                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                        August 7, 2018



             IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                             DIVISION II


 STATE OF WASHINGTON,                                              No. 50250-0-II

                                Respondent,

        v.                                                  PART PUBLISHED OPINION

 FRANK A. WALLMULLER,

                                Appellant.


       MAXA, C.J. – Frank Wallmuller appeals his sentence following a resentencing hearing,

arguing the trial court erred in imposing certain community custody conditions. In the published

portion of this opinion, we hold that a community custody condition prohibiting Wallmuller from

frequenting “places where children congregate such as parks, video arcades, campgrounds, and

shopping malls,” Clerk’s Papers (CP) at 25, is unconstitutionally vague. In the unpublished

portion of the opinion, we address and reject Wallmuller’s other challenges.

       Accordingly, we remand to the trial court to vacate or correct the language in this

community custody condition that prohibits Wallmuller from frequenting places where children

congregate, but we affirm his sentence in all other respects.

                                               FACTS

       Wallmuller pleaded guilty in 2014 to charges of first degree child rape and sexual

exploitation of a minor. He appealed his sentence, and this court remanded for resentencing.
50250-0-II


State v. Wallmuller, No. 46460-8-II (Wash. Ct. App. Nov. 17, 2015) (unpublished),

http://www.courts.wa.gov/ opinions/pdf/D2%2046460-8-II%20Unpublished%20Opinion.pdf.

At resentencing in 2016, the trial court imposed a community custody condition that prohibited

Wallmuller from frequenting “places where children congregate.” CP at 25.

       Wallmuller appeals his sentence.

                                            ANALYSIS

       Wallmuller challenges as unconstitutionally vague a community custody condition that

provided: “The defendant shall not loiter in nor frequent places where children congregate such

as parks, video arcades, campgrounds, and shopping malls.” CP at 25. We agree.

A.     LEGAL PRINCIPLES

       Wallmuller did not object at resentencing to the “places where children congregate”

community custody condition. However, vagueness challenges to community custody

conditions may be raised for the first time on appeal. State v. Padilla, 190 Wn.2d 672, 677, 416

P.3d 712 (2018).

       Vague community custody conditions violate due process under the Fourteenth

Amendment to the United States Constitution and article I, section 3 of the Washington

Constitution. State v. Irwin, 191 Wn. App. 644, 652, 364 P.3d 830 (2015). A community

custody condition is unconstitutionally vague if either “(1) it does not sufficiently define the

proscribed conduct so an ordinary person can understand the prohibition or (2) it does not

provide sufficiently ascertainable standards to protect against arbitrary enforcement.” Padilla,

190 Wn.2d at 677. However, a condition need not identify prohibited conduct with complete

certainty. Id.




                                                  2
50250-0-II


       We review community custody conditions for an abuse of discretion and will reverse

them only if they are manifestly unreasonable. Id. But a trial court abuses its discretion by

imposing an unconstitutional condition. Id. And unlike statutes challenged on vagueness

grounds, there is no presumption of validity for sentencing conditions. State v. Sanchez

Valencia, 169 Wn.2d 782, 793, 239 P.3d 1059 (2010).

B.     APPLICABLE CASES

       In Irwin, Division One of this court addressed a community custody condition that stated,

“Do not frequent areas where minor children are known to congregate, as defined by the

supervising CCO [community corrections officer].” 191 Wn. App. at 649. The court held that

the phrase “where minor children are known to congregate” was unconstitutionally vague. The

court stated:

       [W]hether that [phrase] would include “public parks, bowling alleys, shopping
       malls, theaters, churches, hiking trails,” and other public places where there may
       be children is not immediately clear.
       ....

       Without some clarifying language or an illustrative list of prohibited locations . . .
       the condition does not give ordinary people sufficient notice to “ ‘understand what
       conduct is proscribed.’ ”

Irwin, 191 Wn. App. at 654-55 (quoting State v. Bahl, 164 Wn.2d 739, 753, 193 P.3d 678

(2008)) (quoting City of Spokane v. Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990)).1

       In State v. Norris, Division One addressed a similar community custody condition that

contained a short list of prohibited locations. The condition provided: “Do not enter any

parks/playgrounds/schools and or any places where minors congregate.” 1 Wn. App. 2d 87, 95,



1
  The court also held that this condition was unconstitutionally vague because it allowed the
CCO to define the phrase “where children are known to congregate.” Irwin, 191 Wn. App. at
654-55; see also State v. Magana, 197 Wn. App. 189, 200-01, 389 P.3d 654 (2016) (finding a
similar condition vague because it gave too much discretion to the CCO).


