                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                        January 15, 2019




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
 STATE OF WASHINGTON,                                              No. 50653-0-II

                               Respondent,                   UNPUBLISHED OPINION

         v.

 QUINN ROBINETT,

                               Appellant.

        BJORGEN, J. — Quinn Robinett appeals from community custody conditions and legal

financial obligations (LFOs) imposed as part of his sentence following his guilty pleas to

attempted second degree child molestation and third degree child molestation. Robinett contends

that the community custody condition prohibiting him from forming relationships with

individuals who have care or custody of minor children without prior authorization is

unconstitutionally vague and that the sentencing court lacked statutory authority to impose the

condition. Robinett also contends that the sentencing court lacked statutory authority to impose

the condition requiring approval before having overnight guests in his residence and before

staying overnight at places other than his residence. Additionally, Robinett contends that recent

amendments to the LFO statutes and our Supreme Court’s recent decision in State v. Ramirez,

191 Wn.2d 732, 426 P.3d 714 (2018), require that we remand for the trial court to strike a $200

criminal filing fee.
No. 50653-0-II


         We affirm in part, reverse in part, and remand with instructions to strike or modify the

community custody condition prohibiting forming relationships with certain individuals without

prior authorization and to strike the $200 criminal filing fee.

                                               FACTS

         On June 5, 2017, the State charged Robinett by amended information with first degree

child rape, two counts of third degree child rape, two counts of first degree child molestation,

and attempted second degree child molestation. Robinett later entered an Alford1 plea of guilty

to attempted second degree child molestation and third degree child molestation. As part of his

plea, Robinett agreed that the trial court could review police reports and statements of probable

cause to establish a factual basis for his guilty pleas. The statements of probable cause stated the

following:

         On 05-02-16 victim ARR2 DOB [date of birth] 11-05-98 was interviewed by a
         forensic child interviewer with the Kitsap County Sexual Assault Unit. During the
         interview, ARR disclosed when she was 9 YOA [years of age], her father Quinn
         Robinett got under the covers with her. While under the covers, Quinn placed his
         hand up her shirt rubbing her back and stomach. Quinn tried to place his hand up
         her bra, but stopped when ARR told him no. ARR said during another incident,
         Quinn and her were in the same bed together. Quinn was lying behind ARR, she
         was on her side facing away from Quinn and she could feel his erect penis against
         her butt.

         ....




1
    North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
2
 We refer to A.R.R., R.K.R., and M.J.R. by their initials. See General Orders of Division II,
2011-1 In Re the Use of Initials or Pseudonyms For Child Witness in Sex Crimes.




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No. 50653-0-II


        On 05-02-16 victim RKR DOB 09-18-2002 was interviewed by a forensic child
        interviewer with the Kitsap County Sexual Assault Unit. During the interview,
        RKR said when she was 9 YOA, her father Quinn got into bed with her. Quinn put
        his hand down her pants and rubbe[d] her private parts on her bare skin. RKR said
        when she was 10 YOA, Quinn was lying behind her in bed and she could feel his
        private against her butt. She described his private as sticking out.

        ....

        On 05-02-16 victim MJR DOB 11-04-2001 was interviewed by a forensic child
        interviewer with the Kitsap County Sexual Assault Unit. During the interview,
        MJR said shortly before she turned 14 YOA, Quinn pulled down her pants and
        placed his penis partway into her vagina. MJR said during this she said “OWE”.
        Quinn removed his penis, but continued touching her vagina with his hand. MJR
        said that since she was 3 YOA, she recalled Quinn touching her vagina and placing
        his finger inside her vagina.

Clerk’s Papers (CP) at 7-10. The trial court accepted Robinett’s guilty pleas, finding that

Robinett was knowingly, intelligently, and voluntarily pleading guilty to the charges and that the

statements of probable cause established a factual basis for his pleas.

        At sentencing, the trial court imposed several community custody conditions, including

the following conditions to which Robinett objected:

        17. Shall have prior approval for all residential and employment situations,
        including overnight guests at his approved residence and overnight stays at places
        other than his approved residence subject to review after completion of
        psychosexual eval[uation].

        ....

        20. Shall not form relationships with individuals who have care or custody of minor
        children without authorization from the CCO [(community corrections officer)]
        and/or therapist.

