Opinion
67433-1-I
02-21-2012
STATE OF WASHINGTON, Respondent, v. FERNANDO ANTONIO IRIZARRY, Appellant.
UNPUBLISHED OPINION
Leach, J.
In this consolidated proceeding, Fernando Irizarry alleges the State violated his due process rights by failing to provide him with adequate notice of four alleged community custody violations and failed to prove he violated any condition actually imposed upon him. Because the record does not show that the court or the Department of Corrections (DOC) actually imposed one condition the trial court found Irizarry violated or that Irizarry received the written notice that due process requires for one additional violation, we reverse in part and otherwise affirm.
In a notation ruling dated May 6, 2010, the Division Two administrator-court clerk granted the State's motion to consolidate Irizarry's personal restraint petition with his pending direct appeal.
Background
Fernando Irizarry pleaded guilty in 1998 to first degree rape of a child. The court sentenced him to 108 months in confinement and three years of community custody. The judgment and sentence required Irizarry to submit to HIV (human immunodeficiency virus) and DNA (deoxyribonucleic acid) testing and imposed special conditions of community custody listed in appendix F. The special conditions included:
The offender shall report to and be available for contact with the assigned community corrections officer as directed;
The offender shall work at Department of Corrections approved education, employment, and/or community service;
The offender shall not consume controlled substances except pursuant to lawfully issued prescriptions;
An offender in community custody shall not unlawfully possess controlled substances;
The offender shall pay community placement fees as determined by DOC;
The residence location and living arrangements are subject to the prior approval of the department of corrections during the period of community placement.
The offender shall submit to affirmative acts necessary to monitor compliance with court orders as required by DOC.
The court imposed one additional special condition: "No contact by any means directly or indirectly with the victim K.S., or her family."
After Irizarry served his time in confinement, the DOC released him to a three-year community custody term in July 2005. On July 28, 2009, Irizarry's community corrections officer (CCO), Pamela Bohon, issued an order for his arrest and detention, charging that Irizarry had violated community custody terms. Based on Bohon's order, Irizarry was arrested. Pierce County filed a petition with the superior court, asking that it determine Irizarry failed to comply with three conditions and commit him for 60 days for each violation. Specifically, the State alleged these violations:
Originally, Irizarry's community custody term should have ended in July 2008. However, his community custody time was tolled for some unspecified time period during 2005 and 2006 while Irizarry was incarcerated awaiting trial on an unrelated criminal charge.
1) Defendant has failed to abide by the Department of Corrections imposed conditions by having unauthorized minor contact since January 2009; and
2) Defendant has failed to obey all laws by failing to correctly register his address from January 2009 to May 31, 2009; and
3) Defendant left Pierce County and traveled to King County multiple times since January 2009.
On July 29, the trial court found probable cause to believe Irizarry violated the conditions of release and set a revocation hearing for August 14. Irizarry agreed to stay incarcerated until the hearing. At the violation hearing on August 14, Irizarry protested that he had not received written notice of the charges against him. The prosecutor acknowledged that as of that day, possibly due to a clerical error, even the judge had not yet received notice of the charges, and the court reset the hearing for September 11. The prosecutor asked that Irizarry remain incarcerated until the hearing, and the judge set bail at $25,000. At the end of the hearing, the judge told Irizarry that counsel would be assigned to represent him and that his attorney would speak with him about the allegations so that he could prepare a defense.
Proceedings from this hearing are not in the record; the record contains only the judge's order finding probable cause.
Ultimately, Irizarry appeared in court at least six times over the next six months, and he stayed incarcerated for the duration.
During the September 11 hearing, Irizarry's counsel requested a continuance based on the fact that she had only recently received the case and wanted to research jurisdictional issues regarding the tolling of Irizarry's term of community custody during his incarceration.
On October 9, counsel resolved the jurisdictional issue relating to time Irizarry spent in confinement on an unrelated charge. Then Irizarry's counsel asked that Irizarry be released because he had never been served with a violation report. The prosecutor and a DOC official stated that a lengthy report on the violation hearing had been faxed to the Department of Assigned Counsel. Defense counsel acknowledged that his office had a copy of that report. The judge said she was unaware of this issue, and because the prosecutor filling in that day was not prepared to address this notice issue, the judge set a hearing date for October 14 to resolve whether "he was served or whatever the compliance with that administrative code is." The October 14 hearing did not occur because counsel agreed there was no jurisdictional issue and the WAC notice provisions did not apply to judicial violation hearings.
The order entered that day notes, "State to confirm compliance with WAC by 10/14."
At the November 4 hearing, the attorneys again requested the case be set over because the State's witnesses were not present and the defense needed extra time to gather evidence. Counsel agreed that based on Irizarry's time spent incarcerated waiting for the hearing, his DOC supervision would not end before October 26, 2011. Irizarry again asserted that he had not received notice of the allegations at any time during his 100 days in confinement for the alleged violations or at any of his six court appearances. The State argued that "the defendant was given verbal notice of all of the allegations prior to his initial court appearance. . . . [P]robable cause on the allegations was found." Defense counsel agreed that because a judge had found probable cause to believe the alleged violations occurred, the procedural requirements for an administrative hearing did not apply. The court hearing was rescheduled for December 11. Then, on December 11, the State requested another continuance due to numerous witnesses being unavailable. Over defense objection, the court reset the hearing for January 22, 2010.
