Opinion
No. 34671-1-II.
May 15, 2007.
Appeal from a judgment of the Superior Court for Kitsap County, No. 05-8-00244-5, Sally F. Olsen, J., entered March 7, 2006.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Hunt and Penoyar, JJ.
Stephen A. Cole appeals the juvenile court's order revoking his deferred disposition, arguing that his attorney's failure to object to the introduction of hearsay evidence at the revocation hearing denied him his constitutional right to effective assistance of counsel. We affirm.
Facts
In March 2005, the State charged Cole with harassment. The juvenile court ordered a deferred disposition in April. Carrie Prater, Cole's probation officer, filed a motion to revoke in December, alleging that Cole had violated the conditions of his deferred disposition by being disruptive and disrespectful at school.
Following a revocation hearing on January 24, 2006, the court denied the motion to revoke but ordered Cole to perform additional hours of community service work. Three days later, Prater received notification from Cole's school that he had tried to trip Tristan Benson, a para-educator. Prater filed a second motion to revoke.
The second motion to revoke also alleged that Cole had several unexcused absences from school, but the court did not find that allegation proven and it is not at issue here.
At the February hearing on the motion, Cole admitted to the tripping allegation. When the court asked whether the incident occurred before or after the previous hearing on January 24, Prater said that it occurred after the hearing.
The court was concerned that the incident occurred so soon after the previous revocation hearing and told Cole he could not be in court on a motion to revoke in mid-January and then commit a new violation "before the ink is essentially dry" and not have a consequence. Report of Proceedings (RP) (Feb. 21, 2006) at 4. The court granted the motion to revoke.
Cole's attorney then informed the court that there was a discrepancy as to when the attempted tripping occurred. While Prater believed it occurred on the date of the disciplinary referral, which was after the January 24 revocation hearing, Cole believed it happened before the January hearing. The court allowed Cole to withdraw his admission and ordered a fact-finding hearing.
Prater testified that the referral date was January 26, but the referral was actually dated January 27.
At that hearing, Prater testified that she had received the disciplinary referral concerning Cole's attempt to trip Benson on January 27, and she added that written referrals are normally completed the day the incident occurs. She also testified that Benson told her the incident happened the day he wrote the referral, which was January 27.
Carla Polillo, a counselor at Cole's junior high school, testified that Benson sat Cole down outside her office on January 27 and was writing a disciplinary referral when she came out to talk to him. Benson told her that the incident had happened five minutes before she came out of her office.
Counsel for Cole did not object to the hearsay testimony elicited from Prater and Polillo or to the introduction of the written referral from Benson.
Cole explained that he tried to trip Benson because he was uncomfortable with the way Benson watched him get dressed in P.E. class. Cole's mother thought that the tripping occurred on January 24 because a school administrator called her on January 27 and said that the incident occurred earlier in the week.
Cole's attorney argued in closing that the attempted tripping was a fairly minor incident near the end of a deferred disposition and asked the court to exercise its discretion not to revoke. The court found that the attempted tripping occurred on the date that the referral was made. Rejecting Cole's request to find the matter de minimus, the court granted the State's motion to revoke the deferred disposition. Cole now appeals.
Analysis
Cole argues that his attorney's failure to protect his right to due process by objecting to Benson's hearsay statements denied him the effective assistance of counsel to which he was constitutionally entitled. To demonstrate that his attorney was ineffective, a defendant must show that his representation was deficient and that the deficiency resulted in prejudice. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Regarding the first prong, scrutiny of counsel's performance is highly deferential, and there is a strong presumption of reasonableness. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). Prejudice is established if there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. McFarland, 127 Wn.2d at 335. If counsel's conduct can be characterized as legitimate trial strategy or tactics, it cannot serve as a basis for a claim of ineffective assistance. State v. Day, 51 Wn. App. 544, 553, 754 P.2d 1021 (1988).
