State v. Wolf

• Court: Washington Court of Appeals
• Writing for the Court: Siddoway, J.
• Decision Date: 11 February 2020
• Docket Number: 36088-1-III
• Citation: State v. Wolf, 36088-1-III (Wash. App. Feb 11, 2020)
• Parties: STATE OF WASHINGTON, Respondent, v. GAVIN DAVID WOLF, Appellant.

STATE OF WASHINGTON, Respondent, v. GAVIN DAVID WOLF, Appellant.

No. 36088-1-III

Court of Appeals of Washington, Division 3

February 11, 2020

UNPUBLISHED OPINION

Siddoway, J.

After being permitted to participate in Spokane County therapeutic courts for three years in lieu of criminal prosecution, Gavin Wolf was terminated from the court's program and convicted of six burglary and theft-related charges. We reject Mr. Wolf's contention that he was denied due process at the hearing at which his participation in mental health court was terminated and find no abuse of discretion by the mental health court judge in granting a motion by the State that Mr. Wolf wear waist restraints during the hearing. We affirm the conviction but grant Mr. Wolf's request for Ramirez^[1] relief from some of the terms of his judgment and sentence.

FACTS AND PROCEDURAL BACKGROUND

In June 2014, Gavin Wolf was charged in Spokane County with one count of residential burglary, two counts of second degree theft two counts of second degree identity theft, and one count of first degree trafficking in stolen property. He successfully applied for drug court in lieu of prosecution and in July 2015 signed a drug court waiver and agreement. After seven months in drug court, he transferred to mental health court signing a mental health court waiver and agreement in March 2016. The agreements required Mr. Wolf to participate in treatment, to refrain from using or possessing drugs or alcohol, and to commit no new criminal law violations. They notified him of acts or omissions on his part that would subject him to termination from the therapeutic court programs. He agreed that if he was terminated from the therapeutic court program, he would proceed to a bench trial on the charges against him, and the court's decision would be based solely on the information in the underlying police reports.

As of January 2018, Mr. Wolf not only had not graduated from mental health court, he had committed numerous violations of his drug and mental health court agreements. He had been arrested for new crimes and had faced two hearings on whether his participation in mental health court should be terminated. At the second termination hearing, which took place in August 2017, the trial court told Mr. Wolf that "it would only accept one hundred percent compliance." Report of Proceedings (RP) at 34.^[2]

In January 2018, Mr. Wolf was arrested for a new charge of second degree malicious mischief. Based on Mr. Wolf's new arrest, the State sought and obtained a failure to comply warrant for mental health court. He appeared with his lawyer before the mental health court judge on January 30. The judge explained that "if you have a new arrest when you're in one of our therapy court programs, that violates the terms and conditions of the program . . . the warrants get issued which is why you are here today." RP at 4. The judge continued:

The purpose of today's hearing is so that I could describe that to you, tell you that's why you are here what the warrants are, why you are being held. And, of course, [your lawyer] and yourself, you can meet and go through that in more detail and he can talk to you about that.

The next step for me today is . . . to set a hearing on these matters. So that was discussed this morning in staffing in terms of the timing. And I was asked to set that out a ways if you will. And that hearing would be a termination hearing.

So that is our normal course of procedure, if you will; somebody has a new arrest, we set these for a termination hearing.

We're going to set this on March 13th at 11:00 a.m., so quite a ways out-essentially six weeks.

RP at 4-5.

At the time of the March 13 termination hearing, Mr. Wolf was still in custody and was brought to the courtroom by transport staff. At the inception of the hearing, the judge observed that Mr. Wolf was in waist restraints. He asked the transport officer if there was a concern, "because obviously I would normally ask that he be uncuffed if we're going to conduct a hearing." RP at 13-14. The officer responded that he had received information the prior day that Mr. Wolf made statements to the effect that "he was anxious to see what was going to happen in court when the deputies tried to put his handcuffs back on him." RP at 14. Based on Mr. Wolf's charges and his mental health issues, the officer stated, "[W]e would request to keep him secure that way." Id. Immediately following the transport officer's request, the State made a motion joining in the request.

The judge invited Mr. Wolf's lawyer and Mr. Wolf to respond and both asked that the waist restraints be removed. Mr. Wolf personally added that he would like the transport officer to be "put on the stand and questioned so that if he lies about statements I made, he'll be charged with perjury." RP at 15.