On January 22, the court conducted an evidentiary hearing to determine if Irizarry violated his community custody conditions. The State presented three witnesses: Ane Black Crow; Ane's daughter, Morgan Black Crow; and CCO Pamela Bohon. Ane Black Crow testified that between May and July 2009, Irizarry frequently stayed at her home in Auburn. She stated that Morgan's two-year-old daughter, as well as an unrelated minor child, were living in the house at the time Irizarry stayed there. Morgan Black Crow also testified that Irizarry stayed in the Black Crow house twice for two-week intervals, while she and her daughter were there. Pamela Bohon, Irizarry's CCO, testified that as part of his DOC supervision, Irizarry was required to remain in Pierce County unless he received prior written authorization from her, that he never received authorization to go to the Black Crow residence in Auburn, and that he never notified her that he was staying there.
She estimated that there were two separate two-week periods when Irizarry stayed at her residence for approximately ten nights out of the two weeks.
Bohon also testified that on July 27, 2009, Iesha Holley came to her office and played several threatening voice mails and text messages from Irizarry. Iesha Holley did not appear as a State's witness. Irizarry testified on his own behalf that he called and texted Holley because he was angry after receiving a bad check from her.
In closing, the State addressed six alleged violations of community custody: (1) unauthorized contact with minors on multiple occasions from January to May 2009; (2) failure to register; (3) failure to comply with address requirements from January 9 to May 2009; (4) failure to remain within the geographic boundaries prescribed; (5) making harassing, threatening phone calls; and (6) an unknown violation the State chose not to pursue. The judge found all four charged violations pursued by the State occurred and imposed 60-day sanctions for counts 1 and 5. Because the conditions violated in counts 3 and 4 were similar, she imposed 30 days for each count. In total, Irizarry received 180 days of sanctions and credit for the 178 days he spent incarcerated awaiting the violation hearing.
During argument, the State stated it would not pursue this violation for "different legal reasons."
The prosecutor states only, "I'm not going to pursue violation No. 6. Ms. Holley is not present. We were unable to locate her. . . .Those are the four violations that the State is pursuing."
Analysis
Mootness
The State argues Irizarry's claims are moot. "A case is moot if a court can no longer provide effective relief." By the DOC's revised calculation, Irizarry's community custody term should have expired on October 26, 2011. But, at the November 9 hearing, the prosecutor noted that date was tentative since Irizarry remained in confinement awaiting an evidentiary hearing on the community custody violations. He remained incarcerated until the following January, and his community custody sentence was tolled during that period. The State has not shown that Irizarry's community custody has, in fact, ended. Therefore, we cannot conclude that the appeal is moot.
Orwick v. City of Seattle, 103 Wn.2d 249, 253, 692 P.2d 793 (1984).
Due Process in Revocation Hearings
In Morrissey v. Brewer, the United States Supreme Court held that the Fourteenth Amendment guarantees minimum due process in the context of a parole revocation hearing because the process involves deprivation of a conditional liberty. Our Supreme Court has held that sentence modification hearings should be treated the same as parole revocation hearings.
408 U.S. 471, 408, 92 S.Ct 2593, 33 L.Ed.2d 484 (1972).
State v. McCormick, 166 Wn.2d 689, 700, 213 P.3d 32 (2009); State v. Abd-Rahmaan, 154 Wn.2d 280, 288, 111 P.3d 1157 (2005).
Irizarry repeatedly objected to not receiving written notice of the allegations against him, citing RCW 9.94A.737. Counsel agreed that this statute applied only to a revocation hearing held by DOC hearing officers. But when the legislature established concurrent enforcement procedures to be administered by DOC, it did not divest superior courts of the authority to enforce sentences. Because both proceedings involve the potential deprivation of a conditional liberty, Morrissey's minimum due process standards apply to each.
State v. Gamble, 146 Wn.App. 813, 814, 192 P.3d 399 (2008).
Irizarry claims that the State's failure to provide him with timely written notice of the allegations against him violates his due process rights. The State contends that Irizarry has not properly preserved this assignment of error. Without explicitly saying so, the State encourages this court to find that no issue is preserved for appeal without the utterance of the express words, "I object." RAP 2.5 provides, "The appellate court may refuse to review any claim of error which was not raised in the trial court." The rule does not prescribe a specific form for raising error in the trial court. Certainly, it cannot be read to require dismissal of a meritorious claim on the hypertechnical argument that the party asserting error failed to use a legal term of art to put his objection on the record.
Because Irizarry clearly articulated to the court on multiple occasions that he had due process concerns about notice, we reject the State's argument and consider the merits of his claim.
