                                                                           FILED
                                                                        JULY 16, 2020
                                                                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. 36732-1-III
                      Respondent,              )
                                               )
        v.                                     )
                                               )
 VRAJESH K. PATEL,                             )         UNPUBLISHED OPINION
                                               )
                      Appellant.               )

       SIDDOWAY, J. — Trial of five criminal charges against Vrajesh Patel was deferred

by agreement for a year, subject to Dr. Patel waiving rights and complying with

conditions during the deferral period. On the last day of the deferral period, the State

gave notice of noncompliance. At its request, the trial court found Dr. Patel guilty and
No. 36732-1-III
State v. Patel


entered a judgment and sentence. Dr. Patel challenges the timeliness of the State’s action

and the trial court’s finding of noncompliance. We affirm.

                    FACTS AND PROCEDURAL BACKGROUND

       In October 2017, Vrajesh K. Patel, M.D., was charged with three counts of assault

in the second degree and two counts of harassment, all involving a woman with whom he

had been romantically involved. On February 21, 2018, he and the State agreed to a one-

year stipulated order of continuance (SOC) that was approved and entered by the superior

court. Among terms and conditions with which he was required to “fully comply during

the deferral period, which ends on 2/21/19” was that he

       shall continue to undergo and will successfully complete and follow any
       further treatment recommendations in his DV/anger management treatment
       with First Step Community Counseling Services in Kennewick, WA and
       the Moral Reconation Therapy Program through WW District Court. He
       should also continue to follow any substance abuse treatment
       recommendations, and provide proof of successful completion of any
       previous substance abuse treatment.

Clerk’s Papers (CP) at 55 (boldface omitted).

       On February 19, 2019, the prosecutor learned that Dr. Patel had admitted when

deposed in a civil suit brought by his victim that he was untruthful during the SOC

chemical dependence evaluation performed in May 2018. Specifically, the prosecutor

was provided with information that Dr. Patel testified that all of the following

information provided to evaluator Judi Rozsa was false: he told her that drinking did not

cause him problems prior to August 2017, that he never tried any drugs in his life except


                                             2
No. 36732-1-III
State v. Patel


alcohol, that he cut back on tobacco use to only three cigarettes a day in 2013, and that he

had no arrests prior to August 2017. He also failed to tell Ms. Rozsa about employee

assistance program (EAP) assessments that had been required of him by his former

employer. Based on the information provided, Ms. Rozsa had provided the following

level of care recommendation:

       [I]t appears that Dr. Patel does not fit the DSM V diagnostic criteria for an
       alcohol or other substance use disorder. It appears that the incident which
       precipitated his arrival in my office was the only time in his life that
       drinking has caused him any problems, or was at least related to a problem
       that he got into. He has not had any problems ceasing his use of this drug.
       In addition, Dr. Patel’s drinking in general did not appear to be excessive
       anyway.
       I am therefore going to refrain from recommending any formal therapeutic
       intervention.

CP at 138.

       Two days later, on February 21, 2019—the last day of the deferral period—the

State filed a notice of noncompliance signed by Dr. Patel’s probation officer and a

motion for an order to show cause why the court should not find him guilty of the

deferred charges. A summary of Dr. Patel’s falsehoods concluded, “Patel’s conduct

completely contravenes the purpose and goal of the SOC, which requires Patel complete

[sic] treatment recommended by his evaluators. Patel should not be deemed to have

successfully completed his SOC conditions.” CP at 41.




                                             3
No. 36732-1-III
State v. Patel


       Dr. Patel responded with a motion to strike, arguing that not only had he not

violated any condition of the SOC, but the State’s action also came too late under

paragraph 1.9 of the SOC, which provides in part:

       I agree to show cause at any time prior to 2/21/19, why I should not be
       found to have failed to comply with one or more of the conditions set forth
       in paragraph 1.8 herein.

CP at 56 (emphasis added).

       At a hearing at which the trial court entertained both the motion to strike and the

order to show cause, it rejected Dr. Patel’s challenges and entered an order finding a

willful violation of the terms of the SOC, found him guilty of the criminal charges, and

set a sentencing hearing.

       Dr. Patel moved for reconsideration. In a letter opinion, the trial court denied the

motion but found it valuable to “revisit its thinking on its ruling” and explained why its

hearing had been a sufficient evidentiary hearing and why it found the evidence sufficient

to prove a violation of the terms of the SOC. CP at 160.

