Opinion
No. 62064-9-I.
April 27, 2009.
Appeal from a judgment of the Superior Court for King County, No. 02-1-02474-9, Kimberley Prochnau, J., entered July 16, 2008.
Affirmed by unpublished opinion per Lau, J., concurred in by Becker and Appelwick, JJ.
Revocation of a suspended sentence rests within the discretion of the trial court. Ivars Emmermanis argues that the trial court abused its discretion in revoking his Special Sex Offender Sentencing Alternative (SSOSA) because his sexual deviancy treatment provider testified that he had made reasonable progress. The trial court properly exercised its independent judgment in reviewing the evidence and rejecting the treatment provider's recommendation. We affirm.
FACTS
On January 24, 2003, after pleading guilty to two counts of rape of a child in the first degree, Emmermanis was given a SSOSA sentence. The judgment and sentence listed the following pertinent conditions.
The victim was Emmermanis's seven-year-old stepdaughter.
4. Within 30 days of being placed on supervision, enter into and make reasonable progress in sexual deviancy therapy, with a therapist approved by your Community Corrections Officer, which therapy may include the treatment tools of polygraph and plethysmograph testing.
. . . .
10. Do not possess or peruse pornographic materials unless given prior approval by your sexual deviancy treatment specialist and/or Community Corrections Officer. Pornographic materials are to be defined by the therapist and/or Community Corrections Officer.
Clerk's Papers (CP) at 47. Emmermanis enrolled in sexual deviancy therapy under the supervision of Dr. Bill Lennon.
On August 29, 2006, Emmermanis admitted violating his sentence by possessing pornography and failing to make reasonable progress in treatment. The court ordered Emmermanis to serve 33 days in custody and comply with treatment and supervision conditions. Treatment was extended to August 29, 2007. On August 9, 2007, the court extended treatment to February 6, 2008.
On December 6, 2007, Emmermanis submitted to a polygraph test that indicated deception regarding possession or use of pornography and viewing images of anyone under the age of 18 for sexual purposes. Emmermanis was arrested after the Washington State Department of Corrections (DOC) searched his home and found a number of items of a sexually explicit nature. On January 4, 2008, DOC alleged that Emmermanis violated his sentencing conditions by possessing material in violation of treatment terms and by failing to make reasonable progress in treatment since the date of sentencing. On February 7, 2008, Emmermanis admitted to both sentencing violations. The court ordered him to serve 65 days in custody and to return for a review hearing. The court also extended treatment to February 9, 2009.
On April 15, 2008, Emmermanis submitted to a polygraph test that indicated deception regarding viewing pornography and deliberately withholding information on his weekly logs since his latest release from jail. The polygraph was inconclusive regarding whether he had unreported contact with minors since being released from jail. Emmermanis admitted to the polygrapher than he had been regularly accessing a website called "mocospace.com." Emmermanis was arrested.
On April 28, 2008, DOC issued a notice of violation alleging that Emmermanis violated his conditions of supervision by "[f]ailing to make reasonable progress in treatment since being released from jail on or about 2-7-08." CP at 75. DOC stated that Emmermanis admitted looking at the website "because he knew he could get away with it," and that he did not tell his treatment provider or DOC "because he was going to get in trouble one way or the other." CP at 76. The notice also stated that mocospace.com appears to contain sexually explicit images of minor and adult females.
These words appear to have been crossed out by hand.
On July 16, 2008, a review hearing was held. At the hearing, Dr. Lennon testified that Emmermanis had made "more than reasonable progress" since February 2008. Report of Proceedings (RP) (July 16, 2006) at 17. Dr. Lennon acknowledged that Emmermanis's deception as revealed by the April 2008 polygraph was "a real problem" and "[a]bsolutely not" acceptable. Id. at 10-11. But Dr. Lennon believed that Emmermanis was showing progress because the website contained pictures of scantily clad adult females, not minor children. When asked whether he would be concerned if the website did in fact feature photographs of individuals who appear to be minors dressed in sexually provocative clothing, Dr. Lennon stated, "any time he is doing anything that is provocative with minors, that's an issue for us, definitely." Id. at 20.
Dr. Lennon also acknowledged that Emmermanis had been "difficult to work with" throughout his five and a half years of treatment and that he is a person who "plays games" and "often walks the line" regarding behavior that could trigger SSOSA revocation. Id. at 22-23. But Dr. Lennon asserted that Emmermanis had recently become much more open. In response to a question regarding whether treatment was taking too long, Dr. Lennon acknowledged that Emmermanis had been in treatment longer than anyone he had ever worked with. He further stated, "[I]f we had not seen the progress that we saw the most recent time, I would say we would have been finished with him." Id. at 24. Dr. Lennon also felt that Emmermanis's willingness to take a polygraph test, knowing that he could fail, showed some progress.
The court then reviewed Emmermanis's treatment history, including his failed polygraph tests. The court then questioned Dr. Lennon.
And I guess I'm still not following you why you think he has made significant — made improvements since February of 2008 since being released because it seems to me that the very next time he was polygraphed, after being released from jail, it indicated he was doing — he was right back doing the same things that got him into trouble in December, which is possessing pornography and viewing the internet, all without your program's consent or knowledge.
Id. at 36-37. Dr. Lennon replied, "I can't argue that issue. . . . He reverted back to some of the similar patterns. I believe we were getting better and we had not been getting better previously. That was my opinion." Id. at 37
The court acknowledged its respect for Dr. Lennon and his commitment to the treatment of Emmermanis. The court nevertheless revoked Emmermanis's SSOSA. The court's order stated that Emmermanis (1) failed to make reasonable progress in his sexual deviancy treatment program, (2) repeatedly used or accessed sexually explicit material in violation of treatment rules, and (3) was deceptive with treatment providers.
The order expressly incorporated the court's oral ruling by reference, along with the community corrections officer's report dated April 28, 2008, and the treatment reports dated April 16, 2008, October 15, 2007, June 1, 2007, April 1, 2007, and January 4, 2007.
In its oral ruling, the court stated,
Mr. Emmermanis not only has not made reasonable progress in his treatment, has violated the conditions of his sentence and the risk to the community is simply too great to allow him to continue in his treatment program and to be out in the community. . . .
. . . .
So I feel somewhat of a cognitive disconnect between what Dr. Lennon is saying with what reality is. Dr. Lennon is saying he thinks he has made remarkable progress in the two months since he got out of jail. But they weren't — but the very first polygraph that they had him tested for showed deception, and showed deception on the same issues.
So it appears to the Court that Mr. Emmermanis has continuously been deceptive, not just on a sporadic basis, but has been almost, if not the complete course of his five-year program, has been deceptive with [his] treatment providers.
Although Dr. Lennon is not familiar with this Moco Space . . . the CCO [community corrections officer] provided at least one piece of information from the Moco Space that, in fact, there are people that are posing on that website, people that are claiming to be minors.
. . . .
I just find there is just too great a risk. He has been in the program longer than anybody and, while there might be some issues that would lead the Court to believe that they could continue . . . the fact that he is so continuously deceptive to his therapist, and the therapist measuring his progress by how he is acting and their perception of whether he is acting in an honest fashion, that doesn't jibe.
He may, in fact, now be more emotional, more of what they think is open. It may also be that he has figured out a different role to put on. I can't trust Mr. Emmermanis. I can't trust him in the community. So I'm revoking the SSOSA.
RP (July 16, 2006) at 52-56.
Emmermanis appeals the revocation of his SSOSA.
ANALYSIS
"The SSOSA statute provides that a sentencing court may suspend the sentence of a first time sexual offender if the offender is shown to be amenable to treatment." State v. McCormick, 141 Wn. App. 256, 260, 169 P.3d 508 (2007); RCW 9.94A.670. "An offender's SSOSA may be revoked at any time if a court is reasonably satisfied that an offender has violated a condition of his suspended sentence or failed to make satisfactory progress in treatment." State v. Dahl, 139 Wn.2d 687, 683, 990 P.2d 396 (1999); RCW 9.94A.670(10). A trial court's decision to revoke a SSOSA is reviewed for abuse of discretion. State v. Badger, 64 Wn. App. 904, 908, 827 P.2d 318 (1992). "A trial court abuses its discretion when its decision is manifestly unreasonable or is based on untenable grounds." State v. Partee, 141 Wn. App. 355, 361, 170 P.3d 60 (2007). "A decision is based `on untenable grounds' or made `for untenable reasons' if it rests on facts unsupported in the record or was reached by applying the wrong legal standard." State v. Rorich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003). "Proof of violations need not be established beyond a reasonable doubt but only must `reasonably satisfy' the court the breach of condition occurred." Badger, 64 Wn. App. at 908. Once a SSOSA is revoked, the original sentence is reinstated. Dahl, 139 Wn. App. at 683.
Emmermanis argues that the trial court abused its discretion in revoking his SSOSA because it was contrary to the evidence. According to Emmermanis, DOC alleged only that he failed to make reasonable progress since February 7, 2008. But Dr. Lennon testified that since February 2008, Emmermanis made "more than reasonable progress." RP (July 17, 2008) at 17. Therefore, according to Emmermanis, the court's finding that he had not made reasonable progress during that period is arbitrary and manifestly unreasonable.
We disagree. The record shows that the trial court carefully considered Dr. Lennon's testimony and opinion, but exercised its independent discretion in reviewing the record and finding that Emmermanis had not made reasonable progress. In particular, the court observed that after Emmermanis was recently released from jail — during the period that he had supposedly made reasonable progress — a polygraph test indicated deception. Moreover, contrary to Dr. Lennon's belief and during the same period, Emmermanis accessed a sexually provocative website that contained at least one photograph of an individual claiming to be a minor. The court also noted Emmermanis's continuous history of deception, the unusual length of time he had been in the program, and the seriousness of his crime. The trial court was not required to simply rubberstamp the treatment provider's opinion. The court's decision was amply supported by the facts in the record.
We conclude that the trial court did not abuse its discretion in revoking Emmermanis's SSOSA. We affirm.
Affirmed.
WE CONCUR.