State v. Dahl , 139 Wash. 2d 678 ( 1999 )

Guy, C.J.

Dwight Dahl challenges the trial court’s order revoking his Special Sex Offender Sentencing Alternative (SSOSA) sentence. Dahl contends that the trial court revocation hearing violated his right to due process. We agree and accordingly direct the trial court to conduct a new hearing to determine whether Dahl violated the terms of his SSOSA sentence.

FACTS

Dahl pleaded guilty to Rape of a Child in the First Degree after confessing to sexually abusing his stepdaughter. The trial court sentenced Dahl to a standard range sentence of 95 months. However, the court suspended all but six months of Dahl’s sentence under SSOSA. RCW 9.94A-.120(8)(a)(i). The relevant conditions of Dahl’s suspended sentence included (1) six months confinement; (2) reasonable progress in sexual deviancy treatment; (3) compliance with treatment conditions; (4) no contact with the victim or minor children; and (5) compliance with conditions recommended by the community corrections officer (CCO).

Dahl was released from prison after serving his six-month term. Dahl then began his sexual deviancy treatment with Michael O’Connell and Associates (O’Connell). O’Connell submitted reports to Dahl’s CCO detailing Dahl’s progress between August 1995 and June 1997.

In the reports, O’Connell observed that Dahl was generally following the court-ordered treatment rules, but that Dahl had communication problems and difficulty staying on his anticompulsivity medication. O’Connell noted that Dahl might have a learning disorder that hindered his treatment progress. O’Connell also suspected that Dahl was intentionally sabotaging his polygraph tests, thus making it difficult to monitor his compliance with the program.

On March 13, 1997, the State petitioned to revoke Dahl’s suspended sentence. The State notified Dahl of the hearing and informed him that he had violated the terms of his suspended sentence by failing to make reasonable progress in treatment. After the hearing, the court ordered Dahl to serve 30 days’ confinement with work release, but did not revoke Dahl’s SSOSA sentence. The court scheduled a new review hearing for June 18, 1996, and cautioned Dahl that he must show discernible progress in his treatment during the intervening three-month period in order to maintain his SSOSA.

O’Connell submitted a treatment report on June 10, 1997. O’Connell reported that Dahl had violated work release rules, but stated that “I have no reason to believe that he has crossed the line into serious violations of a criminal or sexually deviancy [sic] nature.” Clerk’s Papers (CP) at 32. However, O’Connell did mention two incidents that caused him some concern. First, O’Connell reported that Dahl’s CCO told O’Connell that two young girls had complained that a man fitting Dahl’s description exposed himself to them near the site of Dahl’s work release (hereinafter the “exposure incident”). A police officer informed the CCO that the girls identified Dahl from a photo montage as the man who exposed himself to them. However, O’Connell noted that Dahl had shown truthful in a polygraph exam when he had denied exposing himself to the girls.

The second incident occurred when Dahl sent a note to a young bank teller (hereinafter the “note incident”). According to O’Connell, the letter contained specific descriptions of Dahl’s sexual offense, his recent fantasies, and his obsession with the JonBenet Ramsey case. Dahl told O’Connell that the letter was an attempt to reach out and develop a friendship with the woman, and Dahl showed truthful in a polygraph exam when he denied hoping to engage in sexual activity with the teller. O’Connell concluded his report by stating that, “[i]n summary, [Dahl] has been making some progress, especially in the area of more disclosure and better reporting about his sexual impulses. However, [Dahl] continues to present a difficult case and one that will require long term treatment and supervision.”

On June 18, at the end of the three-month period, Dahl went before the court for the second revocation hearing. In making its decision, the trial court considered O’Connell’s treatment reports, the CCO’s testimony and report recommending revocation, and a copy of the note Dahl wrote to the bank teller.¹ When the State raised the issue of Dahl’s exposure to the two girls, Dahl’s attorney objected, arguing that the prosecutor’s unsworn statements regarding the incident were hearsay. The court overruled the objection on the grounds that information about the incident was contained in the treatment provider’s report, which was itself admissible.

At the conclusion of the hearing, the court revoked Dahl’s suspended sentence and reinstated Dahl’s original 95-month term of confinement. The judge did not enter specific findings of fact. In her oral ruling, the trial judge noted that Dahl may suffer cognitive and physical impairments that hinder his progress. She observed that Dahl’s treatment providers have been unable to ascertain the reasons for his poor performance in treatment. The judge determined that the letter Dahl sent to the bank teller showed that he could be dangerous because he is unable to recognize sexually inappropriate behavior. Although the judge mentioned the exposure incident, she did not address its significance to Dahl’s treatment progress. Finally, the judge acknowledged that the result of Dahl’s polygraph seemed to indicate that he was not involved in the exposure incident, but she commented that Dahl’s past polygraphs had been inaccurate. “[Ujnder all those considerations,” the court concluded, “I’m going to revoke his SSOSA.” Verbatim Report of Proceedings (VRP) at 15-16.

