Opinion
No. 28610-0-III.
Filed: March 3, 2011.
Appeal from a judgment of the Superior Court for Grant County, No. 04-1-00661-1, John M. Antosz, J., entered October 9, 2009.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Sweeney, J., concurred in by Kulik, C.J., and Brown, J.
This appeal follows the revocation of a suspended sentence. The sentence was suspended pursuant to an alternative sentencing scheme for sex offenders. The assignment of error centers on the State's revocation notice. It cites drug use and failure of urinalysis tests as the grounds for revocation. But the judge ultimately revoked the suspended sentence for failure to make progress in the sex offender treatment program. We conclude that the offender's failure to object and his unreserved participation in the proceedings amount to a waiver of any claim based on lack of notice, especially when we consider the minimal due process rights he is entitled to in the first place.
FACTS
Brian Kohn pleaded guilty to two counts of first degree child molestation in April 2006. He committed the offense described in the first count between 2002 and 2003 and the second count between 1997 and 1998. The court sentenced Mr. Kohn to indeterminate sentences of 96 months to life on both counts but then suspended his sentence to permit his participation in the special sex offender sentencing alternative (SSOSA), RCW 9.94A.670. The sentence included a term of community custody.
Mr. Kohn violated a number of his community custody conditions starting in November 2006. He failed to comply with drug and alcohol treatment, used cocaine, and failed to adequately participate in the required treatment program. Mr. Kohn and the State entered into some stipulated agreements and he continued on SSOSA.
But Mr. Kohn again violated the conditions of his community custody during 2009, this time by consuming methamphetamine and failing to report for urinalysis (UA) testing. So his community corrections officer filed a notice of these violations and also recommended that Mr. Kohn's SSOSA be revoked.
The violations proceeded to a revocation hearing on October 9, 2009. The community corrections officer, Steven Clay, testified about the violations and recommended that Mr. Kohn's SSOSA be revoked. Mr. Kohn's lawyer asked Mr. Clay about Mr. Kohn's compliance with his treatment program. The State objected that it was irrelevant because it did not pertain to the specific SSOSA violations alleged in the notice. But the State went on to urge that it was relying on both the specific violations and Mr. Kohn's failure to make progress with his sex offender treatment program:
[The Prosecutor]: Your Honor, the allegations before the court are either dirty UAs for meth or failing to report for UA testing. . . .
THE COURT: Let me say this, I know where you're going, but I think it is relevant because one of the criteria is making satisfactory progress. And I wouldn't call it necessarily opening the door, but the state brought up the history of violations and I think that at least we should somewhat go over that. So . . .
. . . .
[The Prosecutor]: I refer to 9A — 9.94A.670(10). "The court may revoke the suspended sentence at any time during the period . . . and order execution if: (a) The offender violates the conditions of the suspended sentence, or (b) the court finds that the offender is failing to make satisfactory progress in treatment."
. . . .
[The Prosecutor]: And at this point although one could conclude that a violation of conditions would satisfy an allegation that the offender is failing to make satisfactory progress, the only allegation before the court right now is that there's a violation of the conditions of the sentence.
. . . .
THE COURT: You're not asserting, then, that he's failing to make satisfactory progress?
[The Prosecutor]: It would overlap, but the direct — and that's a conclusion that the court can direct — can draw from-
THE COURT: No. My question is are you asking the court on the basis of failing to make satisfactory progress? It's a simple yes or no. You have a choice. It's either/or.
[The Prosecutor]: I guess I'm going to have to say yes that it would be both then, as to A and to B. It's an alternative pleading.
Report of Proceedings (RP) at 71-73.
Following this exchange the court overruled the State's objection and allowed Mr. Kohn's lawyer to ask about Mr. Kohn's progress in the treatment program. The court also heard testimony from Mr. Kohn's sex offender treatment provider, Michael Morris. Mr. Morris testified that "continuing in treatment is a reasonable option" for Mr. Kohn despite the violations. RP at 89. Mr. Morris estimated that Mr. Kohn needed another 18 months of treatment. RP at 113.
The court concluded that the State had proved the violations by a preponderance of the evidence. The court concluded that it could suspend the SSOSA sentence based on the violations alone but then went on to conclude that Mr. Kohn had not made satisfactory progress in his treatment program:
Therefore, in the time that has transpired since the release in October of `06 from the judgment and sentence that was first entered in April of `06, he was, again, released in October of `06, that's about three years — we're right about where we expected Mr. Kohn to be completed with his treatment. And instead, Mr. Morris tells us there's still 18 more months to go. So we're a little more than 50 percent complete where we were expecting to be 100 percent complete.
RP at 159.
The court's written findings base Mr. Kohn's revocation on his admitted violations of the conditions of the suspended sentence. But the court goes on to conclude that Mr. Kohn failed to make satisfactory progress in the treatment program. Mr. Kohn now appeals the revocation.
DISCUSSION
Notice
Mr. Kohn contends that he was denied due process of law because the violation notice cited his drug use and failure to report for UA testing as the grounds to revoke his SSOSA but the court actually revoked the suspended sentence for failure to make satisfactory progress in the sex offender treatment program. Standard of Review
Whether or not the State's notice and the subsequent proceedings violated Mr. Kohn's constitutional due process right to notice is a question of law that we will review de novo. City of Redmond v. Moore, 151 Wn.2d 664, 668, 91 P.3d 875 (2004). Those rights have been characterized as "minimal." State v. Dahl, 139 Wn.2d 678, 683, 990 P.2d 396 (1999). That is because this not a criminal prosecution and so Mr. Kohn is not entitled to the same protections he was entitled to before the court adjudicated him guilty of the crimes that prompted the sentence here. Id. Mr. Kohn also had some obligation to put the court and the State on notice that he considered his right to notice violated. State v. Robinson, 120 Wn. App. 294, 300, 85 P.3d 376 (2004). An objection is important because revocation hearings, like most other court proceedings, are time consuming and expensive. State v. Naillieux, 158 Wn. App. 630, 638, 241 P.3d 1280 (2010). So Mr. Kohn should not be allowed to sit by and let the revocation hearing proceed, see how things turn out, and then assert lack of notice on appeal. See State v. Nelson, 103 Wn.2d 760, 766, 697 P.2d 579 (1985) (defendant could not sit by while his due process rights were violated at a hearing and then allege due process violations on appeal). Due Process
The court here had authority — discretionary authority — to revoke Mr. Kohn's suspended sentence if he violated a condition of that suspended sentence or if he failed to make progress with his treatment. Former RCW 9.94A.670(10) (2002); Dahl, 139 Wn.2d at 683.
Several things become clear from a fair reading of this record. The State did not allege in its violation notice that Mr. Kohn had failed to make adequate progress with his sex offender treatment. Instead the State alleged specific violations — that he used drugs and failed UA tests. But it is also clear that Mr. Kohn did not object to the notice explicitly or implicitly after the prosecutor openly asserted both failure to make progress in treatment and violations of the suspended sentence conditions. RP at 69-73. Indeed, Mr. Kohn examined witnesses as though the State had always alleged failure to make adequate progress. RP at 85-91. The court ultimately announced that it would revoke Mr. Kohn's suspended sentence because he failed to make satisfactory progress in the treatment program and, again, Mr. Kohn was silent. RP at 158-59. Finally, Mr. Kohn's counsel approved of and signed an order revoking the suspended sentence, again based on the failure to make adequate progress. Clerk's Papers at 135-36.
We conclude that Mr. Kohn waived any claim that his due process right to notice was violated by what took place here. Robinson, 120 Wn. App. at 299-300. Indeterminate Sentence
Mr. Kohn next contends that the court improperly sentenced him on the second count to an indeterminate sentence based on a new statute that did not apply to acts committed between 1997 and 1998. The State agrees. We therefore remand for sentencing under the earlier statute. Former RCW 9.94A.712 (2001) applies to crimes committed on or after September 1, 2001. Laws of 2001, 2d Spec. Sess., ch. 12, § 303.
We affirm the order revoking Mr. Kohn's suspended sentence. We reverse and remand for sentencing in accordance with this opinion.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
KULIK, C.J. and BROWN, J., Concur.