Cole contends that his attorney's performance was deficient when he failed to object to the introduction of Benson's out-of-court statements as to when the attempted tripping occurred.
Cole recognizes that ER 1101(c)(3) exempts juvenile disciplinary hearings from the Rules of Evidence, thus allowing the routine use of hearsay evidence at juvenile disposition hearings. State v. S.S., 67 Wn. App. 800, 807, 840 P.2d 891 (1992). He analogizes deferred disposition revocation hearings to probation revocation hearings, to which the rules of evidence are also inapplicable. See State v. Anderson, 88 Wn. App. 541, 543-44, 945 P.2d 1147 (1997).
Despite the acceptance of hearsay in probation revocation hearings, due process entitles a probationer to confront live witnesses where there is reason to question the reliability of written reports offered in their place. Anderson, 88 Wn. App. at 544. In deciding whether good cause exists to admit hearsay evidence rather than allowing the defendant to confront a witness, the trial court should balance the document's reliability against the expense and difficulty of getting witnesses to court. Anderson, 88 Wn. App. at 544. But if a probationer fails to object to the State's use of hearsay evidence at a revocation hearing, he waives any right of confrontation. State v. Nelson, 103 Wn.2d 760, 766, 697 P.2d 579 (1985).
Cole maintains that the same principles apply to deferred disposition revocation proceedings. See S.S., 67 Wn. App. at 807 (juvenile disposition proceedings must comply with fundamental notions of due process). He points out that because his attorney never objected to Benson's out-of-court statements regarding when the attempted tripping occurred, the State was not required to show that it would be too difficult to call Benson as a witness, and the court never considered whether his statements were reliable. Cole argues that since the only issue in dispute was the timing of the incident, the statements attributed to Benson were crucial. He contends that it was his attorney's responsibility to ensure that the court would consider this hearsay only on a showing of good cause, and he argues that by objecting, counsel would have protected his due process rights. According to Cole, his attorney's failure to object rendered his performance deficient.
The State counters that Cole's attorney may have had strategic reasons not to object to the hearsay evidence. The State disputes Cole's current position that timing was the key issue during the hearing, pointing out that his attorney's closing argument attempted to minimize the significance of the incident and to demonstrate that it did not warrant revoking the deferred disposition. The State also argues that there were many reasons not to seek Benson's presence at the hearing. It is likely that Benson would have testified that the tripping incident took place on January 27, thus strengthening the State's case on that fact and rebutting the testimony of Cole's mother. Benson's testimony also might have rebutted much of what Cole said about his motive for the tripping. Finally, Benson's testimony could have eliminated the ability of Cole's attorney to cross examine the State's witnesses about their lack of knowledge concerning the date of the incident and the events that precipitated it. We agree with the State that Cole has not proven deficient performance.
Cole also contends that his attorney's failure to object to the State's hearsay evidence was prejudicial, since the court made it clear that the timing of the incident was key in determining whether the violation was de minimus. Cole contends that because his attorney failed to protect his right to confront Benson regarding the critical timing issue, there is no assurance that the court's discretion was informed by accurate information regarding Cole's behavior. Thus, according to Cole, his attorney's prejudicial error denied him the effective assistance of counsel. We disagree. To prevail on this prong of the ineffective assistance test, Cole would have to show a reasonable probability that he would have avoided revocation had his attorney objected to the introduction of Benson's hearsay statements. We see no such probability because the evidence was sufficient, even without the statements attributable to Benson, to find that the violation occurred on January 27. Polillo, the school counselor, testified that she saw Benson bring Cole down to her office and fill out the written referral form on January 27. Prater added that in her experience, such written referrals are typically issued the day the incident occurs. Cole admitted attempting to trip Benson, and the court found that the incident occurred on the date of the written referral, as corroborated by the school counselor. Accordingly, Cole cannot show that but for his attorney's failure to object to the introduction of Benson's hearsay statements, the result of the revocation hearing would have been different. We do not find that his counsel's performance was ineffective.
Affirmed.
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.