                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                           June 2, 2020


      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    STATE OF WASHINGTON,                                            No. 52256-0-II

                                Respondent,

         v.

    JEFFREY WILLIAM HOCH,                                     UNPUBLISHED OPINION

                                Appellant.

        LEE, C.J. — Jeffrey W. Hoch appeals the denial of his CrR 7.8 motion to modify conditions

of community custody. Hoch argues that the community custody condition that does not allow

him to have contact with any minors violates his fundamental right to the care and companionship

of his biological children. The State argues that the superior court did not have the authority to

modify the condition and that Hoch’s claim is time-barred. We agree with the State and affirm the

superior court’s denial of Hoch’s motion.

                                              FACTS

        In 2005, Jeffrey Hoch pleaded guilty to two counts of rape of a child in the second degree.1

The victim was the daughter of Hoch’s girlfriend, with whom he lived. The trial court sentenced

Hoch to 136 months to life in confinement.2 The trial court also imposed a community custody




1
    RCW 9A.44.076.
2
  Former RCW 9.94A.712 (2005), recodified as RCW 9.94A.507 (LAWS OF 2008, ch. 231, sec.
56(4).
No. 52256-0-II


condition that Hoch have, “[n]o contact with any minors under age 18 years old.” Clerk’s Papers

(CP) 13.

       Thirteen years later, on June 13, 2018, Hoch filed a Motion to Modify Conditions of

Community Custody to allow for visitation with his biological children under CrR 7.8(a).3 Hoch

argued that the terms of the community custody condition were ambiguous because they did not

“address defendants who have biological children who are not victims and are not at risk of harm.”

CP at 17. Hoch contended that the condition denied him of his fundamental right to parent his

child and was not narrowly tailored or reasonably necessary to protect the state interest of

protecting children from harm. He requested that the condition be changed to: “no contact with

female minors without prior approval from CCO and or therapist. . . . Defendant is not restricted

from contact with his own biological minor children.” CP at 20. In support of his motion, Hoch

provided a declaration from the legal guardian of his biological son. This declaration supported

Hoch contacting his son.




3
    Hoch filed the motion pursuant to CrR. 7.8(a). CrR 7.8(a) involves clerical mistakes in
judgments, orders, or other parts of the record. Hoch moved to make a substantive change—that
he be allowed visitation with his biological children despite the community custody condition
which states, “No contact with any minors under age 18 years old.” CP at 17-18. This motion
falls more squarely within the parameters of CrR 7.8(b) which states, “On motion and upon such
terms as are just, the court may relieve a party from a final judgment, order, or proceeding for the
following reasons . . . (5) Any other reason justifying relief from the operation of the judgment.”
In his reply brief, Hoch cites to his motion as pursuant to CrR 7.8(b)(5). The superior court
addressed the merits of the motion as a substantive change rather than a clerical error. The State
also recognizes this motion as pursuant to CrR 7.8(b)(5). Therefore, this opinion addresses the
motion as pursuant to CrR 7.8(b)(5).


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No. 52256-0-II


       The superior court held a hearing on the motion on July 25, 2018. At the hearing, the State

argued that Hoch’s claim was time barred. The court did not rule on the time-bar issue and

considered the motion on the merits.

       In making its decision, the superior court noted that Hoch had lived with his ex-girlfriend

and her children, including the victim for at least two years.4 During those two years, he worked

for approximately seven months and spent the remainder of the two years in a caretaker role for

the victim and other children. Hoch invited another man to have sexual intercourse with the victim

and introduced the victim to marijuana. Thus, according to the court, there were many violations

of trust and good parenting. The court stated, “So, I think on that basis, that there was an abuse

by Mr. Hoch of his parenting role by sexually abusing a minor who was in his care.” Verified

Report of Proceedings (VRP) at 9-10. The court also stated that there was no showing that Hoch

had been rehabilitated. The court also pointed out that neither party had provided the son’s age.

The court stated that the son’s age might have had some bearing on the court’s decision. The court

weighed these facts against the fundamental right to raise children without State interference. The

court concluded that the crime-related prohibition was reasonable and ordered:

       Defense motion to visit his biological son is hereby denied as a reasonable crime-
       related prohibition protecting children who have been or may be in Defendant’s
       care and control as guided by the analysis in State v. Corbett, 158 Wn. App. 576
       (2010).

