          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


THE STATE OF WASHINGTON,                 )       No. 74222-1-I
                                         )
                     Respondent,         )
                                         )       DIVISION ONE
                     v.                  )
                                         )
JOHN CARLO FREE,                         )       UNPUBLISHED OPINION
                                         )
                     Appellant.          )       FILED: October 2, 2017
                                         )

       MANN,J. —After pleading guilty to two counts of first degree rape of a child, John

Free received a Special Sex Offender Sentencing Alternative (SSOSA)that required he

undergo sexual deviancy treatment. After Free was terminated from two treatment

programs, the trial court revoked Free's SSOSA. Free appeals the revocation and

challenges conditions imposed by his treatment providers limiting his access to the

internet. Free also argues that the trial court applied the wrong standard of proof in the

hearing to revoke the SSOSA.

       We affirm.

                                         FACTS

       In August 2009, in a negotiated plea deal, Free pleaded guilty to two counts of

first degree rape of a child for crimes he committed against his nephew. The State
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agreed to consider recommending a SSOSA depending on the results of a sexual

deviancy evaluation.

       Free underwent a polygraph and had a sexual deviancy evaluation with William

Satoran, a certified sex offender treatment provider(CSOTP). Free admitted that

between the ages of 35 and 38, he viewed child pornography 50 to 100 times and

masturbated while viewing. Free also admitted that he obtained both still photo and

video pornography from the internet, and that he would masturbate while viewing.

Overall, Satoran determined Free appeared eligible for a SSOSA "in that he is a

manageable danger to be at large providing he is in treatment with a CSOTP." Satoran

recommended Free be required to enter, and successfully complete, a three-year

specialized sexual deviancy treatment program. Recommended conditions included

maintaining full time employment and the requirement to "abide by all rules of his

treatment program and probation, as well as any other rules his therapist and probation

counselor deem appropriate."

       Free was sentenced to 131 months to life in prison, with all but 11 months

suspended. The court ordered Free to engage in sex offender treatment with Satoran

for three years, required Free to abide by all conditions of treatment, to follow all of

Satoran's treatment recommendations, and to comply with all conditions imposed by the

Department of Corrections (DOC).

       On December 30, 2009, Free signed a DOC Conditions, Requirements, and

Instructions document indicating that he understood the conditions of community

custody, including that he was to follow Satoran's recommended treatment plan. On

February 8, 2010, Free signed a treatment contract with Satoran that provided the rules

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of the program along with the warning that any violation was grounds for termination.

The contract specifically stated that "[h]onesty is demanded by the Program." The

contract also required clients to attend 100 percent of their scheduled therapy sessions,

complete all "readings and other assignments within prescribed time limits," and to

"participate actively in group therapy." The contract prohibited clients from using

"pornography in any form" and from using the internet "unless they have special

permission from the CCO [community corrections officer] and treatment provider and

are using porn filters."

       In May 2010, Free's niece reported that the he had molested her on multiple

occasions starting when she was seven or eight years old. Free entered into a

negotiated plea of guilty to a reduced charge of felony communication with a minor for

immoral purposes and was sentenced to 24 months, with his SSOSA deferred until his

release from custody.

       Free was released from prison in April 2012 and resumed treatment with Satoran

on June 5, 2012. In his March 2013 SSOSA progress report, Satoran noted several

issues with Free over the proceeding months, such as accessing the internet contrary to

treatment rules, missing sessions, remaining unemployed, and obfuscation. Satoran

concluded "Despite the rule violation I am not recommending a SSOSA revocation

hearing at this time. However, due to the violation and the missed sessions this

following month he bears watching and will need to show significant improvement over

the next 3 months." In July 2013, Satoran reported that Free was not complying with his

homework assignments or his requirements for his treatment group and that his

participation was "not up to group standards."

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       On November 22, 2013, Free was suspended from Satoran's treatment program.

The DOC filed a notice of violation of Free's SSOSA. When the CCO contacted

Satoran, Satoran stated the defendant had been suspended for nonpayment of fees, for

not completing the homework, and for not actively participating in group sessions. Free

had quit his job, disregarding group advice, saying it was "a minimum wage, bottom of

the barrel job." Free was not actively participating in job search activities.

