State Of Washington v. Justin Charles Countryman

• Court: Court of Appeals of Washington
• Decided: January 19, 2016
• Docket: 72752-4
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, NO. 72752-4-1

Respondent, DIVISION ONE v.

JUSTIN COUNTRYMAN, UNPUBLISHED OPINION

Appellant. FILED: January 19, 2016

Lau, J. — Justin Countryman appeals the trial court's revocation of his

suspended sentence under the Special Sex Offender Sentencing Act (SSOSA).

He argues that because he lacked notice the trial court would consider certain

documents, the court violated his right to due process. He also challenges

several of his community custody conditions. Because he was afforded the

"minimal due process" that revocation proceedings require, Countryman does not

establish a due process violation. And his statement of additional grounds does

not demonstrate any abuse of discretion. We accept the State's concessions

that the community custody conditions involving drugs, breathalyzer and

plethysmograph testing, and pornography should be stricken or modified.

Countryman's challenge to the condition requiring consent to home searches, No. 72752-4-1/2

however, is not ripe for review. We affirm the trial court's decision revoking

Countryman's SSOSA. We remand for amendment of Countryman's judgment

and sentence consistent with this opinion.

FACTS

In August 2007, after a bench trial on stipulated facts, the trial court found

Justin Countryman guilty of one count of rape of a child in the first degree. The

charges arose from acts committed against his 4-year-old niece. The court

granted Countryman a SSOSA, suspended his 123-month prison term, and

imposed a number of conditions. In January 2012, the court found that

Countryman had successfully completed sexual deviancy treatment, satisfying

one of these conditions.

In April 2014, the Department of Corrections (DOC) alleged that

Countryman violated three conditions of his sentence, later withdrawing two of

the allegations. In May 2014, the court found Countryman violated one condition

by having unsupervised contact with two 12-year-old girls on Facebook. The

court ordered Countryman to serve 60 days in jail and reengage in sex offender

treatment. The court prohibited Countryman from having any contact with

minors.

On September 30, 2014, the DOC alleged two new violations: failing to

report a change of address and associating with minors by visiting a residence

where minors live without permission from his community corrections officer

(CCO) and therapist. A week later, the DOC issued a supplemental notice of

violation, which reported that a recent polygraph examination showed "significant No. 72752-4-1/3

reactions indicative of deception." Clerk's Papers (CP) at 31-33. The State

moved to revoke the SSOSA, stating that it would rely on the September 30 and

October 6 notices of violation, documents in the court file, and the testimony of

Countryman's CCO and the victim's mother.

In a review hearing memorandum, defense counsel objected to the

admission of any polygraph results. Counsel also objected to "consideration of

other alleged violations not proven [,] referenced in the DOC reports dated

September 30, 2014 and October 6, 2014 and the State's brief." CP at 20.

At the November 2014 revocation hearing, Countryman's CCO testified

about both alleged violations. After the State withdrew the first alleged violation,

Countryman stipulated to the second, admitting associating with a minor in the

minor's residence without prior DOC approval. The State changed its

recommendation from revocation to sanction.

The court found that Countryman violated the condition. Rejecting the

parties' proposed agreement on sanctions, the court revoked Countryman's

SSOSA and reimposed the 123-month minimum term sentence. The court also

imposed a lifetime term of community custody, incorporating the specific

conditions of his original sentence.

Countryman appeals.

ANALYSIS

SSOSA and Due Process

Countryman contends that in revoking his SSOSA, the trial court violated

his right to due process. He argues that he lacked notice that the court would No. 72752-4-1/4

consider certain evidence, and therefore, he did not have opportunity to contest

it.

A court may revoke an offender's SSOSA at any time if the court finds that

the offender has violated the conditions of the suspended sentence or is failing to

make satisfactory progress in treatment. Former RCW 9.94A.670(10) (2006);1

State v. McCormick. 166 Wn.2d 689, 705, 213 P.3d 32 (2009). "The revocation

of a suspended sentence is not a criminal proceeding, but rather an extension of

the original criminal conviction." McCormick. 166 Wn.2d at 699. Therefore, an

offender facing revocation of a SSOSA has only "minimal due process rights"

because the offender has already pleaded or been found guilty. State v. Pah I.

139 Wn.2d 678, 683, 990 P.2d 396 (1999). "Proof of violations need not be

established beyond a reasonable doubt but only must 'reasonably satisfy' the

court the breach of condition occurred." State v. Badger. 64 Wn. App. 904, 908,

827 P.2d 318 (1992). These minimal due process rights, articulated by the

United States Supreme Court in the context of parole violations, include:

(a) written notice of the claimed violations; (b) disclosure to the parolee of the evidence against him; (c) the opportunity to be heard; (d) the right to confront and cross-examine witnesses (unless there is good cause for not allowing confrontation); (e) a neutral and detached hearing body; and (f) a statement by the court as to the evidence relied upon and the reasons for the revocation.

Dahl, 139 Wn.2d at 683 (citing Morrissev v. Brewer, 408 U.S. 471, 488-89, 92 S.

Ct. 2593, 33 L. Ed. 2d 484 (1972)). Upon revocation, the court reinstates the

original sentence. Dahl. 139 Wn.2d at 683.

1 All references to the SSOSA statute cite to the version in effect at the time of Countryman's offense (Aug. 1, 2006 to Feb. 16, 2007). CP at 119; RCW 9.94A.345. No. 72752-4-1/5

We review a trial court's decision to revoke a SSOSA due to violations for

abuse of discretion. McCormick. 166 Wn.2d at 705-06. "An abuse of discretion

occurs only when the decision of the court is 'manifestly unreasonable, or

exercised on untenable grounds, or for untenable reasons.'" McCormick. 166

Wn.2d at 706 (quoting State ex rel. Carroll v. Junker. 79 Wn.2d 12, 26, 482 P.2d

775 (1971)). "A decision is based 'on untenable grounds' or made 'for untenable

reasons' if it rests on facts unsupported in the record or was reached by applying

the wrong legal standard." State v. Rohrich. 149 Wn.2d 647, 654, 71 P.3d 638

(2003) (quoting State v. Blackwell. 120 Wn.2d 822, 830, 845 P.2d 1017 (1993)).

A court "'necessarily abuses its discretion by denying a criminal defendant's

constitutional rights.'" State v. Iniauez. 167 Wn.2d 273, 280, 217 P.3d 768

(2009) (quoting State v. Perez, 137 Wn. App. 97, 105, 151 P.3d 249 (2007)). We

review such a constitutional claim de novo. Iniauez. 167 Wn.2d at 280.

Countryman argues that the court violated his right to due process when it

"relied on evidence that was not presented at the revocation hearing and which

Countryman did not have an opportunity to contest." Br. of Appellant at 10.

Specifically, he alleges that the court improperly relied on statements in reports

by Norman Glassman, a sex offender treatment provider. Glassman reported

that during his 2007 evaluation, Countryman disclosed two uncharged acts of

molestation against children, one when Countryman was 13-years-old and the

other when he was 10-years-old. The State's presentence investigation cited to

Glassman's report, including this disclosure. Countryman also faults the court for

relying on treatment provider Stephanie Overton's September 2014 report, in No. 72752-4-1/6

which she characterized Countryman's progress as "fair" and his risk of

reoffending as "low/moderate." CP at 41-43. The State attached this report and

the September 2014 notice of violation to its October 2 petition to revoke

Countryman's SSOSA. Countryman argues, "Both of these allegations formed

part of the court's reason for revocation, but [he] was not given notice that the

court would rely on these evidentiary allegations as a basis to revoke the

SSOSA." Br. of Appellant at 11.

Countryman does not establish a violation of his right to due process.

"Due process requires that the State inform the offender of the specific violations

alleged and the facts that the State will rely on to prove those violations." Dahl.

139 Wn.2d at 685. Countryman does not dispute that he had notice of the

alleged violation and the evidence the State would present. Minimal due process

allows courts to admit sufficiently reliable substitutes for live testimony, such as

the reports at issue, and Countryman does not show why he was entitled to

notice of any particular documents in his file. Dahl. 139 Wn.2d at 686. While

Countryman objected in his memorandum to the court's consideration of alleged

violations which the State later withdrew, he failed to object to consideration of

either Glassman's or Overton's report. He has waived his objection to these

witnesses' testimony. State v. Nelson. 103 Wn.2d 760, 766, 697 P.2d 579

(1985). The notice Countryman received met minimal due process standards.

Dahl. 139Wn.2dat686.

Due process also requires "a statement by the court as to the evidence

relied upon and the reasons for the revocation." Dahl. 139 Wn.2d at 683. In its No. 72752-4-1/7

oral ruling, the trial court stated, "I went back through the entire file." Report of

Proceedings (RP) (Nov. 13, 2014) at 5. The court referenced Countryman's

alleged 2007 disclosures to Glassman of uncharged conduct, as well as

Overton's 2014 risk assessment. But in making its revocation decision, the court

focused on the September 2014 notice of violation that prompted the State to

move for revocation:

Five months later here we are again. He goes in a residence where he was expressly with a minor, and he knew he wasn't to be there. I mean—and I ordered him back into treatment. Treatment notes say that his compliance is fair, but what I do note is that the supervising treatment provider now risk—lists his risk of re-offending not just as low, but as low/moderate. This is all really a concern to the Court. I mean, my job is not just to agree to a stipulation where the parties have reached a result, it is to make sure that the Defendant is—that the community is safe from the Defendant.

RP(Nov. 13, 2014) at 6.

Here, especially given that Countryman stipulated to the violation at issue,

the court was "reasonably satisfied that [Countryman] violated a condition of his

suspended sentence." Dahl. 139 Wn.2d at 683. The trial court applied the

correct legal standard in revoking Countryman's SSOSA sentence. Countryman

fails to show any denial of due process or abuse of discretion.

Community Custody Conditions

Countryman also asserts that several of his conditions of community

custody should be stricken. First, he challenges five drug-related prohibitions in

conditions 10 through 14 as not crime-related and violative of his constitutional

rights. CP at 117-118. Courts may impose only sentences that are authorized

by statute. State v. Miller. 159 Wn. App. 911, 930-31, 247 P.3d 457 (2011). We No. 72752-4-1/8

review whether a court had the statutory authority to impose a community

custody condition de novo. State v. Armendariz. 160 Wn.2d 106, 110, 156 P.3d

201 (2007). An offender in community custody "shall comply with any crime-

related prohibitions." RCW 9.94A.700(5)(e). A "'[c]rime-related prohibition' . . .

directly relates to the circumstances of the crime for which the offender has been

convicted." RCW 9.94A.030(13); State v. Land. 172 Wn. App. 593, 605, 295

P.3d 782 (2013).

The State concedes that because there is no evidence that Countryman's

crime involved drugs, these conditions are not crime-related and should be

stricken. We accept the State's concession. See Land. 172 Wn. App. at 605

(where there is no evidence that drug use or possession of drug paraphernalia

bore any relation to offenses, such conditions must be stricken as not crime-

related). Similarly, because Countryman's crime did not involve alcohol, and the

conditions of community custody do not prohibit him from using alcohol, we

accept the State's concession that the condition requiring breathalyzer

examinations is neither crime-related nor necessary to monitor compliance with

other conditions.

Consistent with our Supreme Court's 2008 decision in State v. Bahl. 164

Wn.2d 739, 758, 193 P.3d 678 (2008), we also accept the State's concession

that condition 6, prohibiting Countryman from possessing or accessing

"pornographic materials," is unconstitutionally vague. Br. of Appellant at 21, Br.

of Resp't at 17. On remand, this condition should be modified to prohibit

"sexually explicit material" as defined in RCW 9.68.130. See Bahl. 164 Wn.2d at

8 No. 72752-4-1/9

758, 760 (statutory definitions do not provide adequate notice of meaning of

"pornography," but in this context, the term "sexually explicit" not

unconstitutionally vague).

