IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

STATE OF WASHINGTON, No. 55584-1-II

Appellant,

v. PUBLISHED OPINION

JEREMY DUSTIN HUBBARD,

Respondent.

WORSWICK, J. — The State appeals the trial court’s order granting Jeremy Hubbard’s 

motion to modify the conditions of his community custody and allowing him unsupervised 

contact with his children and grandchildren. The State argues that the motion to modify was 

time barred and that the trial court lacked authority to modify the conditions of Hubbard’s 

community custody. We disagree and affirm the trial court’s order granting Hubbard’s motion to 

modify the terms of his community custody.

FACTS

In 2005, Hubbard pleaded guilty to first degree child rape, domestic violence. The victim 

was his seven year old stepdaughter. The trial court imposed a special sexual offender 

sentencing alternative (SSOSA). In June 2006, the trial court revoked the suspension of 

Hubbard’s 123-month prison sentence after finding that Hubbard had violated the conditions of 

his SSOSA.

Filed

Washington State

Court of Appeals

Division Two

April 26, 2022
No. 55584-1-II

2

Hubbard was released from prison in March 2015, subject to lifetime community 

custody. Hubbard’s community custody conditions included prohibiting him from possessing or 

accessing sexually explicit materials, prohibiting him from remaining overnight in a residence 

where minor children live without prior approval from his CCO, prohibiting him from dating 

individuals or forming relationships with families who have minor children without prior 

approval from his Community Corrections Officer (CCO), and prohibiting him from using, 

possessing, or controlling any alcohol. 

In May 2020, Hubbard moved to modify his lifetime community custody conditions. 

Hubbard’s new wife was pregnant with their first child, and he sought to modify his community 

custody conditions to permit unsupervised contact with his biological children and any future 

grandchildren. Hubbard also sought to be able to attend public events where his children or 

grandchildren were participating such as concerts, plays, and sporting events. Additionally, 

Hubbard asked the trial court to modify the community custody conditions to allow alcohol in 

his home, to allow Hubbard to go to casinos, and to allow Hubbard to view adult, legal 

pornography. The trial court granted Hubbard’s motion to modify but required that Hubbard’s 

contact with his children and grandchildren be supervised. 

In December 2020, Hubbard filed another motion to modify his community custody 

conditions, seeking unsupervised contact with his infant daughter. The State opposed Hubbard’s 

motion, arguing that the trial court lacked jurisdiction to modify the sentence and that even if it 

had jurisdiction, unsupervised contact was inappropriate. The trial court concluded that it had 

the authority to modify community custody conditions under CrR 7.8(b)(5) and granted 

Hubbard’s motion to modify his community custody conditions to permit unsupervised contact 
No. 55584-1-II

3

with his children and grandchildren. The trial court’s modification order provided that if the 

State developed a reasonable suspicion that Hubbard poses a threat to community safety, 

including that of his children or grandchildren, it has the authority to immediately reinstate the 

no contact provisions or require that contact be supervised, subject to later review by the superior 

court. 

The State appeals the trial court’s order modifying Hubbard’s community custody 

conditions to allow unsupervised contact with Hubbard’s children and grandchildren. 

ANALYSIS

I. TIMELINESS

As an initial matter, the State argues that Hubbard’s motion is time barred. CrR 7.8(b) 

provides that a motion brought under CrR 7.8(b)(5) must be made “within a reasonable time.” 

Hubbard’s motion to modify satisfies this requirement. He brought his motion to modify three 

months prior to the birth of his child and renewed the motion six months after she was born. 

Given that the grounds justifying relief did not arise until Hubbard became a parent, Hubbard 

brought his motion “within a reasonable time” by filing it when the circumstance arose.

Our timeliness inquiry does not end with CrR 7.8, however. A CrR 7.8 motion “is further 

subject to RCW 10.73.090, .100, .130, and .140.” RCW 10.73.090 provides, “No petition or 

motion for collateral attack on a judgment and sentence in a criminal case may be filed more 

than one year after the judgment becomes final if the judgment and sentence is valid on its face 

and was rendered by a court of competent jurisdiction.” The time limit does not apply if the 
No. 55584-1-II

4

petition is based on one or more of the statutory exceptions identified in RCW 10.73.100, 

including newly discovered evidence uncovered with reasonable diligence.1 

In determining whether the exemption for newly discovered evidence has merit, we 

employ the same standard as that applicable to motions for a new trial based on newly 

discovered evidence. In re Pers. Restraint of Lord, 123 Wn.2d 296, 319-20, 868 P.2d 835 

(1994). Specifically, the evidence must (1) be such that it would probably change the result; (2) 

have been discovered since trial; (3) not have been discoverable before trial by the exercise of 

due diligence, (4) be material, and (5) not be merely cumulative or impeaching. Lord, 123 

Wn.2d at 320. “‘[N]ewly discovered evidence’ is grounds for relief in a personal restraint 

proceeding only if ‘[m]aterial facts exist which have not been previously presented and heard, 

which in the interest of justice require vacation of the conviction [or] sentence . . .’” In re Pers. 

Restraint of Jeffries, 114 Wn.2d 485, 493, 789 P.2d 731 (1990) (quoting RAP 16.4(c)(3)).

