### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON , Respondent ,
v. MARC RICHARD VANSLYKE , Appellant

. No. 84430

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- I DIVISION ONE PUBLISHED OPINION

F ELDMAN , J.

— Marc Richard Vanslyke appeals the no - contact condition of his judgment and sentence and the no - contact order (NCO) issued in connection therewith. Vanslyke claims that the trial court was required to reduce the duration of the no - contact condition and NCO by the amount of time that he was subject to a prior no - contact condition and NCO for the same offense and that his trial attorney was ineffective by failing to properly argue this issue below. Finding no statutory or constitutional error, we affirm

. I On January 18, 2018, the Lynwood Municipal Court issued an order prohibiting Vanslyke from contacting Jolene Washington until January 18, 2024. On May 8, 2020, police officers responding to a 911 hang

- up call from Washington’s apartment found her in the ap artment and Vanslyke on the neighbor’s balcony. The State charged Vanslyke with (1) felony violation of a courtNo. 8 4430

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2 order

– domestic violence 1 and (2) gross misdemeanor interfering with domestic violence reporting. Vanslyke pleaded guilty to both counts. On M ay 11, 2021, the trial court sentenced Vanslyke to 60 months of incarceration on the class C felony count and imposed 364 days of confinement on the gross misdemeanor count but suspended that sentence. As a condition of the sentence, the court ordered Vans lyke not to contact Washington. It also issued a separate post

- conviction NCO that expired five years from the date of sentencing. On January 31, 2022, this court held that Vanslyke’s plea was constitutionally invalid because the charging language failed to apprise him of an essential element of a willful violation of a court order. State v. Vanslyke , No. 8265 1

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- I, slip op. at 1 (Wash. Ct. App. Jan. 31, 2022) (unpublished), http://www.courts.wa.gov/opinions/pdf/826514.pdf (citing State v. Briggs , 18 Wn. A pp. 2d 544, 550, 553, 492 P.3d 218 (2021)). This court remanded the matter to the trial court to allow Vanslyke to withdraw his guilty pleas, which he did. Id

. Following a jury trial, Vanslyke was found guilty of the felony count but not guilty of the gross misdemeanor count. At the resentencing hearing on August 9, 2022, the trial court again sentenced Vanslyke to 60 months of incarceration and , as a condition o f the sentence, prohibited him from contacting Washington until August 9, 2027. The court also issued a separate post

- conviction NCO that likewise expired “5 years from today’s date.” Vanslyke appeals.

1 The statute under which Vanslyke was charged, RCW 26.50.110, has since been repealed. L AWS OF 2021 , ch. 215, § 170 (eff. July 1, 2022).No. 8 4430

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3 II A. Statutory Interpretation Vanslyke argues that the duration of the no

- contact sentencing condition and NCO imposed at his resentencing hearing exceed the maximum length permitted by RCW 10.99.050 because the trial court failed to credit him with the time he was subject to the no

- contact sentencing conditi on and NCO imposed at his initial sentencing hearing. We disagree. We review a trial court’s sentence with deference and will only reverse a sentence based on a “clear abuse of discretion or misapplication of the law.” State v. Elliott , 114 Wn.2d 6, 17, 78 5 P.2d 440 (1990). Here, Vanslyke’s sentencing arguments require us to interpret RCW 10.99.050. “The goal of statutory interpretation is to discern and implement the legislature’s intent.” State v. Armendariz , 160 Wn.2d 106, 110, 156 P.3d 201 (2007). “If t he legislature’s intent is clear based on the plain language of the statute, ‘ then the court must give effect to that plain meaning as an expression of legislative intent. ’ ” State v. Granath , 190 Wn.2d 548, 552, 415 P.3d 1179 (2018) (quoting Dep’t of Ecolo gy v. Campbell & Gwinn, L.L.C. , 146 Wn.2d 1, 10, 43 P.3d 4 (2002)) . Statutory interpretation is a legal issue, which we review de novo. State v. Landsiedel , 165 Wn. App. 886, 889, 269 P.3d 347 (2012). The plain language of RCW 10.99.050 resolves the issue presented here. It unambiguously states, without qualification, that an NCO issued as a condition of a felony sentence “remains in effect for a fixed period of time determined by the court, which may n ot exceed the adult maximum sentence established in RCW 9A.20.021.” RCW 10.99.050(2)(d). Vanslyke was convicted of a class C felony ,No. 8 4430