       Satoran reinstated Free in December 2013, but the problems continued. Free

was not consistent in turning in his weekly impulse charts, mood logs, or weekly

checklists. He was still not in in compliance with his homework, remained out of work,

and owed $1500 in fees. Satoran suspended Free again on January 7, 2014, and then

terminated him from the treatment program on January 27, 2015.

       The DOC filed a second violation report specifically noting the termination from

Satoran's group and Free's growing hostility with his CCO. The CCO recommended

that the court evaluate whether a SSOSA sentence is appropriate for Free. Free was

taken into custody pending a revocation hearing.

       Free's counsel referred him to Dr. Myrna Pinedo, who reviewed Free's

evaluation, progress reports, polygraph, and case file, then interviewed Free before

agreeing to allow him to join her treatment program for a 90-day probationary period.

       A violation hearing was held and the defendant admitted to violating his SSOSA

by failing to make reasonable progress in treatment and being terminated from the

required treatment program. Free was granted a 90-day probationary period for reentry

into treatment with Dr. Pinedo. Agreed conditions of the probation included:(1)

enrolling in Dr. Pinedo's treatment program,(2) complying with all conditions of

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treatment and supervision "without complaint, negotiation, or argument,"(3)seeking

and maintaining employment,(4) completing all homework assignments, and (5) not

possessing, using, accessing or viewing any sexually explicit or erotic material. By

agreeing to the terms of probation, Free understood:

      that if he does not meet the standards of behavior and participation of Dr.
      Pinedo's program, has one unexcused absence from a treatment session,
      misses one payment, does not present homework assignments on the day
      that they are due, or commits any violation of treatment or supervision,
      that he will be immediately terminated from treatment, the Court will
      immediately order a no-bail bench warrant for defendant's arrest, and the
      State will recommend revocation of his suspended sentence. Defendant
      further understands and has been given clear and explicit notice from the
      Court that 100% strict compliance with all conditions noted above is
      required.

      The court ordered Free to serve 60 days in jail and then enter into the 90-day

probationary period with Dr. Pinedo. Free was released from confinement in July 2014,

and reported to Dr. Pinedo's treatment program. Dr. Pinedo informed Free that her

program had stringent requirements that were strictly enforced, and any violation of the

rules set by the program or the DOG would result in immediate termination. Dr. Pinedo

believed the strict boundaries may make it more likely for Free to be successful in the

program. Free agreed to Dr. Pinedo's treatment program rules. In addition to the

written treatment program rules, Dr. Pinedo testified at the revocation hearing that none

of the men in her program are allowed to use the internet "unless they have written up

some boundaries," and that she had informed Free of this restriction. Dr. Pinedo

testified that she informed Free that he could access the internet at an agency such as

WorkSource for job searches so long as he was monitored.




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       In August 2014, Free's CCO, Brian Dalton, received a report from the monitoring

program on Free's computer, Covenant Eyes, indicating Free may have acted to evade

the security levels on his computer. Dalton ordered Free to undergo a polygraph

examination, however the test was inconclusive due to Free using "purposeful physical

movements in an attempt to influence the results." When confronted Free became

agitated, angry, and defensive.

       After hearing these reports, Dr. Pinedo terminated Free from her program. Dr.

Pinedo's termination report identified four treatment rules that Free violated:(1)failing to

comply with all probation orders and treatment directives by attempting to circumvent

Covenant Eyes,(2) violating a treatment rule by accessing websites not approved by

his CCO or the counselor,(3)failing to disclose completely and honestly his intent to

access unapproved websites and by being secretive and uncooperative, and (4)

omitting information from his treatment provider. Dr. Pinedo summarized:

      Mr. Free has demonstrated a persistent pattern of deviant thinking,
      attitudes and behaviors that support potential reoffending. He was given
      an opportunity by the court to remain in community based treatment after
      termination from Mr. Satoran's sexual deviancy program. He clearly
      intended to manipulate and deceive his community corrections officer and
      this sexual deviancy treatment provider which would indicate no reduction
      in his potential for reoffending. Therefore, he has been terminated from
      this sexual deviancy treatment program on the basis that he is considered
      to be a High Risk for reoffense in the community.

