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Washington Court Establishes Procedures for Community Placement Violation Hearings
Washington Court Establishes Procedures for
Community Placement Violation Hearings
In two recent decisions, Division One of the Washington Court of Appeals set forth the procedures that trial courts must follow when conducting sentence modification hearings. A sentence modification hearing is conducted to determine whether a person on community placement has violated the conditions of his or her release. If violations are proven, the person may be confined for up to 60 days for each condition breached.
In the first case, Khatib Rahmaan was accused of violating his conditions of release by not reporting to his community corrections officer (CCO) on the days he was not scheduled to work for a temporary job placement agency. At the sentence modification hearing, the CCO testified that he had spoken to Abd-Rahmaan's supervisor and determined that Abd-Rahmaan had failed to report on at least five different days on which he had not worked. Abd-Rahmaan objected to this testimony as inadmissible hearsay, but the trial court overruled the objection and, sanctioned Abd-Rahmaan to 60 days confinement.
On appeal, Abd-Rahmaan argued that he was entitled to the minimum due process protections set forth in Morrissey v. Brewer, 408 U.S. 471 (1972), during his sentence modification hearing. He further alleged that the trial court had violated Morrissey by relying on hearsay evidence without first making a written finding that the statements were reliable or that requiring live testimony would be unnecessarily costly and burdensome.
Under Morrissey, a parolee facing a revocation hearing is entitled to the following due process protections: (1) written notice of the alleged violations; (2) disclosure of the evidence relied upon; (3) an opportunity to be heard in person and to present witness and documentary evidence; (4) the right to confront and cross-examine witnesses unless the hearing officer finds good cause for disallowing confrontation; (5) a neutral and detached hearing body; and (6) a written statement by the fact-finder as to the evidence relied upon and the reasons for parole revocation. Because parole and community placement are "substantially equivalent," the appellate court agreed with Abd-Rahmaan that these protections must apply to sentence modification hearings.
The court, however, rejected Abd-Rahmaan's claim that the use of hearsay evidence during the modification hearing violated his due process rights. Under Morrissey and its progeny, hearsay evidence may be admitted at a hearing only if the hearing officer finds in writing that the statements are reliable and further determines that requiring live testimony would be unnecessarily costly and burdensome. Although the trial court in Abd-Rahmaan's case failed to make the necessary written findings regarding the CCO's hearsay testimony, the court did make those findings on the record in open court. Thus, the requirement of a written finding was harmless error. Moreover, the trial court properly determined that the hearsay was admissible under Morrissey. Abd-Rahmaan's 60-day sanction was therefore affirmed. [Readers should note that federal courts have held otherwise and have granted habeas relief when hearsay testimony is used in parole revocation cases.] See: State v. Abd-Rahmaan, 120 Wn. App. 284; 84 P.3d 944 (Wa. App. 2004).
In the second case, Jeffrey Robinson was subject to certain conditions of community placement, including requirements to be available for contact with his CCO as directed, have no contact with any minor age children without approval, and inform his CCO of any romantic relationships to verify there are no minor children involved. Robinson's CCO subsequently prepared a document accusing him of eight separate community placement violations, which ranged from Robinson's failure to report romantic relationships with women who have minor age children to his failure to participate in sexual deviancy treatment or reside at an approved address. Robinson never received a copy of this document.
At the sentence modification hearing, Robinson admitted six of the alleged violations but denied that he failed to live at an approved address or cultivated a relationship with one particular woman who has minor children. Robinson's CCO testified about conversations with Robinson's landlord and the woman Robinson was allegedly involved with to prove the disputed violations. Robinson's attorney did not object to this testimony as hearsay. Robinson was found guilty of violating the eight conditions of community placement and sanctioned to 360 days of confinement.
On appeal, Robinson argued that his due process rights under Morrissey were violated because he did not receive written notice of the violations, by the use of hearsay evidence at the modification hearing, and because the trial court failed to prepare a written statement of the evidence relied upon or the reason for its guilty finding.
As to the first two claims, the appellate court rejected them because Robinson's attorney failed to object to the lack of notice or the use of hearsay evidence. According to the court, Robinson could not "sit by while his due process rights were violated at a hearing and then allege due process violation on appeal." The court apparently assumed that Robinson knew he possessed certain due process rights at the time of his hearing.
Prisoners will need to be diligent in preserving their rights at modification hearings by objecting strenuously and often, lest they lose the right to challenge the outcome of a hearing on appeal.
As to Robinson's third claim, that the trial court failed to make a written statement of the evidence relied upon and the reasons for its guilty finding, the appellate court agreed that this error technically violated due process. However, the court deemed the error harmless because the trial court indicated on the record in open court the evidence it relied on and the reasons for its finding. Robinson's sanction was therefore affirmed. See: State v. Robinson, 120 Wn. App. 294; 85 P.3d 376 (Wa. App. 2004).
Community Placement Violation Hearings
In two recent decisions, Division One of the Washington Court of Appeals set forth the procedures that trial courts must follow when conducting sentence modification hearings. A sentence modification hearing is conducted to determine whether a person on community placement has violated the conditions of his or her release. If violations are proven, the person may be confined for up to 60 days for each condition breached.
In the first case, Khatib Rahmaan was accused of violating his conditions of release by not reporting to his community corrections officer (CCO) on the days he was not scheduled to work for a temporary job placement agency. At the sentence modification hearing, the CCO testified that he had spoken to Abd-Rahmaan's supervisor and determined that Abd-Rahmaan had failed to report on at least five different days on which he had not worked. Abd-Rahmaan objected to this testimony as inadmissible hearsay, but the trial court overruled the objection and, sanctioned Abd-Rahmaan to 60 days confinement.
On appeal, Abd-Rahmaan argued that he was entitled to the minimum due process protections set forth in Morrissey v. Brewer, 408 U.S. 471 (1972), during his sentence modification hearing. He further alleged that the trial court had violated Morrissey by relying on hearsay evidence without first making a written finding that the statements were reliable or that requiring live testimony would be unnecessarily costly and burdensome.
Under Morrissey, a parolee facing a revocation hearing is entitled to the following due process protections: (1) written notice of the alleged violations; (2) disclosure of the evidence relied upon; (3) an opportunity to be heard in person and to present witness and documentary evidence; (4) the right to confront and cross-examine witnesses unless the hearing officer finds good cause for disallowing confrontation; (5) a neutral and detached hearing body; and (6) a written statement by the fact-finder as to the evidence relied upon and the reasons for parole revocation. Because parole and community placement are "substantially equivalent," the appellate court agreed with Abd-Rahmaan that these protections must apply to sentence modification hearings.
The court, however, rejected Abd-Rahmaan's claim that the use of hearsay evidence during the modification hearing violated his due process rights. Under Morrissey and its progeny, hearsay evidence may be admitted at a hearing only if the hearing officer finds in writing that the statements are reliable and further determines that requiring live testimony would be unnecessarily costly and burdensome. Although the trial court in Abd-Rahmaan's case failed to make the necessary written findings regarding the CCO's hearsay testimony, the court did make those findings on the record in open court. Thus, the requirement of a written finding was harmless error. Moreover, the trial court properly determined that the hearsay was admissible under Morrissey. Abd-Rahmaan's 60-day sanction was therefore affirmed. [Readers should note that federal courts have held otherwise and have granted habeas relief when hearsay testimony is used in parole revocation cases.] See: State v. Abd-Rahmaan, 120 Wn. App. 284; 84 P.3d 944 (Wa. App. 2004).
In the second case, Jeffrey Robinson was subject to certain conditions of community placement, including requirements to be available for contact with his CCO as directed, have no contact with any minor age children without approval, and inform his CCO of any romantic relationships to verify there are no minor children involved. Robinson's CCO subsequently prepared a document accusing him of eight separate community placement violations, which ranged from Robinson's failure to report romantic relationships with women who have minor age children to his failure to participate in sexual deviancy treatment or reside at an approved address. Robinson never received a copy of this document.
At the sentence modification hearing, Robinson admitted six of the alleged violations but denied that he failed to live at an approved address or cultivated a relationship with one particular woman who has minor children. Robinson's CCO testified about conversations with Robinson's landlord and the woman Robinson was allegedly involved with to prove the disputed violations. Robinson's attorney did not object to this testimony as hearsay. Robinson was found guilty of violating the eight conditions of community placement and sanctioned to 360 days of confinement.
On appeal, Robinson argued that his due process rights under Morrissey were violated because he did not receive written notice of the violations, by the use of hearsay evidence at the modification hearing, and because the trial court failed to prepare a written statement of the evidence relied upon or the reason for its guilty finding.
As to the first two claims, the appellate court rejected them because Robinson's attorney failed to object to the lack of notice or the use of hearsay evidence. According to the court, Robinson could not "sit by while his due process rights were violated at a hearing and then allege due process violation on appeal." The court apparently assumed that Robinson knew he possessed certain due process rights at the time of his hearing.
Prisoners will need to be diligent in preserving their rights at modification hearings by objecting strenuously and often, lest they lose the right to challenge the outcome of a hearing on appeal.
As to Robinson's third claim, that the trial court failed to make a written statement of the evidence relied upon and the reasons for its guilty finding, the appellate court agreed that this error technically violated due process. However, the court deemed the error harmless because the trial court indicated on the record in open court the evidence it relied on and the reasons for its finding. Robinson's sanction was therefore affirmed. See: State v. Robinson, 120 Wn. App. 294; 85 P.3d 376 (Wa. App. 2004).
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Related legal cases
State v. Abd-Rahmaan
| Year | 2004 |
|---|---|
| Cite | 120 Wn. App, 284, 84 P.3d 944 (Wa. App. 2004) |
| Level | State Court of Appeals |
| Injunction Status | N/A |
State v. Abd-Rahmaan, 120 Wash.App. 284, 84 P.3d 944 (Wash.App.Div.1 02/23/2004)
[1] IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
[2] No. 51856-9-I
[3] 120 Wash.App. 284, 84 P.3d 944, 2004.WA
[4] February 23, 2004
[5] STATE OF WASHINGTON, RESPONDENT,
v.
KHATIB M. ABD-RAHMAAN, APPELLANT.
[6] Appeal from Superior Court of King County Docket No: 99-1-03126-8 Judgment or order under review Date filed: 01/21/2003 Judge signing: Hon. Mary Yu
[7] Counsel for Appellant(s) Gregory Charles Link WA Appellate Project Cobb Bldg 1305 4th Ave Ste 802 Seattle, WA 98101-2402
[8] Counsel for Respondent(s) Carla Barbieri Carlstrom King Co Pros Office W 554 516 3rd Ave Seattle, WA 98104-2390
[9] The opinion of the court was delivered by: Coleman, J.
[10] Concurring: Mary Kay Becker, Ronald E. Cox
[11] Published
[12] The issue in this case is the level of due process applicable in sentence modification hearings. Because sentence modification hearings are similar to probation and parole revocation hearings, we hold that the same due process requirements, as announced in Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972), also apply to sentence modification hearings. The major issue in this case is whether this right to confrontation necessitates a specific, written finding that hearsay evidence is reliable and that the difficulty and expense of presenting live witnesses constitutes good cause for admitting the hearsay evidence. We hold that Morrissey does apply to sentence modification hearings and, therefore, persons accused of violating conditions of their sentences are entitled to the same minimum due process protections as provided for in Morrissey. We conclude, however, that the lack of specific findings regarding the reliability of hearsay evidence and the difficulty of procuring live witnesses is not fatal in this case because both reliability and difficulty can be determined from the record.
[13] But we take this opportunity to remind trial courts to make specific findings regarding both the reliability of the evidence and the difficulty and expense of presenting live testimony to ensure that minimum due process rights are protected. We affirm the sentence modification here, as Abd-Rahmaan's due process rights were not violated because the hearsay statements were reliable and requiring live testimony would be unnecessarily costly and burdensome.
[14] Facts
[15] Khatib Abd-Rahmaan was sentenced to 38 months in custody and one year of community placement. As part of his community placement Abd-Rahmaan was required to report to his community corrections officer (CCO). In January 2003, the State filed a Notice of Sentence Modification Hearing and Motion to Show Cause alleging Abd-Rahmaan violated his sentence by failing to report to his CCO.*fn1
[16] At the modification hearing, Chris Salatka, Abd-Rahmaan's CCO, testified that heinstructed Abd-Rahmaan to report on days when he was not working at the Millionaires' Club. Salatka testified that Abd-Rahmaan did not report to him on five different days. The Millionaires' Club told Salatka that Abd-Rahmaan did not work on the days in question and had, in fact, been fired on his first day of work because of unsatisfactory performance at FedEx. Salatka also testified that he spoke with a representative of FedEx who confirmed that FedEx told the Millionaires' Club that Abd-Rahmaan could no longer work at FedEx. Abd-Rahmaan objected to the testimony as inadmissible hearsay, but the trial court allowed it. Abd-Rahmaan testified that he had worked on the days in question and that it was the practice of the Millionaires' Club to provide only one work slip on the first day and not give new slips for subsequent days worked on the same job. He, however, did not offer any corroborative testimony or evidence.
[17] The trial court found that Abd-Rahmaan violated his sentence by failing to report to his CCO and sanctioned him with 60 days' confinement.
[18] Discussion
[19] The first issue we address is whether this case should be dismissed as moot because Abd-Rahmaan has already been released from custody. A case is moot when the court can no longer provide effective relief. Hart v. Dep't of Soc. & Health Servs., 111 Wn.2d 445, 448, 759 P.2d 1206 (1988). This court may reach the merits of an appeal if the case presents a matter of continuing and substantial public interest. Hart, 111 Wn.2d at 448. In making this determination, the court will look to three essential factors:
[20] '(1) whether the issue is of a public or private nature; (2) whether an authoritative determination is desirable to provide future guidance to public officers; and (3) whether the issue is likely to recur.' Hart, 111 Wn.2d at 448. Issues involving sentence modification procedures are of a public nature. Additionally, there is no Washington case that specifically holds that the Morrissey requirements apply to sentence modification hearings. Therefore, further guidance on the issue is desirable. Under RCW 9.94A.634(c), the maximum sanction for each sentence violation is 60 days' confinement. Because of this maximum sanction, it is likely that any potential appellant will be released before the appeal is completed. Therefore, this issue is of continuing and substantial public interest and we will address the merits of the appeal.
[21] Next, we address whether the due process requirements of Morrissey apply to sentence modification hearings. A probation violation hearing is not a criminal proceeding. In re Pers. Restraint of Boone, 103 Wn.2d 224, 230, 691 P.2d 964 (1984). Because it is not a criminal proceeding, the probationer does not enjoy the same due process protections afforded to those accused of a crime. Boone, 103 Wn.2d at 203. The probationer, however, is entitled to minimal due process protections. State v. Dahl, 139 Wn.2d 678, 683, 990 P.2d 396 (1999). Before parole can be revoked, the following protections must be afforded:
[22] (a) written notice of the claimed violations or parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation; (e) a 'neutral and detached' hearing body . . . ; and (f) a written statement by the factfinders as to the evidence relied on and the reasons for revoking parole.
[23] Morrissey, 408 U.S. at 489. These protections have been extended to special sexual offender sentencing alternative (SSOSA) revocation hearings and community custody revocation hearings conducted by the DOC. Dahl, 139 Wn.2d at 678; In re Pers. Restraint of McNeal, 99 Wn. App. 617, 994 P.2d 890 (2000). The State acknowledges that there is no reason why these same protections should not be applied to a sentence modification hearing held before a superior court judge. Because sentence modification hearings are substantially equivalent to the other revocation hearings, the same due process rights should apply. Thus, we hold that the requirements of Morrissey apply to sentence modification hearings.
[24] Abd-Rahmaan argues that his due process rights were violated because the trial court allowed the State to use hearsay evidence without making specific findings that the hearsay was reliable and that there was good cause not to require live witnesses. One of the elements of due process under Morrissey is the 'right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).' Morrissey, 408 U.S. at 489. Morrissey, however, does not provide an absolute right to confrontation:
[25] 'While in some cases there is simply no adequate alternative to live testimony, we emphasize that we did not in Morrissey intend to prohibit use where appropriate of the conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence. Nor did we intend to foreclose the States from holding both the preliminary and the final hearings at the place of violation or from developing other creative solutions to the practical difficulties of the Morrissey requirements.
[26] Nelson, 103 Wn.2d at 763 (quoting Gagnon v. Scarpelli, 411 U.S. 778, 783, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973)). Instead, the court is to engage in a balancing test, weighing the right to confrontation against good cause for not allowing confrontation. Nelson, 103 Wn.2d at 763. 'Good cause has thus far been defined in terms of difficulty and expense of procuring witnesses in combination with 'demonstrably reliable' or 'clearly reliable' evidence.' Nelson, 103 Wn.2d at 765. Nelson demonstrates that the test itself is flexible and potentially subject to some modification as evidenced by the 'thus far' phraseology.
[27] Here, the State urges the court to focus on the reliability of the hearsay testimony and suggests that as long as the testimony is deemed reliable, a specific finding of difficulty in presenting live testimony is not necessary to satisfy the limited right to confrontation. Abd-Rahmaan argues, on the other hand, that a court must make specific findings on both the reliability of the hearsay evidence and the circumstances that warrant its use. While we believe reliability to be the primary factor, Nelson presently requires a consideration of the practical difficulty of requiring live testimony in addition to examining the reliability of that testimony.
[28] Abd-Rahmaan argues that the CCO's testimony regarding his conversations with FedEx and the Millionaires' Club was not reliable hearsay and, therefore, the court should not have considered it. In support of this argument, Abd-Rahmaan points to the factors for determining reliability in a preconviction setting announced in State v. Ryan, 103 Wn.2d 165, 170, 691 P.2d 197 (1984).*fn2 Abd-Rahmaan argues that the same factors should be considered in post-conviction hearings. A person accused of violating conditions of a sentence, however, is not entitled to the full protections of due process afforded in a preconviction setting. Other cases discussing the reliability of evidence in a post-conviction setting have not examined the Ryan factors in making the determination of whether hearsay was reliable. See Nelson, 103 Wn.2d at 765. In addition, '{t}he Ninth Circuit has held hearsay evidence from state probation reports is sufficiently reliable{.}' State v. Badger, 64 Wn. App. 904, 908, 827 P.2d 318 (1992) (citing United States v. Miller, 514 F.2d 41, 42 (9th Cir.1975)). While the hearsay evidence must be reliable, the trial court is not strictly confined by the factors set forth in Ryan. Rather, the court is to consider any relevant factor that bears on reliability.
[29] The hearsay at issue here is the CCO's testimony regarding Abd-Rahmaan's employment status as reported by the Millionaires' Club. This is a straightforward inquiry either Abd-Rahmaan worked on the days in question or he did not. The employer would have this knowledge, and this information would routinely be recorded by the employer. Moreover, the representatives from the Millionaires' Club and FedEx gave the CCO detailed accounts of the circumstances that led up to Abd-Rahmaan's termination.
[30] The court could look at this detail as evidence of the reliability of the testimony. Abd-Rahmaan also participated in the hearing and was able to give his version of the events and disagree with the version presented by Salatka. He could have also requested witnesses or presented corroborative evidence had he wished to do so. The trial court is in the best position to assess credibility and the reliability of the evidence offered, and we will not interfere with that decision. We conclude that the hearsay testimony here presents adequate indicia of reliability.
[31] Abd-Rahmaan also argues that his right to due process was violated because the court did not specifically find good cause for allowing the hearsay evidence. The difficulty and cost of presenting live witnesses is good cause for admitting reliable hearsay at sentence modification hearings. Nelson, 103 Wn.2d at 764. In Badger, the court specifically allowed the use of hearsay evidence in a SSOSA revocation hearing without discussing the need to make a specific finding that it would be difficult and expensive to produce live witnesses. Additionally, in Nelson, the court held that reports from the defendant's therapists at Western State Hospital were sufficiently reliable and that the expense and difficulty of requiring therapists to testify at every hearing was sufficient to justify the use of hearsay evidence. While the trial court here did not make the specific finding that it would be difficult or expensive to require the State to produce live witnesses regarding employment status, it can be inferred that such difficulty exists. Verification of employment is applicable to many probation and sentence modification hearings, and requiring the State to produce employer representatives for this verification in every case would be costly and unnecessarily burdensome on employers. In fact, requiring employers to routinely testify at such proceedings could easily discourage the hiring of persons on probation or subject to community custody. Common sense considerations support the reliability of the hearsay testimony and requiring witnesses to appear would have occasioned unnecessary inconvenience and expense. Under the circumstances, Abd-Rahmaan's due process rights were not violated by the use of hearsay. We conclude that the hearsay was reliable and warranted from the record in this case. Trial courts are reminded, however, to make specific findings concerning the reliability of the hearsay testimony offered and that good cause exists for its use. This will help to ensure that the accused's due process rights are protected.
[32] Abd-Rahmaan also argues that the trial court's failure to make a written statement of the evidence relied upon and the reasons for its decision violated his due process rights. Under Morrissey, due process requires, 'a written statement by the factfinders as to the evidence relied on and the reasons for revoking parole.' Morrissey, 408 U.S. at 489. The lack of a written statement is not fatal if the trial court indicates, on the record, what evidence it relied upon. Nelson, 103 Wn.2d at 767. The only evidence presented at the hearing was the evidence regarding the violation in question. It is therefore possible for this court to determine what evidence the trial court relied upon.
[33] Additionally, the record is sufficient for this court to determine the reasons for the trial court's decision. The only evidence presented was the testimony of Salatka and Abd-Rahmaan about Abd-Rahmaan's employment status. It is thus clear that the trial court found the CCO's testimony to be credible and based on reliable information, and the trial court based its decision on that testimony. While a more appropriate practice would be for trial courts to make statements on the record specifically outlining the evidence relied upon and the reasons for their decisions, the record in this case is sufficient to allow effective appellate review.
[34] We emphasize that hearsay evidence is not automatically admissible in sentence modification hearings, and is only admissible when it is reliable and there is good cause to allow it to be used. We reiterate that trial courts should make specific written findings, or at a minimum express oral findings on the record, regarding both the reliability of the hearsay evidence and the difficulty or expense of presenting live testimony before allowing hearsay evidence to be used at sentence modification hearings. Additionally, trial courts should make written or clear oral statements of the evidence relied upon and the reasons for its decisions. These procedures will serve to ensure proper due process protections.
[35] Affirmed.
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Opinion Footnotes
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[36] *fn1 The notice of hearing listed two additional violations failing a polygraph test and using controlled substances. Abd-Rahmaan was not ordered to submit to polygraph tests as a condition of his sentence, and the only evidence of drug use was obtained from a polygraph test. The trial court found that he did not violate the conditions of his sentence under these allegations.
[37] *fn2 The factors are: '(1) whether there is an apparent motive to lie; (2) the general character of the declarant; (3) whether more than one person heard the statements; (4) whether the statements were made spontaneously; (5) the timing of the declaration and the relationship between the declarant and the witness.' . . . {6} the statement contains no express assertion of past fact, {7} cross examination could not show the declarant's lack of knowledge, {8} the possibility of the declarant's faulty recollection is remote, and {9} the circumstances surrounding the statement are such that there is no reason to suppose the declarant misrepresented defendant's involvement.' Ryan, 103 Wn.2d at 175-76 (quoting State v. Parris, 98 Wn.2d 140, 146, 654 P.2d 77 (1982) and citing Dutton v. Evans, 400 U.S. 74, 88-89, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970)).
[1] IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
[2] No. 51856-9-I
[3] 120 Wash.App. 284, 84 P.3d 944, 2004.WA
[4] February 23, 2004
[5] STATE OF WASHINGTON, RESPONDENT,
v.
KHATIB M. ABD-RAHMAAN, APPELLANT.
[6] Appeal from Superior Court of King County Docket No: 99-1-03126-8 Judgment or order under review Date filed: 01/21/2003 Judge signing: Hon. Mary Yu
[7] Counsel for Appellant(s) Gregory Charles Link WA Appellate Project Cobb Bldg 1305 4th Ave Ste 802 Seattle, WA 98101-2402
[8] Counsel for Respondent(s) Carla Barbieri Carlstrom King Co Pros Office W 554 516 3rd Ave Seattle, WA 98104-2390
[9] The opinion of the court was delivered by: Coleman, J.
[10] Concurring: Mary Kay Becker, Ronald E. Cox
[11] Published
[12] The issue in this case is the level of due process applicable in sentence modification hearings. Because sentence modification hearings are similar to probation and parole revocation hearings, we hold that the same due process requirements, as announced in Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972), also apply to sentence modification hearings. The major issue in this case is whether this right to confrontation necessitates a specific, written finding that hearsay evidence is reliable and that the difficulty and expense of presenting live witnesses constitutes good cause for admitting the hearsay evidence. We hold that Morrissey does apply to sentence modification hearings and, therefore, persons accused of violating conditions of their sentences are entitled to the same minimum due process protections as provided for in Morrissey. We conclude, however, that the lack of specific findings regarding the reliability of hearsay evidence and the difficulty of procuring live witnesses is not fatal in this case because both reliability and difficulty can be determined from the record.
[13] But we take this opportunity to remind trial courts to make specific findings regarding both the reliability of the evidence and the difficulty and expense of presenting live testimony to ensure that minimum due process rights are protected. We affirm the sentence modification here, as Abd-Rahmaan's due process rights were not violated because the hearsay statements were reliable and requiring live testimony would be unnecessarily costly and burdensome.
[14] Facts
[15] Khatib Abd-Rahmaan was sentenced to 38 months in custody and one year of community placement. As part of his community placement Abd-Rahmaan was required to report to his community corrections officer (CCO). In January 2003, the State filed a Notice of Sentence Modification Hearing and Motion to Show Cause alleging Abd-Rahmaan violated his sentence by failing to report to his CCO.*fn1
[16] At the modification hearing, Chris Salatka, Abd-Rahmaan's CCO, testified that heinstructed Abd-Rahmaan to report on days when he was not working at the Millionaires' Club. Salatka testified that Abd-Rahmaan did not report to him on five different days. The Millionaires' Club told Salatka that Abd-Rahmaan did not work on the days in question and had, in fact, been fired on his first day of work because of unsatisfactory performance at FedEx. Salatka also testified that he spoke with a representative of FedEx who confirmed that FedEx told the Millionaires' Club that Abd-Rahmaan could no longer work at FedEx. Abd-Rahmaan objected to the testimony as inadmissible hearsay, but the trial court allowed it. Abd-Rahmaan testified that he had worked on the days in question and that it was the practice of the Millionaires' Club to provide only one work slip on the first day and not give new slips for subsequent days worked on the same job. He, however, did not offer any corroborative testimony or evidence.
[17] The trial court found that Abd-Rahmaan violated his sentence by failing to report to his CCO and sanctioned him with 60 days' confinement.
[18] Discussion
[19] The first issue we address is whether this case should be dismissed as moot because Abd-Rahmaan has already been released from custody. A case is moot when the court can no longer provide effective relief. Hart v. Dep't of Soc. & Health Servs., 111 Wn.2d 445, 448, 759 P.2d 1206 (1988). This court may reach the merits of an appeal if the case presents a matter of continuing and substantial public interest. Hart, 111 Wn.2d at 448. In making this determination, the court will look to three essential factors:
[20] '(1) whether the issue is of a public or private nature; (2) whether an authoritative determination is desirable to provide future guidance to public officers; and (3) whether the issue is likely to recur.' Hart, 111 Wn.2d at 448. Issues involving sentence modification procedures are of a public nature. Additionally, there is no Washington case that specifically holds that the Morrissey requirements apply to sentence modification hearings. Therefore, further guidance on the issue is desirable. Under RCW 9.94A.634(c), the maximum sanction for each sentence violation is 60 days' confinement. Because of this maximum sanction, it is likely that any potential appellant will be released before the appeal is completed. Therefore, this issue is of continuing and substantial public interest and we will address the merits of the appeal.
[21] Next, we address whether the due process requirements of Morrissey apply to sentence modification hearings. A probation violation hearing is not a criminal proceeding. In re Pers. Restraint of Boone, 103 Wn.2d 224, 230, 691 P.2d 964 (1984). Because it is not a criminal proceeding, the probationer does not enjoy the same due process protections afforded to those accused of a crime. Boone, 103 Wn.2d at 203. The probationer, however, is entitled to minimal due process protections. State v. Dahl, 139 Wn.2d 678, 683, 990 P.2d 396 (1999). Before parole can be revoked, the following protections must be afforded:
[22] (a) written notice of the claimed violations or parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation; (e) a 'neutral and detached' hearing body . . . ; and (f) a written statement by the factfinders as to the evidence relied on and the reasons for revoking parole.
[23] Morrissey, 408 U.S. at 489. These protections have been extended to special sexual offender sentencing alternative (SSOSA) revocation hearings and community custody revocation hearings conducted by the DOC. Dahl, 139 Wn.2d at 678; In re Pers. Restraint of McNeal, 99 Wn. App. 617, 994 P.2d 890 (2000). The State acknowledges that there is no reason why these same protections should not be applied to a sentence modification hearing held before a superior court judge. Because sentence modification hearings are substantially equivalent to the other revocation hearings, the same due process rights should apply. Thus, we hold that the requirements of Morrissey apply to sentence modification hearings.
[24] Abd-Rahmaan argues that his due process rights were violated because the trial court allowed the State to use hearsay evidence without making specific findings that the hearsay was reliable and that there was good cause not to require live witnesses. One of the elements of due process under Morrissey is the 'right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).' Morrissey, 408 U.S. at 489. Morrissey, however, does not provide an absolute right to confrontation:
[25] 'While in some cases there is simply no adequate alternative to live testimony, we emphasize that we did not in Morrissey intend to prohibit use where appropriate of the conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence. Nor did we intend to foreclose the States from holding both the preliminary and the final hearings at the place of violation or from developing other creative solutions to the practical difficulties of the Morrissey requirements.
[26] Nelson, 103 Wn.2d at 763 (quoting Gagnon v. Scarpelli, 411 U.S. 778, 783, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973)). Instead, the court is to engage in a balancing test, weighing the right to confrontation against good cause for not allowing confrontation. Nelson, 103 Wn.2d at 763. 'Good cause has thus far been defined in terms of difficulty and expense of procuring witnesses in combination with 'demonstrably reliable' or 'clearly reliable' evidence.' Nelson, 103 Wn.2d at 765. Nelson demonstrates that the test itself is flexible and potentially subject to some modification as evidenced by the 'thus far' phraseology.
[27] Here, the State urges the court to focus on the reliability of the hearsay testimony and suggests that as long as the testimony is deemed reliable, a specific finding of difficulty in presenting live testimony is not necessary to satisfy the limited right to confrontation. Abd-Rahmaan argues, on the other hand, that a court must make specific findings on both the reliability of the hearsay evidence and the circumstances that warrant its use. While we believe reliability to be the primary factor, Nelson presently requires a consideration of the practical difficulty of requiring live testimony in addition to examining the reliability of that testimony.
[28] Abd-Rahmaan argues that the CCO's testimony regarding his conversations with FedEx and the Millionaires' Club was not reliable hearsay and, therefore, the court should not have considered it. In support of this argument, Abd-Rahmaan points to the factors for determining reliability in a preconviction setting announced in State v. Ryan, 103 Wn.2d 165, 170, 691 P.2d 197 (1984).*fn2 Abd-Rahmaan argues that the same factors should be considered in post-conviction hearings. A person accused of violating conditions of a sentence, however, is not entitled to the full protections of due process afforded in a preconviction setting. Other cases discussing the reliability of evidence in a post-conviction setting have not examined the Ryan factors in making the determination of whether hearsay was reliable. See Nelson, 103 Wn.2d at 765. In addition, '{t}he Ninth Circuit has held hearsay evidence from state probation reports is sufficiently reliable{.}' State v. Badger, 64 Wn. App. 904, 908, 827 P.2d 318 (1992) (citing United States v. Miller, 514 F.2d 41, 42 (9th Cir.1975)). While the hearsay evidence must be reliable, the trial court is not strictly confined by the factors set forth in Ryan. Rather, the court is to consider any relevant factor that bears on reliability.
[29] The hearsay at issue here is the CCO's testimony regarding Abd-Rahmaan's employment status as reported by the Millionaires' Club. This is a straightforward inquiry either Abd-Rahmaan worked on the days in question or he did not. The employer would have this knowledge, and this information would routinely be recorded by the employer. Moreover, the representatives from the Millionaires' Club and FedEx gave the CCO detailed accounts of the circumstances that led up to Abd-Rahmaan's termination.
[30] The court could look at this detail as evidence of the reliability of the testimony. Abd-Rahmaan also participated in the hearing and was able to give his version of the events and disagree with the version presented by Salatka. He could have also requested witnesses or presented corroborative evidence had he wished to do so. The trial court is in the best position to assess credibility and the reliability of the evidence offered, and we will not interfere with that decision. We conclude that the hearsay testimony here presents adequate indicia of reliability.
[31] Abd-Rahmaan also argues that his right to due process was violated because the court did not specifically find good cause for allowing the hearsay evidence. The difficulty and cost of presenting live witnesses is good cause for admitting reliable hearsay at sentence modification hearings. Nelson, 103 Wn.2d at 764. In Badger, the court specifically allowed the use of hearsay evidence in a SSOSA revocation hearing without discussing the need to make a specific finding that it would be difficult and expensive to produce live witnesses. Additionally, in Nelson, the court held that reports from the defendant's therapists at Western State Hospital were sufficiently reliable and that the expense and difficulty of requiring therapists to testify at every hearing was sufficient to justify the use of hearsay evidence. While the trial court here did not make the specific finding that it would be difficult or expensive to require the State to produce live witnesses regarding employment status, it can be inferred that such difficulty exists. Verification of employment is applicable to many probation and sentence modification hearings, and requiring the State to produce employer representatives for this verification in every case would be costly and unnecessarily burdensome on employers. In fact, requiring employers to routinely testify at such proceedings could easily discourage the hiring of persons on probation or subject to community custody. Common sense considerations support the reliability of the hearsay testimony and requiring witnesses to appear would have occasioned unnecessary inconvenience and expense. Under the circumstances, Abd-Rahmaan's due process rights were not violated by the use of hearsay. We conclude that the hearsay was reliable and warranted from the record in this case. Trial courts are reminded, however, to make specific findings concerning the reliability of the hearsay testimony offered and that good cause exists for its use. This will help to ensure that the accused's due process rights are protected.
[32] Abd-Rahmaan also argues that the trial court's failure to make a written statement of the evidence relied upon and the reasons for its decision violated his due process rights. Under Morrissey, due process requires, 'a written statement by the factfinders as to the evidence relied on and the reasons for revoking parole.' Morrissey, 408 U.S. at 489. The lack of a written statement is not fatal if the trial court indicates, on the record, what evidence it relied upon. Nelson, 103 Wn.2d at 767. The only evidence presented at the hearing was the evidence regarding the violation in question. It is therefore possible for this court to determine what evidence the trial court relied upon.
[33] Additionally, the record is sufficient for this court to determine the reasons for the trial court's decision. The only evidence presented was the testimony of Salatka and Abd-Rahmaan about Abd-Rahmaan's employment status. It is thus clear that the trial court found the CCO's testimony to be credible and based on reliable information, and the trial court based its decision on that testimony. While a more appropriate practice would be for trial courts to make statements on the record specifically outlining the evidence relied upon and the reasons for their decisions, the record in this case is sufficient to allow effective appellate review.
[34] We emphasize that hearsay evidence is not automatically admissible in sentence modification hearings, and is only admissible when it is reliable and there is good cause to allow it to be used. We reiterate that trial courts should make specific written findings, or at a minimum express oral findings on the record, regarding both the reliability of the hearsay evidence and the difficulty or expense of presenting live testimony before allowing hearsay evidence to be used at sentence modification hearings. Additionally, trial courts should make written or clear oral statements of the evidence relied upon and the reasons for its decisions. These procedures will serve to ensure proper due process protections.
[35] Affirmed.
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Opinion Footnotes
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[36] *fn1 The notice of hearing listed two additional violations failing a polygraph test and using controlled substances. Abd-Rahmaan was not ordered to submit to polygraph tests as a condition of his sentence, and the only evidence of drug use was obtained from a polygraph test. The trial court found that he did not violate the conditions of his sentence under these allegations.
