FTLC1D
                                                                COURT OF APPEALS 01V I
                                                                 STATE OF WASHINGTON
                                                                2018 JUN 25 AN 9:25



  IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                      DIVISION ONE

STATE OF WASHINGTON,                    )       No. 76359-8-1
                                        )
                     Respondent,        )
                                        )
              v.                        )
                                        )
QUENTIN ROBERT YOUDERIAN,               )       UNPUBLISHED OPINION
                                        )
                     Appellant.         )       FILED:. June 25, 2018
                                        )
       VERELLEN, J. — Quentin Youderian pleaded guilty to one count of voyeurism
and one count of second degree possession of depictions of a minor engaged in

sexually explicit conduct. At sentencing, the court imposed a $500 victim

assessment, a $100 biological sample(DNA)fee, and a $1,000 fine pursuant to

RCW 9.68A.107. The trial court properly imposed these mandatory fees because

the legislature has expressed these fees must be imposed regardless of a

defendant's ability to pay.

       Youderian's plea agreement did not include the statutorily mandated $1,000

fine. The absence of the mandatory fine in Youderian's plea agreement reflects

the parties' mutual mistake. Because specific performance is not available in the

case of mutual mistake, Youderian is not entitled to specific performance of the

plea agreement.
No. 76359-8-112



       At sentencing, the court also imposed various community custody

conditions. The community custody condition that requires Youderian to hold

employment only in a position where he always receives direct supervision should

be stricken on remand because it is not crime related and it is unconstitutionally

vague. And the community custody conditions prohibiting Youderian from

accessing the Internet without approval from his community corrections officer and

from using computer chat rooms should be stricken because they are not crime

related.

       But the court did not abuse its discretion when it imposed the community

custody condition prohibiting Youderian from frequenting areas where minor

children are known to congregate. This condition is not unconstitutionally vague

because it does not provide discretion to Youderian's community corrections

officer to define "places where minors congregate," and the condition provides an

illustrative list of prohibited locations which gives sufficient notice to understand

what conduct is proscribed.

       Therefore, we affirm the conviction and remand with instructions to strike

certain community custody conditions as directed in this opinion.

                                        FACTS

       Between January 2015 and June 2016, Quentin Youderian secretly filmed

his girlfriend's nine-year-old daughter while she was changing. The State charged

Youderian with voyeurism and second degree possession of depictions of a minor

engaged in sexually explicit conduct.




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No. 76359-8-1/3



       On October 19, 2016, Youderian entered a guilty plea. As part of the plea

agreement, the State recommended Youderian pay $800 in legal financial

obligations. On January 6, 2017, the court sentenced Youderian to 15 months

imprisonment and 36 months of community custody. The court imposed $1,600 in

legal financial obligations. The court also imposed various community custody

conditions.

       Youderian appeals.

                                      ANALYSIS •

                             I. Legal Financial Obligations

       Youderian challenges the trial court's imposition of legal financial

obligations given his inability to pay.

      "The sentencing court's authority to impose court costs and fees is

statutory.'"1 When imposing legal financial obligations, the court must not "order a

defendant to pay costs unless the defendant is or will be able to pay them."2 But

"for mandatory legal financial obligations, the legislature has divested courts of the

discretion to consider a defendant's ability to pay when imposing those

obligations."3

       Here, the court imposed a $500 victim assessment, a $100 DNA fee, and a

$1,000 fine pursuant to RCW 9.68A.107. Under former RCW 43.43.7541 (2015),


        State v. Mathers, 193 Wash. App. 913, 917, 376 P.3d 1163(2016)(quoting
State v. Cawver, 182 Wash. App. 610, 619, 330 P.3d 219(2014))(citing
RCW 10.01.160(3)), review denied, 186 Wash. 2d 1015 (2016).
       2   Former RCW 10.01.160(3)(2015).
       3   State v. Lundy, 176 Wash. App. 96, 102, 308 P.3d 755 (2013).



