Opinion
No. 36147-7-II.
May 13, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 04-1-02146-6, James R. Orlando, J., entered March 2, 2007.
Affirmed by unpublished opinion per Van Deren, A.C.J., concurred in by Hunt and Penoyar, JJ.
Xavier Johnson appeals the revocation of his special sex offender sentencing alternative (SSOSA) sentence after two sexual deviancy counselors terminated his treatment because he was repeatedly dishonest and committed crimes. He claims that (1) the trial court violated his due process rights and abused its discretion when it revoked his SSOSA sentence and (2) his guilty plea was involuntary. We affirm.
FACTS
On July 27, 2004, Johnson pleaded guilty to two counts of second degree child rape. At his sentencing hearing, the State, Johnson, and Michael Comte, a sexual deviancy treatment provider, advocated for a SSOSA based partially on Johnson's developmental disability. Johnson and Comte asked the sentencing court to allow Johnson to live with his grandmother while he completed the program. But the community corrections officer (CCO), Marshall Gray, stated that Johnson's grandmother had previously supervised him without good results. He argued that SSOSA was inappropriate for Johnson due to the lack of funding for an assisted living placement for Johnson, which he believed would be critical to Johnson's successful completion of the program. The trial court (1) sentenced Johnson to 131 months to life confinement, (2) granted a SSOSA, (3) ordered Johnson to serve six months of the sentence in confinement, and (4) suspended the remainder subject to his successful completion of the SSOSA program, which included participation in treatment with a designated sexual deviancy treatment provider for a period of 36 months.
While Johnson was serving the suspended sentence in the community, the State moved to revoke Johnson's SSOSA five times. It detailed numerous concerns including that Johnson drove without a license or insurance, stayed at unapproved residences without permission, made important life decisions without permission, and tried to pay for his sexual deviancy treatment with two fraudulent checks. At the fifth hearing on the State's motion to revoke the SSOSA, the sentencing court revoked Johnson's SSOSA and reinstated his suspended sentence.
Johnson appeals.
ANALYSIS
I. SSOSA Revocation
Johnson contends that the trial court violated his due process rights and abused its discretion when it revoked his SSOSA. We disagree.
A. Due Process
Johnson argues that the trial court violated his due process rights to confront witnesses and receive a written ruling. We review alleged due process violations de novo. State v. Cantu, 156 Wn.2d 819, 831, 132 P.3d 725 (2006).
Sexual offenders facing SSOSA revocation have minimal due process rights, including the rights to "confront and cross-examine witnesses (unless there is a good cause for not allowing confrontation)" and to "a statement by the court as to the evidence relied upon and the reasons for the revocation." State v. Dahl, 139 Wn.2d 678, 683, 990 P.2d 396 (1999) (citing Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)). But the confrontation right in revocation hearings is "not an absolute right to be afforded in every instance." State v. Nelson, 103 Wn.2d 760, 763, 697 P.2d 579 (1985) (citing Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973)).
At Johnson's hearing, the prosecutor introduced the case and noted, "I do not know if the defense is stipulating to the violations or we need to have a violation hearing." 1 Report of Proceedings (RP) at 88. Johnson responded that he was "not going to be really challenging what was listed as the violations but [would] try to find a better placement." 1 RP at 88-89. The prosecutor read from the therapists' letters, the CCO and Johnson explained their viewpoints, and Johnson's attorney argued, but there was no formal testimony. Johnson did not object to the procedure or request live testimony.
In Nelson, our Supreme Court ruled that a "probationer may not sit by, without objection . . . and then on appeal for the first time claim lack of due process." 103 Wn.2d at 766-67. In that case, as in this, the defendant did not request live testimony at his revocation hearing and did not object when the prosecutor quoted from Page 4 therapists' notes, but on appeal argued denial of his due process right to confront and cross-examine witnesses. The Court held that "the probationer must bear some responsibility for the orderly administration of the process" and affirmed the conviction on waiver grounds. Nelson, 103 Wn.2d at 766. Likewise, Johnson waived this appeal by failing to invoke his rights at the trial court.
Furthermore, the trial court did not violate Johnson's right to "a statement by the court as to the evidence relied upon and the reasons for the revocation" simply because it did not issue a written decision. Dahl, 139 Wn.2d at 683 (citing Morrissey, 408 U.S. 471). A trial court may satisfy the requirement through an oral ruling, as long as it is sufficiently detailed to allow judicial review. Dahl, 139 Wn.2d at 689. Here, the trial court ruled orally:
Well, as you can see by the discussion with Mr. Johnson, I think still he doesn't have a real good grasp on the underlying problem, and that is he doesn't have a treatment provider that will treat him in the community, and without that, I can't keep him out in the community in a SSOSA disposition.
. . . .
When the case was coming forward for purposes of plea and sentencing, the alternatives were to deny the SSOSA and send Mr. Johnson to DOC for minimum I think of 131 months and maximum to life. An attempt was made to see if he could do SSOSA treatment. Previous CCO also devoted a lot of time and energy in trying to keep Mr. Johnson in a residence that was approved, to keep him in treatment. That was not successful.
This case actually started, the underlying offense in this case started, with him living in an apartment complex that was set up for folks with his disabilities. The victim in this case was in that same complex and that's how he ended up having a relationship with her.
