The State of Washington, Respondent, v. Michael Shane Cates, Petitioner, 183 Wash. 2d 531

Yu, J. ¶1 One of the community custody conditions imposed as part of Michael Shane Cates’ sentence provides that upon release from total confinement, he must consent to home visits to monitor his compliance with other community custody provisions. Cates argues this condition violates

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section 7 of the Washington Constitution. We affirm the Court of Appeals’ holding that his challenge is not yet ripe for review. FACTUAL AND PROCEDURAL HISTORY ¶2 Following a jury trial, Cates was convicted of two counts of first degree rape of a child and two counts of first degree child molestation. He was given a standard-range sentence for each conviction, all to run concurrently, resulting in 25 years of total confinement.

He was further sentenced to 3 years of community custody upon his release and prohibited from contacting the victim. ¶3 The prosecutor proposed a community custody condition that would have prohibited Cates from possessing or maintaining access to a computer without explicit authorization from his community corrections officer (CCO). Clerk’s Papers (CP) at 18; 5 Verbatim Report of Proceedings (Apr. 24, 2012) (VRP) at 615.

The trial court noted “that the computer certainly can be used in terms of contacting victims” but was “concern [ed]” because there was “no evidence to support any conclusion” that Cates would do so. 5 VRP at 615. Therefore, instead of the prosecutor’s recommended condition, the trial court entered a modified condition providing, “You must consent to [Department of Corrections] home visits to monitor your compliance with supervision.

Home visits include access for the purposes of visual inspection of all areas of the residence in which you live or have exclusive/joint control/access, to also include computers which you have access to.” CP at 18; see 5 VRP at 615-16. The court orally stated that [h]e will have to allow his CCO to have access to any computer used by him, and if he has found — if there is any evidence that he is using it for improper purposes contacting children or accessing sexually explicit information or materials that he’s already prohibited from, then he will be prohibited from using it.

I will indicate that he can use a computer so long as it is subject to a search on request by his CCO, and if there is evidence that he’s committing any violation by use of the computer, he will lose this right. 5 VRP at 615. This language was not incorporated into the written judgment and sentence, either explicitly or by reference. ¶4 The Court of Appeals affirmed Cates’ convictions and sentence in an unpublished opinion. State v. Cates, noted at 179 Wn. App. 1002 (2014). Cates sought this court’s review only as to the validity of the community custody provision requiring him to consent to home visits.

ISSUE ¶5 Is Cates’ challenge ripe for review on its merits? ANALYSIS ¶6 Several years ago, a unanimous opinion of this court clarified the analysis for determining whether a preenforcement challenge to a community custody condition is ripe for review on its merits. State v. Sanchez Valencia, 169 Wn.2d 782, 786-91, 239 P.3d 1059 (2010). It is ripe “ ‘ “if the issues raised are primarily legal, do not require further factual development, and the challenged action is final.” ’ ” Id. at 786 (quoting State v. Bahl, 164 Wn.2d 739, 751, 193 P.3d 678 (2008) (quoting First United Methodist Church of Seattle v.

Hr’g Exam’r for Seattle Landmarks Pres. Bd., 129 Wn.2d 238, 255-56, 916 P.2d 374 (1996))). Furthermore, “we must consider the hardship to the petitioner! ] if we refused to review [the] challenge on direct appeal.” Id. at 789. It is undisputed that the community custody condition is a final action and Cates’ challenge raises primarily legal issues.

We thus consider only whether further factual development is required and the risk of hardship to Cates if we decline to address the merits of his challenge at this time. ¶7 Cates contends that no further factual development is required because he is bringing a facial constitutional challenge: “Did the Court of Appeals err in affirming a community custody condition that requires Mr. Cates to ‘consent’ to searches by his CCO, merely upon the CCO’s request, without.specifying that the search must be based on reasonable cause?” Pet. for Review at 1.

Cates’ challenge has no basis in the language of the condition actually imposed. The condition as written does not authorize any searches, and whether inspecting Cates’ residence or computer, the State’s authority is limited to that needed “to monitor [Cates’] compliance with supervision.” CP at 18. Any oral statement by the trial court indicating otherwise has no legally binding effect and cannot form the basis for a facial challenge. See State v. Friedlund, 182 Wn.2d 388, 394-95, 341 P.3d 280 (2015); Sanchez Valencia, 169 Wn.2d at 789 (considering a facial vagueness challenge to “the condition as written”).

Some future misapplication of the community custody condition might violate

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section 7, but that “depends on the particular circumstances of the attempted enforcement.” Sanchez Valencia, 169 Wn.2d at 789. Further factual development is therefore needed — the State must attempt to enforce the condition by requesting and conducting a home visit after Cates is released from total confinement. ¶8 Moreover, unlike the conditions considered in Sanchez Valencia, Bahl, and United States v. Loy, 237 F.3d 251, 253 (3d Cir. 2001), the risk of hardship here is insufficient to justify review of Cates’ challenge before it is factually developed.

In those cases, the conditions at issue prohibited possession of crime-related items and “immediately restricted] the petitioners’ conduct upon their release from prison.” Sanchez Valencia, 169 Wn.2d at 791. Compliance with those conditions required the petitioners to immediately dispose of such items upon their release and to refrain from obtaining new ones. Compliance here does not require Cates to do, or refrain from doing, anything upon his release until the State requests and conducts a home visit. Cates will not “suffer significant risk of hardship” if we decline to review the merits at this time.

Id. at 790 (citing State v. Massey, 81 Wn. App. 198, 200, 913 P.2d 424 (1996)). CONCLUSION ¶9 Under the guidelines set forth in Sanchez Valencia, we affirm the Court of Appeals’ holding that Cates’ preenforcement challenge is not yet ripe. Further factual development is needed, and Cates does not face a significant risk of hardship by our declining to review the merits in the absence of developed facts. Madsen, C.J., and Johnson, Owens, Stephens, and González, JJ., concur.

A CCO “may require an offender to submit to a search” but only “[i]f there is reasonable cause to believe that an offender has violated a condition or requirement of the sentence.” RCW 9.94A.631(1). That is a statutory provision distinct from the community custody condition here. Massey incorrectly stated that a defendant challenging a community custody condition must suffer actual harm before his or her claim is ripe. Jafar v. Webb, 177 Wn.2d 520, 525, 303 P.3d 1042 (2013). Nevertheless, Massey “properly determined” that the defendant’s challenge (which was similar to the one Cates raises here) was not ripe.

Sanchez Valencia, 169 Wn.2d at 790.