 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                     DIVISION ONE

 In the Matter of the Personal Restraint
 Petition of                                     No. 78894-9-I



 KYLE CHRISTOPHER BUCKINGHAM,                    UNPUBLISHED OPINION

                        Petitioner.              FILED: January 27, 2020

       VERELLEN, J.   —   In this personal restraint petition, Kyle Buckingham seeks

relief from a trial court order entered more than ten years ago revoking his

suspended special sexual offender sentence alternative (SSOSA) sentence.

Buckingham contends that he is entitled to a new hearing because, more than

eight years after the revocation, some of his SSOSA conditions were determined

to be unconstitutional or invalid. But the revocation was largely based on

Buckingham’s violations of sex offender treatment requirements, SSOSA

conditions that were not invalidated. In these circumstances, Buckingham

cannot meet his burden to establish constitutional error that has resulted in actual

and substantial prejudice, or nonconstitutional error that has resulted in a

fundamental defect which inherently results in a complete miscarriage of justice.

We deny the petition.
No. 78894-9-1/2

                                        FACTS

           In 2007, the State charged 21-year-old Kyle Buckingham with rape of a

child based on allegations that he raped his girlfriend’s 4-year-old daughter.1

The trial court convicted him after he agreed to a bench trial upon stipulated

documentary evidence.

           In March 2008, consistent with the recommendation in the presentence

investigation report, the court imposed a SSOSA sentence with a minimum term

of 93 months. The court ordered 12 months of confinement and suspended the

remaining 81 months. Following the term of confinement, the judgment provided

for Buckingham to be placed on community custody under the supervision of the

Department of Corrections (DOC). The judgment and sentence also required

Buckingham to undergo and successfully complete two years of sex offender

treatment. In an appendix attached to Buckingham’s judgment and sentence, the

court imposed 29 conditions of sentence.

       On March 8, 2009, a year after he was sentenced, Buckingham was

released from jail. He enrolled in a sex offender treatment program. Less than

two months later, Buckingham’s community corrections officer (CCC) filed a

notice of violation alleging 15 separate violations of sentencing conditions.

According to the report, Buckingham violated his SSOSA conditions by using a

controlled substance, Vicodin, without a prescription, leaving the county without

permission, accessing a computer, accessing the Internet, having an unapproved


       Many of the underlying facts are derived from our decision in
       1
Buckingham’s prior collateral proceeding. See In re Pers. Restraint Petition of
Buckinqham, No. 74697-9, noted at 198 Wn. App. 1060 (2017).

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No. 78894-9-1/3

cellphone, viewing pornography on two occasions, staying overnight at an

unapproved residence, and violating curfew. The report also alleged that

Buckingham violated conditions of his sexual offender treatment contract by

having undisclosed and unapproved romantic relationships and sexual contact,

by accessing telephone sex lines, and engaging in sexual text messaging.

Finally, the report alleged that Buckingham was suspended from his sexual

offender treatment program. The violations were based on Buckingham’s

admissions during a polygraph examination.

      A violation hearing took place in superior court on April 30, 2009.

Buckingham was represented by counsel and admitted guilt as to each of the

violations. With regard to the sanction, Buckingham’s CCC recommended jail

time followed by a period of GPS monitoring and a requirement that Buckingham

reenter sex offender treatment. The State agreed but urged the court to impose

300 days of sanction time, whereas the CCC recommended 150 days. The

defense agreed with the CCO’s recommended sanction.

      The court rejected the recommendations and revoked Buckingham’s

SSOSA:

               did have a chance prior to the hearing to review in detail all
      of the report from the Department of Corrections. As counsel
      knows, when I hand down a SSOSA, I typically inform the
      defendant that this is their opportunity for treatment and, if they do
      not take advantage of it, they in fact will be going to prison.

            These are not technical violations. These go to the heart of
      whether or not he has accepted the court’s admonition in terms of
      remaining away from pornography, following all the rules of the
      treatment provider, following the rules of the DCC, and it’s
      extremely disturbing to this court that it’s less than a month after he



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No. 78894-9-1/4

       was in jail for almost a year that he has some 15 separate
       violations.

                I can’t in good conscious continue to say, well, we’ll give him
       another lengthy jail time and he will learn his lesson somehow
       better the second time around. I look at somebody who just doesn’t
       get it in terms of I meant what I said. You either follow the rules or
       you go to prison.~2~

       On May 5, 2009, the court entered an order revoking Buckingham’s

sentence.

       More than seven years later, Buckingham filed a post-conviction motion,

challenging several SSOSA conditions as unconstitutional or facially invalid. The

State conceded error with respect to several conditions, and this court granted

relief. In October 2017, on remand, the trial court entered an order striking four

conditions of Buckingham’s SSOSA in full and striking portions of two additional

conditions.

