Opinion
Nos. 46263-6-I consolidated with 47530-I.
Filed: April 30, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of King County, No. 98-1-04903-7, Hon. Richard M. Ishikawa, February 16, 2000, Judgment or order under review.
Counsel for Appellant(s), Catherine A. Chaney, Law Office of Catherine Chaney, 810 3rd Ave Ste 757, Seattle, WA 98104.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/Appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Daniel J. Clark, King County Courthouse, 516 3rd Ave Rm W554, Seattle, WA 98104.
Paul Scofield appeals the order revoking his Special Sex Offender Sentencing Alternative (SSOSA) sentence and seeks an order directing a new revocation hearing by a personal restraint petition. He argues that the trial court's oral findings are insufficient to permit judicial review and that the court erred in denying his motion to continue the revocation hearing. He also claims that he received ineffective assistance of counsel. The trial court's oral findings are sufficient to review the claims raised here, and the trial court did not abuse its discretion in denying the motion to continue. Because Scofield fails to show that the alleged errors by counsel affected the trial court's decision to revoke his sentence, we reject his claim of ineffective assistance of counsel. Accordingly, we affirm and dismiss the petition.
In March 1999, Paul Scofield pleaded guilty to two counts of rape of a child in the second degree. The trial court suspended his standard range sentence of 131 months under SSOSA. The suspension was subject to Scofield's compliance with several conditions imposed by the court.
Scofield started treatment in April 1999 under the direction of Susan Moores. In August 1999, Scofield violated several treatment directives by going to a place where children congregate, failing to keep a journal of daily activities, and starting work at a 7-11 store without permission from the Community Corrections Officer (CCO).
In September 1999, Scofield's sex offender treatment group put him on a 90-day treatment probation for again violating treatment directives by failing to report deviant thoughts about his victim and engaging in telephone sexual conversations with an adult male. The probation included the condition that Scofield refrain from committing any more treatment directive violations. Scofield subsequently violated that condition by failing to report problems at work and falsely reporting treatment homework results. In December 1999, Moores terminated Scofield from the treatment program. About a month later, the State filed a Notice of Sentencing Modification Hearing and Motion to Show Cause, and scheduled a hearing for January 11, 2000. The trial court granted defense counsel's motion to continue the hearing. On February 17, 2000, defense counsel again moved for a continuance of the hearing in order to locate another treatment program for Scofield. The State requested that the trial court address Scofield's alleged violations of his SSOSA prior to ruling on the motion to continue.
These violations included being terminated from the sexual deviancy treatment program, failing to report to the CCO, and perusing pornographic material on the Internet. The trial court agreed to address the issue of the alleged violations first, and heard testimony from Moores and the CCO. It found that Scofield had violated the conditions of his SSOSA, and denied the motion to continue. Accordingly, the trial court revoked Scofield's SSOSA and imposed the previously suspended sentence of 131 months. The trial court also denied Scofield's motion for relief from judgment pursuant to CrR 7.8(b)(1), and transferred the motion to this court as a personal restraint petition. Scofield appeals.
Sufficiency of Findings
Scofield first argues that the trial court's oral findings are insufficient to permit our review of the issues raised here because the trial court failed to make findings as to how he had violated the SSOSA condition that he complete a treatment program. Specifically, he takes issue with the fact that the trial court `did not make any specific findings as to whether [he] had violated the treatment rules or had failed to make progress in treatment.' We disagree. Here, after hearing testimony from Moores, Scofield, and the CCO, the trial court stated:
Brief of Appellant at 6.
I'm going to find the allegations [of SSOSA violation] to be correct. I'm not going to continue this matter. You know the consequences, Mr. Scofield[.] [B]ecause of your failure to follow through with the conditions that I've laid out on the suspended sentence, I'm revoking your suspended sentence.
Report of Proceedings on February 17, 2000 at 23.
The lack of specific findings as to how Scofield violated the treatment condition does not impede our review of the issues presented here because Scofield does not challenge that the violation was insufficient to support revocation of his SSOSA sentence. Rather, he claims that the trial court erred in denying his motion to continue and that he received ineffective assistance of counsel. The trial court's oral findings here are sufficient to review these claims.
Scofield's reliance on State v. Dahl is misplaced. There, our Supreme Court held that the trial court improperly considered hearsay evidence at Dahl's SSOSA revocation hearing in violation of his due process right to confrontation. And because it was unclear from the trial court's oral ruling whether it relied on the hearsay evidence to revoke Dahl's SSOSA, the Supreme Court remanded and directed the trial court to conduct a new hearing in which the court explains the grounds for its decision. In so doing, the Dahl court noted that:
139 Wn.2d 678, 990 P.2d 396 (1999).
Dahl, 139 Wn.2d at 687.
Dahl, 139 Wn.2d at 690.
Although oral rulings are permitted, we strongly encourage judges to explain their reasoning in written findings. Such written findings would prevent the unnecessary confusion presented by this case.
Dahl, 139 Wn.2d at 689.
Unlike the defendant in Dahl, who contested the facts supporting one of his alleged SSOSA violations, Scofield does not claim that the trial court improperly considered the facts supporting each allegation. As such, Dahl is inapplicable.