                                                 3
50250-0-II


404 P.3d 83 (2017), review granted, 190 Wn.2d 1002 (2018). The State conceded on appeal that

the phrase “any places where minors congregate” was unconstitutionally void for vagueness, and

the court accepted that concession. Id. Quoting Irwin, the court stated that the phrase did not

give ordinary people sufficient notice to understand what conduct was proscribed. Id.

        However, Norris agreed that striking “and or any places” from the condition would make

it constitutionally proper. Id. at 95-96. The court stated, “We hold the imposition of a condition

that states, ‘Do not enter any parks, playgrounds, or schools where minors congregate’ is not

unconstitutionally vague or void for vagueness.” Id. at 96.

C.      VAGUENESS ANALYSIS

        The three primary dictionary definitions of “congregate” are (1) “to collect together into a

group, crowd, or assembly,” (2) “to come together, collect, or concentrate in a particular locality

or group,” and (3) “become situated together or in proximity to each other.” WEBSTER’S THIRD

NEW INTERNATIONAL DICTIONARY 478 (2002). This second definition seems most appropriate in

this situation.

        But even that definition creates uncertainty and gives rise to several questions: (1) Must

the children join together in a formal group to “congregate,” or is it sufficient that children be at

the same place even if they are unconnected? (2) Similarly, must the children intend to join

together with other children to “congregate,” or can they end up at the same place by

happenstance? (3) How many children are required to congregate to invoke the condition? Is

two enough, or is some unstated larger number required? (4) How often must children

congregate in a place to invoke the condition? Is once enough, or is some unstated frequency

required? (5) Assuming that children must have actually rather than potentially congregated at a

place to invoke the condition, how recently must they have congregated there? Is one prior




                                                  4
50250-0-II


instance of children congregating in a place sufficient regardless of when it occurred? These

questions suggest that the condition does not sufficiently define the proscribed conduct.

         Arguably, the condition here is less vague than in Irwin because it provides a short list of

locations where Wallmuller knows he is not allowed to go. However, the condition contains the

phrase “such as” before its list of prohibited places, indicating that frequenting more places than

just those listed would violate the condition. As in Norris, this short list does not cure the

inherent vagueness of the phrase “places where children congregate.”

         “[A] statute will be considered unconstitutionally vague if enforcement depends on a

completely subjective standard.” Padilla, 190 Wn.2d at 679. The community custody condition

here invites a completely subjective standard for interpreting “places where children

congregate.” As a result, we follow Irwin and Norris and hold the condition is unconstitutionally

vague.

         Division Three recently reached the opposite conclusion in a 2-1 decision in State v.

Johnson, in which the court held that a similar “places where children congregate” community

custody condition was not vague. State v. Johnson, No. 34928-4-III, slip op. at 8-10 (Wash. Ct.

App. July 17, 2018), https://www.courts.wa.gov/opinions/pdf/349284_pub.pdf. We do not find

the court’s reasoning persuasive.2

         We agree with the court in Norris that a modified condition stating, “The defendant shall

not loiter in nor frequent parks, video arcades, campgrounds, and shopping malls” would not be




2
  In addition to discussing Johnson, the dissent in our case also references several unpublished
opinions in all three divisions of the Court of Appeals that have addressed similar community
custody conditions in the past few years. We recognize that some of these unpublished opinions
reach a different conclusion regarding the vagueness of such conditions, but we do not find them
persuasive.


                                                  5
50250-0-II


unconstitutionally vague. On remand, the trial court can vacate this condition or modify the

condition consistent with this opinion.

                                             CONCLUSION

       We remand to the trial court to vacate or modify the language in the community custody

condition that prohibits Wallmuller from frequenting places where children congregate, but

affirm his sentence in all other respects.

       A majority of the panel having determined that only the foregoing portion of this opinion

will be printed in the Washington Appellate Reports and that the remainder shall be filed for

public record in accordance with RCW 2.06.040, it is so ordered.

       Wallmuller also argues that the trial court erred in (1) imposing a community custody

condition requiring him to bear the expense of random urinalysis and/or breathalyzer testing, and

(2) failing to order a new presentence investigation report (PSI) at resentencing. We disagree.

