidity of any other challenged

condition, we otherwise deny his request for relief.

WE CONCUR:
,l '\ \\ diain et ii*;»

_14_

