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


STATE OF WASHINGTON,                               )           No. 80248-8-I
                                                   )
                     Respondent,                   )           UNPUBLISHED OPINION
                                                   )
             v.                                    )
                                                   )
ROBERT GLEN REED,                                  )
                                                   )
                     Appellant.                    )
                                                   )

      ANDRUS, A.C.J. – Robert Reed appeals a decision terminating his

participation in a drug court program after he admitted forging documents in

violation of his participation agreement.           Reed’s dismissal from the program

resulted in a conviction for possession of a stolen vehicle. Reed contends that the

trial court erred in applying an abuse of discretion standard when evaluating the

drug court’s termination decision. Although we agree the abuse of discretion

standard was not applicable under the terms of Reed’s agreement with the State,

we nevertheless affirm the termination decision as reasonable.

                                           FACTS

      In May 2018, Robert Reed was charged with possession of a stolen vehicle.

In November of that year, the trial court granted the State’s motion to transfer the




     Citations and pin cites are based on the Westlaw online version of the cited material.
No. 80248-8-I/2


matter to the Snohomish County Drug Court Program to assess Reed’s eligibility. 1

On January 16, 2019, Reed signed an agreement to enter the Snohomish County

Adult Drug Treatment Court program (ADTC). Under the terms of this ADTC

agreement, Reed agreed to attend all treatment and court sessions as ordered by

the drug court. He also agreed to follow the treatment plan developed by the ADTC

treatment provider and to participate in all other programs, including sober support

meetings, to which he was referred by the court or the treatment team. A section

of the agreement, entitled “Participant’s Responsibilities and Agreements,” stated

that “any failure . . . including, but not limited to: positive, unable to produce, missed

or dilute urinalysis tests, missed treatment, missed court appearances, any failure

to abide by the terms of this agreement, or commission of a new crime, may result

in . . . termination from the ADTC.”              The agreement further provided that

“Dishonesty (forgery, lying, omission of information) may result in termination from

ADTC.” Under the section entitled “Sanctions,” Reed agreed to the following:

        I understand that if I fail to follow any of the terms of this agreement,
        the ADTC Judge may impose sanctions on me, which can include,
        but are not limited to:

        -Termination from the program (which means being convicted and
        sentenced to the term prescribed by law for the original felony
        charge)

        In exchange for his participation in the ADTC, Reed waived his right to a

speedy trial and to a jury trial on the underlying charge. In the event Reed was

terminated from the ADTC, he stipulated to the admissibility of police reports and



1
  Pleadings from 2018 refer to this program as the CHART Treatment Court, an acronym for
“Choosing Healthy Alternatives– Recovery and Treatment.” The trial court, however, later referred
to the program as the Adult Drug Treatment Court or ADTC.

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to the affidavit of probable cause to establish his guilt. He understood that the

judge would read these documents and, based solely on that evidence, decide if

he is guilty of the charged crime. Reed acknowledged that it was “very likely” the

judge would find him guilty and would likely sentence him to 57 months’

confinement, the State’s recommended sentence in the event of termination.

      The ADTC agreement outlined a termination and review process:

      In addition, I understand the Team may, at any time during the
      program, decide to terminate me from ADTC Court for non-
      compliance or my violation of any of these agreements. The
      termination decision will ultimately be made by the Judge, taking into
      consideration the entire team's recommendations.

      If I disagree with that decision, I may request a full adversarial
      hearing which would be scheduled before a different judge at which
      time the prosecutor would be required to prove the program
      violations or circumstances that warrant termination by a
      preponderance of the evidence and I would have the right to be
      represented by counsel at no cost if I could not afford to hire an
      attorney.

In a section entitled “Procedure on Defendant’s Breach or Failure to Comply with

the ADTC Program,” the agreement provided:

      The prosecutor reserves the right to prosecute the Defendant upon
      any termination from ADTC in accordance with the procedures in
      State v. Marino, 100 Wn.2d 719, 647 P.2d 171 (1984) and State v.
      Kessler, 75 Wn. App. 634, 879 P.2d 333 (1994).

      I understand that I will have the right to a hearing by a drug court
      judge who was not party to the decision to terminate me, as to
      whether I did the act which prompted the team to decide to terminate
      me, but whether termination is the appropriate sanction lies in the
      sole discretion of the team, and cannot be reviewed at the due
      process hearing.




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The agreement defined the “ADTC team” as “the prosecutor, Judge, ADTC

coordinator, or ADTC treatment provider” and noted that any team member could

request that Reed be removed from the program.