       The State petitioned for revocation of Free's SSOSA, asserting the following

violations of community custody:

      1. Failure to abide by the instruction of the Department of Corrections and
         Sex Offender and Treatment Program Rules by accessing the internet
         for non-work related purposes on 8/1/14.
      2. Accessing the internet without prior approval from 8/1/14 through
         8/6/14.

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No. 74222-1-1/7


        3. Accessing private search (proxy) websites to circumvent Covenant
           Eyes between 8/1/14 and 8/10/14.
        4. Using intentional movement during a Polygraph Test in an attempt to
           influence the results on 8/12/14.
        5. Failing to comply with sexual deviancy treatment by being terminated
           by Dr. Pinedo on 8/8/14.

        At the revocation hearing, Free informed the court that he could not find a sex

offender treatment provider willing to accept him into treatment.

        After hearing the evidence and reviewing the record, the trial court determined

the State had proved the violations by "substantial evidence" and revoked the SSOSA.

The court made the following findings:

        1. The defendant failed to make reasonable progress in court ordered
           sexual deviancy treatment—having been terminated from the
           treatment program of William Satoran(1/27/14) and Dr. Myrna Pinedo
           (8/18/14).
        2. Failing to abide by DOC and SOTP rules by accessing the Internet on
           8/1/14.
        3. Accessing the Internet without prior approval from 8/1/14 to 8/8/14.
        4. Accessing private search (proxy) websites to circumvent Covenant
           Eyes.

The court found "that revocation of the suspended sentence is appropriate based

upon any one of the violations above, as well as all violations." Free was

directed to serve the remainder of his indeterminate sentence of 131 months to

life.

                                         ANALYSIS

                          Revocation for Violation of a Condition

        "Under the Sentencing Reform Act of 1981, chapter 9.94A RCW, a first-time sex

offender may be eligible for a suspended sentence under the SSOSA provisions." State

v. Miller, 180 Wn. App. 413, 417, 325 P.3d 230(2014); RCW 9.94A.670(2). The


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No. 74222-1-1/8


"SSOSA was created because it was believed that for certain first-time sexual

offenders, 'requiring participation in rehabilitation programs is likely to prove effective in

preventing future criminality.'" Miller, 180 Wn. App. at 417 (quoting State v. Goss, 56

Wn. App. 541, 544, 784 P.2d 194(1990)(quoting DAVID BOERNER, SENTENCING IN

WASHINGTON § 2.5(c)(1985))).

       A SSOSA may be revoked at any time during the period of community custody

and the sentence reinstated if there is sufficient evidence to convince the trial court that

the offender has either "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). "Revocation of a suspended sentence due to

violations rests within the discretion of the trial court and will not be disturbed absent an

abuse of discretion." McCormick, 166 Wn.2d at 705-06. "An abuse of discretion occurs

only when the decision of the court is 'manifestly unreasonable, or exercised on

untenable grounds, or for untenable reasons." McCormick, 166 Wn.2d at 706 (quoting

State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)).

       Here, the trial court did not abuse its discretion in revoking the suspended

sentence. The trial court listed four independent reasons for suspending the SSOSA,

the first being a finding that Free "failed to make reasonable progress in court ordered

sexual deviancy treatment—having been terminated from the treatment program of

William Satoran . . . and Dr. Myrna Pinedo." The evidence supports this finding.

       Free's original judgment and sentence required that he participate in sex offender

treatment for three years and that he follow all recommendations of his treatment

provider. He subsequently agreed to conditions for his 90-day probationary period that

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No. 74222-1-1/9


also required that he comply with all conditions of treatment and supervision "without

complaint, negotiation, or argument." It is undisputed that Free was terminated from

treatment by both Satoran and Dr. Pinedo. It is also undisputed that at the time of

Free's revocation hearing there were no treatment providers willing to take him. Since

a SSOSA may be revoked for any violation of a condition of the suspended sentence or

failure to make satisfactory progress in treatment, this finding alone was sufficient for

the trial court to revoke Free's suspended sentence.