We also accept the State's concession that, as this court held in Land,

"plethysmograph testing is not an appropriate DOC monitoring tool but can be

required as part of treatment." Br. of Appellant at 22; Br. of Resp't at 17; 172 Wn.

App. at 605. Condition 14, requiring Countryman to submit to plethysmograph

examinations "as directed by the supervising CCO, to ensure conditions of

community custody," should be stricken. CP at 118.

Finally, Countryman challenges condition 17, which requires him to

"consent to DOC home visits to monitor your compliance with supervision. Home

visits include access for purposes of visual inspection of all areas of the

residence in which you live or have exclusive or joint control and/or access." Br.

of Appellant at 25; CP at 118. In State v. Cates. 183 Wn.2d 531, 354 P.3d 832

(2015), our Supreme Court recently considered a facial constitutional challenge

to a substantially similar community custody condition.2 In Cates. the court held

that "[f]urther factual development [was] needed" before the challenge was ripe

for review, and "[the defendant] [did] not face a significant risk of hardship by [the

court] declining to review the merits in the absence of developed facts." Cates.

183Wn.2dat536.

2 The condition at issue in Cates was broader than Countryman's, adding "computers which you have access to" to the areas DOC could search. Cates. 183Wn.2dat533. No. 72752-4-1/10

The Cates decision controls our decision here. Countryman's challenge to condition 17 is not ripe for review.

Statement of Additional Grounds

In a statement of additional grounds (SAG), Countryman alleges "discrepancies in the court's statements made while determining my revocation."

SAG at 1. He claims the trial court "misunderstood, and drew incorrect

conclusions about my compliance" when it stated at the revocation hearing that

he was only compliant for 15 months, rather than the 27 months between his

release from treatment in January 2012 and his first notice of violation in April

2014. SAG at 1-2; RP (Nov. 13, 2014) at 7. But he fails to show why this

discrepancy was critical to the court's determination or that it constitutes an

abuse of discretion.3

Countryman also alleges that the court misrepresented his "offense cycle"

and, consequently, mistakenly and "with a biased agenda," evaluated his risk to

the community. SAG at 2-3. He faults the court for misconstruing his defense to

the charged violation and for considering Dr. Glassman's 2007 report, which he

argues "isn't entirely accurate." SAG at 8. He asserts that the court

misinterpreted official evaluations of his risk of reoffending. In each of these

contentions, Countryman asks us to review the trial court's weighing of the

evidence. But it is the trial court's role, not this court's, to assess the credibility of

witnesses and resolve differing accounts or interpretations of the evidence. See

3 Defects in a trial court's oral comments do not constitute proper assignments of error, and Countryman may not use them to impeach the court's judgment here. Rutter v. Rutter's Estate. 59 Wn.2d 781, 784, 370 P.2d 862 (1962).

10 No. 72752-4-1/11

State v. Fiser. 99 Wn. App 714, 719, 995 P.2d 107 (2000) ("This court must defer

to the trier of fact on issues of conflicting testimony, credibility of witnesses, and

the persuasiveness of the evidence.").

While Countryman frames his fourth contention as a constitutional

question, arguing that the phrase "associating with minors" in the September

2014 notice of violation is unconstitutionally vague, he is essentially claiming that

insufficient evidence supported the trial court's decision to revoke. SAG at 5.

His stipulation to the violation on which the court based its decision undermines

that argument. None of Countryman's allegations in his SAG demonstrate that

the court abused its discretion.

CONCLUSION

Our review of the record shows that Countryman received adequate notice

of the facts and evidence the State would present in support of revocation,

satisfying Countryman's due process rights as set forth in Dahl. Countryman's

additional arguments do not establish grounds for relief. We affirm the trial

court's order revoking the suspended sentence. We remand for amendment of

the judgment and sentence consistent with this opinion.

WE CONCUR: