with raping and drugging his three minor children for years,
Kevin Peters pleaded guilty to two counts of first degree
rape of a child and one count of first degree child
molestation. At sentencing, the trial court sentenced him to
a term of total confinement of 216 months to life, lifetime
community custody, and dozens of community custody
Peters limits his challenges on appeal to a dozen community
custody conditions, none of which were objected to in the
trial court. In the published portion of this opinion, we
touch on reasons why such conditions might not be reviewable
for the first time on appeal. For the conditions that are
eligible for review, we identify those that require
modification and two that could benefit from clarification.
The case is remanded for the entry of a judgment and sentence
revised in accordance with the opinion.
Kevin Peters pleaded guilty to the three charges, we need not
go into the disturbing allegations of his years-long sexual
abuse of his three children.
sentencing, the trial court imposed the high end of the
standard range and 33 community custody conditions requested
by the State, 9 of which were identified as mandatory. Mr.
Peters made no objection to the conditions at sentencing. He
first time on appeal, Mr. Peters challenges 12 of the
community custody conditions imposed by the sentencing court.
Sentencing Reform Act of 1981 (SRA) provides that when a court
sentences a person to a term of community custody, the court
shall impose conditions of community custody. RCW 9.94A.703.
The act identifies certain conditions as mandatory, others as
waivable, and others as discretionary. Id. Among
discretionary conditions that the court is authorized to
impose are orders that an offender "[c]omply with any
crime-related prohibitions." RCW 9.94A.703(3)(f).
"Crime-related prohibitions" are orders
"prohibiting conduct that directly relates to the
circumstances of the crime for which the offender has been
convicted." Former RCW 9.94A.030(13) (2008). They can
include prohibitions that address some factor of the crime
that might cause the convicted person to reoffend. State
v. Hai Minh Nguyen, 191 Wn.2d 671, 684-85, 425 P.3d 847
(2018). The State need not establish that the conduct being
prohibited directly caused the crime of conviction or will
necessarily prevent the convict from reoffending.
Id. at 685.
to sentencing conditions that were not raised in the trial
court may not be eligible for review, given RAP 2.5(a)'s
general requirement for issue preservation. State v.
Casimiro, 8 Wn.App. 2d 245, 249, 438 P.3d 137,
review denied, 445 P.3d 561 (2019). Appellate courts
have authority to consider claims of manifest constitutional
error that were not raised in the trial court, provided that
an adequate record exists to consider the claim. Id.
(citing RAP 2.5(a)(3); State v. McFarland, 127 Wn.2d
322, 333, 899 P.2d 1251 (1995)). Additionally, in
Bahl, our Supreme Court recognized that the non-rule
based exception for illegal or erroneous sentences created by
State v. Ford, 137 Wn.2d 472, 477-78, 973 P.2d 452
(1999), provides a basis for some unpreserved challenges to
community custody conditions. State v. Bahl, 164
Wn.2d 739, 744, 193 P.3d 678 (2008).
decisions have clarified that the non-rule based exception
allowing review of unpreserved sentencing errors is limited
by the concern for sentence conformity that is the basis for
the exception. As explained in State v. Blazina:
We did not want to "permit[ ] widely varying sentences
to stand for no reason other than the failure of counsel to
register a proper objection in the trial court." Errors
in calculating offender scores and the imposition of vague
community custody requirements create this sort of sentencing
error and properly fall within this narrow category. We
thought it justifiable to review these challenges raised for
the first time on appeal because the error, if permitted to
stand, would create inconsistent sentences for the same crime
and because some defendants would receive unjust punishment
simply because his or her attorney failed to object.
182 Wn.2d 827, 833-34, 344 P.3d 680 (2015) (alteration in
original) (citations and internal quotation marks omitted)
(quoting Ford, 137 Wn.2d at 478). Blazina
made clear that the exception for illegal or erroneous
sentences does not apply when the challenged sentence term,
had it been objected to in the trial court, was one that
depends on a case-by-case analysis. Id. at 834. And
courts never need consider claims of error-even
constitutional error-that were invited or waived.
Casimiro, 8 Wn.App. 2d at 249 (citing State v.
Studd, 137 Wn.2d 533, 545-49, 973 P.2d 1049 (1999)
(invited error); State v. Mierz, 127 Wn.2d 460, 468,
901 P.2d 286 (1995) (waived)).
an alleged error is preserved, it may not be ripe for review
on its merits under a prudential ripeness test adopted by our
Supreme Court in Bahl. It is ripe "' if the
issues raised are primarily legal, do not require further
factual development, and the challenged action is
final.'" State v. Cates, 183 Wn.2d 531,
534, 354 P.3d 832 (2015) (citations and internal quotation
marks omitted) (quoting State v. Sanchez Valencia,
169 Wn.2d 782, 786, 239 P.3d 1059 (2010)). Further factual
development will be required if the condition would only
violate the constitution if misapplied, but could be
constitutionally applied depending on the circumstances of
the enforcement. Id. at 535.
refusing to review a preenforcement challenge on direct
appeal, a reviewing court must also consider the hardship to
the offender. Id. at 834-35. In Sanchez
Valencia and Bahl, our Supreme Court held that
the risk of hardship will justify review before factual
development if the challenged condition immediately restricts
an offender's conduct upon release from prison.
Cates, 183 Wn.2d at 535-36.
summarize, for an objection to a community custody condition
to be entitled to review for the first time on appeal, it
must (1) be manifest constitutional error or a sentencing
condition that, as Blazina explains, is
"illegal or erroneous" as a matter of law, and (2)
it must be ripe. If it is ineligible for review for one
reason, we need not consider the other.
review conditions of community custody for abuse of
discretion, reversing such conditions only if they are
manifestly unreasonable. State v. Padilla, 190 Wn.2d
672, 677, 416 P.3d 712 (2018). The imposition of an
unconstitutional condition is manifestly unreasonable.
Sanchez Valencia, 169 Wn.2d at 792.
challenge to the lifetime no-contact order is not manifest
constitutional error nor is it illegal or erroneous as a
matter of law
Peters challenges "Other Condition" 1, that he have
no contact with his children for life. He argues that the
lifetime no-contact order violates his fundamental
constitutional right as a parent to raise his children
without government interference. See State v.
Corbett, 158 Wn.App. 576, 598, 242 P.3d 52 (2010). The
condition is ripe for review because it already restricts his
actions. But it is not manifest constitutional error nor is
it illegal or erroneous as a matter of law.
alleged error raises a constitutional issue. Community
custody conditions interfering with a parent's
fundamental constitutional right to parent may be imposed,
but they "must be 'sensitively imposed' so that
they are 'reasonably necessary to accomplish the
essential needs of the State and public order.'"
In re Pers. Restraint of Rainey, 168 Wn.2d 367, 377,
229 P.3d 686 (2010) (quoting State v. Warren, 165
Wn.2d 17, 32, 195 P.3d 940 (2008)). In the case of a
no-contact order, the order, its scope, and its duration must
all be reasonably necessary. Id. at 381. These are
"fact-specific" inquiries. Id. at 382.
Rainey, the Supreme Court struck a lifetime
no-contact order in part and remanded for consideration of
whether it was "reasonably necessary." But
there-unlike here-the defense made a timely objection to the
condition in the trial court. Id. at 373. The
condition was struck and the case remanded because there was
no indication that Rainey's argument against its scope
and duration had been considered by the trial court.
Id. at 382.
there was error in Mr. Peters's case it is not manifest
because actual prejudice is not shown. See
McFarland, 127 Wn.2d at 333. Victim impact statements
considered by the sentencing court included a statement by
Mr. Peters's oldest child that "I hate your guts and
I wish you were dead." Clerk's Papers (CP) at 80.
His middle child stated he "does not want his dad to get
out (of prison) and hurt other people." CP at 87. His
youngest child stated, "He should be in jail for longer
than he will live," and "I hate you." CP at
78. In the CASA's statement at the sentencing hearing, she
described Mr. Peters's actions toward his children as
"pervasive and protracted," "creat[ing] for
them a world of fear," and that his actions were going
to leave the children "vulnerable, and dysfunctional, I
believe, for the rest of their lives." Report of
Proceedings (Sept. 19, 2012; Oct. 23 & 30, 2012)
(RP)at 35. At the plea hearing and at sentencing, defense
counsel treated it as given that a lifetime no-contact order
would protect the children. See RP at 7, 59 (stating
that Mr. Peters "knows he can never have contact with
the evidence in the record is sufficient to support a
reasonable necessity for a lifetime no-contact order, the
condition is not illegal or erroneous as a matter of law.
Since Mr. Peters did not object (and even conceded, through
counsel, that the order would be imposed) he is not entitled
to appellate review.
Other contact restrictions designed to protect third parties
Peters challenges five community custody conditions whose
apparent purpose is to protect others from a risk of future
offenses by Mr. Peters. He challenges the following
Do not reside in a location within 888 feet of a Community
CP at 105 ("Other Condition" 13).
Have no contact with Minors unless approved by your assigned
Community Corrections Officer, and if applicable, Sex
Offender Treatment Provider.
Id. ("Other Condition" 3).
Do not go to places where children congregate (i.e. schools,
playgrounds, parks, etc.).
Id. ("Other Condition" 10).
Do not enter into any romantic relationships without the
prior approval of your supervising Community Corrections
Officer, and if ...