       The court later sentenced Dr. Patel to a standard range sentence of 60 months’

confinement and 18 months of community custody. Dr. Patel appeals.




                                             4
No. 36732-1-III
State v. Patel


                                         ANALYSIS

I.     THE “SHOW CAUSE” PROVISION RELIED ON BY DR. PATEL DID NOT REQUIRE THE
       STATE TO ACT BEFORE FEBRUARY 21, 2019

       Dr. Patel’s contention that the State acted too late requires us to construe the

language of the SOC. Pretrial diversion agreements, like plea agreements, are contracts,

and are construed by applying contract principles. See State v. Sledge, 133 Wn.2d 828,

839, 947 P.2d 1199 (1997). The goal of contract interpretation is to give effect to the

parties’ intent. State v. Oliva, 117 Wn. App. 773, 779, 73 P.3d 1016 (2003). Interpreting

a contract requires courts to not only “look at the language of the agreement,” but also to

       view “the contract as a whole, the subject matter and objective of the
       contract, all the circumstances surrounding the making of the contract, the
       subsequent acts and conduct of the parties to the contract, and the
       reasonableness of respective interpretations advocated by the parties.”

Id. (quoting In re Marriage of Litowitz, 146 Wn.2d 514, 528, 48 P.3d 261 (2002)). Issues

concerning the interpretation of a pretrial diversion agreement are questions of law that

we review de novo. See State v. Bisson, 156 Wn.2d 507, 517, 130 P.3d 820 (2006)

(interpreting plea agreement).

       Dr. Patel contends that the SOC requires the State to catch and act on a violation

of a deferral condition within the one-year deferral period, failing which he has a right to

dismissal. Fairly read, however, the SOC creates rights that arise after the deferral

period: if Dr. Patel has violated a deferral condition, the State is entitled to submit the

criminal charges to the court; if Dr. Patel has complied, he is entitled to dismissal of the


                                               5
No. 36732-1-III
State v. Patel


charges. Having learned of his violation so late in the deferral period, the State did not

need to initiate a show cause procedure. Under the plain language of the agreement, it

could have submitted the charges to the court. Dr. Patel, believing himself to have

complied, could have argued his right to dismissal of the charges. The following

provisions support this construction of the SOC:

       1.8—Conditions of Deferral of Prosecution:
             I agree to the deferral of the prosecution of the charge(s) in the
       above-entitled action on the following conditions with which I must fully
       comply during the deferral period, which ends on 2/21/19:
              ....
              (b)    Vrajesh K. Patel . . . should also continue to follow any
                     substance abuse treatment recommendations, and provide
                     proof of successful completion of any previous substance
                     abuse treatment.
              ....
       1.9—Dismissal of Charges:
              I understand that the charge(s) against me will be dismissed at the
       end of the deferral if I have fully complied with the conditions set forth in
       paragraph 1.8 herein.
              ....
       1.10—Waiver of Jury Trial:
            I FULLY UNDERSTAND AND AGREE THAT THE STATE’S CASE WILL BE
       SUBMITTED ON THE RECORD IF I FAIL TO COMPLY WITH ANY OF THE
       CONDITIONS SET FORTH IN PARAGRAPH 1.8 HEREIN. . . .

CP at 55-56 (boldface omitted). Following signatures of Dr. Patel, defense counsel, and

the prosecutor, and some preliminary findings, the SOC contains the following order:




                                              6
No. 36732-1-III
State v. Patel


             IT IS HEREBY ORDERED:
      2.1    The deferral period shall end on 2/21/19. The prosecution of the
      charge(s) in the above-entitled action is deferred on the following
      conditions:
             ....
             (b)      Vrajesh K. Patel . . . should also continue to follow any
                      substance abuse treatment recommendations, and provide
                      proof of successful completion of any previous substance
                      abuse treatment.
             ....
      2.2    The charge(s) in the above-entitled matter will be dismissed after
      conclusion of the deferral period if defendant has fully complied with the
      conditions set forth in paragraph 2.1 of this Order.
      2.3     If defendant fails to fully comply with the conditions set forth in
      paragraph 2.1 of this Order, the Court will set the matter on the docket for
      trial. At that time, the Court will review the materials identified in
      paragraph 1.11, herein, and based upon that evidence, the Court will enter
      judgment, and if appropriate, sentence Defendant according to law.

