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In re Personal Restraint of Martinez

Court of Appeals of Washington, Division 2

March 20, 2018

In the Matter of the Personal Restraint of: GREG STEVEN MARTINEZ, Petitioner.

          Bjorgen, C.J.

         Greg 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.

         We hold 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.

         FACTS

         On August 8, 2006, Martinez[1] 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 Alternative (SSOSA).

         On September 21, 2009, Martinez's SSOSA was revoked "after four separate violation processes, " and he was placed in the custody of the Department of Corrections (DOC).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.

         RCW 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 ISRB

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 community custody.

         On June 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.

          On 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.

         In 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.

         On June 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 consideration.

          ANALYSIS

         I. Standard of Review

         To 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.

         A 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 ...


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