Dahl challenges the trial court’s decision on the grounds that it violated his right to due process. Specifically, Dahl contends that the State did not provide him with adequate notice of the alleged violations and that the trial court improperly considered hearsay evidence at the hearing. The Court of Appeals rejected Dahl’s arguments and affirmed the revocation of his SSOSA. We granted Dahl’s petition for discretionary review.

ANALYSIS

SSOSA provides that a sentencing court may suspend the sentence of a first time sexual offender if the offender is shown to be amenable to treatment. SSOSA requires the offender to be released into community custody and to receive up to three years of outpatient or inpatient sexual deviancy treatment. RCW 9.94A.120(8)(a)(ii)(B). An offender’s SSOSA may be revoked at any time if a court is reasonably satisfied that an offender has violated a condition of his suspended sentence or failed to make satisfactory progress in treatment. RCW 9.94A.120(8)(a)(vi); State v. Badger, 64 Wn. App. 904, 908-09, 827 P.2d 318 (1992). Once a SSOSA is revoked, the original sentence is reinstated.

The revocation of a suspended sentence is not a criminal proceeding. 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. In re Personal Restraint of Boone, 103 Wn.2d 224, 230, 691 P.2d 964 (1984). An offender facing revocation of a suspended sentence has only minimal due process rights. State v. Nelson, 103 Wn.2d 760, 763, 697 P.2d 579 (1985). Sexual offenders who face SSOSA revocation are entitled the same minimal due process rights as those afforded during the revocation of probation or parole. Badger, 64 Wn. App. at 907.

The United States Supreme Court has determined that, in the context of parole violations, minimal due process entails: (a) written notice of the claimed violations; (b) disclosure to the parolee of the evidence against him; (c) the opportunity to be heard; (d) the right to confront and cross-examine witnesses (uxdess there is good cause for not allowing confrontation); (e) a neutral and detached hearing body; and (f) a statement by the court as to the evidence relied upon and the reasons for the revocation. Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). These requirements exist to ensure that the finding of a violation of a term of a suspended sentence will be based upon verified facts. Id. at 484.

Dahl argues that the notice provided to him by the State was inadequate because the State cited as grounds for revocation only Dahl’s failure to make reasonable progress in treatment. Delhi asserts that the notice also should have listed the exposure and note incidents as independent violations. For purposes of minimal due process, proper notice must set forth all alleged parole violations so that a defendant has the opportunity to marshal the facts in his defense. Morrissey, 408 U.S. at 489. In this case, Dahl was informed of the State’s contention that he had failed to make reasonable progress and was provided with O’Connell’s treatment provider reports. Supplemental Br. of Pet’r. at 7. While the exposure and note incidents were discussed in the reports, the State did not inform Dahl that it sought revocation of his SSOSA based on these occurrences. Because the court considered the alleged exposure and note incidents, Dahl asserts that those incidents should have been listed as independent violations in the State’s motion to modify the SSOSA.

Dahl’s contention that the exposure and the note incidents should have been listed in his notice as independent SSOSA violations is founded upon a mischaracterization of the revocation proceeding. Dahl presumes that the incidents in and of themselves constituted violations that served as grounds for revocation. However, this supposition is not borne out by the record. The two incidents were not raised as independent SSOSA violations, but rather as examples of Dahl’s failure to make progress in treatment as required by RCW 9.94A.120(8)(a)(vi). The actions and statements of both the prosecutor and trial judge make clear that the two incidents were never intended to be considered as separate SSOSA violations. Instead, the incidents were taken into account for the purpose of assessing Dahl’s overall treatment progress. The entire revocation process focused on Dahl’s inability to accomplish the treatment goal of curbing his impulsive behavior.

At the June 18 hearing, the prosecutor did not represent the note and exposure incidents as independent violations of SSOSA. Rather, the State claimed that Dahl had failed to make reasonable progress and supported this contention with myriad examples of his failure. The State argued:

The time period that Your Honor gave Mr. Dahl to actually prove himself since the time of the last hearing should have been a very critical period to Mr. Dahl .... This is a time where one would expect that one would be on the utmost of best behavior ....

But what we see instead during this time frame is that Mr. Dahl continues in his deviant practices ....

VRP at 5.

