FILED JANUARY 30, 2025 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) ) No. 39685-1-III Respondent, ) ) v. ) ) UNPUBLISHED OPINION LAURA ELAINE MCCARVER, ) ) Appellant. ) ) FEARING, J. — In this appeal, Laura McCarver claims the superior court violated
her due process rights because she lacked the opportunity to cross-examine State
witnesses and because the court considered unadmitted hearsay evidence when revoking
her Drug Offender Sentencing Alternative (DOSA). We reject the appeal because
McCarver, before the superior court, never challenged the hearsay evidence or
complained about the opportunity to question witnesses. Nor does McCarver show
manifest constitutional error.
FACTS
This appeal arises from Laura McCarver’s DOSA. On January 13, 2022,
McCarver pled guilty to assault of a child in the third degree, with a special domestic No. 39685-1-III State v. McCarver
violence allegation, as an accomplice (count I); first-degree criminal mistreatment (count
II); two counts of criminal contempt for violating her release conditions (counts III and
IV); and delivery of methamphetamine as an accomplice (count V). The underlying facts
behind the crimes bear little relevance to this appeal. McCarver had no prior felony
convictions. The State agreed to recommend a prison-based DOSA.
During the 2022 sentencing hearing, the State’s attorney commented that Laura
McCarver, the mother of children, suffers from controlled substance dependency and she
acknowledges a need for treatment. Defense counsel echoed that McCarver would
benefit from treatment. McCarver personally added:
There’s been a period in my life that I’ve struggled with addiction, which has led me to always not making the right choices. But I do know for my future and for my children’s future that it’s work that gives opportunity to improve myself. I really want to take this time and focus on a new drug treatment or mental health services so I can become the best version of myself and the best mother to my children, who deserve it.
Report of Proceedings (RP) at 31.
The superior court accepted the State’s recommendation and imposed a DOSA
sentence consisting of three years of prison followed by three years of community
custody under the supervision of the Department of Corrections (DOC). When imposing
the term, the court intoned:
Ms. McCarver, you may notice already—you probably do from talking to [your lawyer], but hopefully you understand that the standard range on Count 2 was up to 82 months. And if—I mention this just because 2 No. 39685-1-III State v. McCarver
when a—when one dodges a bullet, it’s useful to know what kind of bullet. That was an 82-month bullet that you dodged by getting this DOSA.
RP at 36-37.
On December 1, 2022, DOC, apparently early, released Laura McCarver from
prison, at which time she began the community custody sentence segment. Her
community custody conditions included remaining free from controlled substances and
submitted to urinalysis (UA).
According to DOC records, Laura McCarver submitted a urinalysis on January 5,
2023, which tested positive for methamphetamine. Another UA, submitted on January
17, 2023, also tested positive for methamphetamine. McCarver admitted to using the
drug in both instances. In response, DOC placed McCarver in a thirty-day inpatient drug
treatment facility, from which she was released on February 23, 2023.
On March 15, 2023, Laura McCarver submitted another UA, which again tested
positive for methamphetamine. Nevertheless, this time, she denied using any controlled
substances. On March 21, 2023, McCarver provided two UAs, one at 11:00 a.m. and
another at 12:40 p.m. The first urinalysis tested positive for methamphetamine and the
second for opiates. McCarver again denied using controlled substances.
DOC sent the two March 15 UA samples to a laboratory for further testing and
confirmation of the presence of controlled substances. On March 22, 2023, DOC
submitted a report titled “Court – Special” to the Douglas County Superior Court and
3 No. 39685-1-III State v. McCarver
Prosecuting Attorney’s Office, outlining McCarver’s repeated failure to comply with the
terms of her DOSA sentence.
PROCEDURE
On March 22, 2023, the State moved to revoke Laura McCarver’s DOSA. The
UA results had yet to be confirmed by the laboratory.