       Specifically, the court struck the following SSOSA conditions on remand:

               6. Do not frequent areas where minor children are known to
       congregate, as defined by the supervising Community Corrections
       Officer.

              9. Do not possess or control any item designed or used to
       entertain, attract or lure children.

              18. Do not access the Internet on any computer in any
      location, unless such access is approved in advance by the
      supervising Community Corrections Officer and your treatment
      provider. Any computer to which you have access is subject to
      search.

             22. You may not possess or maintain access to a computer,
      unless specifically authorized by your supervising Community
      Corrections Officer. You may not possess any computer parts, or
      peripherals, including but not limited to hard drives, storage

      2   Report of Proceedings (RP) (Apr. 30, 2009) at 6.


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No. 78894-9-1/5

        devices, digital cameras, web cams, wireless video devices or
        receivers, CD/DVD burners, or any device to store [or] reproduce
        digital media or storage.[3J

The court also struck the following sentence from condition No. 7: “Do not

possess or access pornographic materials, as directed by the supervising

Community Corrections Officer” and a reference to plethysmograph examinations

in condition No. 26.~

        In 2018, Buckingham filed a motion in superior court seeking a new

revocation hearing. He argued that revocation was largely based on violations of

the condition prohibiting him from viewing or accessing pornography—one of the

conditions that was stricken from his judgment and sentence in 2017.

Buckingham characterized the other violations as “minimal.”5 He pointed out that

the trial court did not indicate that it would have revoked his sentence based

solely on his violation of conditions that were not subsequently invalidated. The

superior court transferred the motion to this court for consideration as a personal

restraint petition.6

                                     ANALYSIS

       In a personal restraint petition, the petitioner bears the burden of proof.7

Generally, to obtain relief by means of a personal restraint petition, a petitioner

must “establish that a constitutional error has resulted in actual and substantial


       ~ Buckinqham, No. 74697-9 at 3.
       4kL at 6,8.
       ~ Mtn. for New Revocation Hrg. at 3.
       6   See CrR 7.8(c)(2).
       ~ In re Pers. Restraint of Hagler, 97 Wn.2d 818, 819, 650 P.2d 1103 (1982).


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No. 78894-9-1/6

prejudice, or that a nonconstitutional error has resulted in a fundamental defect

which inherently results in a complete miscarriage of justice.”8 Where there has

been no prior opportunity for judicial review, a petitioner need only demonstrate

restraint under RAP 16.4(b) and that the restraint is unlawful under RAP 16.4(c).9

In this case, Buckingham had a prior opportunity for judicial review of the

revocation of his SSOSA, although he did not appeal the 2009 court order.1°

Accordingly, Buckingham must meet the usual standard of demonstrating actual

and substantial prejudice stemming from a constitutional error or

nonconstitutional error that inherently results in a fundamental defect and

complete miscarriage of justice.

       As to the threshold procedural issue of timeliness, the parties both

assume that RCW 10.73.090 applies and take different positions as to when

Buckingham’s criminal judgment and sentence became final. RCW 10.73.090(1)

provides that a collateral attack on a judgment and sentence in a criminal case

must be filed within one year after the judgment becomes final. But we need not

resolve the issues of whether and how RCW 10.73.090 might apply here

because, even assuming Buckingham’s petition is not time barred, he fails to

establish a basis for relief.



       8  In re Pers. Restraint of Martinez, 2 Wn. App. 2d 904, 909, 413 P.3d 1043
(2018) (quoting In re Pers. Restraint of Isadore, 151 Wn.2d 294, 298, 88 P.3d
390 (2004)).
        ~ In re Pers. Restraint of Cashaw, 123 Wn.2d 138, 148, 866 P.2d 8(1994);
RAP 16.4.
        10 See RAP 2.2; State v. Hand, 173 Wn. App. 903, 908, 295 P.3d 828 (2013)

(involving untimely appeal of an order revoking SSOSA sentence).


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No. 78894-9-117

       RCW 9.94A.670 allows a “court [to] suspend the sentence of a first-time

sexual offender if the offender is shown to be amenable to treatment.”11 Our

courts have acknowledged that the loss of a SSOSA sentence is a “significant

consequence” to a defendant.12 But even so, the governing statute,

RCW 9.94A.670(11), provides broad authority to the court to revoke a suspended

SSOSA sentence upon finding violations of SSOSA conditions or failure to make

the requisite progress in treatment:

       The court may revoke the suspended sentence at any time during
       the period of community custody and order execution of the
       sentence if: (a) The offender violates the conditions of the
       suspended sentence, or (b) the court finds that the offender is
       failing to make satisfactory progress in treatment.

