FILED 


APRIL 23, 2015 


In the Office of the Clerk of Court 


WA State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


STATE OF WASHINGTON, 	 ) 

) No. 31678-5-III 

Respondent, ) (consolidated with 

) No. 32259-9-III) 

v. ) 

) 

DANIEL L. SCHRECENGOST, 	 ) 

) 

Appellant. ) 

-------------------------------------------------- ) In re the Petition for Relief from Personal ) 

Restraint of: ) 

) 

DANIEL L. SCHRECENGOST, ) UNPUBLISHED OPINION 

) 

Petitioner. 	 ) 

SIDDOWAY, C.J. -After admitting to a year-long sexual relationship with a 12- and 

later 13-year-old girl, 38-year-old Daniel Schrecengost pleaded guilty to two counts of 

second degree child rape, reserving the right to request a Special Sexual Offender 

Sentencing Alternative (SSOSA) disposition. Mr. Schrecengost acknowledged his crimes, 

voluntarily sought therapy, and was otherwise eligible for the sentencing alternative. The 

sentencing court refused to impose a special disposition, however, explaining that it didn't 
Nos. 31678-5-III; 32259-9-III 

State v. Schrecengost; PRP o/Schrecengost 

think a SSOSA was appropriate given a sexual relationship initiated by Mr. Schrecengost 

that it characterized as "way outside the bounds." Report of Proceedings (RP) at 95-96. 

Mr. Schrecengost argues on appeal that the trial court abused its discretion by 

failing to take into account all the factors that weighed in favor of his eligibility for a 

SSOSA disposition. He also argues that a sentencing condition imposed by the courtprohibiting contact with minor females-failed to consider that Mr. Schrecengost has an 

adolescent daughter and violated his right to parent. In a timely personal restraint 

petition (PRP) consolidated with the appeal, Mr. Schrecengost seeks to withdraw his 

guilty plea based on an alleged misunderstanding ofmandatory terms of community 

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 of parent-child contact we remand for 

clarification of the condition. 

For those reasons, because Mr. Schrecengost's statement of additional grounds 

presents no meritorious challenge, and because his PRP fails to demonstrate actual and 

substantial prejudice from any misunderstanding of community custody terms, we affirm 

the judgment and sentence, remand for the limited purpose of clarifying the community 

custody terms as they relate to Mr. Schrecengost's daughter, and dismiss his PRP. 

2 

Nos. 31678-5-III; 32259-9-III 

State v. Schrecengost; PRP ofSchrecengost 

FACTS AND PROCEDURAL BACKGROUND 

Between August 2008 and July 2010, Mr. Schrecengost lived in a rental home 

with a woman and her two children: a son and a daughter, J.G. Mr. Schrecengost rented 

the upstairs ofthe home and the woman rented the downstairs, but 1.G. slept upstairs 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 continued to engage in this sexual activity with 1.G. until October 2009, 

when he began engaging in penile/vaginal intercourse with her. He continued to engage 

in the several sorts of intercourse with 1.G. at night and after school, until he moved out 

of the shared home in early July 2010. After moving out, he continued to call and visit 

1.G. and her family, 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. disclosed to 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 off contact 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 of protection on behalf of J.G. 

3 

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

State v. Schrecengost; PRP o/Schrecengost 

On the day the protective order was obtained, Mr. Schrecengost voluntarily went 

to the offices of the Spokane Police Department where he waived his Miranda l rights and 

participated in an interview, largely corroborating J.G.'s accusations. In a voicemail that 

Mr. Schrecengost left for J.G.'s mother thereafter, he stated that he fell in love with a 

"beautiful young girl" and that he 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 of second degree rape of a child.2 

He agreed to plead guilty to two counts with the understanding that he was free to seek a 

SSOSA disposition. 

The principal issue at the contested sentencing hearing was whether Mr. 

Schrecengost should be given a standard range sentence or the sentencing alternative he 

was requesting. Substantial evidence was presented by both sides. The court was 

presented with a presentence investigation report; letters from treatment providers to Mr. 

Schrecengost; a risk assessment by Dr. Paul Wert, to whom Mr. Schrecengost had been 

referred by his lawyer; a polygraph test result; and a packet of seven letters delivered in 

support ofMr. Schrecengost. The trial court also reviewed the probable cause affidavit. 