At the initial DOSA revocation hearing on April 3, 2023, the State’s attorney
informed the court that Laura McCarver had took controlled substances since her
emancipation from incarceration in December 2022 and thus serially violated the terms of
her release. The State added that, after a second violation, DOC enrolled her in a month-
long inpatient treatment program, but she continued to take unlawful substances after
release from the treatment. The court inquired about whether the State had received
results from the independent lab testing. The State answered that a DOC supervisor
would confirm the results later that day. The State argued, however, that DOC’s test
results met the evidentiary standard to revoke McCarver’s DOSA sentence.
At the April 3, 2023 hearing, Laura McCarver’s counsel requested a continuance
in order for the parties to receive the additional urinalysis results. The court agreed to
continue the hearing for a week.
By April 11, 2023, when the DOSA revocation hearing resumed, the State had yet
to receive test results from the independent laboratory. At the resumed hearing, the State
recounted the details of Laura McCarver’s convictions and her actions since her release: 4 No. 39685-1-III State v. McCarver
On January 5th, 2023, she [Laura McCarver] tested positive for methamphetamines when she went to her DOC officer. There was a sanction, which required her to report twice weekly for a period of time. And then on January 17, 12 days later, she tested positive for methamphetamine again when she went to DOC. And on January 24, she went immediately to ABHS inpatient treatment—I assume in Wenatchee—and was released from there after about 30 days on February 23rd, 2023. [Defense counsel] was kind enough to provide us with the evaluation and monthly reports from ABHS/The Center for Drug and Alcohol Treatment, which documents her history there. …. In—so February 23rd, she was released. And on March 15, she was positive for methamphetamines again. This time she went to jail for three days as a part of a sanction. She was once again positive for methamphetamine and opiates on March 21st. So she had been in custody presumably from March 15 or 16 and then got out and then on March 21st, was positive. She started her outpatient treatment specifically on March 1st. And on March 13, she was absent and she had an individual session on March 14. And I say these dates because on March 15, she had a dirty UA. And that’s the one that just—just before she went to jail for three days.
RP at 57-58.
At the April 11 hearing, the State asked the superior court to revoke the DOSA
sentence because of the many positive urinalysis test results. According to the State,
Laura McCarver had chosen to live a lifestyle that entailed drug abuse.
During the April 11 revocation hearing, the State read from Laura McCarver’s
drug treatment assessment and progress report from April 2023. In response, defense
counsel moved for admission of the full report rather than the State selecting favorable
portions of the report. The superior court admitted the report as “Exhibit” 1.
5 No. 39685-1-III State v. McCarver
At the April 11, 2023 revocation hearing, Laura McCarver testified under oath.
She admitted to using controlled substances on two occasions since her release from
incarceration. She denied taking drugs after her inpatient treatment.
Defense counsel argued that the treatment report lacked any reference to Laura
McCarver being noncompliant with treatment. Counsel added that the court should
revoke the DOSA sentence only if McCarver disobeyed treatment instructions. Counsel
added that the State had yet to receive the independent lab test results for the last two
urinalyses. Because McCarver denied use after release from treatment, counsel wished to
review the laboratory results in case DOC testing resulted in false positives.
As in the April 3 hearing, the superior court, during the April 11 hearing, inquired
about when the State would receive the disputed UA results. The State’s attorney
answered that he had previously emailed the DOC supervisor to ask about the results.
The superior court suggested that the prosecutor call the supervisor directly. The court
took a recess for the call. Apparently, the State’s attorney did not reach the DOC
supervisor or the supervisor related that DOC had yet to receive the results.
On April 11, 2023, the superior court continued the revocation hearing again. The
court remarked:
It’s my understanding that DOC expects to receive those [laboratory] results any day. The Court would very much like to have those results in hand to make the best decision it can. There are a couple of years riding on this.
6 No. 39685-1-III State v. McCarver
RP at 75.
DOC received the independent lab test results between April 11 and April 19. On
April 19, 2023, the superior court reconvened the revocation hearing. DOC Officer
Marge Jackson attended the hearing remotely on behalf of DOC. The State writes in its
brief that two DOC officers attended the hearing, but the record does not confirm the
presence of another officer.
