State v. McCormick

• Decision Date: 06 August 2009
• Docket Number: No. 81193-8.,81193-8.
• Citation: 166 Wn.2d 689,213 P.3d 32
• Parties: STATE of Washington, Respondent, v. David Elvin McCORMICK, Petitioner.
• Court: Washington Supreme Court

213 P.3d 32 166 Wn.2d 689 STATE of Washington, Respondent,
v.
David Elvin McCORMICK, Petitioner. No. 81193-8. Supreme Court of Washington, En Banc. Argued March 26, 2009. Decided August 6, 2009.

[213 P.3d 33]

Eric Broman, Nielsen Broman & Koch PLLC, Seattle, WA, for Petitioner.

Snohomish County Prosecutor's Office, Mary Kathleen Webber, Everett, WA, for Respondent.

FAIRHURST, J.

¶ 1 David Elvin McCormick challenges the revocation of his special sex offender sentencing alternative (SSOSA) suspended sentence for violating the condition that he not frequent areas where minors are known to congregate. Before this court, McCormick argues that (1) the condition requires the State to prove he willfully violated the condition, (2) the due process clauses of the state and federal constitutions require the State to prove he willfully violated the condition, and (3) there was insufficient evidence for the trial court to revoke his SSOSA sentence. We reject McCormick's arguments and affirm the trial court's revocation of his SSOSA sentence.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

¶ 2 In 2000, McCormick was convicted of first degree rape of a child under the age of 12 for raping his 11 year old developmentally disabled granddaughter. The trial court determined McCormick would be sentenced to 123 months imprisonment but found McCormick qualified for a SSOSA sentence. In imposing the SSOSA sentence, the trial court set a number of conditions, including that McCormick "not frequent areas where minor children are known to congregate, as defined by the supervising Community Corrections Officer" and "[p]articipate and make progress in sexual deviancy treatment . . . [with a] treatment provider acceptable to the Court." Def.'s Clerk's Papers (DCP) at 46.

¶ 3 In 2003, the trial court ordered the sentencing condition requiring McCormick to successfully complete sexual deviancy treatment satisfied and relieved McCormick from continuing treatment. In 2004, the State and McCormick stipulated that McCormick had violated a term of his probation by having contact with minor children and sanctioned him to reenroll in sexual deviancy treatment. In 2005, the trial court found McCormick

213 P.3d 34

again violated the terms of his probation by frequenting areas where children congregate by visiting a church, a park, and a school on three separate occasions. The trial court sanctioned McCormick to 120 days of confinement and to reenrollment in sexual deviancy treatment.

¶ 4 In March 2006, McCormick's community corrections officer (CCO) received a call from David Bralley, a housemate of McCormick's. Bralley informed the CCO that McCormick has been a regular visitor at the St. Vincent De Paul Food Bank located on the premises of the Immaculate Conception Grade School. Bralley stated that most recently, McCormick arrived at the food bank at around 7:30 a.m., while the food bank operates from 9:00 a.m. to 10:30 a.m. The CCO visited the food bank one morning and observed numerous minors in close proximity. McCormick admitted to the CCO he visited the food bank but denied seeing any minors present or knowing it was on school property. As churches and schools are considered places where children are known to congregate, the CCO determined McCormick violated the terms of his supervision.

¶ 5 The CCO talked to McCormick's sexual deviancy treatment therapist and advised him McCormick would be taken into custody because of violations of supervision. After learning McCormick had been loitering at or near a church school, the therapist concluded McCormick had violated the terms of his treatment contract and the therapist terminated McCormick's treatment program. The CCO submitted a notice of violation alleging McCormick had violated the conditions of his suspended sentence by frequenting a place where minors are known to congregate and by failing to complete sexual deviancy treatment. The CCO recommended the court revoke McCormick's SSOSA sentence. The State subsequently petitioned for an order modifying the SSOSA sentence, revoking the SSOSA sentence, and confining McCormick.

¶ 6 At the revocation hearing, the State offered a written statement by Bralley but did not call Bralley as a witness. In the statement, Bralley asserted McCormick had visited the food bank regularly and made numerous sexual comments about children.

