Opinion
No. 37160-0-II.
October 14, 2008.
Appeal from a judgment of the Superior Court for Clark County, No. 05-1-02706-1, John P. Wulle, J., entered November 30, 2007.
Affirmed by unpublished opinion per Houghton, J., concurred in by Armstrong and Quinn-Brintnall, JJ.
David Curtis appeals the revocation of his special sex offender sentencing alternative (SSOSA), RCW 9.94A.670. He argues that the court abused its discretion in failing to consider as an alternative, the imposition of a 60-day jail term, a sanction provided in RCW 9.94A.634 (3)(c). We affirm.
Our commissioner initially considered this matter under RAP 18.14 and referred it to a panel of judges.
FACTS
Curtis's underlying conviction is conspiracy to commit first degree child molestation. The trial court imposed a 51-month sentence but suspended all but 180 days, imposing various conditions, including sexual deviancy treatment that was to begin within 30 days of his release from confinement. He was released on July 30, 2007, and registered with the Clark County Sheriff as a sex offender, indicating his homeless status.
Curtis did not report to his community corrections officer (CCO) on September 11 as required. The CCO attempted to contact him at his workplace but arrived just as Curtis was leaving. He followed Curtis, who stopped first at a liquor store and then went to his girl friend's apartment in Rainier, Oregon. The CCO learned that Curtis had been living there for a month.
Having registered as homeless, Curtis was required to report to his CCO every week.
Based on this incident, the State moved to revoke or modify Curtis's SSOSA, alleging seven violations of the sentencing conditions: (1) failing to register in Oregon and Washington, (2) leaving Washington without permission, (3) possessing alcohol, (4) being in a place where alcoholic beverages are the primary sale item, (5) failing to obtain approval of his girl friend's residence, (6) failing to abide by his CCO's verbal instructions on September 11, 2007, and (7) failing to enter treatment.
Curtis did not return to Washington as directed but stayed in Oregon at his mother's house.
The CCO recommended revocation, asserting that Curtis's adjustment to supervision had been very poor. The CCO said that Curtis did not take supervision seriously, pointing out that he had not gotten into treatment and had repeatedly lied about compliance with sentencing conditions. He noted that Curtis continued to maintain that he had not really committed the crime, that the allegations were a ploy by his ex-wife to get rid of him.
The trial court found six of the seven alleged violations had been committed, rejecting only the fourth. The court told Curtis that there are no second chances for sex offenders, "You either do it all 100 percent or that's it." Report of Proceedings (RP) at 112. The trial court explained that for the safety of the community, a SSOSA recipient had to be in treatment and that it could not condone Curtis's "playing games" about where he lived. RP at 113. The trial court revoked the SSOSA, and this appeal followed.
The trial court noted on the original judgment and sentence that the requirement Curtis stay out of places which sold alcohol was not checked.
ANALYSIS
Curtis contends that the trial court's comments indicate that he believed he had no alternative to revocation. Decisions regarding the revocation of SSOSA sentences rest within the trial court's discretion. A trial court abuses its discretion when it bases its decision on unreasonable or untenable grounds. State v. Partee, 141 Wn. App. 355, 361, 170 P.3d 60 (2007). A decision based on an error of law is based on an untenable ground and constitutes an abuse of discretion. See State v. Nieto, 119 Wn. App. 157, 161, 79 P.3d 473 (2003). Thus, if the trial court believed it did not have the authority to impose a sanction instead of revocation, it abused its discretion. Partee, 141 Wn. App. at 362. The trial court here did not abuse its discretion.
In Partee, the sentencing court stated that it lacked the authority to "'stack'" the sanctions for probation violations, as Partee suggested. 141 Wn. App. at 359.
The trial court asked for the parties' comments regarding disposition. All agreed that revocation was not required. The State argued that Curtis had not proven to be a good candidate for SSOSA. Even defense counsel acknowledged that putting Curtis in the SSOSA program "set him up for failure" because he was not initially employed and could not pay for treatment. RP at 101. Nevertheless, he asked the trial court to give Curtis a second chance to satisfy the requirements.
The trial court discussed the various violations, indicating some were not so serious. However, it believed that Curtis's lack of participation in treatment and his lack of honesty made him a risk to the community. The trial court understood its options and exercised its discretion. There were tenable bases for the decision.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
Armstrong, J., and Quinn-Brintnall, J., concur.