State v. RilesState v. Riles
In these consolidated cases Petitioners Roland Erik Riles and Richard Lee Gholston each seek review of decisions of the Court of Appeals, Division I, affirming decisions by the King County Superior Court which imposed conditions for mandatory post-release community placement under the Sentencing Reform Act of 1981,
QUESTIONS PRESENTED
The primary question in both cases is whether the trial courts imposed improper сonditions on Petitioners during their mandatory community placement upon their release from prison.
In answering that question we must determine (1) whether the trial courts exceeded their authority by requiring Petitioners to submit to polygraph and plethysmograph testing during their period of community placement; (2) whether the conditions ordering
STATEMENT OF FACTS
Roland Erik Riles
On January 14, 1993, Petitioner Roland Erik Riles was convicted by a jury in the King County Superior Court of first degree child rape in violation of
When a court sentences a person to a term of total confinement to the custody of the department of corrections for an offense categorized as a sex оffense committed on or after July 1, 1990, but before June 6, 1996, ... the court shall in addition to other terms of the sentence, sentence the offender to community placement for two years or up to the period of earned early release awarded pursuant to
RCW 9.94A.150(1) and(2) , whichever is longer.... Unless a condition is waived by the court, the terms of community placement for offenders sentenced pursuant to this section shall include the following conditions:(i) The offender shall report to and be available for contact with the assigned community corrections officer as directed;
(ii) The offender shall work at department of corrections-approved education, employment, and/or community service;
(iii) The offender shall not consume controlled substances except pursuant to lawfully issued prescriptions;
(iv) An offender in community custody shall not unlawfully possess controlled substances;
(v) The offender shall pay supervision fees as determined by the department of corrections; and
(vi) The residence location and living arrangements are subject to the prior approval of the department of corrections during the period of community placement....
(Emphasis added). The trial court imposed those six mandatory conditions and imposed additional ones, including the following:
(6) Have no contact w/victim or any minor-age children w/o approval of CCO and mental health treatment counselor;
....
(8) submit to polygraph & plethysmograph testing upon request of therapist and/or CCO, at own expense;
(9) hold no position of authority or trust involving children;
(10) avoid places where children congregate;
(11) do not initiate or prolong physical contact w/children for any reason;
(12) do not frequent places where minors are known to congregate without specific permission of sexual deviancy counselor or supervising CCO; and
(Emphasis added). Petitioner challenges only conditions six (6), eight (8), ten (10) and twelve (12).5
Petitioner argues the trial court erred in requiring him to submit to polygraph and plethysmograph testing under condition eight (8).6 He claims the condition constitutes affirmative conduct and is invalid because
[T]hat period during which the offender is subject to the conditions of community custody and/or postrelease supervision, which begins either upon completion of the term of confinement (postrelease supervision) or at such time as the offender is transferred to community custody in lieu of earned early release. Community placement may consist of entirely community custody, entirely postrelease supervision, or a combination of the two.[8]
There are six conditions of community placеment which must be imposed unless waived by the court.9 Under
(c) As part of any sentence imposed under (a) or (b) of this subsection, the court may also order any of the following special conditions:
(i) The offender shall remain within, or outside of, a specified geographical boundary;
(ii) The offender shall not have direct or indirect contact with the victim of the crime or a specified class of individuals;
(iii) The offender shall participate in crime-related treatment or counseling services;
(iv) The offender shall not consume alcohol;
(v) The offender shall comply with any crime-related prohibitions; or
(vi) For an offender convicted of a felony sex offense against a minor victim after June 6, 1996, the offender shall comply with any terms and conditions of community placement imposed by the department of corrections relating to contact between the sex offender and a minor victim or a child of similar age or circumstance as a previous victim.[10]
“Crime-related prohibition” is defined as “[a]n order of a 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.”11
Petitioner Riles contends that submitting to polygraph or plethysmograph testing is affirmative conduct which constitutes an impermissible crime-related prohibition under
Petitioner also claims conditions six (6), ten (10) and twelve (12) are unconstitutionally vague and that the “no contact” with children condition is unconstitutionally overbroad.14 The Court of Appeals rejected those contentions.15 The Court of Appeals also dismissed Petitioner‘s argument on overbreadth, noting that the challenged order is expressly authorized by the Sentencing Reform Act and that the offender‘s “freedom of association may be reasonably restricted.”16 The Court of Appeals affirmed the judgment and sentence.17 Petitioner Riles sought review by this Court, which was granted on October 7, 1997.
