State Of Washington, Respondent V Nicholas Alan Harkey, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 47061-6-II
Respondent,
UNPUBLISHED OPINION
v.
NICHOLAS A. HARKEY,
Appellant.
SUTTON, J. — Nicholas A. Harkey appeals his conviction resulting from his guilty plea to
one count of rape of a child in the second degree. Harkey argues that his plea was not knowing,
voluntary, or intelligent because the trial court did not inform him that he could be held beyond
the minimum term and did not confirm that he understood the sentencing consequences. Harkey
also argues that the lifetime community custody condition that prohibits him from having contact
with minor children interferes with his fundamental constitutional right to parent his biological
children who are teenagers and were not victims of his crime. We hold that Harkey’s plea was
voluntary, knowing, and intelligent and we reverse and remand to the sentencing court to
reconsider the community custody condition.
FACTS
In 2003, Harkey, then age 23, had sexual intercourse with the victim, who was 12 years
old at the time. In March 2004, Harkey was charged with three counts of rape of a child in the
second degree.
Filed
Washington State
Court of Appeals
Division Two
August 9, 2016

No. 47061-6-II
2
The State offered to reduce the charge to one count of second degree child rape if he pled
guilty, making him eligible for a Special Sex Offender Sentencing Alternative (SSOSA).1 The
plea agreement listed the minimum standard range sentence of “86-114 months” and the maximum
term sentence of “life,” based on an offender score of one. Clerk’s Papers (CP) at 14. The plea
agreement also stated that if “additional criminal history [was] discovered prior to sentencing,
[Harkey] stipulates to the higher standard ranges and the alteration to this recommendation.”
CP at 18.
On June 11, 2004, Harkey appeared before the trial court to enter a guilty plea. The trial
court reviewed the standard sentencing range, including “a maximum sentence of life
imprisonment and a $20,000.00 fine.” Verbatim Report of Proceedings (VRP) (June 11, 2004)
at 5. The trial court also stated that “the standard range for actual confinement is between 86 to
114 months” and requires “lifetime probation.” VRP (June 11, 2004) at 5. The trial court held the
following colloquy:
The Court: Now, under this type of sentence, I would sentence you to life
with a request for a minimum period of time to be served. It’s up to the review
board, the sentencing board, in order to indicate what sentence you would actually
receive, but they would take into consideration my recommendation with regard to
the minimum amount.
As indicated, you may or may not qualify for the [SSOSA] requirement.
And you understand what that means? Okay. And with regard to [SSOSA], if you
fail to comply with that, you would be sentenced, you’d be brought back and be
resentenced and that would be toward the maximum of this range; do you
understand that? Okay.
Knowing all these rights that you’re giving up, which includes the right to
an appeal, knowing the consequences you face with regard to the requirements, the
fines, and the sentence, knowing all of those consequences that you face, do you
still wish to plead guilty to this charge at this time?
1 SSOSA provides offenders who plead guilty to non-violent sex crimes alternative sentencing
under RCW 9.94A.670.

No. 47061-6-II
3
Mr. Harkey: Okay.
The Court: You have to tell me that you wish to plead guilty. Do you wish
to plead guilty?
Well, I’m seeing a great deal of reluctance on this, and I don’t understand
whether it’s because you’re uncertain about that, uncertain about the consequences,
but I’m reluctant to take a plea unless I have a firm acknowledgement that he’s
going to wish to plead guilty at this time.
[Defense Counsel]: Your Honor, I just—I think Mr. Harkey is
understanding of the process and the consequences and his options. I think
throughout this he has had a very emotional response to just about every phase of
this situation, and I think that’s what he’s dealing with at this point. I’m not sure
an additional amount of time would help, but
I mean, is this something that you’d like to do, Nick? We can do it. If not—
Mr. Harkey: I’m having an anxiety attack now.
[Defense Counsel]: Okay.
The Court: Why don’t you take a break.
VRP (June 11, 2004) at 8-9. The proceeding was continued.
On June 14, Harkey appeared again before the trial court and entered a plea of guilty. The
trial court confirmed that Harkey had no difficulty reading or writing and again discussed the
sentencing range with him.
The Court: You do have the right to a trial by a jury, right to remain silent,
presumption of innocence, the right to confront witnesses that testify against you,
and also the right to an appeal. By pleading guilty you give up all those rights. Do
you understand that?
MR. HARKEY: Yes.
The Court: That includes the right to an appeal. Right?
Mr. Harkey: Yes.