The State then discussed both the exposure incident and the note Dahl sent to the bank teller. However, these two incidents were just two of the examples proffered by the State to show Dahl’s lack of progress. The two incidents were the most egregious of Dahl’s alleged inappropriate behavior, but Dahl’s CCO testified at trial that Dahl exhibited other behavioral problems: “there’s always been issues with regard to [Dahl’s] compliance to the rules and regulations, to his writing in his journal appropriately, letting his therapist know what is happening with him with regards to deviant thoughts and impulses. ...” VRP at 8. The CCO also stated that she was “kind of appalled” at Dahl’s blatant disregard of the work release rules and his inability to account for his whereabouts when he was supposed to be at work through work release. VRP at 9. Just as with the exposure and note incidents, these examples were not presented as specific violations of the conditions of his suspended sentence. Rather, they were mentioned as evidence of Dahl’s lack of progress after almost three years of treatment.

Due process requires that the State inform the offender of the specific violations alleged and the facts that the State will rely on to prove those violations. Here, Dahl was informed of the State’s contention that he had failed to make reasonable progress in his treatment program. He was also supplied with copies of the treatment provider reports, upon which the State relied to prove Dahl’s SSOSA violation. These reports plainly informed Dahl of the facts supporting the allegations against him, including O’Connell’s characterization of the exposure and note incidents as cause for “serious concern.” CP at 61. Given that the State notified Dahl both of his alleged SSOSA violation and of the facts supporting the State’s claim, we hold that the notice provided to Dahl met minimal due process standards.

Dahl next argues that he was denied his due process right to confront the witnesses against him. We agree.

The minimal due process right to confront and cross-examine witnesses is not absolute. Courts have limited the right to confrontation afforded during revocation proceedings by admitting substitutes for live testimony, such as reports, affidavits and documentary evidence. See Nelson, 103 Wn.2d at 764 (citing United States v. Penn, 721 F.2d 762, 763 (11th Cir. 1983); United States v. Burkhalter, 588 F.2d 604, 607 (8th Cir. 1978); United States v. McCallum, 677 F.2d 1024, 1026 (4th Cir.), cert. denied, 459 U.S. 1010, 103 S. Ct. 365, 74 L. Ed. 2d 400 (1982)). However, hearsay evidence should be considered only if there is good cause to forgo five testimony. Nelson, 103 Wn.2d at 765. Good cause is defined in terms of “difficulty and expense of procuring witnesses in combination with ‘demonstrably reliable’ or ‘clearly rehable’ evidence.” Id. Dahl asserts that the court considered the hearsay evidence regarding the exposure and note incidents without first determining that good cause existed to do so.

The Court of Appeals rejected Dahl’s arguments, and concluded that the trial court properly considered both incidents. State v. Dahl, No. 41017-2-I, 1998 WL 346851 (Wash. Ct. App. June 29, 1998). In regard to the exposure incident, the court held that the hearsay evidence was reliable because it was corroborated by other evidence. Specifically, the court noted that the girls identified Dahl from a photo montage, the incident occurred near where Dahl worked, and Dahl was unable to account for his whereabouts at the time.

We disagree with the Court of Appeals’ analysis. Although the exposure occurred near where Dahl worked and he could not account for his whereabouts, these facts do not corroborate the veracity of the girls’ identification. While this information is relevant, it does not address the issue of whether the girls’ identification of Dahl in the photo montage was in some way tainted or erroneous. Without knowing any circumstances surrounding the incident and the girls’ statements, the court had no information upon which to base a determination of reliability. The court was never informed of how the identification was made or the circumstances surrounding the presentation of the photo montage. The State never offered the photo montage or the police reports as exhibits. The only information the court had about the event was fourth hand: two girls reported an indecent exposure to a police officer, who informed Dahl’s CCO, who told O’Connell, who included the incident in a treatment report. This treatment report was then relied upon by the judge at the revocation proceeding.

Under the good cause standard, the reliability of the hearsay must be considered in light of the difficulty in procuring live witnesses. Here, the State did not show that there was difficulty or expense in obtaining the girls’ testimony or sworn affidavits. Nor did the State call the officer who first reported the incident to Dahl’s CCO. In short, the court’s reliance on O’Connell’s references to the exposure incident appears to fail both prongs of the good cause standard: it was neither demonstrably reliable nor necessary, due to the difficulty in procuring live witnesses. We accordingly hold that the trial court abridged Dahl’s due process right to confrontation by considering hearsay allegations of the exposure incident without good cause.²