CP at 59-60 (boldface omitted).

      Recognizing that the State might become aware of a violation before the year has

passed and wish to immediately terminate the SOC and proceed with prosecution,

paragraph 1.9 includes a show cause option. In that event, it imposes a duty on Dr. Patel

to submit to the early termination procedure. The following language describes the early

termination option:

              I agree to show cause at any time prior to 2/21/19, why I should not
      be found to have failed to comply with one or more of the conditions set
      forth in paragraph 1.8 herein. I may be found in violation of any of the
      conditions set forth 1.8 by a preponderance of the evidence in a hearing
      held without a jury before any Judge or Judge pro tempore of the above-
      entitled Court.

                                             7
No. 36732-1-III
State v. Patel


             I understand that the court may order the clerk of the court to issue a
       bench warrant for my arrest if I fail to appear at any show cause hearing.

CP at 56. It is unsurprising that a response to the show cause option would be required

“prior to 2/21/19” because on and after February 21, 2019, the State could simply submit

its case on the record under paragraph 1.10 of the agreement.

       The dismissal provision could have been more artfully drafted by making clear

that Dr. Patel was entitled to judicial review of a claimed violation whether or not the

show cause procedure was followed. But the right to judicial review would exist whether

provided by the agreement or not. See State v. Marino, 100 Wn.2d 719, 724, 674 P.2d

171 (1984).1 Viewed as a whole, the SOC is reasonably read to permit the State to

proceed with prosecution at the conclusion of the deferral period whether or not it

initiated a show cause proceeding prior to February 21, 2019.

II.    THE TRIAL COURT PROPERLY CONCLUDED THAT DR. PATEL VIOLATED THE SOC BY
       BEING UNTRUTHFUL WHEN EVALUATED FOR TREATMENT

       Dr. Patel’s remaining assignment of error is to the trial court’s findings and

conclusion that he violated the SOC by failing to be truthful with his substance abuse

treatment provider on May 1, 2018. As elaborated upon by its letter denying Dr. Patel’s


       1
         Under pretrial diversion agreements like the SOC, the prosecutor establishes the
conditions the defendant must satisfy and supervises performance. State v. Ashue, 145
Wn. App. 492, 501, 188 P.3d 522 (2008). When a prosecutor decides to revoke a
diversion agreement, however, the defendant is entitled by due process to an independent
judicial determination that the diversion agreement was violated, by a preponderance of
the evidence, with the burden of proof on the State. Marino, 100 Wn.2d at 725.

                                             8
No. 36732-1-III
State v. Patel


motion for reconsideration, the trial court found that the doctor’s “lies were directed to

the people who were in the best position to know whether he needed treatment for

drinking. As a result of his untruthfulness he deprived them of the opportunity to make

appropriate treatment recommendations.” CP at 161. The trial court found the

misrepresentations to be material and that they “were such that the Court can only infer

that they were done with the intent to mislead the listener into thinking that he had no

drinking problem—a denial that is characteristic of those who do.” Id.

       Dr. Patel does not deny that he was untruthful; instead, he argues that it was not a

condition of the SOC that he be truthful. Whether this was an implied obligation under

the SOC implicates the legal effect of the contract, an issue we review de novo. Yeats v.

Estate of Yeats, 90 Wn.2d 201, 204, 580 P.2d 617 (1978).

       Dr. Patel acknowledges that an implied duty of good faith and fair dealing exists

in every contract. Br. of Appellant at 17 (citing Sledge, 133 Wn.2d at 839). The implied

duty does not inject substantive terms into the parties’ contract; it requires only that the

parties perform in good faith the obligations imposed by their agreement. Badgett v. Sec.

State Bank, 116 Wn.2d 563, 569, 807 P.2d 356 (1991).

       It could hardly be clearer that to perform in good faith his obligation to follow

substance abuse treatment recommendations, Dr. Patel needed to provide truthful

information to the treatment evaluator. The trial court properly concluded that the

deferral condition was violated.

                                              9
No. 36732-1-III
State v. Patel


      Affirmed.

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.


                                                _____________________________
                                                Siddoway, J.

WE CONCUR:



_____________________________
Fearing, J.



_____________________________
Pennell, C.J.




                                           10
