Personal Restraint Petition Of Cody Allen Hulbert

IN THE COURT OF APPEALS OF THE STATE OF
WASHINGTON
In the Matter of the Personal Restraint of
CODY ALLEN HULBERT,
Petitioner.
No. 80870-2-I
DIVISION ONE
UNPUBLISHED OPINION
PER CURIAM — Cody Hulbert pleaded guilty to first degree child
molestation, attempted first degree child molestation, and unlawful imprisonment
with sexual motivation. The charges arose from an incident in which Hulbert,
who was working at an amusement center, lured two small children into a party
room with the promise of balloons, locked the door, and molested them. As part
of Hulbert’s judgment and sentence, the trial court imposed conditions of
community custody, four of which Hulbert now challenges:
6. Do not frequent areas where minor children are known to
congregate, as defined by the supervising Community Corrections
Officer.
7. Do not possess or access pornographic materials, as directed by
the supervising Community Corrections Officer. Do not frequent
establishments whose primary business pertains to sexually explicit
or erotic material. Pornographic materials are defined as images of
sexual intercourse, simulated or real, masturbation, or the display
of intimate body parts.
8. Do not date women nor form relationships with families who have
minor children, as directed by the supervising Community
Corrections Officer.

14. Participate in urinalysis, breathalyzer, plethysmograph and
polygraph examinations as directed by the supervising Community
Corrections Officer, to ensure conditions of community custody.
A personal restraint petition must be filed within one year of a judgment
and sentence becoming final. RCW 10.73.090. After this time elapses, a petition
is time barred unless a petitioner can show (1) the judgment and sentence is
facially invalid or rendered by a court lacking jurisdiction or (2) there are exempt
grounds for relief under RCW 10.73.100. In re Pers. Restraint of Weber, 175
Wn.2d 247, 255, 284 P.3d 734 (2012). It is undisputed that Hulbert filed this
petition more than a year after his judgment and sentence became final. Thus,
Hulbert bears the burden of demonstrating that his petition is timely.1
Hulbert contends that conditions 6, 7 and 8 are unconstitutionally vague,
and thus facially invalid. A community custody condition that does not provide
fair warning of proscribed behavior is unconstitutionally vague. State v. Bahl,
164 Wn.2d 739, 752-53, 193 P.3d 678 (2008). Specifically, a community custody
condition must (1) “‘define the criminal offense with sufficient definiteness that
ordinary people can understand what conduct is proscribed’” and (2) “‘provide
1 In addition to the one year time limit, Hulbert faces another barrier to
consideration of his petition. Hulbert filed a prior personal restraint petition in
which he contended that his guilty plea was involuntary because he was
misinformed about the sentencing consequences. This court is barred from
considering a successive personal restraint petition when the petitioner raises a
new ground for relief and fails to show good cause for not having raised the new
ground in the previous petition. RCW 10.73.140; In re Pers. Restraint of Bell,
187 Wn.2d 558, 562, 387 P.3d 719 (2017). Good cause includes a material
intervening change in the law. In re Pers. Restraint of Holmes, 121 Wn.2d 327,
331, 849 P.2d 1221 (1993). While Hulbert does not directly address RCW
10.73.140, he does cite to cases decided subsequent to his prior petition that
address the validity of the challenged conditions.

ascertainable standards of guilt to protect against arbitrary enforcement.’” Id.
(quoting City of Spokane v. Douglass, 115 Wn.2d 171, 178, 795 P.2d 693
(1990)).
Condition 6 bars Hulbert from frequenting places “where minor children
are known to congregate, as defined by the supervising Community Corrections
Officer.” As the State concedes, we have held this condition is unconstitutionally
vague because “[w]ithout some clarifying language or an illustrative list of
prohibited locations . . . the condition does not give ordinary people sufficient
notice to ‘understand what conduct is proscribed.” State v. Irwin, 191 Wn. App.
644, 652, 655, 364 P.3d 830 (2015) (quoting Douglass, 115 Wn.2d at 178). On
remand, condition 6 must be stricken or modified accordingly.
The first sentence of condition 7 prohibits Hulbert from possessing or
accessing pornographic materials. While the condition defines “pornographic
materials,” the Washington Supreme Court has held that this definition is still
ambiguous about what is and is not permitted. State v. Padilla, 190 Wn.2d 672,
682, 416 P.3d 712 (2018). On remand, the first sentence of condition 7 must be
stricken or modified to adequately define the scope of prohibited material.2
Condition 8 prohibits Hulbert from “form[ing] relationships with families
who have minor children.”3 Citing an unpublished opinion from Division Two of
this court, State v. Robinett, No. 50653-0-II, Slip op. at 9 (Wash Ct. App. Jan. 15,
2 Hulbert does not challenge the second sentence of condition 7,
prohibiting him from frequenting establishments whose primary business pertains
to sexually explicit or erotic material.
3 Condition 8 also prevents Hulbert from “dat[ing] women” with minor
children. Hulbert does not challenge this portion of the condition.

2019) (unpublished), http://www.courts.wa.gov/opinions/pdf/D2%2050653-0-
II%20Unpublished%20Opinion.pdf, Hulbert argues that the word “relationship,”
without any further qualifier, is unconstitutionally vague. As the court in Robinett
stated:
Unlike the term “dating relationship,” which is statutorily defined in
RCW 26.50.010(2) and was held by the Nguyen court to be
sufficiently definite to withstand a vagueness challenge, people of
ordinary intelligence, including corrections officers charged with
enforcing this condition, could reasonably disagree as to when a
person forms a relationship with another.
Therefore, the condition lacks the definiteness needed to
allow ordinary people to understand what conduct is proscribed,
and it permits arbitrary enforcement by granting corrections officers
broad discretion to determine when an encounter between [the
defendant] and another individual has crossed the obscure
threshold of forming a relationship.
Id. (citing State v. Nguyen, 191 Wn.2d 671, 682, 425 P.3d 847 (2018)). We
agree with this analysis. On remand, the identified portion of condition 8 must be
stricken or modified to provide sufficient definiteness regarding the type and
manner of relationship prohibited.
Finally, Hulbert challenges condition 14, which requires him to participate
in plethysmograph testing “as directed by the supervising Community Corrections
Officer.” Hulbert contends, and the State concedes, that requiring an individual
to submit to plethysmograph testing subject only to the discretion of a community
corrections officer violates an individual’s constitutional right to be free from
bodily intrusion. State v. Land, 172 Wn. App. 593, 605, 295 P.3d 782 (2013). It
may be ordered by a qualified provider only as part of crime-related treatment.
Land, 172 Wn. App. at 605. On remand, this condition must be stricken or
modified to comply with Land.

Accordingly, we grant Hulbert’s petition and remand to the trial court to
amend the community custody conditions consistent with this opinion.
FOR THE COURT: