Opinion
No. 35736-4-II.
May 6, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 04-1-00005-1, Beverly G. Grant, J., entered December 12, 2006.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Bridgewater, J., concurred in by Van Deren, A.C.J., and Armstrong, J.
Derrick Lee Boyd appeals the trial court's revocation of his Special Sex Offender Sentencing Alternative (SSOSA). We hold that the trial court applied the correct burden of proof, mandated by our Supreme Court, by being reasonably satisfied of a violation. We also hold that Boyd waived his right to notice of the violations by failing to object. But we remand for resentencing, agreeing with the State's concession that Boyd's offender score was incorrectly calculated. Accordingly, we affirm the revocation of the SSOSA, but we vacate the sentence for his convictions and remand for resentencing.
FACTS
In September 2004, Boyd pleaded guilty to two counts of first degree child molestation and one count of third degree assault of a child. In exchange for his plea, Boyd received a SSOSA. Based on an offender score of seven for each of the molestation counts, the trial court sentenced Boyd to two concurrent sentences of 131 months for the molestation counts and 6 months for the assault. As part of his SSOSA, Boyd agreed, among other things, to avoid contact with minors, to not consume alcohol, and to refrain from entering into romantic relationships without his treatment provider's permission. On September 14, 2006, Sherry Aalborg, Boyd's community corrections officer, filed a notice of violation with the court. The trial court then held a SSOSA revocation hearing on November 30, 2006.
Aalborg testified that on September 13, 2006, Boyd disclosed to her that he had (1) begun a romantic relationship with a woman who had minor children; (2) visited the woman while her children were home, had seen them but had not had contact with them; and (3) visited with adults who consumed alcohol but denied consuming any alcohol himself. Aalborg testified that Boyd knew that his judgment and sentence prohibited contact with minors. Additionally, Aalborg stated that through her written agreement with Boyd, he knew that "contact" included proximity contact. RP (Nov. 30, 2006) at 29. Aalborg then recommended revoking Boyd's SSOSA.
Vincent Gollogly, Boyd's sex offender treatment provider, also testified. He stated that Boyd had previously admitted that he had started a relationship with the woman in question but that he terminated the relationship when Gollogly told him to do so. Boyd did not testify.
Based on the testimony at the revocation hearing, the trial court revoked Boyd's SSOSA, finding that he violated his SSOSA conditions by (1) having proximity contact with minor children and (2) failing to request permission to enter into a relationship with a woman who had minor children. The trial court did not find a violation of the prohibition on alcohol consumption. The trial court ordered Boyd to serve 125 months of his 131-month sentence with 306 days' credit for time served.
ANALYSIS I. Burden of Proof A. Due Process
Boyd argues that due process requires that the trial court find by a preponderance of the evidence, instead of by a reasonable belief, that he violated the conditions of his SSOSA.
A trial court may impose a SSOSA, which suspends the sentence for a first time sex offender, if the offender is proven amenable to treatment. RCW 9.94A.670(2)(a), (b), (3); State v. Dahl, 139 Wn.2d 678, 682, 990 P.2d 396 (1999). The trial court may revoke a SSOSA at any time if it reasonably believes that an offender has violated a sentencing condition or has failed to make progress in treatment. RCW 9.94A.670(10); Dahl, 139 Wn.2d at 683. We will not disturb the revocation of a suspended sentence absent an abuse of discretion. State v. Badger, 64 Wn. App. 904, 908, 827 P.2d 318 (1992).
Due process requires a hearing before revoking community custody. Morrissey v. Brewer, 408 U.S. 471, 487-88, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972); In re Pers. Restraint of McNeal, 99 Wn. App. 617, 630, 994 P.2d 890 (2000). A revocation hearing, however, does not require "a full-blown criminal prosecution because society has already been put to the burden of proving beyond a reasonable doubt that [the] defendant was guilty of the crime." State v. Canfield, 154 Wn.2d 698, 706, 116 P.3d 391 (2005) (citing State v. Johnson, 9 Wn. App. 766, 772, 514 P.2d 1073 (1973), review denied, 83 Wn.2d 1006 (1974)); see also Morrissey, 408 U.S. at 483 (holding that the State has an "overwhelming interest" in revoking parole without the burden of a new criminal trial).
During a revocation hearing, then, a defendant is afforded only minimal due process protections, particularly: (a) written notice of the claimed violations of parole, (b) disclosure of evidence against him, (c) an opportunity to be heard in person and to present witnesses and documentary evidence, (d) the right to confront and cross-examine adverse witnesses, (e) a neutral and detached hearing body, and (f) a written statement by the fact finder as to the evidence relied on and reasons for revoking community custody. Morrissey, 408 U.S. at 489; State v. Abd-Rahmaan, 154 Wn.2d 280, 285-86, 111 P.3d 1157 (2005); see also Dahl, 139 Wn.2d at 683 (holding that Morrissey due process requirements apply to SSOSA revocation hearings). The purpose of these requirements is to ensure that the finding of a violation is based on verified facts. Morrissey, 408 U.S. at 484.
Boyd argues that because the Morrissey due process requirements seek to ensure that the revocation is based on verified facts, this requires a finding of the violation by a preponderance of the evidence. Boyd asserts that facts are only verified when proven to be more likely true than false.
But the Morrissey court never addressed burden of proof. Instead, the Morrissey court limited its analysis to "deciding the minimum requirements of due process" and required only the six protections enumerated above. Morrissey, 408 U.S. at 488-89. The only mention of burden of proof in Morrissey was that the State had an interest in "return[ing] the individual to imprisonment without the burden of a new adversary criminal trial." Morrissey, 408 U.S. at 483. Morrissey does not require a specific burden of proof, then, but something less than beyond a reasonable doubt. Absent specific language directing a particular burden of proof, this court adheres to our own state precedent.
The Washington Supreme Court has long held that the State need not prove sentence violations beyond a reasonable doubt but must only "reasonably satisf[y]" the trial court that the violation of a condition occurred. Dahl, 139 Wn.2d at 683 (decided after Morrissey); State v. Hultman, 92 Wn.2d 736, 745, 600 P.2d 1291 (1979); State v. Kuhn, 81 Wn.2d 648, 650, 503 P.2d 1061 (1972); State v. Shannon, 60 Wn.2d 883, 889, 376 P.2d 646 (1962), overruled on other grounds by Mempa v. Rhay, 68 Wn.2d 882, 416 P.2d 104 (1966); see also Badger, 64 Wn. App. at 908.
Boyd also argues that Washington decisions using the "reasonably-satisfied" standard did so "without the benefit of any analysis of the burden of proof required by Morrissey." Br. of Appellant at 11. As stated above Morrissey does not have a burden of proof analysis. Additionally, the most recent Washington Supreme Court case using the reasonably satisfied standard also incorporates the due process requirements enumerated in Morrissey. Dahl, 139 Wn.2d at 683. See also Badger, 64 Wn. App. at 907. Thus, there is no evidence that the decisions failed to properly consider the Morrissey requirements.
We are constrained to hold that the lower court used the proper burden of proof and did not abuse its discretion in revoking Boyd's SSOSA sentence.
B. Equal Protection
Boyd also argues that due process requires that the trial court find his violation by a preponderance of the evidence because that is the burden used in Drug Offender Sentence Alternative revocations and by the Department of Corrections in revoking community custody. He argues that there is "no logical basis" for distinguishing between the violation hearings employing a higher standard and SSOSA revocation hearings. Boyd fails to cite any authority supporting his position that disparate burdens of proof violates due process.
To the extent that Boyd is asserting an equal protection claim, his argument is unpersuasive and undeveloped. Sex offenders are not a suspect class for purposes of equal protection review. State v. Ward, 123 Wn.2d 488, 516, 870 P.2d 295 (1994). For us to consider an equal protection claim, Boyd must demonstrate that the distinction between SSOSA revocation hearings and other community custody hearings violates the rational basis test. Ward, 123 Wn.2d at 516. In fact, Boyd fails to make any such argument, and we do not do so for him. See State v. Bradshaw, 152 Wn.2d 528, 539, 98 P.3d 1190 (2004) (holding that "naked castings into the constitutional sea are not sufficient to command judicial consideration and discussion"), cert. denied, 544 U.S. 922 (2005).
II. Notice
Boyd next argues that the State violated his due process rights by failing to give him written notice that he violated his conditions of release by entering into a romantic relationship without permission. But Boyd waived his right to challenge lack of notice by failing to object to evidence of this violation at trial or to the trial court's conclusion. In the alternative, we hold that, assuming error, the State's failure to provide written notice was harmless.
Before a trial court modifies a sentence, it must provide the defendant with written notice of the claimed violations so that a defendant has the opportunity to prepare a defense. Morrissey, 408 U.S. at 489; Dahl, 139 Wn.2d at 683, 684. A person accused of violating the conditions of sentence has some responsibility to ensure that his or her due process rights are protected. State v. Robinson, 120 Wn. App. 294, 297, 85 P.3d 376, review denied, 152 Wn.2d 1031 (2004). At a minimum, the accused must notify the trial court that due process is being violated by making an appropriate objection. Robinson, 120 Wn. App. at 297.
Here, neither side disputes that Boyd did not receive written notice that he violated his conditions by failing to obtain permission to enter into a relationship. Yet, Boyd failed to preserve his objection. Boyd never objected to testimony about his failure to obtain permission to enter into a romantic relationship, and in fact questioned Aalborg about this issue during his cross-examination. In addition, when the trial court concluded that Boyd violated his conditions by failing to get permission to enter into a relationship with a woman who had children, Boyd did not object. In fact, not only did Boyd fail to object, but his counsel signed the findings of fact and conclusions of law. Boyd has waived his right, then, to claim error based on the lack of written notice. See Robinson, 120 Wn. App. at 299-300 (holding that the defendant waived the notice requirements because he failed to object to notice at the modification hearing).
In the notice of violation, the petition for hearing, and order for arrest, the State lists only two violations: (1) having contact with minors and (2) using alcohol.
The trial court's second conclusion of law states: "[t]here is a reasonable belief that the defendant violated the conditions of his SSOSA sentence by having proximity contact with minor children on several occasions." CP at 132. The trial court's third conclusion of law states: "[t]here is a reasonable belief that the defendant violated the conditions of his SSOSA sentence by failing to request permission . . . to enter into a relationship with a particular woman who had three children." CP at 132.
Even if Boyd had not waived his right to written notice of the violation, such error was harmless. The conditions prohibited him from initiating contact with minor children and from entering into romantic relationships without permission of his community corrections officer. Boyd's SSOSA conditions treat the violations as two separate conditions. The plain language of the trial court's conclusions shows the court found two separate violations: (1) the proximity contact and (2) failure to obtain permission. Yet, the State never gave Boyd written notice that he violated the condition requiring permission to enter into a relationship.
Any error was harmless here because the trial court concluded that Boyd violated his conditions by having proximity contact with children, and Boyd received written notice of this violation. On appeal, the State must demonstrate that a constitutional error was harmless beyond a reasonable doubt. State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986); State v. Garza, 99 Wn. App. 291, 297, 994 P.2d 868, review denied, 141 Wn.2d 1014 (2000). Even if the court had not revoked Boyd's SSOSA because he failed to get permission, it would have revoked his SSOSA because he had proximate contact with a minor. See RCW 9.94A.670(10) (A court may revoke a SSOSA at any time if it reasonably believes that an offender has violated a condition of his sentence). Additionally, Boyd received notice of this violation, as the notice of violation and petition for hearing both alleged that he had contact with minors. Failure to give notice of the failure to obtain permission for a relationship was harmless.
III. Statement of Additional Grounds (SAG)
RAP 10.10.
Boyd also argues that the trial court miscalculated his offender score during his original sentencing by improperly including his prior misdemeanor convictions. See SAG (Ground 1).
Boyd may challenge his 2004 sentence despite RCW 10.73.090's one-year bar on collateral attacks because the judgment and sentence is invalid on its face. RCW 10.73.090(1); In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 865-66, 50 P.3d 618 (2000) (holding that a judgment and sentence is facially invalid if based on an improper offender score). We do not separately analyze this claim because, at oral argument, the State conceded that the trial court had incorrectly computed Boyd's offender score. We agree with Boyd's analysis and the State's concession that he should have had an offender score of four, not seven, when he was sentenced. Thus, we vacate the sentence and remand for resentencing using the correct offender score.
It is not clear how the trial court miscalculated Boyd's offender score and we cannot verify Boyd's assertion that the court includes his prior misdemeanor convictions. Seven, however, is an incorrect calculation of Boyd's offender score.
Affirmed, sentence vacated, and remanded for resentencing.
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.
VAN DEREN, A.C.J. ARMSTRONG, J., concur.