Opinion
No. 29173-1-III
10-06-2011
STATE OF WASHINGTON, Respondent, v. ROBERT ALAN STRENGE, Appellant.
UNPUBLISHED OPINION
Korsmo, J. — Robert Strenge challenges the trial court's decision to revoke his Special Sexual Offender Sentencing Alternative (SSOSA) and his counsel's representation during that proceeding. Mr. Strenge's challenges fail to establish that error occurred. The judgment is affirmed.
FACTS
Mr. Strenge pleaded guilty to one count of second degree child rape in September 2009. The court granted his request for a SSOSA sentence and suspended a minimum term of 102 months in prison; the required maximum term of life imprisonment was also imposed. The trial court also required that Mr. Strenge not contact the victim.
Within two months of sentencing, Community Corrections Officer (CCO) Lincoln Hathaway became suspicious that Mr. Strenge was violating the victim contact prohibition. Mr. Strenge failed a polygraph examination concerning that topic and the CCO imposed stricter reporting requirements. In February 2010, the victim's mother reported that her daughter and Mr. Strenge had repeated contact over the previous several months. Mr. Hathaway then took Mr. Strenge into custody. Investigation determined that there had been repeated telephone contact between the victim and Mr. Strenge, along with at least one contact in person.
The State sought to revoke the SSOSA and Mr. Strenge stipulated to the above-cited facts. Mr. Hathaway testified that he did not believe Mr. Strenge should remain in the community due to dishonest and uncooperative behavior. Mr. Strenge's treatment provider, Sharon Hinze, told the court that he was not amenable to the process and that she would no longer try to treat him. Her reasoning was the same as Mr. Hathaway's; Ms. Hinze also told the court that she ordinarily would not recommend revocation so early in the process.
The defense provided the testimony of Edward Averett who testified that he would treat Mr. Strenge if the SSOSA were not revoked. In Mr. Averett's opinion, Mr. Strenge was amenable to treatment.
The trial court concluded that Mr. Strenge had violated the terms of the sentence by contacting the victim. Accepting the testimony of Ms. Hinze and Mr. Hathaway, the court concluded that Mr. Strenge was not amenable to treatment. Citing a grave concern about Mr. Strenge's violations, the court revoked the SSOSA. Mr. Strenge then timely appealed to this court.
ANALYSIS
This appeal presents several challenges, which will be addressed in the order presented by Mr. Strenge's counsel.
Allocution. Mr. Strenge first contends that his right to allocution was violated when the court revoked the SSOSA without first asking him to speak. This argument is controlled by State v. Canfield, 154 Wn.2d 698, 116 P.3d 391 (2005).
In the consolidated appeals that constituted Canfield, the trial courts had revoked SSOSA sentences without first giving the defendants the opportunity to speak. Id. at 701-702. Noting that the statutory right of allocution was not applicable to a revocation proceeding, the court nonetheless concluded that there was a due process right to address the court prior to revocation that was in the nature of allocution. Id. at 704-705. The court also concluded that because there was no express constitutional provision requiring allocution, the limited right recognized in Canfield needed to be asserted in the trial court in order to preserve the issue for appeal. Id. at 707.
This case sits in the same posture as Canfield. The record does not reflect that Mr. Strenge was asked if he wanted to speak before the court decided whether to revoke the SSOSA sentence. The record also does not reflect any assertion of the right to speak.As in Canfield, the allocution claim was not preserved. Id.
In his Statement of Additional Grounds (SAG), Mr. Strenge asserts that his counsel advised him not to address the court. SAG Additional Ground 4.
Mr. Strenge's initial argument does not present a question of manifest constitutional error that can be raised initially in this appeal.
Ineffective Assistance of Counsel. Mr. Strenge next argues that his counsel performed ineffectively in several respects at the revocation hearing. This contention is without merit.
The SAG makes five additional arguments concerning counsel's performance. Most are without factual foundation in the record and can only be considered in a personal restraint petition. State v. McFarland, 127 Wn.2d 322, 338, 899 P.2d 1251 (1995). However, the claims also appear to involve tactical decisions of counsel that are largely immune from challenge. We will not further address the SAG arguments.
The standards governing this issue are very well settled. The Sixth Amendment guarantees the right to counsel. The attorney must perform to the standards of the profession. Counsel's failure to live up to those standards will require a new trial when the client has been prejudiced by counsel's failure. State v. McFarland, 127 Wn.2d 322, 334-335, 899 P.2d 1251 (1995). In evaluating ineffectiveness claims, courts must be highly deferential to counsel's decisions. A strategic or tactical decision is not a basis for finding error. Strickland v. Washington, 466 U.S. 668, 689-691, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). To prevail on a claim of ineffective assistance, the defendant must show both that his counsel erred and that the error was so significant, in light of the entire record, that it deprived him of a fair hearing. Id. at 690-692.