Richard Lee Gholston
On December 14, 1994, Petitioner Richard Lee Gholston was convicted by a jury in the King County Superior Court of two counts of first degree rape, one count of first degree kidnapping and one count оf first degree robbery.18 The rape victim was a nineteen-year-old woman. The Honorable Richard M. Ishikawa on March 20, 1995 imposed exceptional sentences of 185 months, 110 months and 185 months on counts I, II and III to run consecutively (totaling 480 months) and 102 months on count IV to run concurrently. In addition, the court imposed six mandatory conditions of community placement on Petitioner Gholston under
(1) Within thirty days of release from confinement, enter into and make reasonable progress in mental health counseling, and/or sexual deviancy therapy, with a therapist approved by your Community Corrections Officer.
(2) Have no contact with the victim, or the victim‘s family or any minor-age children without the approval of your Community Corrections Officer and mental health treatment counselor.
....
(4) Submit to polygraph and plethysmograph testing upon the request of your therapist and/or Community Corrections Officer, at your own expense.[21]
(Emphasis added).
Petitioner challenges condition one (1), contending the court does not have authority to order sex offenders to make “reasonable progress” in treatment and that the order violates procedural due process because it does not provide notice of what constitutes “reasonable progress.”22 In an unpublished opinion the Court of Appeals concluded that requiring a defendant to make reasonable progress was fairly to be read under
Petitioner Gholston challenges condition two (2), arguing that the prohibition against contact with “any minor-age children” is invalid because it is not a crime-related prohibition and because it is unconstitutionally vague and overbroad—especially
Petitioner Gholston also challenged condition four (4) requiring polygraph and plethysmograph testing, with arguments similar to those made by Petitioner Riles, contending the order requiring him to submit to polygraph and plethysmograph testing is invalid.27 The Court of Appeals dismissed this claim under the same reasoning it articulated in State v. Riles, holding that both tests can be used to monitor compliance with the conditions of community placement.28
The Court of Appeals affirmed Petitioner Gholston‘s conviction and sentence.29 He then sought review by this Court. Review was granted and the case consolidated with State v. Riles on December 2, 1997.
DISCUSSION
POLYGRAPH AND PLETHYSMOGRAPH TESTING
The Court of Appeals decisions in both Riles and Gholston upheld the conditions imposed by the trial courts requiring Petitioners to submit to polygraph and plethysmograph testing as part of their community placement following completion of their prison terms. In both cаses the court concluded the tests are valid as necessary and effective monitoring tools to ensure Petitioners are in compliance with the conditions of their community placement.30 In both cases the court stated the testing must be limited in scope to crime-related topics.31 Petitioners, however, argue this Court should in these cases follow the reasoning of State v. Holland,32 a Division III case which is in conflict with the decisions of the Court of Appeals, Division I.33
In Holland, Division III determined that polygraph testing requires affirmative conduct and cannot be ordered as a “crime-related prohibition” under
In neither Eaton nor Riles did the court address the question whether submitting to polygraph or plethysmograph testing constitutes affirmative conduct. Another Court of Appeals case implied that the purpose of testing, specifically urinalysis, is to monitor compliance with conditions of community supervision.37
Both Petitioners Riles and Gholston, however, argue the trial court did not have authority to impose such monitoring requirements as polygraph and plethysmograph testing because the statutes do not expressly authorize them.39 Petitioners correctly point out there is no provision in the Sentencing Reform Act of 1981 specifically authorizing or requiring polygraph or plethysmograph testing.40
As a general matter, in interpreting statutes, the principal objective of the court is to ascertain and carry out the intent of the Legislature.41 Courts should not construe statutes to render any language superfluous and must avoid strained or absurd interpretations.42 Absent ambiguity, a statute‘s meaning must be derived from the wording of the statute itself without judicial construction or interpretation.43
On its face,
Respondent State argues that “[w]ithout the authority to require an offender to cooperate with supervision by submitting to tests that monitor compliance with the conditions of community placement, the authority to impose such conditions is meaningless.”46 In construing statutes, this Court must ascertain and carry out the intent of the Legislature and avoid strained and absurd results.47 We must examine the statute as a whole and avoid narrow, poverty strict interpretations that defeat the intent of the
A trial court has authority to impose monitoring conditions such as polygraph testing. Although the results of polygraph tests are generally not admissible in a trial, this Court has acknowledged their validity as an investigative tool.49 Allowing trial courts to impose polygraph testing on sex offenders is consistent with the guidelines provided in WAC 246-930-310(7)(b) for therapists working with sex offenders:
The use of the polygraph examination may enhance the assessment, treatment and monitoring processes by encouraging disclosure of information relevant and necessary to understanding the extent of present risk and compliance with treatment and court requirements. When obtained, the polygraph data achieved through periodic examinations is an important asset in monitoring the sex offender client in the community.[50]
In 1997, the Legislature amended
Plethysmograph57 testing is regarded as an effective method for diagnosing and
The use of physiological assessment measures, such as penile plethysmography, may yield useful information regarding the sexual arousal patterns of sex offenders. This data can be useful in assessing baseline arousal patterns and therapeutic progress.