The program that's been described, the community protection program certainly may be an option, but it doesn't sound like it's something I can refer him to or order him into; it's got to be something where he is placed. And he may be placed there by DOC as a condition of his sentence ultimately.
But I think without a current treatment program in place, I have no options other than to revoke the SSOSA sentence that was imposed and sentence him to the Department of Corrections.
1 RP at 102-04. This oral ruling is sufficiently detailed for judicial review and it describes the evidence the trial court relied upon and the reasons for the revocation.
B. Discretionary Ruling
Next, Johnson contends that the trial court abused its discretion when it revoked his SSOSA. We review a trial court's decision to revoke a SSOSA for an abuse of discretion. State v. Badger, 64 Wn. App. 904, 908-09, 827 P.2d 318 (1992). A trial court abuses its discretion "'when [its] decision is manifestly unreasonable, or is exercised on untenable grounds, or for untenable reasons.'" State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003) (quoting State v. Blackwell, 120 Wn.2d 822, 830, 845 P.2d 1017 (1993)). A trial court may revoke a SSOSA at any time "if [it] is reasonably satisfied that an offender has violated a condition of his suspended sentence." Dahl, 139 Wn.2d at 683. After revoking a SSOSA, a sentencing court reinstates the suspended sentence. RCW 9.94A.670(10).
Johnson agreed to comply with the following conditions while under a SSOSA in the community:
10. Reside at a residence and under living arrangements approved of in advance by your community corrections officer. You shall not change your residence without first obtaining the authorization of you[r] community corrections officer.
11. Enter and complete a state approved sexual deviancy treatment program through a certified sexual deviancy counselor [and]
. . . .
23. Follow all conditions imposed by your sexual deviancy treatment provider.
Clerk's Papers (CP) at 38-39.
Patricia Crockett, Johnson's first sexual deviancy counselor, terminated his SSOSA treatment because he persistently failed to comply with account management and tried to pay for treatment with fraudulent checks. Johnson's next sexual deviancy counselor, Mark Whitehill, also terminated treatment because Johnson: (1) deliberately misrepresented his living situation, (2) failed to register as a sex offender — a crime to which Johnson pleaded guilty, (3) operated a vehicle without a license or insurance, (4) asked his landlord to lie to his CCO about where he lived, and (5) was delinquent in rent. This behavior violated Dr. Whitehill's requirements that Johnson be honest, not commit crimes, and inform Whitehill's office about where he actually resided. This evidence demonstrates that Johnson failed to "[f]ollow all conditions imposed by [his] sexual deviancy treatment provider" and violated his SSOSA conditions. CP at 39.
The sentencing court concluded that Johnson's "[p]revious CCO also devoted a lot of time and energy in trying to keep Mr. Johnson in a residence that was approved, to keep him in treatment. That was not successful." 1 RP at 103. Furthermore, the court found that Johnson "doesn't have a treatment provider that will treat him in the community, and without that, I can't keep him out in the community in a SSOSA disposition." 1 RP at 102-03.
Johnson does not explain how the sentencing court's decision was manifestly unreasonable or based on untenable grounds in light of the evidence. We hold that the court did not abuse its discretion when it revoked Johnson's SSOSA and reinstated his suspended sentence.
II. Guilty Plea
Finally, Johnson argues that his guilty plea was involuntary because "he did not understand or was misinformed that for all intents and purposes he would be unable to successfully complete a SSOSA sentence unless he was provided with assisted living that offered round the clock supervision and care." Br. of Appellant at 20. Johnson did not move to withdraw his guilty plea at the trial court. We held in State v. Knotek:
Generally, a defendant waives any issues he did not raise in the trial court. RAP 2.5; State v. Smith, 155 Wn.2d 496, 501, 120 P.3d 559 (2005). Nonetheless, a defendant can raise for the first time on appeal alleged manifest errors significantly affecting constitutional rights. RAP 2.5(a)(3); State v. Scott, 110 Wn.2d 682, 686-87, 757 P.2d 492 (1988). Alleged involuntariness of a guilty plea is the type of constitutional error that a defendant can raise for the first time on appeal. See State v. Walsh, 143 Wn.2d 1, 6, 17 P.3d 591 (2001). '[W]hen an adequate record exists, the appellate court may carry out its long-standing duty to assure constitutionally adequate trials by engaging in review of manifest constitutional errors raised for the first time on appeal.' State v. Contreras, 92 Wn. App. 307, 313, 966 P.2d 915 (1998).
State v. Knotek, 136 Wn. App. 412, 422-423, 149 P.3d 676 (2006). Here, the record is adequate for us to review this issue. Johnson's sentence did not require that he reside in assisted living and there is no other evidence that assisted living was a court-imposed requirement for him to successfully complete his SSOSA. The State's failure to provide supervised assisted living did not form the basis for the trial court's revocation of his SSOSA and the reinstatement of his suspended sentence. Rather, Johnson's violations of conditions 10, 11, and 23 of his SSOSA, plus his failure to inform his treatment provider of his actual residence address, his repeatedly lying and breaking of the law led to the revocation of his SSOSA.
We affirm.
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 pursuant to RCW 2.06.040, it is so ordered.
Hunt, J. and Penoyar, J., concur.