During the April 19 hearing, the State repeated the background of the prosecution
of Laura McCarver and her use of controlled substances during the prosecution and after
release from prison. The State then marked as Exhibit 2 the urinalysis results from
March 15, 2023, showing the presence of methamphetamine in McCarver’s urine. The
State also marked as Exhibit 3 the urinalysis report from a sample taken on March 21,
2023 at 11:00 a.m. The urine tested positive for methamphetamine and amphetamine.
Finally, the State marked as Exhibit 1 a urinalysis report from March 21, 2023 at 12:40
p.m., one hour and forty minutes after the urinalysis referenced in Exhibit 1. The 12:40
urinalysis report confirmed the presence of codeine. The State theorized about the
chronology of McCarver’s drug use and speculated she may have submitted another
individual’s urine during one of the two tests. Substituting another’s urine also
constitutes a violation of her community custody and DOSA sentence. The State did not
ask the superior court to admit identifications 1 or 3 as exhibits.
7 No. 39685-1-III State v. McCarver
The State’s attorney commented that he obtained the results from the DOC
supervisor. The supervisor, however, did not testify.
At the April 19 hearing, defense counsel urged:
But Judge, look further into the report. If there’s also an allegation that she’s tampering, look at the basic alteration check on each report— normal, normal, normal.
RP at 89. The State countered:
Your Honor, on 3/22/23, before the UAs were back from the lab for confirmation of their testing, this is what Mr. Morales, the DOC officer wrote—McCarver continues to consume controlled substances despite additional inpatient treatment and continues to have a complete disregard of her court order conditions when it comes to the condition to not use controlled substances. McCarver has been reminded in the past of how she’s placing herself in jeopardy of a reclassification of her DOSA sentence.
RP at 90.
During the course of either the April 11 or April 19 hearings, Laura McCarver did
not ask to examine any state officer. McCarver did not object to the court reviewing
Exhibits 2 or 3. McCarver did not assert that the urinalysis reports constituted hearsay
that should not be considered by the court in its ruling. McCarver’s counsel encouraged
the court to review carefully one of the reports. McCarver never complained that the
State failed to give her advance copies of any of the reports or records shown to the court.
McCarver had asked for and had been granted continuances for the laboratory reports to
arrive.
8 No. 39685-1-III State v. McCarver
The superior court revoked Laura McCarver’s DOSA sentence and imposed a 72-
month sentence. In its written order, the court wrote that it considered the State’s motion
and supporting affidavit, a report from DOC Officer Salvador Morales attached to the
affidavit, the three UA results marked as exhibits but not formally admitted as exhibits,
an email from McCarver’s Department of Children, Youth, and Families social worker,
and a progress report from her primary substance abuse treatment provider. The court
admitted as Exhibit 1 the latter report.
LAW AND ANALYSIS
On appeal, Laura McCarver asks that this court remand her prosecution for a new
DOSA revocation hearing because the State violated her due process rights during the
revocation process by not affording her an opportunity to cross-examine State witnesses
and because the superior court relied on unadmitted hearsay evidence. McCarver, in
essence, asserts that the State presented insufficient evidence to revoke her special
sentence because no admitted exhibit confirmed her abuse of drugs after her release from
inpatient treatment.
We reject Laura McCarver’s arguments because she did not assert any of the
arguments during the April 11 or 19 hearings. Instead, she invited the court to review in
depth one admitted exhibit and asked for delays so that the court could consider the other
unadmitted exhibits. McCarver never asked to question any DOC employee. She thus
waived the right to assert error on appeal. 9 No. 39685-1-III State v. McCarver
A party may not generally raise a new argument on appeal that the party did not
present to the trial court. State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251
(1995); State v. O’Hara, 167 Wn.2d 91, 97–98, 217 P.3d 756 (2009). A party must
inform the court of the rules of law it wishes the court to apply and afford the trial court
an opportunity to correct any error. Smith v. Shannon, 100 Wn.2d 26, 37, 666 P.2d 351
(1983); State v. O’Hara, 167 Wn.2d 91, 98 (2009).
