State of Washington v. Caleb G. Townsend

FILED
FEBRUARY 6, 2018
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. 34984-5-III
)
Respondent, )
)
v. ) PUBLISHED OPINION
)
CALEB G. TOWNSEND, )
)
Appellant. )
PENNELL, J. — A criminal defendant faced with allegations of violating the terms
of a plea agreement is entitled to an evidentiary hearing. This evidentiary hearing right is
rooted in the constitutional right to due process. As such, it cannot be waived by silent
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State v. Townsend
acquiescence. Instead, the State has a heavy burden of proving a defendant has
intelligently, knowingly, and voluntarily waived the right to a hearing.
The trial court found Caleb Townsend in violation of his plea agreement without
first holding an evidentiary hearing. Although Mr. Townsend did not affirmatively
request an evidentiary hearing, he also did not say or do anything to suggest he agreed
with the court’s summary procedure. To the contrary, Mr. Townsend protested his
innocence. Under the circumstances presented in this case, the State has not proved Mr.
Townsend waived his hearing rights. Mr. Townsend’s judgment and sentence is therefore
reversed, and this matter is remanded for an evidentiary hearing.
FACTS
Caleb Townsend pleaded guilty to two felony charges pursuant to a plea
agreement. The agreement held considerable value for Mr. Townsend, as the prosecutor
agreed to recommend a sentence well below the standard range. For his part, Mr.
Townsend agreed to abide by all release conditions, including a requirement that he
“[c]ommit no law violations” while awaiting sentencing. Clerk’s Papers at 29. The
agreement specified that if Mr. Townsend failed to live up to his side of the bargain, the
parties would jointly recommend a sentence of 61 months’ incarceration, the high end of
the standard range.
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Subsequent to his plea, Mr. Townsend was arrested on new felony allegations.
According to a probable cause affidavit, Mr. Townsend admitted to at least some law
violations during a post-arrest police interview. 1 A warrant was then issued for Mr.
Townsend’s violation of his release terms.
Mr. Townsend’s case proceeded to sentencing. The prosecutor began his remarks
by stating Mr. Townsend had breached the parties’ plea agreement and, as a result, the
State recommended 61 months’ imprisonment. In response to defense counsel’s
argument that proof of Mr. Townsend’s breach could only be sustained through evidence
of a conviction, the prosecutor claimed the court could go forward on the existing record.
The prosecutor had earlier argued the court only needed to find a law violation by a
preponderance of the evidence and that this determination had already been made when
the court issued a warrant for Mr. Townsend’s release violations. 2
The court ruled that because the probable cause affidavit stated Mr. Townsend had
admitted to some law violations, there was adequate proof Mr. Townsend had breached
the plea agreement. Prior to making this ruling, the court did not hear from any
1
The identity of the affiant officer is not apparent from the record. The signature
and handwriting of the name on the affidavit is undecipherable. The State did not identify
the affiant officer during Mr. Townsend’s proceedings. The affidavit does include a
notation that the officer’s badge number is 714.
2
The failure to comply warrant is not in the record.
3
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witnesses. No evidence was entered into the record. And Mr. Townsend was not invited
to present evidence or testimony in his defense.
The court then continued to sentencing. Both parties made sentencing
recommendations and, at the conclusion of counsels’ comments, Mr. Townsend was
invited to speak. Mr. Townsend described his work in the community and stated:
I’m not—I’m not guilty of these crimes, Your Honor, and I know I can—I
can—that’s what they’re claiming, and I know it’s not—it’s not proof in
any way to state that, but I wanted to say my piece and say that I’m not—
I’m not a hardened criminal. I’m not—I don’t know. I don’t feel that I
deserve the 61 months, Your Honor, and I don’t feel I’m guilty of these
crimes.
I’d like to state that I did hire private counsel for those other charges
to be dealt with. I think that’s it, Your Honor. Thank you.
Verbatim Report of Proceedings (Dec. 21, 2016) at 28.
The trial court responded that it was “impressed” with Mr. Townsend’s demeanor
and that “[h]e’s certainly entitled to his opinion on whether or not there’s sufficient proof
here. Nonetheless, the court has made the ruling on the plea agreement, and in fact there
has been a breach of that.” Id. No further inquiry was made. Mr. Townsend appeals.
ANALYSIS
A plea agreement is a contract with constitutional implications. In re Pers.
Restraint of Lord, 152 Wash. 2d 182, 188-89, 94 P.3d 952 (2004). If a defendant breaches
a plea agreement, the State may rescind it. State v. Thomas, 79 Wash. App. 32, 36-37,
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899 P.2d 1312 (1995). However, before doing so the State must prove breach by a
preponderance of the evidence. In re Pers. Restraint of James, 96 Wash. 2d 847, 850-51,
640 P.2d 18 (1982); State v. Roberson, 118 Wash. App. 151, 158-59, 74 P.3d 1208 (2003),
overruled in part on other grounds by State v. Hughes, 154 Wash. 2d 118, 110 P.3d 192
(2005). Due process requires the State’s proof be presented during an evidentiary
hearing, at which the defendant must have the opportunity to call witnesses and contest
the State’s allegations. James, 96 Wash. 2d at 850-51; Roberson, 118 Wash. App. at 158-59.
Mr. Townsend argues the trial court improperly relieved the prosecution of its plea
agreement obligations without either holding an evidentiary hearing or obtaining a valid
waiver of his right to a hearing. Our review of these contentions is de novo. State v.
Nelson, 158 Wash. 2d 699, 702, 147 P.3d 553 (2006); State v. Vasquez, 109 Wash. App. 310,
319, 34 P.3d 1255 (2001), aff’d, 148 Wash. 2d 303, 59 P.3d 648 (2002). As set forth below,
we agree with Mr. Townsend.
The court did not conduct an evidentiary hearing
The trial court proceedings did not bear any of the hallmarks of an evidentiary
hearing. No evidence was admitted. No testimony was taken. The State did not even
make a record of the identity of the law enforcement officer who apparently signed Mr.
Townsend’s probable cause affidavit. While the requirements of due process are flexible,
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Mr. Townsend’s minimal due process right to “‘be heard in person and to present
witnesses and documentary evidence,’” Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S. Ct.
1756, 36 L. Ed. 2d 656 (1973) (quoting Morrissey v. Brewer, 408 U.S. 471, 489, 92 S. Ct.
2593, 33 L. Ed. 2d 484 (1972), was not recognized prior to the trial court’s violation
determination.
It is no accident that the trial court proceedings failed to resemble an evidentiary
hearing. None was intended. The prosecution presented its case under the assumption
that the court’s arrest warrant determination conclusively established Mr. Townsend’s
release violation. This approach was mistaken. The only type of evidence that can
constitute conclusive proof of violation conduct is a felony judgment and sentence. See
ER 803(22); Seattle-First Nat’l Bank v. Cannon, 26 Wash. App. 922, 615 P.2d 1316 (1980).
If a felony conviction is obtained by a guilty verdict or unreserved plea, due process does
not require additional proof of a defendant’s violation conduct. See Clark v. Baines, 150
Wash. 2d 905, 84 P.3d 245 (2004); United States v. Williams, 741 F.3d 1057 (9th Cir. 2014).
However, an arrest warrant is not a felony conviction. Prior to the issuance of an arrest
warrant, a defendant is not afforded the right to exercise any due process rights. As such,
an arrest warrant is not a substitute for the due process right to an evidentiary hearing.
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The State has not proved a valid waiver
A defendant can waive the due process right to an evidentiary hearing. But
because the hearing right is constitutional, waiver will not be presumed. James, 96
Wash. 2d at 851. Silent acquiescence is not sufficient proof of waiver, even when an
individual is represented by counsel. Id.; State v. Stegall, 124 Wash. 2d 719, 730, 881 P.2d
979 (1994). Instead, the “State carries a heavy burden of demonstrating a voluntary,
knowing, and intelligent waiver.” James, 96 Wash. 2d at 851.
Mr. Townsend never explicitly stated a desire to waive his due process hearing
rights. To the contrary, the subject of an evidentiary hearing never came up because the
court never offered the opportunity for an evidentiary hearing, as required by our case
law. Id. at 850 (a defendant is to “be given an opportunity to call witnesses and have
other due process rights”); Roberson, 118 Wash. App. at 158-59 (“the trial court must
conduct an evidentiary hearing, at which the State must prove by a preponderance of the
evidence that the defendant failed to perform his part of the agreement”) (emphasis
added).
Nor is there evidence of “an informed acquiescence” to the summary procedure
used by the court. To prove informed acquiescence, the State would need to point to
evidence in the record that counsel had consulted with Mr. Townsend about his hearing
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rights prior to standing silent. Stegall, 124 Wash. 2d at 731. No such evidence exists.
Without proof of Mr. Townsend’s personal expression of waiver or informed
acquiescence, the State cannot establish waiver. Id. at 730-31. 3 Silent acquiescence is
simply insufficient. Id. While early cases from our Supreme Court suggested a
defendant’s failure to demand his or her constitutional rights might constitute waiver,
those cases are “out of step with current case law, which requires that the government
prove that a waiver of a constitutional right . . . is knowing and voluntary.” State v.
Iniguez, 167 Wash. 2d 273, 294 n.11, 217 P.3d 768 (2009).
Even if we were writing from a clean slate, this would be an inappropriate case to
find waiver through acquiescence. When he was invited to speak at sentencing, Mr.
Townsend contested the State’s violation allegation. He told the court he was innocent
and that he wanted to fight the charges against him. Mr. Townsend’s statements are not
reflective of someone who had agreed with the court’s process and did not wish for an
evidentiary hearing. See James, 96 Wash. 2d at 851 (no waiver when defendant contended
he was not guilty of the alleged violations). Particularly given the plea agreement’s
substantial value to Mr. Townsend, caution was required to ensure Mr. Townsend wished
3
Although Stegall involved an analysis of a defendant’s waiver of a 12-person
jury, it relied on James for setting the standard for waiver. Stegall, 124 Wash. 2d at 730.
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to give up his due process protections. See Mathews v. Eldridge, 424 U.S. 319, 341, 96
S. Ct. 893, 47 L. Ed. 2d 18 (1976) (the demands of due process increase with the level of
a litigant’s potential hardship).
Principles governing hearsay waiver are inapplicable
The State claims we should look to State v. Nelson, 103 Wash. 2d 760, 697 P.2d 579
(1985) for the proposition that Mr. Townsend waived his rights by silence. Nelson
involved a probation revocation hearing. The issue before the court was “whether
revocation can be based upon facts and conclusions contained in written hearsay reports
to which no objection was made.” Id. at 761. Mr. Nelson received an evidentiary
hearing. In fact, Mr. Nelson called witnesses and even presented his own hearsay
evidence. Mr. Nelson’s only argument on appeal was that the State’s evidence should not
have included hearsay statements. The Supreme Court was not impressed with Mr.
Nelson’s lopsided approach toward permissible hearsay evidence. Because there was no
objection to the State’s use of hearsay, Nelson held there was no due process violation.
Id. at 766.
Nelson’s rule that a hearsay objection is waived unless preserved through objection
is unremarkable. Even during a criminal trial, when an accused’s due process rights are
at their greatest, a defendant is expected to make a timely objection to the State’s use of
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hearsay evidence. See State v. Smith, 155 Wash. 2d 496, 501, 120 P.3d 559 (2005). During
proceedings short of a criminal trial, 4 the State often relies on hearsay. See State v.
Riddell, 75 Wash. 2d 85, 87, 449 P.2d 97 (1968). Unlike a hearing right itself, the right to
confront a hearsay declarant at a hearing is a limited privilege and may be denied for good
cause. State v. Abd-Rahmaan, 154 Wash. 2d 280, 290, 111 P.3d 1157 (2005). It is
therefore unsurprising that a litigant should be expected to voice an objection prior to a
court’s consideration of reliable hearsay evidence.
While Nelson held an accused must object to hearsay used at a revocation hearing,
the decision did not address whether a similar affirmative obligation applies to a
defendant’s due process hearing rights. Had Nelson extended its analysis beyond the
evidentiary issue of hearsay to the fundamental right of an evidentiary hearing, it would
have overruled James. Yet James continues to be cited with favor by courts throughout
our state. See, e.g., Iniguez, 167 Wash. 2d at 294 n.11; State v. Wakefield, 130 Wash. 2d 464,
481-82, 925 P.2d 183 (1996) (Sanders, J., concurring/dissenting); State v. Bennett,
42 Wash. App. 125, 128, 708 P.2d 1232 (1985); Roberson, 118 Wash. App. at 158-59; State
4
Because similar rights are at stake in probation revocation, plea bargain
agreements, and pretrial diversion agreements, our courts have treated hearing rights
applicable to these contexts similarly. See State v. Marino, 100 Wash. 2d 719, 725, 674
P.2d 171 (1984).
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v. Hall, 32 Wash. App. 108, 109-10, 645 P.2d 1143 (1982). James remains good law.
We will not reject it in favor of Nelson.
At bottom, the State’s reliance on Nelson appears to conflate the right of cross-
examination (which is implicated by hearsay evidence) with the right to a due process
hearing. The two are not coextensive. Minimal due process requires more than simply
the ability to challenge adverse evidence through confrontation. See Morrissey, 408 U.S.
at 488-89. “The fundamental requirement of due process is the opportunity to be heard
‘at a meaningful time and in a meaningful manner.’” Mathews, 424 U.S. at 333 (quoting
Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 14 L. Ed. 2d 62 (1965)). What
this means is a litigant has a right to a meaningful voice during an adjudicative process.
That voice may be used simply to challenge the State’s evidence. It also might present
another side of the story. Unless a litigant is provided a meaningful opportunity to use his
or her voice during a legal proceeding, there can be no due process.
Remand is required
Because Mr. Townsend was never provided an opportunity to present his position
regarding the alleged plea agreement violation at an evidentiary hearing, reversal and
remand are required. On remand, the trial court must either conduct an evidentiary
hearing or obtain a valid waiver, consistent with the terms of this opinion.
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Assuming no waiver occurs on remand, the State shall be tasked with proving, by a
preponderance of the evidence, that Mr. Townsend violated the terms of his plea
agreement. To establish a violation, the State need not necessarily produce proof of a
criminal conviction. See, e.g., City of Aberdeen v. Regan, 170 Wash. 2d 103, 110-11,
239 P.3d 1102 (2010). Other evidence may be permissible, including hearsay. Id.
However, should the State attempt to introduce hearsay evidence over Mr. Townsend’s
objection, there must be a showing of good cause, including the reliability of the hearsay
evidence. Nelson, 103 Wash. 2d at 764; In re Pers. Restraint of Boone, 103 Wash. 2d 224, 691
P.2d 964 (1984). 5 Without a showing of good cause, Mr. Townsend must be afforded the
right of confrontation.
Mr. Townsend’s rights on remand are not limited to demanding the State present
reliable evidence in support of its position. Unless the State is able to produce conclusive
evidence of Mr. Townsend’s violation through proof of a qualifying felony conviction,
Mr. Townsend retains a due process right to present affirmative evidence in his own
defense. This right encompasses the ability to present relevant witness testimony and to
testify on his own behalf.
5
Among other things, reliability requires the State to establish the identity of any
hearsay declarants.
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We note that, given the information proffered in the· State's probable cause
affidavit, it may not be difficult for the State to meet its burden on remand. However, Mr.
Townsend's liability must not be presumed simply by virtue of the perceived strength of
the State's case. Instead, Mr. Townsend is entitled to an evidentiary hearing.
CONCLUSION
Caleb Townsend was deprived of his plea agreement's substantial benefits without
first receiving an evidentiary hearing. Because the record lacks sufficient evidence that
Mr. Townsend waived his hearing right, the judgment and sentence must be reversed.
This matter is remanded for further proceedings, consistent with this opinion.
QJZ-_9-.(;L
U
Pennell, J.
I CONCUR:
Fearing, C
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No. 34984-5-III
KORSMO, J. (dissenting) — Caleb Townsend did not challenge the format of the
hearing held to determine whether he violated the terms of his plea agreement, most
likely because he had no defense. The majority, in conflict with our court’s earlier
interpretation of the requirements of due process in State v. Nelson, 103 Wash. 2d 760, 697
P.2d 579 (1985), creates a new obligation for the trial court to hear live testimony
whether or not the parties desire it. There is no precedent for this approach.
The majority’s error begins with a misreading of the per curiam decision in In re
James, 96 Wash. 2d 847, 640 P.2d 18 (1982). 1 There a plea agreement was revoked without
the defense having the opportunity to contest the issue of the defendant’s alleged breach
of the agreement; instead, the parties argued at sentencing whether or not he deserved a
probationary sentence. Id. at 848-49. The prosecutor refused to argue for probation as
required by the plea bargain, and the defense attorney did not object, simply noting that
the prosecutor had a predicament. Id. at 848. No hearing was conducted on whether Mr.
1
James appears to be a one-justice opinion. Four justices, writing in two
opinions, concurred in the result of the lead opinion. 96 Wash. 2d at 852-57 (Utter, J.,
concurring); Id. at 857 (Hicks, J., concurring). Four justices dissented. Id. at 857-59
(Rosellini, J., dissenting). Nonetheless, no one disputes that James correctly states the
standards at issue in this appeal.
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James had in fact violated the plea agreement due to his arrest on two misdemeanor
charges. Id.
Unsurprisingly, the court determined that Mr. James had a due process right to a
hearing on whether or not he had violated his agreement. Canvassing other jurisdictions,
our court noted the requirements of due process in this context:
To ensure fairness, those jurisdictions have required, before relieving the
State of its promises, that an evidentiary hearing be held and that the
defendant be given an opportunity to call witnesses and have other due
process rights, including the requirement that the State prove, by a
preponderance of the evidence, that the defendant has failed to perform his
or her part of the agreement.
Id. at 850. The court then concluded: “Like them, we believe such a procedure is
constitutionally required.” Id. The court also ruled that Mr. James had not waived his
right to a hearing by failing to bring a motion to enforce the plea agreement or withdraw
his guilty plea. Id. at 851.
Unlike James, and the majority’s protestations to the contrary notwithstanding,
there was a hearing in this case. The prosecutor noted a motion to determine that the
defendant had violated the plea agreement by committing robbery and theft. Clerk’s
Papers (CP) at 64. Both parties filed briefs on the topic; the prosecutor’s brief included
the affidavit of probable cause prepared by one of the officers who had investigated Mr.
Townsend’s new offenses. CP at 21-37. The first 8 pages of the 11 page sentencing
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transcript are devoted to argument and determination whether or not Mr. Townsend had
violated his plea agreement. 2 Defense counsel argued that the unproven new allegations
were insufficient to establish the State’s burden. Report of Proceedings (RP) at 22-25.
However, the court found by a preponderance of the evidence that Mr. Townsend had
breached the plea agreement. RP at 26. The court then expressed its reasoning:
And I would stress that the evidence to show that Defendant Mr. Townsend
was on—did have knowledge of the wrongfulness of the conduct in using
the credit card, aside from the robbery, which he didn’t admit, has yet to be
proven, nonetheless, it’s quite clear and persuasive evidence that items
were bought with the card. There was an admission of that. For purposes
of this hearing, I believe the court can rely on that admission.
So, I’ll sign an order as appropriate, Mr. Nagy.
RP at 26.
After the evidentiary hearing, the matter immediately proceeded to sentencing.
During his allocution, Mr. Townsend reiterated his innocence on the new charges as well
as on the ones for which he was being sentenced. RP at 27-28.
Despite this record, the majority says there was no evidentiary hearing. This
conclusion is apparently based on the fact that no live testimony was offered by either
side, that the only evidence presented by the State was the affidavit, and that Mr.
2
According to an unchallenged comment in the prosecutor’s opening remarks, the
defense had been planning to stipulate to the violation. Report of Proceedings at 18.
This was probably predicated on the fact that Mr. James and his defense attorney had
both been involved in the interview at which Mr. James admitted his involvement in
some of the criminal activity he eventually was charged with. CP at 34.
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Townsend said he did not commit the new offenses. None of those facts belies the
hearing that took place. The trial judge read the evidence before him and heard the parties
argue about the sufficiency of that evidence. He then made a finding, primarily based on
Mr. Townsend’s own admissions to the detectives, that he had (at a minimum) used a
credit card taken during a robbery. The judge stated that decision on the record and
explained why he made it. The court subsequently signed a written order determining that
Mr. Townsend had violated the terms of the plea agreement. CP at 64-65.
There is no support in the authorities for reading the James “evidentiary hearing”
requirement to mean “testimonial evidence hearing” as the majority apparently does. All
that James recognizes is the “opportunity to call witnesses.” 96 Wash. 2d at 850 (emphasis
added). An opportunity is not the same as a requirement that witnesses appear. If the
James court had intended that witnesses be called, it would have said so. Instead, the
court mandated only three things: (1) the trial court had to hold a hearing to determine if
the breach occurred; (2) the State had to prove the breach by a preponderance of the
evidence; and (3) the defense be given the opportunity to call witnesses. Id. (emphasis
added). The only things mandated were the hearing and the burden of proof. The other
details were left to the needs of the particular case.
Illustrative of this fact, and, indeed, controlling here, is Nelson. There the State
sought to revoke a suspended sentence due to the defendant’s failure to successfully
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complete a sexual psychopathy program at Western State Hospital (WSH). 103 Wash. 2d at
762. The court described the procedure followed in the trial court:
At the revocation hearing the State presented no witness; instead, it
furnished to defense counsel and the court written reports from WSH staff.
Those reports apparently stated that the defendant had not applied himself
to the program and that he was unsafe to be at large. One report concluded
that defendant was not amenable to treatment and should be transferred to
prison, while the other one concluded that defendant should remain at
WSH. Defense counsel made no objection to the use of these reports nor to
the failure of the State to introduce them into the record.
The defense presented affidavits from other participants in
defendant’s treatment group, live testimony from other inmates and
defendant’s mother, and quotes from staff reports.
Id.
On appeal, Mr. Nelson challenged the prosecution’s reliance on written reports
rather than calling the WSH staff to testify. The court issued two rulings on that aspect of
the case. First, the court noted that hearsay (i.e., documentary evidence) could be used at
a revocation hearing. Id. at 763-66. While noting a preference for live testimony, the
court determined that unreliable hearsay “may not be the sole basis for revocation of
probation.” Id. at 765 (emphasis added). The second ruling of interest was to note that
Mr. Nelson had not objected to the “procedures used by the State” and, indeed, had used
hearsay himself. Id. at 766. Thus, he also had waived his right to confrontation and
cross-examination. Id.
The majority pooh-poohs Nelson as merely a waiver case. (Majority opinion at 9-
10.) This ignores the bulk of the Nelson analysis on the requisites of an evidentiary
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hearing. The court extensively analyzed the use of hearsay at an evidentiary hearing,
including a more thorough analysis of Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756,
36 L. Ed. 2d 656 (1973), and Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L.
Ed. 2d 484 (1972), than the majority does here. See Nelson, 103 Wash. 2d at 763-64. Our
court concluded that Gagnon and Morrissey, as well as most cases that analyzed those
decisions, allowed the use of hearsay at a revocation hearing. Id. at 764. Thus, the
majority’s stated preference (at 11-12) for making the prosecutor bring in live testimony
is in direct conflict with Nelson and its interpretation of what the United States Supreme
Court requires in this instance. It also is in direct contrast to the Nelson waiver
discussion, which should be controlling here. 3
Even more importantly, it is in direct contrast with the defense approach to the
revocation hearing in this case. Knowing that the prosecutor intended to establish a
breach of the plea agreement, the defense filed a brief arguing that no weight should be
given to the evidence supporting the arrest of Mr. Townsend on the new robbery and theft
3
It appears that the due process requirements for revoking probation are more
significant than those imposed by James for relieving a prosecutor of her plea bargain,
making the majority’s reading of Gagnon and Morrissey even more problematic.
