In the Matter of the Personal Restraint of: GREG STEVEN MARTINEZ, Petitioner.
Martinez seeks relief from personal restraint imposed through
his conditional release from confinement by the Indeterminate
Sentencing Review Board (ISRB). Martinez was in confinement
after pleading guilty to one count of first degree child
rape. He argues that the ISRB does not have authority to
prohibit him from entering into a geographical area as a
condition of community custody.
that the ISRB has authority to prohibit an offender from
entering into a geographical area as a condition of community
custody under the circumstances of this case. However, we
also hold that the condition as applied to Martinez
unconstitutionally infringes on his right to travel because
it does not include a clear process for requesting
modification of the condition in light of changed
circumstances. Consequently, we grant the petition.
August 8, 2006, Martinez pled guilty to one count of first
degree child rape based on sexual contact he had with his
nine year old nephew in May 2005 in Thurston County. The
superior court entered a lifetime no-contact order
prohibiting Martinez from contacting his victim. On September
27, Martinez was granted a Special Sex Offender Sentencing
September 21, 2009, Martinez's SSOSA was revoked
"after four separate violation processes, " and he
was placed in the custody of the Department of Corrections
(DOC). Br. of Resp't at 64, Att. F; Br. of Resp't at
93, Att. I. The sentencing court did not require Martinez to
remain within or outside a specified geographical boundary as
a condition of community custody.
9.95.420(1)(a) grants the ISRB authority to release a
convicted sex offender based on predictions of sexual
dangerousness. Specifically, under RCW 9.95.420(3)(a), the
shall order the offender released, under such affirmative and
other conditions as the board determines appropriate, unless
the board determines by a preponderance of the evidence that,
despite such conditions, it is more likely than not that the
offender will commit sex offenses if released.
RCW 9.95.420(2) requires the ISRB to impose the conditions
and instructions provided for in former RCW 9.94A.704 (2014),
if the ISRB determines that an offender is suitable for
14, 2014, after holding a hearing, the ISRB determined that
Martinez was suitable for release and directed the
preparation of an Offender Release Plan (ORP). On April 17,
2015, Kristi Busch, a hearings investigator, prepared a
report based on Martinez's proposed ORP and recommended
that the ISRB require Martinez to "not enter Thurston
County" without prior approval. Br. of Resp't at
102, Att. L. Busch noted in her report that the victim
liaison assigned to Martinez's case had community
concerns related to Thurston County. Martinez's ORP
contained comments from his counselor that "[Martinez]
cannot [be] release[d] to his County of Origin due to Victim
Concerns." Br. of Resp't at 106, Att. L.
April 30, 2015, the ISRB approved Martinez's ORP, and he
was released to community custody on June 4. As a condition
of community custody, the ISRB required Martinez to "not
enter Thurston County without prior written approval of [his]
CCO [community corrections officer] and the ISRB." Br.
of Resp't at 115, Att. O.
early 2016, Martinez's counsel contacted CCO Steven Pyka
to request a change to Martinez's condition of community
custody barring him from entering Thurston County. Martinez
requested the change because he wanted to live with his
parents and work for their pest control business in Thurston
County. Martinez also anticipated that his parents would be
able to assist him with his mental conditions, including
several learning disorders and Asperger's Syndrome. Pyka
informed Martinez's counsel that a change to his
community custody condition "would never happen, "
and that "[t]he Board would have to approve that
request." Reply Br. of Pet'r at 1. Martinez's
counsel then contacted the ISRB, which told counsel that a
request to modify conditions of community custody "must
come from the CCO." Reply Br. of Pet'r at 1.
Martinez's counsel again contacted Pyka, but Pyka
responded that "he would not start this process."
Reply Br. of Pet'r at 1.
6, 2016, Martinez filed a motion to modify his conditions of
community custody in Thurston County Superior Court. Martinez
argued that the ISRB did not have authority under former RCW
9.94A.704 to prohibit him from entering a particular
geographical area as a condition of community custody. On
June 29, the superior court transferred Martinez's motion
to modify to our court for consideration as a personal
restraint petition (PRP). On February 2, 2017, we issued an
order stating that the issues raised in the PRP were not
frivolous and transferred the PRP to a panel for further
Standard of Review
obtain relief through a PRP, a petitioner must generally
"establish that a constitutional error has resulted in
actual and substantial prejudice, or that a nonconstitutional
error has resulted in a fundamental defect which inherently
results in a complete miscarriage of justice." In re
Pers. Restraint oflsadore, 151 Wn.2d 294, 298, 88 P.3d
390 (2004). The Supreme Court has explained that
"[t]hese threshold requirements are justified by the
court's interest in finality, economy, and integrity of
the trial process and by the fact that the petitioner has
already had an opportunity for judicial review."
Id. However, if a petitioner did not have an
opportunity for prior judicial review, then the heightened
threshold requirements applicable to PRPs do not apply, and
he need only demonstrate that he is restrained under RAP
16.4(b) and that the restraint is unlawful under RAP 16.4(c).
Id. at 299. Martinez has not had a prior opportunity
for judicial review of his allegedly improper condition of
community custody. Therefore, he must establish that (1) he
is restrained and (2) his restraint is unlawful.
petitioner is under a restraint if he or she has limited
freedom because of a court decision in a civil or criminal
proceeding, the petitioner is confined, the petitioner is
subject to immediate confinement, or the petitioner is under
some other disability resulting from a judgment or sentence
in a criminal case. RAP 16.4(b). The condition forbidding