                                      ADDITIONAL FACTS

       At his original sentencing in 2014, Wallmuller asked the court to waive the PSI

requirement and to rely on the PSI presented for a 2009 sentencing on other sex offenses. At the

resentencing hearing, the trial court did not order a new PSI, but Wallmuller did not object.

       The trial court imposed several community custody conditions, including a condition that

required Wallmuller to “at his/her own expense, submit to random urinalysis and/or breathalyzer

testing at the request of the CCO or treatment provider.” CP at 25. In addition, the court made a

finding that Wallmuller “does not have a significant ability to pay” and struck the discretionary

legal financial obligations (LFOs). Report of Proceedings (March 8, 2016) at 21.




                                                 6
50250-0-II


                                               ANALYSIS

A.      LACK OF NEW PSI

        Wallmuller claims that the trial court erred in its statutory obligation to order a new PSI

as required by statute before resentencing. We disagree.

        The statute in effect at the time of Wallmuller’s conviction provided: “[T]he court shall,

at the time of plea or conviction, order the department to complete a presentence report before

imposing a sentence upon a defendant who has been convicted of a felony sexual offense.”

Former RCW 9.94A.500(1) (emphasis added).

        Here, “the time of plea or conviction” was in 2014 when the trial court originally

sentenced Wallmuller. The 2016 resentencing did not occur at the time of Wallmuller’s plea or

conviction. Therefore, RCW 9.94A.500(1) did not apply to the resentencing.3

B.      COMMUNITY CUSTODY CONDITION – TESTING AT DEFENDANT’S EXPENSE

        Wallmuller argues that because the trial court found him unable to pay LFOs, the court

erred in imposing a community custody condition that requires him to pay for random urinalysis

and/or breathalyzer testing. We decline to consider this argument because Wallmuller did not

object to this condition in the trial court.

        Under RAP 2.5(a), we generally will not review claims raised for the first time on appeal,

unless the party claiming the error can show the presence of an exception to that rule. State v.

Robinson, 171 Wn.2d 292, 304, 253 P.3d 84 (2011). One exception is RAP 2.5(a)(3), which

permits a party to raise such a claim if it amounts to a “manifest error affecting a constitutional

right.” But this provision is inapplicable here because unlike for the “places where children




3
 We do not address whether or not the trial court violated former RCW 9.94A.500(1) in 2014 by
not ordering a PSI even though Wallmuller requested that the court not order one.


                                                  7
50250-0-II


congregate” condition discussed above, Wallmuller is not making a constitutional claim

regarding this condition.

       Wallmuller claims that he can challenge this condition for the first time on appeal under

State v. Blazina, 182 Wn.2d 827, 344 P.3d 680 (2015), because the condition constitutes an LFO.

In Blazina, the court suggested that appellate courts should exercise their discretion to review

unpreserved claims that the trial court failed to comply with the requirement in RCW

10.01.160(3) that the court assess the defendant’s ability to pay before imposing discretionary

LFOs. Id. at 834-35.

       However, RCW 10.01.160(3) applies only to “costs,” which are defined in RCW

10.01.160(2) as “expenses specially incurred by the state in prosecuting the defendant or in

administering the deferred prosecution program under chapter 10.05 RCW or pretrial

supervision.” 4 The community custody condition requiring Wallmuller to pay for random

urinalysis and/or breathalyzer testing does not fall within this definition.

       Wallmuller fails to show he is entitled to review of the urinalysis and/or breathalyzer

testing community custody condition. Therefore, we decline to consider this argument.

C.     APPELLATE COSTS

       Wallmuller asks that we refrain from awarding appellate costs if the State seeks them.

The State represents that it does not intend to request appellate costs, and Wallmuller has

prevailed on one of the issues on appeal. Therefore, we decline to impose appellate costs.




4
 RCW 10.01.160 was amended in 2018. Laws of 2018, ch. 269, § 6. Since those amendments
do not affect our analysis, we cite to the current version of the statute.


                                                  8
50250-0-II


                                             CONCLUSION

       We remand to the trial court to vacate or correct the language in the community custody

condition that prohibits Wallmuller from frequenting places where children congregate, but we

affirm his sentence in all other respects.




                                                     MAXA, C.J.


 I concur:



 WORSWICK, J.




