                                                                  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
No. 34984-5-III
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.


                                             2
No. 34984-5-III
State v. Townsend


       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
No. 34984-5-III
State v. Townsend


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 Wn.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 Wn. App. 32, 36-37,

                                              4
No. 34984-5-III
State v. Townsend


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 Wn.2d 847, 850-51,

640 P.2d 18 (1982); State v. Roberson, 118 Wn. App. 151, 158-59, 74 P.3d 1208 (2003),

overruled in part on other grounds by State v. Hughes, 154 Wn.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 Wn.2d at 850-51; Roberson, 118 Wn. 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 Wn.2d 699, 702, 147 P.3d 553 (2006); State v. Vasquez, 109 Wn. App. 310,

319, 34 P.3d 1255 (2001), aff’d, 148 Wn.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,


                                             5
No. 34984-5-III
State v. Townsend


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 Wn. 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

Wn.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.




                                              6
No. 34984-5-III
State v. Townsend


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

Wn.2d at 851. Silent acquiescence is not sufficient proof of waiver, even when an

individual is represented by counsel. Id.; State v. Stegall, 124 Wn.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 Wn.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 Wn. 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


                                             7
No. 34984-5-III
State v. Townsend


rights prior to standing silent. Stegall, 124 Wn.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 Wn.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 Wn.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 Wn.2d at 730.

                                              8
No. 34984-5-III
State v. Townsend


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 Wn.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


                                              9
No. 34984-5-III
State v. Townsend


hearsay evidence. See State v. Smith, 155 Wn.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 Wn.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 Wn.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 Wn.2d at 294 n.11; State v. Wakefield, 130 Wn.2d 464,

481-82, 925 P.2d 183 (1996) (Sanders, J., concurring/dissenting); State v. Bennett,

42 Wn. App. 125, 128, 708 P.2d 1232 (1985); Roberson, 118 Wn. 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 Wn.2d 719, 725, 674
P.2d 171 (1984).

                                              10
No. 34984-5-III
State v. Townsend


v. Hall, 32 Wn. 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.


                                             11
No. 34984-5-III
State v. Townsend


       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 Wn.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 Wn.2d at 764; In re Pers. Restraint of Boone, 103 Wn.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.

                                             12
No. 34984-5-III
State v. Townsend


       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




                                            13
                                      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 Wn.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 Wn.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 Wn.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.
No. 34984-5-III
State v. Townsend


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




                                             2
No. 34984-5-III
State v. Townsend


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.

                                             3
No. 34984-5-III
State v. Townsend


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 Wn.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



                                               4
No. 34984-5-III
State v. Townsend


complete a sexual psychopathy program at Western State Hospital (WSH). 103 Wn.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

                                             5
No. 34984-5-III
State v. Townsend


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 Wn.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 Wn.2d 224, 231, 691 P.2d 964 (1984) (plurality opinion
discussing requirements of Scarpelli and Morrissey) with James, 96 Wn.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.

                                              6
No. 34984-5-III
State v. Townsend


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.

                                               7
No. 34984-5-III
State v. Townsend


       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.

                                             8
No. 34984-5-III
State v. Townsend


      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.




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