State Of Washington, V. Austen Michael Whitbeck

• Court: Court of Appeals of Washington
• Decided: April 17, 2023
• Docket: 84182-3
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 84182-3-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION AUSTEN MICHAEL WHITBECK,

Appellant.

HAZELRIGG, A.C.J. — Austin Whitbeck appeals the trial court’s ruling to

revoke his residential drug offender sentencing alternative, asserting violations of

his due process right to notice and that the findings of fact were insufficient

because they did not reflect the entirety of the evidence relied upon. Whitbeck did

not raise the issue of notice before the trial court, nor did he object to the sufficiency

of the findings at the time of the hearing, so those challenges are waived. The

court’s findings were sufficient and its revocation ruling was not an abuse of

discretion. Accordingly, we affirm.

FACTS

On April 28, 2021, the State charged Austen Whitbeck with one count of

burglary in the first degree, a class A felony and a most serious, or “strike,” No. 84182-3-I/2

offense.1 Pursuant to an agreement with the State, Whitbeck entered a guilty plea

to amended charges: one count each of residential burglary, malicious mischief in

the first degree, and assault in the third degree. The State agreed to recommend

a residential drug offender sentencing alternative (DOSA) wherein Whitbeck would

serve 24 months of community custody, on the condition that he complete three to

six months of residential substance use disorder treatment. On October 22, 2021,

the trial court adopted the parties’ joint recommendation and imposed the

residential DOSA. The trial court set a progress hearing for January 28, 2022.

On November 8, 2021, Whitbeck began residential treatment at American

Behavioral Health Systems (ABHS) in Chehalis, Washington. One month later, on

December 9, Whitbeck was temporarily discharged from ABHS “due to COVID

concerns” and was instructed to resume inpatient treatment following a 14-day

self-quarantine period. During his temporary discharge from ABHS, Whitbeck was

instructed to report via telephone to the Department of Corrections (DOC) Renton

field office on December 14, 2021. However, according to DOC, Whitbeck was

arrested in downtown Seattle on December 11, 2021. The incident was outlined

in a DOC notice of violation (NOV) filed on December 17, 2021, which indicated

that Whitbeck had smashed the glass door of a building and pulled the fire alarm

while intoxicated. When officers arrived, they observed him engaging in self-

harming behavior. During the arrest, officers asserted Whitbeck physically resisted

and spat blood on them. He was subsequently taken to the hospital by police.

1 RCW 9A.52.020; RCW 9.94A.030(32)(a).

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Whitbeck did not report to the DOC Renton field office on December 14 as

required. As a result, the December 17 NOV identified one violation for failure to

report to DOC as ordered and another for noncompliance with urinalysis (UA)

based on that failure to report. DOC requested the trial court issue a bench warrant

for Whitbeck’s arrest and revoke the residential DOSA. On January 19, 2022,

DOC filed a supplemental NOV as Whitbeck had failed to return to ABHS and

resume treatment following his temporary discharge. Again, DOC recommended

revocation of the DOSA.

On January 21, 2022, the court conducted a review hearing on the DOSA

and Whitbeck appeared in custody.2 He stipulated to the three violations. Rather

than revoking the DOSA as DOC recommended, the trial court entered an order

for Whitbeck to return to inpatient treatment at ABHS and set a review hearing.3

Five days later, Whitbeck resumed treatment. He successfully completed the

program and was discharged from ABHS on April 27, 2022. Whitbeck was found

to be in compliance with the DOSA at each of the three compliance hearings

conducted while he was in residential treatment.

Whitbeck was instructed to report to the DOC field office within 24 hours of

discharge from ABHS and he complied. He was further ordered to report to the

DOC field office the following week on May 4, 2022, but failed to do so. Two days

later, DOC filed a NOV asserting two new violations: one for the failure to report

2 It is unclear from the record whether Whitbeck was in custody due to the bench warrant

requested by the DOC or because of the arrest in Seattle on December 11, 2021. 3 The State notes that Whitbeck did not object to the trial court’s use of a “pre-printed form”

for this hearing, but challenges the use of an identical form at the hearing that resulted in revocation of the DOSA. Respondent’s Br. at 6.

