535846MAJ

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Court of Appeals Division I
State of Washington

Opinion Information Sheet

Docket Number: 53584-6-I
Title of Case: State of Washington, Respondent v. Richard
Thomas Sansone, Appellant
File Date: 05/23/2005


SOURCE OF APPEAL
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Appeal from Superior Court of King County
Docket No: 00-1-05098-1
Judgment or order under review
Date filed: 10/30/2003
Judge signing: Hon. Terry Lukens


JUDGES
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Authored by Marlin Appelwick
Concurring: Anne Ellington
Susan Agid


COUNSEL OF RECORD
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Counsel for Appellant(s)
Gregory Charles Link
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA 98101-3635

Susan F Wilk
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA 98101-3635

Counsel for Respondent(s)
Amy R Holt
King County Prosecutor's Office
516 3rd Ave Ste W554
Seattle, WA 98104-2390

Prosecuting Atty King County
King Co Pros/App Unit Supervisor
W554 King County Courthouse
516 Third Avenue
Seattle, WA 98104

James Morrissey Whisman
King County Prosecutor's Office
516 3rd Ave Ste W554
Seattle, WA 98104-2362


STATE OF WASHINGTON, ) NO. 53584-6-I
)
)
Respondent, ) DIVISION ONE
)
v. ) PUBLISHED OPINION
)
RICHARD THOMAS SANSONE, )
)
Appellant. )
) FILED: May 23, 2005

APPELWICK, J. - Richard Sansone appeals his sentence for violating a
condition of his community placement. The condition required that he not
possess or peruse pornography without prior approval of his probation
officer, and that the term 'pornography' was to be defined by his probation
officer. His probation officer found him in possession of photographs she
deemed inappropriate. Sansone claims that the condition prohibiting
pornography was unconstitutionally vague, both facially and as-applied. He
also claims that the sentencing court's delegation to the Department of
Corrections (DOC) to define the term 'pornography' violates separation of
powers principles. In addition, he argues that there was insufficient
evidence to find him in violation of the condition, and that the sentencing
court abused its discretion in refusing to admit certain evidence. The
state has conceded that the condition was improperly applied to Sansone's
conduct in this instance, and we accept this concession. We hold that the
term 'pornography' is unconstitutionally vague. Although delegation to the
probation officer or treatment provider to define a term in a community
placement condition may be permissible in some circumstances, the vagueness
is not cured by the delegation here. We reverse and remand.
FACTS
Richard Sansone was charged with one count each of attempted unlawful
imprisonment, assault in the third degree and rape in the third degree.
These charges stemmed from an incident with Sansone's then-girlfriend.
Sansone pleaded guilty to all three charges. In November 2000, he was
sentenced to eight months imprisonment for the assault charge, and 12
months and one day for the rape charge, to run concurrently. He was also
sentenced to community placement after his release. One of the terms of
Sansone's community placement was that he 'not possess or peruse
pornographic materials unless given prior approval by {his} sexual deviancy
treatment specialist and/or Community Corrections Officer. Pornographic
materials are to be defined by the therapist and/or Community Corrections
Officer.'
On August 26, 2003, Sansone met with Kathi Bulman, his Community
Corrections Officer (CCO). During the meeting, Sansone opened his notebook
to look for something, and Bulman noticed that Sansone had some photographs
in the briefcase.1 Bulman looked at the photographs, which depicted
clothed women in low-cut blouses, a woman clothed only from the waist down
but covering her breasts with her arms, and a woman covered in somewhat
sheer material. The photographs were laminated. Bulman believed that the
photographs were inappropriate for a sex offender to possess, so she took
Sansone into custody for possessing pornographic materials in violation of
his community placement condition.
On October 20, 2003, the trial court held a hearing on whether Sansone had
violated his community placement condition. Sansone argued that the
photographs were not pornography, and, to support his argument, offered
some clippings from mainstream magazines that he argued were no worse than
the photos he possessed. The trial court did not consider the clippings,
holding that they were irrelevant to the issue of whether Sansone had
violated his probation. The state argued that even though the photographs
would not have been pornography in someone else's hands, they were
inappropriate for Sansone to possess. The trial court agreed, found that
Sansone had willfully violated his community placement condition, and
sentenced Sansone to 60 days confinement, with credit for time served.
Sansone appeals the trial court's order.2
DISCUSSION
I. Mootness

