                                                                                                               FILED
                                                                                                       COUJ1
                                                                                                              i OF APPEALS
                                                                                                             DIVISION 11
                                                                                                      all If AUG 12
                                                                                                                      Pil 12: 47
      IN THE COURT OF APPEALS OF THE STATE OF
                                                                                         WASHIN4 g ` `                 E
                                                                                                                             ON
                                                    DIVISION II

STATE OF WASHINGTON                                                                No. 44528 -0 -II


                                      Respondent,


         v.




KAREN ELIZABETH LOFGREN,                                                    UNPUBLISHED OPINION


                                      Appellant.




         LEE, J. —       Karen Elizabeth Lofgren appeals the lifetime no- contact orders barring all

contact with her children that were imposed as conditions of sentence after she pleaded guilty to

solicitation to commit second degree murder. In a pro se statement of additional grounds ( SAG),

Lofgren   also challenges        the length    of   her   standard range sentence.     Lofgren cannot appeal the


length   of   her   sentence;   therefore,   we affirm    her   sentence.   But, because neither the scope nor the


duration of the no- contact orders were reasonably necessary to protect her children, we remand

for the trial court to vacate the lifetime no- contact orders with the children as a condition of her

sentence.




                                                           FACTS


         Lofgren      married    Todd Hardin in 2002.           The couple' s two daughters were born in 2003


and   2006. Lofgren filed for divorce in 2010, but she had that petition dismissed after the couple


reconciled. Hardin filed a second dissolution petition in 2011.


         While the dissolution proceedings were pending, Lofgren asked an acquaintance, Darrell

Burgess, to hire        someone     to kill Hardin.       Burgess    reported   this to his   probation officer, who
No. 44528 -0 -II



contacted       Pierce      County law         enforcement.          Using    court- authorized      surveillance,      detectives


recorded conversations between Lofgren and Burgess, as well as conversations between Lofgren

and    an undercover officer               posing   as   the " hit   man."    Clerk'   s   Papers ( CP)   at   3 -4.   During one

conversation, Lofgren referred several times to the need to protect her children from Hardin.


During another conversation, when the officer asked about Hardin' s schedule, Lofgren disclosed

that Hardin volunteered at the girls' school and identified both the school and the times that he

was    there.   She was insistent that the girls should not be around when any violence occurred.

          The State charged Lofgren in the alternative with conspiracy to commit first degree

murder     and    solicitation        to   commit    first degree     murder.       Lofgren agreed to plead guilty to an

amended charge of solicitation to commit second degree murder.


          In its sentencing memorandum, the State recommended a high - nd standard range
                                                                     e

sentence of 165 months, as well as no- contact orders preventing Lofgren from contacting her

children and Hardin. The defense memorandum sought a sentence either below or at the low end

of   the standard        range.       The defense submitted 55 letters supporting its request for leniency.

Lofgren was released on bail pending sentencing, and one condition of release was that she have

no contact with Hardin or her daughters.


          Hardin spoke at the sentencing hearing and stated that he and his children would never be

safe   because Lofgren         would always          be    a   danger to them. He also described the broader impact


of Lofgren' s actions:


                My children' s private school has been on high alert while Karen Lofgren
          has beenout of jail. Many parents have expressed fear that Ms. Lofgren might
          show up and do something unthinkable to my children in a vindictive attempt to
          get    to   me,   and   I    share   those     concerns.        She is   capable   of   anything.     She even
          informed the hit man of where my girls go to school when she told him that I



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No. 44528 -0 -II



         volunteered      for their   class,    giving him the time             and   the   name      of   the   school.   I
         lobbied hard for my children to be able to return to this school so that my girls'
         lives wouldn' t be further disrupted by the wake having been left by Ms. Lofgren.
         It was only because of the no- contact order preventing her from seeing the
         children that they were allowed to remain in this private Christian school.

Report   of   Proceedings ( RP) ( Jan. 25, 2014)            at   17. Hardin      ended    his   statement as      follows: "   I beg

you to keep the no- contact order in place so that my children and I will, at least, have a chance at

some sort of normal       life." RP ( Jan. 25, 2014) at 18.


         The State argued that no- contact orders between Lofgren and her children were necessary

because Lofgren had placed the children at risk by giving the undercover officer information

about   their school and schedules.             The defense responded that no- contact orders involving the

children were not appropriate because Lofgren had been trying to protect rather than harm her

daughters.


