### FILED APRIL 23, 2015 In the Office ofthe Clerk ofCourt WA State CourtofAppeals, Division III

INTHE COURT OF APPEALS OF THE STATEOF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) No. 31678-5-III Respondent, ) (consolidated with ) No. 32259-9-III) 

### v. ) ) DANIEL L. SCHRECENGOST, ) ) Appellant. )



### -------------------------------------------------- 

### ) Inre the Petition for Relieffrom Personal ) Restraint of: ) ) DANIEL L. SCHRECENGOST, ) UNPUBLISHED OPINION ) Petitioner. ) SIDDOWAY, C.J. -Afteradmittingto a year-long sexual relationship with a 12- and later 13-year-old girl, 38-year-old Daniel Schrecengostpleaded guilty to two counts of second degree childrape, reservingthe right torequest a Special Sexual Offender SentencingAlternative (SSOSA) disposition. Mr. Schrecengost acknowledged his crimes, voluntarily sought therapy, and was otherwise eligible for the sentencing alternative. The sentencing courtrefused to impose a special disposition, however, explainingthat it didn'tNos. 31678-5-III; 32259-9-III State 

### v. Schrecengost; PRPo/Schrecengost
think a SSOSA was appropriate given a sexualrelationship initiated by Mr. Schrecengost that it characterized as "way outside the bounds." Report ofProceedings (RP) at 95-96. Mr. Schrecengost argues on appeal thatthe trial court abused its discretion by failing to take into account all the factors that weighed in favor ofhis eligibility for a SSOSA disposition. He also argues that a sentencing condition imposed by the courtprohibiting contactwith minorfemales-failedto considerthat Mr. Schrecengosthas an adolescent daughter and violated his right to parent. In a timely personal restraint petition (PRP) consolidatedwiththe appeal, Mr. Schrecengost seeks to withdraw his guilty pleabased on an alleged misunderstanding ofmandatory terms ofcommunity custody. The trial court did not abuse its discretion by basing its refusal to impose a SSOSA
on the extent and circumstances ofMr. Schrecengost's offense. As to the community custody condition, the record could support an exception in the case ofthe daughter, and because there was no express consideration ofparent-child contact we remand for clarification ofthe condition. Forthose reasons, because Mr. Schrecengost's statement ofadditional grounds presents no meritorious challenge, and because his PRP fails to demonstrate actual and substantial prejudice from any misunderstanding ofcommunity custody terms, we affirm thejudgment and sentence, remand for the limited purpose ofclarifying the community custody terms as they relate to Mr. Schrecengost's daughter, and dismiss his PRP. 

### 2Nos. 31678-5-III; 32259-9-III State 

### v. Schrecengost; PRP of Schrecengost
FACTS AND PROCEDURAL BACKGROUND Between August 2008 and July 2010, Mr. Schrecengost lived in a rental home with a woman and hertwo children: a son and a daughter, J.G. Mr. Schrecengostrented the upstairs ofthe home and the woman rented the downstairs, but 1.G. sleptupstairs on a couch in the living room. About a year into the shared rental, Mr. Schrecengost woke 1.G. up one night and performed digital and oral intercourse on her. J.G. was then 12 years old. 

### Mr. Schrecengost continuedto engage in this sexual activity with 1.G. until October2009, when he began engaging in penile/vaginal intercourse with her. He continuedto engage in the several sorts ofintercourse with 1.G. at night and after school, until he moved out ofthe shared home in early July 2010. After moving out, he continued to call and visit 1.G. and herfamily, and in late August 2010 came to the home when J.G. was alone and had penile/vaginal intercourse with her. In September 2011, J.G. disclosedto her mother that 

### Mr. Schrecengost had engaged in sexual intercourse with her during the time he lived in the home. J.G.'s mother filed a police report and broke offcontact with Mr. Schrecengost. When he used
a key that he had retained and attempted to enter the home in October 2011, 1.G.'s mother barred the door, and thereafter filed a burglary report, changed the locks, and obtained an order ofprotection on behalfofJ.G.