1 Miranda v. Arizona, 384 U.S. 436,86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 

2 "A person is guilty ofrape of a child in the second degree when the person has 

sexual intercourse with another who is at least twelve years old but less than fourteen 

years old and not married to the perpetrator and the perpetrator is at least thirty-six 

months older than the victim." RCW 9A.44.076. 

4 

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

State v. Schrecengost; P RP ofSchrecengost 

Four individuals appeared to make statements in opposition to granting the request for a 

SSOSA sentence: lG., her mother, her brother, 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 offender treatment provider, to testify to Mr. Schrecengost's exemplary record of 

attendance and participation ina treatment 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 court was "fairly long-term" contact 

"between someone who is 37 or 38 and someone who is 12 or 13"-something the court 

regarded as "way outside the bounds." RP at 95-96. It concluded, "[I]s it appropriate to 

sentence to a SSOSA in this type of a situation? My answer is, no." RP at 96. 

The court imposed the required indeterminate sentence, with the minimum being 

102 months, the low end ofthe standard range. Among the conditions imposed for the 

period of community custody was that Mr. Schrecengost "not have 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. Schrecengost challenges the court's denial ofa SSOSA sentence and the 

community custody term that could prevent him from having contact with his daughter, 

who was 11 years old at the time of sentencing. 

5 

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

State v. Schrecengost; PRP ofSchrecengost 

Denial ofSSOSA 

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 of incarceration. 

At the time of Mr. Schrecengost's offenses in 2009 and 2010, an offender was 

eligible for the special sex offender sentencing alternative if 

• 	 He or she was convicted of a sex offense that is not a serious violent 

offense or rape 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 prior to the date the current offense was committed; and 

• 	 The offense did not result in substantial bodily harm to 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 admit to committing all of the elements 

ofthe crime; and 

• 	 The standard sentence range for the offense includes the possibility 

of confinement of less than 11 years. 

Former RCW 9.94A.670(2) (2010). 

If a 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 

6 

Nos. 31678-5-111; 32259-9-II1 

State v. Schrecengost; P RP ofSchrecengost 

9.94A.670(3). After receiving the reports, the court shall determine whether the 

alternative sentence "is appropriate." RCW 9.94A.670(4). The court shall consider 

whether the offender and the community will benefit from use ofthis 

alternative, consider whether the alternative is too lenient in light ofthe 

extent and circumstances ofthe offense, consider whether the offender has 

victims in addition to the victim ofthe offense, consider whether the 

offender is amenable to treatment, consider the risk the offender would 

present to the community, to the victim, or to persons ofsimilar age and 

circumstances as the victim, and consider the victim's opinion whether the 

offender should receive a treatment disposition under this section. The 

court shall give great weight to the victim's opinion whether the offender 

should receive a treatment disposition under this section. 

Former RCW 9.94A.670(4). Ifthe sentence is imposed over the 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, or religion. 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, or ifthe 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 specific procedure 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)). 

7 

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

State v. Schrecengost; PRP ofSchrecengost 

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 concern that a SSOSA is 

"too lenient in light ofthe extent and the circumstances ofthe offense" above the others. 

RCW 9.94A.670(4). He points out that he met "each and every one ofthe criteria" for a 

SSOSA, and that Dr. Wert found him amenable to treatment. Br. of Appellant at 5-6. 

The legislature has required an offender to meet all of the criteria to qualify for a 

SSOSA, however, and the plain language ofRCW 9.94A.670(4) permits a sentencing 

court to recognize a single factor as especially significant. Mr. Schrecengost does not 

demonstrate that the sentencing court failed to consider the other factors and the record 

reveals the opposite: it shows that the court reviewed the materials submitted, heard from 

supporters ofMr. Schrecengost and the victim, heard Ms. Hannon's testimony and the 

argument of counsel, and even commented that "[c ]ertainly there is a possibility that Mr. 

Schrecengost would do well under a SSOSA .... Again, the issue comes back to 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, and the victim's opposition is entitled to great weight. 

Mr. Schrecengost fails to demonstrate a procedural error or abuse of discretion by 

the sentencing court. 

