STATE v. McCORMICK (2007)

OPINION PUBLISHED IN PART

 ¶ 1 David McCormick appeals the trial court's order revoking his special sexual offender sentencing alternative (SSOSA).¹  The court found McCormick had violated the conditions of his suspended sentence for first degree rape of a child by frequenting a place where minors are known to congregate, and by failing to complete a sexual deviancy treatment program.   We affirm.

I.

¶ 2 David McCormick was convicted of first degree rape of a child under the age of 12.   At age 55, McCormick had no previous criminal history.   The court suspended his sentence of 123 months, and sentenced him to a SSOSA.   In doing so, the court imposed a number of conditions, including requirements that he not frequent areas where minor children are known to congregate, and that he participate and make progress in sexual deviancy treatment.

¶ 3 After three years of therapy, the court relieved McCormick from continuing treatment.

¶ 4 One year later, the court was notified that McCormick had initiated conversation with two female minors.   His Community Corrections Officer (CCO) also reported that McCormick's niece, who lived in California, had revealed that McCormick had sexually molested her and her sister on numerous occasions approximately 30 years before.   McCormick signed a stipulated agreement acknowledging he had contact with minor children, and agreed to re-enroll in sexual deviancy treatment.

¶ 5 McCormick was back in court the following year.   This time the court found he had violated the conditions of his  SSOSA by visiting the Everett Baptist Church, the Twin Lakes Park, and Everett High School, all areas where children are known to congregate.   McCormick was sentenced to 120 days in jail, and ordered once again into treatment.

¶ 6 In March 2006, McCormick's CCO received information from one of McCormick's housemates that McCormick had been visiting a food bank located in the Immaculate Conception Elementary School, and had on numerous occasions made vulgar sexual comments about young girls.   As churches and schools are considered places where children are known to congregate, the CCO determined that McCormick was in violation of the terms of his supervision.   The CCO informed McCormick's therapist that McCormick would be taken into custody for violating the conditions of his SSOSA.

¶ 7 The therapist then terminated McCormick's participation in the sexual deviancy program he had been attending.   In a letter summarizing the termination, the therapist noted two previous similar incidences to which McCormick had responded with denial and blame.   He also noted that McCormick always claimed to be avoiding high-risk situations.   The therapist concluded that keeping McCormick in sex offender treatment was no longer clinically justified.

¶ 8 At a court hearing, the State offered a written statement by McCormick's housemate, David Bralley, but did not call Bralley himself as a witness.   In the statement, Bralley asserted that McCormick had visited the food bank regularly, and made numerous sexual comments about children.

¶ 9 McCormick's CCO testified that she had provided him with a list of places he was barred from visiting, including schools, churches, and day care centers.   The CCO also testified that the high school McCormick had been sanctioned for visiting was located across the street from the food bank.

¶ 10 The court found McCormick had once again frequented a place where minors are known to congregate, and  failed to complete a sexual deviancy treatment program.   It revoked McCormick's SSOSA and sentenced him to 123 months in prison.

¶ 11 McCormick now appeals.

II.

 ¶ 12 The SSOSA statute provides that a sentencing court may suspend the sentence of a first time sexual offender if the offender is shown to be amenable to treatment.²  An offender's SSOSA may be revoked at any time if a court is reasonably satisfied that an offender has violated a condition of his suspended sentence or failed to make satisfactory progress in treatment.³  Once a SSOSA is revoked, the original sentence is reinstated.⁴  Revocation of a suspended sentence rests within the discretion of the court.⁵  A trial court abuses its discretion when its decision is manifestly unreasonable or is based on untenable grounds.⁶

 ¶ 13 The revocation of a suspended sentence is not a criminal proceeding.⁷  Accordingly, the due process rights afforded at a revocation hearing are not the same as those afforded at the time of trial.⁸  An offender facing revocation of a suspended sentence has only the minimal due process rights afforded one facing revocation of probation or parole.⁹

 ¶ 14 Minimal due process at a revocation proceeding entails:  (a) written notice of the claimed violations, (b)  disclosure to the parolee of the evidence against him, (c) the opportunity to be heard, (d) the right to confront and cross-examine witnesses (unless there is good cause for not allowing confrontation), (e) a neutral and detached hearing body, and (f) a statement by the court as to the evidence relied upon and the reasons for the revocation.¹⁰  These requirements exist to ensure that the finding of a violation of a condition of a suspended sentence will be based upon verified facts.¹¹

 ¶ 15 A revocation hearing should not be equated to a full-blown criminal prosecution, because society has already been put to the burden of proving beyond a reasonable doubt that the defendant was guilty of the crime for which the sentence was imposed.¹²

Willfulness

 ¶ 16 McCormick argues that the court was required to find that his violations were willful before it could revoke his suspended sentence.   He asserts that the court's failure to make a finding of willfulness equates to strict liability, and that revocation without a finding of willfulness violates due process.