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and another for the failure to comply with the UA requirement. The NOV provided

that a DOC community corrections officer (CCO) visited Whitbeck’s release

address, spoke with the housing manager, and discovered that Whitbeck was

kicked out of the clean and sober house on April 29 after he “admitted to

consuming methamphetamine.” DOC again recommended that the court issue a

bench warrant for Whitbeck’s arrest and revoke the residential DOSA.

At the violation hearing conducted on May 27, 2022, Whitbeck again

appeared in custody4 and stipulated that he committed the two violations contained

in the NOV. He asserted that he had relapsed and further admitted that he

absconded during his temporary discharge from ABHS in December 2021.

Whitbeck offered an explanation of the circumstances surrounding these newest

violations and requested to be returned to inpatient treatment.

The State agreed with the DOC recommendation and argued for revocation,

asserting “it’s time, given the violations and the concern here and the serious

nature of the charge, to revoke the DOSA.” The State maintained that Whitbeck

had not treated the sentencing alternative seriously. After the State provided the

trial court with the sentencing range for Whitbeck’s offenses, the court noted that

after Whitbeck’s initial sentencing, there had been “an allegation of Theft,

Obstructing and False Statement.” The court expressed particular concern with

the allegation of obstructing.

In response, Whitbeck asserted that he was taking the DOSA seriously and

attempting to be accountable. He explained that his recent relapse was a result of

4 Again, it is unclear from the record whether he was held in custody on the warrant DOC

recommended in the May 2022 NOV or on some other matter.

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being taken advantage of by the individuals at the clean and sober house.

Additionally, he stated that he attempted to check in at the DOC field office on May

4, but he was misadvised by people on the bus, got off on the wrong stop, and

arrived “literally like five minutes late.”

The trial court revoked the DOSA, stating that it was “too concerned about

community safety to conclude that a second return to ABHS [would be]

appropriate.” Based on his stipulation, the trial court found that Whitbeck had

violated the conditions of the DOSA by failing to report to DOC and failing to submit

a UA; it also found those violations were willful. The trial court imposed a standard

range sentence of 22 months in prison, followed by 12 months of community

custody.

Whitbeck timely appealed.

ANALYSIS

The DOSA program was created to encourage defendants to participate in

substance-abuse treatment. In re Pers. Restraint of McKay, 127 Wn. App. 165,

168, 110 P.3d 856 (2005). Pursuant to RCW 9.94A.660(3), once a trial court

determines that a defendant is eligible for a residential DOSA, the court may waive

a standard range sentence and instead impose residential treatment under RCW

9.94A.664. When the trial court imposes a residential DOSA, it “shall impose

treatment and other conditions” during “any period of community custody.” RCW

9.94A.664(2)(a). DOC may also set additional conditions of community custody.

RCW 9.94A.660(6)(b). If the defendant violates the conditions or requirements of

the DOSA at any point during the period of community custody, the trial “court may

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order the [defendant] to serve a term of total confinement within the standard range

of the [defendant’s] current offense.” RCW 9.94A.660(7)(c).

I. Issue Preservation and RAP 2.5

Whitbeck assigns error to the revocation of his DOSA and the trial court’s

“stated grounds” for doing so. According to Whitbeck, he was denied due process

because the State “failed to notify him of the grounds it argued in support of

revocation” and the trial court “relied on those grounds” in revoking the sentencing

alternative. We decline to reach the merits on these unpreserved challenges.