[37] *fn2 The factors are: '(1) whether there is an apparent motive to lie; (2) the general character of the declarant; (3) whether more than one person heard the statements; (4) whether the statements were made spontaneously; (5) the timing of the declaration and the relationship between the declarant and the witness.' . . . {6} the statement contains no express assertion of past fact, {7} cross examination could not show the declarant's lack of knowledge, {8} the possibility of the declarant's faulty recollection is remote, and {9} the circumstances surrounding the statement are such that there is no reason to suppose the declarant misrepresented defendant's involvement.' Ryan, 103 Wn.2d at 175-76 (quoting State v. Parris, 98 Wn.2d 140, 146, 654 P.2d 77 (1982) and citing Dutton v. Evans, 400 U.S. 74, 88-89, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970)).
State v. Robinson
| Year | 2004 |
|---|---|
| Cite | 120 Wn. App. 294, 85 P.3d 376 (Wa. App. 2004) |
| Level | State Court of Appeals |
| Injunction Status | N/A |
State v. Robinson, 120 Wash.App. 294, 85 P.3d 376 (Wash.App.Div.1 02/23/2004)
[1] IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
[2] No. 52178-1-I
[3] 120 Wash.App. 294, 85 P.3d 376, 2004.WA
[4] February 23, 2004
[5] STATE OF WASHINGTON, RESPONDENT,
v.
JEFFREY LEON ROBINSON, APPELLANT.
[6] Appeal from Superior Court of King County Docket No: 93-1-01596-4 Judgment or order under review Date filed: 01/09/2003 Judge signing: Hon. Dean S Lum
[7] Counsel for Appellant(s) Cheryl D Aza Whatcom County Public Defender 311 Grand Ave Ste 305 Bellingham, WA 98225-4038; Jeffrey Leon Robinson (Appearing Pro Se) 32 Culver St. Macon, GA 31204
[8] Counsel for Respondent(s) Carla Barbieri Carlstrom King Co Pros Office W 554 516 3rd Ave Seattle, WA 98104-2390
[9] The opinion of the court was delivered by: Coleman, J.
[10] Concurring: Mary Kay Becker, Ronald E. Cox
[11] Published Opinion
[12] Persons accused of violating conditions of their sentences are entitled to the same minimum due process protections as provided in Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). State v. Abd-Rahmaan, Wn. App. , P.2d (2004). We hold, however, that a person accused of violating the conditions of sentence has some responsibility in ensuring that his or her rights under Morrissey are protected. The accused must, at a minimum, place the court on notice that due process is being violated by making an appropriate objection. We affirm the sentence modification because Robinson did not object to any lack of notice or the use of hearsay at the hearing. Additionally, there was sufficient evidence presented for the trial court to find that Robinson violated the conditions of his sentence.
[13] Facts
[14] Upon release from prison, Jeffrey Robinson was subject to certain community placement conditions, including the requirements to: 'be available for contact with the assigned community corrections officer {CCO} as directed,' 'have no contact with victim or any minor children {without} approval of CCO & mental health treatment counselor,' and '{i}nform CCO of any romantic relationships to verify there are no victim-age children involved.' In November 2002, the Department of Corrections (DOC) prepared a document alleging Robinson committed eight violations: (1) failing to reside at a DOC approved residence; (2) cultivating a relationship with Claudia Ott, who has minor children; (3) cultivating a relationship with Beauthoeun Keo, who has minor children; (4) cultivating a relationship with Sambo Voir, who has minor children; (5) intentionally interacting with minor children; (6) failing to make reasonable progress in sexual deviancy treatment by being terminated from treatment; (7) failing to make regular payment on legal financial obligations; and (8) failing to submit to a polygraph. It is unclear whether a copy of this document was sent to Robinson. In December 2002, the State sent Robinson a Notice of Sentence Violation Hearing and a Notice of Change in Sentencing Violation Hearing. The two notices alleged that Robinson failed to live at a DOC approved address and had non-approved contact with minor children.
[15] At the sentence modification hearing, Robinson admitted violations 3 through 8 and denied violations 1 and 2. Robinson denied that he failed to live at a DOC approved residence and that he cultivated a relationship with Claudia Ott. At the hearing, Robinson's CCO, Eileen Fermanis, testified about her conversations with Robinson's landlord and Claudia Ott. Robinson's attorney did not object to this testimony. The State also presented letters from Robinson's landlord, Claudia Ott, Beunthoeun Keo,*fn1 and Michael Singharath.*fn2 Robinson did not object to this evidence.
[16] The trial court found Robinson guilty of violating the eight conditions of his sentence and sanctioned him with 45 days per violation, for a total of 360 days' confinement.
[17] Discussion
[18] The first issue we address is whether this case is moot because Robinson has already been released from confinement. A case is moot when the court can no longer provide effective relief. Hart v. Dep't of Soc. & Health Servs., 111 Wn.2d 445, 448, 759 P.2d 1206 (1988). This court may reach the merits of an appeal if the case presents a matter of continuing and substantial public interest. Hart, 111 Wn.2d at 448. In making this determination, the court will look to three essential factors: '(1) whether the issue is of a public or private nature; (2) whether an authoritative determination is desirable to provide future guidance to public officers; and (3) whether the issue is likely to recur.' Hart, 111 Wn.2d at 448. Issues involving sentence modification procedures are of a public nature. Additionally, further guidance is desirable to emphasize that proper objections to violations of the requirements of Morrissey are required to preserve errors for appeal. Under RCW 9.94A.634(c), the maximum sanction for each sentence violation is 60 days' confinement.
[19] Because of this maximum sanction, it is likely that any potential appellant will be released before the appeal is completed. Therefore, this issue is of continuing and substantial public interest and we will address the merits of the appeal.
[20] Robinson argues that his due process rights under Morrissey were violated because he did not receive proper notice of the alleged violations. Before a sentence can be modified, the defendant must be given, 'written notice of the claimed violations.' Morrissey, 408 U.S. at 488. Robinson received two notices from the State listing violations for failing to live at a DOC approved residence and for having non-approved contact with minor children.
[21] In its report, the DOC listed eight violations, and the trial court used this list during the hearing. When the State listed these eight allegations at the modification hearing, Robinson did not object. In fact, Robinson admitted allegations 3 through 8. In State v. Nelson, 103 Wn.2d 760, 697 P.2d 579 (1985), the court held that a defendant could not sit by while his due process rights were violated at a hearing and then allege due process violations on appeal. While the issue involved in Nelson was using hearsay statements, improper notice should be treated in the same manner, as notice is also an element of due process under Morrissey. Because Robinson did not object to notice at the modification hearing, he waived the notice requirements and we will not address the issue on appeal.*fn3
[22] Robinson also argues that the State's use of hearsay evidence violated his due process rights. Under Morrissey, a defendant has 'the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).' Morrissey, 408 U.S. at 489. The probationer, however, has some responsibility in ensuring that the right to confrontation is preserved:
[23] The probationer may not sit by, without objection (and in fact use similar hearsay evidence), and then on appeal for the first time claim lack of due process. Revocation of probation is so much within the discretion of the trial court that the probationer must bear some responsibility for the orderly administration of the process. Such simple suggested notification, objection or motion does not unduly burden the probationer's rights or relieve the State of its burden of proof. So long as probationer's minimal due process rights are protected to an appropriate degree, the ultimate decision rests in the discretion of the trial court, subject to appellate review. Defendant simply has both failed to show the merit of his claim and failed to raise the issue of due process right of confrontation at any stage prior to appeal.
