Opinion
No. 23666-8-III.
Filed: April 11, 2006.
Appeal from Superior Court of Grant County. Docket No: 03-1-00921-3. Judgment or order under review. Date filed: 11/09/2004. Judge signing: Hon. Ken L. Jorgensen.
Counsel for Appellant(s), David N. Gasch, Gasch Law Office, PO Box 30339, Spokane, WA 99223-3005.
Counsel for Respondent(s), Teresa Jeanne Chen, Grant County Prosecutors Office, PO Box 37, Ephrata, WA 98823-0037.
Carolyn Jones Fair, Law and Justice Center, PO Box 37, Ephrata, WA 98823-0037.
UNPUBLISHED OPINION
The court revoked Jerry Dorris' Special Sex Offender Sentencing Alternative (SSOSA) after finding he violated community custody conditions and failed to complete a sex offender treatment program. On appeal, Mr. Dorris contends the court erred by revoking his SSOSA suspended sentence and failing to solicit allocution, and asserts he is entitled to a new hearing due to judicial bias. We conclude Mr. Dorris did not receive an impartial hearing due to apparent judicial bias and remand for a new revocation hearing before a different judge.
In 2003, Mr. Dorris pleaded guilty to first degree child molestation. The court sentenced Mr. Dorris to 68 months, with 62 months suspended under SSOSA. The court imposed the following community custody conditions in the judgment and sentence: no possession or use of pornography; submission to polygraph testing; no contact with the victim or her family; no contact with children under 18; urinalysis testing; and no use, possession, or delivery of any controlled substance, except by valid prescription. The court also required Mr. Dorris to complete a 48-month outpatient sex offender treatment program.
The judgment and sentence required Mr. Dorris to 'comply with all rules, regulations and requirements' of the Department of Corrections (DOC). Clerk's Papers at 19. DOC imposed additional conditions: no purchase, possession, or consumption of alcohol; no use of sexual stimulation devices; no frequenting of places where children congregate; no entering bars, taverns, or lounges; and no direct contact with Michelle Kalis, a girl friend.
In July and August 2004, DOC filed three notices of Mr. Dorris' alleged violations of these conditions. The notices allege that Mr. Dorris possessed, consumed, and/or purchased alcohol on five different occasions; failed to take his medications as prescribed; had unauthorized contact with Ms. Kalis; was terminated from sex offender treatment for noncompliance; and possessed pornography. At the SSOSA revocation hearing, Mr. Dorris contested DOC's allegations that he failed to comply with sex offender treatment and possessed pornography, but he admitted all other violations. In support of the pornography violation, the State presented testimony from Stephanie Canterbury, one of Mr. Dorris' community corrections officers. Ms. Canterbury explained that Mr. Dorris had signed a statement allowing DOC personnel to pack up his belongings for storage. When they packed his things, they found decks of cards that 'contained nude pictures of females,' and a clock with a picture of a female in lingerie. Report of Proceedings (RP) at 50. They also discovered and later developed three rolls of film, which contained nude pictures of Mr. Dorris and the breast of an unidentified female. They also found a videotape of men and women in their underwear.
The State also presented testimony from Michael Morris, Mr. Dorris' sex therapist, regarding his dismissal from the sex offender treatment program in August 2004. He partly testified:
[T]he combination [of reasons] led me to believe that Mr. Dorris was no longer amenable to treatment. They were the alcohol consumption, association with a vulnerable female, violation of — direct violation of DOC rules . . . And I guess the ultimate — ultimately the stuff found in his apartment was the final blow.
RP at 85-86. Mr. Morris testified that alcohol consumption adversely affects Mr. Dorris' manic depression and leads to impulse control problems. He also testified that Mr. Dorris' association with Ms. Kalis was concerning because he has a pattern of 'targeting vulnerable females' with children. RP at 87. Mr. Morris also expressed concern that the pictures found in Mr. Dorris' possession may be part of an 'offending pattern' of grooming and acting out sexually. RP at 88. Mr. Morris stated he did not believe Mr. Dorris was amenable to treatment.
After the State's testimony, the court commented:
I guess I have certain biases. One is my view that there are very few people in society today that have a healthy sexual relationship. Very few. That's my first observation.
My second observation is that you can't begin to have a healthy sexual relationship unless it's in the context of marriage. That's number two.