CP at 28.

       Hoch appeals.




4
  The superior court relied on the pre-sentence investigation (PSI) and probable cause statement
for these facts. Neither of these documents is in this appellate record.


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No. 52256-0-II


                                             ANALYSIS

A.        LEGAL PRINCIPLES

          The superior court has authority, on motion and upon such terms as are just, to relieve a

party from a final judgment for “‘[a]ny other reason justifying relief from the operation of the

judgment.’” State v. Smith, 159 Wn. App. 694, 700, 247 P.3d 775 (2011) (quoting CrR 7.8(b)(5));

CrR 7.8(b)(5). Relief under CrR 7.8(b)(5) is limited to extraordinary circumstances not covered

by another other section of CrR 7.8(b).5          Smith, 159 Wn. App. at 700.        “Extraordinary

circumstances include fundamental and substantial irregularities in the court’s proceedings or

irregularities extraneous to the court’s action.” Id. Final judgments should be vacated or altered



5
    CrR 7.8(b) states,

          On motion and upon such terms as are just, the court may relieve a party from a
          final judgment, order, or proceeding for the following reasons:

                 (1) Mistakes, inadvertence, surprise, excusable neglect or irregularity in
                 obtaining a judgment or order;

                 (2) Newly discovered evidence which by due diligence could not have been
                 discovered in time to move for a new trial under rule 7.5;

                 (3) Fraud (whether heretofore denominated intrinsic or extrinsic),
                 misrepresentation, or other misconduct of an adverse party;

                 (4) The judgment is void; or

                  (5) Any other reason justifying relief from the operation of the judgment.

                  The motion shall be made within a reasonable time and for reasons (1) and
          (2) not more than 1 year after the judgment, order, or proceeding was entered or
          taken, and is further subject to RCW 10.73.090, .100, .130, and .140. A motion
          under section (b) does not affect the finality of the judgment or suspend its
          operation.



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No. 52256-0-II


only in those limited circumstances, “where the interests of justice most urgently require.” State

v. Shove, 113 Wn.2d 83, 88, 776 P.2d 132 (1989). “CrR 7.8 (b)(5) will not apply when the

circumstances used to justify the relief existed at the time the judgment was entered.” Smith, 159

Wn. App. at 700 (citing State v. Cortez, 73 Wn. App. 838, 842, 871 P.2d 660 (1994)).

        We review a trial court’s denial of a CrR 7.8(b)(5) motion for abuse of discretion. State v.

Bratton, 193 Wn. App. 561, 563, 374 P.3d 178 (2016). “A trial court abuses its discretion when

it bases its decisions on untenable or unreasonable grounds.” Id.

B.      SUPERIOR COURT’S AUTHORITY6

        The State argues that the superior court lacked authority to modify the community custody

condition.7 We agree.



6
  While the State did not address this issue in the superior court, it can raise this issue for the first
time on appeal under RAP 2.5(a)(1) (“[A] party may raise the following claimed errors for the first
time in the appellate court: (1) lack of trial court jurisdiction.”).
7
  The State also argues that Hoch should have attempted to modify his community custody
condition through a personal restrain petition rather than a CrR 7.8(b)(5) motion, relying on
Wandell v. State, 175 Wn. App. 447, 311 P.3d 28 (2013), review denied, 179 Wn.2d 1009 (2014).

        In Wandell, the Washington State Department of Corrections (DOC) filed a postsentence
petition seeking review of a sentencing court’s order to modify Wandell’s community custody
provisions. 175 Wn. App. at 450. In response to DOC’s petition, Wandell argued that the
community custody condition that prohibited him from remaining overnight in a residence where
minor children live or are spending the night, interfered with his fundamental right to parent his
children. Id. at 450, 452-53. The court rejected Wandell’s claim because Wandell failed to raise
his constitutional challenge in a collateral attack on his sentence “through, for example, a personal
restraint petition or a habeas corpus petition. Raising the challenge in response to DOC’s
postsentence petition is not appropriate.” Id. at 453 (emphasis added).

