State of Washington v. Adam Ross Hendron ( 2021 )

FILED
JULY 1, 2021
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. 37978-7-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
ADAM ROSS HENDRON, )
)
Appellant. )
LAWRENCE-BERREY, J. — Adam Hendron appeals after the trial court revoked his
SSOSA1 sentence and ordered that he have only indirect contact with his minor son
conditioned upon the mother’s approval. We affirm the trial court’s revocation of Mr.
Hendron’s SSOSA sentence, but remand for it to consider on the record a less restrictive
alternative no contact order.
FACTS
On October 9, 2008, Adam Hendron pleaded guilty to two counts of rape of a child
in the second degree. The trial court accepted Mr. Hendron’s plea and imposed a SSOSA
sentence of 131 months in prison with all but 12 months suspended.
1
Special sex offender sentencing alternative.
No. 37978-7-III
State v. Hendron
Mr. Hendron’s SSOSA required him to refrain from contact with minors, to stay
within a specific geographical boundary, to comply with crime-related prohibitions, to
comply with sexual deviancy treatment, and to perform affirmative acts necessary to
monitor compliance with court orders as required by the Department of Corrections
(DOC).
Mr. Hendron was released from custody on May 1, 2009. On June 22 and June 24,
Mr. Hendron failed to report as required for a polygraph examination. Mr. Hendron
further failed to attend sex offender treatment throughout the month of June and had no
further communication with DOC. Based on this, the trial court issued a warrant for his
arrest. Unknown to the authorities, Mr. Hendron had absconded to Mexico where he
married and had a son.
In 2016, Mr. Hendron was apprehended and extradited to California and then to
Washington. The State moved to revoke Mr. Hendron’s SSOSA. The trial court denied
the motion but sentenced Mr. Hendron to 240 days of jail time. It further ordered Mr.
Hendron to report to DOC for treatment immediately after his release.
Mr. Hendron served his time and did well after his release. He complied with his
SSOSA treatment for several months. His January 24, 2018 progress report
recommended that he be allowed to have contact with his son. Mr. Hendron brought a
2
No. 37978-7-III
State v. Hendron
motion to modify his community custody conditions to allow contact with his son.
On May 4, 2018, the court denied the motion without prejudice.
Mr. Hendron was uncooperative with the polygraph examination on August 21,
2018. He was breathing deeply and changing his answers on the control question. The
polygrapher asked Mr. Hendron several times not to do these things. The polygraph
produced invalid results and the polygrapher notified DOC but DOC chose not to
sanction Mr. Hendron.
Mr. Hendron was uncooperative during his next polygraph examination on
January 23, 2019. He made it impossible for the examiner to conduct a valid test because
he controlled his breathing and changed his answers to the control questions despite being
repeatedly told not to do so. Mr. Hendron’s refusal to cooperate resulted in the
examination being stopped.
The polygrapher notified Mr. Hendron’s new community corrections officer, Julie
Johnson, of Mr. Hendron’s refusal to cooperate. Ms. Johnson discussed the matter with
her supervisor. On review of Mr. Hendron’s file, the supervisor found that he had
committed a willful violation. Mr. Hendron was then detained in jail.
DOC suspected that Mr. Hendron was having unauthorized contact with his son.
Ms. Johnson visited Mr. Hendron in jail and requested the password to his cell phone.
3
No. 37978-7-III
State v. Hendron
Although a condition of Mr. Hendron’s SSOSA required him to comply with this request,
he refused and asked for his attorney. Mr. Hendron’s treatment provider terminated
treatment because of these and other problematic behaviors.
The State filed a petition to revoke Mr. Hendron’s SSOSA. The petition set forth
three violations: (1) failure to cooperate with the January 23, 2019 polygraph
examination, (2) termination from treatment, and (3) refusal to provide the telephone
password for an approved search.
The trial court heard testimony from five witnesses over the course of four
nonconsecutive days. Following the hearing, the trial court announced its decision:
[A]fter listening to all of the testimony in this case . . . [and] after I review
my notes, and given the totality of the evidence, I simply do not believe that
Mr. Hendron is going to be successful or be able to sufficiently comply or
complete the SSOSA sentence.
....
The violations that we’ve been discussing today are more than just
happenstance. I want to say that I do not believe that missing one day of
antianxiety medication, or antidepression, would lead to the type of reaction
that Mr. Hendron purportedly had during the polygraph exam. I also don’t
believe that it was Officer Johnson’s responsibility to go over all of the
terms of the SSOSA again with Mr. Hendron. He’s had those terms gone
over with him numerous times since 2009.
So the treatment termination, the failure to comply with the
polygraph, the failure to turn over the cell phone password, the totality of all
of these things lead me to revoke the SSOSA that was given to Mr.
Hendron.
4
No. 37978-7-III
State v. Hendron
Report of Proceedings (RP) at 281-82. The trial court ordered Mr. Hendron to serve his
131 months of incarceration followed by lifetime community custody.
Mr. Hendron then asked to have e-mail or telephonic contact with his son. The
State objected to the request until it had a chance to hear from the mother and the son.
The court agreed and asked that defense counsel provide the mother’s contact information
to the State or obtain a notarized statement from the mother signifying her support so
contact could be facilitated.
