State of Washington v Gregory E. Dickerson

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FILED
MAY 26, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHING TON
DIVISION THREE
STATE OF WASHINGTON,
Respondent,
V.
GREGORY E. DICKERSON,
Appellant.
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No. 32899-6-111
UNPUBLISHED OPINION
SIDDOWAY, J. - 	Gregory Dickerson was convicted of one count of first degree
rape with a deadly weapon. The trial court imposed a community custody condition that
prohibits him from engaging in any romantic relationship without approval from his
community custody officer and therapist. 	On appeal, Mr. Dickerson contends this
condition is not crime-related and violates his United States Constitution First
Amendment freedom of association. 	While we find no First Amendment violation, we
conclude the condition is unconstitutionally vague. We remand with directions to strike
the condition, leaving in place a related provision that more clearly addresses the
sentencing court's concern.
FACTS AND PROCEDURAL BACKGROUND
In May 2014, a jury found Gregory Dickerson guilty of first degree rape with a
deadly weapon. The victim was Mr. Dickerson's ex-girlfriend, whom he had dated for
four years and with whom he has two children. The court sentenced him to 128 months

No. 32899-6-111
State v. Dickerson ·
incarceration, and imposed a number of community custody conditions that will take
effect upon his release. 	Only the following two conditions are relevant to his appeal:
( 17) That you do not have sexual contact with anyone without their
approval and awareness of your sexual offense conviction.
( 18) That you do not enter a romantic relationship without the prior
approval of the [community corrections officer] and Therapist.
Clerk's Papers (CP) at 97. Mr. Dickerson challenges only condition 18.
ANALYSIS
Mr. Dickerson argues that community custody condition 18, which prohibits him
from entering into a "romantic relationship" without permission, is not crime-related and
violates his First Amendment right to association because it is overbroad.
Though Mr. Dickerson did not object to the condition at trial, challenges to
community custody conditions as illegal or erroneous may be made for the first time on
appeal. State v. Bahl, 164 Wn.2d 739, 744, 193 P.3d 678 (2008).
The issue is ripe for review
As a threshold matter, because Mr. Dickerson is currently incarcerated and has not
yet been charged with violating the challenged community custody condition, we must
determine whether the challenge is ripe for review. See State v. Sanchez Valencia, 169
Wn.2d 782, 786, 239 P .3d 1059 (2010). Preenforcement challenges to community
custody conditions are ripe for review "' if the issues raised are primarily legal, do not
require further factual development, and the challenged action is final.'" 	Bahl, 164
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Wn.2d at 7 51 (quoting First United Methodist Church v. Hr 'g Exam 'r, 129 Wn.2d 23 8,
255-56, 916 P.2d 374 (1996)). The court must also consider any hardship to the parties
that may result from withholding court consideration. Id.
In this case the issue is ripe for review. 	First, the questions raised-whether the
condition is crime-related and whether it is unconstitutional-are pure issues oflaw. See
Sanchez Valencia, 169 Wn.2d at 788. Regardless of the manner in which the community
custody officer or therapist implement the condition in the future, the extent to which it is
crime-related or infringes on a fundamental right will not change with time. Id.
Second, the issue does not require further factual development. The condition
limits Mr. Dickerson as soon as he is placed in community custody, and requires no
further State action. Id. at 788-89. Third, the challenged action is final. 	Id. at 789.
Finally, Mr. Dickerson would suffer significant risk of hardship if the court
declined to review his challenge at this time. The fact that Mr. Dickerson will have to
request permission to enter into a romantic relationship to avoid a penalty under a
potentially illegal regulation is a hardship in itself. Bahl, 164 Wn.2d at 747. That Mr.
Dickerson would have to expose himself to arrest or prosecution in order to challenge a
condition he claims violates his constitutional rights is a significant hardship. Id. 	The
claim is therefore ripe for review.
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No. 32899-6-III
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The community custody condition violates the Fourteenth Amendment
Mr. Dickerson challenges the community custody condition under the United
States Constitution First Amendment freedom of association. 	However, we believe his
challenge more properly falls under the right to intimate association protected by the
United States Constitution Fourteenth Amendment's due process clause.
In Roberts v. United States Jaycees, 468 U.S. 609, 104 S. Ct. 3244, 82 L. Ed. 2d
462 ( 1984 ), the Supreme Court identified two types of associational rights protected by
the Constitution: the freedom of "expressive association" and freedom of "intimate
association." The Court explicitly stated the right of expressive association stems from
the First Amendment and guards speech, assembly, petition for the redress of grievances,
and the exercise of religion. Id. at 618.
The Court was less clear about the source of the right to intimate association,
stating only that it "receives protection as a fundamental element of personal liberty." Id.