[24] Nelson, 103 Wn.2d at 766-67. Here, Robinson did not object to the use of hearsay statements at the modification hearing and, therefore, cannot claim that his due process rights were violated on appeal.
[25] Additionally, Robinson argues that the trial court's failure to make a written statement of the evidence relied upon and the reasons for its decision violated his due process rights. Under Morrissey, due process requires, 'a written statement by the factfinders as to the evidence relied on and the reasons for revoking parole.' Morrissey, 408 U.S. at 489. The lack of a written statement is not fatal if the trial court indicates, on the record, what evidence it relied upon. Nelson, 103 Wn.2d at 767. The only evidence presented at Robinson's hearing was the evidence regarding the particular violations at issue. Therefore, it is possible for this court to determine what evidence the trial court relied upon. Under the circumstances, the lack of a written statement of evidence relied upon is not fatal.
[26] Additionally, the record is sufficient for this court to determine the reasons for the trial court's decision. The trial court stated: The defendant has admitted allegation numbers three through eight. The court will find that the defendant committed violation numbers one and two as well. Indeed, I think Mr. Anderson is correct, it does appear to, the defense appears to be that the defendant did not abandon the apartment, that he was still intending to live there. He had some papers there, clothes, presumably, belongings still at the residence. But the allegation is indeed broader than that, and indeed, the evidence is abundantly clear that the defendant was also residing elsewhere. Indeed, some of the other allegations of violations, which have been admitted, establish that he was indeed living in other locations, also with compounding the problem, of course, being that there were minors at those other locations as well.
[27] This statement is sufficient to explain the trial court's reasoning behind finding that Robinson failed to reside at a DOC approved address: the evidence showed that Robinson, though he may have continued to reside at his apartment, also resided at another location. While the trial court did not specifically mention the reasons for finding that he cultivated a relationship with Ms. Ott, this court can ascertain that the trial court found the CCO's testimony regarding Robinson's relationship with Ms. Ott and Ms. Ott's letter to be reliable and based its decision on that evidence. While a much better practice would be for trial courts to clearly state the evidence relied upon and the reasons for their decisions, the record in this case is sufficient to allow effective appellate review.
[28] Robinson also argues that the alleged violations were improper because they were not violations of the conditions of his sentence. The court cannot punish someone for violating a condition of sentence that was not actually imposed by the court. State v. Raines, 83 Wn. App. 312, 316, 922 P.2d 100 (1996). As a condition of his sentence, Robinson was required to be available to his CCO and was prohibited from leaving his county of residence without prior approval. The notice of sentence violation hearing listed '{f}ailure to live at an approved DOC address' as one of the alleged violations. Robinson contends that he was not required to live at a DOC approved residence and that, even if required to do so, the evidence presented did not show that he changed his residence. The trial court specifically found that the allegation was broader than where Robinson technically resided and hinged on the ability of his CCO to contact him. It is implicit in the requirement Robinson be available to his CCO that the CCO know the place or places where he resides. Therefore, the evidence was sufficient to show that Robinson violated the terms of his sentence by failing to reside at a residence known to the CCO.
[29] Robinson also challenges the finding that 'cultivating' a relationship with a woman with minor children violated a term of his sentence. Under his sentence, Robinson was required to report any romantic relationships to his CCO and was prohibited from having contact with minor children. Attempting to 'cultivate' a relationship with a woman with minor children is a violation of these conditions of sentence. The CCO testified about conversations he had with Ms. Ott about Robinson's behavior toward her, and a letter from Ms. Ott was presented to the court stating that Robinson called her almost daily for nine months and also spoke with her 15-year-old daughter. This evidence was sufficient to support a finding that Robinson violated the terms of his sentence.
[30] Affirmed.
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Opinion Footnotes
--------------------------------------------------------------------------------
[31] *fn1 Robinson admitted to cultivating a relationship with Ms. Keo.
[32] *fn2 Mr. Singharath's letter stated that Robinson frequently stayed in the home of Ms. Keo.
[33] *fn3 Moreover, it is apparent that Robinson was prepared to address the merits of the allegations at the hearing. Robinson admitted to six of the alleged violations, and the two remaining allegations were covered in the notices that were served on Robinson.
[1] IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
[2] No. 52178-1-I
[3] 120 Wash.App. 294, 85 P.3d 376, 2004.WA
[4] February 23, 2004
[5] STATE OF WASHINGTON, RESPONDENT,
v.
JEFFREY LEON ROBINSON, APPELLANT.
[6] Appeal from Superior Court of King County Docket No: 93-1-01596-4 Judgment or order under review Date filed: 01/09/2003 Judge signing: Hon. Dean S Lum
[7] Counsel for Appellant(s) Cheryl D Aza Whatcom County Public Defender 311 Grand Ave Ste 305 Bellingham, WA 98225-4038; Jeffrey Leon Robinson (Appearing Pro Se) 32 Culver St. Macon, GA 31204
[8] Counsel for Respondent(s) Carla Barbieri Carlstrom King Co Pros Office W 554 516 3rd Ave Seattle, WA 98104-2390
[9] The opinion of the court was delivered by: Coleman, J.
[10] Concurring: Mary Kay Becker, Ronald E. Cox
[11] Published Opinion
[12] Persons accused of violating conditions of their sentences are entitled to the same minimum due process protections as provided in Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). State v. Abd-Rahmaan, Wn. App. , P.2d (2004). We hold, however, that a person accused of violating the conditions of sentence has some responsibility in ensuring that his or her rights under Morrissey are protected. The accused must, at a minimum, place the court on notice that due process is being violated by making an appropriate objection. We affirm the sentence modification because Robinson did not object to any lack of notice or the use of hearsay at the hearing. Additionally, there was sufficient evidence presented for the trial court to find that Robinson violated the conditions of his sentence.
[13] Facts
[14] Upon release from prison, Jeffrey Robinson was subject to certain community placement conditions, including the requirements to: 'be available for contact with the assigned community corrections officer {CCO} as directed,' 'have no contact with victim or any minor children {without} approval of CCO & mental health treatment counselor,' and '{i}nform CCO of any romantic relationships to verify there are no victim-age children involved.' In November 2002, the Department of Corrections (DOC) prepared a document alleging Robinson committed eight violations: (1) failing to reside at a DOC approved residence; (2) cultivating a relationship with Claudia Ott, who has minor children; (3) cultivating a relationship with Beauthoeun Keo, who has minor children; (4) cultivating a relationship with Sambo Voir, who has minor children; (5) intentionally interacting with minor children; (6) failing to make reasonable progress in sexual deviancy treatment by being terminated from treatment; (7) failing to make regular payment on legal financial obligations; and (8) failing to submit to a polygraph. It is unclear whether a copy of this document was sent to Robinson. In December 2002, the State sent Robinson a Notice of Sentence Violation Hearing and a Notice of Change in Sentencing Violation Hearing. The two notices alleged that Robinson failed to live at a DOC approved address and had non-approved contact with minor children.
[15] At the sentence modification hearing, Robinson admitted violations 3 through 8 and denied violations 1 and 2. Robinson denied that he failed to live at a DOC approved residence and that he cultivated a relationship with Claudia Ott. At the hearing, Robinson's CCO, Eileen Fermanis, testified about her conversations with Robinson's landlord and Claudia Ott. Robinson's attorney did not object to this testimony. The State also presented letters from Robinson's landlord, Claudia Ott, Beunthoeun Keo,*fn1 and Michael Singharath.*fn2 Robinson did not object to this evidence.