¶ 17 In support of his argument he cites a number of cases addressing willfulness in relation to conviction.  State v. Sisemore¹³ deals with jury instructions regarding a no-contact order violation.   Likewise, Lambert v. People of the State of California¹⁴ (distinguishing wholly passive conduct from willful behavior), State v. Anderson,¹⁵ and State v. Warfield¹⁶ (both  firearm possession cases) deal with findings of willfulness required for conviction.   But because the due process rights afforded at a revocation hearing are not the same as those afforded at the time of trial, the cited cases are not relevant to McCormick's argument.

¶ 18 He also relies on Bearden v. Georgia¹⁷ and Smith v. Whatcom County District Court.¹⁸  In those cases, the offender's probation was revoked due to failure to pay financial obligations.   The Supreme Court recognized the fundamental unfairness in punishing a probationer by revoking his probation when he has made all reasonable efforts to pay a fine but was not able to do so through no fault of his own.¹⁹  The Court held that willfulness was not a requirement in all situations.²⁰

¶ 19 Reflecting that moral imperative, RCW 9.94A.634 (covering noncompliance with condition or requirement of sentence) specifies willfulness as an element of noncompliance only with regard to legal financial obligations and restitution.²¹

¶ 20 Under the Sentencing Reform Act of 1981 ²² (SRA), the trial court may revoke a SSOSA suspended sentence whenever the defendant violates the conditions of the suspended sentence, or the court finds that the defendant is failing to make satisfactory progress in treatment.²³  RCW 9.94A.670(10) does not require that a violation be willful.   Proof of violations need not be established beyond a reasonable doubt, but must reasonably satisfy the court that the breach of condition occurred.²⁴

¶ 21 This court addressed the issue of willfulness in State v. Gropper:²⁵

RCW 9.94A.200(2)(c) ²⁶ does not require a court to consider willfulness before ordering incarceration for a violation of a condition that does not involve a financial obligation.   By its terms, that section of the statute applies to orders “regarding payment of legal financial obligations and ․ community service obligations.”   Nothing in the statute suggests that section (2)(c) should be applied to any other type of violation.[²⁷ ]

¶ 22 We follow the clear precedent of the Gropper decision and hold that no finding of willfulness was required.

¶ 23 The remainder of this opinion has no precedential value.   Therefore, it will be filed for public record in accordance with the rules governing unpublished opinions.

Sufficiency of Evidence

¶ 24 The State bears the burden of showing an offender's noncompliance with a condition of his suspended sentence by a preponderance of the evidence. 28  McCormick argues that his mere presence at the food bank is insufficient to meet the State's burden. He argues that because he arrived at the food bank after the children arrived at school, and because the food bank was separated from the main school building, the playground, and drop-off area, he could not be found in violation unless the State demonstrated that minors were known to congregate while he was there.

¶ 25 McCormick had been told specifically not to go to churches or schools.   The food bank was located in a facility associated with both a church and a school.   The conditions of his SSOSA did not limit McCormick's presence to those times when children were actually present.   He was barred from churches and schools altogether.   The court could be reasonably satisfied that McCormick, by visiting the food bank, had violated a condition of his suspended sentence.

¶ 26 Likewise, the court could be satisfied that McCormick had failed to make progress in his treatment.   McCormick had already been sent back into offender treatment once before after he was found in violation of the conditions of his suspended sentence.   After the CCO contacted McCormick's therapist, McCormick was dropped from the treatment program.   While the therapist's termination summary was offered in response to the CCO's report that McCormick had been visiting the food bank, it also cited two similar prior incidents.   The counselor noted that McCormick had claimed to be avoiding high-risk situations, and that his response to those prior incidents appeared dishonest and manipulative.   The counselor concluded that continued offender treatment was no longer clinically justified.

¶ 27 We hold that the evidence was sufficient to find that McCormick had violated a condition of his suspended sentence, and failed to make satisfactory progress in treatment.

