Opinion
No. 61692-7-I.
July 28, 2008.
Appeal from a judgment of the Superior Court for Jefferson County, No. 04-1-00123-0, Craddock D. Verser, J., entered October 5, 2007.
Affirmed by unpublished per curiam opinion.
The court did not abuse its discretion when it decided to revoke Justin Taylor's special sex offender sentencing alternative (SSOSA) and impose a standard range sentence. We affirm.
BACKGROUND
Justin Taylor pleaded guilty to second degree child rape in May 2005. The court suspended his sentence and imposed a SSOSA. In February 2007, the court imposed 60 days for Taylor's violation of community custody conditions. In May 2007, after Taylor's sanction ended, the Department of Corrections (DOC) alleged Taylor committed eight new violations: not reporting to DOC, living at an unapproved residence, not registering as a sex offender, not taking required urinalysis and polygraph tests, not making court ordered financial payments, and not attending either sexual deviancy or chemical dependency treatment. After a hearing, the court revoked Taylor's SSOSA and imposed a standard range sentence. Taylor appeals.
ANALYSIS
The decision to revoke a suspended sentence imposed pursuant to the SSOSA lies within the sound discretion of the court. A court abuses its discretion when its decision is manifestly unreasonable, or is exercised on untenable grounds or for untenable reasons. Violation of the SSOSA's conditions need not be established beyond a reasonable doubt. Rather, the court must be reasonably satisfied that a violation occurred.
State v. Daniels, 73 Wn. App. 734, 737, 871 P.2d 634 (1994).
State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003).
State v. Badger, 64 Wn. App. 904, 908, 827 P.2d 318 (1992).
Id.
Taylor first contends the court impermissibly considered a community corrections officer's testimony that he previously violated the SSOSA conditions. The court overruled Taylor's objection, stating it could "consider the whole history while he's on the SSOSA sentence," and was not "limited to just what has occurred since the last hearing from today." According to Taylor, the court needed to apply ER 404(b) on the record before this evidence could be considered.
Report of Proceedings (Sept. 27, 2007) at 65.
ER 404(b) prohibits the court from admitting evidence of other crimes, wrongs or acts to "prove the character of a person in order to show action in conformity therewith." Evidence of other crimes, wrongs or acts is admissible for other purposes, such as proof of motive, plan or identity. State v. Foxhoven, 161 Wn.2d 168, 175, 163 P.3d 786 (2007). Before admitting ER 404(b) evidence, a court must on the record "'(1) find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for which the evidence is sought to be introduced, (3) determine whether the evidence is relevant to prove an element of the crime charged, and (4) weigh the probative value against the prejudicial effect.'" Id. (quoting State v. Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002)).
An individual accused of violating the conditions of a SSOSA is entitled to minimal due process protections, such as the right to confront and cross-examine witnesses and written findings of the evidence relied upon. However, ER 1101 provides that the rules of evidence do not apply to sentencing or probation hearings. We interpret this rule to include SSOSA revocation hearings.
State v. Abd-Rahmaan, 154 Wn.2d 280, 288, 111 P.3d 1157 (2005); State v. Dahl, 139 Wn.2d 678, 683, 990 P.2d 396 (1999).
See State v. Anderson, 88 Wn. App. 541, 544, 945 P.2d 1147 (1997) (community supervision is modern equivalent of probation); Badger, 64 Wn. App. at 908 n. 1 (hearing to determine SSOSA violations analogous to probation hearing).
Consequently, the court did not have to conduct an ER 404(b) analysis before it considered Taylor's past violations. And the record makes clear the court did not consider the evidence to determine whether Taylor had committed the most recently alleged violations, but to determine whether it should revoke the SSOSA. We find no error.
Taylor next contends the court erroneously relied on unsworn testimony of his first treatment provider, Phillip Dennis. Relying on unsworn testimony at a juvenile contempt hearing violates the juvenile's fourteenth amendment due process rights. Assuming the same rule applies to SSOSA revocation hearings, we must determine whether any error was harmless. We also assume the error may be raised for the first time on review and that we apply the standard of review for evaluating constitutional errors. Such errors are harmless if we are convinced beyond a reasonable doubt they did not affect the outcome of the case.
In the Interest of M.B., 101 Wn. App. 425, 470, 3 P.3d 780 (2000).
Id.
See RAP 2.5(a).
State v. Zimmerman, 130 Wn. App. 170, 180, 121 P.3d 1216 (2005).
The court did not place Dennis under oath until cross-examination. During direct examination, Dennis explained why he stopped treating Taylor in January 2007. Dennis repeated this information during cross-examination. The unsworn testimony did not contain any information significantly different from the sworn testimony. Moreover, the testimony related to Taylor's earlier SSOSA violations, not the ones at issue here. The unsworn testimony did not harm Taylor.
Taylor also contends the evidence does not support the court's finding that he failed to make payments towards his financial obligations.
When reviewing a challenge to the sufficiency of the evidence, we must consider the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the violations.
See State v. Luther, 157 Wn.2d 63, 77, 134 P.3d 205 (2006).
In the notice of violations, community corrections officer Jamie Nyblood stated under oath that Taylor was not current in his court ordered payments. According to Nyblood, Taylor had not paid since December 1, 2006 and owed $3,471 as of May 2007. This evidence is sufficient to support the court's finding that Taylor failed to meet his financial obligations.
Taylor next contends he did not receive effective assistance of counsel because his attorney failed to object to hearsay evidence. To prevail on a claim of ineffective assistance of counsel, Taylor must show his counsel's performance fell below an objective standard of reasonableness and the deficient performance prejudiced his hearing. The reasonableness inquiry presumes effective representation and requires the defendant to show the absence of legitimate strategic or tactical reasons for the challenged conduct. To show prejudice, Taylor must demonstrate that but for the deficient performance, there is a reasonable probability the outcome would have been different. If one of the two prongs of the test is absent, we need not inquire further.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
McFarland, 127 Wn.2d at 336.
In re Personal Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998).
Strickland, 466 U.S. at 697; State v. Foster, 140 Wn. App. 266, 273, 166 P.3d 726, review denied, 162 Wn.2d 1007 (2007).
Nyblood testified that another community corrections officer went to Taylor's registered residence and spoke to the owner, who said Taylor had not been there for two weeks. Taylor argues admission of this hearsay testimony deprived him of his sixth amendment right to confrontation.
Even if Taylor's counsel was ineffective for failing to object, Taylor fails to demonstrate prejudice. The court revoked Taylor's SSOSA because he had previously been sanctioned for violations, was not attending either chemical dependency or sexual deviancy treatment, failed to report to DOC, and failed to pay the court ordered fees, not just because he moved from his approved residence. Nothing in the record indicates the court would have made a different decision had Nyblood's testimony been suppressed.
Affirmed.