And the problem of it is in our society is that it's warped. Pornography is — our society is awash in pornography. That clock is pornography. Those pictures are pornography. People who use that sort of thing, their sexual life is perverted.
Now, the problem that I see is that when you get a person like Mr. Dorris and you're trying to give him some sort of help, first, he's got to understand what it means what a healthy sexual relationship is. He needs to understand that. He needs to understand what an unhealthy sexual relationship is. I don't think he begins to understand.
. . . .
And for a person to get sexual satisfaction out of looking at pictures? That's perversion. That's a great deviation from any hope of having any healthy sex life. But what's interesting in our society is nobody seems to understand that. . . . I don't like to look at those pictures because it's hard to get them out of my mind. So I don't look at them.
Now, how somebody could every day have a diet of that and somehow have a healthy sex life is beyond me. . . . So that's my comment on pornography. So that's kind of my — that's my bias on the matter. I don't think there's anything biased about it. I think it's the absolute truth.
But when it comes down to Mr. Dorris and what he's expected to do, he's in a situation where he has committed a crime where there has been victimization. Now, the legislature, in their judgment, they've said, okay, we're going to allow a person to have treatment and allow him to stay in the community. I have some real problems with that in the first place. . . .
. . . .
. . . One thing is certain . . . I expect them to follow the dictates of the judgment and sentence precisely.
RP at 114-17.
The court revoked Mr. Dorris' suspended sentence and imposed the remainder of the suspended sentence. The court based the revocation on Mr. Dorris' admitted violations, and its own findings that Mr. Dorris violated the terms of the suspended sentence by being terminated from his sex offender treatment program and possessing pornography. At the subsequent hearing to enter findings, the court rescinded the ruling in order to solicit allocution. Mr. Dorris declined to make a statement on his own behalf, and the court again revoked Mr. Dorris' suspended sentence. Mr. Dorris appeals.
The first issue is whether the court erred in revoking Mr. Dorris' SSOSA sentence.
SSOSA is an alternative sentencing provision that allows a sentencing court to suspend the sentence of a first time sexual offender if the offender is amenable to treatment. RCW 9.94A.670. SSOSA requires an offender to receive up to three years of sexual deviancy treatment upon release to community custody. The sentencing court can impose prohibitions or conditions on the offender's suspended sentence. An offender's SSOSA may be revoked at any time if a court finds that the offender is failing to make satisfactory progress in treatment or the offender violates any of the conditions of the suspended sentence. State v. Dahl, 139 Wn.2d 678, 682-83, 990 P.2d 396 (1999). Once SSOSA is revoked, the original sentence is reinstated. Id. at 683.
Revocation of a suspended sentence is reviewed for an abuse of discretion. State v. Kuhn, 81 Wn.2d 648, 650, 503 P.2d 1061 (1972). Proof of a violation need not be established beyond a reasonable doubt but only must reasonably satisfy the court that the breach of condition occurred. Id. Mr. Dorris contends the warrantless search and seizure of the allegedly pornographic items in his apartment was unconstitutional. He further contends the court's prohibition on the use or possession of 'pornography' was unconstitutionally vague.
However, this court does not need to address these claims. As argued by the State, the court had numerous independent grounds to revoke Mr. Dorris' SSOSA. In fact, Mr. Dorris admitted to eight violations of the community custody conditions, any of which would have been a sufficient basis for revocation. See RCW 9.94A.670(10). Further, his failure to successfully complete sex offender treatment is another independent basis for revocation. See id. Mr. Dorris was terminated from the program for alcohol consumption, association with a vulnerable female, violation of DOC rules, and the concerning items found in his apartment. These factors are supported by the record and undisputed by Mr. Dorris. Thus, aside from any potential issues regarding the violation for possession of pornography, the court had a tenable basis to revoke Mr. Dorris' SSOSA sentence and did not abuse its discretion.
We also decline to address Mr. Dorris' contentions regarding DOC's alleged lack of authority to impose additional conditions on his community placement and the legality of DOC's no-contact provision between Mr. Dorris and Ms. Kalis. Mr. Dorris admitted these violations and did not contest their validity in the trial court. Under the circumstances, he has waived the right to argue these issues on appeal. See RAP 2.5. Mr. Dorris next contends the court erred by failing to solicit allocution prior to revoking his suspended sentence.