Vagueness

¶ 28 The due process vagueness doctrine has a twofold purpose:  (1) to provide adequate notice of what conduct is proscribed, and (2) to offer protection from arbitrary ad hoc enforcement.29  Probation conditions are subject to a vagueness challenge, and the challenger has the burden of overcoming the presumption of constitutionality.30

¶ 29 The constitution does not require “impossible standards of specificity” or “mathematical certainty” because some degree of vagueness is inherent in the use of our language.31  Thus, a vagueness challenge cannot succeed merely because a person cannot predict with certainty the exact point at which conduct would be prohibited.32

¶ 30 In State v. Riles,33 our supreme court rejected the argument that no contact conditions and conditions ordering an offender to not frequent places where minors congregate are unconstitutionally vague.34  Courts have authority to order offenders not to have direct or indirect contact with a specified class of individuals.35

¶ 31 McCormick argues that the condition that he avoid areas where minors congregate is impermissibly vague as applied to his conduct.   Essentially, he argues that because he was not told to avoid food banks, he could not have known that he risked having his SSOSA suspended by visiting the food bank located at the Immaculate Conception School.

¶ 32 As discussed above, McCormick had been barred from frequenting places where children are known to congregate, and was told specifically not to go to churches or schools.   While he may not have been told to avoid food banks, the food bank he visited was located in a facility associated with both a church and a school.   Furthermore, the food bank was located across the street from a high school which McCormick had visited before, a visit which resulted in his confinement.   The requirement that McCormick avoid schools and churches was clear.   The fact that the food bank was in the basement of a school does not create any vagueness about the terms of his suspended sentence as applied to his behavior.

¶ 33 The condition that McCormick not frequent places where children congregate is not unconstitutionally vague.

Hearsay Evidence

¶ 34 At a sentence modification hearing, an offender has the right to confront adverse witnesses unless good cause exists not to allow the confrontation. 36  A court may nevertheless consider alternatives to live testimony in these settings, including affidavits and other documentary evidence which would otherwise be considered hearsay.37  However, hearsay evidence should be considered only if there is good cause to forgo live testimony.38  Good cause is defined in terms of “ ‘difficulty and expense of procuring witnesses in combination with ‘demonstrably reliable’ or ‘clearly reliable’ evidence.' ”  39

¶ 35 At the revocation hearing, the State offered a written statement by McCormick's housemate, David Bralley, but did not call Bralley himself as a witness.   McCormick did not object to the State's introduction of the statement as hearsay.   Instead, McCormick's counsel noted that Bralley was absent from court, and asked that the court find Bralley was not a credible witness.

¶ 36 McCormick's counsel also introduced hearsay evidence of her own from workers at the food bank.

¶ 37 A defendant's failure to object to a violation of due process and his own use of hearsay during argument constitutes a waiver of any right of confrontation and cross-examination.40

Ineffective Assistance of Counsel

¶ 38 McCormick argues in the alternative that trial counsel provided ineffective assistance in failing to object to the introduction of Bralley's statement as unreliable hearsay.

¶ 39 In order to establish that counsel was ineffective, a defendant must show that counsel's conduct was deficient and that the deficient performance resulted in prejudice.41  To show deficient representation, a defendant must show that it fell below an objective standard of reasonableness based on all the circumstances.42  The defendant must overcome a strong presumption that counsel's performance was not deficient.43  Prejudice is established if the defendant shows that there is a reasonable probability that, but for counsel's unprofessional errors, the outcome of the proceeding would have been different.44

¶ 40 Deficient performance is not shown by matters involving trial strategy or tactics.45  As noted above, counsel pointed out that Bralley was not present in court, but did not object to the introduction of his statement.   Rather, she asked that the court find Bralley not credible.   It is entirely possible counsel chose not to object to the State's hearsay evidence in order to introduce hearsay evidence of her own.   Counsel may also have felt it easier to impugn Bralley's credibility in his absence than with him present in court.   McCormick has not presented evidence of ineffective assistance sufficient to rebut our strong presumption of competence, or shown that counsel's performance fell below an objective standard of reasonableness.

¶ 41 Nor has McCormick demonstrated that the outcome of the hearing would have been different, but for counsel's failure to object.   It is undisputed that McCormick was present at the food bank, and that the food bank is located in the Immaculate Conception Elementary School, albeit in the basement.   Much of Bralley's statement was corroborated by defense counsel's affidavit and testimony by the CCO. The distinguishing feature of his statement largely concerned the time when McCormick typically arrived at the food bank, and his alleged comments regarding young girls.

¶ 42 In its written order, the court noted that it considered defense counsel's affidavit, and the testimony of the CCO. It did not list Bralley's statement among the materials it considered in reaching its decision.   The court found that McCormick had clearly violated the terms of his suspended sentence by being on the school premises in the first place, regardless of when children might be coming and going.   The court noted that it would never have granted McCormick approval to visit the food bank, given that it was located in a school.   It then referenced McCormick's previous appearances before the court, and stated, “Given where we have been with this case, I think I have no alternative but to revoke the SSOSA.”

¶ 43 There is no reasonable probability that the outcome of the proceeding would have been different had McCormick's attorney moved to suppress Bralley's statement.   Ineffective assistance of counsel has not been shown.

¶ 44 AFFIRMED.

FOOTNOTES

1.   RCW 9.94A.670.

2.   RCW 9.94A.670. McCormick was sentenced pursuant to former RCW 9.94A.120 (2001), subsequently recodified as RCW 9.94A.505.

3.   RCW 9.94A.670(10).

4.   State v. Dahl, 139 Wash.2d 678, 683, 990 P.2d 396 (1999).

5.   State v. Badger, 64 Wash.App. 904, 908, 827 P.2d 318 (1992).

6.   State v. Rohrich, 149 Wash.2d 647, 654, 71 P.3d 638 (2003).

7.   Dahl, 139 Wash.2d at 683, 990 P.2d 396.

8.   Dahl, 139 Wash.2d at 683, 990 P.2d 396.

9.   Dahl, 139 Wash.2d at 683, 990 P.2d 396.

10.   Dahl, 139 Wash.2d at 683, 990 P.2d 396.

11.   Dahl, 139 Wash.2d at 683, 990 P.2d 396.

12.   State v. Canfield, 154 Wash.2d 698, 706, 116 P.3d 391 (2005) (quoting State v. Johnson, 9 Wash.App. 766, 772, 514 P.2d 1073 (1973)).

13.   114 Wash.App. 75, 55 P.3d 1178 (2002).

14.   355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957).

15.   141 Wash.2d 357, 5 P.3d 1247 (2000).

16.   119 Wash.App. 871, 80 P.3d 625 (2003).

17.   461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983).

18.   147 Wash.2d 98, 52 P.3d 485 (2002).

19.   Bearden, 461 U.S. at 668-69, 103 S.Ct. 2064.

20.   Bearden, 461 U.S. at 669 n. 9, 103 S.Ct. 2064.

21.   RCW 9.94A.634(3)(d).

22.   Ch. 9.94A RCW.

23.   RCW 9.94A.670(10).

24.   Badger, 64 Wash.App. at 908, 827 P.2d 318.

25.   76 Wash.App. 882, 888 P.2d 1211 (1995).

26.   Recodified as RCW 9.94A.634.

27.   Gropper, 76 Wash.App. at 885-86, 888 P.2d 1211.

28.   RCW 9.94A.634(3)(c).

29.   State v. Riles, 135 Wash.2d 326, 348, 957 P.2d 655 (1998).

30.   Riles, 135 Wash.2d at 348, 957 P.2d 655.

31.   Riles, 135 Wash.2d at 348, 957 P.2d 655.

32.   Riles, 135 Wash.2d at 348, 957 P.2d 655.

33.   135 Wash.2d 326, 348, 957 P.2d 655 (1998).

34.   Riles, 135 Wash.2d at 347-48, 957 P.2d 655.

35.   Riles, 135 Wash.2d at 348-49, 957 P.2d 655.

36.   State v. Abd-Rahmaan, 154 Wash.2d 280, 288, 111 P.3d 1157 (2005).

37.   Abd-Rahmaan, 154 Wash.2d at 288-89, 111 P.3d 1157.

38.   Dahl, 139 Wash.2d at 686, 990 P.2d 396.

39.   Dahl, 139 Wash.2d at 686, 990 P.2d 396 (quoting State v. Nelson, 103 Wash.2d 760, 765, 697 P.2d 579 (1985)).

40.   Dahl, 139 Wash.2d at 687 n. 2, 990 P.2d 396.

41.   State v. Brockob, 159 Wash.2d 311, 345, 150 P.3d 59 (2006) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

42.   Brockob, 159 Wash.2d at 345, 150 P.3d 59.

43.   Brockob, 159 Wash.2d at 345, 150 P.3d 59.

44.   State v. Hendrickson, 129 Wash.2d 61, 78, 917 P.2d 563 (1996).

45.   Hendrickson, 129 Wash.2d at 77-78, 917 P.2d 563.

BAKER, J.