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4 which carries a maximum sentence of five years

. RCW 9A.20.021(1)(c) . Therefore, RCW 10.99.050 authorize d the sentencing cou rt to impose an NCO lasting up to five years for Vanslyke’s offense. The trial court’s NCO issued as a condition of Vanslyke’s sentence did not exceed that statutory limit. Moreover, t he legislature knows how to provide defendants with credit for
court

- imp osed restrictions, and it did not do so here. For example, RCW 9.94A.505(6) provides , “ The sentencing court shall give the offender credit for all confinement time served before the sentencing if that confinement was solely in regard to the offense for whi ch the offender is being sentenced. ” Additionally, RCW 9.94A.680(3) states, “ For offenders convicted of nonviolent and nonsex offenses, the court may credit time served by the offender before the sentencing in an available county supervised community optio n . . . .” Had the legislature intended to provide a statutory basis to credit defendants with time they were previously prohibited from contacting a person, it would have used similar language in RCW 10.99.050

. It did not, and its use of different languag e is legally significant. See Samish Indian Nation v. Dep ’ t of Licensing , 14 Wn. App. 2d 437, 442, 471 P.3d 261 (2020) (“When the legislature uses different language in the same statute, courts presume the legislature intended a different meaning.”). Despite the clear language of the statute, Vanslyke urges us to apply the rule of lenity to construe RCW 10.99.050 in his favor. But courts may apply the rule of lenity only where a statute is ambiguous such that “ it is subject to two or more reasonable in terpretations.” State v. McGee , 122 Wn.2d 783, 787, 864 P.2d 912 (1993). RCW 10.99.050 is subject to only one reasonable interpretation: the sentencing court could properly impose an NCO lasting up to five years from theNo. 8 4430

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5 date of sentencing. Vanslyke offers no authority supporting any legislative intent to credit defendants with time they were previously subject to NCOs for the same offense. We therefore assume no such intent exists. See State v. Loos , 14 Wn. App. 2d 748, 758, 473 P.3d 1229 (2020) (“When a p arty provides no citation to support an argument, this court will assume that counsel, after diligent search, has found none.”). In sum, because the trial court did not prohibit Vanslyke from contacting the victim for longer than the maximum duration presc ribed in RCW 10.99.050, it did not abuse its discretion in setting the duration of the sentencing condition or NCO. B. Due Process “[T]he ‘ imposition of a penalty upon the defendant for having successfully pursued a statutory right of appeal or collateral re medy is a violation of due process of law. ’ ” State v. Brown , 193 Wn.2d 280, 288, 440 P.3d 962 (2019) (quoting North Carolina v. Pearce , 395 U.S. 711, 724, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969)) ( internal quotation marks omitted ). Vanslyke argues that the trial court penalized him for exercising his right to appeal in violation of due process because, by not crediting him with the time he was subject to the initial sentencing condition and NCO during the pendency of his first appeal, the co urt effectively imposed a longer period of no - contact following his successful appeal. This argument fails because

a no - contact restriction is not a “penalty”

— nor is it “punitive”

— for due process purposes. As a result, due process do es not require that Van slyke receive credit for the time that he was subject to the previous sentencing condition and NCO for the same offense

.No. 8 4430

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6 Our constitutional analysis in In re Personal Restraint of Arseneau , 98 Wn. App. 368, 370