“It has long been the law in Washington that an ‘appellate court may refuse

to review any claim of error which was not raised in the trial court.’” State v. O’Hara,

167 Wn.2d 91, 97-98, 217 P.3d 756 (2009) (quoting RAP 2.5(a)). Generally, we

will not consider issues raised for the first time on appeal. State v. A.M., 194 Wn.2d

33, 38, 448 P.3d 35 (2019). However, a party may seek review of a “manifest error

affecting a constitutional right” for the first time on review. RAP 2.5(a)(3). To

satisfy RAP 2.5, “an appellant must demonstrate (1) the error is manifest, and (2)

the error is truly of constitutional dimension.” O’Hara, 167 Wn.2d at 98. In other

words, the appellant must make a plausible showing “that the error has practical

and identifiable consequences in the trial of the case.” In re Det. of T.C., 11 Wn.

App. 2d 51, 61, 450 P.3d 1230 (2019).

Whitbeck’s assignments of error concerning the alleged violation of his right

to due process were not preserved for review as he failed to object on this basis

at the time of the court’s ruling. Although he asserts in his opening brief that his

right to due process was violated, he fails to even reference the exception set out

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in RAP 2.5(a) until his reply brief. This court will not consider issues raised for the

first time in a reply brief. State v. Ho, 8 Wn. App. 2d 132, 140-41, 437 P.3d 726

(2019). Even issues of constitutional magnitude raised for the first time in a reply

brief need not be considered. State v. Manthie, 39 Wn. App. 815, 826 n.1, 696

P.2d 33 (1985). As Whitbeck failed to preserve his due process argument and

waited until his reply brief to address RAP 2.5(a), we decline to review his claims

regarding notice.5

II. Written Findings Supported by the Record

Whitbeck’s remaining assignment of error reads: “The trial court’s written

findings of fact were checked boxes on a standardized form and do not reflect the

evidence it stated it relied on or the reasons it stated supported revocation of the

DOSA.” Whitbeck avers that our review should be based on the trial court’s

statements at the revocation hearing rather than the written findings of fact set out

in the revocation order. We disagree and decline to follow his proposed method

of review.

A ruling on the revocation of a suspended sentence due to a violation is

reviewed for abuse of discretion. State v. McCormick, 166 Wn.2d 689, 705-06,

213 P.3d 32 (2009). An abuse of discretion exists when the decision is “‘manifestly

unreasonable, or exercised on untenable grounds, or for untenable reasons.’”

State v. Hays, 55 Wn. App. 13, 16, 776 P.2d 718 (1989) (internal quotation marks

omitted) (quoting State v. Cunningham, 96 Wn.2d 31, 34, 633 P.2d 886 (1981)).

5 Accordingly, we do not consider Whitbeck’s first and third assignments of error. Because his second assignment of error concerns the propriety of the trial court’s written findings of fact, it is properly before us.

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Because revocation hearings are not criminal proceedings, a defendant

“facing revocation of a suspended sentence has only minimal due process rights.”

State v. Dahl, 139 Wn.2d 678, 683, 990 P.2d 396 (1999). The minimal due process

rights afforded to someone facing revocation of a DOSA are the same as those

provided to individuals facing revocation of parole or probation. In re Pers.

Restraint of Schley, 191 Wn.2d 278, 286, 421 P.3d 951 (2018). They include the

following:

(a) written notice of the claimed violations of 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 such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.

Morrissey v. Brewer, 408 U.S. 471, 489, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972).

Trial courts may revoke a residential DOSA if the defendant violates the

terms. RCW 9.94A.660(7)(c). DOC “has the burden to prove each violation

allegation by a preponderance of the evidence” that requires the evidence to show

the allegation at issue is “more probably true than not true.” Schley, 191 Wn.2d at

286; In re Pers. Restraint of Sego, 82 Wn.2d 736, 739 n.2, 513 P.2d 831 (1973).

At the revocation hearing on May 27, 2022, Whitbeck admitted to the two

alleged violations set out in the May 6 NOV: the failure to report and failure to

comply with UA on May 4. In fact, the record demonstrates that Whitbeck admitted

each of the five violations DOC alleged during the time he was serving the

residential DOSA. As Whitbeck admitted to the violations, the trial court’s findings

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that they occurred were clearly supported by a preponderance of the evidence.