The trial court imposed upon Petitioner Gholston certain special conditions for his community placement, one of which requires him to undergo “mental health counseling and/or sexual deviancy therapy, with a therapist approved by ... [his] Community Corrections Officer.”60 We conclude that requiring plethysmograph testing for Petitioner Gholston incident to his treatment is a valid condition which a court is authorized to impose under
Petitioner Riles was also ordered to submit to plethysmograph testing,62 but he was not required to enter into treatment or therapy.63 The question then becomes whether the trial court may impоse plethysmograph testing without imposing crime-related treatment. Petitioner Riles contends a court cannot impose this testing unless the court orders an offender to undergo crime-related treatment or sentences the offender under the Special Sex Offender Sentencing Alternative (SSOSA).64
Petitioner Riles is at least partially correct. It is not permissible for a court to order plethysmograph testing without also imposing crime-related treatment which reasonably would rely upon plethysmograph testing as a physiological assessment measure. Unlike polygraph testing, plethysmography testing does not serve a monitoring purpose. It is a gauge for determining immediate sexual arousal level in response to various stimuli used as part of a treatment program for
NO CONTACT ORDERS IMPOSED ON PETITIONER RILES
Petitioner Riles contends the trial court‘s order prohibiting him from contact with “any minor-age children” is unconstitutionally overbroad because it infringes upon his right to free speech and free association.65 The Court of Appeals rejected that argument, concluding the chаllenged order is authorized by the SRA.66
The First Amendment prevents government from prohibiting protected speech or expressive conduct.67 “Overbreadth analysis measures how enactments that prohibit conduct fit with the universe of constitutionally protected conduct.”68 A law is unconstitutionally overbroad if it sweeps within its prohibitions free speech activities protected under the First Amendment.69 Statutes which regulate behavior, as opposed to speech, will not be overturned unless the overbreadth is both real and substantial in relation to the conduct legitimately regulated by the statutes.70
Our first task in overbreadth anаlysis is to determine whether a statute reaches constitutionally protected speech or expressive conduct.71 If the answer is yes, the next determination is whether the statute prohibits a real and substantial amount of protected conduct in contrast to the statute‘s legitimate sweep.72 This Court has previously noted that the right to move about freely is constitutionally protected.73 We have previously stated that a “defendant‘s constitutional rights during community placement are subject to the infringements authorized by the SRA.”74 A convicted defendant‘s “freedom of association may be restricted if reasonably necessary to accomplish the essential needs of the state and public order.”75 Accordingly, although Petitioner Riles’ constitutionally protеcted freedom of movement may be limited, it is a valid restriction because the prohibition is not real or substantial in relation to the conduct legitimately regulated by the statute. That is,
Petitioner Riles’ argument on overbreadth is without merit. He was convicted of anally raping a six-year-old boy. Prohibiting him from having contact with minor-age children for the period of his community placement upon his release from prison is a reasonable restriction imposed upon him for protection of the public—especially children.