       A trial court’s decision to revoke a SSOSA suspended sentence is

reviewed for an abuse of discretion.13 A court abuses its discretion when its

decision is manifestly unreasonable or exercised on untenable grounds or

reasons.14 Our case law illustrates the broad discretion of courts to revoke a

suspended SSOSA sentence based on any established violations of conditions

of the sentence.15


       ~ State v. Miller, 159Wn. App. 911, 917, 247 P.3d 457 (2011).
       12   State v. Sims, 171 Wn.2d 436, 443, 256 P.3d 285 (2011).
       13   State v. Miller, 180 Wn. App. 413, 416-1 7, 325 P.3d 230 (2014).
       14  kI. at 417 (quoting State v. McCormick, 166 Wn.2d 689, 706, 213 P.3d
32 (2009)).
        15 For instance, in State v. Miller, the defendant violated a condition of his

suspended sentence by engaging in a romantic relationship with a woman whose
minor son was blind and autistic without disclosing the relationship to his COO.
Miller, 159 Wn. App. at 915-16. Miller appealed the revocation of his SSOSA
sentence, and we concluded that the trial court did not abuse its discretion, even
though the revocation occurred nine years into the defendant’s ten-year
suspended sentence. Miller, 159 Wn. App. at 919. And in McCormick, 166

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No. 78894-9-I/S

       Buckingham fails to allege, much less establish, that the court committed

a constitutional error in revoking his sentence that resulted in actual and

substantial prejudice. Nor does he identify a nonconstitutional error that resulted

in a fundamental defect and complete miscarriage of justice. Instead, he

suggests that the underpinnings of the trial court’s decision to revoke his SSOSA

are “suspect,” given that conditions related to pornography, Internet and

computer access, and other conditions were subsequently stricken or

amended.16

       But a petitioner’s burden on collateral review generally requires more than

a showing of mere “possibility of prejudice.”17 And, as explained, Buckingham

conceded guilt as to all 15 violations. The majority of those violations, 10 out of

15, relate to conditions not implicated by the amendment of Buckingham’s

judgment and sentence. Six of the ten unaffected violations involved

Buckingham’s failure to comply with sex offender treatment and his ultimate

suspension from his treatment program. The conditions of Buckingham’s

SSOSA sentence required him to “[p]articipate and make progress in sexual

deviancy treatment” and to “[f]ollow all conditions outlined in [his] treatment

contract.”18 Far from being “minimal,” the repeated violations of his treatment


Wn.2d at 705, our Supreme Court held that the trial court did not abuse its
discretion by revoking the defendant’s SSOSA sentence after he on several
occasions violated a condition prohibiting him from frequenting locations where
minors are known to congregate.
        16 Supp. Br. of Pet. at 8.

       17 Hagler, 97 Wn.2d at 825 (quoting United States v. Frady, 456 U.S. 152,
170, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982)).
      18 Judgment & Sentence, App. A. (Mar. 19, 2008) at 2 (Condition 23).




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No. 78894-9-1/9

contract went to the core of Buckingham’s compliance with the SSOSA. The key

to the court’s decision to revoke Buckingham’s SSOSA was the court’s opinion

that he was failing to take advantage of the opportunity for treatment provided by

the SSOSA. The subsequent order amending Buckingham’s sentence does not

undermine this rationale.19

       To the extent Buckingham suggests that the order revoking his SSOSA is

not supported by sufficient evidence in light of the invalidated conditions, we

disagree.

       Disregarding the five violations pertaining to invalidated conditions,

Buckingham does not challenge the court’s findings that he committed ten

violations of conditions of sentence by consuming drugs, having unapproved

overnight visits, violating curfew, committing numerous violations of his sex

offender treatment contract, and being suspended from treatment. These

findings are verities on appeal.2° Most importantly, within two months of

engaging in sexual deviancy treatment, Buckingham admitted to six violations of

his treatment contract and was suspended from treatment. None of those



       19  Buckingham’s analogy to sentencing errors on direct review is
misplaced. See, e.g., State v. Gaines, 122 Wn.2d 502, 517, 859 P.2d 36 (1993)
(requiring resentencing where exceptional sentence premised on multiple factors
and it was unclear whether the court would have departed from the standard
range based on valid factor alone). The fact that the trial court did not expressly
state that it would have revoked the SSOSA sentence based solely on the ten
violations of SSOSA conditions not invalidated does not establish actual and
substantial prejudice stemming from a constitutional error or nonconstitutional
error resulting in a complete miscarriage of justice. Of course, a defendant
challenging a sentence on direct review does not bear these additional burdens
associated with collateral review.
        20 See State v. O’Neill, 148 Wn.2d 564, 571, 62 P.3d 489 (2003).




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No. 78894-9-1/10

conditions were invalid. The trial court did not abuse its discretion in revoking

Buckingham’s sentence based on his violations of SSOSA conditions and failure

to make satisfactory progress on treatment. Under these facts, Buckingham has

failed to meet his burden to establish that he is entitled to collateral relief. We

deny his petition.




WE CONCUR:
                                                        L~0~ o~




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