* State Of Washington, Respondent V. Justin R. Smith, Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
JUSTIN SMITH,
Appellant.
No. 86394-1-I
DIVISION ONE
OPINION PUBLISHED IN PART
FELDMAN, J. — In 2021, Justin Smith was convicted of first degree rape of a
child 	and 	received 	a 	suspended 	sentence 	under 	the 	special 	sex 	offender
sentencing alternative (SSOSA) statute, RCW 9.94A.670. The State subsequently
filed a petition to revoke Smith’s SSOSA alleging he violated the conditions of his
suspended 	sentence 	by 	using 	an 	unapproved 	smartphone 	to 	view 	child
pornography and communicate with minor children over the internet. 	In 2024,
following an evidentiary hearing, the trial court issued an order finding the State
had proved its alleged violations, revoking Smith’s suspended sentence, and
reinstating his original sentence.
On appeal from this order, Smith raises several arguments regarding the
constitutionality of sentencing conditions restricting his use of computers and the
internet, the revocation of his SSOSA, and the imposition of various legal financial
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No. 86394-1-I
2
obligations. In the published portion of this opinion, we reject Smith’s arguments
regarding the constitutionality of the sentencing conditions and revocation of the
SSOSA. In the unpublished portion of the opinion, we address Smith’s remaining
arguments, including those set forth in his statement of additional grounds. 	We
remand for the trial court to correct an apparent scrivener’s error in the order
revoking Smith’s SSOSA, but in all other respects we affirm.
I
A. 	Factual background and sentencing proceedings
In 2019, Smith raped his 7-year-old daughter. 	He subsequently pleaded
guilty to first degree rape of a child, a class A felony. 	Before his sentencing
hearing, Smith filed a memorandum requesting that the court impose a SSOSA
and attached two documents in support of this request. The first document was a
“release plan” authored by Erin Hill, a social worker, that, according to Smith, would
“ensure M[r]. Smith’s seamless transition into treatment services.” In the release
plan, Hill stated in relevant part, “It is my understanding that the Department of
Corrections (DOC) will provide comprehensive monitoring of Mr. Smith to ensure
that he does not have contact with minors or inappropriate internet access.”
The second document was a psychosexual evaluation report authored by
Christmas Covell, a psychologist who was retained by Smith. The stated purpose
of this evaluation was to “inform decisions regarding Mr. Smith’s appropriateness
for community-based treatment” under a SSOSA and “[t]o that end, . . . help
decision-makers in understanding Mr. Smith’s psychological functioning, including
his sexual functioning and risk for future sexual offense behavior, and if relevant,
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No. 86394-1-I
3
any related treatment and management needs.” Smith’s memorandum stressed,
“[I]t is crucial that the Court have adequate time to review Dr. Covell’s highly
detailed thirty-page report.”
Dr. Covell’s report, which was based largely on her interview of Smith,
describes in great detail how Smith used the internet to view child pornography.
Smith admitted that he began watching online pornography at age seven and has
“a long history (several years) of pursuing sexually explicit/abusive images of
prepubescent and peri-pubescent minors (largely females), and of masturbating to
these images.” 	Smith specified that he “took a strong preference to images or
videos featuring sexual exploitation/abuse of minors between the ages of seven
and 14.” Smith also told Dr. Covell he fantasizes about having sexual intercourse
with minor children and that this fantasy “mostly roots from seeing pornography
that included that theme.” 	Smith explained he eventually “went to the dark web”
to find sexualized images of children.1
Smith also revealed to Dr. Covell that he used the internet to communicate
with minor children for sexual purposes. 	Smith divulged that he “has chatted
sexually on-line fairly extensively” with adults and minor children via dating
websites, social media (such as Facebook), and online gaming platforms. Smith
estimated that he has “chatted sexually with” 100 women in “on-line venues” and
1 “The ‘dark web’ is the term used to denote parts of the Internet largely unseen by the average
user. Characterized as a ‘private global computer network that enables users to conduct
anonymous transactions without revealing any trace of their location,’ the dark web requires
specialized tools or interfaces to access.” 	Wash. Pub. Emps. Ass’n v. Wash. State Cent. for
Childhood Deafness & Hearing Loss, 194 Wn.2d 484, 514 n.16, 450 P.3d 601 (2019) (Wiggins, J.,
dissenting) (quoting United States v. Werdene, 883 F.3d 204, 206 n.1 (3rd Cir. 2018)) (internal
quotation marks omitted).
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No. 86394-1-I
4
has met 20 of these women, 5 of whom “were underage,” to “engage in sexual
contact.”
Based on this information, Dr. Covell concluded, “A comprehensive risk
assessment, considering Mr. Smith’s known history, characteristics, and current
circumstances place[s] him at an Above Average risk for engaging in future sexual
offense behaviors.” 	Dr. Covell also observed that Smith “endorsed a tendency
towards recklessness, impulsivity, and irresponsibility,” has “a tendency towards
deceitfulness,” and “has recent history of efforts to circumvent rules/restrictions”
regarding 	his 	supervision 	during 	the 	pendency 	of 	his 	case. 	Nonetheless,
Dr. Covell stated Smith “can be successful in a community-based treatment
program as part of a SSOSA, with appropriate and sufficient structure and
support.” But Dr. Covell clarified that “[i]f Mr. Smith is to be placed in a community
setting, sufficient structure and external oversight/management strategies will . . .
need to be in place to support his ability to participate effectively in these
[treatment] interventions and manage his presenting level of risk.”
Regarding recommended “interventions and risk management strategies,”
Dr. 	Covell 	suggested 	that 	Smith’s 	treatment 	include 	“[d]evelopment 	of
understanding 	of 	offense 	behaviors 	and 	immediate 	risk/precursors, 	and
development 	of 	a 	related 	appropriate 	intervention/relapse 	prevention 	plan
(including a safety plan for use of digital devices and the internet).” Dr. Covell also
recommended that Smith’s “unsupervised contact with minors be limited to
incidental contact in public places” due to his “identified difficulty with deviant
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No. 86394-1-I
5
arousal 	to 	minors, 	history 	of 	seeking 	out 	relationships/sexual 	contact 	with
adolescents, and sexual compulsivity, as well as his offense conduct.”
