Opinion
No. 56201-1-I.
June 19, 2006.
Appeal from a judgment of the Superior Court for King County, No. 93-1-00612-4, Laura Gene Middaugh, J., entered May 11, 2005.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, 1511 Third Avenue, Suite 701, Seattle, WA 98101.
Thomas Michael Kummerow, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Carla Barbieri Carlstrom, King Co Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2390.
Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Affirmed by unpublished per curiam opinion.
Violations of the minimal due process right to confrontation at a sentence modification hearing are subject to harmless error analysis. Here, the admission of hearsay evidence, without a finding of good cause, was harmless beyond a reasonable doubt because the trial court did not rely on the hearsay in finding that Lewis willfully violated his sentencing conditions. We affirm.
State v. Dahl, 139 Wn.2d 678, 688, 990 P.2d 396 (1999).
In 1993, a jury convicted Ricky Lee Lewis of rape in the second degree. Lewis received a standard range sentence of 130 months of confinement and two years of community placement.
In 2005, the court held a sentence modification hearing. The State alleged that Lewis had violated his sentence conditions by: (1) failing to stay at an approved residence, since mid-March; (2) failing to work at a department-approved education, employment, or community restitution program, since March; and (3) threatening to kill community corrections officer (CCO), Theo Lewis, when taken into custody. Lewis denied the first two allegations and invoked his Fifth Amendment right to remain silent as to the third allegation.
(This opinion will refer to Theo Lewis by his full name and appellant, Ricky Lewis, as Lewis).
At the hearing, Lewis' CCO, Jeffrey Brown, testified that Lewis is a homeless level three sex offender and required to stay in Department of Corrections (DOC) approved shelters. Brown testified that Lewis was to go to Nightwatch, a referral service for shelters, at 10:00 p.m. and receive a voucher to stay at a designated shelter for that evening. When Lewis stayed at a shelter, he was required to get a signature to confirm his stay. Lewis told Brown that he had been staying nightly at the First Avenue Service Center shelter. However, Lewis' verification sheets showed that he did not receive signatures from shelters for part of the month of March, but had only received signatures from Nightwatch.
The trial court also heard testimony that Brown referred Lewis to several employment agencies and the Center for Career Alternatives. Lewis met with Mr. Sato at the Center for Career Alternatives, but never began the program. Brown informed Lewis that if he did not enroll himself in an educational program or find some kind of employment, he would be required to perform community service. Lewis informed him that he would not work for free.
In April 2005, Lewis was taken into custody for violating the terms of his community custody. Theo Lewis testified that Lewis resisted arrest and threatened him when Lewis was taken into custody. Theo Lewis further testified that he did not take the threat seriously.
The trial court found that Lewis committed willful violations of his community custody including: `failing to reside [at] DOC approved residence; failing to work [at] DOC approved employment, education or community restitution [program]; [and] threatening to harm CCO Theo Lewis.' The court imposed consecutive 60 day sentences for the three violations.
Lewis already served the 180 days imposed by the trial court, but the court also tolled Lewis' community placement while in custody. This appeal is not moot because if Lewis prevails, he would be entitled to some relief.
DUE PROCESS
Lewis argues that his due process rights under Morrissey were violated because the trial court admitted hearsay evidence without determining whether good cause existed. We agree, but hold that the error was harmless beyond a reasonable doubt.
Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972).
A sentence modification hearing requires minimal due process protections, including `the right to confront adverse witnesses unless good cause existed not to allow the confrontation.' The trial court may consider hearsay evidence only if there is good cause to forgo live testimony. Good cause is defined in terms of "difficulty and expense of procuring witnesses in combination with `demonstrably reliable' or `clearly reliable' evidence." Trial courts are not required to make written findings establishing good cause, as long as there is some record explaining the evidence on which the trial court relied and the reasons for the admission of the hearsay evidence.
State v. Abd-Rahmaan, 154 Wn.2d 280, 288, 111 P.3d 1157 (2005) (citing Morrissey, 408 U.S. 471).
Dahl, 139 Wn.2d at 686.
Id. at 686 (quoting State v. Nelson, 103 Wn.2d 760, 765, 697 P.2d 579 (1985)).
Abd-Rahmaan, 154 Wn.2d at 290.
Violations of the minimal due process right to confrontation are subject to harmless error analysis. The harm in erroneously admitting hearsay evidence and thus denying the right to confrontation is the possibility that the court will rely on unverified evidence in making its determination.
Dahl, 139 Wn.2d at 688.
Id.
Here, Brown testified that on the evening of March 30, 2005, he spoke with Raphael, the doorman at the First Avenue Service Center shelter, to determine whether Lewis had been to the shelter that night. When someone is referred to the shelter by Operation Nightwatch, they are given a paper ticket to give to the doorman upon entry. Brown testified that Raphael looked through the pile of tickets for the people who had entered that night and did not find one for Lewis.
Over defense objection, the trial court admitted the hearsay evidence of Raphael looking through the stack of tickets, finding sufficient reliability. However, the trial court made no finding regarding the difficulty in procuring live testimony from Raphael.
The State asserts that the record reflects it was difficult to procure live testimony from Raphael because defense counsel made attempts to contact Raphael and was unable to do so. This argument is unpersuasive. Defense counsel stated that she was unable to reach Raphael on one particular occasion. This alone does not suffice for a finding of difficulty to procure live testimony. Assuming without deciding that the ticket hearsay evidence is sufficiently reliable, the record is insufficient to satisfy the live testimony prong.
Thus, the record is insufficient to establish good cause for admitting the hearsay evidence.
However, the error was harmless. The record shows that the trial court did not rely on the hearsay evidence in finding a violation. Rather, the court relied on exhibit one, the documentation that Lewis presented to Brown regarding the verification of his stays in the shelter, in determining that Lewis willfully failed to reside at DOC approved residence. This documentation showed that Lewis did not receive signatures from shelters for the end of March. This is sufficient to prove violation of the sentence conditions.
Finally, Lewis argues that the trial court improperly shifted the burden to him because on several occasions the court stated that Lewis had the burden to comply with the conditions. The State bears the burden of showing noncompliance by a preponderance of the evidence. If the burden is satisfied, the burden shifts to the defendant to show cause why he should not be punished.
RCW 9.94A.634(3)(c); State v. Anderson, 88 Wn. App. 541, 545, 945 P.2d 1147 (1997).
State v. Woodward, 116 Wn. App. 697, 702, 67 P.3d 530 (2003).
Here, the State provided sufficient evidence that Lewis violated the three conditions, shifting the burden to Lewis to show compliance. As noted by the trial court, Lewis failed to meet this burden.
We affirm the judgment and sentence.
COX, APPELWICK and BECKER, JJ.