Opinion
No. 60609-3-I.
February 23, 2009.
Appeal from a judgment of the Superior Court for Snohomish County, No. 00-1-01480-0, Richard J. Thorpe, J., entered September 4, 2007.
Affirmed by unpublished per curiam opinion.
A trial court may exercise its authority and revoke an offender's suspended sentence if it finds a violation of any of the Special Sex Offender Sentencing Alternative's (SSOSA) terms. Here, overwhelming evidence supports the trial court's finding that Trevor Billington failed to make satisfactory progress in his sexual deviancy treatment program. Therefore, we affirm.
FACTS
In 2001, Trevor Billington was convicted of rape of a child in the first degree. The trial court sentenced him to 123 months' imprisonment but suspended his sentence if he complied with the terms of a SSOSA. Billington's SSOSA required him to comply with all conditions imposed by the Department of Corrections (DOC) while he worked to successfully complete a sexual deviancy treatment program.
In September 2007, after multiple warnings and extensions of time to successfully complete his treatment, the trial court revoked Billington's SSOSA and ordered him to serve the full term of 123 months' confinement. Billington appeals the revocation of his SSOSA.
ANALYSIS
On appeal, Billington argues he was denied due process. He contends the trial court erred in applying a "reasonable belief" standard instead of the higher "preponderance of the evidence" standard when it found that Billington had failed to make satisfactory progress in his treatment. There is nothing in the record to support such a contention. The trial court did not specify what standard it was applying when it made the revocation ruling, but the record is replete with evidence of Billington's multiple violations of his SSOSA, including his failure to make satisfactory progress in treatment.
Although the statute does not set forth the standard of proof required to revoke an offender's SSOSA, the Supreme Court in State v. Dahl held that defendants facing SSOSA revocation are entitled to the same due process protections afforded to those facing revocation of probation or parole. And in other situations in which a similar liberty interest was at stake, this court has held that due process requires the court to find a violation by a preponderance of the evidence. Here, there is no indication that the trial court applied a lower standard of proof.
See RCW 9.94A.670(10).
139 Wn.2d 678, 683, 990 P.2d 396 (1999).
In re Pers. Restraint of McKay, 127 Wn. App. 165, 168-69, 110 P.3d 856 (2005); see also RCW 9.94A.634(3)(c) (requiring other community custody violations be proven by a preponderance of the evidence).
On January 10, 2007, the State filed a petition to modify and revoke Billington's SSOSA because he had failed to report as directed, stayed at an unapproved residence, pursued a relationship with a woman who is the mother of minor children without approval and failed to make satisfactory progress in his sexual deviancy treatment. Billington's Community Custody Officer (CCO) submitted a violation report dated January 2, 2007 in which he stated, inter alia, that Billington had failed to report as required. Billington denied that he was ever so directed. The trial court found the CCO to be more credible and that a violation occurred. Further, Billington admitted to having an unapproved relationship with a woman who had minor children. Billington's treatment provider submitted to the court a detailed assessment showing that Billington had failed to make satisfactory progress in his treatment. Nonetheless, the court did not revoke Billington's SSOSA at that time.
Rather, the court accepted Billington's proposal that would permit him to move to Snohomish County where he could rely on family support for employment, housing and other aid to help him complete his treatment. In so doing, however, the court warned Billington that the slightest violation would result in the revocation of his SSOSA. Billington confirmed that he understood the warning.
On August 1, 2007, the State filed another petition to modify and revoke the SSOSA, citing a new report from the DOC concluding that Billington had failed to make satisfactory progress in his treatment. Billington's new treatment provider, Rochelle Cowan-Long, stated that Billington failed to attend scheduled classes, complete assignments, or pay for his treatment. At the revocation hearing, both Billington and his attorney were afforded an opportunity to argue that his SSOSA should not be revoked. Nonetheless, the trial court found Billington had failed to make satisfactory progress in treatment and granted the State's motion for revocation. Ample evidence supports the trial court so finding. Billington's due process argument is meritless.
The trial court is affirmed.