Especially 	relevant 	here, 	Dr. 	Covell 	recommended 	that 	Smith 	have
“[r]estricted or monitored access to venues or technologies that cater to or provide
access [to] casual or illegal sexual activity,” and provided the following reasons for
this recommendation:
Given the risk needs noted in the area of sexual preoccupation and
coping, as well as his offense behaviors, Mr. Smith should also be
expected to refrain from use or perusal of erotic or sexually explicit
materials, or visiting establishments/locations (on-line or off-line)
where erotic or sexually explicit materials are sold or that specialize
in impersonal/casual sexual activity (e.g., strip clubs, internet sex-
clubs, apps, chat rooms or message boards with sexual or ‘hookup’
themes, or Craig’s list personal or casual encounter ads, etc.) unless
otherwise directed/recommended by his therapist for therapeutic
purposes . . . . With his history of use of internet technology to pursue
casual sexual activity, view sexually abusive/exploitative images
featuring minors, and to sexually chat with/meet adolescent minors,
it 	is 	recommended 	that 	Mr. 	Smith 	be 	restricted 	from 	internet
use/access, unless regulated and monitored. While total bans of the
internet and internet-capable or recording devices may be useful in
the short term, long-term bans are not realistic or effective in
assisting offenders to develop healthy relationships with and safe,
legal use of internet and recording technologies that are both
ubiquitous and an increasingly necessary part of community living.
It is further recommended that Mr. Smith be allowed the opportunity
for internet access in the future, with the support and oversight of his
community therapist and community corrections officer. It is further
recommended that a safety or boundary plan be developed to
support Mr. Smith’s efforts to utilize digital media, devices and the
internet in a healthy manner; this plan should include limiting Mr.
Smith’s access to specific internet-capable and/or recording devices
(e.g., 	to 	specifically 	identified 	devices 	and/or 	locations 	and
situations), and provisions for monitoring his use and compliance
with 	the 	plan 	(e.g., 	via 	use 	of 	direct 	supervision/chaperoning,
monitoring software, and/or use of maintenance polygraph testing).
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No. 86394-1-I
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Dr. Covell also noted, “Changes to the parameters/conditions for access to,
possession of, and use of computer technology and/or internet capable devices,
should be determined at the recommendation/discretion of Mr. Smith’s therapist,
with consideration of Mr. Smith’s treatment/rehabilitation needs.”
At the sentencing hearing on October 6, 2021, the prosecutor objected to a
SSOSA based on his “significant concerns” that Smith could not be “safely
monitored in the community.” 	The prosecutor stated that while Smith’s crime of
conviction was “singular in nature,” the evaluation revealed “several crimes against
several [individuals], as well as offenses involving the internet, things that he could
be charged for if that were -- in a different setting.” Regarding DOC’s supervision
of Smith in the community, the prosecutor asked the court to adopt the State’s
proposed list of community custody conditions (entitled “Appendix 4.2”) and stated,
“I will work with [defense counsel] if he has specific objections [to these proposed
conditions]. We can work with that.”
In response, defense counsel argued a SSOSA was appropriate based on
Dr. Covell’s recommendations. Defense counsel stated, “[W]hat Dr. Covell said is
Mr. Smith needs structure. . . . He needs to work very hard for a very long time to
address these problems, and that is why Dr. Covell recommended the series of
very detailed conclusions she issued, and why we entered into the trouble and
expense of retaining Social Worker Ms. Hill.” Additionally, defense counsel stated
that Smith “recognizes this is not the easy way out. This is, in fact, the harder way
out of taking this plea and coming forward and being honest and trying to confront
his demons.” 	Defense counsel also assured the court that Smith has “signed
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No. 86394-1-I
7
himself up for a lifetime of supervision. He can at any time if he violates conditions
of his [SSOSA] be locked up for a very significant period of time.”
In deciding whether to grant a SSOSA, the sentencing court explained
[T]he challenge here is . . . whether to conclude that because of the
array of misconduct in your past, the Court can have confidence the
community 	safety 	will 	be 	well 	served 	by 	authorizing 	you 	the
opportunity to receive treatment within the community, or whether
community safety is better honored by taking you into custody and
having you serve a lengthy prison term.”
The court noted that Dr. Covell’s report was “one of the most detailed evaluations
I have ever read” and acknowledged it “reveals a lot of conduct in your past, which
. . . could have been charged criminally if it had been known crimes that relate to
sexual misconduct, as well as other crimes.” 	The sentencing court ultimately
granted Smith’s request for a SSOSA, imposed a sentence of confinement with a
minimum term of 108 months and a maximum term of life (all of which was
suspended except for 12 months, which Smith had already served), and imposed
a lifetime of community custody. 	The court told Smith his SSOSA would be a
“rigorous program” and “is not going to be easy for you,” but added, “Because your
[SSOSA] evaluation was so forthright, I have confidence that you are capable of
succeeding within that rigorous program.”
Regarding conditions of community custody, the court stated that “strong
conditions for community safety” and “conditions that relate to not having contact
with minor children” were “warranted in this case” because “it is hard to imagine”
a case where “the child’s trust was breached” more than in this case. 	The court
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No. 86394-1-I
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adopted 	the 	State’s 	proposed 	Appendix 	4.2 	which 	included 	the 	following
conditions:
19. 	Do not possess, use, access or view any sexually explicit
material as defined by RCW 9.68.130 or erotic materials as
defined by RCW 9.68.050 or any material depicting any
person engaged in sexually explicit conduct as defined by
RCW 9.68A.011(4) unless given prior approval by your sexual
deviancy provider.
. . . .
21. 	Do not access the Internet on any computer, phone, or
computer-related device with access to the Internet or on-line
computer 	service 	except 	as 	necessary 	for 	employment
purposes (including job searches) in any location, unless such
access is approved in advance by the supervising Community
Corrections Officer [(CCO)] and your treatment provider. The
CCO is permitted to make random searches of any computer,
phone, or computer-related device to which the defendant has
access to monitor compliance with this condition.
22. 	Do not use computer chat rooms.
. . . .