3Nos. 31678-5-111; 32259-9-111 State 

### v. Schrecengost; PRP o/Schrecengost
On the day theprotective order was obtained, Mr. Schrecengost voluntarily went to the offices ofthe Spokane Police Department where he waived his Miranda l rights and participated in an interview, largely corroboratingJ.G.'s accusations. In a voicemail that Mr. Schrecengost left for J.G.'s motherthereafter, he stated that he fell in love with a "beautifulyoung girl" and thathe believed she was his "soul mate" and that he should not go to prison for falling in love. Clerk's Papers (CP) at 1. Mr. Schrecengost was charged with four counts ofsecond degree rape ofa child.2 He agreed to plead guilty to two counts with the understanding that he was free to seek a SSOSA disposition. Theprincipal issue at the contested sentencinghearing was whether Mr. Schrecengost shouldbe given a standardrange sentence orthe sentencing alternative he
was requesting. Substantial evidence was presented by both sides. The court was presented with a presentence investigation report; letters from treatmentproviders to Mr. Schrecengost; a risk assessmentby Dr. Paul Wert, to whom Mr. Schrecengost had been referred by his lawyer; a polygraph test result; and a packet ofseven letters delivered in support ofMr. Schrecengost. The trial court also reviewedthe probable cause affidavit.

1Miranda v. Arizona, 384 U.S. 436,86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 2 "Aperson is guilty ofrape ofa child in the second degree when the person has sexual intercourse with another who is at least twelve years oldbut less than fourteen years old andnot married to the perpetrator and the perpetrator is at least thirty-six months older than the victim." RCW 9A.44.076. 

### 4Nos. 31678-5-111; 32259-9-111 State 

### v. Schrecengost; PRPof Schrecengost
Fourindividuals appeared to make statements in opposition to granting the request for a SSOSA sentence: lG., her mother, herbrother, and J.G.'s boyfriend, who had encouraged her to report the rapes. Mr. Schrecengost's employer, his aunt, friends, a cousin, and his mother made statements on his behalf. Mr. Schrecengost also called Priscilla Hannon, a
sex offendertreatment provider, to testify to Mr. Schrecengost's exemplary record of attendance and participation inatreatment group that she facilitated. The trial court denied Mr. Schrecengost's request for a SSOSA sentence, explaining that what it "came down to" for the courtwas "fairly long-term" contact "between someone who is 37 or 38 and someone who is 12 or 13"-somethingthe court regarded as "way outside the bounds." RP at 95-96. Itconcluded, "[I]s it appropriate to sentence to a SSOSA in this type ofa situation? My answer is, no." RP at 96. The court imposed the required indeterminate sentence, withthe minimumbeing 102 months, the low end ofthe standard range. Amongthe conditions imposed for the period ofcommunity custody was that Mr. Schrecengost "nothave contact with female minors unless such contact is approved by the therapist and CCO [community custody officer] in writing." CP at 65. Mr. Schrecengost appeals. ANALYSIS Mr. Schrecengostchallenges the court's denial ofa SSOSA sentence and the community custody term that couldpreventhim from having contact with his daughter, who was 11 years old at the time ofsentencing. 5Nos. 31678-5-111; 32259-9-111 State v. Schrecengost; PRP of Schrecengost
Denial of SSOSA The Sentencing Reform Act of 1981, chapter 9.94A RCW, generally provides a standard range ofpunishment for criminal offenses. The SSOSA, a special provision for certain qualifying sex offenders, provides an alternative sentence permitting community supervision and treatment in lieu ofincarceration. Atthe time ofMr. Schrecengost's offenses in 2009 and 2010, an offenderwas eligible for the special sex offender sentencing alternative if
• He or she was convicted ofa sex offense that is not a serious violent offense orrape in the second degree, and
• He or she has no prior convictions for a felony sex offense in this or any other state; and no adult conviction for a violent offense in the five years priorto the date the current offense was committed; and
• The offense did not result in substantial bodily harmto the victim; and
• There was an established relationship/connection to the victim other than that resulting from the crime; and
• Ifthe conviction results from a guilty plea, the offender must voluntarily and affirmatively admitto committing all ofthe elements ofthe crime; and
• The standard sentence range for the offense includes the possibility ofconfinement ofless than 11 years. FormerRCW 9.94A.670(2) (2010). Ifa court finds that an offender is eligible for the alternative, it may order an examination to determine whether the offender is amenable to treatment. RCW