In his reply brief, Scofield also argues that the trial court's failure to make factual findings as to whether his violations based on failure to report to the CCO and perusal of pornographic material were willful precludes our review. We will not consider this argument as it is raised for the first time in a reply brief.
RAP 10.3(c).
Motion for Continuance
Scofield argues both in his appeal and personal restraint petition that the trial court abused its discretion in denying his motion to continue the revocation hearing. We disagree.
The decision to grant or deny a continuance is within the discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion. A trial court abuses its discretion when it exercises that discretion on untenable grounds or reasons. Here, Scofield requested the continuance in order to find another treatment provider. After hearing the witnesses' testimony and reviewing the report recommending revocation prepared by Moores, the trial court determined that Scofield had violated the conditions of his SSOSA and denied the motion to continue. In denying the motion, the trial court stated that a continuance to seek another treatment provider would be useless because it would not give Scofield another chance to comply with the SSOSA conditions given his repeated violations. This was a tenable reason for denying Scofield's motion to continue. Thus, there was no abuse of discretion.
State v. Campbell, 103 Wn.2d 1, 14, 691 P.2d 929 (1984).
State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
In refusing to grant the continuance to find another treatment provider, the trial court stated:
I do, insofar as first offenders are concerned, like to give the person a break because they made a mistake, but once they get a break[,] I have no tolerance for people who violate the situation.
Initially[,] Mr. Scofield received a break from me when I gave him a SSOSA. He apparently violated [it] during his treatment and he was given a break by Ms. Moores and the treatment study group[,] [yet] he still failed to do it [Scofield] [has] tied my hands insofar as giving him anymore breaks.
And there's no idea [that] I could find right now that even if I continued this matter and there's another treatment provider that he could successfully complete that in view of his track record. That's why I'm revoking the suspended sentence[.]
Report of Proceedings on February 17, 2000 at 24.
Ineffective Assistance of Counsel
Scofield also contends on appeal and in his personal restraint petition that he received ineffective assistance of counsel. We disagree. To prevail on a claim of ineffective assistance of counsel, Scofield must first establish that counsel's representation was deficient. Deficient performance is established by showing that given all the facts and circumstances, counsel's conduct failed to meet an objective standard of reasonableness. We employ a strong presumption that counsel's representation was effective. Second, Scofield must show that the deficient representation resulted in prejudice such that `there is a reasonable probability that, but for counsel's errors, the result of the trial would have been different.'
State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996).
State v. Huddleston, 80 Wn. App. 916, 926, 912 P.2d 1068, review denied, 130 Wn.2d 1008 (1996).
State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
Hendrickson, 129 Wn.2d at 78.
If Scofield cannot prove the prejudice prong, we need not determine whether counsel's performance was deficient.
State v. Lord, 117 Wn.2d 829, 884, 822 P.2d 177 (1991).
Here, Scofield contends that the following constitute deficient performance by counsel: the alleged failure to renew the motion for a continuance after Scofield's testimony, failure to find another treatment provider for him, failure to interview Moores, and failure to highlight mitigating information in Moores' report. Assuming, without deciding, that these alleged omissions constitute deficient performance, Scofield cannot show prejudice.
Contrary to Scofield's assertion, the record shows that defense counsel did renew the motion to continue after Scofield testified.
There is no reasonable probability that, but for counsel's alleged failure to renew the motion and find another treatment provider, the trial court would not have revoked his SSOSA sentence. As stated above, the trial court explained that granting a continuance in order to find another treatment provider would be useless because it refused to give Scofield another chance to comply. Likewise, there is no reasonable probability that counsel's alleged failure to interview Moores would have affected the outcome given that Scofield did not dispute Moores' testimony concerning his treatment violations and he admitted that he had violated treatment directives. Scofield cannot show prejudice arising from counsel's alleged failure to point out mitigating factors contained in Moores' report because the court reviewed the report prior to revoking the sentence and was presumably aware of them. Even assuming that the trial court did not consider the mitigating factors, there is no reasonable probability that highlighting them to the court would have affected its decision. That is because the mitigating factors consisted only of Scofield's answers to a polygraph test, which were found to be truthful, in which he stated that he had complied with certain other treatment directives.
Finally, in his personal restraint petition, Scofield asks that we reconsider the trial court's decision revoking his SOSSA because he is amenable to treatment and the Department of Corrections (DOC) lacks treatment services. We decline to do so. Under RCW 9.94A.120(8)(a)(vi), the trial court may revoke the suspended sentence at any time during the period of community custody and order execution of the sentence if: (A) The defendant violates the conditions of the suspended sentence, or (B) the court finds that the defendant is failing to make satisfactory progress in treatment. . . .
RCW 9.94A.120(8)(a)(vi) (italics ours).
Here, the trial court found that Scofield violated the conditions of his SSOSA and properly revoked it. The fact that he is amenable to treatment and may not receive treatment while in the custody of DOC is irrelevant to the trial court's' decision to revoke.
We affirm the order revoking order suspending imposition of sentence pursuant to special sexual offender sentencing alternative. We dismiss the personal restraint petition.