RAP 2.5(a) formalizes this fundamental principle of appellate review. The first
sentence of the rule reads:
Errors Raised for First Time on Review. The appellate court may refuse to review any claim of error which was not raised in the trial court.
(Boldface omitted). No procedural principle is more familiar than that a constitutional
right, or a right of any other sort, may be forfeited in criminal cases by the failure to make
timely assertion of the right before a tribunal having jurisdiction to determine it. United
States v. Olano, 507 U.S. 725, 731, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993); Yakus v.
United States, 321 U.S. 414, 444, 64 S. Ct. 660, 88 L. Ed. 834 (1944). Good sense lies
behind the requirement that arguments be first asserted at trial. The prerequisite affords
the trial court an opportunity to rule correctly on a matter before it can be presented on
appeal. State v. Strine, 176 Wn.2d 742, 749, 293 P.3d 1177 (2013). There is great
potential for abuse when a party does not raise an issue below because a party so situated
could simply lie back, not allowing the trial court to avoid the potential prejudice, gamble 10 No. 39685-1-III State v. McCarver
on the verdict, and then seek a new trial on appeal. State v. Weber, 159 Wn.2d 252, 271–
72, 149 P.3d 646 (2006); State v. Emery, 174 Wn.2d 741, 762, 278 P.3d 653 (2012).
The theory of preservation by timely objection also addresses several other
concerns. The rule serves the goal of judicial economy by enabling trial courts to correct
mistakes and thereby obviate the needless expense of appellate review and further trials,
facilitates appellate review by ensuring that a complete record of the issues will be
available, and prevents adversarial unfairness by ensuring that the prevailing party is not
deprived of victory by claimed errors that he had no opportunity to address. State v.
Strine, 176 Wn.2d 742, 749–50 (2013); State v. Scott, 110 Wn.2d 682, 688, 757 P.2d 492
(1988).
Countervailing policies support allowing an argument to be raised for the first time
on appeal. For this reason, RAP 2.5(a) contains a number of exceptions. RAP 2.5(a)
allows an appellant to raise for the first time a “manifest error affecting a constitutional
right,” an exception on which a criminal appellant commonly relies. Constitutional errors
are treated specially under RAP 2.5(a) because they often result in serious injustice to the
accused and may adversely affect public perceptions of the fairness and integrity of
judicial proceedings. State v. Scott, 110 Wn.2d 682, 686–87 (1988). Prohibiting all
constitutional errors from being raised for the first time on appeal would result in unjust
imprisonment. State v. Lynn, 67 Wn. App. 339, 344, 835 P.2d 251 (1992). On the other
hand, “permitting every possible constitutional error to be raised for the first time on 11 No. 39685-1-III State v. McCarver
appeal undermines the trial process, generates unnecessary appeals, creates undesirable
re-trials and is wasteful of the limited resources of prosecutors, public defenders and
courts.” State v. Lynn, 67 Wn. App. 339, 344 (1992).
Laura McCarver’s due process assertion assuredly implicates a constitutional
right. We must decide if the assertion forms “manifest error.”
Washington courts and even decisions internally have announced differing
formulations for “manifest error.” First, a manifest error is one “truly of constitutional
magnitude.” State v. Scott, 110 Wn.2d 682, 688 (1988). Second, perhaps perverting the
term “manifest,” some decisions emphasize prejudice. The defendant must identify a
constitutional error and show how, in the context of the trial, the alleged error actually
affected the defendant’s rights. State v. O’Hara, 167 Wn. 2d 91, 99 (2009); State v.
Scott, 110 Wn.2d 682, 688 (1998). A third formulation is the facts necessary to
adjudicate the claimed error must be in the record on appeal. State v. McFarland, 127
Wn.2d 322, 333 (1995); State v. Riley, 121 Wn.2d 22, 31, 846 P.2d 1365 (1993). The
fourth and best definition for manifest error is the natural meaning of the word
“manifest,” which is “obvious.” State v. Guzman Nunez, 160 Wn. App. 150, 158, 248
P.3d 103 (2011), aff'd and remanded, 174 Wn.2d 707, 285 P.3d 21 (2012).
