State Of Washington v. Justin Ross Wheeler

• Court: Court of Appeals of Washington
• Decided: September 8, 2020
• Docket: 79574-1
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 79574-1-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION JUSTIN R. WHEELER,

Appellant.

LEACH, J. — Justin Ross Wheeler appeals the trial court’s order revoking his

special sex offender sentencing alternative (SSOSA). He claims the trial court violated

his double jeopardy rights by considering his previously sanctioned condition violations

when it revoked the SSOSA. He also claims, and the State concedes, that he should

receive credit for time served on work crew.

Because the trial court’s consideration of earlier violations does not violate

double jeopardy, we affirm the SSOSA revocation. But, the SSOSA statute requires the

court to credit confinement time, and confinement time includes work crew service. So,

we remand to the trial court to credit Wheeler for time served on work crew.

FACTS

In December 2008, Justin Ross Wheeler pleaded guilty to three counts of first

degree child molestation. The trial court sentenced him to a special sex offender

Citations and pincites are based on the Westlaw online version of the cited material. No. 79574-1/ 2

sentencing alternative with a 130 month suspended sentence. The court ordered him to

complete at least three years of outpatient sex offender treatment. The court also

imposed community custody conditions, including (1) do not consume controlled

substances; (2) do not contact minor children; (3) report to the assigned community

corrections officer (CCO) as directed; and (4) participate in urinalyses as directed by the

supervising CCO. In April 2015, Wheeler admitted to six community custody

violations: contacting two minors, possessing alcohol, and failing to report for work crew

three times.

The trial court ordered Wheeler to serve 360 days in jail as a sanction. It also

ordered Wheeler to complete another two years of sex offender treatment, community

custody, and imposed additional conditions, including: (1) prohibiting access to the

internet, except as authorized by his CCO, and (2) requiring installation of monitoring

software for any device with the internet.

In May 2016, the State asked the court to revoke Wheeler’s SSOSA based on

additional condition violations. The trial court found that he committed four violations

because he failed to report to his CCO, failed to report to work crew, consumed

marijuana, and consumed Percocet without a valid prescription. The court denied the

State’s request to revoke the SSOSA but sanctioned him with an additional 240 days in

jail.

In October 2018, the State again asked the court to revoke Wheeler’s SSOSA

based on additional condition violations. The State alleged that he failed to report to his

CCO, consumed marijuana, and failed to install monitoring software on devices that

could access the internet.

2 No. 79574-1/ 3

On January 16, 2019, the trial court held a revocation hearing. During closing

argument, the State mentioned Wheeler’s earlier violations and sanctions. Wheeler

objected, arguing that double jeopardy and the plain language of the SSOSA statute

prohibited the trial court from considering Wheeler’s earlier violations when deciding

whether to revoke his SSOSA. The court found that while it could not rely on earlier

violations as evidence that he “violated on this particular occasion,” “[p]rior violations

may be relevant when it comes to the issue of any sanction that may be appropriate just

as prior criminal conduct would be.”

The trial court found that Wheeler violated his SSOSA. The court found

Wheeler’s failure to install monitoring software as “the most significant violation.” It

revoked his SSOSA.

With regard to the prior sanctions and prior violation hearings held by the Court, I certainly do not suggest and would not punish Mr. Wheeler for the same conduct twice. However, there comes a time when the cumulative violations of a SSOSA, which is a matter of grace, not a matter of right, when the cumulative violations of the SSOSA suggest that the defendant should not remain upon a sexual, special sexual offender sentencing alternative. And the record in this file is replete with continued violations, and repeated hearings wherein violations have been found.

Given the very serious nature of the violation on this occasion where there had been a prior violation using electronic devices where Judge Rickert had specifically ordered that there's monitoring software and where there was no monitoring software, the Court will find, and in light of the prior violations, the Court will find that revocation is appropriate in this case and will order revocation of the special sexual offender sentencing alternative.

After revoking the SSOSA, the court ordered Wheeler serve his original

sentence, 130 months on all three counts, to run concurrently with credit for time served

in jail on prior condition violations. Wheeler appeals.

3 No. 79574-1/ 4

DISCUSSION

Wheeler claims the trial court violated the prohibition against double jeopardy by

considering his earlier condition violations when it decided to revoke his SSOSA. We

disagree.

The Sentencing Reform Act of 1981, chapter 9.94A RCW authorizes a

sentencing court to suspend the sentence of a first-time sexual offender if the offender

is shown to be amenable to treatment and instead require that the offender be released

into community custody and receive outpatient or inpatient treatment. 1

A trial court may revoke a SSOSA at any time if the offender violates the

conditions of the suspended sentence or if the court finds the offender fails to make

satisfactory progress in treatment. 2 After a court revokes a SSOSA, the court reinstates

the original sentence.3 Because revocation is not a criminal proceeding, the due

process rights at a revocation hearing are not the same as those guaranteed at trial. 4

The offender at a revocation hearing has “only minimal due process rights.”5

The double jeopardy clause of the Fifth Amendment guarantees protection

against: (1) a second prosecution for the same offense after an acquittal; (2) a second

prosecution for the same offense after a conviction; and (3) “‘multiple punishments for

1 RCW 9.94A.670. 2 RCW 9.94A.670(11); State v. McCormick, 166 Wn.2d 689, 698, 705-06, 213 P.3d 32 (2009). 3 State v. Dahl, 139 Wn.2d 678, 683, 990 P.2d 396 (1999). 4 Dahl, 139 Wn.2d at 683 (citing State v. Nelson, 103 Wn.2d 760, 763, 697 P.2d 579 (1985)). 5 Dahl, 139 Wn.2d at 683 (citing State v. Badger, 64 Wn. App. 904, 907, 827 P.2d 318 (1992)). 4 No. 79574-1/ 5

the same offense’ imposed in a single proceeding.”6 We review double jeopardy claims

de novo.7

“In the multiple punishments context,” double jeopardy protection is “‘limited to

ensuring that the total punishment did not exceed that authorized by the legislature.’” 8

“A double jeopardy violation does not occur simply because two adverse consequences

stem from the same act.” 9 Principles of double jeopardy generally do not apply to

sentencing other than in the death penalty context. 10 Washington courts have not yet

answered the specific question of whether double jeopardy prohibits a court from

considering earlier SSOSA condition violations in its decision to revoke a SSOSA.

Wheeler claims that the SSOSA revocation is an additional penalty, and that

considering earlier violations when deciding whether to revoke a SSOSA violates

double jeopardy because the court already sanctioned him for those earlier violations.

So, considering them would constitute a double punishment.

First, revoking a SSOSA is not separate punishment. If an offender violates a

condition of a suspended sentence, or if the court finds that an offender fails to make

satisfactory progress in treatment, the court can revoke the suspended sentence and

apply the original sentence.11 So, revoking the SSOSA does not impose a double

6 Jones v. Thomas, 491 U.S. 376, 381, 109 S. Ct. 2522, 105 L. Ed. 2d 322 (1989) (quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989)). 7 State v. Hughes, 166 Wn.2d 675, 681, 212 P.3d 558 (2009). 8 Thomas, 491 U.S. at 381 (quoting U.S. v. Halper, 490 U.S. 435, 450, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989), abrogated by Hudson v. U.S., 522 U.S. 93, 118 S. Ct. 488, 139 L. Ed. 2d 450 (1997)). 9 Matter of Mayner, 107 Wn.2d 512, 521, 730 P.2d 1321 (1986). 10 State v. Maestas, 124 Wn. App. 352, 357, 101 P.3d 426 (2004). 11 RCW 9.94A.633(2)(d). 5 No. 79574-1/ 6

punishment. 12 The court does not add extra time to the original sentence when it

revokes a SSOSA since the offender’s original sentence is reinstated. Second, the trial

court considered Wheeler’s earlier SSOSA violations in determining whether to revoke

his SSOSA and not in determining whether he committed the alleged new SSOSA

violation. This is the same function that sentencing enhancements accomplish by

considering criminal history for sentencing purposes, but not for determining guilt. So,

the trial court did not “effectively [punish] Wheeler twice for prior violations,” as he

claims it did, but merely considered those earlier violations in assessing whether to

revoke his SSOSA or impose a lessor sanction.

Wheeler’s argument would require a court to always treat an offender as a first

time offender regardless of the offender’s history. The U.S. Supreme Court has already

rejected the claim that harsher penalties imposed as a result of a prior conviction violate

double jeopardy protections.13 In McDonald v. Commonwealth of Massachusetts,14 the

court held that a prior conviction enhancement did not constitute a second punishment

for the earlier offense, but rather the existence of the former conviction amplified the

seriousness of the current offense thus justifying a more extreme sentence.15

Here too, the previous violations enhance the seriousness of the current

violations thus supporting a SSOSA revocation. But, the revocation is not a second

punishment. Double jeopardy rights do not prohibit courts from considering criminal

history for purposes of deciding an appropriate sentence or imposing sentencing

12 In re Albrecht, 147 Wn.2d 1, 13, 51 P.3d 73 (2002). 13 McDonald v. Commonwealth of Massachusetts, 180 U.S. 311, 21 S. Ct. 389, 45 L. Ed. 542 (1901). 14 180 U.S. at 311. 15 Commonwealth of Massachusetts, 180 U.S. at 312; Chenowith v. Commonwealth, 12 S.W. 585, 11 Ky. L. Rptr. 561 (1889). 6 No. 79574-1/ 7

enhancements, because that does not penalize the offender for that same earlier crime

twice. Instead, this consideration treats a repeat offense more seriously than a first

offense with a more serious penalty. Similarly, double jeopardy does not apply here

either.