In the order revoking Mr. Hendron’s SSOSA, the trial court wrote: “[Mr. Hendron]
may not have contact with minor children except for email and phone contact with
biological son: J.H.-V. upon approval of bio[logical] mom via email.” Clerk’s Papers at
114. Mr. Hendron timely appealed the revocation order.
ANALYSIS
ORAL RULING ADEQUATE FOR REVIEW
Mr. Hendron argues the trial court’s oral ruling is inadequate for appellate review.
He does not seek remand for entry of formal findings of fact and conclusions of law. Nor
does he assign error to challenge the evidentiary bases given by the trial court for
revoking his SSOSA sentence.
5
No. 37978-7-III
State v. Hendron
A SSOSA sentence may be revoked at any time if there is sufficient proof to
reasonably satisfy the court that the offender has violated a condition of the suspended
sentence or failed to make satisfactory progress in treatment. State v. McCormick, 166
Wn.2d 689, 705, 213 P.3d 32 (2009); RCW 9.94A.670(11)(a)-(b). We review a trial
court’s decision to revoke a SSOSA sentence for an abuse of discretion. State v. Ramirez,
140 Wn. App. 278, 290, 165 P.3d 61 (2007).
An offender facing revocation of a SSOSA sentence has only minimal due process
rights akin to one facing revocation of probation or parole. State v. Dahl, 139 Wn.2d 678,
683, 990 P.2d 396 (1999). “Due process requires that judges articulate the factual basis
of the decision.” Id. at 689. “Although oral rulings are permitted, we strongly encourage
judges to explain their reasoning in written findings.” Id. A reviewing court that is
unable to determine from the record the basis for a lower court’s discretionary ruling may
reverse the ruling and remand the case for further proceedings. State v. Rafay, 167 Wn.2d
644, 655, 222 P.3d 86 (2009).
Mr. Hendron argues the trial court’s findings are insufficient for meaningful
review and we should reverse the trial court. He cites Dahl as an example of a case
where the court reversed a SSOSA revocation because there were no written findings.
Mr. Hendron misapprehends the holding in Dahl. In Dahl, the court reviewed a case
6
No. 37978-7-III
State v. Hendron
where the trial court had taken unreliable hearsay evidence at the proceeding. 139 Wn.2d
at 690. Because the trial court did not give written findings and did not adequately show
what evidence it based its decision on, the court in Dahl was unable to determine whether
the error was harmless. Id. The error that required reversal was not the findings
themselves, as Mr. Hendron argues here, but the hearsay evidence. Id.Mr. Hendron acknowledges the trial court found three violations to support
revocation of his SSOSA sentence: “failing to comply with a polygraph, being terminated
from treatment, and refusing to provide his cell phone password.” Br. of Appellant at 12.
The record aptly supports that those were the three violations relied on by the trial court.
The trial court explained: “So the treatment termination, the failure to comply with the
polygraph, the failure to turn over the cell phone password, the totality of all of these
things lead me to revoke the SSOSA that was given to Mr. Hendron.” RP at 282.
Because the trial court’s oral ruling is sufficient for us to understand the bases for its
discretionary ruling, we reject Mr. Hendron’s first argument.
ORDER LIMITING PARENTAL CONTACT
Mr. Hendron next argues the trial court erred by not permitting contact between
him and his son. We observe that the trial court permitted indirect contact, the type of
7
No. 37978-7-III
State v. Hendron
contact requested by Mr. Hendron, although it conditioned that contact on the mother’s
approval.
The State acknowledges that the trial court did not properly make a finding on the
record that its order was the least restrictive alternative and that remand is necessary for
the trial court to make such a finding. We agree.
“The due process clause of the Fourteenth Amendment [to the United States
Constitution] protects a parent’s right to the custody, care, and companionship of her
children.” In re Welfare of Key, 119 Wn.2d 600, 609, 836 P.2d 200 (1992). “The state
may interfere in a parent-child relationship ‘if it appears that parental decisions will
jeopardize the health or safety of the child, or have a potential for significant social
burdens . . . .’” Flaggard v. Hocking, 13 Wn. App. 2d 252, 258, 463 P.3d 775 (2020)
(quoting Wisconsin v. Yoder, 406 U.S. 205, 234, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972)).
However, the trial court must consider on the record whether there are less
restrictive alternatives when interfering with the fundamental right to parent even where
the condition serves a compelling state interest. State v. DeLeon, 11 Wn. App. 2d 837,
840-41, 456 P.3d 405 (2020). And even where there is a compelling interest, the trial
court must still make a finding on the record that there are no other less restrictive orders
that would satisfy the same interest. Id. This includes a finding that both the scope and
8
No. 37978-7-111
State v. Hendron
duration of the order are reasonably necessary to serve the State's compelling interest.
In re Pers. Restraint ofRainey, 168 Wn.2d 367, 3 77-82, 229 P .3d 686 (2010).
Here, the trial court made no such findings. 2 We remand for the trial court to
conduct a hearing, be allowed to consider the mother's input, and make the proper
findings on the record.
Affirmed in part, remanded.
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
RCW 2.06.040.
Lawrence-Berrey, J.,
j
WE CONCUR:
Pennell, C.J.
JI._, ' c..:r .J., ~ ».::r.
Fearing,
2
The fault lies with the parties, not with the trial court. The trial court reasonably
envisioned the parties resolving this issue with the input of the boy's mother. Apparently
they did not.
9
J
I