6Nos. 31678-5-111; 32259-9-II1 State v. Schrecengost; P RP of Schrecengost 9.94A.670(3). Afterreceiving the reports, the court shall determine whether the alternative sentence "is appropriate." RCW 9.94A.670(4). The court shall consider whetherthe offender and the community will benefit from use ofthis alternative, consider whetherthe alternative is too lenient in light ofthe extent and circumstances ofthe offense, considerwhetherthe offenderhas victims in addition to the victim ofthe offense, consider whetherthe offender is amenable to treatment, considerthe riskthe offenderwould present to the community, tothe victim, orto persons ofsimilar age and circumstances as the victim, and considerthe victim's opinion whetherthe offender shouldreceive a treatment disposition underthis section. The court shall give greatweightto the victim's opinion whetherthe offender should receive a treatment disposition underthis section. FormerRCW 9.94A.670(4). Ifthe sentence is imposed overthe victim's objection, the court must enter written findings stating its reasons for imposing the treatment disposition. The grant ofa SSOSA is entirely at a trial court's discretion, so long as the court does not abuse its discretion by denying a SSOSA on an impermissible basis, such as the defendant's race, sex, orreligion. State v. Sims, 171 Wn.2d 436,445,256 P.3d 285 (2011). A defendant may appeal ifthe trial court fails to comply with the procedural requirements ofthe SRA, however, orifthe sentence is alleged to be unconstitutional. State v. Osman, 126 Wn. App. 575, 579, 108 P.3d 1287 (2005). In order for a "procedural appeal to be allowed
... it must be shown that the sentencing court had a duty to follow
some specificprocedure required by the SRA, and that the court failed to do so." 

### Id. (citing State v. Mail, 121 Wn.2d 707,712,854 P.2d 1042 (1993)).

7Nos. 31678-5-111; 32259-9-111 State v. Schrecengost; PRP of Schrecengost
Mr. Schrecengost argues that because the factors to be considered by the court in determining whether a SSOSA is appropriate are set out in the conjunctive in the statute, the sentencing court abused its discretion when it elevated the concernthat a SSOSA is "too lenient in light ofthe extent and the circumstances ofthe offense" above the others. RCW 9.94A.670(4). He points outthathe met "each and every one ofthe criteria" for a SSOSA, and that Dr. Wert found him amenable to treatment. Br. ofAppellant at 5-6. The legislature has requiredan offenderto meet all ofthe criteria to qualify for a SSOSA, however, andthe plain language ofRCW9.94A.670(4)permits a sentencing courtto recognize a single factor as especially significant. Mr. Schrecengost does not demonstrate that the sentencing court failed to considerthe other factors andthe record reveals the opposite: it shows that the courtreviewed the materials submitted, heard from supporters ofMr. Schrecengost and the victim, heard Ms. Hannon's testimony and the argument ofcounsel, and even commentedthat "[c]ertainly there is a possibility that Mr. Schrecengost would do well under a SSOSA
.... Again, the issue comes backto what 1 think is the appropriate sentence in this case at this point in time given the statutory factors." RP at 95. Moreover, the exceptional impropriety ofthe relationship was reflected in the opposition ofthe victim and her family members to Mr. Schrecengost receiving a SSOSA, andthe victim's opposition is entitled to great weight. Mr. Schrecengost fails to demonstrate a procedural error orabuse ofdiscretion by the sentencing court. 8Nos. 31678-5-III; 32259-9-III State v. Schrecengost; PRPojSchrecengost Community custody condition Mr. Schrecengost's second assignment oferror is thatthe condition prohibiting him from having contactwith female minors violates his fundamental rights as a parent insofar as it prevents him from having contact with his daughter, A.S. The SRA authorizes the trial courtto impose "crime-relatedprohibitions" as a condition ofa sentence. RCW 9.94A.505(8). A "crime-relatedprohibition" prohibits "conductthat directly relates to the circumstances ofthe crime for whichthe offenderhas been convicted." RCW 9.94A.030(10). We generally review the imposition ofcrimerelatedprohibitions for abuse ofdiscretion, butwe more carefully review conditions that interfere with fundamental constitutional rights, such as theright to the care, custody, and companionship ofone's children. In re Pers. RestraintojRainey, 168 Wn.2d 367,374, 229 P.3d 686 (2010). Where there is such interference, the conditions "mustbe 'sensitively imposed' so that they are 'reasonably necessary to accomplish the essential needs ofthe State and public order.'" Id. (quotingState v. Warren, 165 Wn.2d 17, 32, 195 P.3d 940 (2008». In State v. Berg, in which Mr. Berg had been convicted ofmolesting his wife's 14­ year-old daughter, the sentencing court imposed a no-contact order covering all minor females, thereby extending to Mr. Berg's 2-year-old biological daughter. State v. Berg, 147 Wn. App. 923,941, 198 P.3d 529 (2008), overruledon othergrounds byState v. Mutch, 171 Wn.2d 646, 254 P.3d 803 (2011). The court upheld the no-contact order as a 