Alone, the two most recent violations were sufficient grounds for the trial court to

revoke the residential DOSA.6 In its oral findings, the trial court noted the severity

of this case, as it was initially charged as a Class A felony, and stated that it was

“always probably at the margins in terms of whether a DOSA was an appropriate

sentence.” Further, the trial court referenced Whitbeck’s criminal history, both the

convictions which predated the case at hand and new allegations that arose during

the DOSA. Finally, the court explained that it was “too concerned about community

safety to conclude that a second return to ABHS is appropriate.” The revocation

order noted that the trial court considered the oral statements of Whitbeck and

argument from counsel; the written findings were that Whitbeck had violated the

DOSA by failing to report to DOC as ordered and failing to submit to a UA, and

that both violations were willful.

The fact that the State argued for revocation based on the entirety of

Whitbeck’s record of noncompliance with the terms of the DOSA does not render

the court’s ruling an abuse of discretion. It was entirely proper for the court to

review the case file as a whole prior to making its ruling. Whitbeck himself argued

historical facts, specifically his prior completion of treatment, in support of his

request for another opportunity at residential treatment. He appropriately noted

that the time for the court to consider the seriousness of the charges was at the

original sentencing hearing when the agreed recommendation for a residential

DOSA was accepted and imposed.

6 Whitbeck further admitted to absconding when he was released from ABHS to self- quarantine in December 2021, and to relapsing after he was discharged in April 2022.

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Whitbeck cites to In re Det. of LaBelle to argue that the trial court’s

“preprinted boilerplate revocation order” was inadequate, as it lacked “detailed,

case-specific findings.” 107 Wn.2d 196, 728 P.2d 138 (1986). LaBelle addressed

the requirements of written findings of fact in the context of involuntary commitment

under the involuntary treatment act7 (ITA). Id. at 218. Our Supreme Court

explained that “[w]hile the degree of particularity required in findings of fact

depends on the circumstances of the particular case, they should at least be

sufficient to indicate the factual bases for the ultimate conclusions.” Id. Further,

the court noted that “a trial court is not required to make findings of fact on all

matters about which there is evidence in the record; only those which establish the

existence or nonexistence of determinative factual matters need be made.” Id. at

219.

Whitbeck’s reliance on LaBelle is misplaced. LaBelle concerned orders for

90 days of involuntary treatment when a person is detained pursuant to the ITA,

not the revocation of a discretionary sentencing alternative like a DOSA. While

findings in the legal context of the former must be rooted in clear, cogent, and

convincing evidence, those in the latter need only be supported by a

preponderance of the evidence. Compare LaBelle, 107 Wn.2d at 218, with Schley,

191 Wn.2d at 286-87. Moreover, LaBelle explained that trial court’s need to make

findings of fact only concerning matters “which establish the existence or

nonexistence of determinative factual matters.” 107 Wn.2d at 219. Here, the two

determinative factual matters before the trial court were the alleged violations of

7 Ch. 71.05 RCW.

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the DOSA based on Whitbeck’s failure to report to the DOC field office and his

failure to submit to a UA on May 4. Accordingly, these are the only two matters on

which the trial court was required to make written findings. As Whitbeck admitted

each violation, there is no question as to the sufficiency of proof underlying those

findings. Perhaps more critically on this matter, Whitbeck did not object to the

findings entered at the conclusion of the review hearing or otherwise suggest that

the revocation order, that he and his counsel both signed, did not properly reflect

the court’s ruling, reasoning, or the evidence it relied upon.

Though we may look to a trial court’s oral statements when the written

findings are inadequate or unclear, there is no need to supplement here. See State

v. Holland, 98 Wn.2d 507, 517, 656 P.2d 1056 (1983). Even assuming arguendo

that the written findings were inadequate, this court may affirm the trial court on

“any basis supported by the record.” State v. Poston, 138 Wn. App. 898, 905, 158

P.3d 1286 (2007). Because the record plainly supports the trial court’s findings on

both of the alleged violations to which Whitbeck stipulated, the trial court did not

err in revoking Whitbeck’s residential DOSA.

Affirmed.

WE CONCUR:

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