                 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


                                                       )
       STATE OF WASHINGTON,                            )         No. 68826-0-1
                                                       )
                               Respondent,             )         DIVISION ONE
                                                       )
                        v.                             )
                                                       )
    ^GjHRlSTOPHER A. MILLER,                           )         PUBLISHED

r.^M °"*                       Appellant.              )         FILED: December 16,2013
—;oT?i:


 izf=? q         Cox, J. — Christopher Miller appeals the revocation of the special sex
-oS       Clr>
^ CO      Sa
°      offender sentencing alternative (SSOSA) of his suspended sentence. The trial

       court revoked this SSOSA because Miller failed to commence sexual deviancy

       treatment within 90 days of his release from confinement, as required by his

       sentence. Miller claims this revocation violated his due process and equal

       protection rights. Because the trial court did not abuse its discretion in revoking

       this SSOA, we affirm.

                 In 2010, Miller pleaded guilty to one count of first degree rape of a child.

       As a first-time offender, he submitted to a forensic psychological evaluation to

       determine his suitability for a SSOSA.

                 In 2011, without objection from the State, the sentencing court granted

       Miller a SSOSA and ordered 12 months of confinement with 93 months to life

       suspended. One of the SSOSA conditions was that Miller commence sexual

       deviancy treatment "within 90 days from the Defendant's release from jail."

       When the trial court granted the SSOSA, it made clear that Miller was

       responsible for paying for this treatment.
No. 68826-0-1/2


       In January 2012, Miller was released from jail. Approximately a week

later, the State informed the court that he did not have a stable residence. Miller

told his correctional officer that he thought that he was going to be able to live

with his father. But the mobile home park that his father lived in would not accept

him as a resident. The trial court found no violation of any SSOSA condition at

that point, but it ordered Miller to check in daily with his correctional officer.

       A month later, the State moved to revoke Miller's SSOSA. Miller's

correctional officer reported that Miller checked in with her daily and had applied

for benefits. But she also testified that Miller continued to not have a stable

residence and that he did not have enough money to pay for sexual deviancy

treatment. The trial court granted Miller 30 days to show compliance with the

SSOSA condition for treatment.

       The State renewed its motion to revoke the SSOSA. In May 2012, the trial

court heard testimony from Miller, his correctional officer, and the jail transition

coordinator. At the end of the hearing, the trial court gave its oral ruling. It

revoked Miller's SSOSA and imposed 93 months of confinement because he was

not then in sexual deviancy treatment, as the sentence required.

       The trial court later entered its written findings of fact and conclusions of

law. The trial court found that Miller did not have the financial resources to

commence treatment at the mandated level. It also found that he would not have

the resources to commence treatment within a reasonable amount of time.

       The court did not make any determination whether the failure to comply

with the sentencing condition was willful.
No. 68826-0-1/3



       Miller appeals.

                            REVOCATION OF SSOSA

       Miller argues that the trial court abused its discretion in revoking his

SSOSA, violating his rights to due process and equal protection. We disagree.

       "A SSOSA sentence may be revoked at any time ifthere is sufficient proof

to reasonably satisfy the court that the offender has violated a condition of the

suspended sentence or failed to make satisfactory progress in treatment."1
       "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."2 "An abuse of discretion occurs only when the decision of the court is

'manifestly unreasonable, or exercised on untenable grounds, or for untenable

reasons.'"3

       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.4 "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.'"5


       1 State v. McCormick, 166 Wn.2d 689, 705, 213 P.3d 32 (2009).

       2]d, at 705-06.
       3 la\ at 706 (quoting State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482
P.2d 775 (1971)).

       4 RCW 9.94A.670(2).

       5 State v. Goss, 56 Wn. App. 541, 544, 784 P.2d 194 (1990) (quoting D.
Boerner, Sentencing in Washington § 2.5(c) (1985)).
                                               3
No. 68826-0-1/4



       Under RCW 9.94A.670(11), "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." As the supreme court has noted, the plain

language of this provision does not require that a trial court find that a violation of

either of the above conditions was willful in order to revoke the suspended

sentence.6

       Nonetheless, the United States Supreme Court has recognized

"substantive"7 protections when an offender's probation is revoked because he or

she failed to pay imposed fines or restitution.8
       In Bearden v. Georgia, the State charged Danny Bearden with felonies of

burglary and theft.9 Georgia's trial court sentenced him to three years of
probation for the burglary charge and a concurrent year of probation for the theft

charge.10 One of the conditions to his probation was that he pay a $500 fine and



       6 McCormick, 166 Wn.2d at 697-98 (citing former RCW
9.94A.120(8)(a)(vi), which contains identical language to RCW 9.94A.670(11)).

