State Of Washington v. Kenneth W. Whiteman, Sr.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
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KENNETH W. WHITEMAN, UNPUBLISHED OPINION
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Appellant. FILED: March 2, 2015
Becker, J. — Violation of the conditions of a suspended sentence is
punishable by revocation so long as the State informs the offender of the specific
violations alleged and the facts that the State will rely on to prove the violations.
The offender's right to due process is not violated merely because additional
evidence supporting revocation comes out during testimony at a revocation
hearing.
Appellant Kenneth Whiteman pleaded guilty to one count of child
molestation in the first degree, one count of child molestation in the second
degree, and one count of incest in the second degree. All three offenses were
committed against his daughter over a period of years. On April 3, 2009, the trial
court imposed a 130-month prison term. All but 12 months were suspended as
permitted by the Special Sexual Offender Sentencing Alternative provisions of
Washington's Sentencing Reform Act.
No. 71312-4-1/2
Whiteman's sentence imposed community custody conditions that took
effect upon his release from jail. As a condition of community custody, Whiteman
was required to "enter, make reasonable progress in, and successfully complete"
a specialized program for sex offender treatment for five years. The sentence
called for yearly compliance hearings.
Whiteman signed a treatment contract with Bellevue Community Services
in April 2009. Among other things, the contract prohibited Whiteman from using
computers that were not equipped with monitoring software, precluded him from
using the Internet except within "written boundaries" approved by his treatment
provider, and forbade him from using pornography in any form.
For the first four years, Whiteman was found to be in compliance at the
annual hearings. No violations were noted.
Whiteman's wife walked in on him using her computer and masturbating
when she came home from work on August 2, 2013. The computer did not have
monitoring software, and Whiteman was viewing a pornographic web site
featuring father-daughter sex. He quickly deleted the web site. Whiteman and
his wife both reported this incident to community custody officer Margaret Alquist.
Whiteman later admitted that on a daily basis, he had been using his wife's
computer that did not have monitoring software.
Alquist prepared a formal notice alleging these two violations, which
Whiteman admitted, and two others, which he did not admit. The other two
violations were based on Whiteman's wife's statements that Whiteman had been
using his unmonitored computer between August 2012 and May 2013 and that
No. 71312-4-1/3
he had visited a family member's place of employment in violation of a protective
order.
The Notice of Violation included, under the heading "Supporting
Evidence," detailed notes of Alquist's communications with Whiteman and his
wife. A report on the results of a polygraph test was attached, along with
progress reports from the treatment provider. The treatment provider was
concerned that Whiteman was getting gratification from the images of father and
daughter sex and was not using what he had learned in treatment about setting
boundaries.
The notice contained Alquist's recommendation that the court schedule a
noncompliance hearing. It stated that a community corrections officer would
testify at the hearing. The notice concluded, "Revocation may be considered due
to the extensive period of time that Mr. Whiteman has been in treatment and his
inability to use the tools to intervene in the deviant behavior cycle that re-enacts
his actual crime." Whiteman was taken into custody.
A compliance review hearing was held on November 4, 2013. At the
hearing, the State elected to go forward only on the two violations that Whiteman
had admitted. The prosecutor expressed distress that "someone who was
afforded such an incredible opportunity, foregoing a presumptive sentence of 130
months, would violate in such a way." The prosecutor indicated reluctance to ask
for revocation of the suspended sentence because, she said, the State had not
been able to obtain a search warrant to do a forensic analysis of Whiteman's
computer. As a sanction, the prosecutor recommended adding more conditions
No. 71312-4-1/4
and better supervision. The court ascertained that although the State was not
asking for revocation, the State considered revocation to be a permissible
sanction.
Whiteman's attorney asked the court not to revoke the suspended
sentence and instead to impose the additional conditions recommended by the
State and the treatment provider.
The court expressed concern about whether Whiteman would have
support from his family if he was released back into treatment. Whiteman's wife
was present, and the court solicited her views. She stated that she was in favor
of revocation. She said a divorce was pending and Whiteman was no longer
welcome to live in her home. "I want him to get healthy. But in six years, he's not
getting healthy. He's not making any changes. He's not following through, you
know. ... I don't think he's ever going to be ready."
Alquist then testified that the treatment reports reflected that Whiteman
had made only a minimal level of progress in treatment. She was concerned
about Whiteman's effort to portray his recent viewing of the father-daughter
pornography as an accident. She said she had visited the Whiteman home in the
previous week to look at Mrs. Whiteman's computer and found its history had
been erased. During that visit, Alquist discovered that Whiteman had used a
Microsoft Surface to access "a variety of porn sites" at the end of August. She
was therefore concerned about Whiteman's plan to find new employment by
opening a computer business. She thought that it would be a trigger for him to
No. 71312-4-1/5
become reinvolved with pornography and that it would allow him to conceal his
activity by use of his superior computer skills.
Whiteman made a statement to the court. First, he said that when he
went to Alquist's office on August 28 and was arrested, he "signed permission
slips for them giving them my okay to look on the computers anywhere they
wanted to. I mean there was no issue there." He admitted that he had looked at
"fantasy incestuous porn sites," and that he did not use the tools he had learned
in treatment. "That was an error, and it's one that I do not intend to repeat
again." Whiteman said that he had been "ashamed and very scared" when his
wife caught him viewing pornography and that he had intended on his own to
make a timely report of the incident to his treatment provider.
His wife followed up on this topic by informing the court that just a few
days after reporting his viewing of the incest web site, Whiteman was already
viewing pornography again on his Surface. "So even though he knew he was in
big trouble, he's still accessing these sites.... I am fearful that something else is
going to happen, and he's going to have another victim." Whiteman responded
that he bought the Surface "to use at the business to keep business records on.
And I did, yes, view pornography on it. But then I stopped doing that totally,
because I realized that, you know, I had to stop someplace. So I stopped myself
from doing it and got into the group and did what I was supposed to do."
The trial court decided to revoke Whiteman's suspended sentence. The
court remarked that Whiteman's violation occurred despite his family's support.
"And it's my judgment that even now there's some minimization going on in terms
No. 71312-4-1/6
of the amount of contact that's happened. . . And despite your family taking you
back in, despite your wife giving you resources to try to correct your problems,
you didn't do it." The court noted that the treatment program "cannot monitor
someone who's computer-savvy 24 hours a day. It can't be done. I am
revoking." The court entered an order of revocation on November 4, 2013.
Nine days later, Whiteman filed a motion for reconsideration "based on the
unusual turn of events in the courtroom, where Mr. Whiteman's spouse
unexpectedly turned on him and asked for revocation." The motion argued in
part that Whiteman was not given adequate notice of the violations. "There was
major surprise evidence presented at the hearing, starting with the wife's request
for revocation. There was no notice of issues relating to the second computer."
Whiteman pointed out that he had no previous violations in five years and had
committed no new crime.
The trial court denied the request for reconsideration. Whiteman appeals.
He contends that his right to due process was violated because the Notice of
Violation did not apprise him that evidence about his viewing of pornography on
the Surface would be used against him at the hearing.
The State contends that Whiteman failed to preserve the issue for
appellate review because he did not object when Alquist referenced the Surface
during the revocation hearing. According to the State, an objection raised in a
motion for reconsideration is too late to preserve any alleged due process
violation for appellate review. Br. of Respondent at 12-13, citing State v. Dahl,
139 Wash. 2d 678, 687 n.2, 990 P.2d 396 (1999); State v. Nelson. 103 Wash. 2d 760,
No. 71312-4-1/7
766, 697 P.2d 579 (1985); and State v. Robinson. 120 Wash. App. 294, 299-300, 85
P.3d 376. review denied. 152 Wash. 2d 1031 (2004). However, in the cases cited
by the State, there was no element of surprise; the appellant had every
opportunity to review and react to the materials at the hearing. The State also
asserts, without citing relevant authority, that the order of revocation was a final
order that the court lacked authority to revise except as provided by CrR 7.8(b).
The State did not make this argument below. Under the circumstances here,
Whiteman's motion for reconsideration adequately preserved the issue he raises
on appeal.
Under the Special Sexual Offender Sentencing Alternative provisions of
Washington's Sentencing Reform Act, a trial court may revoke a suspended
sentence at any time if it is reasonably satisfied that an offender violated a
condition of his suspended sentence or failed to make satisfactory progress in
treatment. RCW 9.94A.670(11)(a)-(b); Dahl. 139 Wash. 2d at 683.
"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." Dahl. 139 Wash. 2d at 685. Here, the State informed Whiteman that he
was accused of failing to comply with his treatment conditions by viewing
pornography on August 2, 2013, and of failing to comply with treatment by daily
use of his wife's computer without monitoring software. The Notice of Violation
set forth the facts the State intended to rely on. The unanticipated evidence that
he was also using the Surface did not add significant weight to the facts the State
planned to reply on.
No. 71312-4-1/8
Due process also requires "a statement by the court as to the evidence
relied upon and the reasons for the revocation." Dahl. 139 Wash. 2d at 683, citing
Morrissev v. Brewer. 408 U.S. 471, 92 S. Ct. 2593, 33 L Ed. 2d 484 (1972).
Here, the order of revocation set forth the court's finding that Whiteman failed to
make progress in his treatment program "by admitting to viewing pornography"
and "by using his wife's computer without a monitoring device."
The court's statement of the evidence it relied on and the reasons for the
revocation match the information provided in the Notice of Violation. The record
of the hearing does not bear out Whiteman's argument that the evidence
regarding the Surface amounted to a new violation. The record shows that the
State and the court viewed the two admitted violations as compelling evidence
that Whiteman was failing to make progress in treatment. Whiteman attempted
to explain his viewing of the father-daughter pornographic web site as an
accidental and isolated occurrence that he fully intended to disclose even before
his wife walked in on him, but the court did not believe his explanation. And
Whiteman's admitted daily use of his wife's unmonitored computer highlighted
the difficulty of providing adequate community monitoring of someone with
Whiteman's computer skills.
We conclude the State's Notice of Violation was adequate to inform
Whiteman of the violations and evidence that formed the basis of the court's
decision to revoke his suspended sentence. There was no due process violation.
Whiteman has filed a Statement of Additional Grounds for Review
objecting to the trial court's consideration of testimony from another family
8
No. 71312-4-1/9
member who was present at the hearing. We have not considered that testimony
in reaching our decision.
Affirmed.
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WE CONCUR:
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