      Reed asked the trial court to approve this agreement, to waive his presence

at informal staffing discussions before on-the-record status hearings, and to order

that these informal staffing discussions not occur in open court. The court entered

a set of findings of fact and conclusions of law, pursuant to State v. Bone-Club,

128 Wn.2d 254, 260, 906 P.2d 325 (1995) (the Bone-Club Order), concluding that

any staffing decisions concerning Reed’s progress in treatment and his compliance

with program requirements would not occur in open court due to Reed’s request

and his compelling privacy interest. Scheduled status hearings involving Reed

were ordered to occur in open court and on the record, giving Reed the right to be

heard and participate. Any decisions related to sanctions would be announced in

the open court hearings. The court further concluded:

      In the event of a recommendation to terminate the defendant from
      ongoing participation in ADTC, he/she shall be given the opportunity
      for a fully contested adversarial hearing before an independent
      judge, at which time the defendant will be present and represented
      by counsel and afforded the opportunity to be heard, and the
      prosecutor will bear the ultimate burden of proof by a preponderance
      of the evidence of sufficient violations or program noncompliance to
      warrant termination.

      Reed missed a scheduled urinalysis test on January 27, 2019.            At a

February 1, 2019 hearing, the trial court found Reed in violation of the ADTC

agreement and sanctioned him to 8 hours of community service.            During a

subsequent February 8, 2019, hearing, the court found Reed to be in further

violation of the drug program rules because he had failed to submit sober support

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No. 80248-8-I/5


meeting slips, 2 missed a treatment appointment, and failed to comply with the

sanction imposed on February 1. As a result, the court imposed a sanction of 16

hours of community service, a “graduated” sanction consisting of the original

sanction and an additional sanction for noncompliance with the original sanction,

and it required that he attend daily self-help meetings.

        During the period between February 8 and February 22, 2019, Reed was

excused from a meeting due to illness, and the treatment agencies were closed

for several days due to inclement weather. Reed appeared for a February 22

hearing but had not completed any of the community service hours. He had,

however, turned in a sober support meeting slip to his treatment team, identifying

dates on which he purportedly attended these meetings.

        Before the hearing, Reed’s treatment team examined the sober support

meeting slip, noticing that the dates on the slip were future dates that had not yet

occurred. His case manager, Laura Whitaker, noted that “it was very clear that the

meetings were not accurate, that they were forged, because the dates had not yet

occurred.” During the February 22 hearing, Reed admitted to forging the slip.

Reed was then taken into custody until his treatment team reached a decision.

Reed’s treatment team made the decision to terminate him from the program on

March 8, 2019, and Judge Marybeth Dingledy signed an order terminating him

from the program.




2
  Under the ADTC Participant Manual, Reed was required to attend and participate in three sober
support meetings each week. He was required to provide his treatment provider with slips verifying
his attendance at the meetings each week. Per the manual, failure to turn in a verification slip may
result in a sanction.

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         On March 15, 2019, Reed sought review of the March 8 termination

decision. Reed’s counsel conceded that Reed had forged the sober support

meeting slip. But Reed contended the violation was not sufficient to warrant

termination from the ADTC. Reed maintained that the State had to prove, by a

preponderance of evidence, that he had not only breached the ADTC agreement

but that the breach was serious enough under the circumstances to make

termination appropriate.

         The State argued that once it proved a contractual violation by a

preponderance of the evidence, the judge only needed to review the termination

decision for abuse of discretion, citing to this court’s unpublished decision in State

v. Knight, No. 75648-6-I, noted at 196 Wn. App. 1060 (2016).

         Reed argued in the alternative that even if the decision was reviewed under

an abuse of discretion standard, the court’s decision to terminate Reed from drug

court was manifestly unreasonable because Reed had immediately admitted to

forging the meeting slip, and the February 2019 weather made it impossible for

Reed, who was homeless, to attend the required meetings and complete his

community service hours.

         After a contested evidentiary hearing on May 9, 2019, the reviewing court

ruled:

                 The team, over the course of three weeks, had engaged in
         discussions about what to do with the forgery, and, ultimately, Judge
         Dingledy decided to terminate Mr. Reed. My job, as a reviewing
         court, is, frankly, fairly narrow. It does not require me to substitute
         my judgment for that of Judge Dingledy or the team. My job is to
         determine whether the facts are sufficient to support the termination
         and whether the decision is an abuse of discretion.



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                The termination below is supported by substantial evidence.
        I think the standard is by a preponderance. The -- it's -- it's a sanction
        that is contemplated in the contract and contemplated in best
        practice, contemplated by the sanctions and incentives grid that has
        been adopted by adult drug court.

                ...

                  I think if you balance that on the whole with Mr. Reed's history
        that is known -- or was known to drug court -- to the drug court team,
        . . . . I can't find, frankly, that the decision by Judge Dingledy to be
        an abuse of discretion.

               I think, in weighing of all the pros and cons, it supports the
        termination of Mr. Reed. And so I will affirm the termination of --
        decision by the adult drug court judge to terminate Mr. Reed.