                              Limitation on Access to Internet

        Free's primary arguments on appeal concern the trial court findings for

revocation, as they relate to regulations on his use of the internet. Free argues(1) the

treatment provider conditions limiting his access to the internet were not authorized by

statute because they were not crime related,(2) the DOC condition limiting his internet

access was not in writing, and (3) conditions limiting access to the internet violate Free's

First Amendment rights.

       Free argues that the reason he was terminated from treatment was

impermissible as it was primarily because of his violation of the treatment providers'

internet restrictions. We disagree.

       At the outset, we note there is currently no Washington case law or statute that

restricts a treatment provider's ability to regulate a participant's use of the internet. In

State v. O'Cain, this court reversed an internet restriction set by the trial court for not

being "crime-related;" although we specifically clarified that the decision "does not

preclude control over internet access being imposed as part of sex offender treatment if

recommended after a sexual deviancy evaluation." 144 Wn. App. 772, 775, 184 P.3d

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No. 74222-1-1/10


1262(2008). However, we do not explore this issue further. In this case, while both

treatment providers imposed limitations on Free's internet access, and both faulted him

for violating those limitations, their primary reasons for terminating Free were based on

his failure to participate in the program and his continued dishonesty.

       Free's SSOSA required that he engage in sex offender treatment with Satoran

for three years and that he abide by all conditions of treatment and follow all of

Satoran's treatment recommendations. Free signed a treatment contract with Satoran

that required honesty, required he participate fully in treatment, and required that he not

access the internet without permission. Satoran terminated Free for nonpayment,for

failing to complete his homework, failing to actively participate, and for exhibiting a poor

attitude toward treatment. After hearing testimony from Satoran, the trial court agreed:

"I think any way you look at it from Mr. Satoran's testimony and the documents that he's

filed in this case, Mr. Free did not make satisfactory progress in treatment."

       Despite his termination from Satoran's treatment program, Free was given a

second chance to reenter treatment with Dr. Pinedo. As a condition of a 90-day

probationary period, Free agreed to enroll with Dr. Pinedo, and comply with all

treatment conditions without complaint, negotiation, or argument. Dr. Pinedo's

conditions included the requirement for complete and honest disclosure.

       When Dr. Pinedo terminated Free from her program, she did consider his

unauthorized use of the internet, however, only because this use of the internet was

indicative to his lack of commitment and honesty. Dr. Pinedo found Free's attempts to

circumvent internet safety controls constituted a failure to completely and honestly

participate in the program. Dr. Pinedo concluded that Free "has demonstrated a

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No. 74222-1-1/11


persistent pattern of deviant thinking, attitudes and behaviors that support potential

reoffending." After hearing testimony and reviewing documents, the trial court agreed:

       One of the core principles, what's necessary to be successful and make
       reasonable progress in a SSOSA is to be honest, honest with your CCO
       and honest with your treatment provider, and that was clearly not the case
       with Mr. Free. And so I don't find that he made reasonable progress in
       treatment with Dr. Pinedo as well, and that's supported by substantial
       evidence.[1]

       Thus, we hold the trial court did not abuse its discretion in revoking Free's

suspended sentence based on his failure to make progress in treatment.

       We need not address the subsequent claims challenging the remaining findings.

We draw a direct analogy to a court's imposition of an exceptional sentence on multiple

grounds. In that circumstance, "an exceptional sentence may be upheld on appeal

even where all but one of the trial court's reasons for the sentence have been

overturned." State v. Gaines, 122 Wn.2d 502, 512, 859 P.2d 36(1993). Remand is

only necessary "where it is not clear whether the trial court would have imposed an

exceptional sentence on the basis of only the one factor upheld." Gaines, 122 Wn.2d at

512; See also State v. Parker, 132 Wn.2d 182, 189, 937 P.2d 575(1997). In this case,

the trial court left no ambiguity in specifically finding "revocation of the suspended

sentence is appropriate based upon any one of the violations above."

                              Standard of Prooffor Revocation

       Free next argues that the trial court applied the incorrect evidentiary standard of

proof in determining whether to revoke Free's SSOSA, violating his right to due process.