                                                 9
50250-0-II


         Lee, J. (concur in part and dissent in part) — I concur with the majority’s opinion that the

trial court did not err in either (1) imposing a community custody condition requiring him to bear

the expense of random urinalysis and/or breathalyzer testing or (2) not ordering a new presentence

investigation report at resentencing. However, I respectfully disagree with the majority’s holding

that the community custody condition prohibiting Wallmuller from frequenting places where

children congregate is unconstitutionally vague.

         The guarantee of due process, afforded by the Fourteenth Amendment to the United States

Constitution and article I, section 3 of the Washington Constitution requires citizens to have fair

warning of conduct proscribed. State v. Bahl, 164 Wn.2d 739, 752, 193 P.3d 678 (2008). A

community custody condition is unconstitutionally vague if it (1) fails to provide ordinary people

fair warning of the conduct proscribed or (2) does not provide definite standards to “ ‘protect

against arbitrary enforcement.’ ” Id. at 752-53 (quoting City of Spokane v. Douglass, 115 Wn.2d

171, 178, 795 P.2d 693 (1990)).           However, “ ‘a community custody condition is not

unconstitutionally vague merely because a person cannot predict with complete certainty the exact

point at which his actions would be classified as prohibited conduct.’ ” State v. Padilla, No. 94605-

1, slip op. at 5-6 (Wash. May 10, 2018)5 (quoting State v. Sanchez Valencia, 169 Wn.2d 782, 793,

239 P.3d 1059 (2010)).

A.       PRIOR CASES ADDRESSING THIS ISSUE

         Our Supreme Court has rejected an unconstitutionally vagueness challenge to this

condition. See State v. Riles, 135 Wn.2d 326, 349, 957 P.2d 655 (1998), abrogated on other

grounds by State v. Sanchez Valencia, 169 Wn. 2d. 782, 239 P.3d 1059 (2010). In Riles, following

a conviction for first degree rape of a child, the defendant was ordered to “avoid places where



5
    https://www.courts.wa.gov/opinions/pdf/946051.pdf


                                                 10
50250-0-II


children congregate” and prohibited from “frequent[ing] places where minors are known to

congregate.” 135 Wn. 2d at 333-34 (emphasis in original). In addressing a constitutional

vagueness challenge to these conditions, our Supreme Court stated:

       The due process vagueness doctrine under UNITED STATES CONST. amend. 14, § 1
       and CONST. art. I, § 3 has a twofold purpose: (1) to provide the public with adequate
       notice of what conduct is proscribed, and (2) to protect the public from arbitrary ad
       hoc enforcement. However, the constitution does not require “impossible standards
       of specificity” or “mathematical certainty” because some degree of vagueness is
       inherent in the use of our language. Thus, a vagueness challenge cannot succeed
       merely because a person cannot predict with certainty the exact point at which
       conduct would be prohibited.

Id. at 348 (footnotes omitted) (quoting State v. Halstien, 122 Wn.2d 109, 118, 857 P.2d 270

(1993)).6 In applying this standard, the court held:

       The other two conditions Petitioner Riles challenges—avoid places where children
       congregate and not frequent places where minors are known to congregate—[]
       come within the prohibition specified in RCW 9.94A.120(9)(c)(ii). Petitioner
       claims this prohibition will bar him from all public places. The restriction applies
       only to places where children commonly assemble or congregate. We conclude the
       conditions imposed by the trial court limiting Petitioner Riles' access to children
       are appropriate and within its authority.

Id. at 349 (footnote omitted).

       After Riles, in 2015, Division One of this court struck a community custody condition

prohibiting a defendant from frequenting places where children congregate. State v. Irwin, 191

Wn. App. 644, 652, 364 P.3d 830 (2015). The Irwin court held that a condition which prohibited

the defendant from “frequent[ing] areas where minor children are known to congregate, as defined

by the supervising CCO” was unconstitutionally vague because it was not immediately clear what

constituted an area where “children are known to congregate.” Id. at 652, 654. The Irwin court

reasoned that it was unclear whether this list included “ ‘public parks, bowling alleys, shopping


6
  While the Riles court also cited the legal proposition that the party challenging a prohibition has
the burden of overcoming the presumption of constitutionality, the court’s holding on the
vagueness challenge was not based on Riles failing to meet his burden. 135 Wn.2d at 348-49.


                                                 11
50250-0-II


malls, theaters, churches, hiking trails,’ and other public places where there may be children.” Id.

at 654. The court held that absent “some clarifying language or an illustrative list of prohibited

locations,” the condition failed to provide ordinary people fair warning of the conduct proscribed.