- 71, 989 P.2d 1197 (1999), is controlling here. In Arseneau , the Department of Corrections prohibited Arseneau from contacting a family member who was not the victim of the offense for which he was sentenced. The defendant argued the restriction violated the constitutional prohibiti ons on double jeopardy and ex post facto punishments. Id. at 379. 2 In determining whether the government’s action was sufficiently “punitive” to warrant constitutional scrutiny , we first considered the relevant legislative purpose. Id. We then examined the effect of the governmental action as measured by the following seven factors: 1) whether the sanction involves an affirmative disability or restraint; 2) whether it has been historically regarded as punishment; 3) whether it comes into play only on a finding of scienter; 4) whether it furthers retribution and deterrence; 5) whether the behavior to which it applies is already a crime; 6) whether an alternative purpose to which it may rationally be connected is assignable for it; and 7) whether it appear s to be excessive in relation to the alternative purpose assigned. Id. at 379

- 80 (citing State v. Ward , 123 Wn.2d 488, 499, 869 P.2d 1062 (1994) (citing Kennedy v. Mendoza

- Martinez , 372 U.S. 144, 168

- 69, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963)) ). We reasoned the prohibition was not “punitive” because, although it imposed an affirmative burden, “no

- contact provisions have not traditionally been considered punishment. They are civil in nature and designed to

2 Although Arseneau did not involve a due process challenge, we may look to cases discussing other constitutional rights for guidance in determining what constitutes a “penalty” in the due process context. See State v. Felix , 125 Wn. App. 575, 578

- 79, 105 P.3d 427 (2005) (citing Apprendi v. New Jersey , 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)) (applying the definition of “punishment” for purposes of due process and the right to jury trial to “punishment” for pu rposes of ex post facto and double jeopardy); see also In re Pers. Restraint of Forbis , 150 Wn.2d 91, 100

- 01, 74 P.3d 1189 (2003) (citing Hudson v. U.S. , 522 U.S. 93, 99, 118 S. Ct. 488, 139 L. Ed. 2d 450 (1997)) (applying the definition of “punitive” for purposes of double jeopardy to “punitive” for purposes of ex post facto).No. 8 4430

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7 protect third parties.” Id. at 380. We al so noted that the no

- contact prohibition did not depend on a finding of scienter, was intended to regulate conduct instead of punish, and was not exaggerated or excessive. Id

. In State v. Felix , we affirmed our reasoning in Arseneau in the context of wheth er a post

- conviction NCO constitutes “punishment” for purposes of the constitutional right to a jury determination of necessary facts that increase a defendant’s potential punishment. 125 Wn. App. 575, 578

- 79 , 105 P.3d 427 (2005) (citing Apprendi v. New Jersey , 530 U.S. 466 , 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) ). In declining to find a constitutional violation, we held that an NCO issued under RCW 10.99.050 is even less punitive than the no

- contact prohibition in Arseneau because the former “ applies only to the actual victim of the crime” and the statute “specifies only additional enforcement measures for no

- contact orders that may already be issued as a sentencing condition.” Id. at 579

- 80. 3 Here too, Vanslyke’s sentencing condition and NCO are not punitive for due
process purposes. The legislative purpose of RCW 10.99.050 is to “ protect [] victims of domestic violence ” and to do so “for the adult statutory maximum.” L AWS
OF 2019 , ch. 263 , § 301 (eff. July 28 , 20 19 )

. This legislative purpose shows that

3 Washington courts have reached similar conclusions for other court

- imposed restrictions short of confinement. Our Supreme Court has hel d that certain presentencing release conditions are not punitive such that denying defendants credit time subjects them to double jeopardy. See State v. Medina , 180 Wn.2d 282, 293

- 94, 324 P.3d 682 (2014) (supervised alternative community program); Harris v . Charles , 171 Wn.2d 455, 469

- 73 , 256 P.3d 328 (2011) (electronic home monitoring of misdemeanants ). The court has also declined to hold that probationers have a constitutional right to credit for nonjail time served on probation. See In re Pers. Restraint of Phelan , 97 Wn.2d 590, 597

- 98, 647 P.2d 1026 (1982). Similarly, the c ourt has reasoned that sanctioning an inmate for not attending mandatory stress and anger management classes was not sufficiently punitive to constitute an ex post fact o violation. See Forbis , 150 Wn.2d 91 at 100