[16] The trial court found Robinson guilty of violating the eight conditions of his sentence and sanctioned him with 45 days per violation, for a total of 360 days' confinement.
[17] Discussion
[18] The first issue we address is whether this case is moot because Robinson has already been released from confinement. A case is moot when the court can no longer provide effective relief. Hart v. Dep't of Soc. & Health Servs., 111 Wn.2d 445, 448, 759 P.2d 1206 (1988). This court may reach the merits of an appeal if the case presents a matter of continuing and substantial public interest. Hart, 111 Wn.2d at 448. In making this determination, the court will look to three essential factors: '(1) whether the issue is of a public or private nature; (2) whether an authoritative determination is desirable to provide future guidance to public officers; and (3) whether the issue is likely to recur.' Hart, 111 Wn.2d at 448. Issues involving sentence modification procedures are of a public nature. Additionally, further guidance is desirable to emphasize that proper objections to violations of the requirements of Morrissey are required to preserve errors for appeal. Under RCW 9.94A.634(c), the maximum sanction for each sentence violation is 60 days' confinement.
[19] Because of this maximum sanction, it is likely that any potential appellant will be released before the appeal is completed. Therefore, this issue is of continuing and substantial public interest and we will address the merits of the appeal.
[20] Robinson argues that his due process rights under Morrissey were violated because he did not receive proper notice of the alleged violations. Before a sentence can be modified, the defendant must be given, 'written notice of the claimed violations.' Morrissey, 408 U.S. at 488. Robinson received two notices from the State listing violations for failing to live at a DOC approved residence and for having non-approved contact with minor children.
[21] In its report, the DOC listed eight violations, and the trial court used this list during the hearing. When the State listed these eight allegations at the modification hearing, Robinson did not object. In fact, Robinson admitted allegations 3 through 8. In State v. Nelson, 103 Wn.2d 760, 697 P.2d 579 (1985), the court held that a defendant could not sit by while his due process rights were violated at a hearing and then allege due process violations on appeal. While the issue involved in Nelson was using hearsay statements, improper notice should be treated in the same manner, as notice is also an element of due process under Morrissey. Because Robinson did not object to notice at the modification hearing, he waived the notice requirements and we will not address the issue on appeal.*fn3
[22] Robinson also argues that the State's use of hearsay evidence violated his due process rights. Under Morrissey, a defendant has 'the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).' Morrissey, 408 U.S. at 489. The probationer, however, has some responsibility in ensuring that the right to confrontation is preserved:
[23] The probationer may not sit by, without objection (and in fact use similar hearsay evidence), and then on appeal for the first time claim lack of due process. Revocation of probation is so much within the discretion of the trial court that the probationer must bear some responsibility for the orderly administration of the process. Such simple suggested notification, objection or motion does not unduly burden the probationer's rights or relieve the State of its burden of proof. So long as probationer's minimal due process rights are protected to an appropriate degree, the ultimate decision rests in the discretion of the trial court, subject to appellate review. Defendant simply has both failed to show the merit of his claim and failed to raise the issue of due process right of confrontation at any stage prior to appeal.
[24] Nelson, 103 Wn.2d at 766-67. Here, Robinson did not object to the use of hearsay statements at the modification hearing and, therefore, cannot claim that his due process rights were violated on appeal.
[25] Additionally, Robinson argues that the trial court's failure to make a written statement of the evidence relied upon and the reasons for its decision violated his due process rights. Under Morrissey, due process requires, 'a written statement by the factfinders as to the evidence relied on and the reasons for revoking parole.' Morrissey, 408 U.S. at 489. The lack of a written statement is not fatal if the trial court indicates, on the record, what evidence it relied upon. Nelson, 103 Wn.2d at 767. The only evidence presented at Robinson's hearing was the evidence regarding the particular violations at issue. Therefore, it is possible for this court to determine what evidence the trial court relied upon. Under the circumstances, the lack of a written statement of evidence relied upon is not fatal.
[26] Additionally, the record is sufficient for this court to determine the reasons for the trial court's decision. The trial court stated: The defendant has admitted allegation numbers three through eight. The court will find that the defendant committed violation numbers one and two as well. Indeed, I think Mr. Anderson is correct, it does appear to, the defense appears to be that the defendant did not abandon the apartment, that he was still intending to live there. He had some papers there, clothes, presumably, belongings still at the residence. But the allegation is indeed broader than that, and indeed, the evidence is abundantly clear that the defendant was also residing elsewhere. Indeed, some of the other allegations of violations, which have been admitted, establish that he was indeed living in other locations, also with compounding the problem, of course, being that there were minors at those other locations as well.
[27] This statement is sufficient to explain the trial court's reasoning behind finding that Robinson failed to reside at a DOC approved address: the evidence showed that Robinson, though he may have continued to reside at his apartment, also resided at another location. While the trial court did not specifically mention the reasons for finding that he cultivated a relationship with Ms. Ott, this court can ascertain that the trial court found the CCO's testimony regarding Robinson's relationship with Ms. Ott and Ms. Ott's letter to be reliable and based its decision on that evidence. While a much better practice would be for trial courts to clearly state the evidence relied upon and the reasons for their decisions, the record in this case is sufficient to allow effective appellate review.
[28] Robinson also argues that the alleged violations were improper because they were not violations of the conditions of his sentence. The court cannot punish someone for violating a condition of sentence that was not actually imposed by the court. State v. Raines, 83 Wn. App. 312, 316, 922 P.2d 100 (1996). As a condition of his sentence, Robinson was required to be available to his CCO and was prohibited from leaving his county of residence without prior approval. The notice of sentence violation hearing listed '{f}ailure to live at an approved DOC address' as one of the alleged violations. Robinson contends that he was not required to live at a DOC approved residence and that, even if required to do so, the evidence presented did not show that he changed his residence. The trial court specifically found that the allegation was broader than where Robinson technically resided and hinged on the ability of his CCO to contact him. It is implicit in the requirement Robinson be available to his CCO that the CCO know the place or places where he resides. Therefore, the evidence was sufficient to show that Robinson violated the terms of his sentence by failing to reside at a residence known to the CCO.
[29] Robinson also challenges the finding that 'cultivating' a relationship with a woman with minor children violated a term of his sentence. Under his sentence, Robinson was required to report any romantic relationships to his CCO and was prohibited from having contact with minor children. Attempting to 'cultivate' a relationship with a woman with minor children is a violation of these conditions of sentence. The CCO testified about conversations he had with Ms. Ott about Robinson's behavior toward her, and a letter from Ms. Ott was presented to the court stating that Robinson called her almost daily for nine months and also spoke with her 15-year-old daughter. This evidence was sufficient to support a finding that Robinson violated the terms of his sentence.
[30] Affirmed.
--------------------------------------------------------------------------------
Opinion Footnotes
--------------------------------------------------------------------------------
[31] *fn1 Robinson admitted to cultivating a relationship with Ms. Keo.
[32] *fn2 Mr. Singharath's letter stated that Robinson frequently stayed in the home of Ms. Keo.
[33] *fn3 Moreover, it is apparent that Robinson was prepared to address the merits of the allegations at the hearing. Robinson admitted to six of the alleged violations, and the two remaining allegations were covered in the notices that were served on Robinson.