Id. at 655.

         All three divisions of this court have subsequently applied the Irwin court’s reasoning in

assessing vagueness challenges to similar community custody conditions. While Division Two

and Division Three of this court have consistently upheld conditions which provide the “illustrative

list” showing what is meant by a location where children congregate, Division One has sometimes

departed from its reasoning in Irwin and held conditions containing an illustrative list of prohibited

locations to still be unconstitutionally vague.

         1. Division Two

         Following Irwin, Division Two has consistently upheld community custody conditions that

provide the “illustrative list of prohibited locations” that the Irwin court reasoned would provide

an ordinary person sufficient notice to understand where “children are known to congregate.”

Division Two addressed this issue in three recent unpublished cases.

                a. State v. Dossantos

         In Dossantos, Division Two rejected a vagueness challenge to a community custody

condition that prohibited the defendant from going to or “frequent[ing] places where children

congregate, (I.E. Fast-food outlets, libraries, theaters, shopping malls, play grounds and parks, etc.)

unless otherwise approved by the Court.” No. 47773-4, slip op. at 14 (Wash. Ct. App. Sept. 26,

2017) (unpublished),7 review denied, 190 Wn.2d 1002 (2018). The court held that the condition




7
    http://www.courts.wa.gov/opinions/pdf/D2%2047773-4-II%20Unpublished%20Opinion.pdf



                                                  12
50250-0-II


separated itself from the flawed condition in Irwin because it contained a series of examples, which

illustrated what was meant by “places where children congregate.” Id.

         The Dossantos court held that the illustrative list of places where children congregate

should give ordinary people fair warning of the conduct proscribed. Id. And the court noted that

“a sentencing condition is not unconstitutionally vague merely because a person cannot predict its

contours with complete certainty.” Id. at 14-15.

                b. State v. Starr

         Following Dossantos, Division Two upheld a condition prohibiting the defendant from

entering or frequenting “ ‘business establishments or areas that cater to minor children without

being accompanied by a responsible adult approved by the [Department of Corrections] DOC and

[a] sexual deviancy treatment provider.’ ” State v. Starr, No. 49327-6, slip op. at 3 (Wash. Ct.

App. Oct. 17, 2017) (unpublished).8 The Starr court rejected a vagueness challenge to the

condition because the sentencing court had provided examples of prohibited areas, including

“video game parlors, parks, pools, skating rinks, school grounds or any areas routinely used by

minors as areas of play/recreation, or any other area designated by DOC.” Id. The Starr court

acknowledged that such illustrative list was not exhaustive, but held that “[b]y including these

lists, the conditions satisfied the first prong of the vagueness analysis.” Id. at 6.

                c. State v. Alvarez

         Most recently, Division Two rejected a vagueness challenge to a community custody

condition prohibiting the defendant from frequenting “ ‘places where children congregate, (I.E.

[sic] Fast-food outlets, libraries, theaters, shopping malls, play group s [sic] and parks, etc.) unless

otherwise approved by the Court.’ ” State v. Alvarez, No. 48560-5, slip op. at 13 (Wash. Ct. App.



8
    http://www.courts.wa.gov/opinions/pdf/D2%2049327-6-II%20Unpublished%20Opinion.pdf


                                                  13
50250-0-II


Mar. 27, 2018) (unpublished).9 The Alvarez court also held that a sentencing condition is not

impermissibly vague “merely because a person cannot predict its contours with complete

certainty.” Id. at 35. And the Alvarez court noted our Supreme Court’s previous rejection of a

vagueness challenge against a similar condition in Riles. Id.

         2.     Division Three

          Like Division Two, Division Three has followed Irwin and upheld community custody

conditions that contained an illustrative list of prohibited locations demonstrating what constitutes

locations where children are known to congregate. State v. Velazquez, No. 34713-3, slip op. at 8

(Wash. Ct. App. Oct. 17, 2017) (unpublished);10 State v. Gaston, No. 34719-2, slip op. at 3 (Wash.

Ct. App. Dec. 14, 2017) (unpublished);11 State v. Guevara, No. 34636-6, slip op. at 10 (Wash. Ct.

App. Mar. 6, 2018) (unpublished);12 State v. Johnson, No. 34928-4-III, slip op. at 9-10 (Wash. Ct.