- 01. Our court has applied the same logic to a statutory weekly check

- in requirement for sex offenders. See State v. Boyd , 1 Wn. App. 2d 501, 513, 408 P.3d 362 (2017). We have also held that imposing warrant cost s and DNA collection fees is not punitive. See State v. McCarter , 173 Wn. App. 912, 918, 295 P.3d 1210 (2013); State v. Brewster , 152 Wn. App. 856, 859, 218 P.3d 249 (2009).No. 8 4430

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8 t he purpose of restricting Vanslyke’s conduct in this manner is not to punish him, but to protect Ms. Washington ( the victim ) . The trial court’s justification for imposing the NCO at the resentencing hearing was als o non - punitive in nature: I do agree that the post

- conviction no

- contact order is appropriate. It won’t do you any harm based on the things I understand from this case, from this trial, and from what you told me today. Not only is she better off without yo u, not only is the public better off without you two together, but also you’re probably better off without her. ( E mphasis added

. ) The sentencing condition and NCO are not exaggerated or excessive; they are limited solely to inappropriate contact between Vanslyke and the victim and do not extend his term of confinement. Nor do these restrictions depend on a finding of scienter. For th ese reasons, the sentencing condition and NCO are not a penalty (or punitive) for due process purposes and, accordingly, the trial court did not violate Vanslyke’s due process rights when it did not give Vanslyke credit for the time he was subject to the p revious sentencing condition and NCO for the same offense

. To bolster his due process argument, Vanslyke argues that we should
presume improper judicial vindictiveness under the United States Supreme Court’s holding in Pearce , 395 U.S. 711

. This argument fails because the Supreme Court has since restricted the Pearce presumption of judicial vindictiveness to only those cases in which “there is a ‘reasonable likelihood’ that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority.” Alabama v. Smith , 490 U.S. 794, 79 9 , 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989) (quoting U.S. v. Goodwin , 457 U.S. 368, 373, 102 S. Ct. 2485, 73 L. Ed. 2d 74 (1982) (internal citation omitted) ; see also Brown , 193 Wn.2d at 288

- 9 0 ( acknowledging the line of cases limiting the Pearce presumption ofNo. 8 4430

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9 vindictiveness)

. If no reasonable likelihood exists, the defendant must prove

“ actual vindictiveness. ” Smith , 490 U.S. at 799

- 800. Further, the presumption does
not apply where a greater sentence is imposed after trial than was imposed after a guilty plea because “the judge may gather a fuller appreciation of the nature and extent of the crimes charged ” at trial. Id. at 801

. Here, there is nothing in the record indic ating a “reasonable likelihood” that the sentencing court acted with vindictiveness at the August 9, 2022, resentencing hearing . To the contrary, the court imposed the same sentence it originally imposed on the felony count: 60 months of incarceration with an accompanying five

- year no - contact sentencing condition and concomitant NCO. Also, t he new sentencing condition and NCO were imposed after a trial, where the judge may have “gather[ed] a fuller appreciation” of Vanslyke’s relationship with the victim and the nature of the offense than when he previously accepted Vanslyke’s guilty plea. See Smith , 490 U.S. at 801. Thus, even ass uming the sentencing condition and NCO are a penalty, Vanslyke has not established, as he must, that the trial court
act ed with actual vindictiveness. Vanslyke relies on Goodwin , 457 U.S. at 373, for the proposition that “[a]n increased penalty in the due process context is any ‘ action detrimental to the defendant.’” Vanslyke’s reliance on Goodwin is misplaced. The United States Supreme Court there addressed prosecutorial vindictiveness , not whether a court

imposed restriction short of confinement is a “pen alty.” See Goodwin , 457 U.S. at 373. Contrary to Vanslyke’s assertion, Goodwin stated that “in certain cases in which action detrimental to the defendant has been taken after the exercise of a legal right, the Court has found it necessary to ‘presume’ an improper vindictiveNo. 8 4430

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10 motive

. ” Id. (emphasis added). The Court explained that this presumption applies “only in cases in which a reasonable likelihood of vindictiveness exists.” Id. Properly construed, Goodwin supports our conclusion that not every governmental action “detrimental to the defendant