Sansone claims that his sentence condition is unconstitutionally vague on
its face, in violation of his due process rights. He also asserts that the
condition is vague as applied. In addition, Sansone argues that the
sentencing condition violated the principles of separation of powers. He
also claims that the state failed to sufficiently prove that he violated
the condition, and that the sentencing court abused its discretion by
refusing to admit some of Sansone's evidence. The state has conceded that
the prohibition of pornography was improperly applied to Sansone's conduct
in this case and the order modifying his judgment and sentence should be
reversed. The threshold question is whether this case is moot in light of
the state's concession.
'A moot case is one which seeks to determine an abstract question which
does not rest upon existing facts or rights.' Hansen v. West Coast Etc.
Co., 47 Wn.2d 825, 827, 289 P.2d 718 (1955). In general, a case presenting
a moot issue on appeal is dismissed. City of Seattle v. Johnson, 58 Wn.
App. 64, 66-67, 791 P.2d 266 (1990). A case is not moot if the court can
still provide effective relief. State v. Turner, 98 Wn.2d 731, 733, 658
P.2d 658 (1983).
However, a court may address a moot issue if 'matters of continuing and
substantial public interest are involved.' Sorenson v. City of Bellingham,
80 Wn.2d 547, 558, 496 P.2d 512 (1972). 'Three criteria must be considered
when determining whether the requisite degree of public interest exists:
(1) the public or private nature of the question presented, (2) the need
for a judicial determination for future guidance for public officers, and
(3) the likelihood of future recurrences of the issue.' Matter of Eaton,
110 Wn.2d 892, 895, 757 P.2d 961 (1988). A fourth factor is arguably
present: the level of genuine adverseness and the quality of advocacy of
the issues. Hart v. Social & Health Svcs., 111 Wn.2d 445, 448, 759 P.2d
1206 (1988).
Because the state has conceded that the condition was improperly applied to
Sansone's conduct here, some of Sansone's claims are moot. Sansone's claim
that the condition is vague as applied to his conduct in this instance is
moot, because the state has conceded that the condition was improperly
applied. In addition, Sansone's claims that the state did not prove he
violated the sentence condition and that the sentencing court abused its
discretion by not admitting certain evidence have also been mooted. We can
provide no further effective relief with respect to these claims, as the
state has properly conceded and recommended we overturn the October 30,
2003, order.
We will address Sansone's vagueness challenge because it is a matter of
continuing and substantial public interest. All of the required elements
are present. The nature of the issue is public, as the community placement
condition has the potential to affect a great number of offenders. A
decision on this issue would provide future guidance to public officers
interacting with offenders on community placement. The issue is also one
that is likely to recur. Although Sansone is no longer under community
placement and therefore is not subject to the condition, many other sex
offenders are subject to the condition. Further, the parties have
adequately briefed the constitutional issues. In addition, prior case law
supports a decision in this case. Sansone has argued that the condition
deprived him of due process of law, and courts have held that '{w}here a
technically moot issue implicates due process rights, it is one in which
there is sufficient public interest to warrant deciding it.' In re
Dependency of H., 71 Wn. App. 524, 528, 859 P.2d 1258 (1993). Thus, we may
decide the vagueness and delegation issues.
II. First Amendment
Sansone has not challenged the community placement condition on First
Amendment grounds; he only cites due process as a basis for invalidating
the statute. However, the state's brief suggests that this court use a
First Amendment analysis in assessing Sansone's claim. We wish to clarify
that since Sansone has not raised any First Amendment claims, we will only
address his due process vagueness arguments.
Further, when a challenged prohibition does not involve First Amendment
rights, it is not properly evaluated for facial vagueness; instead, it must
be evaluated as-applied. Spokane v. Douglass, 115 Wn.2d 171, 182, 795 P.2d
693 (1990). Thus, under the reasoning in Douglass, Sansone can only
challenge the condition as applied to his conduct. Douglass, 115 Wn.2d at
182.
III. Vagueness Challenge