After hearing from Mr. Wolf and his lawyer, the judge granted the transport officer's request, explaining that he had reviewed Mr. Wolf's file in preparation for the hearing and was aware of his history of criminal charges and his history in drug and mental health court. Among those charges were three charges of third degree assault against police and security officers taking place in August 2015 that Mr. Wolf was being allowed to attempt to resolve through his mental health court participation. The judge stated, "I can go into it in intricate detail if I need to-but I am making a record that I have reviewed that, and based on the charges and, again, the record, I have those concerns about aggression that have manifested itself in physical aggression." RP at 17. The State memorialized the ruling in a written order that was signed by the judge.

Continuing the hearing, the trial court explained that its purpose was to determine whether a termination should occur. He observed that the decision was solely his but that the hearing had been preceded by a "staffing"-he had met and obtained input from a group that included a representative of Pioneer Behavioral Health; Mr. Wolf's case manager, John O'Neill; a representative of the Department of Corrections; a Dr. Altshuler; the State; and Mr. Wolf's lawyer.^[3] RP at 20.

Asked by the judge whether the parties were ready to proceed, the prosecutor answered that she was, but Mr. Wolf's lawyer asked for more time, explaining that what "really what brings us here today are some new charges," and Mr. Wolf had provided him with the names of some persons who "could provide evidence that [Mr. Wolf] may have been experiencing a psychotic state at the time that those matters happened." RP at 21. He requested the opportunity to "interview and perhaps call people as witnesses." Id. The judge denied the request, explaining that the purpose of the hearing was to determine whether Mr. Wolf should be terminated from the program, not to litigate Mr. Wolf's criminal charges. The judge noted that the new charges, in cause no. 18-1-00566-4, had been assigned to a different department of the court, but in his capacity as mental health court judge he had been provided with a copy of the police report and a report that Mr. Wolf had been found competent to stand trial in that matter.

The judge proceeded to provide a history of Mr. Wolf's three years in the county's therapeutic courts system. It then heard from Mr. O'Neill, Mr. Wolf's attorney, and Mr. Wolf himself. Finally, the judge summarized the police report from Mr. Wolf's new charge of second degree malicious mischief. The new charge and re-arrest occurred because Mr. Wolf became angry and broke a window in his mother's car after she had offered him a ride. After observing that Mr. Wolf seemed to do better when he was in a controlled setting, the judge concluded that "[b]ased on . . . all the facts and circumstances, I will find that you are not appropriate for this program; or . . . the program is not appropriate for you." RP at 61. He terminated Mr. Wolf's participation. His written order terminating Mr. Wolf's participation included the judge's finding of a "[r]e-arrest during the treatment program." Clerk's Papers (CP) at 19.

Mr. Wolf was willing to have the mental health court judge preside at his stipulated facts trial, which took place the following month. He was found guilty as charged and was sentenced to a prison-based drug offender sentencing alternative. In entering judgment, the trial court imposed three then-mandatory legal financial obligations (LFOs) and ordered him to pay supervision costs and interest. He appeals.

ANALYSIS

I. Mr. Wolf fails to demonstrate a violation of his right to due process

Both the federal and state constitutions guarantee a criminal defendant the right to due process of the law. U.S. Const. amend. XIV; Wash. Const. art. I, § 3. For parole revocation decisions, the United States Supreme Court long ago identified some minimal due process guarantees: written notice, disclosure to the parolee of evidence against him, opportunity to be heard, right to confront adverse witnesses, a neutral decisionmaker, and a written statement of evidence relied on and reasons for revoking parole. Morrissey v. Brewer, 408 U.S. 471, 488-89, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Washington decisions have held the guarantees to apply in analogous contexts. State v. Nelson, 103 Wn.2d 760, 763, 697 P.2d 579 (1985) (sentence revocation); In re Pers. Restraint of Boone, 103 Wn.2d 224, 231, 691 P.2d 964 (1984) (probation revocation); State v. Marino, 100 Wn.2d 719, 725, 674 P.2d 171 (1984) (pretrial diversion agreement revocation); State v. Cassill-Skilton, 122 Wn.App. 652, 653, 94 P.3d 407 (2004) (drug court revocation).

Mr Wolf contends that he was not provided with written notice of claimed violations, the prosecution did not disclose the evidence it was...