State v. Partee

• Decision Date: 23 October 2007
• Docket Number: No. 34742-3-II.,34742-3-II.
• Citation: 170 P.3d 60,141 Wn. App. 355
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Mitchell PARTEE, Appellant.

170 P.3d 60

141 Wn. App. 355

STATE of Washington, Respondent, v. Mitchell PARTEE, Appellant.

No. 34742-3-II.

Court of Appeals of Washington, Division 2.

October 23, 2007.

Jodi R. Backlund, Manek R. Mistry, Backlund & Mistry, Olympia, WA, for Appellant.

Lori Ellen Smith, Lewis Co. Prosecuting Atty. Office, Chehalis, WA, for Respondent.

HUNT, J.

¶ 1 Mitchell Partee appeals the sentencing court's revocation of his Special Sex Offender Sentencing Alternative (SSOSA) based on his stipulated violations. He argues that the sentencing court erred in revoking his SSOSA based on its incorrect belief that it had no other option, such as leaving his SSOSA intact and imposing probation violation sanctions under RCW 9.94A.634. We remand to permit the sentencing court to exercise its discretion in deciding whether to continue with its previous revocation of Partee's SSOSA or to impose consecutive sanctions of up to 60 days confinement for each violation of his SSOSA probation conditions, with credit for time served.¹

FACTS

¶ 2 Based on Mitchell Partee's guilty pleas, in May 2003, the trial court sentenced Partee to 131 months for second degree child rape and 42 months for second degree child molestation, to run concurrently. Imposing a SSOSA, the trial court suspended all but 180 days of confinement on the following conditions: (1) no contact with children without prior approval from a community corrections officer (CCO); (2) completion of sexual deviancy treatment; and (3) submission to regular polygraph tests.

¶ 3 In December 2004, Partee violated his SSOSA conditions by failing to attend treatment sessions. Partee's treatment provider and his CCO recommended that Partee continue in the SSOSA program. Without imposing sanctions, the trial court noted the violation and continued Partee's SSOSA.

¶ 4 Subsequently, Partee committed additional violations of his SSOSA conditions. In December 2005, the State petitioned the trial court to revoke Partee's SSOSA. In the petition, the State alleged two violations: (1) "The defendant admitted having unapproved/unreported contact with minors on no less than eight occasions, specifically on or about October 29, 2005, and November 16, 2005 . . ."; and (2) "[t]he defendant failed a polygraph by being deceptive on or about November 21, 2005," Clerk's Papers (CP) at 24, based on Partee's CCO's report that during a polygraph, Partee had lied about the extent of his contact with minors.

¶ 5 At the March 2006 SSOSA revocation hearing, Partee's sexual offender treatment provider, Robert Macy, testified that (1) Partee admitted having consumed alcohol; (2) Partee admitted having unapproved contact with two minors, the younger brother and sister of Partee's girlfriend, on more than one occasion; (3) Partee had a deceptive polygraph; and (4) he (Macy) had terminated Partee from treatment because he believed Partee was not amenable to treatment and presented safety issues to the community. Partee's treatment provider recommended revoking Partee's SSOSA.

¶ 6 Partee stipulated that he had violated the SSOSA conditions as the State alleged. He called Brian Cobb, a certified sex offender treatment provider who owned a private treatment practice, separate from Macy's. Cobb had interviewed Partee and had reviewed Partee's treatment and DOC records, but he had not treated Partee. Cobb testified that (1) he had "a great deal of respect for Mr. Macy and his recommendations," and (2) he (Cobb) was not willing to treat Partee at that time because Partee was not amenable to treatment. Report of Proceedings (RP) (March 17, 2006) at 27.

¶ 7 Cobb recommended that Partee serve a substantial period of confinement in the Department of Corrections (DOC) before going back into treatment to continue his SSOSA. Cobb reasoned that because spending time in DOC was different than spending time in jail, it would provide a shock experience that might make Partee amenable to treatment. Cobb suggested that, instead of revoking Partee's SSOSA, the sentencing court could impose some of Partee's suspended confinement time so that Partee could continue treatment thereafter. Partee similarly requested that the sentencing "court impose confinement of up to 600 days (60 days for each of the 10 violations) rather than revok[e] the SSOSA entirely." Br. of App. at 4 (citing RP (March 17, 2006) at 34-35).

¶ 8 The sentencing court found that Partee had been terminated from sex offender treatment for unsatisfactory progress and that he "ha[d] violated the terms of his suspended sentence[.]" CP at 22. The sentencing court stated that it "lack[ed] the authority to revoke only a portion of the remaining suspended sentence as suggest[ed] by counsel and the defendant's expert," and it lacked "the authority to `stack' probation violation [sic] to give the defendant time in D.O.C. as recommended by defendant's counsel and the defendant's expert...." CP at 22. The sentencing court then revoked Partee's SSOSA and imposed the remainder of his 131-month sentence, with credit for time served.

