                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                       November 14, 2018
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                                 No. 50252-6-II

                               Respondent,

        v.

 JESUS NICOLAS GORDILLO REYES,                                UNPUBLISHED OPINION

                               Appellant.

       WORSWICK, J. — Jesus Gordillo Reyes appeals his convictions and sentence. Gordillo

Reyes pleaded guilty to four counts of second degree child molestation. For the first time on

appeal, Gordillo Reyes argues that his plea was invalid. Specifically, Gordillo Reyes asserts that

the trial court improperly advised him of a direct consequence of his plea because the trial court

stated that Gordillo Reyes would be subject to community custody, but the court did not impose

community custody. The State argues that Gordillo Reyes cannot raise this issue for the first

time on appeal. Gordillo Reyes also argues that the trial court imposed an impermissibly broad

sentencing condition when it ordered him to have no contact with minors, which included his

minor biological daughter.

       We hold that Gordillo Reyes’s claim that his plea was invalid fails because he cannot

show a manifest error affecting a constitutional right. However, we strike the sentencing

condition prohibiting Gordillo Reyes from contact with all minors and remand for the trial court

to impose a sentencing condition after considering Gordillo Reyes’s fundamental right to parent

in conjunction with the compelling interest of protecting children.
No. 50252-6-II


                                              FACTS

       On January 4, 2016, the State charged Gordillo Reyes with three counts of first degree

child molestation and one count of first degree rape of a child. Gordillo Reyes ultimately agreed

to plead guilty to an amended information charging him with four counts of second degree child

molestation.

       Gordillo Reyes’s statement on plea of guilty lists the State’s recommendation which

included “120 mos (Agreed Exceptional)” and “community custody.” Clerk’s Papers (CP) at 11.

The maximum term for his crimes was a sentence of 120 months. RCW 9A.20.021(1)(b). The

statement also contained boilerplate language stating:

       If this offense is a sex offense that is not listed [above], then in addition to
       sentencing me to a term of confinement, the judge may order me to serve up to one
       year of community custody if the total period of confinement ordered is not more
       than 12 months. If the period of confinement is over one year . . . the judge will
       sentence me to community custody for 36 months or up to the period of earned
       release, whichever is longer.

CP at 10. The statement on plea of guilty further stated that the trial court did not have to follow

any recommendations as to sentencing.

       At the plea hearing, while discussing the State’s recommendations, the following

conversation occurred:

       THE COURT: In Paragraph 6G is the prosecutor’s recommendation for sentence
       in this case, if you enter your plea of guilty today, 120 months. It’s an agreed
       exceptional sentence. That you’d have a psychosexual evaluation, required—you’d
       be required to have an HIV test. You’re to have no contact with minors. Okay?
               I can’t read this.
       [DEFENSE COUNSEL]: I can read that into the record.
       THE COURT: It’s “community” something.
       [THE STATE]: Probably custody, Your Honor.
       [DEFENSE COUNSEL]: I can read that into the record, if you wish.
       THE COURT: Okay. Community—you would be subject to community custody.
       You’re to register as a sex offender.


                                                 2
No. 50252-6-II



Verbatim Report of Proceedings (VRP) (Feb. 3, 2017) at 12.

       Gordillo Reyes affirmed that he had gone over the statement of defendant on plea of

guilty with his attorney and that his attorney was able to answer all of Gordillo Reyes’s

questions. The trial court accepted Gordillo Reyes’s guilty plea. Also during the plea hearing,

Gordillo Reyes requested to have contact with his minor daughter, and the court allowed

Gordillo Reyes to have supervised telephonic contact with his daughter prior to sentencing. The

State did not object to Gordillo Reyes having supervised contact with his minor daughter prior to

sentencing.

       At sentencing, the prosecutor articulated the State’s recommendation into the record. The

State represented to the trial court that the recommendation was agreed, stating, “The State’s

recommendation is as follows: An agreed exceptional sentence of 120 months without

community custody upon release.” VRP (April 14 2017) at 22 (emphasis added). Gordillo

Reyes’s attorney acknowledged that the maximum sentence was agreed by asking the court to

“follow the recommendation.” VRP (April 14 2017) at 27. The trial court imposed the parties’

joint exceptional sentencing recommendation of 120 months, and entered findings of fact and

conclusions of law in support of that exceptional sentence. The trial court could not, and did not

impose any community custody. The court also ordered that Gordillo Reyes have no contact

with minors.