        Here, unlike in Wandell, Hoch filed a collateral attack on his sentence by filing a motion
pursuant to CrR 7.8(b). The court in Wandell merely gave examples of methods for collateral
attacks. See id. The court did not hold that a request for modification of a sentence must be filed
as a personal restraint petition. Therefore, the State’s argument lacks merit


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No. 52256-0-II


       Sentences imposed under the Sentencing Reform Act of 1981 (SRA) “may be modified

only if they meet the requirements of SRA provisions relating directly to the modification of

sentences.” Shove, 113 Wn.2d at 89. Our Supreme Court has clearly stated that if the superior

court’s power to set a sentence carried with it the power to modify the sentence, it would undermine

the finality in rendered judgments. Id. at 88.

       “Final judgments in both criminal and civil cases may be vacated or altered only in those

limited circumstances where the interests of justice most urgently require.” Id. This is the superior

court’s only inherent authority to modify a sentence. See State v. Petterson, 198 Wn. App. 673,

682-83, 394 P.3d 385 (2017). “Modification of a judgment is not appropriate merely because it

appears, wholly in retrospect, that a different decision might have been preferable.” Shove, 113

Wn.2d at 88.

       To determine whether the superior court has authority to modify the community custody

condition, we must examine former RCW 9.94A.712, the statute governing the sentencing of sex

offenders, and RCW 9.94A.704, the statute governing community custody generally. Former

RCW 9.94A.712 states, in relevant part:

               (5) When a court sentences a person to the custody of the department under
       this section, the court shall, in addition to the other terms of the sentence, sentence
       the offender to community custody under the supervision of the department and the
       authority of the board for any period of time the person is released from total
       confinement before the expiration of the maximum sentence.
               (6) . . . (b) As part of any sentence under this section, the court shall also
       require the offender to comply with any conditions imposed by the board under
       RCW 9.94A.713 and 9.95.420 through 9.95.435.

RCW 9.94A.704, states, in relevant part:




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No. 52256-0-II


                (2)(a) The department shall assess the offender’s risk of reoffense and may
       establish and modify additional conditions of community custody based upon the
       risk to community safety.

               ....

              (6) The department may not impose conditions that are contrary to those
       ordered by the court and may not contravene or decrease court-imposed conditions.

               ....

               (10)(a) When an offender on community custody is under the authority of
       the board, the department shall assess the offender’s risk of recidivism and shall
       recommend to the board any additional or modified conditions based upon the
       offender’s risk to community safety and may recommend affirmative conduct or
       electronic monitoring consistent with subsections (4) through (6) of this section.

               ....

              (11) In setting, modifying, and enforcing conditions of community custody,
       the department shall be deemed to be performing a quasi-judicial function.

       Here, neither former RCW 9.94A.712, the provision of the SRA governing the sentencing

of sex offenders, nor RCW 9.94A.704, the provision of the SRA governing community custody in

general, provides explicit authority to the superior court to modify Hoch’s community custody

condition. Rather, the statutes provide the authority to DOC. Additionally, Hoch does not allege

that the interests of justice “most urgently require” modifying his community custody conditions.

Shove, 113 Wn.2d at 88; see Petterson, 198 Wn. App. 682-83. Therefore, the superior court did

not have the authority to modify the condition.

       Hoch cites to State v. McGuire, 12 Wn. App. 2d 88, 456 P.3d 1193 to support his argument

that “‘[a] court has jurisdiction to amend a judgment to correct an erroneous sentence, where justice

requires, under CrR 7.8.’” Statement of Add’l Authorities (quoting McGuire, 456 P.3d at 94).




                                                  7
No. 52256-0-II


       Although Hoch is correct in asserting that McGuire recognizes the court has jurisdiction to

amend a judgment, the court also explained,

       “A court has jurisdiction to amend a judgment to correct an erroneous sentence,
       where justice requires, under CrR 7.8.” CrR 7.8(b)(5) allows a defendant to move
       to modify a judgment and sentence for “any other reason justifying relief from the
       operation of the judgment.” A violation of a fundamental constitutional right to
       parent, would be a reason to justify relief.

McGuire, 12 Wn. App. 2d 94 (quoting State v. Hardesty, 129 Wn.2d 303, 315, 915 P.2d 1080

(1996)). But, “CrR 7.8(b)(5) will not apply when the circumstances used to justify the relief

existed at the time the judgment was entered.” McGuire, 456 P.3d at 1196 (quoting State v. Smith,

159 Wn. App. 694, 700, 247 P.3d 775 (2011)); Wandell v. State, 175 Wn. App. 447, 452, 311 P.3d

28 (2013).