CP at 94. The trial court also imposed LFOs that included a $200 criminal filing fee. Robinett

appeals from the imposition of the above community custody conditions and the $200 criminal

filing fee.




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No. 50653-0-II


                                           ANALYSIS

            I. STATUTORY AUTHORITY TO IMPOSE COMMUNITY CUSTODY CONDITIONS

       Robinett first contends that the trial court lacked statutory authority to impose the

community custody conditions requiring prior approval (1) before forming relationships with

individuals who have care or custody of minor children and (2) before having overnight guests at

his approved residence or staying overnight at places other than his approved residence. We

disagree.

       “A trial court’s sentencing authority is limited to that granted by statute.” State v. Button,

184 Wn. App. 442, 446, 339 P.3d 182 (2014). Former RCW 9.94A.703(3)(f) (2015) grants trial

courts the discretionary authority to impose “crime-related prohibitions” as a condition of

community custody. Former RCW 9.94A.030(10) (2015) defined “crime-related prohibition” as:

       [A]n order of court prohibiting conduct that directly relates to the circumstances of
       the crime for which the offender has been convicted, and shall not be construed to
       mean orders directing an offender affirmatively to participate in rehabilitative
       programs or to otherwise perform affirmative conduct. However, affirmative acts
       necessary to monitor compliance with the order of a court may be required by the
       department.

       We review the imposition of a crime-related prohibition for an abuse of discretion. State

v. Nguyen, 191 Wn.2d 671, 425 P.3d 847 (2018); State v. Armendariz, 160 Wn.2d 106, 110, 156

P.3d 201 (2007). Regarding our standard of review from the imposition of crime-related

prohibitions, our Supreme Court recently noted:

       While it is true the prohibited conduct must directly relate to the circumstances of
       the crime, “[t]his court reviews sentencing conditions for abuse of discretion. State
       v. Riley, 121 Wn.2d 22, 37, 846 P.2d 1365 (1993). Such conditions are usually
       upheld if reasonably crime related. Id. at 36-37”; State v. Warren, 165 Wn.2d 17,
       32, 195 P.3d 940 (2008). A court does not abuse its discretion if a “reasonable
       relationship” between the crime of conviction and the community custody
       condition exists. State v. Irwin, 191 Wn. App. 644, 658-59, 364 P.3d 830 (2015).
       The prohibited conduct need not be identical to the crime of conviction, but there
       must be “some basis for the connection.” Id. at 657.

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No. 50653-0-II


Nguyen, 191 Wn.2d at 683-84. In applying this standard, the Nguyen court held that a condition

prohibiting an offender from possessing or viewing sexually explicit material was reasonably

related to his crime of child rape and molestation, reasoning:

        Nguyen committed sex crimes and, in doing so, established his inability to control
        his sexual urges. It is both logical and reasonable to conclude that a convicted
        person who cannot suppress sexual urges should be prohibited from accessing
        “sexually explicit materials,” the only purpose of which is to invoke sexual
        stimulation.

191 Wn.2d at 686.

        The Nguyen court similarly held that a condition prohibiting an offender from entering any

sex-related business was reasonably related to her crimes of second degree child molestation

despite “nothing in the record suggest[ing] that [the offender] met her victim in a ‘sex-related

business’ or that her presence in such a business played a role in her crimes.” 191 Wn.2d at 687.

In upholding this condition, our Supreme Court again relied on the offender’s inability to control

her sexual urges, noting that “it is reasonable to conclude that Norris will struggle to rehabilitate

from her sexual deviance so long as she frequents ‘sex-related businesses.’” Nguyen, 191 Wn.2d

at 687. With Nguyen setting forth the standard for determining whether a reasonable relationship

exists between a crime-related probation and the crime of conviction, we turn to the conditions at

issue in this case.

A.      Overnight Guests/Overnight Stays at Places Other than Approved Residence

        Robinett’s community custody condition 17 requires that he “[s]hall have prior approval

for all residential and employment situations, including overnight guests at his approved

residence and overnight stays at places other than his approved residence subject to review after

completion of psychosexual eval[uation].” CP at 94. Robinett challenges the portion of this

condition requiring prior approval before having an overnight guest at his approved residence



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No. 50653-0-II


and before staying overnight at a place other than his residence. Robinett argues that this

condition is not related to his crime because he did not commit his offenses against an overnight

guest in his home or while staying overnight at a place other than his home. We disagree.