         The trial court imposed a high -
                                        end standard range sentence of 165 months and then


addressed the no- contact orders:


                 The Court is going to order a no- contact order with the children. I did that
         in the last case when it was the man sitting there having killed the woman, the
         mother of his children; so I don' t see that I can legitimately say that she is entitled
         to have custody where she tried to have her children' s father killed and would not
         hold the   man accountable.           I don' t have       a   double   standard     here. She tried to have
         her   children' s   father killed.      The burden that would have been placed on those
         children was        immense, if       she    had   managed       to    succeed     in that   plan.      To lose a
         parent when you' re a small child —                I had friends who lost a parent. It is with them
         forever; and to have to live with the fact that your mother paid someone to kill
         your father would be a burden that I would place on no child, and she chose that
         line. She    chose     to do it. She        wasn'     t isolated.     She has a huge support system of
         friends   and    family. She had a very good attorney. If she was feeling stressed, he
         would     have   set   her up in the    appropriate           counseling.    She' s an educated woman.
         This isn' t a woman who dropped out of school at 13 or 14 to have children who
         had    no education and no       job
                                            If I was sitting here, and this was the man,
                                                     skills.

         and he tried to have someone kill his wife, he would be looking at the same
         sentence.    There just isn' t a double standard here, so no contact with the children.




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No. 44528 -0 -II



          When they' re 18, they can decide whether or not they want to have contact with
          their mother, but that would be their decision when they are adults.

RP ( Jan. 25, 2014) at 51 - 52.


          The court then imposed no- contact orders barring Lofgren from having contact of any

kind   with   Hardin    and        the children   for life   as      a   sentencing   condition.   On appeal, Lofgren


challenges the no- contact orders concerning her children, as well as the length of her sentence.

                                                        ANALYSIS


A. NO- CONTACT ORDERS


          Lofgren argues initially that the no- contact orders barring her from all contact with her

children for life are constitutionally and statutorily invalid.

          The Sentencing Reform Act of 1981 authorizes a trial court to impose crime -related

prohibitions for a term of the maximum sentence to a crime, independent of any community

custody    conditions.        RCW 9. 94A. 505( 8);        State v. Warren, 165 Wn.2d 17, 32, 195 P. 3d 940


 2008),    cert.   denied, 556 U.S. 1192 ( 2009). "               Crime -
                                                                        related       prohibitions"   are orders directly

related    to " the   circumstances        of     the   crime"       and   may   include   no- contact   orders.   RCW


9. 94A. 030( 10); State       v.   Armendariz, 160 Wn.2d 106, 120, 156 P. 3d 201 ( 2007).                  A causal link


between the condition imposed and the crime committed is not necessary as long as the condition

relates to the crime' s circumstances. State v. Llamas -Villa, 67 Wn. App. 448, 456, 836 P.2d 239

 1992).


          We review such sentencing conditions for abuse of discretion. State v. Riley, 121 Wn.2d

22, 37, 846 P. 2d 1365 ( 1993). "`          A court abuses its discretion if, when imposing a crime -related

prohibition,   it   applies   the wrong     legal   standard. '          State v. Howard, No. 32157 -6 -III, 2014 WL




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No. 44528 -0 -II



2864397,     at *   4 ( Wash. Ct.   App.   June 24, 2014) (              quoting In re Pers. Restraint of Rainey, 168

Wn.2d 367, 374 -75, 229 P. 3d 686 ( 2010)).


         Careful review is required when sentencing conditions interfere with a fundamental

constitutional right.       Warren, 165 Wn.2d at 32. Parents have a fundamental liberty interest in the

care,   custody,    and   companionship         of   their   children.      Warren, 165 Wn.2d at 34; Howard, 2014


WL 2864397, * 4.          This fundamental right to parent can be restricted by a condition of a criminal

sentence     only if that   condition   is reasonably necessary to              prevent   harm to the   children.   State v.


Ancira, 107 Wn.        App.   650, 654, 27 P. 3d 1246 ( 2001).                This " reasonable necessity" requirement

involves an interplay of sentencing conditions and fundamental rights that is " delicate and fact -

specific."       Rainey,    168 Wn.2d      at    377;      see    also   Warren, 165 Wn.2d       at   32 ( conditions that


interfere with fundamental rights must be reasonably necessary to accomplish the essential needs

of   the State   and public order, and      they          must   be sensitively imposed).     To survive scrutiny, both

the scope and duration of a no- contact order affecting a defendant' s parental rights must be

reasonably necessary. Rainey, 168 Wn.2d at 381.