       7 See Black v. Romano. 471 U.S. 606, 611, 105 S. Ct. 2254, 85 L. Ed. 2d
636 (1985) (citing Bearden v. Georgia, 461 U.S. 660, 103 S. Ct. 2064, 76 L. Ed.
2d 221 (1983)) (explaining that the Bearden court "recognized substantive limits
on the automatic revocation of probation where an indigent defendant is unable
to pay a fine or restitution").

       8 McCormick, 166 Wn.2d at 700 (citing Bearden, 461 U.S. at 666).

       9 461 U.S. 660, 662, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983).

       10 Id
                                              4
No. 68826-0-1/5


$250 in restitution.11 Bearden borrowed some money from his parents to partially
pay these obligations, but he was laid off from his job before he could pay the

remaining balance.12 The record showed that Bearden, who had "only a ninth
grade education and [could not] read, tried repeatedly to find other work but was

unable to do so."13 The trial court revoked his probation because he failed to pay

the full amount he owed.14

      The Court began with acknowledging that it has "long been sensitive to

the treatment of indigents in our criminal justice system."15 The Bearden Court
explained that the question presented was "whether a sentencing court can

revoke a defendant's probation for failure to pay the imposed fine and restitution,

absent evidence and findings that the defendant was somehow responsible for

the failure or that alternative forms of punishment were inadequate."16
       In its analysis of this issue, the Court explained that due process and

equal protection principles "converge."17 In determining what protections should
be afforded to an offender when the State seeks to revoke his or her probation

based on a failure to pay an imposed fine or restitution, the Court engaged in "a


       11id.

       12 id. at 662-63.

       13 id.
       14 id. at 663.

       15id. at 664.

       16 id. at 665.

       17 Id.
No. 68826-0-1/6


careful inquiry into such factors as 'the nature of the individual interest affected,

the extent to which it is affected, the rationality of the connection between

legislative means and purpose, [and] the existence of alternative means for

effectuating the purpose . . . .'"18
       After examining the interests of Bearden and the State, the Court held that

due process and equal protection principles require that a trial court "inquire into

the reasons" why a probationer has failed to pay fines or restitution.19
                Ifthe probationer willfully refused to pay or failed to make
       sufficient bona fide efforts legally to acquire the resources to pay,
       the court may revoke probation and sentence the defendant to
       imprisonment within the authorized range of sentencing authority.
       If the probationer could not pay despite sufficient bona fide efforts
       to acquire the resources to do so, the court must consider
       alternative measures of punishment other than imprisonment. Only
       if alternative measures are not adequate to meet the State's
       interests in punishment and deterrence may the court imprison a
       probationer who has made sufficient bona fide efforts to pay. To do
       otherwise would deprive the probationer of his conditional freedom
       simply because, through no fault of his own, he cannot pay the fine.
       Such a deprivation would be contrary to the fundamental fairness
       required by the Fourteenth Amendment.1201
       The Court reversed the judgment and remanded so that the lower courts

could determine if Bearden had made "sufficient bona fide efforts to pay."21 And




       18 id. at 666-67 (alterations in original) (quoting Williams v. Illinois, 399
U.S. 235, 260, 90 S. Ct. 2018, 26 L. Ed. 2d 586 (1970)).

       19 id. at 672.

       20 id. at 672-73.

       21 Id. at 674.


                                               6
No. 68826-0-1/7



if so, whether an "alternate punishment" or an "alternate measure" was available

and was "adequate to meet the State's interest in punishment and deterrence."22
       In State v. McCormick, our supreme court explained the limitations to the

holding in Bearden.23 Our supreme court explained, "The Bearden Court did not
address whether a finding of willfulness was required in other settings and, if

anything, it indicated a finding of willfulness would not be required ifthe condition

is a threat to the safety or welfare ofsociety."24
       There, a SSOSA condition was at issue. Specifically, the condition

prohibited McCormick, who was convicted of first degree rape of a child, from

"'frequentfing] areas where minor children are known to congregate, as defined

by the supervising Community Corrections Officer.'"25 The trial court found that
McCormick violated this condition when he went to a food bank located on a

school's property.26
       McCormick argued that the "due process clauses of the state and federal

constitutions require the State to prove a willful violation of community custody

conditions before revoking a suspended sentence."27 The supreme court
disagreed.



       22
            Id.

       23
            166Wn.2d689, 7(

       24
            id.