        In its subsequent written findings of fact and conclusions of law, the

reviewing court found that Reed signed an agreement acknowledging that he could

be terminated for dishonesty, using forgery as an example of dishonesty, that he

submitted a weekly sober support meeting slip to his ADTC team, and that the slip

included dates in the future that Reed clearly could not have attended. Moreover,

the reviewing court found that although Reed did not at first admit that he forged

his documentation, he later acknowledged that the slip was forged. The court

further found that the team spent three weeks discussing how to respond to Reed’s

forgery. And it found that the team ultimately decided to terminate Reed from the

program after a consideration of his history, the “NADCP Best Practices, 3 and the

program’s sanctions and incentive grids.” 4 The court then “weighed Mr. Reed’s

short time in the program and the fact that he was not fully stable against


3
  National Association of Drug Court Professionals, Adult Drug Court Best Practice Standards,
https://www.nadcp.org/standards/adult-drug-court-best-practice-standards/
4
 The ADTC maintains a published “Adult Drug Court Incentive Grid” and an “Adult Drug Court
Sanction Grid” that identify a range of options for various types of program violations.

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Mr. Reed’s history, including DOSA, Thinking for a Change, Inpatient Treatment,

Outpatient Treatment, and his level of sobriety at the time.” It concluded “that the

termination decision is supported by the evidence and the Court cannot find that

[the drug court judge’s] decision was an abuse of discretion.”

       The court subsequently found Reed guilty of possession of a stolen vehicle

and sentenced him to 57 months’ confinement. Reed appeals his termination from

the ADTC.

                                    ANALYSIS

       Reed argues that the reviewing court failed to apply the correct burden of

proof in evaluating the evidence leading to his termination from drug court. He

contends that under the Bone-Club Order, the State had to prove, by a

preponderance of evidence, that Reed violated the ADTC agreement and that the

violation warranted termination from the program. He maintains that the abuse of

discretion standard was inappropriate here.

       We agree with Reed that neither his ADTC agreement nor the Bone-Club

Order made a termination decision subject to an abuse of discretion standard. We

also agree that the trial court erred in reviewing the termination through this lens.

But under well-established case law, whether Reed’s admitted violation warranted

termination is a question of law that we review de novo. See State v. Kessler, 75

Wn. App. 634, 639, 879 P.2d 333 (1994). In light of the undisputed facts, we

conclude that the decision to terminate Reed was reasonable as a matter of law.

       Reed’s ADTC agreement contained two provisions relating to his possible

termination from the program. The first provided:



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       I understand the Team may, at any time during the program, decide
       to terminate me from ADTC Court for non-compliance or my violation
       of any of these agreements. The termination decision will ultimately
       be made by the Judge, taking into consideration the entire
       [treatment] team’s recommendations.

       If I disagree with that decision, I may request a full adversarial
       hearing which would be scheduled before a different judge at which
       time the prosecutor would be required to prove the program
       violations or circumstances that warrant termination by a
       preponderance of the evidence.

The second provision, under the heading of “Procedure on Defendant’s Breach or

Failure to Comply with the ADTC Program,” provided:

       The prosecutor reserves the right to prosecute the Defendant upon
       any termination from ADTC in accordance with the procedures in
       State v. Marino, 100 Wn.2d 719, 647 P.2d 171 (1984) and State v.
       Kessler, 75 Wn. App. 634, 879 P.2d 333 (1994).

       I understand that I will have the right to a hearing by a drug court
       judge who was not a party to the decision to terminate me, as to
       whether I did the act which prompted the team to decide to terminate
       me, but whether termination is the appropriate sanction lies in the
       sole discretion of the team, and cannot be reviewed at the due
       process hearing.

The referenced “procedures” in Marino and Kessler are the due process

requirements our Supreme Court and this court have imposed on decisions to

terminate participation in pre-prosecution diversion programs.       In Marino, the

Supreme Court held that a defendant has a due process right to an independent

determination that the deferred prosecution agreement was violated, with the State

bearing the burden of proving the violation by a preponderance of evidence. 100

Wn.2d 719, 725, 647 P.2d 171 (1984). Once that factual determination is made,

the court reviews a termination decision for its reasonableness in light of the facts

found by the court at the hearing. Id.



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      In Kessler, this court held that this reasonableness determination is a legal

conclusion, or a mixed question of fact and law, to be reviewed on appeal de novo.

75 Wn. App. at 639. The question “is analogous to the determination in a breach

of contract case of whether a breach is material thus warranting a remedy.” 75

Wn. App. at 640-41.       It affirmed Kessler’s termination from a pretrial sexual

deviancy diversion program for failing to report contact with his crime victim and

lying about it when confronted. Id. at 640. Applying a de novo standard of review,

the court deemed this conduct to be a material breach because “it was essential

to the treatment regimen that Kessler break the habit of being secretive and

dishonest about his conduct.” Id. at 641.