Often a court must address the substance of a constitutional argument before
determining whether the appellant forwards a manifest constitutional error. We do so
12 No. 39685-1-III State v. McCarver
here by outlining the constitutional rights an offender enjoys when the State seeks to
revoke community custody or a sentencing alternative.
The revocation of a suspended sentence is not a criminal proceeding. State v.
Dahl, 139 Wn.2d 678, 683, 990 P.2d 396 (1999); State ex rel. Woodhouse v. Dore, 69
Wn.2d 64, 416 P.2d 670 (1966). Accordingly, the due process rights afforded at a
revocation hearing are not the same as those afforded at the time of trial. State v. Dahl,
139 Wn.2d 678, 683 (1999). An offender facing revocation of a suspended sentence has
only minimal due process rights. State v. Dahl, 139 Wn.2d 678, 683 (1999); State v.
Nelson, 103 Wn.2d 760, 763, 697 P.2d 579 (1985). The process governing release
revocation is intentionally flexible, permitting the court to consider evidence, including
letters, affidavits, and other material otherwise inadmissible in an adversary criminal trial.
Morrissey v. Brewer, 408 U.S. 471, 489, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). A
revocation hearing need not meet the standards of due process prescribed for the trial of
criminal cases. State ex rel. Woodhouse v. Dore, 69 Wn.2d 64, 71 (1966).
Individuals facing an alternative sentence revocation are entitled to the same due
process protections that the United States Supreme Court has established for probation
and parole revocation proceedings. Morrissey v. Brewer, 408 U.S. 471 (1972); In re
Personal Restraint Petition of Schley, 191 Wn.2d 278, 286, 421 P.3d 951 (2018). These
rights include:
13 No. 39685-1-III State v. McCarver
(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.
State v. Dahl, 139 Wn.2d 678, 683 (1999) (citing to Morrissey v. Brewer, 408 U.S. 471,
489 (1972)). The process suffices if the defendant is apprised of the facts on which the
contemplated revocation depends and is given a fair opportunity to refute and explain
those facts. State ex rel. Woodhouse v. Dore, 69 Wn.2d 64, 71 (1966). These safeguards
exist to ensure that verified facts support a finding of a violation of a term in a suspended
sentence. In re Personal Restraint Petition of Schley, 191 Wn.2d 278, 286 (2018); State
v. Dahl, 139 Wn.2d 678, 683 (1999).
In her brief, Laura McCarver writes that she possesses the “right to notice of the
evidence.” Appellant’s Brief at 8. No Washington decision references a right to notice
of evidence. We assume that McCarver does not mean that every bit of evidence must be
disclosed in advance because of the burden imposed by such a requirement. We narrow
this right to written notice of the alleged violations and access to the evidence supporting
the revocation. McCarver received notice of the alleged violations. She also received
copies of all of the admitted and nonadmitted reports as to her taking of controlled
14 No. 39685-1-III State v. McCarver
substances. The court delayed the hearing twice so that McCarver could have access to
the laboratory results.
Laura McCarver mentions “unadmitted hearsay evidence.” She does not
specifically identify the claimed unadmitted hearsay evidence, but we assume she
inculpates the urinalysis reports that the State marked but never asked for introduction as
Exhibits 2 and 3. McCarver cites no case law that holds that the State or the court
violates due process when arguing from or relying on reports never formally admitted,
but marked, as trial exhibits. McCarver also cites no case law that prohibits the court
from relying on urinalysis reports without authentication from the authors of the reports.
ER 1101(c)(3) suspends the evidence rules from sentencing proceedings, including
granting or revoking probation. Thus, the hearsay rules did not apply to Laura
McCarver’s DOSA revocation hearings. McCarver’s superior court did not deny her an
evidentiary hearing and did not deny her any constitutional right. McCarver, through
counsel chose not to exercise the right of cross-examination and chose not to object to
use of reports.