### 9Nos. 31678-5-III; 32259-9-III State v. Schrecengost; PRP of Schrecengost
reasonable crime-relatedprohibition, stating that the 14-year-old victim had lived in a home with Berg acting as her parent when the abuse occurred, and "the court reasonably feared that it would be puttingA.B. in the same situation that A.A. was in when Berg sexually abused her. Thus, the trial court's order restricting contact was reasonably necessary to protect A.B." Berg, 147 Wn. App. at 942-43. Otherreported cases have found errorwhen a sentencing court imposes a restriction on parental contactwith a child. In State v. Letourneau, 100 Wn. App. 424, 427,997 P.2d 436 (2000), for example, Ms. Letourneauwas a teacher and the victim was
a male student with whom she had sex; he was not a family member and did not live in herhome. Ms. Letourneau's evaluators were unanimous that she was not a pedophile and nothing in the record suggested sheposed a threatto her own children. Id. at 428-29. In State v. Ancira, 107 Wn. App. 650,654-55,27P.3d 1246 (2001), in which the defendanthad been convicted ofviolating a domestic violence no-contact order obtained by his wife, a sentencing condition prohibiting him from all contactwith his children was based solely ontheir having witnessed domestic violence between their father and mother. Observing thattheparents were in the process ofdissolving their marriage and
an existing order prohibited the defendant from contact with his wife, the appellate court struck the condition prohibiting contactwith the children as a matter better addressed by the family court in the dissolution proceeding.

·10Nos. 31678-5-111; 32259-9-111 

### State v. 

### Schrecengost; PRP o/Schrecengost


### In support ofhis argument that his daughter does not need protection from him, Mr. Schrecengostpoints to a pretrial orderthat had allowed him to have telephone contact with his daughter, A.S., and allowed for supervisedvisits with the consent of A.S.'s mother, thereby suggestingthat "the State had little fear that Mr. Schrecengost's continued contact with his daughterwould be detrimental to her." Br. ofAppellant at 13. Sincethere was no specific discussion ofA.S. at sentencing, he argues that at a minimum the sentence needs to be clarified. The State denies the inference that it was previously unconcerned about Mr. Schrecengost's contact with A.S., pointing out thatthe earlier order was a

### pretrialrelease condition, at a time when Mr. Schrecengost enjoyed the presumption ofinnocence. 

### In this case, like

### Letourneau, the court was presented with no expert opinion that Mr. Schrecengostpresents a risk to his daughter. Given the pretrial order, given the risk assessment, given the absence ofany discussion whetherA.S. should or should not be included in the prohibition on contact, and given the liberty interest at stake, we remand the sentence for the limitedpurpose ofclarifyingthe intended scope ofthe prohibition of contact with female minors. STATEMENT OF ADDITIONAL GROUNDS 

### In a pro se statement ofadditional grounds (SAG), Mr. Schrecengost complains of ineffective assistance ofcounsel and bias on the part ofthe sentencing court.