       The facts underlying Robinett’s guilty plea convictions as set forth in the statement of

probable cause establish that he committed multiple offenses against at least two of his three

minor victims while the victims were in their beds. Although Robinett committed his offenses

against his daughters in the family home and not against overnight guests or while staying

overnight at a place other than the family home, our Supreme Court has made clear that there

need not be a direct causal link between the prohibited conduct and the offender’s crime “[s]o

long as it is reasonable to conclude that there is a sufficient connection between the prohibition

and the crime of conviction.” Nguyen, 191 Wn.2d at 685-86. In light of the fact that Robinett

committed his offenses against victims while the victims were lying in their beds, it was

reasonable for the trial court to conclude that he should be prohibited from having overnight

guests or staying overnight at places other than his approved residence without prior approval.

Accordingly, we hold that the trial court did not abuse its discretion in imposing this condition.3




3
 We hold in this opinion that under Nguyen the condition challenged in Part A is statutorily
authorized by former RCW 9.94A.703(3)(f). As guidance, we note that the challenged condition
would likely not be authorized by RCW 9.94A.704(3)(b) and (c), as the State also argues. Those
provisions state, “If the offender is supervised by the department, the department shall at a
minimum instruct the offender to: . . . (b) Remain within prescribed geographical boundaries; (c)
Notify the community corrections officer of any change in the offender’s address or
employment.” It does not appear that these provisions would apply to a prohibition on overnight
guests, since that condition is unrelated to a geographical boundary or change in address.
Similarly, a prohibition on staying overnight at places other than the offender’s residence does
not appear to relate to a change in address or prescribed geographical boundary.

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No. 50653-0-II


B.     Relationships

       Robinett’s community custody condition 20 states that he “[s]hall not form relationships

with individuals who have care or custody of minor children without authorization from the CCO

and/or therapist.” CP at 94. Robinett asserts that this condition is not related to his crimes

because he did not commit the crimes against children whom he had accessed by forming social

relationships with their parents. We disagree and hold that, under our Supreme Court’s analysis

in Nguyen, the condition is sufficiently related to his crimes of conviction. As in Nguyen,

Robinett’s sex crime convictions demonstrate his inability to control his sexual urges around

minor children. As such, it was reasonable for the trial court to conclude that Robinett “will

struggle to rehabilitate from [his] sexual deviance” if permitted to form relationships with people

who may provide him with access to their minor children absent prior approval. Nguyen, 191

Wn.2d at 687. Accordingly, we reject Robinett’s challenge to this condition on this ground.

This does not end our inquiry however, as Robinett also challenges this condition as

unconstitutionally vague.

                                          II. VAGUENESS

       Robinett contends that the condition prohibiting him from forming relationships with

individuals who have care or custody of minor children without prior authorization is

unconstitutionally vague. We agree that the condition as written is unconstitutionally vague.

       Due process under the Fourteenth Amendment of the United States Constitution and

article I, section 3 of the Washington State Constitution requires that sentencing conditions

provide “fair warning of proscribed conduct.” State v. Bahl, 164 Wn.2d 739, 752, 193 P.3d 678

(2008).4 A sentencing condition is unconstitutionally vague if it “‘does not define the criminal




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No. 50653-0-II


offense with sufficient definiteness that ordinary people can understand what conduct is

proscribed’” or if it “‘does not provide ascertainable standards of guilt to protect against arbitrary

enforcement.’” Bahl, 164 Wn.2d at 752-53 (quoting City of Spokane v. Douglass, 115 Wn.2d

171, 178, 795 P.2d 693 (1990)).