24. 	You may not possess or maintain access to a computer,
unless specifically authorized by your supervising [CCO]. You
may not possess any computer parts or peripherals, including
but 	not 	limited 	to 	hard 	drives, 	storage 	devices, 	digital
cameras, web cams, wireless video devices or receivers,
CD/DVD burners, or any device to store to reproduce digital
media or storage.
The court clarified that the conditions that “are most important to the Court”
included “sexual deviancy treatment, addressing appropriate use of the internet[,]
. . . and hav[ing] . . . chaperoned contact with minor children.” 	The court added
that Smith “has also accessed sexually explicit materials on the internet and
through other electronic means, which will . . . for his therapeutic benefit require
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No. 86394-1-I
9
him not to access what has become such a part of our life without appropriate
approval from his treatment provider and community custody officer.”
B. 	Revocation proceedings
In December 2023, Smith failed a polygraph test administered by DOC after
being “asked about possessing any unauthorized electronic devices.”2 Based on
this 	failure, 	Smith’s 	CCO, 	Parmvir 	Gill, 	suspected 	Smith 	“was 	possibly
communicating with minors” and “looking up victims[] [and] child pornography” in
violation of his sentencing conditions. On December 12, 2023, Gill and two other
CCOs went to Smith’s apartment and obtained Smith’s consent to search the
apartment. During their search, the CCOs discovered three cell phones: Smith’s
Google smartphone (which was the only electronic device that his CCO had
“approved”), a cell phone belonging to Smith’s girlfriend, and a third, Samsung
smartphone located in the bedroom on Smith’s side of the bed. Gill asked Smith
to unlock the Samsung smartphone, which Smith was able to do using his
fingerprint. 	The CCOs placed Smith under arrest, at which point Smith stated,
“fuck, I’m going to prison for the rest of my life.” 	When the CCOs asked Smith
what they were “going to find on this phone,” Smith stated they would find “lewd
images” and “child pornography” that he obtained on the “dark web.”
The CCOs then returned to their field office and conducted a search of the
Samsung 	smartphone. 	During 	this 	search, 	the 	CCOs 	“found 	multiple
conversations with minors, images of minor age females ranging from 8 to 16
2 Condition 8 of Smith’s SSOSA sentence required him to “participate in . . . polygraph examinations
as directed by the supervising [CCO], to ensure conditions of community custody.”
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No. 86394-1-I
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[years old] . . . , [n]ude images, [and] pornography.” The CCOs discovered Smith
had used the Samsung smartphone to conduct online searches relating to adult
pornography and to purchase images and videos depicting child pornography.
Additionally, the CCOs observed that Smith was using the Samsung smartphone
to engage in conversations with minor children via “Snapchat, Twitter, Facebook,”
and “text messaging” that “were sexual in nature.”
Following these events, Gill filed a notice in the trial court alleging Smith
violated conditions 19, 21, 22, and 24 of his SSOSA and attached reports signed
under penalty of perjury by himself and the two other CCOs describing their search
of Smith’s residence and the Samsung smartphone on December 12, 2023. 	Gill
recommended that the trial court revoke Smith’s SSOSA because these violations
demonstrate he “is a significant threat to the community and has full intention on
victimizing minor aged females, if he hasn’t done so already.” Smith’s sex offender
treatment provider, Jenny Johnson-Riley, also filed a report with the trial court
stating that she was “terminating [Smith’s] treatment with this office immediately”
because DOC’s alleged violations were “egregious” and revealed that Smith “has
been dishonest with me and his treatment group.” 	Like Gill, Johnson-Riley
recommended that the trial court revoke Smith’s SSOSA “given the nature of his
violations.”
On December 27, 2023, the State filed a petition to revoke Smith’s SSOSA
alleging he “violated or failed to comply with five requirement(s) of conditions of
[his] sentence . . . as follows:”
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No. 86394-1-I
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1. 	On or before December 12, 2023, possessing/accessing
unapproved electronic equipment capable of storing images
of minors, a Samsung smartphone, without authorization from
a CCO.
2. 	On 	or 	before 	December 	12, 	2023, 	possessing/viewing
pornographic 	material 	via 	iPhone 	smartphone, 	over 	100
images of multiple minor aged girls fully exposing their bare
vagina and breast.
3. 	On or before December 12, 2023, communicating with a
prohibited person, multiple minor females.
4. 	On 	or 	before 	December 	12, 	2023, 	possessing/viewing
pornographic material via Samsung smartphone.
5. 	On or before December 12, 2023, using internet chatrooms to
include Snapchat, Facebook, and Twitter to communicate
with minors.
In response, Smith filed a brief arguing that the sentencing conditions restricting
Smith’s use of computers and the internet, particularly conditions 21 and 24, were
“not crime-related, must be stricken by this court, and cannot uphold a basis for a
DOC search.” (Capitalization omitted). Smith then averred that given the absence
of “lawful evidence before the Court supporting a violation,” the court “should not
find Mr. Smith in violation of his SSOSA.”
The trial court held an evidentiary hearing at which Gill testified in support
of the State’s petition. Based on Gill’s testimony, the CCOs’ reports, and Johnson-
Riley’s report, the trial court issued an oral ruling rejecting Smith’s constitutional
and exclusionary arguments and finding the State had proven all five of the
violations alleged in its petition.3 The court then stated, “Looking at . . . all five of
3 The State’s petition does not specify which sentencing conditions Smith violated; however, the
materials submitted with Gill’s notice of violation refer to conditions 19, 21, 22, and 24. In explaining
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No. 86394-1-I
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the violations in their entirety and at the level of deceptiveness that was occurring
as a result of it, based on that deceptiveness, the Court will revoke the SSOSA
sentence at this time. . . . [and] order that the original sentence be executed.” The
court later issued a written order on March 4, 2024 memorializing its oral rulings.
Smith subsequently filed a notice of appeal seeking review of that order as well as
his original judgment and sentence entered on October 6, 2021.
II
A. 	Sentencing conditions
Smith’s principal argument on appeal is that three conditions of community
custody contained in the judgment and sentence imposing his SSOSA—namely
condition 21 prohibiting unapproved internet access, condition 22 prohibiting use
of computer chat rooms, and condition 24 prohibiting unauthorized possession or
access of computers—are unconstitutionally overbroad and vague. 	In response,
the State argues (1) the invited error doctrine precludes Smith from challenging
the constitutionality of these sentencing conditions and (2) these conditions are not
unconstitutionally overbroad or vague. 	We agree with the State’s first argument
and therefore need not reach its second.