11Nos. 31678-5-III; 32259-9-II1 State v. Schrecengost; PRP a/Schrecengost Ineffective assistance

## 0/ counsel. Mr. Schrecengost complains thathis lawyer failed to object during sentencingto a "plethora offalse matters," and thathis lawyer failed to investigate or educate himselfabout Mr. Schrecengost's case. SAG at 6. To succeed on a claim ofineffective assistance, Mr. Schrecengost must show that counsel's performance was both deficient and that the deficientperformance prejudicedhim. Mr. Schrecengost first points to several instances where his lawyer allegedly should have objected to statements being made by J.G. and her family members, or disputedpoints being made by the State during the sentencing hearing. See SAG at 6-8. The discrepancies he points out are sometimes inconsequential and sometimes matters that were more effectively addressed by the affirmative testimony ofMs. Hannon orby argument. 3 Given the purpose ofa sentencing hearing-atwhich the defendant's guilt is
a given-attempted cross-examination ofvictims, friends or family who come to court to express their feelings is a dubious strategy. This was illustrated when the State briefly tried it below, drawing the court's warning that a sentencing hearing is not a probation hearing and is not a trial. Mr. Schrecengost's lawyerwas wise to forgo it. And Mr. Schrecengost's suggestion that his lawyer should have characterized J.G. as the aggressor in their relationship andpointed out the "hundreds" oflove letters she sent him illustrates how important it was thatMr. Schrecengost's lawyerwas makingthe strategic decisions.

3E.g., by pointing out in argument thatMr. Schrecengost had a G.E.D. RP at 79. 12Nos. 31678-5-111; 32259-9-111 State 

### v. Schrecengost; PRP o/Schrecengost
To argue that 12-year-oldlG. had "enticed"Mr. Schrecengost at the same time he was requesting a treatment alternative would have been ill-considered, to say the least. The recordreveals an able handling ofthe sentencinghearing by a well-prepared lawyer. It is clear from the trial court's announcement ofits sentence and its reasons that denial ofthe SSOSA would not have been affected by the details touched upon in the SAG. We find neither deficient representation nor prejudice. Mr. Schrecengost also argues that his lawyer failed to interview witnesses and failed to adequately acquainthimselfwiththe facts to be able to properly advocate. But the record reveals that Mr. Schrecengost's lawyerpresented written evidence, called Ms. Hannon, lodged appropriate objections, and actively and zealously advocated for his client. Here, too, Mr. Schrecengost shows neither deficient representation norprejudice. Judicial bias. Mr. Schrecengostcontends that the sentencingjudge's statements revealing his personal attitude toward the underlying offense revealed bias. In considering whether a SSOSA is appropriate, the trial court is required to considerwhether the alternative is "too lenient in light ofthe extent and circumstances of the offense." RCW 9.94A.670(4). Mr. Schrecengost fails to explain how the sentencing court could have fulfilled its obligation without making a normativejudgment aboutthat factor. In any event, Mr. Schrecengost did not raise a claim of judicial bias or a violation ofthe appearance offairness at the trial court. An appearance offairness claim is not

13Nos. 31678-5-III; 32259-9-III State v. Schrecengost; PRPof Schrecengost
constitutional in nature and may not be raised for the first time on appeal. RAP 2.5(a); State v. Morgensen, 148 Wn. App. 81, 90-91,197 P.3d 715 (2008). PERSONAL RESTRAINT PETITION In a timely personal restraintpetition Mr. Schrecengost argues that his plea agreementwas based upon misinformation, because nowhere in his plea statement was there any disclosure that he would be subject to mandatory evaluation for treatment for sexual deviancy, yet it was included as a condition ofhis community custody. He contends that because ofthe misinformation, his guilty plea was involuntary and invalid; that it thereby constitutes a manifest injustice; and that we are required to allow him to withdraw his plea. His argument conflates standards and results that do not apply to a collateral attack such as his PRP. An involuntary plea constitutes a manifest injustice within the meaning oferR 4.2(f). State v. Walsh, 143 Wn.2d 1, 6, 17 P.3d 591 (2001). Thus, ifa motion to withdraw the plea is madebeforejudgment, a trial court must allow a defendant to withdraw it underthat criminal rule. Ifa motion to withdraw aplea is made afterjudgment, it is governed by erR 7.8(b), apotentially higher standard, in addition to erR4.2(f). In re Pers. Restraint of Stockwell, 179 Wn.2d 588, 595, 602, 316 P.3d 1007 (2014). On direct appeal, misinformation giving rise to an involuntary pleawould bepresumedprejudicial and, unless waived, would support a motion to withdraw the plea. Id. at 596. 14Nos. 31678-5-111; 32259-9-111 State 