       In McGuire, the court held that the motion to modify under CrR 7.8(b)(5) was properly

before the court because the circumstances used to justify relief did not exist when the no contact

order was entered. 12 Wn. App. 2d at 93. The trial court and the parties had been aware that

McGuire’s child was in utero, but “there was no child in existence at the time the trial court issued

the no contact order and, at least in the context of the court’s issuance of a no contact order,

McGuire had no parental rights to protect until the birth of the child.” Id..

       Here, while Hoch’s argument does involve a fundamental constitutional right to parent,

there is no evidence regarding Hoch’s children at the time the judgment was entered. Hoch has

not shown that his children did not exist or that he had no parental rights to protect at the time the

judgment was entered. Because Hoch has not shown that circumstances used to justify the relief

did not exist at the time the judgment was entered, CrR 7.8(b)(5) does not apply.




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No. 52256-0-II


C.     TIME BAR

       The State also argues that the motion to modify the community custody condition is time

barred under RCW 10.73.090 because it has been more than one year since the judgment and

sentence became final, and none of the enumerated exceptions from RCW 10.73.100 apply. Hoch

replies that his motion under CrR 7.8(b)(5) is not time barred because the contested portion of the

judgment and sentence is invalid on its face. We agree with the State.

       1.      The Judgment and Sentence is Not Facially Invalid

       Hoch argues that the community custody condition is not valid on its face because “the

condition evidences infirmities of a constitutional magnitude.”          Reply Br. of App. at 2.

Specifically, Hoch contends that the condition infringes on his fundamental liberty interest in the

care and companionship of his children.

       RCW 10.73.090(1) states, “No petition or motion for collateral attack on a judgment and

sentence in a criminal case may be filed more than one year after the judgment becomes final if

the judgment and sentence is valid on its face and was rendered by a court of competent

jurisdiction.” A judgment and sentence is facially invalid if “the judgment and sentence evidences

the invalidity without further elaboration.” In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 866,

50 P.3d 618 (2002).

       Here, the judgment and sentence does not show that Hoch had children of his own. Thus,

nothing on the face of the document shows that the challenged community custody condition

infringes on Hoch’s fundamental liberty interest in the care and companionship of his children.

Therefore, we hold that the judgment and sentence is not facially invalid.




                                                9
No. 52256-0-II


       2.      Exceptions to One-Year Time Bar Inapplicable

       RCW 10.73.100 enumerates exceptions to the one-year time bar. Specifically, RCW

10.73.100 states:

               The time limit specified in RCW 10.73.090 does not apply to a petition or
       motion that is based solely on one or more of the following grounds:
               (1) Newly discovered evidence, if the defendant acted with reasonable
       diligence in discovering the evidence and filing the petition or motion;
               (2) The statute that the defendant was convicted of violating was
       unconstitutional on its face or as applied to the defendant’s conduct;
               (3) The conviction was barred by double jeopardy under Amendment V of
       the United States Constitution or Article I, section 9 of the state Constitution;
               (4) The defendant pled not guilty and the evidence introduced at trial was
       insufficient to support the conviction;
               (5) The sentence imposed was in excess of the court’s jurisdiction; or
               (6) There has been a significant change in the law, whether substantive or
       procedural, which is material to the conviction, sentence, or other order entered in
       a criminal or civil proceeding instituted by the state or local government, and either
       the legislature has expressly provided that the change in the law is to be applied
       retroactively, or a court, in interpreting a change in the law that lacks express
       legislative intent regarding retroactive application, determines that sufficient
       reasons exist to require retroactive application of the changed legal standard.

       Here, Hoch has not shown, or even argued, that any of the enumerated exceptions to the

one-year time bar apply. Therefore, because Hoch has failed to show that the judgment and

sentence is facially invalid or that his claim fits into one of the enumerated exceptions in RCW

10.73.100, we hold that Hoch’s case is time-barred.

       Because the superior court lacked authority to modify the challenged community custody

condition and Hoch’s challenge is time-barred, we hold that the superior court did not abuse its

discretion in denying Hoch’s motion to modify the community custody condition.




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No. 52256-0-II


        Accordingly, we affirm.

        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.




                                                    Lee, C.J.
 We concur:



 Worswick, J.




 Sutton, J.




                                               11