       Gordillo Reyes appeals his guilty plea convictions and his sentencing condition of no

contact with minors.




                                                 3
No. 50252-6-II


                                           ANALYSIS

                                         I. GUILTY PLEA

       Gordillo Reyes argues that his guilty plea is involuntary because the trial court

misinformed him about a direct consequence of his guilty plea, specifically that he would receive

community custody as part of his sentence. Gordillo Reyes asserts that the court never informed

him that he would not be subject to community custody if he agreed to the exceptional sentence.

The State argues that Gordillo Reyes waived this argument because he did not raise it in the trial

court and because he fails to demonstrate a manifest error affecting a constitutional right. We

agree with the State that Gordillo Reyes has failed to show manifest error.

       “Generally, a defendant waives any issues he did not raise in the trial court.” State v.

Knotek, 136 Wn. App. 412, 422, 149 P.3d 676 (2006); RAP 2.5. However, a defendant may

raise a “manifest error affecting a constitutional right” for the first time on appeal. RAP

2.5(a)(3). The alleged error here is undisputedly one of constitutional magnitude because due

process requires that a defendant’s guilty plea be knowing, voluntary, and intelligent. State v.

Weyrich, 163 Wn.2d 554, 556, 182 P.3d 965 (2008). However, the alleged error must also be

manifest. State v. Walsh, 143 Wn.2d 1, 8, 17 P.3d 591 (2001). A manifest error requires a

showing of actual prejudice. Walsh, 143 Wn.2d at 8. In determining whether an error is

manifest, we preview the merits of the claimed error to determine whether the argument is likely

to succeed. Walsh, 143 Wn.2d at 8. Demonstrating that a plea was involuntary is sufficient to




                                                 4
No. 50252-6-II


prove a manifest injustice. Walsh, 143 Wn.2d at 8. Thus, we examine the merits of Gordillo

Reyes’s argument to determine whether it is likely to succeed.1

       A guilty plea may be deemed involuntary when it is based on misinformation regarding a

direct consequence of the plea. State v. Buckman, 190 Wn.2d 51, 59, 409 P.3d 193 (2018). A

defendant must be informed of all direct consequences of pleading guilty, including mandatory

community custody. State v. Turley, 149 Wn.2d 395, 398-99, 69 P.3d 338 (2003). Failure to

inform a defendant that he will be subject to mandatory community custody if he pleads guilty

renders a plea invalid. Turley, 149 Wn.2d at 399. When a defendant completes a written plea

statement and admits to reading, understanding, and signing the statement, a strong presumption

arises that the plea was voluntary. State v. Smith, 134 Wn.2d 849, 852, 953 P.2d 810 (1998).

       Second degree child molestation is a class B felony. RCW 9A.44.086(2). The maximum

allowable sentence for a class B felony is 120 months. RCW 9A.20.021(1)(b). “‘[C]ourts must

limit the total sentence they impose to the statutory maximum.’” State v. Hagler, 150 Wn. App.

196, 204, 208 P.3d 32 (2009) (quoting State v. Linerud, 147 Wn. App. 944, 951, 197 P. 3d 1224

(2008)). “Community custody” is a portion of an offender’s confinement that is served in the

community. In re Postsentence Petition of Smith, 139 Wn. App. 600, 603 n.1, 161 P.3d 483

(2007). So long as the trial court complies with the applicable sentencing statutes, it “is within


1
 Gordillo Reyes cites to State v. Mendoza, 157 Wn.2d 582, 141 P.3d 49 (2006) to assert that he
has not waived his right to contest the validity of his plea “because no one brought the
misinformation to his attention” prior to sentencing. Br. of App. at 10. Mendoza held that a
defendant who does not object to sentencing or move to withdraw his plea when he learned of a
mistake in his offender score before sentencing waived the ability to challenge his plea on
appeal. 157 Wn.2d at 584. Mendoza did not address whether a defendant waives the ability to
challenge his plea for the first time on appeal where the defendant has not shown manifest
constitutional error.