Under RCW 9.94A.500(1), '[t]he court shall . . . allow arguments from the prosecutor, the defense counsel, [and] the offender . . . as to the sentence to be imposed.' In State v. Canfield, 154 Wn.2d 698, 116 P.3d 391 (2005), our Supreme Court held that a revocation hearing is not a sentencing hearing. An offender has a 'limited procedural due process right' to allocution at a revocation hearing. Canfield, 154 Wn.2d at 707. Consequently, 'where a defendant asserts his right to allocution, the court should allow him to make a statement in allocution.' Id. (emphasis added). Thus, in order to preserve this right, a 'defendant must give the court some indication of his wish to plead for mercy or offer a statement in mitigation of his sentence.' Id.
Under Canfield, the court's failure to solicit allocution is irrelevant. Mr. Dorris did not assert his right to allocution prior to the court's original ruling. Thus, he cannot raise this issue for the first time on appeal. See id. Moreover, after its original ruling, the court rescinded its ruling and solicited allocution from Mr. Dorris; he chose not to assert his right. Under the circumstances, the court did not err.
The dispositive issue is whether Mr. Dorris was denied due process of law due to judicial bias.
Code of Judicial Conduct Canon 3(D)(1) states: 'Judges should disqualify themselves in a proceeding in which their impartiality might reasonably be questioned, including but not limited to instances where: (a) the judge has a personal bias or prejudice concerning a party.' To evaluate this, courts apply an objective test assuming that "a reasonable person knows and understands all the relevant facts." Sherman v. State, 128 Wn.2d 164, 206, 905 P.2d 355 (1995) (quoting In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1313 (2d Cir. 1988)).
"The law goes farther than requiring an impartial judge; it also requires that the judge appear to be impartial." State v. Post, 118 Wn.2d 596, 618, 826 P.2d 172, 837 P.2d 599 (1992) (quoting State v. Madry, 8 Wn. App. 61, 70, 504 P.2d 1156 (1972)). Impartial means the absence of bias, either actual or apparent. State v. Moreno, 147 Wn.2d 500, 507, 58 P.3d 265 (2002). Public confidence in the administration of justice requires the appearance of fairness just as much as actual fairness. State v. Dugan, 96 Wn. App. 346, 354, 979 P.2d 885 (1999). But the perceived bias must result from an actual personal interest in the outcome. Post, 118 Wn.2d at 619. The personal interest must be real; it is the resulting bias that can be merely perceived. See, e.g., id. at 618 (sentence based on report prepared by DOC's employee defendant had sued). The effect on the judicial system can be debilitating when 'a trial judge's decisions are tainted by even a mere suspicion of partiality.' Sherman, 128 Wn.2d at 205.
Here, the record supports Mr. Dorris' assertions of the judge's apparent bias, particularly because Mr. Dorris was previously convicted of a sex crime, and the revocation involved allegations involving sex and pornography. The judge repeatedly and specifically admitted he is biased on these issues. Among other statements, he says he feels that people who have sexual relationships outside of marriage 'can't begin to have a healthy sexual relationship.' RP at 114. The judge unnecessarily commented at length on the 'perverted' and 'unhealthy' nature of pornography and other sexual practices, which are implicated in this case. Further, he related he has 'some real problems' with SSOSA and the legislature's decision to allow 'a person to have treatment and . . . stay in the community.' RP at 116.
Objectively, the speech gives the appearance that the judge's sincere personal interest in collateral matters may have affected the hearing's outcome. The court's personal feelings on the ills of pornography and nonmarital sex and his dissatisfaction with SSOSA are not crime-related facts, but facts that nevertheless appear to have driven the court's decision. "Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly." In re Pers. Restraint of Rice, 118 Wn.2d 876, 898, 828 P.2d 1086 (1992) (Utter, J., dissenting) (quoting Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)). Although the court had a tenable basis to revoke Mr. Dorris' SSOSA suspended sentence, the decision is tainted by the appearance of unfairness. Mr. Dorris is entitled to a new revocation hearing before a different judge.
Remanded for further proceedings consistent with this opinion.
A majority of the panel has determined that 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.
KATO, C.J., and SWEENEY, J., concur.