. . . after the exercise of a legal right” constitutes a penalty for due process purposes

. Rather, the action must be punitive, and the presumption of a vindictive motive in punishing the defendant only exists where a “reasonable likelihood of vindictiveness exists.” Id. Vanslyke’s sentencing condition and NCO are not puni tive , and the trial court did not act with vindictiveness. For all these reasons, we decline to find a due process violation. C. Equal Protection Vanslyke claims the trial court violated his equal protection rights by subjecting him to a harsher sentence than a defendant who does not successfully appeal their conviction. We disagree

. Equal protection requires that similarly situated individuals rece ive similar treatment under the law. U.S. C ONST

. amend. XIV, § 1; W ASH

. C ONST

. art. 1, § 12. In determining whether a defendant’s equal protection rights have been violated, courts employ rational basis review when, as here, a classification does not invol ve a fundamental right or suspect class. Harris , 171 Wn.2d at 462

- 63 (quoting State v. Harner , 153 Wn.2d 228, 235

- 36, 103 P.3d 738 (2004)). “Under rational basis review, a party challenging the application of a law as violating equal protection principles has the burden of showing that the law is irrelevant to maintaining a state objective or that it creates an arbitrary classification.” Id. (quoting State v. Simmons , 152 Wn.2d 450, 458, 98 P.3d 789 (2004)) (internal quotation marks omitted). Rational basis review is a deferential standard of review. Id. E qualNo. 8 4430

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11 protection does not impose an absolute bar to the imposition of a more severe sentence upon retrial because resentencing involves issuing a new sentence, rather than increasing an existing sentence, an d the result “depend [ s ] upon a particular combination of infinite variables peculiar to each individual trial.” Pearce , 395 U.S. at 722

- 23 (overruled on other grounds). Applying these legal principles here, Vanslyke ’s equal protection argument fails because he does not show , as he must, that the trial court’s imposition of a five

- year no - contact sentencing condition and NCO was irrelevant to maintaining a state objective or created an arbitrary classification between him and defendants who do not succ essfully appeal their conviction. Upon remand, Vanslyke was treated the same as any other defendant who had never appealed. He was recharged, tried by a jury, convicted, and resentenced. The duration of the trial court’s new sentencing condition and NCO ar e relevant to maintaining the court’s objective that Vanslyke not contact the victim throughout his entire sentence of incarceration. Therefore, we decline to find an equal protection violation. D. Ineffective Assistance of Counsel Vanslyke argues that his tr ial counsel was ineffective because they failed to object to the expiration dates of the sentencing condition and NCO. We disagree

. “A successful ineffective assistance of counsel claim requires the defendant to show that counsel ’ s performance was deficien t and that the defendant was prejudiced by the deficient performance.” In re Crace , 174 Wn.2d 835, 840, 280 P.3d 1102 (2012). Vanslyke’s ineffective assistance argument fails because, even if his lawyer had objected to the expiration dates of the sentencin g condition and NCO, his argument that “the expiration date of the order must take into accountNo. 8 4430

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12 time already served subject to the order following entry of the initial sentence” fails as a matter of statutory and constitutional analysis (as the discussion above shows) . Thus, even if his lawyer’s performance was deficient , Vanslyke has not established that he was prejudiced by the deficient performance. Accordingly, we decline to grant relief on this basis

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III We affirm Vanslyke’s judgment and sentence an d the corresponding NCO

.

WE CONCUR:

4 Our unpublished decision in State v. Briggs , No. 83278

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- I (Wash. Ct. App. Nov. 14, 2022) (unpublished), http://www.courts.wa.gov/opinions/pdf/832786.pdf , is also persuasive here. There, we rejected Briggs’ statutory, due process, equal protect ion, and ineffective assistance of counsel arguments on similar facts. Although Briggs is a n unpublished opinion, we may properly cite and discuss unpublished opinions where, as here, doing so is “necessary for a reasoned decision.” GR 14.1(c). We adopt the reasoning in Briggs as set forth in the text above.