¶ 7 The CCO informed the court that, after McCormick had received the 120 days' confinement for the 2005 violations and because of McCormick's possible learning difficulties, the CCO told McCormick specific places he could not go pursuant to the conditions of his SSOSA sentence. The CCO specifically instructed McCormick that places he cannot frequent include, "[p]arks, schools, churches, day cares, movie theaters, shopping malls, bowling alleys, skating rinks, video arcades, Boys and Girls Club, et cetera." Transcript (TR) at 9. The CCO invited McCormick to ask any questions about places he had gone before. The CCO also stated the high school McCormick had been sanctioned for visiting in the second violation was located across the street from the same food bank.

¶ 8 The CCO described the location of the food bank and its proximity to the school as:

The food bank is in the same building as I believe it's the second grade and the art and music classes, and they do tutoring over there. The entrance is just right around the corner.

Now, the food bank is in the basement, and you go down these stairs. It's in the back alley, but it is clearly on school property which he is not allowed to frequent.

. . . .

Clearly, right across the street — well, first, there is the high school, which he was violated for before, and it is one block away from the grade school. The high school is here, and then over here is the convent, which has now been turned into — because I guess there aren't any nuns, it has been turned into like the second grade, the art and music, and tutoring.

Underneath, in the basement, which you go down some stairs, is where the food bank is. I had reports that McCormick was showing up there an hour, hour-and-a-half before the food bank opened, loitering on the sidewalk, which is in clear vicinity of not only the high school, which is the next block up, but the parking lot for the grade school, the grade school, and kitty-corner from that, I believe is the church. It might be the church or the gymnasium. It might be attached, I don't know.

213 P.3d 35

TR at 8-9, 11-12. Because McCormick did not disclose this violation and the prior violations and because several polygraphers would not polygraph McCormick due to his low IQ (intelligence quotient) and medication, the CCO believed McCormick was at high risk to reoffend and was difficult to monitor in the community.

¶ 9 McCormick's defense counsel submitted an affidavit averring that McCormick only went to the food bank once a month and did not arrive an hour and a half early, that the food bank does not appear to be located in a school, that Bralley has an extensive criminal record, and that McCormick had been going to the food bank for years and believed his prior CCO knew this. Defense counsel stated that children get dropped off at the school at approximately 8:00 a.m. and are walked over to the building where the food bank is located. Defense counsel argued McCormick had not technically violated probation. Defense counsel maintained McCormick was at low risk to reoffend because his crime involved one victim who was a relative.

¶ 10 The trial court revoked McCormick's SSOSA sentence, reasoning:

I think it's clear there is a violation. Mr. McCormick was on the list at the food bank, and the food bank is on school property. Though it may not be located in the main school, there are children that take classes at the school and who are present at the time that Mr. McCormick is there in coming and going apparently. Even though they may not be dropped off there, they have to get there in some way.

I don't know whether Mr. McCormick is unwilling or simply unable to follow the conditions and requirements set by the Court and by his CCO. But [the deputy prosecuting attorney] said this isn't the first time Mr. McCormick has been here for similar violations. The Court has explained to him that he can't go to places where children are congregating. His community corrections officer has explained that to him. They have taken great pains to try to make that clear to him knowing he has learning disabilities. There are IQ and learning disabilities present here. If those are the issues that are precluding Mr. McCormick from following the requirements or he simply chooses not to follow the requirements. I don't know.

I'm taking into account the fact that this is a food bank. There needs to be explicit authority from this community corrections officer to be there in that location. He didn't have that authority. In fact, she wouldn't give that authority, nor would the Court approve in advance Mr. McCormick going to that location knowing that it is part of the school and there are children there.

TR at 15-16.

¶ 11 On appeal, McCormick argued, among other things, the trial court was required to find that his violations were willful before it could revoke his suspended sentence and there was insufficient evidence to support the revocation. In a partially published opinion, the Court of Appeals affirmed, holding a finding of willfulness was not required. State v. McCormick, 141 Wash.App. 256, 261-63, 169 P.3d 508 (2007). We granted review. State v. McCormick, 164 Wash.2d 1002, 190 P.3d 55 (2008).

II. ISSUES

A. Did the condition require the State to prove McCormick acted willfully?

B. Do the due process clauses of the state and federal constitutions require the State to prove a willful violation of community custody conditions before revoking a suspended sentence?

C. Was the evidence sufficient to support the trial court's revocation of the suspended sentence?

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