                                                 5
No. 50252-6-II


the trial court’s discretion to determine how much of that sentence is confinement and how much

is community custody.” Hagler, 150 Wn. App. at 204; Linerud, 147 Wn. App. at 951.

       Here, Gordillo Reyes agreed to be sentenced to 120 months. But the trial court was not

bound by that agreement. RCW 9.94A.431(2). During the plea colloquy, the trial court did not

tell Gordillo Reyes that he would be sentenced to community custody. Rather, the court stated

that Gordillo Reyes would be “subject to community custody.” VRP (Feb. 3, 2017) at 12. And

although the statement on defendant’s plea of guilty stated that Gordillo Reyes would be

sentenced to 36 months community custody, “or up to the period of earned release, whichever

[was] longer,” the form also made clear that community custody was “in addition” to “a term of

confinement.” CP at 10.

       Because the court sentenced Gordillo Reyes to the maximum term allowed under the law,

sentencing Gordillo Reyes to community custody was a legal impossibility, and therefore not a

direct consequence of his plea requiring disclosure by the trial court. The court’s decision in

State v. Acevedo, 137 Wn.2d 179, 970 P.2d 299 (1999) is informative here. In Acevedo, a

noncitizen defendant was arrested for an outstanding warrant for forgery. 137 Wn.2d at 184,

196. The trial court informed Acevedo that if he pleaded guilty, he might be deported after his

sentence. Acevedo, 137 Wn.2d at 186. But the court did not inform him that he would have to

serve community placement if he were not deported. Acevedo, 137 Wn.2d at 196.

       The court held that while community placement is generally a direct consequence

requiring disclosure by the court, Acevedo’s community placement was not a direct consequence

of his guilty plea because it was not material to his decision to plead guilty as failed to claim that

he would not have pleaded guilty if he knew about the community custody placement, and



                                                  6
No. 50252-6-II


because he was “not likely ever be available to serve a term of community placement” due to his

deportation. Acevedo, 137 Wn.2d at 196.

       Similarly here, Gordillo Reyes never asserted or suggested that he would not have

pleaded guilty if he had been informed of the lack of availability of community custody. Further,

it was impossible for Gordillo Reyes to serve any community custody because the court

sentenced him to the agreed exceptional sentence of 120 months, the statutory maximum for his

crimes. This sentence, agreed to by Gordillo Reyes, leaves no room for community custody as a

possible sentence. Accordingly, community custody placement in this case was not a direct

consequence of Gordillo Reyes’s plea.

       Because community custody was not a direct consequence of his guilty plea, Gordillo

Reyes’s argument that the trial court misinformed him about community custody is without

merit. Accordingly, Gordillo Reyes fails to demonstrate that his plea was involuntary and

therefore fails to demonstrate manifest error. See Walsh, 143 Wn.2d at 8. We therefore do not

consider Gordillo Reyes’s argument that his plea was invalid.

                                            II. SENTENCE

       Gordillo Reyes next argues that the trial court erred by imposing a no-contact condition

that barred him from having contact with his daughter. Gordillo Reyes asserts that he has a

constitutional right to have a relationship with his daughter, and that the State failed to

demonstrate that restricting communication with his daughter is reasonably necessary to realize a

compelling state interest. The State argues that the court did not err because Gordillo Reyes

agreed to his sentence and the court was not advised of Gordillo Reyes’s parenting interest.




                                                  7
No. 50252-6-II


       The Sentencing Reform Act of 1981, chapter 9.94A RCW, authorizes the trial court to

impose “crime-related prohibitions” as a condition of a sentence. RCW 9.94A.505(9). A

“crime-related prohibition” prohibits “conduct that directly relates to the circumstances of the

crime for which the offender has been convicted.” RCW 9.94A.030(10). We review the

imposition of community custody conditions for an abuse of discretion. State v. Padilla, 190

Wn.2d 672, 677, 416 P.3d 712 (2018). A trial court abuses its discretion by imposing an

unconstitutional condition. Padilla, 190 Wn.2d at 677.