App. July 17, 2018) (published).13 However, unlike Division Two, Division Three has consistently

held the word “children” to be unconstitutionally vague and remanded to modify the community

custody condition to prohibit the defendant from frequenting locations where “children under 16”

are known to congregate. Guevara, No. 34636-6, slip op. at 10-11; Velazquez, No. 34713-3, slip

op. at 8; Gaston, 34719-2, slip op. at 3-4.




9
    http://www.courts.wa.gov/opinions/pdf/D2%2048560-5-II%20Unpublished%20Opinion.pdf
10
     http://www.courts.wa.gov/opinions/pdf/347133_unp.pdf
11
     http://www.courts.wa.gov/opinions/pdf/347192_unp.pdf
12
     http://www.courts.wa.gov/opinions/pdf/346366_unp.pdf
13
     https://www.courts.wa.gov/opinions/pdf/349284_pub.pdf



                                                 14
50250-0-II


         In Johnson, Division Three rejected a vagueness challenge to a community custody

condition that required the defendant to “ ‘[a]void places where children congregate to include,

but not limited to: parks, libraries, playgrounds, schools, school yards, daycare centers, skating

rinks, and video arcades.’ ” Johnson, No. 34928-4-III, slip op. at 8 (Wash. Ct. App. July 17, 2018).

The majority held that the condition provided Johnson sufficient notice to allow for compliance,

even though the list of provided examples was not exhaustive. Id. at 9-10. The Johnson court

held “[t]he fact that the list of prohibited places in [the community custody condition] is not

exhaustive does not render it invalid.” Id. at 9. Judge Fearing wrote a dissent in which he argued,

as the majority holds here, that the condition was unconstitutionally vague because it did “not limit

itself to an exclusive list of locations.” Id. at 7 (Fearing, J., dissenting).

         3.     Division One

         Despite its holding in Irwin, Division One has held that community custody conditions

containing its suggested “illustrative list of prohibited locations” to be insufficient to survive a

vagueness challenge. See State v. Hai Minh Nguyen, No. 74358-9, slip op. at 13 (Wash. Ct. App.

July 17, 2017) (unpublished);14 State v. Kirkwood, No. 74777-1, slip op. at 12 (Wash. Ct. App.

July 24, 2017) (unpublished),15 review denied, 189 Wn.2d 1028 (2017).




14
     https://www.courts.wa.gov/opinions/pdf/743589.pdf
15
     http://www.courts.wa.gov/opinions/pdf/747771.pdf



                                                   15
50250-0-II




       First, in Hai Minh Nguyen, the community custody condition prohibited the defendant from

entering “ ‘any parks/playgrounds/schools and or any places where minors congregate.’ ” Hai

Minh Nguyen, No. 74358-9, slip op. at 13. Division One held that under Irwin, such a condition

was unconstitutionally vague if it failed to specify “ ‘the exact off-limits locations.’ ” Id. (quoting

Irwin, 191 Wn. App. at 655). The court then held that the “ ‘or any place where minors congregate’

” portion of the condition should be stricken and modified to preclude the defendant from “

‘entering parks, playgrounds, or schools where children congregate.’ ” Id.

       Following Hai Minh Nguyen, Division One struck a condition barring the defendant from

frequenting:

       [A]ll places where minors reside or congregate, including schools, playgrounds,
       childcare centers, church youth programs, parks and recreational programs,
       services used by minors, and locations frequented by minors, unless otherwise
       approved by the Department of Corrections with a sponsor approved by the
       Department of Corrections.

Kirkwood, No. 74777-1, slip op. at 10. The Kirkwood court reasoned that it had struck a “similar”

community custody condition in Irwin.16 Id. at 11.

       Following Hai Minh Nguyen and Kirkwood, Division One held that a condition prohibiting

the defendant from entering “ ‘any parks/playgrounds/schools and or any places where minors

congregate’ ” was unconstitutionally void for vagueness. State v. Norris, 1 Wn. App.2d 87, 95,



16
  And the Kirkwood court noted that State v. Magana, 197 Wn. App. 189, 389 P.3d 654 (2016),
had since followed Irwin and held a similar community custody condition unconstitutionally vague
“even though it enumerated several specific prohibited locations.” Kirkwood, No. 74777-1, slip
op. at 12. The Kirkwood court erroneously stated that Magana was a case from Division Two;
Magana was decided by Division Three. And when Division One observed that Division Three
had struck a similar condition “even though it enumerated several specific prohibited locations,”
the court misinterpreted Division Three’s holding. Kirkwood, No. 74777-1, slip op. at 12. In
Magana, Division Three did strike a condition that contained an illustrative list, but only because
that condition “afford[ed] too much discretion to Mr. Magana’s CCO.” 197 Wn. App. at 201.