No. 47061-6-II
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The Court: Okay. We talked about the maximum term you face, which is
life, with maximum of life probation, standard range for actual confinement is
between 86 to 114 months. Prosecution has made a recommendation. You’re
familiar with that.
Mr. Harkey: (No audible response.)
The Court: We talked about also the lifetime requirement to register as a
sex offender. Loss of the right to public assistance while in custody. The right to a
[SSOSA] evaluation. And the sentencing board would determine the actual length
of the sentence. Do you recall all those consequences?
Mr. Harkey: Yes.
The Court: Okay. Now, knowing all these rights that are being waived and
the consequences that you face, at this time do you wish to plead guilty to the charge
of Rape of a Child in the Second Degree?
Mr. Harkey: Yes.
The Court: You’re making this decision to plead guilty freely and
voluntarily?
Mr. Harkey: Yes.
The Court: Has there been any threats against you or any promises to you
to force you to do this?
Mr. Harkey: No.
VRP (June 14, 2004) at 1-3.
Harkey submitted, and the trial court filed, the guilty plea statement, which listed the
standard sentencing range and then read “[t]otal [a]ctual [c]onfinement” as “86-114 [months]” and
the maximum term as “life.”2 CP at 8. The guilty plea statement had been corrected to list the
2 RCW 9.94A.507(3) requires the sentencing court to impose both a minimum sentence and a
maximum life sentence, the statutory maximum for the crime of second degree child rape. RCW
9.94A.507 was previously codified as RCW 9.94A.712 and has been amended since the events of
this case transpired, however, these amendments do not impact the statutory language relied on by
this court, therefore we cite to the current version of this statute. Laws of 2008 ch. 231 §§ 33, 56.

No. 47061-6-II
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community custody range as “[l]ife” and was initialed by the trial court judge. CP at 8. Harkey
signed the guilty plea statement, which contained the following clauses:
(d) If I am convicted of any new crimes before sentencing, or if any additional
criminal history is discovered, both the standard sentence range and the
prosecuting attorney’s recommendation may increase. Even so, my plea of
guilty to this charge is binding on me. I cannot change my mind if
additional criminal history is discovered even though the standard
sentencing range and the prosecuting attorney’s recommendation increase
or a mandatory sentence of life imprisonment without the possibility of
parole is required by law.
. . . .
(f) For sex offenses committed on or after September 1. 2001.
(i) Sentencing under RCW 9.94A.712: If this offense is for [rape of a child in the
second degree committed when the defendant was at least 18 years old], the judge
will impose a maximum term of confinement consisting of the statutory maximum
sentence of the offense and a minimum term of confinement either within the
standard range for the offense or outside the standard range if an exceptional
sentence is appropriate. The minimum term of confinement that is imposed may
be increased by the Indeterminate Sentence Review Board if the Board determines
by a preponderance of the evidence that it is more likely than not that I will commit
sex offenses if released from custody.
CP at 8-9 (emphasis added). Defense counsel signed on the last page of the statement: “I have
read and discussed this statement with the defendant and believe that the defendant is competent
and fully understands the statement.” CP at 13. Additionally, the trial court’s signature appears
at the bottom of the statement of defendant: “The foregoing statement was signed by the defendant
in open court in the presence of the defendant’s lawyer and the undersigned judge. The defendant
asserted that . . . [t]he defendant had previously read the entire statement above and that the
defendant understood it in full.” CP at 13.
Harkey appeared before the trial court for sentencing on October 18. The parties stipulated
that Harkey had prior criminal convictions that increased his offender score to three and increased

No. 47061-6-II
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the standard range of the sentence to 102-136 months.3 The trial court sentenced Mr. Harkey to a
“minimum term” of 110 months and a “maximum term” of “life.” CP at 48. The trial court also
imposed a lifetime community custody condition that Harkey “shall not have any contact with
minors” under the age of 18, from the time he is released from confinement. CP at 51, 53. Harkey
appealed.
ANALYSIS
I. GUILTY PLEA
Harkey argues that his plea was not knowing, voluntary, or intelligent because the trial
court did not inform him that he could be held beyond the minimum term, the trial court did not
confirm that he understood the specific sentencing consequences, and the plea documents advised
that he would receive a range of actual confinement of 86-114 months. We disagree.
A guilty plea must be made “voluntarily, competently and with an understanding of the
nature of the charge and the consequences of the plea.” CrR 4.2(d);4 State v. Robinson, 172 Wn.2d
783, 790, 263 P.3d 1233 (2011). “A defendant does not knowingly plead guilty when he bases
that plea on misinformation regarding sentencing consequences.” Robinson, 172 Wn.2d at 790.
The court shall not accept a plea of guilty, without first determining that it is made voluntarily,
competently and with an understanding of the nature of the charge and the consequences of the
3 Harkey had previously been convicted of burglary (.5 points) and malicious mischief (.5 points),
and had two previous convictions of manufacture/deliver/possession of marijuana as both a
juvenile and an adult (.5 and 1.0 points, respectively).
4 CrR 4.2(d) provides in its entirety that “[t]he court shall not accept a plea of guilty, without first
determining that it is made voluntarily, competently and with an understanding of the nature of the
charge and the consequences of the plea. The court shall not enter a judgment upon a plea of guilty
unless it is satisfied that there is a factual basis for the plea.”