Compare, In re Boone, 103 Wash. 2d 224, 231, 691 P.2d 964 (1984) (plurality opinion
discussing requirements of Scarpelli and Morrissey) with James, 96 Wash. 2d at 850
(requirements of due process in plea bargain context). This is not surprising since the
direct consequence of a probation revocation typically is a return to incarceration, while
the direct consequence of the “revocation” of a plea bargain sentencing recommendation
means a contested sentencing hearing before a judge who must still exercise her
sentencing discretion.
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charges. CP at 36-37. He argued there, as he does in this appeal, that due process
required proof that he had been convicted of the new offense or that the State’s evidence
did not arise to proof beyond a reasonable doubt. RP at 23-25; CP at 36-37. 4 The
defense was satisfied at merely taking potshots at the State’s meager offer of proof rather
than put on any witnesses or object to the State’s failure to call one or both of the
detectives who put the new case together. The defense did not ask to do more.
This approach was quite understandable. Most defendants charged with new
offenses do not want to take the stand and testify under oath about a pending matter.
Similarly, Mr. Townsend did not offer an affidavit that might be used against him at a
future trial. He could not call his co-defendants in light of their Fifth Amendment
privilege not to testify. He, quite reasonably, would not want to call either of the
detectives who had interviewed him 5 about the new offenses to appear and supplement the
affidavit filed by the prosecutor. For the same reason, he would not object to the
prosecutor’s use of that affidavit in lieu of calling the witness since it is an inherently
weaker form of proof. A live witness could respond to ambiguities in the affidavit and
recite the defendant’s actual statements rather than the summary contained in the affidavit.
4
The majority (at 11-12) correctly rejects this argument per James.
5
Trial counsel’s presence at the interview also put the defense in an excellent
position to determine if testimony from either of the detectives or the defendant would be
useful at the hearing.
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For all of these reasons, the defense understandably proceeded as it did. Indeed,
Mr. Townsend does not claim on appeal that his trial counsel performed ineffectively by
failing in any of these regards. Instead, he claims that by arguing the sufficiency of the
evidence at the hearing and then, by maintaining his innocence later at the sentencing
hearing, he somehow requested a hearing with live testimony. 6 Inexplicably, the majority
agrees.
Ultimately, the majority’s error in treating the requirement of an evidentiary
hearing as one that mandates live testimony results from failing to apply Nelson. The
requirements of due process in the form of the hearing are those that the defense wants.
If the defense wants live testimony from the prosecution, it can demand it. If the defense
wants to present evidence, it offers the evidence at the hearing—whether in the form of
live testimony or by documentation. That is what the defendant did in Nelson and what
Mr. Townsend could have—if he desired—done here. He did not. And that brings us to
the other lesson of Nelson. If the defense does not object to the process, it waives the
opportunity and cannot complain on appeal about the path that was not followed. Mr.
Townsend did not object and, therefore, cannot do so now.
6
Mr. Townsend undoubtedly regrets that request now that he has entered guilty
pleas to second degree robbery and second degree identity theft arising from the new
incident. See Spokane County Superior Court cause no. 16-1-04538-4.
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The court held the hearing that the prosecutor noted. Upon proving the
defendant's breach of the plea agreement, the court proceeded to sentencing and the
parties presented the sentencing recommendation that they had agreed on in the event Mr.
Townsend violated the agreement. The trial court accepted the recommendation. There
was no due process violation.
The trial court should be affirmed.
9