The Court appeared to acknowledge that it was not identifying where the right comes
from:
The Court has long recognized that, because the Bill of Rights is
designed to secure individual liberty, it must afford the formation and
preservation of certain kinds of highly personal relationships a substantial
measure of sanctuary from unjustified interference by the State. 	Without
precisely identifying every consideration that may underlie this type of
constitutional protection, we have noted that certain kinds of personal
bonds have played a critical role in the culture and traditions of the Nation
by cultivating and transmitting shared ideals and beliefs; they thereby foster
diversity and act as critical buffers between the individual and the power of
the State. Moreover, the constitutional shelter afforded such relationships
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reflects the realization that individuals draw much of their emotional
enrichment from close ties with others. 	Protecting these relationships from
unwarranted state interference therefore safeguards the ability
independently to define one's identity that is central to any concept of
liberty.
Id. at 618-19 ( emphasis added) (citations omitted).
This right protects the
choices to enter into and maintain certain intimate human relationships
[that] must be secured against undue intrusion by the State because of the
role of such relationships in safeguarding the individual freedom that is
central to our constitutional scheme.
Id. at 617-18. These certain "intimate human relationships" are those "that attend the
creation and sustenance of a family." Id. at 617, 619. They include marriage, childbirth,
the raising and educating of one's children, and cohabitation with one's relatives. Id. at
619. The right does not extend to choosing one's fellow employees. Id. at 620.
However, the Court noted that between the ability to choose one's spouse and the ability
to choose one's fellow employees
lies a broad range of human relationships that may make greater or lesser
claims to constitutional protection from particular incursions by the State.
Determining the limits of state authority over an individual's freedom to
enter into a particular association therefore unavoidably entails a careful
assessment of where that relationship's objective characteristics locate it on
a spectrum from the most intimate to the most attenuated of personal
attachments. 	We need not mark the potentially significant points on this
terrain with any precision. 	We note only that factors that may be relevant
include size, purpose, policies, selectivity, congeniality, and other
characteristics that in a particular case may be pertinent.
Id. at 620 (emphasis added) (citation omitted).
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Since the Supreme Court issued Roberts, courts have disagreed about the source
and scope of the right to intimate association. 1 Washington has taken the position that
this right stems from the Fourteenth Amendment's due process clause and "principles of
liberty and privacy." City of Bremerton v. Widell, 146 Wn.2d 561,575, 51 P.3d 733
(2002); Am. Legion Post No. 149 v. Dep 't of Health, 164 Wn.2d 570, 601, 192 P.3d 306
(2008). Accordingly, the right Mr. Dickerson asserts implicates the Fourteenth, rather
than the First Amendment.
The source of the right is critical, because it affects the grounds on which the
community custody condition may be challenged. Mr. Dickerson challenges the
community custody condition on grounds of overbreadth, but courts have "generally
confined the overbreadth argument to statutes or ordinances impinging on First
Amendment activities." City of Seattle v. Montana, 129 Wn.2d 583, 598 n.7, 919 P.2d
1218 (1996). Because the associational right Mr. Dickerson asserts stems from the
1 See Collin O'Connor Udell, Intimate Association: Resurrecting a Hybrid Right,
7 TEX. J. WOMEN & L. 231 (1998) (noting that the Seventh and Tenth circuits have held
the right to intimate association stems from the Fourteenth Amendment, that the Fifth,
Sixth, Ninth, and Eleventh circuits have held the right stems from the First Amendment,
and that the Third Circuit's position is unclear); Nancy Catherine Marcus, The Freedom
of Intimate Association in the Twenty First Century, 16 GEO. MASONU. CIV. RTS. L.J.
269 (2006) (noting that the confusion and circuit split has not been resolved).
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Fourteenth Amendment, his overbreadth challenge fails. 2
The condition may, however, be struck on due process vagueness grounds under the
Fourteenth Amendment for reasons similar to those argued by Mr. Dickerson. "The due
process vagueness doctrine under the Fourteenth Amendment ... requires that citizens
have fair warning of proscribed conduct." Bahl, 164 Wn.2d at 752. 	The purpose of the
vagueness doctrine is to ensure criminal offenses are defined "' with sufficient definiteness
that ordinary people can understand what conduct is proscribed,'" and to "' provide
ascertainable standards of guilt to protect against arbitrary enforcement.'" Id. at 752-53
(quoting City of Spokane v. Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990)).
"Generally, 'imposing conditions of community custody is within the discretion of
the sentencing court and will be reversed if manifestly unreasonable.'" Sanchez
Valencia, 169 Wn.2d at 791-92, (quoting Bahl, 164 Wn.2d at 753). An unconstitutional
condition is manifestly unreasonable. Bahl, 164 Wn.2d at 753. Unlike statutes or
ordinances, conditions of community custody are not presumed to be constitutional.