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 No. 76359-8-1/4



a $100 DNA fee must be included in every felony sentence.4 And under

RCW 7.68.035(1)(a), a $500 victim penalty assessment is imposed on "any person

[who] is found guilty in any superior court of having committed a crime." Similar to

the DNA fee and victim penalty assessment, the legislature requires the court to

impose a $1,000 fee on any person convicted of possession of depictions of a

minor engaged in sexually explicit conduct.5

         Youderian argues the mandatory language in the above statutes "does not

,override the requirement that the costs be imposed only if the defendant has the

ability to pay."6 But Washington courts have consistently rejected this argument

and upheld the imposition of mandatory fees "without regard to finding the ability to

pay."7




        See also former RCW 43.43.754 (2015). The trial court waived the $200
         4

criminal filing fee. Youderian argues,"Just as the court was free to waive the $200
criminal filing fee, it was free to waive the $1,000 fee." Reply Br. at 4. But
Youderian does not provide any persuasive authority allowing the court to waive
the criminal filing fee. The criminal filing fee "is required by RCW 36.18.020(2)(h),
irrespective of the defendant's ability to pay." Lundy, 176 Wash. App. at 103 (citing
State v. Curry, 62 Wash. App. 676, 680-81, 814, P.2d 1252(1991), aff'd, 118 Wash. 2d
911, 829 P.2d 166 (1992); State v. Thompson, 153 Wash. App. 325, 336, 223 P.3d
1165 (2009)).
         5   RCW 9.68A.107(1); RCW 9.68A.070.
         6   Appellant's Br. at 12.
       7 State v. Shelton, 194 Wash. App. 660, 673-74, 378 P.3d 230 (2016), review

denied, 187 Wn.2d 1002(2017); see also Mathers, 193 Wash. App. at 918
("Washington courts have consistently held that a trial court need not consider a
defendant's past, present, or future ability to pay when it imposes either DNA or
[victim penalty assessment]fees."); State v. Clark, 191 Wash. App. 369, 374, 362
P.3d 309 (2015); Lundy, 176 Wash. App. at 102; State v. Kuster, 175 Wash. App. 420,
424, 306 P.3d 1022(2013); Thompson, 153 Wash. App. at 336; State v. Williams, 65
Wash. App. 456, 460, 828 P.2d 1158, 840 P.2d 902(1992)). No Washington case



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 No. 76359-8-1/5



       Youderian also argues the imposition of the mandatory fees violates his

rights to equal protection and substantive due process. Because the legislature

has expressed that the trial court must impose certain mandatory fees regardless

of a defendant's ability to pay, Washington courts have routinely rejected identical

constitutional challenges.8

       We conclude the trial court properly imposed the $100 DNA fee, the $500

victim penalty assessment, and the $1,000 fine.

                                   II. Plea Agreement

       Youderian contends the State breached the plea agreement and he is

entitled to specific performance.

       Constitutional issues are reviewed de novo.° And we apply "an objective

standard to determine whether the State breached a plea agreement."1°

       "A plea agreement functions as a contract in which the defendant

exchanges his guilty plea for some bargained-for concession from the State:



has discussed the imposition of the $1,000 fine under RCW 9.68A.107, hence we
apply the same rationale from cases addressing other mandatory fees.
     8 See Mathers, 193 Wash. App. at 927-29; Curry, 118 Wash. 2d at 918; Lundy,
176 Wash. App. at 102-03.
       9 State v. MacDonald, 183 Wash. 2d 1, 8, 346 P.3d 748 (2015); Id. at 9 ("In
addition to contract principles binding the parties to the agreement, constitutional
due process 'requires a prosecutor to adhere to the terms of the agreement' by
recommending the agreed upon sentence.")(quoting State v. Sledge, 133 Wash. 2d
828, 839, 947 P.2d 1199(1997)); id. at 9("When the State breaches a plea
agreement, it 'undercuts the basis for the waiver of constitutional rights implicit in
the plea.")(quoting State v. Tourtellotte, 88 Wash. 2d 579, 584, 564 P.2d 799 "
(1977)).
       19   Id. at 8 (citing Sledge, 133 Wash. 2d at 843 n.7).