No. 47061-6-II
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plea. CrR 4.2(d). The record must affirmatively disclose that a criminal defendant’s plea of guilty
was made “‘intelligently and voluntarily, with an understanding of the full consequences of such
a plea.’” State v. Johnson, 104 Wn.2d 338, 340, 705 P.2d 773 (1985) (internal quotation marks
omitted) (quoting State v. Barton, 93 Wn.2d 301, 304, 609 P.2d 1353 (1980).).
“A defendant need not be informed of all possible consequences of a plea but rather only
direct consequences.” State v. Ross, 129 Wn.2d 279, 284, 916 P.2d 405 (1996). “The length of a
sentence is a direct consequence of a guilty plea because it represents ‘a definite, immediate and
largely automatic effect on [a] defendant’s punishment.’” State v. Smith, 137 Wn. App. 431, 437,
153 P.3d 898 (2007) (internal quotation marks omitted) (quoting State v. Mendoza, 157 Wn.2d
582, 588, 141 P.3d 49 (2006)). Knowledge of the direct consequences of the plea can be satisfied
by the plea documents. State v. Codiga, 162 Wn.2d 912, 923, 175 P.3d 1082 (2008). A trial judge
may rely on the written plea agreement where the defendant told the trial court he had read the
agreement and that the statements were truthful; the judge does not need to orally question the
defendant to ascertain whether he or she understands the consequences of the plea. Codiga, 162
Wn.2d at 923.
Harkey signed the guilty plea statement which stated that the standard sentencing range
may increase if any additional criminal history is discovered, that the minimum term of
confinement imposed may be increased by the Indeterminate Sentence Review Board (ISRB), and
that the judge did not have to follow anyone’s recommendation as to the sentence. Additionally,
Harkey signed the statement acknowledging that he fully understood the statement and did not
have any further questions for the trial court. Defense counsel signed it stating that he had
discussed the statement with Harkey and believed him to fully understand it, and the sentencing

No. 47061-6-II
8
court judge signed the statement acknowledging that Harkey asserted that he had previously read
the entire statement and understood it in full.
At the June 11 hearing, the trial court clearly stated that it was free to make its own decision
regarding sentencing, was not required to follow any recommendations, and that the actual term
of the sentence was up to the ISRB. Again at the June 14 hearing, the trial court again clearly
stated, “[T]he maximum term [Harkey] faced [was] life, with maximum of life probation, standard
range for actual confinement is between 86 to 114 months.” VRP (June 14, 2004) at 2 (emphasis
added).
Harkey argues that his plea was involuntary because he was not informed that the sentence
within the standard range would only represent the minimum, and relies on In re Personal
Restraint of Murillo to support his position. 134 Wn. App. 521, 142 P.3d 615 (2006). In Murillo,
the court held that the plea agreement was inconclusive as to which sentencing statute was
contemplated. 134 Wn. App. at 536. Additionally, the Murillo court held that the parties did not
agree on what was intended under the agreement. 134 Wn. App. at 536. The sentencing court in
Murillo wrote down the minimum sentence of 59.5 months in the area designated for crimes
sentenced under RCW 9.94A.589 instead of the section specific to sentencing of sex offenders,
which was left blank. 134 Wn. App. at 527. The Department of Corrections staff noticed the error
and asked that Murillo be resentenced, after which the amended sentence listed the original
minimum sentence of 59.5 months and “life” as the maximum sentence. Murillo, 134 Wn. App.
at 529.