Wheeler claims that we cannot analogize a SSOSA revocation to a sentencing

enhancement because “there is no corresponding legislative intent to allow for

revocation of a SSOSA based on previously sanctioned violations.” But, the SSOSA

statute does show a legislative intent that a court consider an offender’s history. To be

eligible for a SSOSA, the offender must have “no prior convictions.”16 If the court must

consider an offender’s conviction history before imposing a SSOSA, then it logically

follows that the court can consider the offender’s conduct history after receiving a

SSOSA, including violations, when deciding whether to revoke a SSOSA. Also,

prohibiting courts from considering earlier condition violations would frustrate the

legislature’s effort with the SSOSA statute to both protect children and promote

rehabilitation.17

Wheeler also claims the two statutes authorizing punishment for condition

violations suggest a legislative intent to prohibit sentencing courts from considering

earlier violations when considering a SSOSA revocation, because the statutes offer “two

mutually exclusive options when an individual violates” a SSOSA. He explains how if

the court chooses to confine an offender but later revokes the SSOSA, the offender

receives credit for confinement time. “In other words, the sanction is served and the

punishment is final.” But, “[n]either the history of sentencing practices, nor the pertinent

16 RCW 9.94A.670(2)(b). 17 State v. Flowers, 154 Wn. App. 462, 466, 225 P.3d 476 (2010). 7 No. 79574-1/ 8

rulings of [the] [Supreme] Court, nor even considerations of double jeopardy policy

support the proposition that a criminal sentence, once pronounced, is to be accorded

constitutional finality similar to that which attaches to jury’s verdict of acquittal.”18 And

again, under Wheeler’s reasoning, double jeopardy would prohibit courts from

considering earlier convictions for sentence enhancements, because there too the

offender has served the sanction and the punishment is final. But, because sentence

enhancements do not violate double jeopardy, Wheeler’s claim fails.

Wheeler relies on State v. Buckley, 19 where the court punished a juvenile for the

same offense during two separate court proceedings that resulted in two separate

punishments. But here, the court did not punish Wheeler in two separate proceedings

for the same past violation. The court merely considered the earlier condition violations

in determining whether to revoke his SOSSA and reinstated his original sentence.

Because the court did not punish Wheeler twice, Buckley does not support his position.

Consideration of earlier condition violations for SSOSA revocations not only

withstands a double jeopardy challenge, but it is logical and fair. The logic lies in the

“attempt to deter repeated criminal activity, while the fairness is obvious in the notion

that a recidivist should receive a stiffer sentence than a first-time offender.”20 We hold

the trial court properly considered Wheeler’s earlier condition violations when

determining whether to revoke his SSOSA.

18 U.S. v. DiFrancesco, 449 U.S. 117, 101 S. Ct. 426, 66 L. Ed. 2d 328 (1980). 19 83 Wn. App. 707, 924 P.2d 40 (1996). 20 Com. v. Arriaga, 422 Pa. Super. 52, 56, 618 A.2d 1011 (1993). 8 No. 79574-1/ 9

Credit for Time Served

Wheeler next claims, and the State concedes, that he should receive credit for

the time served on work crew during his SSOSA.

RCW 9.94A.670(11) requires that “[a]ll confinement time served during the period

of community custody shall be credited to the offender if the suspended sentence is

revoked.” “Confinement” includes both partial and total confinement. 21 Partial

confinement includes work crew. 22

The court sanctioned Wheeler for prior SSOSA violations and ordered him to

serve on work crew multiple times. The sentencing court gave him credit for all jail time

in the SSOSA revocation but omitted credit for work crew. We remand for the

sentencing court to credit work crew time in the order.

CONCLUSION

We affirm in part and remand in part. Wheeler fails to show that double jeopardy

prohibited the trial court from considering earlier condition violations when determining

whether to revoke his SSOSA. But, because the SSOSA statute requires a credit for

confinement, and confinement includes work crew service, and Wheeler’s sentence did

not provide credit for work crew service, we remand to the trial court to correct this

omission.

WE CONCUR:

21 RCW 9.94A.030(8). 22 RCW 9.94A.030(36). 9