Due process in a parole revocation hearing requires (1) written notice of the claimed parole violations, (2) disclosure of evidence against the parolee, (3) opportunity to be heard in person and to present witnesses and documentary evidence, (4) the right to confront and cross-examine adverse witnesses, (5) a "neutral and detached" hearing body, and (6) a written statement by the fact finder describing the evidence relied on and the reasons for revoking parole. During the October 9 hearing, defense counsel acknowledged that the Department of Assigned Counsel had received some notice of the State's charges. The record does not show that Irizarry's counsel ever provided this information to Irizarry. The State also claims that Irizarry received oral notice of the allegations at the probable cause hearing. However, Morrissey makes clear that whether the proceeding is administrative or judicial, oral notice will not suffice; the defendant must receive written notice. Additionally, the State continued to change its charges throughout the proceedings. The violations the court found Irizarry committed included one not listed in the violation report. Even if Irizarry received a copy of the violation report, this notice was insufficient to provide him with an opportunity to prepare a defense against the allegations actually presented at the evidentiary hearing which were not contained in the violation report.
Morrissey, 408 U.S. at 489.
The State asserts that they faxed the violation report to the Department of Assigned Counsel twice. But the prosecutor references a 19-page fax from Department of Assigned Counsel to the prosecutor's office. The document is not included in the appellate record, so we are unable to determine what notice it may have provided.
The appellate record does not include a transcript of the probable cause hearing. It contains only the court's order finding probable cause and Irizarry's written stipulation to remain incarcerated pending the August 14 hearing. Neither document shows what the State claims occurred.
On December 11, Irizarry mentioned the State's allegations regarding his threatening Iesha Holley. Further, Irizarry tried to present evidence to explain his contact with Holley. The only violation report included in the appellate record does not mention any violations relating to Holley. Clearly, at some point, Irizarry was made aware of at least that part of the State's case against him.
The court punished Irizarry for one violation not imposed by the judgment and sentence or DOC and one not alleged in the State's violation report. On July 31, 2009, Pierce County prosecutors filed a petition for a hearing to determine noncompliance with condition or requirement of sentence. That petition alleged that Irizarry (1) had unauthorized contact with a minor, (2) failed to correctly register his address, and (3) left Pierce County and traveled to King County multiple times. The judgment and sentence imposed only one of these conditions on Irizarry, the standard requirement for all sex offenders, that he register with the county sheriff within 24 hours of his release from custody. In addition, CCO Bohon testified that DOC restricted Irizarry's travel to within Pierce County unless he received prior written authorization from her. The appellate record contains no evidence of a general prohibition against contact between Irizarry and minors.
At the evidentiary hearing, the prosecutor did not limit himself to the allegations listed in the State's petition. Instead, he delineated six violations, four of which he asked the court to decide. The judge found all four violations had occurred. The order modifying sentence found these violations: (1) having contact with minors, (2) failing to comply with address notification to community corrections officer, (3) failing to remain in geographical boundaries by traveling out of county, and (4) violating law abiding behavior by making threats to Iesha Holley.
Irizarry did not receive notice sufficient to allow him to prepare a defense to the fourth violation found by the trial court. Also, the trial court modified his sentence for violating one condition not included in his judgment and sentence or imposed by DOC—no contact with minors. "The court cannot punish someone for violating a condition of sentence that was not actually imposed by the court" or DOC. Both of these errors violate Morrissey due process requirements and require reversal of the trial court with respect to violations for contact with minors and making threats to Iesha Holley.
State v. Robinson, 120 Wn.App. 294, 302, 85 P.3d 376 (2004).
In his personal restraint petition, Irizarry repeats the due process claims raised in his direct appeal. In addition, he claims that the trial court improperly imposed sanctions after the expiration of his community custody term and that the State failed to timely arraign him in Pierce County Superior Court case no. 10-1-00153-2. His additional claims are frivolous.
In this action, Irizarry was charged with failure to register as a sex offender.
Irizarry's claim that his community custody term expired before the court considered the alleged violations ignores the provisions of former RCW 9.94A.625(3) (2000). This statute provided for the tolling of a term of community custody when an offender is in custody for any reason. After being released to community custody on November 5, 2006, Irizarry was in custody pending trial on an unrelated charge from his arraignment on November 29, 2006, until his sentencing date of October 17, 2008. His term of community custody was tolled during this period. Before he was taken into custody on the subject violation allegations, his term was to expire on October 26, 2011. Therefore, Irizarry's challenge to the trial court's authority to impose sanctions based upon an alleged expiration of his community custody term fails.
Recodified as RCW 9.94A.171(3) (Laws of 2008, ch. 321, § 28), effective August 1, 2009, but the tolling provisions remain the same.
Irizarrys claims related to case no. 10-1-00153-2 are moot because the case was dismissed before trial. As a result, Irizarry is under no restraint and is not facing the possibility of any restraint related to that case.
Conclusion
Because Irizarry was not given adequate notice of one of the alleged violations and because he was sanctioned for violating one community custody condition not imposed, we reverse the trial court with respect to the violations for contact with minors and making threats to Iesha Holley. We otherwise affirm and remand for further proceedings consistent with this opinion.
Personal Restraint Petition
Because we find for Irizarry in his direct appeal, we make no consideration of the additional grounds stated in his personal restraint petition.