No. 47061-6-II
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Harkey provides no argument that the plea agreement was inconclusive as to which
sentencing statute was contemplated, that there was disagreement as to what was intended, or that
the judgment and sentence was incorrect. Unlike Murillo, the judgment and sentencing order
clearly states 110 months “minimum term” and “life” as the “maximum term.” CP at 50.
Although Harkey is correct that the plea documents listed a standard range of 86-114
months, the plea agreement clearly stated that if “additional criminal history [was] discovered prior
to sentencing, [Harkey] stipulates to the higher standard ranges and the alteration to this
recommendation.” CP at 18. Harkey also stipulated that he had prior criminal convictions that
increased his offender score to three and increased the standard range of the sentence to 102-136
months.
Therefore, we hold that Harkey’s plea was knowing, intelligent, and voluntary when the
plea documents advised that the standard sentencing range may increase upon discovery of
additional criminal history and the court informed him that he could be held beyond the minimum
term.
II. CONDITIONS OF SENTENCE
Harkey argues that the lifetime community custody condition that provides that he “shall
not have any contact with minors” interferes with his fundamental constitutional right to parent.
Br. of Appellant at 19; CP at 53. We agree.

No. 47061-6-II
10
The Sentencing Reform Act of 1981 authorizes the trial court to impose crime-related
prohibitions. RCW 9.94A.505(8). Crime-related prohibitions are orders directly related to the
circumstances of the crime and are reviewed for abuse of discretion. Former RCW 9.94A.030(12)
(2003);5 State v. Warren, 165 Wn.2d 17, 32, 195 P.3d 940 (2008). We review sentencing
conditions which interfere with a fundamental constitutional right more carefully. Warren, 165
Wn.2d at 32.
“Parents have a fundamental liberty interest in the care, custody, and control of their
children.” State v. Ancira, 107 Wn. App. 650, 653, 27 P.3d 1246 (2001). The State has a
compelling interest in preventing harm to children and, therefore, has an obligation to intervene
and protect a child when a parent’s “‘actions or decisions seriously conflict with the physical or
mental health of the child.’” Ancira, 107 Wn. App. at 653-54 (quoting In re Welfare of Sumey, 94
Wn.2d 757, 762, 621 P.2d 108 (1980)). But limitations on fundamental rights are constitutional
only if they are reasonably necessary to accomplish the essential needs of the state. Ancira, 107
Wn. App. at 654. Conditions that interfere with fundamental rights must be reasonably necessary
in both scope and duration to accomplish the essential needs of the state and public order. Warren,
165 Wn.2d at 32; In re Pers. Restraint of Rainey, 168 Wn.2d 367, 377-82, 229 P.3d 686 (2010).
In Rainey, the court held that the scope of the no-contact order prohibiting Rainey from
having any contact with his daughter after he kidnapped her did not violate Rainey’s fundamental
constitutional right to parent because it was reasonably necessary to protect the daughter and her
mother from violence. 168 Wn.2d at 382. However, the court also held that the sentencing court
5 Former RCW 9.94A.030(12) has been amended to RCW 9.94A.030(10) since the events of this
case transpired. See Laws of 2016, ch. 81, § 16; Laws of 2008, ch. 231, § 23; Laws of 2005, ch.
436, § 1.

No. 47061-6-II
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did not articulate any reasonable necessity for the lifetime duration of no-contact order. Rainey,
168 Wn.2d at 382. The Rainey court struck the no-contact order and remanded for resentencing,
so that the sentencing court could address the parameters of the no-contact order. 168 Wn.2d
at 382.
In State v. Letourneau, the defendant was sentenced for second degree rape of a child.
100 Wn. App. 424, 997 P.2d 436 (2000). The court held that a condition prohibiting Letourneau
from unsupervised in-person contact with her biological minor children was not reasonably
necessary to prevent her from sexually molesting them, because there was no evidence that she
was a pedophile or posed a danger of molesting her children. 100 Wn. App. at 439. The
Letourneau court struck the condition. 100 Wn. App. at 444.
Here, Harkey’s condition of sentence does not allow for any contact with minor children,
including his own biological children, for the duration of his lifetime community custody.
Harkey’s biological children are teenagers and were not victims of his crime. The sentencing court
did not articulate any reasonable necessity for the broad scope or lifetime duration of this condition.
Thus, we reverse and remand to the sentencing court to reconsider the community custody
provision consistent with this opinion.
CONCLUSION
We hold that Harkey’s plea was knowing, intelligent, and voluntary when the plea
documents advised that the standard sentencing range may increase upon discovery of additional
criminal history and the court informed him that he could be held beyond the minimum term. We
also hold that Harkey’s lifetime community custody condition prohibiting contact with minor

No. 47061-6-II
12
children interferes with his fundamental constitutional right to parent, and we reverse and remand
to the sentencing court to reconsider this condition consistent with this opinion.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
SUTTON, J.
We concur:
JOHANSON, P.J.
MELNICK, J.