8 

Nos. 31678-5-III; 32259-9-III 

State v. Schrecengost; P RP ojSchrecengost 

Community custody condition 

Mr. Schrecengost's second assignment of error is that the condition prohibiting 

him from having contact with 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 court to impose "crime-related prohibitions" as a 

condition of a sentence. RCW 9.94A.505(8). A "crime-related prohibition" prohibits 

"conduct that directly relates to the circumstances ofthe crime for which the offender has 

been convicted." RCW 9.94A.030(10). We generally review the imposition of crimerelated prohibitions for abuse of discretion, but we more carefully review conditions that 

interfere with fundamental constitutional rights, such as the right to the care, custody, and 

companionship of one's children. In re Pers. Restraint ojRainey, 168 Wn.2d 367,374, 

229 P.3d 686 (2010). Where there is such interference, the conditions "must be 

'sensitively imposed' so that they are 'reasonably necessary to accomplish the essential 

needs ofthe State and public order.'" Id. (quoting State 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), overruled on other grounds by State v. 

Mutch, 171 Wn.2d 646, 254 P.3d 803 (2011). The court upheld the no-contact order as a 

9 

Nos. 31678-5-III; 32259-9-III 

State v. Schrecengost; PRP ofSchrecengost 

reasonable crime-related prohibition, 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 putting A.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. 

Other reported cases have found error when a sentencing court imposes a 

restriction on parental contact with a child. In State v. Letourneau, 100 Wn. App. 424, 

427,997 P.2d 436 (2000), for example, Ms. Letourneau was 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 

her home. Ms. Letourneau's evaluators were unanimous that she was not a pedophile and 

nothing in the record suggested she posed a threat to her own children. Id. at 428-29. 

In State v. Ancira, 107 Wn. App. 650,654-55,27 P.3d 1246 (2001), in which the 

defendant had been convicted of violating a domestic violence no-contact order obtained 

by his wife, a sentencing condition prohibiting him from all contact with his children was 

based solely on their having witnessed domestic violence between their father and 

mother. Observing that the parents were in the process of dissolving their marriage and 

an existing order prohibited the defendant from contact with his wife, the appellate court 

struck the condition prohibiting contact with the children as a matter better addressed by 

the family court in the dissolution proceeding. 

·10 

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

State v. Schrecengost; PRP o/Schrecengost 

In support of his argument that his daughter does not need protection from him, 

Mr. Schrecengost points to a pretrial order that had allowed him to have telephone 

contact with his daughter, A.S., and allowed for supervised visits with the consent of 

A.S. 's mother, thereby suggesting that "the State had little fear that Mr. Schrecengost's 

continued contact with his daughter would be detrimental to her." Br. of Appellant at 13. 

Since there 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 that the earlier order was a pretrial release 

condition, at a time when Mr. Schrecengost enjoyed the presumption of innocence. 

In this case, like Letourneau, the court was presented with no expert opinion that 

Mr. Schrecengost presents a risk to his daughter. Given the pretrial order, given the risk 

assessment, given the absence of any discussion whether A.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 limited purpose of clarifying the intended scope ofthe prohibition of 

contact with female minors. 

STATEMENT OF ADDITIONAL GROUNDS 

In a pro se statement of additional grounds (SAG), Mr. Schrecengost complains of 

ineffective assistance of counsel and bias on the part of the sentencing court. 

11 

Nos. 31678-5-III; 32259-9-II1 

State v. Schrecengost; PRP a/Schrecengost 

Ineffective assistance 0/counsel. Mr. Schrecengost complains that his lawyer 

failed to object during sentencing to a "plethora of false matters," and that his lawyer 

failed to investigate or educate himself about Mr. Schrecengost's case. SAG at 6. To 

succeed on a claim of ineffective assistance, Mr. Schrecengost must show that counsel's 

performance was both deficient and that the deficient performance prejudiced him. 

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 

disputed points 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 or by 

argument.3 Given the purpose of a sentencing hearing-at which 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 lawyer was wise to forgo it. And Mr. 

Schrecengost's suggestion that his lawyer should have characterized J.G. as the aggressor 

in their relationship and pointed out the "hundreds" of love letters she sent him illustrates 

how important it was that Mr. Schrecengost's lawyer was making the strategic decisions. 

3 E.g., by pointing out in argument that Mr. Schrecengost had a G.E.D. RP at 79. 

12 

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

State v. Schrecengost; PRP o/Schrecengost 

To argue that 12-year-old lG. had "enticed" Mr. Schrecengost at the same time he was 

requesting a treatment alternative would have been ill-considered, to say the least. 

The record reveals an able handling ofthe sentencing hearing by a well-prepared 

lawyer. It is clear from the trial court's announcement of its 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 acquaint himself with the facts to be able to properly advocate. But 

the record reveals that Mr. Schrecengost's lawyer presented written evidence, called Ms. 