### v. Schrecengost; PRP of Schrecengost Challenges raised in a PRP are subjectto an even more demanding standard. "A PRP
... is not a substitute for an appeal." Id. "[C]ollateralreview is distinct from a direct appeal because collateral relief'undermines theprinciples offinality oflitigation, degrades the prominence ofthe trial, and sometimes costs society the right to punish admitted offenders.'" Id. at 597 (quotingIn re Pers. Restraint of Hagler, 97 Wn.2d 818, 824,650 P.2d 1103 (1982)). In Stockwell, addressing a question offirst impression, our Supreme Court clarified prior decisions, holding that a petitioner seekingto withdraw an allegedly involuntary pleabased on misinformation (in Stockwell, a misstatement ofthe statutory maximum) "isrequired to satisfy the actual and substantial prejudice standard
on collateral attack." Id. at 603. A petitioner must support a PRP with facts or evidence upon which the claims of unlawful restraint arebased; conclusory statements alone are insufficient. RAP 16.7(a)(2)(i);In re Pers. Restraint ofWilliams, 111 Wn.2d 353,365, 759 P.2d 436 (1988). The evidence must consist ofmore than speCUlation, conjecture, or inadmissible hearsay. In re Pers. Restraintof Spencer, 152 Wn. App. 698, 707, 218 P.3d 924 (2009) (quotingIn reRice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992)). Mr. Schrecengost assumes that a guilty pleabased on misinformation automatically entitles himto withdraw his guilty plea, quotingIn re Hews, 99 Wn.2d 80, 88, 660 P.2d 263 (1983) as stating "[a]n invalid pleaofguilty constitutes actual prejudice." Reply Br. at 6. He takes the statement out ofcontext. In Hews, the court applied the requirement 15Nos. 31678-5-III; 32259-9-III State v. Schrecengost; PRPof Schrecengost
that a petitioner must show actual prejudice. Itidentified a clear misunderstanding that
was reflected 

### in the record ofthepleahearing and found that it amounted to aprima facie showing ofprejudice, but notproofofprejudice. As the court explained, apetitionthat fails to make a threshold showing ofactual prejudice should be dismissed; a petition that makes a convincing showing ofactual prejudice should be granted; and a petition that falls in between-making a prima facie showing ofprejudicebut on an insufficientrecord and therefore not convincing-maybe remanded for further hearing. The Hews court remanded Mr. Hews petition for a hearing but with the admonition, "This being a collateral review, petitionerhas the burden ofestablishing that, more likely than not, he
was actually prejudiced by the claimed error." [d. at 89. Mr. Schrecengosthas made no effortto identifY facts or evidence showingthat he was actually prejudiced by the error he alleges, evidently becausehe viewed reliefas automatic. The declaration supporting his PRP offers only that "had I been duly informedthat I would be subject to a mandatory evaluation for treatment for sexual deviancy as a result ofmy guilty plea, I would nothave entered into such a pleain this matter." PRP at 28. But "amateriality inquiry, involving a hindsight review of defendant's motivations, is distinct from consideration ofactual and substantial prejudice, which looks to the practical effects ofa sentence." Stockwell, 179 Wn.2d at 602. Mr. Schrecengost fails to meet his burden ofdemonstrating actual and substantial prejudice. 16Nos. 31678-5-111; 32259-9-111 State 

### v. Schrecengost; PRPo/Schrecengost
We affinn thejudgment and sentence, remand to the trial court for the purpose of clarifying the community custody provision as it relates to contact with A.S., and dismiss the personal restraintpetition.

WE CONCUR:

Brown, 1.

17