                                                  16
50250-0-II


404 P.3d 83 (2017) (quoting Irwin, 191Wn. App. 644), review granted, 190 Wn.2d 1002 (2018).

There, the court accepted the State’s concession that “ ‘any places where minors congregate’ ” was

unconstitutionally vague. Id. The Norris court agreed with the State that deleting “ ‘and or any

places’ ” so that the condition read, “ ‘Do not enter any parks/playgrounds/schools where minors

congregate,’ ” would cure the condition from being unconstitutionally vague. Id. at 95-96.

         After deciding Norris, Division One addressed a vagueness challenge to the identical

community custody condition at issue in Norris. See State v. Bruno, No. 74647-2, slip op. 13

(Wash. Ct. App. Nov. 6, 2017) (unpublished).17 However, instead of only striking “and or any

places” from the challenged condition (as the Norris court did), the Bruno court held the entire

second clause “and or any places where minors congregate” to be unconstitutionally vague. Id.

at 14. The Bruno court did not cite to Norris in reaching its holding. Id. at 13-14.

         Following Bruno, Division One faced the same vagueness challenge to the identical

community custody condition at issue in Norris and Bruno. See State v. Santiago, No. 74421-6,

slip op. at 12 (Wash. Ct. App. Nov. 20, 2017) (unpublished).18 Unlike the Bruno court, the

Santiago court relied on the Norris holding to strike “ ‘and or any places’ ” from the condition as

unconstitutionally vague. Id. at 12-13. The Santiago court held that the condition, “ ‘Do not enter

any parks/playgrounds/schools where minors congregate’ ” listed specific prohibited locations and

therefore was not void for vagueness. Id. at 13.

         However, most recently, Division One upheld a community custody condition as not

unconstitutionally vague because it contained an illustrative list of prohibited locations showing




17
     http://www.courts.wa.gov/opinions/pdf/746472.pdf
18
     http://www.courts.wa.gov/opinions/pdf/74421-6.pdf



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what constituted “ ‘areas where minor children are known to congregate.’ ” State v. Youderian,

No. 76359-8, slip op. at 12 (Wash. Ct. App. June 25, 2018) (unpublished).19 There, the Youderian

court reasoned that under Irwin, a community custody condition that contains an “illustrative list

of prohibited locations” provides sufficient notice to understand what conduct is proscribed. Id.

at 14. Thus, in its most recent holding, Division One has not interpreted its holding in Irwin as

requiring the sentencing court to “specify[] the exact off-limits locations” in order to survive a

constitutional vagueness challenge.

B.       Community Custody Condition Not Unconstitutionally Vague

         The majority relies on Norris. However, the condition at issue in Norris was problematic

even under the Irwin holding because it did not use “ ‘parks/playgrounds/schools’ ” as an

illustrative list of prohibited locations. 1 Wn. App.2d at 95. Instead, the condition read: “ ‘Do not

enter any parks/playgrounds/schools and or any places where minors congregate.’ ” Id. The use

of “and or any places” suggested that “parks/playgrounds/schools” were separate from “places

where minors congregate” and not an illustrative list of such places. Conversely, here, the

condition uses parks, schools, and playgrounds as examples of locations where minors congregate.

         Also problematic is that Division One’s most recent approach in Norris would raise

separate vagueness concerns. Modifying a community custody condition to read, “Do not enter

any parks/playgrounds/schools where minors congregate” means a park is no longer an illustrative

example of a kind of location where children congregate. Under Norris, the defendant is not

prohibited from all parks, just those parks where children are known to congregate. The phrase

“parks where minors congregate” suggests there are two types of parks—ones in which minors

congregate and ones in which they do not. Perhaps these separate categories of parks do exist, but



19
     https://www.courts.wa.gov/opinions/pdf/763598.pdf


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absent further clarifying language or an illustrative list of examples, a defendant may arguably be

unable to distinguish between the two.

       For these reasons, I would continue to follow Irwin and hold that an illustrative list of

examples affords ordinary persons sufficient notice of the conduct proscribed. Thus, I respectfully

dissent and would hold the challenged community custody condition is not unconstitutionally

vague. Accordingly, I would affirm Wallmuller’s sentence.



                                                     Lee, J.




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