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No. 76359-8-1/6



dropping of charges, a sentencing recommendation, etc."11 There are two

possible remedies for an involuntarily guilty plea: withdrawal of the plea or specific

performance of the plea agreement.12 In the event of mutual mistake, the only

remedy is withdrawal.13 Mutual mistake occurs when the parties agree to a

sentence that is contrary to law.14 "The remedy of specific performance was

intended to address the State's breach of a plea agreement, and is not

appropriately extended to the mutual-mistake context."15

       In State v. Barber, our Supreme Court considered "whether a defendant is

entitled to specific performance when the result is to bind the sentencing court to

impose a sentence that is contrary to law.16 There, the State's recommendation

made no mention of community custody, but Barber's felony driving under the

influence offense carried a statutorily mandated 9 to 18 month term of community

custody.17 Our Supreme Court "[did] not construe the absence of any mention of

community custody in the plea agreement as a promise from the State to

recommend against community custody."15 Rather, the court "recognize[d][the


       11 State v. Barber, 170 Wash. 2d 854, 859, 248 P.3d 494(2011)(citing Sledge,
133 Wash. 2d at 838-40; State v. Hunsicker, 129 Wash. 2d 554, 559, 919 P.2d 79
(1996)).
      12   id. at 855.
      13 Id. at 873.
      14 In  at 859.
      16   Id. at 873 (citation omitted).
      16   Id. at 855-56.
      17   Id. at 857-58.
      18   Id. at 862.



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No. 76359-8-1/7



absence] as reflecting the parties' mistaken understanding that community custody

was not a component of Barber's sentence."19 Barber sought specific

performance of the State's recommendation. But the court held that "specific

performance is not an available remedy in cases of mutual mistake."2°

       Here, Youderian entered into a plea agreement with the State on October

14,2016. After the court accepted Youderian's guilty plea but before sentencing,

the State realized the agreement did not include the statutorily mandated $1,000

fine pursuant to RCW 9.68A.107.

       Similar to Barber, we do not construe the absence of the mandatory fine in

Youderian's plea agreement as a promise from the State to recommend against

imposition of the fine. Rather, we recognize the absence as reflecting the parties'

mistaken understanding that the plea agreement contained all mandatory legal

financial obligations. At sentencing, the State conceded that Youderian was

entitled to withdraw his guilty plea due to mutual mistake, Youderian declined, and

elected to go forward with sentencing.

       We conclude the State did not breach the plea agreement, and Youderian

is not entitled to specific performance.

                             III. Community Custody Conditions

       We review imposition of community custody conditions for abuse of

discretion.21 A sentencing court abuses its discretion if its decision is "manifestly


       19   Id. at 862-63.
       20   Id. at 873.
       21   State v. Irwin, 191 Wash. App. 644, 656, 364 P.3d 830 (2015).



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No. 76359-8-1/8


unreasonable:22 Imposing an unconstitutional condition will always be manifestly

unreasonable.23

       A. Condition 11— Employment

       Condition 1 requires Youderian to "[h]old employment only in a position

where you always receive direct supervision."24 Youderian contends condition 11

is not crime related and therefore exceeds the trial court's authority. The State

argues the condition is crime related because it "provides an additional measure of

assurance that the defendant will not have direct contact with minors in the course

of employment:25

       The trial court may require an offender to comply with "crime-related

prohibitions:26 The panel reviews the factual basis for crime-related community

custody conditions under a "substantial evidence" standard.27 Crime-related

prohibitions must be "reasonably related" to the corresponding crime.28 Courts will

uphold crime-related community custody decisions when there is some basis for




       22   Id.
       23   Id. at 652.
       24   CP at 41.
       25   Br. of Resp. at 28.
       26   RCW 9.94A.703(3)(f).
       27   Irwin, 191 Wash. App. at 656.
       28 RCW 9.94A.030(10)("crime-related prohibitions" are those "directly
relate[d]" to the crime); Irwin, 191 Wash. App. at 656 ("directly related" includes
"reasonably related"); State v. Warren, 165 Wash. 2d 17, 32, 195 P.3d 940(2008)
("[crime-related prohibitions] are usually upheld if reasonably crime related").



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No. 76359-8-1/9



the connection.29 Reviewing courts will strike community custody conditions when

there is no evidence in the record that the circumstances of the crime related to

the community custody condition.3°

       The State relies on State v. Kinzie to argue a community custody condition

is not required to be factually identical to the defendant's criminal conduct.31 In

Kinzle, this court upheld a condition prohibiting Kinzie from dating women or

forming relationships with families who have minor children.32 A jury had

convicted Kinzie of child molestation.33 The court concluded,"Because Kinzle's

crime involved children whom he came into contact through a social relationship

with their parents, condition 10 is reasonably crime-related and necessary to

protect the public."34

       Although the State is correct in arguing that a condition does not have to be

factually identical to the crime, the condition must be reasonably related to the

individual's criminal conduct. Here, the condition requiring Youderian to hold

employment only in a position where he receives direct supervision is not

reasonably related to his criminal conduct. There is no evidence that Youderian's

criminal conduct related to his place of employment. The record indicates that the



       29   Irwin, 191 t Nn. App. at 656.
       3°   Id.
       31   181 Wn. App. 774, 326 P.3d 870(2014).
       32   id. at 785.
       33   Id. at 777.
      34 Id. at 785.



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No. 76359-8-1/10



crimes were committed exclusively within Youderian's home.

       Youderian also argues condition 11 is unconstitutionally vague because it

insufficiently apprises him of prohibited conduct.

       The guarantee of due process in the Fourteenth Amendment to the United

States Constitution and article I, section 3 of the Washington Constitution requires

that laws not be vague.35 "The laws must(1) provide ordinary people fair warning

of proscribed conduct, and (2) have standards that are definite enough to 'protect

against arbitrary eciforcement.'"36 A community custody condition is

unconstitutionally vague if it fails to do either.37 "However,'a community custody

condition is not unconstitutionally vague merely because a person cannot predict

with complete certainty the exact point at which his actions would be classified as

prohibited conduct"38

       Here, the parties dispute whether the term "direct supervision" is sufficiently

clear to inform Youderian of the type of employment he may hold. "Supervision" is

defined as "the act process, or occupation of supervision."39 "Direct" is defined in

numerous ways, including "to show or point out the way for," "to regulate the

activities or course of," and "to guide and supervise."49 Even assuming these


      35   State v. Bahl, 164 Wash. 2d 739, 752-53, 193 P.3d 678(2008).
      36   Irwin, 191 Wash. App. at 652-53 (quoting id.).
      37   Id. at 653 citing Bahl, 164 Wash. 2d at 753).
     38 Id. (internal quotation marks omitted)(quoting State v. Valencia, 169
Wash. 2d 782, 793, 239 P.3d 1059 (2010)).
      39   WEBSTER'S THIRD INTERNATIONAL DICTIONARY 2296(2002).
      40 WEBSTER S THIRD INTERNATIONAL DICTIONARY 640 (2002).



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No. 76359-8-1/11



dictionary definitions are ascertainable to an ordinary person, the phrase "direct

supervision" is not sufficiently definite to provide against arbitrary enforcement.

The condition wou d require further definition from Youderian's community

corrections officer to determine the type of employment Youderian may hold.'"

       We conclude condition 11 should be stricken on remand because it is not

crime related and because it is unconstitutionally vague.