We disagree.

       1 Report of Proceedings(RP)(Oct. 31, 2014)at 339.

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No. 74222-1-1/12


       "The revocation of a suspended sentence is not a criminal proceeding, but rather

an extension of the original criminal conviction." McCormick, 166 Wn.2d at 699. "An

offender facing a revocation of a suspended sentence has only minimal due process

rights because the trial has already occurred and the offender was found guilty beyond

a reasonable doubt." McCormick, 166 Wn.2d at 700 (citing State v. Dahl, 139 Wn.2d

678, 683, 990 P.2d 396 (1999)).2

       A SSOSA may be revoked at any time during the period of community custody if

there is sufficient proof to reasonably satisfy the court that the offender (1) has violated

a condition of the suspended sentence or(2) is failing to make satisfactory progress in

treatment. McCormick, 166 Wn.2d at 705(emphasis added).

       At trial, the State argued, "ultimately, the court is only being asked to find whether

there is substantial evidence to prove the violation certainly on a much lesser standard

than proof beyond a reasonable doubt." The trial court then stated it was applying the

"substantial evidence" standard in making its rulings. Free is correct that "substantial

evidence" is the appellate standard of review. However, a finding by the trial court that

"substantial evidence" supports each violation, though not the exact language of the

standard, adequately demonstrates that the trial court found "sufficient proof to

reasonably satisfy the court." Thus, we find that any error in the use of this language

was harmless.

       Free next argues that the trial court should have applied the "preponderance of

the evidence" standard in determining whether the SSOSA should be revoked. Free



         2 "The Supreme Court has extended some due process protections when probation is revoked
for the failure to pay fines or fees." McCormick, 166 Wn.2d at 700.
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No. 74222-1-1/13


argues that the U.S. Supreme Court decision Morrissey v. Brewer, 408 U.S. 471, 484,

92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972), and this court's decision In re Pers. Restraint of

McKay, 127 Wn. App. 165, 169, 110 P.3d 856 (2005), require this heightened

evidentiary standard. We disagree.

        The Washington Supreme Court addressed the added due process requirements

as proscribed by Morrissey in State v. Dahl, 139 Wn.2d 678, 990 P.2d 396(1999),

where the court added several minimal requirements in order to satisfy due process.3

"These requirements exist to ensure that the finding of a violation of a term of a

suspended sentence will be based upon verified facts." Dahl, 139 Wn.2d at 683 (citing

Morrissey, 408 U.S. at 484); See also McCormick, 166 Wn.2d at 700. Since then, our

Supreme Court has declined to reconsider the "sufficient proof to reasonably satisfy the

court" evidence requirement. See McCormick, 166 Wn.2d 689(holding "a SSOSA

sentence may be revoked at any time if there is sufficient proof to reasonably satisfy the

court"); See also Dahl, 139 Wn.2d at 705 (holding "an offender's SSOSA may be

revoked at any time if a court is reasonably satisfied.").

        Free invites this court to presume that those decisions "accidentally" relied on the

same evidence requirement. We decline their invitation. We are bound by the

decisions of our Supreme Court, and "overruling a prior decision. . . is not a step that

should be taken lightly." Keene v. Edie, 131 Wn.2d 822, 831, 935 P.2d 588(1997). We

        3 In Dahl, the Washington Supreme Court incorporated the United States Supreme Court's
holding that 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 (unless 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 revocation.
Dahl, 139 Wn.2d at 683; McCormick, 166 Wn.2d at 700.
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No. 74222-1-1/14


will not abandon an established rule absent a showing that the rule is "incorrect and

harmful." In re Stranger Creek and Tributaries in Stevens County, 77 Wn.2d 649, 653,

466 P.2d 508 (1970). Free has failed to meet that burden.

                             Statement of Additional Grounds

       In his statement of additional grounds, Free argues that the trial court erred in

admitting several exhibits including:(1) the Covenant Eyes report,(2) Dalton's DOC

chronological event notes that pertain to his conversations with Free, and (3)the

printouts of the proxy server webpages. Free argues that the Covenant Eyes report

was hearsay and violated his right to confront the witness, as the person who created

the report was not present to testify at trial. He also argues that Dalton's report

containing his chronological events could have been doctored, noting the rule of

completeness, and should not have been admitted. Finally, Free argues that the proxy

server printouts should not have been admitted because they mischaracterized the

evidence.