       25
            id. at 693.
       26
            id. at 696.
       27
            Id. at 699.
No. 68826-0-1/8



       The court "conducted] a careful inquiry" into the factors that Bearden

identified.28 As noted above, these factors included "the nature of the individual

interest affected, the extent to which it is affected, the rationality of the

connection between the legislative means and purposes, and the existence of

alternative means for effectuating the purpose."29 After conducting this inquiry,
the court concluded:


       Given the State's strong interest in protecting the public,
       McCormick's diminished interest because of his status as a
       convicted sex offender serving a SSOSA sentence, and that
       McCormick's proposed scenario leads to dangerous situations
       where McCormick can frequent places where minors are known to
       congregate, due process does not require the State to prove that
       McCormick willfully violated the condition.[30]
Unlike Bearden. the trial court in McCormick did not have to "inquire into the

reasons" why McCormick violated the condition.31 The court based this
conclusion on the fact that the violation of this condition was a "threat to the

safety or welfare ofsociety."32
       Here, the SSOSA condition at issue is both similar to and different from

the conditions in McCormick and Bearden. As noted above, one of Miller's

SSOSA conditions required that he commence sexual deviancy treatment "within




       28 id. at 701-02 (citing Bearden, 461 U.S. at 666-67).
       29 id. (citing Bearden, 461 U.S. at 666-67).

       30 id. at 703.

       31 Compare jd. at 705, wjth Bearden, 461 U.S. at 672.

       32 McCormick, 166 Wn.2d at 701, 706.

                                               8
No. 68826-0-1/9


90 days from the defendant's release from jail." Additionally, Miller was

ultimately responsible for paying for this treatment.

           Like McCormick, a violation of Miller's condition is a threat to the safety

and welfare of society. Sexual deviancy treatment will help ensure that Miller will

not reoffend, and the ability to participate in treatment and rehabilitate is the

purpose ofgranting a SSOSA.33 But, unlike McCormick, Miller's condition
involves a financial burden.

           In contrast, Miller's condition is like the condition in Bearden because that

condition involved a financial burden—payment of fines and restitution. But,

unlike Bearden, Miller's condition related to the safety and welfare of society.

           Thus, the issue is whether the trial court properly exercised its discretion

when it revoked Miller's SSOSA for failing to participate in sexual deviancy

treatment, which he had to pay for, without considering whether the violation was

willful.

           As noted above, whether a finding of willfulness is required begins with a

"careful inquiry" into the interests affected.34 Here, we consider Miller's and the
State's interests respectively.

           Miller has an interest in being "punished only when he acted willfully in

violating the terms of his probation" like the probationer in McCormick.35 As the
McCormick court explained, this "interest comes from the idea that a person is


           33 See Goss. 56 Wn. App. at 544.

           34 McCormick, 166 Wn.2d at 701-02 (citing Bearden, 461 U.S. at 666-67).

           35 id. at 702.

                                                  9
No. 68826-0-1/10


punished only for the acts within his or her control."36 "That interest is affected if
the State does not have to prove McCormick acted willfully."37

       Additionally, Miller argues that he has a significant interest in remaining on

probation.38 Specifically, he argues that under Bearden, he has an interest in not
having his SSOSA revoked because of his "involuntary indigency."39 He
contends that revoking his SSOSA based on his inability to pay for treatment is

"'punishing a person for his poverty.'"40
       The State has "'an important interest in protecting society, particularly

minors, from a person convicted of raping a child,'" as the McCormick court also

recognized.41 "That interest is rationally served by imposing stringent conditions
related to the crime" that Miller committed."42 Here, the condition that required

Miller to participate in sexual deviancy treatment serves as a way to prevent

Miller from reoffending.43 But requiring Miller to pay for the treatment when he
cannot afford it does not necessarily serve this purpose.




       36 id.

       37 id.

       38 Brief ofAppellant at 25 (citing Bearden, 461 U.S. at 671).

       39 id. at 23-26.

       40 id. at 25 (quoting Bearden, 461 U.S. at 671).
       41 Brief of Respondent at 11 (quoting McCormick, 166 Wn.2d at 702).

       42 McCormick, 166 Wn.2d at 702.

       43 See id.


                                              10
No. 68826-0-1/11


       Because Miller's ability to pay for the treatment determines if he can fulfill

the SSOSA condition, the rule announced in Bearden controls here: "[l]f the

probationer has made all reasonable efforts to pay [for treatment], and yet cannot

do so through no fault of his own, it is fundamentally unfair to revoke probation

automatically without considering whether adequate alternative methods of

punishing the defendant are available."44 "This lack offault provides a
'substantial reaso[n] which justifie[s] or mitigate[s] the violation and [could] make[]

revocation inappropriate."45 Our task, then, is to determine whether the trial court
in this case fulfilled its obligation under this rule.