       In United States v. Reeves, 591 F.3d 77, 80-81 (2d Cir. 2010), the Second Circuit of the

United States Court of Appeals held that a condition requiring the offender to notify the

probation department “when he establishes a significant romantic relationship” was unduly

vague, reasoning:

       We easily conclude that people of common intelligence (or, for that matter, of high
       intelligence) would find it impossible to agree on the proper application of a release
       condition triggered by entry into a “significant romantic relationship.” What makes
       a relationship “romantic,” let alone “significant” in its romantic depth, can be the
       subject of endless debate that varies across generations, regions, and genders. For
       some, it would involve the exchange of gifts such as flowers or chocolates; for
       others, it would depend on acts of physical intimacy; and for still others, all of these
       elements could be present yet the relationship, without a promise of exclusivity,
       would not be “significant.” The history of romance is replete with precisely these
       blurred lines and misunderstandings. See, e.g., Wolfgang Amadeus Mozart, The
       Marriage of Figaro (1786); Jane Austen, Mansfield Park (Thomas Egerton, 1814);
       When Harry Met Sally (Columbia Pictures 1989); He’s Just Not That Into You
       (Flower Films 2009).

       We agree with the reasoning in Reeves. Although Robinett’s condition prohibiting him

from “forming relationships” with certain individuals absent prior approval lacks the qualifiers

identified as problematic in Reeves, the lack of these or any qualifiers to the term “relationship”

subjects the prohibitive condition to the same sort of varied and inconsistent interpretations,

rendering it unconstitutionally vague.



4
 Our Supreme Court has “treated our state due process clause coextensively with its federal
counterpart.” State v. Jordan, 180 Wn.2d 456, 462, 325 P.3d 181 (2014); see also Bellevue Sch.
Dist. v. E.S., 171 Wn.2d 695, 710-14, 257 P.3d 570 (2011); In re Pers. Restraint of Dyer, 143
Wn.2d 384, 394, 20 P.3d 907 (2001).

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No. 50653-0-II


       In Nguyen, our Supreme Court recognized the definition of “relationship” as “‘a state of

affairs existing between those having relations.’” Nguyen, 191 Wn.2d at 682 (quoting

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 576 (2002)). As Robinett argues in his

brief, the broad definition of “relationship” could encompass any recurring interactions with a

business associate, co-worker, barista, attorney, doctor, or letter carrier. Br. of Appellant at 7.

Unlike the term “dating relationship,” which is statutorily defined in RCW 26.50.010(2) and was

held by the Nguyen court to be sufficiently definite to withstand a vagueness challenge, people of

ordinary intelligence, including corrections officers charged with enforcing this condition, could

reasonably disagree as to when a person forms a relationship with another.

       Therefore, the condition lacks the definiteness needed to allow ordinary people to

understand what conduct is proscribed, and it permits arbitrary enforcement by granting

corrections officers broad discretion to determine when an encounter between Robinett and

another individual has crossed the obscure threshold of forming a relationship. Accordingly, we

hold that this community custody condition relating to forming relationships is unconstitutionally

vague, and we remand with instructions to strike the condition as written or to modify it to avoid

unconstitutional vagueness.

                                              III. LFOS

       Next, Robinett contends that we must remand to the trial court to strike the $200 criminal

filing fee under recent amendments to the LFO statutes and Ramirez, 191 Wn.2d 732. The State

concedes that remand is required to strike the $200 criminal filing fee. We accept the State’s

concession regarding the $200 filing fee and direct the trial court to strike this fee on remand.




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No. 50653-0-II


        The legislature recently amended former RCW 36.18.020(2)(h) (2017), and as of June 7,

2018, trial courts are prohibited from imposing the $200 criminal filing fee on defendants who

are indigent at the time of sentencing. LAWS OF 2018, ch. 269, § 17; Ramirez, 191 Wn.2d 739.

Our Supreme Court has held that the amendment applies prospectively and is applicable to cases

pending on direct review and not final when the amendment was enacted. Ramirez, 191 Wn.2d

at 748. Because Robinett was indigent at the time of sentencing and because amendments to

former RCW 36.18.020 apply to Robinett’s sentence under Ramirez, we remand with direction to

strike the $200 criminal filing fee from his sentence.

        In summary, we affirm the community custody condition requiring Robinett to obtain

prior approval for overnight guests at his approved residence and to stay overnight at places

other than his approved residence, and we remand with instructions to (1) strike the “forming

relationships” community custody condition as written or modify it to avoid unconstitutional

vagueness and (2) strike the $200 criminal filing fee.

        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.



                                                      Bjorgen, J.
 We concur:



 Johanson, P.J.




 Sutton, J.



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