The minimal due process right to confront and cross-examine witnesses is not
absolute. State v. Dahl, 139 Wn.2d 678, 686 (1999). Courts have limited the right to
confrontation afforded during revocation proceedings by admitting substitutes for live
testimony, such as reports, affidavits and documentary evidence. State v. Nelson, 103
Wn.2d 760, 763 (1985). Laura McCarver emphasizes that the superior court failed to 15 No. 39685-1-III State v. McCarver
find good cause before relying on reports not authenticated by the author. In fact, the
court should hear hearsay evidence only on good cause to forgo live testimony. State v.
Nelson, 103 Wn.2d 760, 765 (1985); State v. Dahl, 139 Wn.2d 678, 686 (1999).
Nevertheless, McCarver never objected to the use of any report because the State did not
argue good cause for failing to present someone with percipient knowledge of the test
results. McCarver presents no case law that prevents, on constitutional grounds, reliance
on hearsay reports commonly reviewed by courts in revocation proceedings.
Laura McCarver astutely argues that she did not object to the hearsay evidence
because the evidence was never offered. Nevertheless, McCarver knew that the court
would rely on the exhibits. She had asked for a delay so that the court could consider
them. McCarver herself sought introduction of Exhibit 1, the treatment report. This
exhibit alone established violations of her DOSA.
Laura McCarver complains that she could not cross-examine the authors of the
urinalysis reports. But she never sought to examine any of the witnesses. She enjoyed
the right to subpoena witnesses, but did not exercise that right. She cites no case law that
suggests she has the right to examine a witness not put on the stand by the opposing party
or not subpoenaed by the complaining party. McCarver also fails to recognize that she
testified in her own behalf. In her own testimony, she admitted use of methamphetamine
after release from incarceration.
16 No. 39685-1-III State v. McCarver
Laura McCarver relies on State v. Townsend, 2 Wn. App. 2d 434, 409 P.3d 1094
(2018). Townsend entailed allegations that an accused violated the terms of a plea
agreement. The superior court rescinded the plea agreement at the request of the State
without affording Caleb Townsend an evidentiary hearing. This court held that due
process demanded an evidentiary hearing.
Unlike in State v. Townsend, the superior court granted Laura McCarver an
evidentiary hearing. She testified on her behalf. She could have subpoenaed witnesses.
She could have admitted exhibits. The superior court postponed the hearing twice at
McCarver’s request so that the court could review two reports deemed important to
McCarver.
Laura McCarver perspicaciously relies on State v. Townsend for the proposition
that the State must show any waiver of rights to be intelligent, voluntary, and knowing,
the standard for waiving constitutional rights. According to McCarver, she did not
knowingly and intelligently waive her rights to cross-examine State witness and to the
rejection of hearsay. But the State took neither of those rights. She knew in advance of
the key documents and could have demanded the appearance of the authors of the reports.
She asked that the court review the reports.
This court in State v. Townsend distinguished State v. Nelson, 103 Wn.2d 760
(1985). Nelson involved a probation revocation hearing. The court faced the issue of
whether the court may order revocation based upon facts and conclusions contained in 17 No. 39685-1-III State v. McCarver
written hearsay reports to which the defendant did not object. The Supreme Court held
that the proceeding did not violate Lorence Nelson’s due process rights.
Laura McCarver distinguishes State v. Nelson with the observation that her trial
court never admitted the test results as evidence. We, however, distinguish between
admitting evidence and admitting exhibits. True, the superior court did not admit
Exhibits 2 and 3 as exhibits, but McCarver knew the court intended to rely on the
exhibits. To repeat, McCarver asked for the results to be seen by the superior court.
In short, Laura McCarver shows no obvious or prejudicial constitutional error.
CONCLUSION
We affirm the revocation of Laura McCarver’s DOSA sentence.
A majority of the panel has determined this opinion will not be printed in
the Washington Appellate Reports, but it will be filed for public record pursuant to
RCW2.06.040.
_________________________________ Fearing, J. WE CONCUR:
______________________________ _________________________________ Lawrence-Berrey, C.J. Cooney, J.