1. 	Overview of indeterminate sentencing and SSOSA schemes
Ordinarily, nonpersistent offenders convicted of first degree rape of a child,
such as Smith, are sentenced under Washington’s indeterminate sentencing
scheme set forth in RCW 9.94A.507. See State v. Clark, 156 Wn.2d 880, 887-91,
its findings for each violation, the Court found that allegation 1 related to condition 21, allegations
2 and 4 related to condition 19, and allegations 3 and 5 related to condition 22.
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No. 86394-1-I
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134 P.3d 188 (2006) (providing overview of indeterminate sentencing scheme
under former RCW 9.94A.712, the predecessor to RCW 9.94A.507). 	Under this
scheme, the sentencing court sets a minimum term and a maximum term that
consists of the statutory maximum sentence for the offense (which for a class A
felony is life imprisonment), and the Independent Sentencing Review Board
determines near the end of the minimum term whether to release the offender from
confinement or extend the minimum term. 	Id. 	In other words, an offender
sentenced under RCW 9.94A.507 is effectively “serving a life sentence with the
possibility of release” upon expiration of the minimum term, and “there is no
guaranty that release will occur.” See id. at 890.
As an alternative to this potential life sentence of incarceration, “[t]he
legislature enacted the SSOSA system to create a sentencing alternative for
certain first time sex offenders who plead guilty and are found amenable to
treatment.” State v. Pannell, 173 Wn.2d 222, 227, 267 P.3d 349 (2011). A SSOSA
grants offenders “relative freedom” and “the chance to live and work in the
community so long as they comply with treatment and other conditions.” Id. at 234.
Our Supreme Court has recognized that “[t]he authority the SRA [Sentencing
Reform Act] gives to courts under the SSOSA scheme is unique.” 	State v.
Petterson, 190 Wn.2d 92, 102, 409 P.3d 187 (2018); see also State v. Geyer, 19
Wn. App. 2d 321, 325 n.1, 496 P.3d 322 (2021) (noting that “[w]hen imposing a
sentencing alternative,” such as a SSOSA, “a court may have additional authority
or flexibility” in crafting sentencing conditions). Regarding conditions of community
custody, the court has clarified that the rights of an offender sentenced to a SSOSA
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No. 86394-1-I
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“are already diminished . . . as [they were] convicted of a sex crime and, only by
the grace of the trial court, allowed to live in the community subject to stringent
conditions. Those conditions . . . serve an important societal purpose in that they
are limitations on [the offender’s] rights that relate to the crimes [they] committed.”
State v. McCormick, 166 Wn.2d 689, 702-03, 213 P.3d 32 (2009). 	Conversely,
“[T]he government has an important interest in protecting society, particularly
minors, from a person convicted of raping a child. That interest is rationally served
by imposing stringent conditions related to the crime [the offender] committed.” Id.
Moreover, unlike a traditional sentence of community supervision, the
SSOSA statute permits—and in some circumstances requires—a court to impose
stringent sentencing conditions based on an examination of the offender, such as
Dr. Covell’s psychosexual evaluation of Smith. 	If an offender is eligible for a
SSOSA, the court “may order an examination to determine whether the offender is
amenable to treatment.” RCW 9.94A.670(3). The report of the examination “shall”
include “[t]he offender’s offense history” and “[a]n assessment of the problems in
addition to alleged deviant behaviors.” RCW 9.94A.670(3)(a)(ii)-(iii). Additionally,
“[t]he examiner shall assess and report regarding the offender’s amenability to
treatment and relative risk to the community” and provide a “proposed treatment
plan” that includes “(ii) Specific issues to be addressed in the treatment and
description of planned treatment modalities;” “(iii) Monitoring plans, including any
requirements regarding living conditions, lifestyle requirements, and monitoring by
family 	and 	others;” 	and 	“(v) 	Recommended 	crime-related 	prohibitions 	and
affirmative conditions, which must include, to the extent known, an identification of
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No. 86394-1-I
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specific activities or behaviors that are precursors to the offender’s offense cycle,
including, but not limited to, activities or behaviors such as viewing or listening to
pornography.” RCW 9.94A.670(3)(b).
After receipt of this report, the court “shall consider,” among other things,
whether “the offender and the community will benefit from the use of this
alternative,” whether “the offender has victims in addition to the victim of the
offense,” whether “the offender is amenable to treatment,” and the “risk the
offender would present to the community, to the victim, or to persons of similar age
and circumstances as the victim.” 	RCW 9.94A.670(4). 	If the court grants a
SSOSA, the statute requires that “[a]s conditions of the suspended sentence, the
court must impose . . . [s]pecific prohibitions and affirmative conditions relating to
the known precursor activities or behaviors identified in the proposed treatment
plan under [RCW 9.94A.670(3)(b)(v)].” RCW 9.94A.670(5)(d) (emphasis added).
In short, the SSOSA statute grants courts “unique” authority (see Petterson, 190
Wn.2d at 102) to suspend what may otherwise be a life sentence of confinement
and, in exchange, impose stringent conditions of community custody based on the
offense itself and the offender’s activities or behaviors that are precursors to the
offender’s offense cycle.
2. 	Invited error
“The invited error doctrine prohibits a party from setting up an error in the
trial court then complaining of it on appeal.” In re Pers. Restraint of Tortorelli, 149
Wn.2d 82, 94, 66 P.3d 606 (2003). “The doctrine was designed in part to prevent
parties from misleading trial courts and receiving a windfall by doing so.” State v.
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No. 86394-1-I
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Momah, 167 Wn.2d 140, 153, 217 P.3d 321 (2009). 	“To determine whether the
doctrine applies, the court considers ‘whether the defendant affirmatively assented
to the error, materially contributed to it, or benefitted from it.’” 	In re Dependency
of A.L.K., 196 Wn.2d 686, 695, 478 P.3d 63 (2020) (quoting In re Pers. Restraint
of Coggin, 182 Wn.2d 115, 119, 340 P.3d 810 (2014) (plurality opinion)).
In State v. Sims, our Supreme Court acknowledged the invited error
doctrine may preclude a defendant who received a SSOSA from challenging
conditions of that sentence. 	171 Wn.2d 436, 447 n.4, 256 P.3d 285 (2011). 	In
that case, Sims directly appealed from the trial court’s judgment and sentence
imposing a SSOSA and raised, for the first time on appeal, a pre-enforcement
challenge to a sentencing condition regarding geographic limitations. 	Id. at 440.
The majority allowed Sims to make this argument and held that a defendant who
receives a SSOSA may challenge the constitutionality of a given sentencing
condition without having “every part of [the] sentence . . . revoked and remanded
to the trial court for reconsideration.” Id. at 438. The majority reasoned, “Because
SSOSA sentences are of such high value to defendants, they would be unlikely to
risk appealing even abhorrently unlawful or unconstitutional sentencing conditions
for fear of risking the underlying SSOSA sentence.” 	Id. at 447. 	In a dissenting
opinion, Justice Stephens expressed concern that “[l]imiting appellate review to
redlining invalid SSOSA conditions might . . . create the unintended incentive for
defendants not to resist especially restrictive sentencing conditions in order to
obtain a SSOSA, then challenge them on appeal.” Id. at 454 n.6. 	In response to
Justice Stephens’ concern, the majority clarified, “There is no competing risk that
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No. 86394-1-I
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defendants will dupe a court into granting a SSOSA, relying on an unconstitutional
sentencing condition, because the invited error doctrine would preclude the
defendant from appealing the sentencing condition in that case.” Id. at 447 n.4.
The instant appeal presents the invited error scenario envisioned in Sims.
Smith 	requested 	a 	SSOSA 	to 	avoid 	receiving 	a 	potential 	life 	sentence 	of
incarceration under the indeterminate sentencing scheme. 	In support of this
request, 	Smith retained 	Dr. 	Covell 	to 	conduct a 	SSOSA evaluation, which
concluded that Smith presented an “Above Average risk for engaging in future
sexual offense behaviors” but was nonetheless amenable to a SSOSA. Dr. Covell
specified that due to Smith’s “history of use of internet technology to pursue casual
sexual activity, view sexually abusive/exploitative images featuring minors, and to
sexually chat with/meet adolescent minors,” Smith’s SSOSA conditions should
restrict 	him 	from 	“internet 	use/access, 	unless 	regulated 	and 	monitored,”
“access[ing] . . . specific internet-capable and/or recording devices,” and visiting
“off-line” establishments or locations “that specialize in impersonal/casual sexual
activity (e.g., . . . apps[] [and] chat rooms or message boards with sexual or
‘hookup’ themes . . . ).” Dr. Covell even suggested that a “total ban[] of the internet
and internet-capable or recording devices may be useful in the short term.”
Additionally, 	Dr. 	Covell 	described 	Smith 	as 	“reckless[],” 	“impulsiv[e],”
irresponsib[le],” “deceitful[],” and having a “recent history of efforts to circumvent
rules/restrictions.”
Smith then presented Dr. Covell’s report to the sentencing court and
implored it to impose a SSOSA based on Dr. Covell’s recommendations. Defense
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No. 86394-1-I
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counsel told the sentencing court, “It is crucial that the Court have adequate time
to review Dr. Covell’s highly detailed thirty-page report.” Defense counsel stated,
“[W]hat Dr. Covell said is Mr. Smith needs structure. . . . He needs to work very
hard for a very long time to address these problems, and that is why Dr. Covell
recommended the series of very detailed conclusions she issued.” 	Defense
counsel also assured the court that Smith has “signed himself up for a lifetime of
supervision. He can at any time if he violates conditions of his [SSOSA] be locked
up for a very significant period of time.”
At Smith’s urging, the sentencing court granted a SSOSA and, in setting the
parameters of this sentence, relied heavily on Dr. Covell’s report, which the court
described as “one of the most detailed evaluations I have ever read.” 	The court
told Smith his SSOSA would be a “rigorous program” and that “strong conditions
for community safety” were “warranted.” Specifically, the court stated “addressing
appropriate use of the internet” was among the conditions that “are most important
to the Court.” And because Smith had “accessed sexually explicit materials on the
internet and through other electronic means,” the court clarified that it would
prohibit Smith from “access[ing] what has become such a part of our life without
appropriate approval from his treatment provider and [CCO].” 	In light of the
sentencing court’s reliance on Dr. Covell’s report and express concerns about
Smith’s use of computers and the internet, it is clear the court would not have
granted a SSOSA without also imposing significant restrictions on Smith’s use of
computers and the internet in the manner contemplated by sentencing conditions
21, 22, and 24. 	Indeed, given that Dr. Covell’s report identified Smith’s use of
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No. 86394-1-I
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computers and the internet as a “precursor” to his offense cycle, the sentencing
court was arguably obligated under RCW 9.94A.670(5)(d) to impose conditions
restricting Smith’s use of computers and the internet when imposing a SSOSA.
After receiving the benefit of this “high value” SSOSA, see Sims, 171 Wn.2d
at 447, Smith did not object to or otherwise challenge any of his sentencing
conditions at his original sentencing hearing, on direct appeal from his judgment
and sentence, or at multiple subsequent review hearings. 	Instead, Smith waited
until he had been accused of viewing child pornography and communicating with
minor children in a sexual manner to finally argue these computer- and internet-
related conditions are unconstitutional as a means of excluding evidence and
avoiding punishment for failing to comply with his SSOSA. 	The trial court
acknowledged at the revocation hearing that Smith contributed to the imposition of
the sentencing conditions he now claims are unconstitutional:
[T]hese two conditions [21 and 24] . . . were requested by the
defense, 	and 	by 	his 	counsel, 	and 	by 	his 	treatment 	providers,
because this is not a normal—this is not a situation where the Court
was imposing these conditions with no knowledge of this particular
individual . . . . They were provided information including a 30-page
psychosexual evaluation report that was requiring these conditions.
And they were put forward and not objected to in this particular
instance. . . .
This matter has come on for a reviewing hearing held on January 5,
2022 . . . .
There was also a hearing held on February 3, 2023 . . . .
And at none of those situations was any motion being brought in
order to actually review these conditions at that point in time.
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No. 86394-1-I
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Therefore, even assuming the sentencing conditions Smith challenges on appeal
are unconstitutional, Smith “dupe[d]” the trial court into granting a SSOSA by
assuring the court he would abide by these sentencing conditions. See Sims, 171
Wn.2d at 447 n.4. Accordingly, under the invited error doctrine, Smith is precluded
from challenging the constitutionality of his sentencing conditions.
Smith contends the invited error doctrine does not apply because the
Supreme Court subsequently “clarified” in State v. Kelly, 4 Wn.3d 170, 195, 561
P.3d 246 (2024), that its previous “observation” in Sims regarding the invited error
doctrine is “no longer true.” 	Smith’s reliance on Kelly is misplaced because that
case did not concern whether a trial court imposed an unconstitutional sentencing
condition as part of a SSOSA but, rather, whether the State could appeal from a
judgment and sentence that erroneously ordered two firearm enhancements to run
concurrently in violation of RCW 9.94A.533 after the State proposed the order that
created the error. 	Id. 	Because the State nonetheless argued for firearm
enhancements to run consecutively and the sentencing court “exceed[ed] its
authority” under this statute by running them concurrently, the court held the invited
error doctrine did not preclude review. Id. at 195. In contrast, Smith did not argue
before 	the 	sentencing 	court 	in 	2021 	that 	conditions 	21, 	22, 	and 	24 	were
unconstitutional, and the SSOSA statute did not proscribe the sentencing court
from imposing these conditions. 	At bottom, Kelly did not abrogate Sims with
respect to the invited error doctrine in the SSOSA context. 	The invited error
doctrine thus applies here and, as established above, precludes Smith from
challenging the constitutionality of his sentencing conditions.
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No. 86394-1-I
21
B. 	Exclusionary rule
Because Smith’s challenges to the constitutionality of 	his sentencing
conditions fail, his argument that the trial court erred by “considering evidence
obtained 	when 	Mr. 	Smith’s 	home 	was 	searched 	without 	lawful 	authority”
necessarily fails as well. 	Article 1, section 7 of the Washington Constitution
generally requires law enforcement officers to obtain a warrant to disturb a
person’s home or private affairs. 	State v. Winterstein, 167 Wn.2d 620, 628, 220
P.3d 1226 (2009). 	But Washington law recognizes an exception to the warrant
requirement for offenders under community supervision. 	Id. 	“[I]ndividuals on
probation are not entitled to the full protection of article I, section 7,” and, therefore,
“have reduced expectations of privacy because they are serving their time outside
the prison walls.” 	Cornwell, 190 Wn.2d at 301 (internal quotation marks omitted)
(quoting State v. Olsen, 189 Wn.2d 118, 124-25, 399 P.3d 1141 (2017)). 	Our
legislature 	has 	codified 	this 	exception 	to 	the 	warrant 	requirement 	in 	RCW
9.94A.631(1), which states, “If there is reasonable cause to believe that an
offender has violated a condition or requirement of the sentence, a community
corrections officer may require an offender to submit to a search and seizure of the
offender’s person, residence, automobile, or other personal property.” The CCO’s
search of the offender’s property is limited to “property reasonably believed to have
a nexus with the suspected probation violation." Cornwell, 190 Wn.2d at 306. “We
review conclusions of law relating to the suppression of evidence de novo.”
Winterstein, 167 Wn.2d at 628.
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No. 86394-1-I
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Here, the CCOs had reasonable cause to search Smith’s residence and
the Samsung smartphone. Smith failed a polygraph test after being “asked about
possessing any unauthorized electronic devices” in violation of condition 24. Gill
had previously read Dr. Covell’s report and thus knew about Smith’s “history of use
of 	internet 	technology 	to 	pursue 	casual 	sexual 	activity, 	view 	sexually
abusive/exploitative images featuring minors, and to sexually chat with/meet
adolescent 	minors.” 	Based 	on 	Smith’s 	failed 	polygraph 	examination, 	Gill
suspected Smith “was possibly communicating with minors, looking up victims[]
[and] child pornography” in violation of his sentencing conditions. Gill testified that
based on his training and experience, “[e]ach time we have ever done phone
searches or home searches or any of that sort, if we do find a secondary cell phone
that we’re unaware of, it’s always resulted in something on there that they’re not
supposed to have.” 	Additionally, condition 21 (relating to internet access)
“permitted [Smith’s CCO] to make random searches of any computer, phone, or
computer-related device to which the defendant has access to monitor compliance
with this condition.” 	This condition, when combined with Gill’s knowledge that
Smith may be in possession of an unauthorized smartphone, provided the CCOs
with lawful authority to search Smith’s residence and the Samsung smartphone,
which they believed had a nexus with the suspected SSOSA violation. Thus, the
trial court did not err in admitting evidence of the Samsung smartphone and its
contents.
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No. 86394-1-I
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C. 	Revocation of Smith’s SSOSA
Smith next argues the trial court abused its discretion in revoking his
SSOSA. We disagree.
”A SSOSA sentence may be revoked at any time if there is sufficient proof
to reasonably satisfy the court that the offender has violated a condition of the
suspended 	sentence 	or 	failed 	to 	make 	satisfactory 	progress 	in 	treatment.”
McCormick, 166 Wn.2d at 705. 	“‘Revocation of a suspended sentence due to
violations rests within the discretion of the trial court and will not be disturbed
absent an abuse of discretion.’” 	State v. Miller, 180 Wn. App. 413, 416-17, 325
P.3d 230 (2014) (quoting McCormick, 166 Wn.2d at 705-06). A trial court abuses
its discretion where its decision is manifestly unreasonable or based on untenable
grounds or untenable reasons. 	Id. 	A trial court does not abuse its discretion in
revoking a suspended sentence where the offender’s violation of a condition
“presented a risk to the safety or welfare of society.” See McCormick, 166 Wn.2d
at 	706 	(affirming 	revocation 	of 	SSOSA 	where 	offender 	violated 	condition
prohibiting him from frequenting areas where children are known to congregate);
see also Miller, 180 Wn. App. at 421 (affirming revocation of SSOSA where
offender violated condition requiring him to timely commence sexual deviancy
treatment).