The due process vagueness doctrine under
Petitioner Riles contends the “no contact” order is vague because there is more than one dictionary meaning or the word “contact.”82 He argues, for example, it could mean “physical touching” but could also mean “association or relationship ... a condition or an instance of meeting, connecting, or communicating.”83 Obviously any “physical touching” with sexual motivation could be prohibited. It is apparent the sentencing court intended to prohibit “conditions or instances of meeting, connecting, or communication” with a minor because Petitioner Riles was convicted of raping a child. The sentencing court reasonably could prohibit him from having contact with children. The SRA gives sentencing courts authority to order offenders not to have “direct or indirect contact with ... a specified class of individuals.”84 The other two conditions Petitioner Riles challenges—avoid places where children congregate and not frequent places where minors are known to congregate—also come within the prohibition specified in
NO CONTACT ORDER IMPOSED ON PETITIONER GHOLSTON
Unlike Petitioner Riles who was convicted of raping a child, Petitioner Gholston was convicted of raping a nineteen-year-old woman. But the trial court ordered him not to have contact with “any minor-age children” as well.86 Petitioner Gholston makes essentially the same argument as Petitioner Riles and argues the prohibition is unconstitutionally overbroad and vague because it infringes upon his rights to free association and free speech.87 There is no reasonable relationship between his crime and the order prohibiting his contact with minors. Although the Court of Appeals gratuitously observed the victim was “in her late teen-age years, not so far removed from minority that there is no possibility that her youthful appearance was not a factor in Gholston‘s
Although a “defendant‘s constitutional rights during community placement are subject to the infringements authorized by the SRA,” the defendant‘s freedom of association may be restricted only to the extent it is reasonably necessary to accomplish the essential needs of the state and the public order.89 In Petitioner Gholston‘s case, there has been no showing that children are at risk and thus require special protection from him. Because that particular restraint upon Petitioner Gholston‘s freedom of association bears no reasonаble relationship to the essential needs of the state and public order, that portion of the order would prohibit protected conduct and at least borders on unconstitutional overbroadness.90 Although we conclude the provision is not justified under the facts in Petitioner Gholston‘s case, we do not see it as an unconstitutional infringement. The simple remedy is to delete the questionable provision from the order. We do not consider it necessary to address the issue of whether the same condition is unconstitutionally vague.
VALIDITY OF REQUIREMENT FOR REASONABLE PROGRESS IN TREATMENT
Petitioner Gholston next contends the requirement that he make reasonable progress in treatment is not a valid condition because it is not statutorily authorized and because it is unconstitutionally vague.91 A sentencing court has authority under
Petitioner Gholston‘s vagueness claim has no merit since reasonable progress simply means he must actively participate in the treatment program. The Constitution does not require “‘impossible standards of specificity’ or ‘mathematical certainty‘... some
SUMMARY AND CONCLUSIONS
Trial courts have authority to require polygraph testing under
Plethysmograph testing is regarded as an effective method for diagnosing and treating sex offenders. Trial courts may require sex offenders to undergo plethysmograph testing as part of a treatment program imposed under
The order prohibiting Petitioner Roland Erik Riles from having contact with minors or frequenting places where they congregate is not unconstitutionally overbroad because “no contact” orders are authorized by
The order prohibiting Petitioner Richard Lee Gholston from having contact with minors is questionably overbroad.
A sentencing court has authority to require an offender to make reasonable progress in mental health or sexual deviancy treatment. The order imposed upon Petitioner Gholston is not vague becausе reasonable progress simply means an offender must actively participate in the program and cooperate with treatment.
We affirm the decision of the Court of Appeals, Division I, which affirmed the conviction and order of the King County Superior Court imposing community placement conditions upon Petitioner Roland Erik Riles. However, we strike from the Superior Court order the requirement that Petitioner Riles submit to plethysmograph testing upon his release from prison.
We affirm the decision of the Court of Appeals, Division I, which affirmed the conviction and order of the King County Superior Court imposing community placement conditions upon Petitioner Richard Lee Gholston. However, we strike from the Superior Court order the provision prohibiting Petitioner Gholston from having contact with minor-age children upon his release from prison.
DURHAM, C.J., and DOLLIVER, GUY, JOHNSON, MADSEN and TALMADGE, JJ., concur.
ALEXANDER, Justice (concurring in part, dissenting in part).
I agree with the decision of the majority, except in one particular. In my judgment, both trial courts erred in requiring the defendant before them for sentencing to submit to polygraph testing as a condition of community placement. I reach that conclusion because the sentencing court is limited by
Submitting to a polygraph test is, in my view, affirmative conduct. In that regard, I entirely agree with the observation of Division
In support of its conclusion that the trial courts had authority to impose polygraph testing, the majority notes the recent amendments to
SANDERS, J., concurs.
Notes
(vii) The offender shall submit to affirmative acts necessary to monitor compliance with the orders of the court as required by the department. (Emphasis added). Laws of 1997, ch. 144, § 2.
Summary: The department is authorized to require an offender to perform affirmative acts, such as drug or polygraph tests, necessary to monitor compliance with crime-related prohibitions and other sentence conditions.
Phallometry [penile plethysmograph] is an essential technology in the assessment and treatment of the sexual aggressor. [One expert] stated that аny restrictions imposed on a specially trained clinician‘s ability to employ phallometry in assessing and treating sex offenders “would be analogous to depriving a physician the right to obtain x-rays in cases of bone injuries.”