       Here, the trial court inquired into the reasons why Miller was not in

treatment and why he could not pay for treatment. The court appeared to

acknowledge that Miller was willing to undergo treatment but was unable to pay

for it. It stated, "[l]t is regrettable that people find themselves in positions such as

Mr. Miller where they lack financial assistance or the financial means to get into

treatment."46 In its written findings, the trial court stated:

       The defendant has dismal prospects for employment. It is likely the
       only way the defendant would ever be able to pay for sexual
       deviancy treatment would be with public assistance. It is unknown
       if the defendant would be eligible for benefits (SSI) which could
       potentially pay for treatment. In any case, the earliest the
       defendant would receive benefits from SSI would be 12 months
       after release from jail.[47]

       44 Bearden, 461 U.S. at 668-69.

       45 jd. at 669 (some alterations in original).

       46 Report of Proceedings II (May 8, 2012) at 11.

       47 Clerk's Papers at 7.

                                                 11
No. 68826-0-1/12




The trial court acknowledged that Miller tried to find employment but was unable

to do so. The court further explained that Miller's family members initially led the

court to believe they could help pay for treatment but that was no longer the

case. As Bearden requires, the trial court impliedly acknowledged that Miller

made bona fide efforts to pay for treatment but was unable to do so.

       The trial court then properly considered whether there were alternative

forms of punishment other than incarceration.48 It noted in its oral ruling that
Miller was receiving free mental health treatment, but it would not replace the

sexual deviancy treatment. In its written findings, the trial court found that the

fact that Miller was not in sexual deviancy treatment increased the risk that Miller

would reoffend. Consequently, this mental health treatment was not an adequate

alternative measure to meet the State's interest in punishment and deterrence.49
       Because Miller was not receiving sexual deviancy treatment for which he

had to pay and there were no adequate alternative measures, the trial court did

not abuse its discretion when it revoked Miller's SSOSA. Although the trial court

needed to inquire into the reasons why Miller was not participating in treatment

that he had to pay for, the court did not need to find that Miller's failure was willful

in order to revoke the SSOSA.

       Miller argues that the court's finding that "if Mr. Miller remained in the

community without sexual deviancy treatment, Mr. Miller posed a 'significant risk



       48 See Bearden, 461 U.S. at 672.

       49 Id. at 672-73.


                                               12
No. 68826-0-1/13


to re-offend'. . . was not supported by substantial evidence."50 But this argument
is not supported by the record.

       This court reviews findings of fact for substantial evidence.51 Substantial
evidence is "evidence sufficient to persuade a fair-minded, rational person of the

truth ofthe declared premise."52
       Here, the Report of Forensic Psychological Evaluation, which was before

the trial court, stated that Miller's "long-term risk of sexual recidivism falls in the

low-moderate range."53 Specifically, "On an actuarial basis, persons with history
similar to Mr. Miller's have a probability of sexual reoffending of .09 over 5 years,

.13 over 10 years, and .16 over 15 years."54 It recommended that Miller enter
into sexual deviancy treatment for a period not less than three years. The report

explained that "[treatment objectives should include relapse prevention."55
       Given this report, substantial evidence supports the trial court's finding

that Miller was at risk for reoffending if he was not in sexual deviancy treatment.

Miller's arguments to the contrary are not persuasive.




       50
            Brief of Appellant at 30.

       51 Sunnvside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 879, 73 P.3d
369 (2003).

       52 Price v. Kitsap Transit. 125 Wn.2d 456, 464, 886 P.2d 556 (1994).

       53 Clerk's Papers at 105.

       54jd.

       55 Id. at 106.


                                                13
No. 68826-0-1/14


       Miller also makes separate due process and equal protection arguments

in his opening brief. But, as discussed above, the Supreme Court has explained

that due process and equal protection principles converge for this type of issue.56
Thus, there is no separate evaluation of these constitutional provisions for

purposes of this issue.

       In sum, even though the trial court did not explicitly apply the rule in

Bearden, it followed the principles of that case. The court inquired into the

reasons why Miller was not in sexual deviancy treatment and why he could not

pay for this treatment. Because there were no adequate alternative measures,

the court properly exercised its discretion in revoking the SSOSA in this case.

       We affirm the orders revoking the SSOSA.




                                                                      a
WE CONCUR:




       56 See Bearden, 461 U.S. at 665.


                                             14