¶ 9 Partee appeals his SSOSA revocation.

ANALYSIS

I. SSOSA Violation Sanctions

¶ 10 This case involves an issue of first impression for Division Two: When a person sentenced under SSOSA has violated sentencing conditions, for which the sentencing court will impose sanctions, is revocation of the SSOSA the court's only option or can it impose up to 60 days confinement per violation under RCW 9.94A.634(3)(c)? We hold that SSOSA revocation is not the only option available to the sentencing court; instead confinement under the probation violation statute, RCW 9.94A.634(3)(c), is also an option.

¶ 11 RCW 9.94A.634 provides, in pertinent part:

(1) If an offender violates any condition or requirement of a sentence, the court may modify its order of judgment and sentence and impose further punishment in accordance with this section.

. . . .

(3) If an offender fails to comply with any of the requirements or conditions of a sentence the following provisions apply:

. . . .

(c) The state has the burden of showing noncompliance by a preponderance of the evidence. If the court finds that the violation has occurred, it may order the offender to be confined for a period not to exceed sixty days for each violation, and may (i) convert a term of partial confinement to total confinement, (ii) convert community restitution obligation to total or partial confinement, (iii) convert monetary obligations, except restitution and the crime victim penalty assessment, to community restitution hours at the rate of the state minimum wage as established in RCW 49.46.020 for each hour of community restitution, or (iv) order one or more of the penalties authorized in (a)(i) of this subsection. Any time served in confinement awaiting a hearing on noncompliance shall be credited against any confinement order by the court.

A. SSOSA Revocation; Other Sanctions

¶ 12 Partee argues that the trial court erroneously revoked his SSOSA based on its mistaken belief that it lacked authority to revoke only a portion of his suspended SSOSA sentence and to impose consecutive 60-day terms of confinement for multiple violations under RCW 9.94A.634(3)(c) for probation violations, in lieu of revoking his SSOSA. Although we disagree with Partee's assertion that the sentencing court had authority to revoke only a portion of his suspended SSOSA sentence, we do agree that the sentencing court had authority to impose consecutive 60-day terms of confinement for multiple violations under RCW 9.94A.634(3)(c) for probation violations, in lieu of revoking his SSOSA.

1. Standard of review

¶ 13 We review a trial court's decision to revoke a SSOSA suspended sentence for abuse of discretion. State v. Badger, 64 Wash.App. 904, 908, 827 P.2d 318 (1992). A trial court abuses its discretion when its decision is manifestly unreasonable or is based on untenable grounds. State v. Rohrich, 149 Wash.2d 647, 654, 71 P.3d 638 (2003). A court may revoke an offender's SSOSA at any time if it is reasonably satisfied the offender violated a condition of the suspended sentence. State v. Dahl, 139 Wash.2d 678, 683, 990 P.2d 396 (1999); RCW 9.94A.670(10)(a) (formerly RCW 9.94A.120(8)(a)(vi)(A) (2000)). Here, Partee stipulated that he had violated conditions of his SSOSA suspended sentence; thus, we cannot say that the court abused its discretion in basing its revocation on this ground.

¶ 14 Nevertheless, it may be an abuse of discretion where, in selecting one particular sentencing option, the court erroneously believes that its alternatives are limited such that it fails to consider other legally available options. See Badger, 64 Wash.App. at 910, 827 P.2d 318. Whether a trial court has discretion to impose probation sanctions in lieu of revoking a SSOSA is a question of law, which we review de novo. Bishop v. Miche, 137 Wash.2d 518, 523, 973 P.2d 465 (1999); State v. Neeley, 113 Wash.App. 100, 106, 52 P.3d 539 (2002).

2. Discretion to impose confinement in lieu of SSOSA revocation

¶ 15 Although we have not yet addressed this issue in a published decision, Division Three of our court has consistently held that sentencing judges have discretion to sanction violation of a SSOSA condition either as a probation violation or by revoking the SSOSA. Badger, 64 Wash.App. at 910, 827 P.2d 318; State v. Daniels, 73 Wash.App. 734, 736-37, 871 P.2d 634 (1994); State v. Canfield, 120 Wash.App. 729, 733, 86 P.3d 806 (2004), reversed on other grounds, 154 Wash.2d 698, 116 P.3d 391 (2005). We agree with Division Three's rationale in Badger and hereby adopt it for Division Two.

¶ 16 In Badger, "[t]he sentencing judge ... expressed doubt about whether he had the option to impose up to a 60-day jail sentence (RCW 9.94A.200)² in lieu of executing the original sentence (RCW 9.94A.120(7))." 64 Wash.App. at 910, 827 P.2d 318. Because under former RCW 9.94A.200 the sentencing court could revoke the SSOSA or impose a jail term of up to...