Opinion
No. 56299-1-I.
June 12, 2006.
Appeal from a judgment of the Superior Court for Snohomish County, No. 02-1-02299-0, Richard J. Thorpe, J., entered April 25, 2005.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Dana M. Lind, Nielsen Broman Koch PLLC, 1908 E Madison St, Seattle, WA 98122-2842.
Counsel for Respondent(s), Mary Kathleen Webber, Snohomish County Prosecutors Office, Msc 504, 3000 Rockefeller Ave, Everett, WA 98201-4061.
Affirmed in part and remanded by unpublished per curiam opinion.
Peter Gardner was serving a community-based alternative sentence for child molestation. In violation of conditions of the sentence, he had an affair with the mother of two small children and stayed overnight at her home. We conclude the court did not err in revoking the alternative sentence and imposing prison time.
FACTS
Gardner was convicted of molesting his 9-year-old stepdaughter in October 2002. As it was his first offense, the trial court accepted the State's recommendation that Gardner was an appropriate candidate for a Special Sex Offender Sentencing Alternative. The court sentenced Gardner to a high-end standard range sentence of 68 months, and suspended all but three months of that sentence. The court also ordered community custody and three years of outpatient sex offender treatment.
The court imposed five conditions of community custody relevant to this appeal:
7. Do not possess or access pornographic materials, as directed by the supervising Community Corrections Officer.
8. Do not date women or form relationships with families who have minor children, as directed by the supervising Community Corrections Officer.
9. Do not remain overnight in a residence where minor children live or are spending the night.
. . .
12. Participate and make progress in sexual deviancy treatment with Northwest Treatment Associates. Follow all conditions outlined in your treatment contract. Do not change therapists without advance permission of the sentencing Court.
. . . .
15. Your residence, living arrangements and employment must be approved by the supervising Community Corrections Officer.
Clerk's Papers at 33-34.
Gardner dated a married woman for six weeks in January and February 2005. The woman had two developmentally delayed children, ages 3 and 5, both of whom lived at her home. One night, when the woman's husband was away, Gardner stayed the night at the woman's home. The children were not at home that night. Gardner had not been given permission to date the woman or stay at her house.
Gardner admitted this conduct to his community corrections officer in February 2005. The officer reminded Gardner that he could not, without permission, date women who have minor children. Gardner denied having any contact with the children.
On March 9, 2005, Gardner underwent a polygraph examination, in which he admitted the above facts. The polygrapher, concluding that some of Gardner's answers were deceptive, recommended further testing.
One week later, Gardner again had sex with the woman, this time at his residence. The woman attempted suicide the next day. Her father reported these events to Gardner's community corrections officer.
Gardner was arrested the day of this report, March 18, 2005. He admitted that he knew he was not allowed to have a sexual relationship with the woman because he had not received permission from his treatment provider or community corrections officer. He admitted to having the relationship, to knowing that the woman had minor children, and to staying the night at the woman's home. Four days later, Gardner's treatment provider (Northwest Treatment Associates) terminated him from treatment.
On March 28, 2005, the State filed a Notice of Violation alleging Gardner violated his conditions in four ways:
Violation 1: Forming a relationship with [the married woman], who has minor aged children, without permission of the Community Corrections Officer, from 1/17/05 to 3/17/05.
Violation 2: Staying at an unapproved residence in Lake Stevens, Washington on or about 1/24/05.
Violation 3: Remaining overnight in a residence where minor children live on or about 1/24/05.
Violation 4: Being terminated from Northwest Treatment Associates sexual deviancy treatment program on or about 3/22/05.
Clerk's Papers at 55.
The State recommended revocation of the SSOSA sentence. Northwest Treatment Associates joined in this recommendation, having concluded Gardner was too dangerous to remain in the community.
The court held a violation hearing in April 2005 and found the State had proved the violations. The court revoked the suspended sentence and ordered Gardner to serve 68 months to life in custody, less time already served. Upon release, Gardner will remain in community custody for the rest of his life subject to the original community custody conditions. This appeal followed.
REVOCATION OF SUSPENDED SENTENCE
Under the version of the Sentencing Reform Act in effect at the time Gardner committed his crime, a court may revoke the suspended sentence and order execution of the sentence if it finds that the offender violated a condition or is failing to make satisfactory progress in treatment. RCW 9.94A.670(10). Revocation of a suspended sentence rests within the discretion of the court. State v. Badger, 64 Wn. App. 904, 908, 827 P.2d 318 (1992). Proof of violations need not be established beyond a reasonable doubt but must reasonably satisfy the court the breach of condition occurred. Badger, 64 Wn. App. at 908.
Unless otherwise noted, all Sentencing Reform Act citations are to the version of that Act in effect in October 2002.
It is undisputed that Gardner stayed overnight at least once at the residence of the woman with whom he was having an affair, without approval. Gardner contends this was a transient visit and that the court erred in finding that it breached the conditions of his sentence.
The State contends that Gardner's overnight stay at the unapproved residence violated two conditions: No. 9, `Do not remain overnight in a residence where minor children live or are spending the night'; and No. 15, `Your residence, living arrangements and employment must be approved by the supervising Community Corrections Officer.'
Gardner contends he did not violate condition No. 9 because the woman's children were not home on the particular night that he stayed over. However, it is undisputed that they lived there. Gardner's overnight stay was a clear violation of this condition.
As to condition No. 15, the State contends that the woman's residence was part of Gardner's `living arrangements', and had to be approved by his community corrections officer. It is too much of a stretch to say that the location of an overnight stay falls within the definition of `living arrangements.' To live in a place, according to the definitions used by the State itself, is `to reside there, to abide there, to occupy as one's home.' There is no evidence Gardner treated the woman's residence as a home. Therefore, Gardner is correct that the court lacked tenable grounds for its finding that he committed the second violation alleged by the State.
Brief of Respondent at 7 (quoting Black's Law Dictionary, 5th Edition, 1979). Gardner does not challenge any of the State's proposed definitions.
Gardner contends that the remedy for this error is to remand for a new revocation hearing. The State contends the revocation should be affirmed because the remaining violations are adequately supported. Neither party cites authority discussing how to choose which of these remedies is appropriate under the circumstances. A similar question has arisen, however, in the context of deciding whether to remand or affirm an exceptional sentence when it is based on a number of aggravating factors, some of which do not survive the appeal.
In such cases, the general rule is that `remand is necessary when the trial court places significant weight on an inappropriate factor, or where some factors are inappropriate and the exceptional sentence significantly deviates from the standard range.' State v. Pryor, 115 Wn.2d 445, 456, 799 P.2d 244 (1990). A reviewing court can affirm the sentence if it is confident that the trial court, on remand, would impose the same sentence even without considering the improper justifications. In re PRP of George, 52 Wn. App. 135, 149, 758 P.2d 13 (1988).
Borrowing that rule here, we conclude that a new hearing is unnecessary. The critical fact is undisputed. Gardner stayed overnight in the residence of a woman with whom he was having an affair, and whose minor children lived in the same residence. This one fact proved two very serious violations: Gardner, without approval, had formed a relationship with a woman who had minor children; and he remained overnight in her residence where the children were living. Although we have concluded that this fact should not also be characterized as failing to obtain approval of his living arrangements, that conclusion does not detract from the wrongfulness of Gardner's conduct. There is no reason to suppose that the trial court placed significant weight on Gardner's failure to obtain approval of the one-night visit. Gardner was not supposed to be seeing the woman at all without approval, and under no circumstances was he to be staying overnight at that home. We are confident that the trial court would reach exactly the same result based on the three proven violations. The request for a rehearing on revocation is denied.
Remand is necessary, but for a more limited purpose. As a condition of community placement, the court ordered that Gardner should not `possess or access pornographic materials, as directed by the supervising Community Corrections Officer.' Gardner contends, and the State concedes, that this condition is unconstitutionally vague under our decision in State v. Sansone, 127 Wn. App. 630, 634, 111 P.3d 1251 (2005). Because the condition here is substantially the same as that in Sansone, we accept the State's concession. The condition must be stricken, and the sentence is remanded for that purpose. Whether a narrower restriction should be imposed in its place is a question we leave to the trial court.
Revocation affirmed; remanded under Sansone.
BECKER, DWYER, and BAKER, JJ., concur.