Sansone argues that the community placement condition prohibiting him from
possessing pornography without the prior consent of his parole officer is
unconstitutionally vague, thereby denying him due process of law. He
relies on the reasoning of two recent federal cases that found the term
'pornography' to be unconstitutionally vague in the context of a condition
of community placement. United States v. Guagliardo, 278 F.3d 868 (9th
Cir. 2002); United States v. Loy, 237 F.3d 251 (3rd Cir. 2001). We find
that the term 'pornography' is unconstitutionally vague in this context.
The due process vagueness doctrine 'serves two important purposes: first,
to provide citizens with fair warning of what conduct they must avoid; and
second, to protect them from arbitrary, ad hoc, or discriminatory law
enforcement.' State v. Halstien, 122 Wn.2d 109, 116-17, 857 P.2d 270
(1993). Under the due process clause, a prohibition is void for vagueness
if either (1) it does not define the offense with sufficient definiteness
such that ordinary people can understand what conduct is prohibited, or (2)
it does not provide ascertainable standards of guilt to protect against
arbitrary enforcement. Douglass, 115 Wn.2d at 178. However, a statute or
condition is presumed to be constitutional unless the party challenging it
proves that it is unconstitutional beyond a reasonable doubt. Haley v.
Med. Disciplinary Bd., 117 Wn.2d 720, 739, 818 P.2d 1062 (1991). In
addition, 'the constitution does not require 'impossible standards of
specificity' or 'mathematical certainty' because some degree of vagueness
is inherent in the use of our language.' State v. Riles, 135 Wn.2d 326,
348, 957 P.2d 655 (1998).
Here, the term 'pornography' is unconstitutionally vague. The term has not
been defined with sufficient definiteness such that ordinary people can
understand what it encompasses. This is supported by the fact that the
community placement condition includes a requirement that 'pornography' be
defined by the probation officer, a requirement that would be unnecessary
if 'pornography' was inherently definite. Moreover, as discussed further
below, the DOC employed varying definitions of pornography. The condition
does not provide ascertainable standards of guilt to protect against
arbitrary enforcement. Sansone cannot ascertain if materials are
pornographic without showing them to the probation officer to obtain a
determination, which itself exposes him to risk of violation. This is
illustrated by the fact that Sansone was detained and punished for having
violated the condition that he not possess pornography, despite the fact
that the state conceded at the hearing that the materials he had were not
pornographic.
The reasoning of the federal courts in Loy and Guagliardo is persuasive.3
In Loy, the defendant was convicted of receiving and possessing child
pornography. Loy, 237 F.3d at 253. He challenged the condition of his
supervised release that prohibited him from possessing all forms of
pornography, including legal adult pornography. Loy, 237 F.3d at 253. The
court noted that the term 'pornography' had never been given a precise
legal definition. Loy, 237 F.3d at 263. Finding that the defendant could
'hardly be expected to be able to discern, in advance, which materials are
prohibited,' the court held that the prohibition ran 'afoul of the due
process values that the vagueness doctrine is meant to protect.' Loy, 237
F.3d at 264, 265.
In Guagliardo, the defendant was also convicted of possession of child
pornography. Guagliardo, 278 F.3d at 870. The defendant challenged a
condition of his supervised release that he not possess any pornography,
including legal adult pornography. Guagliardo, 278 F.3d at 872. The court
noted that a probationer has a due process right to conditions sufficiently
clear to inform of what conduct will return him to prison. Guagliardo, 278
F.3d at 872. The court also noted that unlike the term 'obscenity, which
has a legal definition, the term 'pornography' is completely subjective.
Guagliardo, 278 F.3d at 872. The court concluded by holding that
'{r}easonable minds can differ greatly about what is encompassed by
'pornography.' Given this inherent vagueness, Guagliardo cannot determine
how broadly his condition will extend.. . . We remand for the district
court to impose a condition with greater specificity.' Guagliardo, 278
F.3d at 872.
The state's attempts to distinguish Loy and Guagliardo are unavailing. The
state notes that the community placement conditions in those cases had no
provisions requiring the probation officer to define 'pornography' for the
defendant. The state argues that Sansone's condition does not place him in
the condition of finding out what material is prohibited after the fact,
because the condition requires the probation officer to define for Sansone
what material he can possess. If Sansone was unsure as to whether certain
materials constituted pornography, the condition contemplates that he would
ask his probation officer. However, if in seeking this decision he brought
the materials with him to show the officer and the materials were
determined to be pornography, Sansone would then be in violation of the
conditions of his community placement. Further, it is also possible that
Sansone could legitimately believe that there was no question that certain
materials he possessed were not pornography under the definition used by
his probation officer, and thus not seek guidance from the officer. If the
materials were discovered and the parole officer determined that they were
pornographic, Sansone would be in violation of the conditions of his
community placement. This latter scenario mirrors very closely the facts
in this case. It is also a scenario contemplated by the Guagliardo court:
The government asserts that any vagueness is cured by the probation
officer's authority to interpret the restriction. This delegation,
however, creates 'a real danger that the prohibition on pornography may
ultimately translate to a prohibition on whatever the officer personally
finds titillating.' A probation officer could well interpret the term more
strictly than intended by the court or understood by Guagliardo.