Appellate counsel first contends, contrary to Mr. Strenge's statement in his SAG, that trial counsel erred by not advising his client about the right to allocute at revocation. However, the trial court record provided in this appeal does not support that argument. There is simply no evidence whether or not counsel advised his client about allocution in this context. If, contrary to his assertion in the SAG, Mr. Strenge does not believe counsel advised him of the right to allocute at the revocation hearing, he must file a personal restraint petition and present evidence on that point. McFarland, 127 Wn.2d at 338. In the absence of evidence, this first contention fails to establish any error by counsel.
The next alleged failing of counsel is that he did not argue for community supervision sanctions instead of revocation of the SSOSA. This argument suffers from some of the same weaknesses as the previous argument. The goal to be pursued in litigation is determined by the client, not the attorney. RPC 1.2(a). This record does not disclose what goal Mr. Strenge was hoping to achieve in this litigation—to stay in treatment in the community at all costs, or to attempt to avoid any incarceration. Without knowing this fact, it is impossible to establish that counsel erred.
The argument also misses the point of the proceedings before the court. The State was seeking revocation due to the defendant's lack of amenability to treatment. Arguing for alternative punishment would not be a response to the motion before the court. Although counsel could properly argue for a local jail sanction for his client, the fundamental issue was whether or not Mr. Strenge was amenable to treatment and should stay in the community to obtain it. To that end, counsel obtained an expert who was willing to work with his client. Counsel presented that evidence to the trial court. The trial court decided that there was no need to give Mr. Strenge additional chances in the community. The court's decision did not turn on the punishment possibilities available to it, but, rather, on the question of whether treatment was likely to be efficacious or not.
In light of the circumstances of this hearing, Mr. Strenge has not convinced us that his counsel erred by not arguing for a local jail sanction for his client. In the absence of error by counsel, there is no basis for finding him ineffective. This second argument is also without merit.
Revocation Decision. Finally, Mr. Strenge argues that the trial court erred in revoking his SSOSA sentence. The trial court did not abuse its considerable discretion in this matter.
The decision whether or not to revoke a suspended sentence rests in the sound discretion of the trial court. State v. McCormick, 166 Wn.2d 689, 706, 213 P.3d 32 (2009). Discretion is abused when it is exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
The basis of Mr. Strenge's argument on this point is the same as his second argument regarding his trial counsel's performance—the trial court should have considered local jail sanctions instead of revoking his suspended sentence. For reasons similar to those just discussed, this argument must fail.
In its essence, this argument fails to appreciate the true issue at the revocation hearing. The State was seeking to revoke the suspended sentence because Mr. Strenge was not amenable to treatment. It was not seeking to revoke the SSOSA merely because he had repeated contact with his young victim. Rather, those repeated violations were evidence that he had not complied with his sentence, which gave the trial court the power to again consider the appropriateness of treatment in the community. The evidence also informed the court about a significant problem with Mr. Strenge remaining in the community. But the request made by the State was that the court discontinue the treatment regime because there was no longer any point in attempting treatment in the community. It was not seeking revocation merely to punish Mr. Strenge for his violations of the no-contact provision.
Violation of sentence conditions and lack of progress/amenability to treatment are separate reasons for revoking a SSOSA sentence. McCormick, 166 Wn.2d at 705-706.
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The trial court had discretion to revoke the SSOSA due to both the violation and the lack of amenability to treatment. McCormick, 166 Wn.2d at 705-706. It was understandable that the court chose to revoke the sentence. Ms. Hinze took the unusual step of recommending revocation early in a failed treatment regime. This was not an offender who was making good faith efforts to address his problems. It appeared to the trial court that Mr. Strenge was simply an offender who had no interest in addressing his issues and preferred to continue on with his life as he had to that point. The opinions of Ms. Hinze and Mr. Hathaway were tenable reasons to revoke the SSOSA. While the contrary opinion of Mr. Averett would have justified remaining with treatment, the trial court was free to choose which expert advice to follow. In light of Mr. Strenge's continued transgressions, the trial court had no reason to grant him additional time to become serious about pursuing treatment.
There were tenable reasons to revoke the SSOSA. There was no abuse of discretion.
The judgment is affirmed.
A majority of the panel has determined 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.
Korsmo, J.
WE CONCUR:
Kulik, C.J.
Sweeney, J.