The newly discovered evidence here—Hubbard’s new status as a parent—meets this 

standard. Had Hubbard been a biological parent to a non-victim child at the time of sentencing, 

the trial court would have considered whether the community custody condition prohibiting all 

contact with minors was reasonably necessary balanced against Hubbard’s fundamental right to 

parent. It is undisputed that this evidence was discovered after trial and that it was not 

discoverable before trial, as Hubbard did not become a biological parent until 15 years later. 

 

1 The trial court did not grant Hubbard’s motion on the basis that it was timely under RCW 

10.73.100(1)’s newly discovered evidence exception. But we can affirm the superior court on 

any grounds supported by the record. State v. Streepy, 199 Wn. App. 487, 500, 400 P.3d 339 

(2017). 
No. 55584-1-II

5

Further, Hubbard’s new status as a biological parent is material to whether the community 

custody conditions are constitutional. And the new evidence is not cumulative nor impeaching. 

Moreover, the newly discovered evidence here—Hubbard’s new status as a parent—

requires modification of the sentence in the interest of justice. “[T]he right to the care, custody, 

and companionship of one’s children constitutes a fundamental constitutional right, so 

sentencing conditions burdening this right ‘must be sensitively imposed so that they are 

reasonably necessary to accomplish the essential needs of the State and public order.’” McGuire, 

12 Wn. App. 2d at 95 (quoting Rainey, 168 Wn.2d at 377 (internal quotations omitted)). In the 

15 years since his conviction, Hubbard has completed his prison sentence, completed sex 

offender treatment, obtained and maintained employment and housing, and re-married and had a 

child. He has not been charged with any additional offenses and has substantially complied with 

the terms of his community custody. 

Accordingly, because Hubbard’s motion is based upon newly discovered evidence, his 

CrR 7.8 motion is not time barred.

II. THE TRIAL COURT’S AUTHORITY

The State also argues that the trial court lacked authority to modify the conditions of 

Hubbard’s community custody. We disagree.

The superior court has authority, on motion and upon such terms as are just, to relieve a 

party from a final judgment for “‘[a]ny other reason justifying relief from the operation of the 

judgment.’” State v. Smith, 159 Wn. App. 694, 700, 247 P.3d 775 (2011) (alteration in original) 

(quoting CrR 7.8(b)(5)). Final judgments should be vacated or altered “only in those limited 

circumstances, “where the interests of justice most urgently require.” State v. Shove, 113 Wn.2d 
No. 55584-1-II

6

83, 88, 776 P.2d 132 (1989). “A violation of a fundamental constitutional right, such as the right 

to parent, would be a reason to justify relief.” State v. McGuire, 12 Wn. App. 2d 88, 94, 456 

P.3d 1193 (2020). “CrR 7.8(b)(5) will not apply when the circumstances used to justify the 

relief existed at the time the judgment was entered.” Smith, 159 Wn. App. at 700.

We review a trial court’s decision on a CrR 7.8(b)(5) motion for abuse of discretion. 

State v. Bratton, 193 Wn. App. 561, 563, 374 P.3d 178 (2016). “A trial court abuses its 

discretion when it bases its decisions on untenable or unreasonable grounds.” Bratton, 193 Wn. 

App. at 563.

The State contends that this case is nearly identical to our recent unpublished opinion in 

State v. Hoch.

2

 Hoch is instructive but easily distinguishable. There, Hoch appealed the trial 

court’s denial of his CrR 7.8 motion to modify the conditions of his community custody arguing 

that the prohibition against having contact with any minors violated his fundamental right to the 

care and companionship of his biological children. Hoch, No. 52256-0-II, slip op. at 1. We held 

that the trial court lacked the authority to modify the conditions of his custody because Hoch did 

not establish that the circumstances he used to justify relief did not exist at the time the judgment 

was entered. Hoch, No. 52256-0-II, slip op. at 8. Specifically, we noted that Hoch failed to 

show that his children did not exist or that he had no parental rights to protect at the time the 

judgment was entered. Hoch, No. 52256-0-II, slip op. at 8.

 

2

State v. Hoch, No. 52256-0-II (Wash. Ct. App. June 2, 2020), 

https://www.courts.wa.gov/opinions/pdf/D2%2052256-0-II%20Unpublished%20Opinion.pdf. 

Unpublished opinions filed on or after March 1, 2013, may be cited as persuasive authority per 

GR 14.1. 
No. 55584-1-II

7

Here, unlike in Hoch, it is well established that Hubbard did not have any biological 

children at the time the trial court entered his judgment and sentence in 2005. Hubbard had no 

parental rights to protect until the birth of his child in 2020. The facts of this case are more 

similar to McGuire, 12 Wn. App. 2d at 88. There, we held that McGuire was entitled to relief 

under CrR 7.8(b)(5) from a no contact order prohibiting him from contacting the mother of his 

child under any circumstances where the child had not yet been born when the no contact order 

was entered. McGuire, 12 Wn. App. 2d at 93-95. 

Because Hubbard’s argument to modify the community custody condition involved a 

fundamental constitutional right to parent, which did not exist at the time the judgment was 

entered, CrR 7.8(b)(5) applies, and the trial court had the authority to exercise its discretion. 

We affirm.

Worswick, J.

We concur:

Maxa, J.

Nevin, J. Pro Tempore*

 

*

Judge Nevin is now serving as a judge pro tempore of the court pursuant to RCW 2.06.150.