September 18, 2008.
Appeal from a judgment of the Superior Court for Spokane County, No. 06-1-04572-7, Linda G. Tompkins, J., entered May 9, 2007.
Based on his failure to make himself available to the Department of Corrections (DOC), Freddie L. Franklin was charged and convicted of escape from community custody. He appeals, contending RCW 72.09.310, the charging statute, is void for vagueness and violates equal protection. We disagree, and affirm.
While on community custody, Mr. Franklin violated his supervision terms by not reporting to the DOC on at least six occasions. After the last failure to report, the State charged Mr. Franklin with escape from community custody under RCW 72.09.310.
Mr. Franklin is an African American. Defense counsel reviewed a list of cases involving RCW 72.09.310 violations. Counsel argued "this charge is most often filed against minority defendants." Clerk's Papers (CP) at 4. Since February 1, 2005, the Spokane County Prosecutor's office has filed escape from community custody charges in 53 cases, of which 36 of the defendants were minorities. Approximately 83 percent of RCW 72.09.310 charges in the last two years were filed by gang unit prosecutors. Spokane County's general population is 92 percent Caucasian.
Mr. Franklin unsuccessfully requested dismissal of the escape charge, arguing RCW 72.09.310 violated equal protection and was void for vagueness. Following a bench trial, the court convicted Mr. Franklin as charged. He appealed.
The issue is whether the trial court erred by abusing its discretion in denying Mr. Franklin's motion to dismiss and rejecting his constitutionality claims. He contends RCW 72.09.310 is void for vagueness and the statute's administration violates his state and federal equal protection rights. We review de novo orders on statutory constitutionality. State v. Blilie, 132 Wn.2d 484, 489, 939 P.3d 691 (1997).
We review a trial court's ruling on a motion to dismiss for manifest abuse of discretion. State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003). An abuse of discretion occurs when the trial court's decision "`[was] manifestly unreasonable, or is exercised on untenable grounds or for untenable reasons.'" State v. Michielli, 132 Wn.2d 229, 240, 937 P.2d 587 (1997) (quoting State v. Blackwell, 120 Wn.2d 822, 830, 845 P.2d 1017 (1993)).
A. Vagueness. RCW 72.09.310 prohibits two acts; it is violated by a defendant "who willfully discontinues making himself or herself available to the department for supervision by making his or her whereabouts unknown or by failing to maintain contact with the department as directed by the community corrections officer." (Emphasis added.)
The due process vagueness doctrine seeks to ensure that the public has adequate notice of what conduct is proscribed and to ensure that the public is protected from arbitrary enforcement. State v. Riles, 135 Wn.2d 326, 348, 957 P.2d 655 (1998). The vagueness doctrine is violated if the provision (1) fails to define the criminal offense so that ordinary people can understand what conduct is proscribed, and (2) fails to provide ascertainable standards of guilt to prevent arbitrary enforcement. City of Spokane v. Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990). Mr. Franklin carries the burden of overcoming the presumption that the limitation is constitutional. Id. at 177.
Mr. Franklin argues it is unclear whether the mens rea "willful" applies to both alternatives. He argues the legislature failed to define "maintain contact" and "discontinues to make himself or herself available." RCW 72.09.310.
First, "case law has engrafted a culpability element, the prosecution must show the defendant ` knew that his actions would result in leaving confinement without permission.'" State v. Hall, 104 Wn.2d 486, 492, 706 P.2d 1074 (1985) (quoting State v. Descoteaux, 94 Wn.2d 31, 35, 614 P.2d 179 (1980), overruled on other grounds by State v. Danforth, 97 Wn.2d 255, 643 P.2d 882 (1982)) (emphasis in original) (regarding RCW 9A.76.110 — first degree escape). Similarly, under RCW 72.09.310, the State is required to prove that an individual willfully discontinued making himself available to the DOC by making his whereabouts unknown or by willfully failing to maintain contact with his Community Corrections Officer (CCO). The statute is not unconstitutionally vague on this point.
Second, a statute is unconstitutionally vague if it fails to define the criminal offense so that ordinary people can understand what conduct is proscribed. The requirements to maintain contact with DOC and to make yourself available to your CCO are clear mandates. Since the proscribed conduct is understandable to an ordinary person, we do not reach Mr. Franklin's arbitrary enforcement argument. See Douglass, 115 Wn.2d at 178 (vagueness doctrine requires both a failure to define and failure to prevent arbitrary enforcement).
B. Equal Protection. Mr. Franklin contends Spokane County's application of RCW 72.09.310 violates equal protection, essentially making a selective prosecution claim. To establish a selective prosecution claim drawing on equal protection standards, the claimant must demonstrate that the prosecutorial policy "`had a discriminatory effect and that it was motivated by a discriminatory purpose.'" United States v. Armstrong, 517 U.S. 456, 465, 116 S. Ct. 1480, 134 L. Ed. 2d 687 (1996) (quoting Waute v. United States, 470 U.S. 598, 608, 105 S. Ct. 84 L. Ed. 2d 547 (1985)). The discriminatory effect prong requires plaintiffs to prove that they are members of a protected class treated differently from otherwise similarly situated members of an unprotected class. State v. Terrovonia, 64 Wn. App. 417, 422, 824 P.2d 537 (1992).
The Armstrong court then discussed the necessary showing required to obtain discovery in support of the claim. Armstrong, 517 U.S. at 468. The court concluded that to obtain discovery, the defendant must produce some evidence that similarly situated defendants of other races could have been prosecuted, but were not. Armstrong, 517 U.S. at 469. Mr. Franklin fails to meet this burden. While Mr. Franklin has produced statistics of individuals charged with escape from community custody, he does not show evidence that similarly situated white escapees are not being prosecuted. Therefore, his claim fails. The trial court did not err in denying his motion to dismiss.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
KULIK, A.C.J. and SWEENEY, J., concur.