Hannon, lodged appropriate objections, and actively and zealously advocated for his 

client. Here, too, Mr. Schrecengost shows neither deficient representation nor prejudice. 

Judicial bias. Mr. Schrecengost contends that the sentencing judge'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 

consider whether the alternative is "too lenient in light of the 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 normative judgment about that 

factor. In any event, Mr. Schrecengost did not raise a claim ofjudicial bias or a violation 

of the appearance of fairness at the trial court. An appearance of fairness claim is not 

13 

Nos. 31678-5-III; 32259-9-III 

State v. Schrecengost; P RP ofSchrecengost 

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 restraint petition Mr. Schrecengost argues that his plea 

agreement was 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 of his community custody. He 

contends that because of the 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 of erR 

4.2(f). State v. Walsh, 143 Wn.2d 1, 6, 17 P.3d 591 (2001). Thus, if a motion to 

withdraw the plea is made before judgment, a trial court must allow a defendant to 

withdraw it under that criminal rule. 

If a motion to withdraw a plea is made after judgment, it is governed by erR 

7 .8(b), a potentially higher standard, in addition to erR 4.2(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 plea would be presumed prejudicial and, 

unless waived, would support a motion to withdraw the plea. Id. at 596. 

14 

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

State v. Schrecengost; PRP ofSchrecengost 

Challenges raised in a PRP are subject to an even more demanding standard. "A 

PRP ... is not a substitute for an appeal." Id. "[C]ollateral review is distinct from a 

direct appeal because collateral relief 'undermines the principles of finality of litigation, 

degrades the prominence of the trial, and sometimes costs society the right to punish 

admitted offenders.'" Id. at 597 (quoting In re Pers. Restraint ofHagler, 97 Wn.2d 818, 

824,650 P.2d 1103 (1982)). In Stockwell, addressing a question of first impression, our 

Supreme Court clarified prior decisions, holding that a petitioner seeking to withdraw an 

allegedly involuntary plea based on misinformation (in Stockwell, a misstatement ofthe 

statutory maximum) "is required 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 are based; 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. Restraint ofSpencer, 152 Wn. App. 698, 707, 218 P.3d 924 (2009) 

(quoting In re Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992)). 

Mr. Schrecengost assumes that a guilty plea based on misinformation automatically 

entitles him to withdraw his guilty plea, quoting In re Hews, 99 Wn.2d 80, 88, 660 P.2d 

263 (1983) as stating "[a]n invalid plea of guilty constitutes actual prejudice." Reply Br. 

at 6. He takes the statement out of context. In Hews, the court applied the requirement 

15 

Nos. 31678-5-III; 32259-9-III 

State v. Schrecengost; P RP ofSchrecengost 

that a petitioner must show actual prejudice. It identified a clear misunderstanding that 

was reflected in the record of the plea hearing and found that it amounted to a prima facie 

showing of prejudice, but not proof of prejudice. As the court explained, a petition that 

fails to make a threshold showing of actual prejudice should be dismissed; a petition that 

makes a convincing showing of actual prejudice should be granted; and a petition that falls 

in between-making a prima facie showing ofprejudice but on an insufficient record and 

therefore not convincing-may be remanded for further hearing. The Hews court 

remanded Mr. Hews petition for a hearing but with the admonition, "This being a 

collateral review, petitioner has the burden of establishing that, more likely than not, he 

was actually prejudiced by the claimed error." [d. at 89. 

Mr. Schrecengost has made no effort to identifY facts or evidence showing that he 

was actually prejudiced by the error he alleges, evidently because he viewed relief as 

automatic. The declaration supporting his PRP offers only that "had I been duly 

informed that I would be subject to a mandatory evaluation for treatment for sexual 

deviancy as a result ofmy guilty plea, I would not have entered into such a plea in this 

matter." PRP at 28. But "a materiality inquiry, involving a hindsight review of 

defendant's motivations, is distinct from consideration of actual and substantial prejudice, 

which looks to the practical effects of a sentence." Stockwell, 179 Wn.2d at 602. 

Mr. Schrecengost fails to meet his burden of demonstrating actual and substantial 

prejudice. 

16 
Nos. 31678-5-111; 32259-9-111 

State v. Schrecengost; PRP o/Schrecengost 

We affinn the judgment 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 restraint petition. 

WE CONCUR: 


Brown, 1. 

17