Opinion
Nos. 59288-2-I; 59289-1-I.
May 4, 2009.
Appeals from a judgment of the Superior Court for King County, No. 05-1-09761-9, J. Wesley Saint Clair, J., entered November 17, 2006.
Affirmed by unpublished opinion per Becker, J., concurred in by Dwyer, A.C.J., and Agid, J.
UNPUBLISHED OPINION
Appellant Michael Crist appeals the trial court's order that terminated his participation in drug court for non-compliance. He contends the termination was not supported by sufficient evidence because the "Drug Court Policy and Procedures Manual," to which the trial court referred in finding grounds for his termination, was not included in the trial records. Regardless of the absence of the manual, however, the record shows that Crist did not comply with the requirements he agreed to when his case was diverted to drug court. His non-compliance with the agreements provided the court with sufficient grounds for his termination. We affirm.
In March 2005, the State charged Crist with one count of delivering heroin. In June 2005, Crist and the State entered into a Drug Diversion Court Waiver and Agreement. Crist agreed that "if I do not comply with the conditions of this agreement, a hearing will be held at which the State will present all evidence related to this charge including but not limited to the police report and the results of any law enforcement field test." The agreement also states:
I understand and agree that any violation of Drug Court requirements such as dirty urinalysis tests, missing treatment sessions, any failure to abide by the terms of this agreement, or commission of a new crime, may result in modification of the treatment program, imposition of a sanction, revocation of my conditional release, and/or termination from the program.
In September 2005, the State charged Crist with one count of possessing cocaine. That same month, Crist and the State entered another Drug Diversion Court Waiver and Agreement. The agreement contained the same terms and conditions as the agreement of June 2005.
In June and August of 2006, the State filed notices of drug court termination hearing and motion to show cause, alleging that Crist missed many treatment appointments and urinalysis tests. The notices also alleged that Crist had several positive urinalysis tests and had exhibited violent behavior.
After a hearing in November 2006, the court terminated Crist's drug court treatment program for "non-compliance." The court reviewed the police reports and found Crist guilty as charged in a stipulated trial. The court imposed standard range sentences in each case.
On February 7, 2008, after Crist filed a notice of appeal, the trial court entered Findings of Fact and Conclusions of Law adopting the State's allegations:
3. On June 7, 2005, he was released on personal recognizance to drug court services. During June his progress reports indicated he consistently tested positive for cocaine and opiates, and missed groups and UAs. The defendant asked for inpatient treatment.
4. Drug Court arranged for detox on July 29, 2005, and then inpatient treatment at PCN for August 2, 2005. He failed to appear for detox and inpatient treatment.
. . .
8. The defendant had a positive UA in December and a missed UA in January 2006.
9. The defendant lost his housing because he was gone 2 days without permission. A paperwork mix-up at work release caused him to be placed in custody, and resulted in missed UAs and groups.
10. In February, 2006, the defendant was terminated from CCAP for inappropriate behavior. He also had several positive UAs in February and admitted using cocaine. Drug Court staff also documented that the defendant was abusive in dealing with them. He stopped taking his medications. On 2/21/06 the defendant exploded in court, accusing a drug court case manager of lying.
. . .
12. On March 20, 2006, the defendant failed to appear for a review hearing, and the court issued a bench warrant. He again had positive UAs. . . .
14. During the year he has been in drug court, the defendant has never had an express hearing, and never been in total compliance for any reporting period.
The Conclusions of Law stated:
2. The defendant's failure to comply, described in the facts above, is grounds for termination under the Drug Court Policy and Procedures Manual.
3. The Court finds sufficient cause exists to terminate the defendant from Drug Court.
Crist appeals.
Crist contends the trial court erred in terminating him from the drug court program because the record does not show that the Drug Court Policy and Procedures Manual was actually presented to the court. He argues that the court's written conclusions regard the manual as the "source" of the drug court's process, but "no such manual or policy was ever presented in evidence." Crist asserts that the absence of the manual in the trial record constitutes a violation of his due process right.
When the State seeks to terminate an individual's participation in drug court, the State must prove non-compliance with the drug court diversion agreement by a preponderance of the evidence. State v. Varnell, 137 Wn. App. 925, 929, 155 P.3d 971 (2007). Due to the similarity between the court's function in a drug court termination proceeding and in proceedings involving alleged probation, parole, or conditions of sentence violations, Washington courts have held that drug court participants are entitled to the same minimal due process rights. State v. Cassill-Skilton, 122 Wn. App. 652, 656-68, 94 P.3d 407 (2004). Revocation of a suspended or deferred sentence rests within the discretion of the court. State v. Badger, 64 Wn. App. 904, 908, 827 P.2d 318 (1992); State v. J.A., 105 Wn. App. 879, 887, 20 P.3d 487 (2001). A decision to terminate participation in a drug diversion court requires a similar exercise of discretion. We therefore review Crist's termination from drug court under an abuse of discretion standard.
In Cassill-Skilton, the court held that the State could not terminate drug court participation without (1) giving the defendant an opportunity to contest the basis of the termination and (2) creating a record of the evidence relied on to terminate participation. Cassill-Skilton, 122 Wn. App. at 658. Crist does not dispute that he received notice of the alleged violations and had an opportunity to be heard. The court entered written findings and conclusions that spelled out the violations and the evidence on which the court relied.
In June and September 2005, Crist specifically agreed with the State that any violation of drug court requirements such as dirty urinalysis tests and missing treatment sessions could result in termination from the program. These agreements, not the Drug Court Policy and Procedures Manual, were the source of the drug court's process.
Crist does not dispute the evidence that he had positive urinalyses and that he failed to appear for detoxification, in-patient treatment, and a review hearing. This evidence sufficiently shows that Crist violated the requirements listed in the diversion agreements. The trial court, therefore, was within its discretion in terminating Crist from drug court for non-compliance with the agreements. The conclusion that his non-compliance was also grounds for termination under the Drug Court Policy and Procedures Manual was unnecessary and the absence of the manual from the record below was not a due process violation. See, e.g., State v. Sondergaard, 86 Wn. App. 656, 657-68, 938 P.2d 351 (1997) (this court may affirm for any basis apparent in the record).
Crist next argues that because findings of fact and conclusions of law were not entered as required by CrR 6.1(d), he is entitled to reversal. CrR 6.1(d) requires entry of written findings of fact and conclusions of law at the conclusion of a bench trial. State v. Head, 136 Wn.2d 619, 621-22, 964 P.2d 1187 (1998).
Findings of fact and conclusions of law may be submitted while an appeal is pending, as long as the delay causes no appearance of unfairness and the defendant is not prejudiced. State v. Hillman, 66 Wn. App. 770, 774, 832 P.2d 1369 (1992). Because Crist has not shown that the late entry of findings had an appearance of unfairness or that he was prejudiced, there is no error.
Affirmed.
WE CONCUR.