       B. Conditions 17 and 18 — Internet and Chat Rooms

       Condition 17 prohibits Youderian from "access[ing] the Internet on any

computer in any location, unless such access is approved in advance by the

supervising Community Corrections Officer or your treatment provider."42

Condition 18 prohibits "use of computer chat rooms."43

       Youderian contends conditions 17 and 18 are not crime related and

therefore exceed the trial court's authority. The State argues the conditions are

crime related because they "provide additional protections that the defendant will

not have contact with minors on the Internet or in chat rooms" and they "ensure

compliance with other conditions."44




      41 See  Irwin,j191 Wn. App. at 654(Washington courts have held "that
            custodl
community            conditions that required further definition from [community
corrections officers] were unconstitutionally vague.").
      42   CP at 41.
      43   CP at 42.
      44   Resp't's Br. at 30.



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No. 76359-8-1/12


       In State v. O'Cain, this court struck a condition prohibiting O'Cain from

unapproved Internet access.45

      There is no evidence in the record that the condition in this case is
      crime related. There is no evidence that O'Cain accessed the
      Internet before the rape or that Internet use contributed in any way to
      the crime. This is not a case where a defendant used the Internet to
      contact and lure a victim into an illegal sexual encounter. The trial
      court made no finding that Internet use contributed to the rape.(461

      Similarly, there is no evidence Youderian's criminal conduct related to his

use of the Internet or chat rooms. He used a recording device to film his

girlfriend's daughter while she was changing and stored the videos on a hard

drive. The State contends "[v]ideos and pictures can be uploaded on the Internet

and can easily be hared."47 But there is no evidence that Youderian uploaded the

videos to the Internet. The State also argues "there is nothing to guarantee the

Defendant will not have contact with minors in chat rooms."48 Again, there is no

evidence Youderian's use of chat rooms contributed to his criminal conduct.

       We conclude conditions 17 and 18 should be stricken on remand because

they are not crime related.

       C. Condition 6— Places Where Minors Congregate

       Condition 6 provides "Do not frequent areas where minor children are

known to congregate such as; schools, playgrounds, daycares, corn mazes,



      45   144 Wash. App. 772, 774-75, 184 P.3d 1262.
      46   Id. at 775.
      47   Resp't's Br. at 30.
      45   Id.



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No. 76359-8-1/13



children birthday parties, toy stores or the toy section in department stores,

community swimming pools, youth sporting events,[and] arcades."49

       Youderian argues condition 6 is unconstitutionally vague because it allows

for arbitrary enforcement. The State contends the condition "is not void for

vagueness because it provides specific location[s] and thus the defendant has

adequate notice a to what is proscribed."50

       In State v. Irwin, this court considered a similar community custody

condition which provided that the defendant "not frequent areas where minor

children are known to congregate, as defined by the supervising [community

corrections officer]"51 The court concluded that "[w]ithout some clarifying

language or an illustrative list of prohibited locations. . . , the condition does not

give ordinary peop e sufficient notice to 'understand what conduct is proscribed.'"52

       And in State v. Mac:Jana, Division Three of this court considered a condition

which provided "Do not frequent parks, schools, malls, family missions or

establishments where children are known to congregate or other areas as defined

by supervision [community corrections officer], treatment providers." 53 The court




       49   CP at 41.
       5°   Resp't's Br. at 25.
       51 191 Wash. App. 644, 649, 364 P.3d 830(2015).
       52 Id. at 655(quoting Bahl, 164 Wash. 2d at 753).

       53 197 Wash. App. 189, 200, 389 P.3d 654(2016).



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No. 76359-8-1/14



determined the condition "is problematic because it affords too much discretion to

Mr. Magana's[community corrections officer]."54

       Here, condition 6 is not subject to arbitrary enforcement because it does not

provide discretion to Youderian's community corrections officer to define "places

where minors congregate." And the illustrative list of prohibited locations gives

Youderian sufficient notice to understand what conduct is proscribed.

       We conclude the trial court did not abuse its discretion when it imposed

condition 6 because it is not unconstitutionally vague.

      Therefore, we affirm Youderian's conviction and remand with instructions to

strike condition 11 requiring employment with "direct supervision" and to strike

conditions 17 and 8 prohibiting unapproved Internet access and use of chat

rooms.




WE CONCUR:



 71St441L.1 4-C.T.                                                   0




       54   Id. at 201.



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