We next must address what impact, if any, the court’s error had on the validity of the revocation proceeding. Violations of a defendant’s minimal due process right to confrontation are subject to harmless error analysis. Badger, 64 Wn. App. at 909. See State v. Powell, 126 Wn.2d 244, 267, 893 P.2d 615 (1995) (“Reversal is merited when an error, such as improperly admitting hearsay evidence, deprives the defendant of the right to confrontation, unless the error is harmless.”); State v. Hieb, 107 Wn.2d 97, 108, 727 P.2d 239 (1986); State v. Dupard, 93 Wn.2d 268, 271, 609 P.2d 961 (1980). In revocation cases, the harm in erroneously admitting hearsay evidence and thus denying the right to confront witnesses is the possibility that the trial court will rely on unverified evidence in revoking a suspended sentence. Boone, 103 Wn.2d at 235. Morrissey requires that a finding of a parole violation be “based on verified facts and that the [court’s] exercise of discretion will be informed by an accurate knowledge of the parolee’s behavior.” 408 U.S. at 484. “Unreliable hearsay may not be the sole basis for revocation . . . .” Nelson, 103 Wn.2d at 765 (emphasis omitted). Dahl’s alleged exposure to the two girls was not a verified fact because the court’s knowledge of the event came entirely from unreliable hearsay. Thus, the revocation of Dahl’s SSOSA sentence was invalid if it was based on the allegations regarding the exposure incident.

The judge’s oral ruling does not explain the importance of individual incidents in her decision to revoke Dahl’s SSOSA. She stated only that:

I think that his treatment providers have been trying to find out why his treatment is not progressing as they feel it should be and have come up with nothing.

The letter to the bank teller shows that while he may be truthful, he may be dangerous. He doesn’t recognize that someone that he had sexual feelings about in the past would not be an appropriate person to be a confidante friend at this time. The exposure to the 13- and 14-year-old girls who identified him in a photo montage, and the evidence in his favor is a polygraph testing, which has been noted before he may not be suitable for; under all those considerations, I’m going to revoke his SSOSA.

VRP at 15-16.

Due process requires that judges articulate the factual basis of the decision. Nelson, 103 Wn.2d at 767. Where the trial judge fails to do so, the decision is not amenable to judicial review. State v. Lawrence, 28 Wn. App. 435, 439, 624 P.2d 201 (1981). Although oral rulings are permitted, we strongly encourage judges to explain their reasoning in written findings. Such written findings would prevent the unnecessary confusion presented by this case. Because the trial judge’s rationale is vague, it is difficult to tell what weight she placed on the hearsay evidence of Dahl’s exposure to the two girls. However, the gravity of the incident and the fact that the judge specifically mentioned the allegation in her oral ruling indicates that the incident did influence the court’s decision to revoke Dahl’s SSOSA.

Because the revocation appears to have been based, at least in part, on consideration of the exposure incident, the due process error was not harmless. Dahl is therefore entitled to a new hearing. At the hearing, the trial court must make written findings of fact or produce an oral transcript sufficiently detailed as to be amenable to judicial review.³

CONCLUSION

Dahl received adequate notice of the revocation proceeding against him because the State informed him of its allegation that he had violated the terms of his SSOSA sentence by failing to make reasonable progress in treatment. The State also adequately informed Dahl of the facts supporting its allegation by providing him with copies of the treatment provider’s reports. However, the court improperly considered unreliable hearsay evidence at the proceeding in violation of Dahl’s minimal due process rights. Because the trial court’s ruling lacks a clear explanation of the grounds for its decision, we are unable to conclude that this error was harmless. We accordingly remand and direct the trial court to conduct a new hearing in which the court explains the grounds for its decision.

Smith, Madsen, Talmadge, and Ireland, JJ., and Sweeney, J. Pro Tem., concur.

1 The transcript of the proceeding makes evident that the judge had a copy of the note in front of her. However, the note was not admitted as evidence and is not part of the record.

2 Dahl’s additional argument that the court impermissibly relied on hearsay evidence in considering the note incident is without merit. Dahl not only failed to object to the court's consideration of the note incident, he referred to the note as an example of his attempts to develop social support. Accordingly, Dahl waived his right to challenge the court’s consideration of the incident on appeal. A “[d]efendant’s failure to object to a violation of due process and his own use of hearsay during argument constitute[s] a waiver of any right of confrontation and cross examination.” State v. Nelson, 103 Wn.2d 760, 766, 697 P.2d 579 (1985).

3 In addressing whether Dahl has failed to make reasonable progress in treatment, the parties are not limited to referring to those events that transpired prior to the invalid revocation. The trial judge may consider Dahl’s recent conduct as well. However, if the State wishes to allege new violations, it must amend the notice provided to Dahl to reflect those new allegations.