Guagliardo, 278 F.3d at 872 (internal citations omitted). Thus, we hold
that the community placement condition is unconstitutionally vague.
IV. Delegation

Sansone notes that the Sentencing Reform Act provided that only the
sentencing court can impose community placement conditions on him. Thus,
he claims that the sentencing court's delegation of authority to the DOC to
define pornography violated separation of powers principles. We hold that
the delegation here was excessive and that the vagueness of the term
'pornography' is not cured by the delegation in these circumstances.
Sentencing courts have the power to delegate some aspects of community
placement to the DOC. While it is the function of the judiciary to
determine guilt and impose sentences, 'the execution of the sentence and
the application of the various provisions for the mitigation of punishment
and the reformation of the offender are administrative in character and are
properly exercised by an administrative body, according to the manner
prescribed by the Legislature.' State v. Mulcare, 189 Wn. 625, 628, 66
P.2d 360 (1937).
However, sentencing courts may not delegate excessively. A sentencing
court 'may not wholesaledly 'abdicate { } its judicial responsibility' for
setting the conditions of release.' Loy, 237 F.3d at 266, quoting United
States v. Mohammad, 53 F.3d 1426, 1438 (7th Cir. 1995). An
unconstitutionally vague condition
cannot be cured by allowing the probation officer an unfettered power of
interpretation, as this would create one of the very problems against which
the vagueness doctrine is meant to protect, i.e., the delegation of 'basic
policy matters to policemen . . . for resolution on an ad hoc and
subjective basis.'

Loy, 237 F.3d at 266, quoting Grayned v. City of Rockford, 408 U.S. 104,
109, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972).
Here, the delegation to Sansone's CCO to define pornography was improper.
The definition of pornography was not an administrative detail that could
be properly delegated to the CCO. That the delegation was improper in this
case is illustrated by the fact that there were several definitions of
pornography given during the proceedings. In a prior hearing that Sansone
was involved in, Bulman defined 'pornographic material' as 'naked bodies
for the sole purposes of sexual enjoyment.' In the October 30, 2003,
hearing, Sansone's current CCO, Christopher Salindron, stated that the
accepted DOC definition of pornography was '{a}nything that will cause
sexual arousal of a person.' In addition, Bulman had defined pornography
for Sansone as: 'men and women engaging in sex, nudity.. . . {s}odomy,
masturbation.'4 These definitions are not merely minor variants of one
another; they are quite different. The fact that one term could be defined
so differently indicates the impropriety of delegation; neither Sansone nor
his CCO were put on notice as to what would result in Sansone being sent
back to prison.
We note that our holding is limited to the circumstances at hand. A
delegation would not necessarily be improper if Sansone were in treatment
and the sentencing court had delegated to the therapist to decide what
types of materials Sansone could have. In such a circumstance, the
prohibition is not necessarily static-it is a prohibition that might change
as the probationer's treatment progressed, and is thus best left to the
discretion of the therapist.
V. Additional Grounds for Review

Sansone presents eleven additional grounds for review, many of them
addressing more than one issue. Because the issues raised are either
unsupported in the record, conclusory, or addressed in the briefing above,
we need not consider them.
Reversed and remanded to the sentencing court for imposition of a
condition on Sansone's possession of materials that contains the necessary
specificity.

WE CONCUR:

1 Bulman testified at the hearing that she noticed the photographs and
asked Sansone if she could look at them, and he agreed. Sansone disputed
this account, claiming Bulman seized the notebook and the photographs and
searched them without Sansone's permission.
2 In its brief, the state referenced several times an earlier incident with
Sansone possessing pornography in violation of his community placement
condition. In that case, Sansone challenged the search that led to
discovery of that pornography. The state conceded that the search was
unlawful, and this court accepted the state's concession, reversed the
order and remanded with instructions to suppress the evidence seized.
State v. Sansone, No. 53048-8-I, 2004 WL 2002580 (Wn. App. Div. I Sept. 7,
2004). Subsequently, Sansone moved to strike the portions of the state's
brief in this case that referenced this incident. As we need not rely on
this challenged information to decide this case, we may assume without
deciding that the references are improper. On February 7, 2005, the trial
court on remand reversed the prior sentencing modification of August 21,
2003, credit the time Sansone served in jail against his community
placement time, and terminated community placement.
3 At least one other state court has found the reasoning in Loy and
Guagliardo persuasive. In Smith v. State, 779 N.E.2d 111, 117-18 (Ind. Ct.
App. 2002), the Indiana Court of Appeals relied on Loy and Guagliardo to
hold that the probation condition that the defendant not possess
pornographic or sexually explicit materials was unconstitutionally vague.
The court held similarly in Fitzgerald v. State, 805 N.E.2d 857, 866-67
(Ind. Ct. App. 2004), and Foster v. State, 813 N.E.2d 1236, 1239 (Ind. Ct.
App. 2004).
4 The record reflects that this is what Bulman said when Sansone asked her
what certain images he possessed displayed. However, Bulman gave this
example when Sansone asked her what her definition of pornography was on
cross examination at the October 30 hearing. Even if Bulman did not frame
this answer as her definition, it is easy to see how this response could be
taken as a definition.
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