       Hearsay evidence is admissible at revocation hearings if good cause outweighs

the defendant's right to confront and to cross-examine witnesses. State v. Nelson, 103

Wn.2d 760, 765, 697 P.2d 579(1985). "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." Dahl, 139 Wn.2d at 686. "Hearsay

evidence should be considered only if there is good cause to forgo live testimony."

Dahl, 139 Wn.2d at 686; Nelson, 103 Wn.2d at 765. Good cause exists when procuring

the witness would be difficult and expensive and the State can show that the proffered

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No. 74222-1-1/15


evidence was demonstrably reliable or clearly reliable. See Dahl, 139 Wn.2d at 686

(quoting Nelson, 103 Wn.2d at 765). "Unreliable hearsay may not be the sole basis for

revocation of probation." Nelson, 103 Wn.2d at 765.

       In this case, we hold good cause outweighs Free's right to confront the creator of

the report. Covenant Eyes is a commonly used monitoring system for the DOC. The

State adequately showed the Covenant Eyes report was reliable by having Dalton

testify to his experience with their accuracy and how commonly they are used.

Expecting the DOC to procure the specific person who created the report for Covenant

Eyes would be unnecessarily difficult and expensive.

       We also hold good cause existed to allow Dalton to reference his probationary

notes taken during the time he worked with Free. Other courts have found "evidence

from the court files and state probation reports" though hearsay, were "reliable and

obviously sufficient to satisfy the court that appellant had violated the terms of his

probation." Nelson, 103 Wn.2d at 764-65 (quoting United States v. Miller, 514 F.2d 41

(9th Cir. 1975)). As the Washington Supreme Court clarified,

       where it not only appears that the reports of program staff therapists
       contain factual assertions about defendant's use of the program solely to
       avoid prison and his failure to expend sufficient time and energy to
       succeed in the program, but also that these assertions are corroborated
       by the statements of probationer and other witnesses, such hearsay report
       evidence is demonstrably reliable.

Nelson, 103 Wn.2d at 765. Such is the case here. Although Dalton was present to

testify to his conversations with Free and Dr. Pinedo, the evidence provided additional

clarification as to the times and dates of the conversations, information that was

corroborated by the witnesses. Regarding Free's argument that the evidence should


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not be admitted under "the rule of completeness," that objection was not made at the

trial court, and we do not consider it here.

       Finally, Free argues he was owed both a preliminary hearing and a revocation

hearing in order to comply with the requirements set by Morrissey. As previously

discussed, this court has already addressed the due process requirements as

proscribed by Morrissey. Morrissey requires,

       written notice of the claimed violations of parole, disclosure to the parolee
       of evidence against him, an opportunity to be heard in person and to
       present witnesses and documentary evidence, the right to confront and
       cross-examine adverse witnesses, a neutral and detached hearing body,
       and a written statement by the fact finders as to the evidence relied on
       and the reasons for revoking parole.

In re Lain, 179 Wn.2d 1, 18, 315 P.3d 455(2013)(citing Morrissey, 408 U.S. at 489).

       Free's only remaining argument is that the trial court's ruling was based entirely

on "unreliable hearsay." Here, the trial court heard several witnesses, including Free's

CCO and both of Free's treatment providers, Satoran and Dr. Pinedo. Free's argument

is essentially that Dalton "misrepresented" the facts, i.e., the use of the proxy server

printouts, and that the allegations were "unsubstantiated." However, Free was given the

opportunity to cross-examine these witnesses and present his own defense. "We will

not substitute our judgment for the trial court's, weigh the evidence, or adjudge witness

credibility." Greene v. Greene, 97 Wn. App. 708, 714, 986 P.2d 144(1999).




                                          -16-
          FILED
CCU:';T OF APPEALS' DIV I
 STATE OF WASHINGTO::!

201.10CT -2 fl;-1 9:07