Sanchez Valencia, 169 Wn.2d at 793.
2 Even if the condition could be challenged on First Amendment grounds, Mr.
Dickerson has failed to show his relationships with future potential romantic partners are
protected under the right to intimate association. 	While Washington has refused to hold
that the right to intimate association is limited only to familial relationships, it has found
that "an engaged couple who is not cohabitating is not entitled to constitutional
protection." City of Bremerton, 146 Wn.2d at 577. If an engaged couple cannot claim
the right to intimate association, Mr. Dickerson cannot claim it with respect to his more
attenuated relationships.
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Other jurisdictions have considered a similar condition with varying results. For
example, in United States v. Reeves, 591 F.3d 77, 80 (2d Cir. 2010), the defendant was
convicted of possession of child pornography and the trial court imposed a condition of
supervised release that required the defendant to "' notify the Probation Department when
he establishes a significant romantic relationship.'" 	On appeal, the court found this
condition unconstitutionally vague:
We easily conclude that people of common intelligence ( or, for that
matter, of high intelligence) would find it impossible to agree on the proper
application of a release condition triggered by entry into a "significant
romantic relationship." What makes a relationship "romantic," let alone
"significant" in its romantic depth, can be the subject of endless debate that
varies across generations, regions, and genders. For some, it would involve
the exchange of gifts such as flowers or chocolates; for others, it would
depend on acts of physical intimacy; and for still others, all of these
elements could be present yet the relationship, without a promise of
exclusivity would not be "significant." See, e.g., Wolfgang Amadeus
Mozart, The Marriage of Figaro (1786); Jane Austen, Mansfield Park
(Thomas Egerton, 1814); When Harry Met Sally (Columbia Pictures 1989);
He's Just Not That Into You (Flower Films 2009).
Id. at 81. The court stated that the defendant's "continued freedom during supervised
release should not hinge on the accuracy of his prediction of whether a given probation
officer, prosecutor, or judge would conclude that a relationship was significant or
romantic." Id.
Conversely, in United States v. Pennington, 606 F. App'x 216, 223 (5th Cir.
2015), cert. denied, __ U.S. __ , 136 S. Ct. 166, 193 L. Ed. 2d 122 (2015), the court
found a condition that prohibited the defendant from "dating" or "engaging in a
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relationship" with individuals with minor children without the consent of his probation
officer was not unconstitutionally vague. 	The court stated that "the requirement of
romantic involvement provides sufficient specificity to put [the defendant] on notice of
when he must notify and seek approval from his probation officer." Id. 	The court went
on to explain its disagreement with the court in Reeves:
We may part ways here with the Second Circuit. . . . The Second Circuit
cites Hollywood for the truth that relationships often begin, and continue,
with romantic uncertainty. However, while the line between friendship and
romance may not be immediately clear to a moviegoer, or even to the target
of affections, [the defendant] should know when he intends to become
romantically involved with another person. Regardless, courts every day
are obliged to adjudicate criminal cases, even with arrested persons and not
twice-convicted sex offenders, and must assess and impose no-contact
orders, as well as lesser restrictions on personal associations.
Pennington, 606 F. App'x at 223 n.3 (some citations omitted).
We find the analysis in Reeves more persuasive. 	In the case of condition 18
imposed on Mr. Dickerson, it is not clear which relationships will require the permission
of both the community custody corrections officer and therapist. 	In addition, though the
Pennington court disagreed, its analysis focused on the fact that a defendant would know
when he intended to become romantically involved with another person as the basis for
declining to follow Reeves. However, it is the community custody officer and therapist
who are ultimately charged with determining whether Mr. Dickerson has entered into a
romantic relationship and violated his community custody term. 	It is possible Mr.
Dickerson's community custody officer or therapist could interpret Mr. Dickerson's
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friendship with an individual as romantic, even where Mr. Dickerson does not intend to
enter into a romantic relationship. The condition is open to arbitrary enforcement by
community custody officers and therapists with different ideas about the point at which a
relationship becomes romantic. The condition is therefore unconstitutionally vague. 3
In contrast to condition 18, condition 17-which prohibits Mr. Dickerson from
having sexual contact with anyone without notifying them of his sexual offense-is both
clear, and a reasonable means of protecting Mr. Dickerson's future sexual partners.
We remand with instructions to strike the vague condition.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
Pennell, J.
3 Mr. Dickerson also contends the community custody condition is not crime-related.
Because we strike the condition on other grounds, we do not address this argument.
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