         Lofgren cites three cases where far less restrictive orders than those at issue here did not


satisfy the      reasonable   necessity    requirement.            In State v. Letourneau, 100 Wn. App. 424, 997

P. 2d 436 ( 2000),        a defendant who pleaded guilty to second degree child rape successfully

challenged the scope of a sentencing condition prohibiting her from having unsupervised contact

with her biological minor children after her release from prison. Division One concluded that the


State had failed to demonstrate that allowing the defendant only supervised contact with her

children was reasonably necessary to protect them from the harm of sexual molestation by their

mother.      Letourneau, 100 Wn.        App.         at   441.   The defendant had not molested her own children,




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No. 44528 -0 -II




and   there    was   no    evidence       that   she    was   a   pedophile.   Letourneau,     100 Wn. App. at 442.

Consequently, allowing the defendant only supervised contact with her children following her

release unconstitutionally infringed on her right to raise those children without State interference.

Letourneau, 100 Wn. App. at 438, 442.

          Division One found a similar infringement in Ancira, where the trial court imposed a no-


contact order prohibiting the defendant from contacting his children after he was convicted of

violating     a no- contact order        requiring him to stay away from his         wife.    107 Wn. App. at 652 -53.

The trial court was trying to protect the children from witnessing further violence, but Division

One concluded that the resulting no- contact order was not reasonably necessary to achieve this

goal: "   The State has not explained why prohibiting Ancira from contacting his wife would not

protect the children from the harm of witnessing domestic violence between their parents."

Ancira, 107 Wn. App. at 655. Prohibiting the defendant from all contact with his children for the

five -
     year      maximum          term     was "   extreme      and unreasonable       given the fundamental rights


involved."      Ancira, 107 Wn. App. at 655.

          Finally,   where        a    defendant       was    convicted   of   assaulting    his   children' s   mother,   a




subsequent restriction allowing him only supervised contact with the children violated his

fundamental      right    to   parent.   State   v.   Sanford, 128 Wn.    App.   280, 288, 115 P. 3d 368 ( 2005). The


children did not know about, see, or hear the assault, and there were no allegations that the


defendant had ever committed or threatened any violence against them. Sanford, 128 Wn. App.

at 289. Accordingly, the trial court erred in restricting the defendant to supervised visitation with

his children as a condition of sentence. Sanford, 128 Wn. App. at 289.




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No. 44528 -0 -II




            In contrast to the cases cited above, courts have upheld no- contact orders involving a

defendant' s children where the children were either victims of the crimes for which the

defendant      was   being    sentenced or within        the   same class as      the   victim.   In Rainey, the daughter

who was the subject of the no- contact order was the victim of the current kidnapping conviction.

168 Wn.2d       at   379.   In addition, the defendant had a history of involving his daughter in attempts

to   gain   leverage   over   his   ex -
                                       wife and    to   harass her.    Rainey,     168 Wn.2d      at   379 -80. The scope of


the resulting order limiting the defendant' s contact with his daughter was necessary to protect the

child   from    additional     harm.    Rainey,     168 Wn.2d        at    380.   And, in two cases where defendants


were convicted of sexually abusing children within their households, the resulting restrictions on

contact with     their biological       children   did   not constitute an abuse of          discretion. State v. Corbett,


158 Wn.      App.    576, 600, 242 P. 3d 52 ( 2010);           State v. Berg, 147 Wn. App. 923, 941 -44, 198 P. 3d

529 ( 2008), abrogated on other grounds, State v. Mutch, 171 Wn.2d 646, 254 P. 3d 803 ( 2011).


As we observed in Corbett, the no- contact order restricting the defendant' s contact with his

biological children was directly related to his crime because the children fell within the class of

persons      he had    victimized.       158 Wn.        App.   at   601.     In each case, the restricted contact was


necessary to     protect      the   other children      from   a risk of similar     harm.     Corbett, 158 Wn. App. at

600; Berg, 147 Wn. App. at 944.

            Here, the defendant' s children were neither the direct victims of her offense nor within

the same class as Hardin, her victim. The State nonetheless argued below that a lifetime ban on

contact with     the   children was      necessary to protect them            as well as    Hardin.      The State reminded


the trial court that Lofgren had revealed the name of her daughters' school and their schedules to

the   undercover officer.           The State did   not add     that Lofgren       also   told the   officer   that   she   did   not
No. 44528 -0 -II



want the children involved in any violence, nor did it cite her repeated assertions in other

conversations        that   she was     trying   to   protect    her       children.   On appeal, the State again points to


Lofgren'   s   disclosure       of    the school information.                The State maintains that allowing Lofgren

contact with her children will permit her to gain information about Hardin' s whereabouts that she

can reveal      to   potential assassins,        thereby placing her              children within      the " line   of   fire."    Br. of


Resp' t   at   16.   The State also argues that without these orders, the children may have to change

schools.




          These speculative claims of harm do not show that the restrictive orders at issue are


reasonably necessary to              protect   the   children.    Moreover, there is no indication that these orders


were    delicately     or   sensitively drawn. See Warren, 165 Wn.2d at 34 ( crime -
                                                                                   related prohibitions


affecting fundamental           rights must      be narrowly       construed).         The trial court referred neither to the


need to protect the children nor to the impact on Lofgren' s constitutional rights when it imposed

the orders at issue.


          We also take issue with the duration of the no- contact orders. See Rainey, 168 Wn.2d at

381 (   restriction' s      length,   as well as      scope, must           be reasonably necessary).          Although the trial


court stated during sentencing that the children could consider contact with Lofgren when they

turned 18, the no- contact orders were imposed for life, which is the maximum sentence possible

for Lofgren' s       offense.    RCW 9A.28. 030( 2); RCW 9A.28. 020( 3)(                       a);   RCW 9A.20. 021( 1)(          a).   The


State attempts to justify the lifetime duration as necessary to protect Hardin, but there is an

unchallenged         lifetime   no- contact order        in   place        that   applies   to him.    Any additional protection

afforded by a lifetime ban on contact between Lofgren and her children is not reasonably




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No. 44528 -0 -II




necessary.    See   Rainey,     168 Wn.2d   at   381 -82 (   rejecting lifetime ban on contact where the

sentencing court provided no reason for duration).

         We agree with Lofgren that the proper forum to resolve the issue of her contact with her


children is the family court. As the court in Letourneau explained:

         The Legislature has provided more              appropriate forums than the            criminal
         sentencing process to address the best interests of dependent children with respect
         to most visitation issuesthe family court in the case of marital dissolution and
         paternity issues, and the juvenile court in the case of dependency proceedings... .
         It is the business of the family and juvenile courts to address the best interests of
         minor children with respect to most other kinds of harm that could arise during
         visitation with a parent who    has been     convicted of a crime....        To that end, the

         family and juvenile courts have authority to appoint guardians ad litem to
         investigate the best interests of minor children and those courts have broad
         discretion to tailor orders that address the needs of children in ways that
         sentencing courts in criminal proceedings cannot.

100 Wn.      App.   at   443.   And, when child visitation issues are addressed in the context of


dissolution or dependency proceedings, there are statutory procedures in place that protect a

parent' s right to procedural due process where the fundamental right to parent is at stake.


Ancira, 107 Wn. App. at 655 -56.

         In summary, we conclude that the lifetime orders barring Lofgren from all contact with

her   children were not     reasonably necessary to    protect   the   children   from harm.   The matter and


manner of contact between the children and Lofgren is best resolved by the family court in the

dissolution proceeding.'




1 Moreover, our opinion does not preclude a court from issuing a no- contact order grounded on
other statutory bases.



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No. 44528 -0 -II



B. LENGTH OF SENTENCE


         In her SAG, Lofgren asks us to modify the length of her sentence due to mitigating

circumstances.      The law is well settled that a defendant cannot appeal the length of a standard

range   sentence    so     long   as   the   punishment     falls   within   the   correct   sentencing   range.   RCW


9. 94A. 585( 1);   State   v.   Williams, 149 Wn.2d 143, 146, 65 P. 3d 1214 ( 2003).               Consequently, this

sentencing challenge fails.

         We   affirm     the length    of    Lofgren'   s standard range sentence.       But, we remand for the trial


court to vacate the lifetime no- contact orders with the children as a condition of her sentence.


         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.




We concur:




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