       “More careful review of sentencing conditions is required where those conditions

interfere with a fundamental constitutional right.” State v. Warren, 165 Wn.2d 17, 32, 195 P.3d

940 (2008). The right to the care, custody, and companionship of one’s children constitutes such

a fundamental constitutional right. In re Pers. Restraint of Rainey, 168 Wn.2d 367, 374, 229

P.3d 686 (2010). “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). These conditions must be “sensitively imposed” so that they are

“reasonably necessary to accomplish the essential needs of the State and public order.” Warren,

165 Wn.2d at 32. 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.

       In Rainey, our Supreme Court struck down a lifetime no-contact order prohibiting Rainey

from all contact with his child where the sentencing court did not articulate any reasonable

necessity for the lifetime duration of that order. 168 Wn.2d at 381-82. Recognizing the “fact-



                                                 8
No. 50252-6-II


specific nature of the inquiry,” the court remanded to the trial court for resentencing so that the

court could “address the parameters of the no-contact order under the ‘reasonably necessary’

standard.” Rainey, 168 Wn.2d at 382.

       Here, the trial court ordered Gordillo Reyes to have no contact with minors. Because the

no-contact condition implicates Gordillo Reyes’s fundamental right to the care, custody, and

companionship of his child who is a minor, “[t]he question is whether, on the facts of this case,

prohibiting all contact with [his children], including indirect or supervised contact, is reasonably

necessary to realize [a compelling State interest].” Rainey, 168 Wn.2d at 379. In order for the

sentencing condition to be constitutionally valid, “[t]here must be no reasonable alternative way

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

       Here, in imposing the sentencing condition, the trial court set forth no explanation as to

whether the no-contact condition was reasonably necessary to realize a compelling state interest.

Moreover, although the State has a compelling interest in protecting children from harm, the

State failed to demonstrate how prohibiting all contact between Gordillo Reyes and his child was

reasonably necessary to effectuate that interest. The record is void of any information showing

that the trial court considered Gordillo Reyes’s fundamental right to parent his daughter when

conditioning that Gordillo Reyes have no contact with minors. Thus, the record does not show

that the court “sensitively imposed” the no-contact provision in a manner that was “reasonably

necessary” to further the compelling interest of protecting children.

       The State asserts that, at the time of sentencing, the court had not been advised that

Gordillo Reyes had an ongoing parenting interest. The State asserts that had the court known

that Gordillo Reyes had a parenting interest, the court’s factual inquiry would “have been much



                                                  9
No. 50252-6-II


different” and the court would have been obliged to consider Gordillo Reyes rights to parent in

context of the no contact with minors sentencing condition. Br. of Resp’t at 11. The State’s

argument is not well taken. Prior to sentencing, Gordillo Reyes informed the court of his desire

to have contact with his minor daughter and the court allowed Gordillo Reyes to have contact

with his daughter. Accordingly, the trial court did have notice of Gordillo Reyes’s parenting

interest.

        The State also argues that the trial court did not abuse its discretion because Gordillo

Reyes agreed to his sentence. While Gordillo Reyes may have agreed to the State’s

recommendation that he have no contact with minors, the record lacks any information that

Gordillo Reyes affirmatively agreed to have no contact with his minor daughter. The record

does show however that prior to sentencing, the State had no issue with Gordillo Reyes having

supervised contact with his daughter.

        Gordillo Reyes never explicitly agreed to a sentencing condition prohibiting him from

having any contact with his child. We therefore do not construe Gordillo Reyes agreement to the

State’s sentencing recommendation as being an affirmative agreement to having no contact with

his daughter, especially where his fundamental right to parent must be considered.

        Because the court’s sentencing condition implicates Gordillo Reyes’s fundamental

constitutional right to parent, the trial court is required to determine whether the no-contact

condition is reasonably necessary to further the compelling interest in preventing harm and

protecting children.

        Accordingly, we affirm Gordillo Reyes’s guilty plea. However, we strike the sentencing

condition prohibiting Gordillo Reyes from contact with all minors, and remand to the trial court



                                                 10
No. 50252-6-II


to consider whether prohibiting Gordillo Reyes from contact with his daughter is reasonably

necessary under the principles discussed above.

       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, C.J.




 Melnick, J.




                                               11
