State Of Washington, Respondent V. William Weeden, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON
Respondents,
v.
WILLIAM DWAYNE WEEDEN,
Appellant.
No. 85648-1-I
DIVISION ONE
UNPUBLISHED OPINION
SMITH, C.J. — William Weeden was convicted of assault in the third
degree. On appeal, Weeden challenges a community custody condition set forth
in his judgment and sentence requiring him to remain within certain geographic
boundaries. We remand for the court to strike the community custody provision.
FACTS
The facts of this case are undisputed. In April 2020, William Weeden
assaulted Robert VanDiver with a broom and was charged by amended
information with assault in the third degree with a deadly weapon. Weeden
proceeded pro se and waived his right to a jury. The court found Weeden guilty
and sentenced him within the standard range.
Weeden’s judgment and sentence includes community custody conditions.
Condition 8 requires Weeden to “[r]emain within geographic boundaries, as set
forth in writing by the Department of Corrections Officer or as set forth with [the]

No. 85648-1-I/2
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SODA[1] order.” Weeden appeals and challenges the constitutionality of this
provision.
Analysis
Standard of Review
Challenges to community custody conditions may be raised for the first
time on appeal. State v. Irwin, 191 Wn. App. 644, 650, 364 P.3d 830 (2015).
This court reviews community custody conditions for abuse of discretion. State
v. Bahl, 164 Wn.2d 739, 753, 193 P.3d 678 (2008). “A trial court necessarily
abuses its discretion if it imposes an unconstitutional community custody
condition, and we review constitutional questions de novo.” State v. Wallmuller,
194 Wn.2d 234, 238, 449 P.3d 619 (2019).
Community Custody Conditions
Weeden claims the community custody condition limiting his movement is
unconstitutionally vague. We agree.
Under Article 1, Section 3 of the Washington State Constitution, the due
process vagueness doctrine requires the State to provide citizens with fair
warning of proscribed conduct. Bahl, 164 Wn.2d at 752. A community custody
condition is void for vagueness if it “ ‘(1) . . . does not define the criminal offense
with sufficient definiteness that ordinary people can understand what conduct is
proscribed, or (2) . . . does not provide ascertainable standards of guilt to protect
against arbitrary enforcement.’ ” Bahl, 164 Wn.2d at 752 (alterations in original)
1 “Stay out of Drug Area.”

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(quoting City of Spokane v. Douglass, 115 Wn.2d 171, 178, 795 P.2d 693
(1990)).
Here, Weeden’s community custody condition requires him to “[r]emain
within geographic boundaries, as set forth in writing by the Department of
Corrections Officer or as set forth with [the] SODA order.” The language
deferring to a corrections officer is similar to the conditions prescribed in State v.
Greenfield, 21 Wn. App. 2d 878, 889, 508 P.3d 1029 (2022) (“Stay out of drug
areas, as defined in writing by the supervising Community Corrections Officer.”)
and Irwin, 191 Wn. App at 652 (“Do not frequent areas where minor children are
known to congregate, as defined by the supervising CCO.”). In both of these
cases, the court held the community custody condition to be unconstitutionally
vague.
In Irwin, the court stated “without 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.’ ” 191 Wn.
App. at 655 (internal quotation marks omitted) (quoting Bahl, 164 Wn.2d at 753).
The court noted that once the community corrections officer set specific
locations, notice may be sufficient, but the condition would still be subject to
arbitrary enforcement and, therefore, would “render the condition unconstitutional
under the second prong of the vagueness analysis.” Irwin, 191 Wn. App at 655.
Similar to the condition in Irwin, the community custody condition in Weeden’s
judgment and sentence does not sufficiently describe the prohibited geographic
boundaries, nor does it protect against arbitrary enforcement.

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The State relies on State v. Nguyen, 191 Wn.2d 671, 425 P.3d 847
(2018), and State v. Johnson, 197 Wn.2d 740, 487 P.3d 893 (2021) for their
claim that Weeden’s condition is not unconstitutionally vague and is sufficient to
put an ordinary person on notice of what conduct is proscribed. But these cases
are distinguishable. First, neither Nguyen or Johnson concerns geographical
boundaries. In Nguyen the court addressed the meaning of the terms “sexually
explicit material” and “dating relationship” and whether the terms were
unconstitutionally vague. 191 Wn.2d at 675. Additionally, the community
condition in Nguyen did not defer to a community custody officer for clarification.
191 Wn.2d at 679.
In Johnson, the community custody condition concerned the defendant’s
use of the internet, specifically preventing him from soliciting sex with a minor.
The condition stated “Johnson shall not use or access the World Wide Web
unless specifically authorized by [his community custody officer] through
approved filters.” Johnson, 197 Wn.2d at 744 (alteration in original) (internal
quotation marks omitted). Johnson challenged the constitutionality of the
condition, claiming it lacked “sufficiently specific standards to prevent arbitrary
enforcement by his future community custody officer.” Johnson, 197 Wn.2d
at 748. The Supreme Court noted when read in isolation that may be true, but
read in the context of the judgment and sentence and related documents, “there
are sufficient benchmarks to prevent arbitrary enforcement.” Johnson, 197
Wn.2d at 748.

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The State cites to Johnson for the proposition that documents related to
Weeden’s conviction can be used to restrict arbitrary enforcement. But, as noted
above, Johnson is distinguishable. Defining physical boundaries an individual is
restricted to is not the same as selecting filters to prohibit someone from soliciting
sex with a minor online. As this court noted in Irwin, without clarifying language
or a list of prohibited locations, a condition restricting geographical boundaries
“would render the condition unconstitutional.” 191 Wn. App. at 655.
Without more information, such as a list of locations from which Weeden is
prohibited,2 the community custody provision is not sufficiently defined and is
vulnerable to arbitrary enforcement. We remand for the court to strike the
provision.
WE CONCUR:
2 The community custody condition fails to even provide a reason or what
behavior the geographical location restriction is attempting to address.