The trial court here was presented with ample evidence supporting the
State’s alleged violations. 	Gill’s testimony at the revocation hearing and the
supporting documentation accompanying his notice of violation established that
Smith possessed and accessed the Samsung smartphone without obtaining prior
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No. 86394-1-I
24
authorization from his CCO in violation of condition 21 and/or condition 24, viewed
pornography (including child 	pornography) 	in 	violation 	of 	condition 	19, 	and
communicated with minor children in a “sexual . . . nature” in violation of condition
22. Smith himself admitted to Gill that the Samsung smartphone contained “lewd
images” and “child pornography” that he obtained on the “dark web.” The trial court
correctly observed that Smith’s actions demonstrated “deceptiveness with regard
to engaging with the CCOs and also the treatment providers” and noted, “if an
individual is not able . . . to be honest with regard to their violations or their
behaviors, then they’re not going to be able to move forward with their treatment.”
Additionally, 	Smith’s 	CCO 	and 	his 	sex 	offender 	treatment 	provider 	both
recommended that the trial court revoke his SSOSA due to the severity of his
violations. 	Given this evidence that Smith violated several conditions of his
SSOSA in a manner that presented a risk to the safety or welfare of society, the
trial court did not abuse its discretion in revoking Smith’s SSOSA.
The remainder of this opinion has no precedential value. Therefore, it will
be filed for public record in accordance with the rules governing unpublished
opinions. See RCW 2.06.040.
Unpublished Text Follows
D. 	Scrivener’s error
Smith argues substantial evidence does not support the trial court’s finding
relating to the second violation (that on or before December 12, 2023, Smith
violated the terms of his SSOSA by “possessing/viewing pornographic material via
iPhone smartphone, over 100 images of multiple minor aged girls fully exposing
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No. 86394-1-I
25
their bare vagina and breast[s]” because “[t]here was no testimony related to an
iPhone smartphone. . . . Nor was an iPhone smartphone mentioned in any of the
affidavits presented with the revocation petition.” In response, the State concedes
there is no evidence related to an “iPhone,” but it argues this is a “scrivener’s error”
and we should “remand to the revocation court to correct this error” because “the
revocation court intended [for the second violation] to relate to the same phone
[the Samsung smartphone] as the other violations.” 	Smith appears to have
abandoned this argument in his reply brief, which does not address this argument
further or respond to the State’s contention that this error was the result of a
scrivener’s 	error. 	Having 	carefully 	reviewed 	the 	record 	and 	both 	parties’
arguments, we agree this is an apparent scrivener’s error. 	The remedy for such
an error is a remand to the trial court to correct the error. In re Pers. Restraint of
Mayer, 128 Wn. App. 694, 701-02, 117 P.3d 353 (2005). We remand for the trial
court to do so here.4
E. 	Legal Financial Obligations
Smith next argues that due to his indigency at the time of sentencing he is
“entitled to relief” from a $500 Victim Penalty Assessment (VPA) imposed pursuant
to former RCW 7.68.035 (2018) and a $100 DNA fee imposed pursuant to former
RCW 43.43.7501 (2018). The State counters that Smith “is not entitled to a refund”
4 Additionally, even if we accepted Smith’s substantial evidence argument, that would not change
our holding that the trial court did not err in revoking Smith’s SSOA. Given that substantial evidence
supports the trial court’s findings regarding the four remaining violations of the SSOSA and the
gravity of those violations (including the fourth violation that also relates to viewing or possessing
pornographic materials), we are certain the trial court would have appropriately exercised its
discretion to revoke Smith’s SSOSA based on the those violations.
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No. 86394-1-I
26
of these fees in this appeal because he is on direct appeal from the order revoking
his SSOSA entered in 2024, not from his original judgment and sentence entered
in 2021.
We agree with the State. 	As Smith acknowledges, the statutes regarding
the VPA and the DNA collection fee that were in effect when he was sentenced on
October 6, 2021 required sentencing courts to impose these fees regardless of the
defendant’s 	indigency. 	See 	former 	RCW 	7.68.035 	(2018); 	former 	RCW
43.43.7501 (2018). Although the legislature subsequently amended these statutes
such that sentencing courts are now required to waive these fees when sentencing
indigent defendants, those amendments apply retroactively only to cases pending
on direct appeal. State v. Ellis, 27 Wn. App. 2d 1, 16, 530 P.3d 1048 (2023). Smith
is not on direct appeal from his 2021 judgment and sentence because, although
he designated that order in his notice of appeal in this case, he did not seek direct
review within 30 days of entry of that order as required by RAP 5.2(a) and has,
therefore, waived direct review of that order. 	Accordingly, we decline Smith’s
request to remand to strike the VPA and DNA collection fees from his judgment
and sentence. Smith may instead file a motion in the court below seeking a waiver
of these fees under RCW 7.68.035(5) and RCW 43.43.7541(2).
For this same reason, we decline Smith’s request to remand to strike the
$200 criminal filing fee imposed with his 2021 judgment and sentence. 	While
Smith correctly observes that former RCW 36.18.020(h) prohibited a sentencing
court from imposing this filing fee on indigent defendants, Smith cites no authority
allowing us to remand to strike this fee where the defendant is not on direct appeal
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No. 86394-1-I
27
from their judgment and sentence but, instead, is on direct appeal from a
subsequent order revoking their SSOSA. See State v. Loos, 14 Wn. App. 2d 748,
758, 473 P.3d 1229 (2020) (“When a party provides no citation to support an
argument, this court will assume that counsel, after diligent search, has found
none.”). 	As with the VPA and DNA collection fees, the proper remedy under the
current version of the filing fee statute is for Smith to file a motion in the trial court
seeking 	to 	waive 	or 	reduce 	this 	fee 	due 	to 	his 	indigency. 	See 	RCW
36.18.020(2)(h).
F. 	Statement of additional grounds
Smith’s statement of additional grounds (SAG) is 42 pages in length and
contains many intertwined arguments that are not clearly delineated. 	Several of
Smith’s arguments in his SAG mirror those that we have already rejected above.
Having carefully reviewed each alleged error, we reject the arguments raised in
Smith’s SAG for the reasons discussed below.
Smith 	first 	argues 	that 	several 	additional 	sentencing 	conditions 	are
“unconstitutional due to their vagueness and/or overbreadth, invalid on their face,
and/or in excess of the sentencing Court’s authority.”5 Smith’s challenges to these
5 In addition to conditions 21 and 24 (discussed in section II.A above), Smith challenges condition
2 prohibiting him from contacting the victim of his crime (his daughter); condition 8 requiring him to
participate in urinalysis, breathalyzer, and polygraph examinations as directed by his CCO;
condition 12 requiring him to consent to DOC home visits to monitor his compliance with his
supervision; condition 14 prohibiting him from “initiating or prolong[ing] contact with minor children
without the presence of an adult who is knowledgeable of the offense and has been approved by
the supervising [CCO],” condition 16 requiring him to “[s]tay out of areas where children’s activities
regularly occur or are occurring;” condition 17 prohibiting him from “dat[ing] women nor form[ing]
relationships with families who have minor children,” requiring him to “[d]isclose sex offender status
prior to any sexual contact,” and prohibiting him from engaging in “[s]exual contact in a relationship”
without approval from his CCO or treatment provider; and condition 20 prohibiting him from
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No. 86394-1-I
28
sentencing conditions fail for the same reasons discussed in section II.A above,
namely that Smith invited these alleged constitutional errors by relying on them to
persuade the sentencing court into granting a SSOSA. 	More fundamentally,
Smith’s challenges to these other conditions are unpersuasive because they did
not factor into the trial court’s decision to revoke his SSOSA, which was based on
Smith’s violations of the sentencing conditions prohibiting him from viewing
sexually explicit material and communicating with minor children over the internet.
Smith also argues the trial court should have suppressed the results of his
failed polygraph examination because that evidence was obtained in violation of
article 1, section 7 of the Washington Constitution. 	We decline to consider this
argument because Smith has waived any challenge to the admission of the
polygraph evidence due to his failure to raise such an objection below. See RAP
2.5(a). 	Smith’s argument also fails on the merits, as our Supreme Court has
acknowledged that sentencing courts may impose monitoring requirements such
as polygraph testing when imposing a SSOSA. 	See State v. Riles, 135 Wn.2d
326, 340 n.40, 957 P.2d 655 (1998).
Next, Smith argues condition 24 did not prohibit him from possessing the
Samsung smartphone because the term “computer” does not include smartphones
but instead only “refers to desktop or laptop computers.” 	A “computer” is “a
programmable electronic device that can store, retrieve, and process data.”
W EBSTER ’S T HIRD NEW INTERNATIONAL DICTIONARY 468 (2002). A smartphone, such
“frequent[ing] establishments whose primary business pertains to sexually explicit or erotic
material.”
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No. 86394-1-I
29
as the Samsung that Smith used to access the internet to view pornography and
communicate with minor children, satisfies this definition and is encompassed
within condition 24. 	That is especially true when reading the term “computer” in
the context of Smith’s other sentencing conditions, Dr. Covell’s report, and the
sentencing court’s statements at the sentencing hearing in October 2021.
Smith also argues the State committed “flagrant misconduct . . . , a serious
Brady violation, and certainly a denial of due process” by not introducing the
contents of the Samsung smartphone into evidence and, instead, relying on Gill’s
testimony regarding those contents. 	Similarly, Smith argues the trial court erred
by relying on the reports submitted by the two other CCOs without requiring them
to testify at the hearing and be subjected to cross examination by Smith. 	These
arguments are unconvincing in light of our Supreme Court’s holding in State v.
Dahl that “the due process rights afforded at a revocation hearing are not the same
as those afforded at the time of trial” because “[a]n offender facing revocation of a
suspended sentence has only minimal due process rights.” 139 Wn.2d 678, 683,
990 P.2d 396 (1999). Relevant here, this minimal due process entails “disclosure
to the parolee of the evidence against him” and “the right to confront and cross-
examine witnesses (unless there is good cause for not allowing confrontation).”
Id. at 683. 	Moreover, “[c]ourts have limited the right to confrontation afforded
during revocation proceedings by admitting substitutes for live testimony, such as
reports, 	affidavits 	and 	documentary 	evidence,” 	and 	this 	evidence 	may 	be
considered if “there is good cause to forgo live testimony.” Id. at 686. “Good cause
is defined in terms of ‘difficulty and expense of procuring witnesses in combination
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No. 86394-1-I
30
with demonstrably reliable or clearly reliable evidence.’” 	Id. (internal quotation
marks omitted) (quoting State v. Nelson, 103 Wn.2d 760, 765, 697 P.2d 579
(1985)). 	Ultimately, “[t]hese requirements exist to ensure that the finding of a
violation of a term of a suspended sentence will be based upon verified facts.” Id.
at 683.
Here, the trial court complied with Smith’s due process rights by ensuring
the violations of his SSOSA terms were based upon verified facts. Gill testified at
the revocation hearing to his personal observations regarding the search of Smith’s
residence and the Samsung smartphone on December 12, 2023, and he was cross
examined by Smith’s counsel. 	Gill testified without objection that Smith himself
made incriminating statements that the Samsung smartphone contained “lewd
images” and “child pornography” that he obtained on the “dark web.” Because this
evidence was demonstrably reliable, Smith was not entitled to also confront and
cross examine the other CCOs who accompanied Gill during these searches.
Moreover, the prosecutor explained that the State could not provide a “completed
report” of the content discovered on the Samsung smartphone because, at the
time of the revocation hearing, police had not yet completed their forensic
investigation of the smartphone. On this record, the trial court proceedings did not
violate Smith’s due process rights.
Smith further contends the trial court was biased against him because it
misrepresented evidence in favor of the State, “argued for the State,” and “blind[ly]
accept[ed] . . . the prosecutor’s excuses for the missing evidence.” 	We have
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No. 86394-1-I
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carefully reviewed the record and conclude Smith’s claims of impartiality by the
trial court are unfounded.
Lastly, Smith makes a blanket argument that “any errors which I waived the
right to appeal by lack of objection were ineffective assistance on my trial counsel’s
part, for not doing so.” We decline to consider this conclusory argument because
it “does not inform the court of the nature and occurrence of the alleged errors” as
required by RAP 10.10(c).
Affirmed and remanded.
WE CONCUR:
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