      The provision in Reed’s agreement making a termination decision non-

reviewable in a due process hearing is in direct conflict with the protections

provided by Marino and Kessler—cases explicitly referenced in Reed’s agreement.

The test under Marino is whether the decision is reasonable, and that decision is

explicitly reviewable under a de novo standard under Kessler. Although one can

waive procedural due process protections, Reed did not do so here, given the

State’s express intent to follow the procedures of Marino and Kessler.         We

therefore deem invalid the provision in Reed’s agreement making the termination

decision non-reviewable. We further conclude that the applicable standards are

those set out in Marino and Kessler. Those are the procedures to which these

parties agreed. And neither case sets out an abuse of discretion standard for

reviewing a sanction imposed by a drug court. The reviewing court thus did err in

applying that standard.



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        Both Reed’s agreement and the Bone-Club Order placed the burden on the

State to show, by a preponderance of the evidence, that Reed committed violations

that warranted termination. 5 Whether Reed committed a violation is, as both

parties agree, a question of fact.          The reviewing court found that Reed had

expressed a desire to improve his honesty and was told that one of the most

important rules in drug court was to be honest. It also found that in February 2019,

Reed submitted a slip for his weekly sober support meetings, which included dates

in the future that he clearly could not have attended. Reed did not at first admit

that he forged the documentation but later acknowledged the slip was forged.

Reed has not assigned error to any of the reviewing court’s findings of fact, and

they are thus deemed true on appeal. Cowiche Canyon Conservancy v. Bosley,

118 Wn.2d 801, 808, 828 P.2d 549 (1992).

        The record supports a finding Reed’s act was a violation of the ADTC

agreement and program requirements.                The agreement required Reed to be

honest “regarding all aspects of my life while in ADTC.” It explicitly identified

dishonesty and forgery as bases for termination from the program. The ADTC

Participant Manual similarly provided that the failure to attend sober support

meetings “and/or forging your sober support slip may result in a sanction up to and

including termination from ADTC.” There is no dispute that the State met its burden

of proof that a violation occurred.




5
 Reed argues that there is a conflict between the procedures or burden of proof provisions of the
agreement and those in the Bone-Club Order. We reject this argument. The language in both is
almost identical in wording and we see no conflict between the two documents.

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        Reed argues that the State failed to prove that his admitted forgery was

serious enough to warrant termination. But under Kessler, whether a termination

decision is reasonable—or, stated another way, whether Reed’s violation was a

material breach of his participation agreement—is a question of law, not a question

of fact. Thus, even if the reviewing court incorrectly applied an abuse of discretion

standard in evaluating the termination decision, we would still review that decision

de novo. 6

        After reviewing the evidence presented below, we conclude that the

decision to terminate Reed from the ADTC was reasonable because Reed’s

dishonesty was a material violation of his participation agreement. Whitaker,

Reed’s case manager and the ADTC program coordinator, testified that she

screened and monitored Reed’s case throughout his time in the program. After

Reed was deemed eligible for the program, Whitaker met with Reed to discuss the

ADTC agreement. Reed admitted that he reviewed the agreement before entering

the program and understood its terms. Reed confirmed he understood he could

be terminated for violating the agreement.                 The agreement explicitly made

dishonesty, mentioning forgery, as a basis for termination from the program.




6
  We recognize that in State v. Knight, this court held the decision to terminate someone from drug
court is left to the trial court’s discretion. 196 Wn. App. 1060 at *1. But Knight is an unpublished
case and has no precedential value. GR 14.1(a). Moreover, the decision itself does not discuss
the terms of the drug court contract Knight signed. We do not know if Knight’s contract incorporated
the procedures set out in Kessler, as Reed’s agreement did. Additionally, the parties in Knight
agreed that the trial court had the discretion to determine whether to terminate a participant from
the program and that the standard of review was abuse of discretion. 196 Wn. App. at *1. No
similar agreement exists here.

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       Reed also received a copy of the ADTC Participant Manual. This handbook,

like the agreement, clearly stated that failing to attend sober support meetings or

forging meeting slips may result in termination from ADTC.

       And on February 8, 2019, Reed submitted a sober support meeting slip that

indicated he had attended daily meetings from February 23 through February 29,

all dates in the future. The team confronted Reed regarding the dates on the slip

in open court at a status hearing. The team felt that it was important to try to elicit

an honest response because “honesty is an integral part of [the] program.” When

the drug court judge asked Reed if he had anything to share about the meeting

slip, he was initially dishonest with the court. When confronted with the dates,

however, he admitted that he had not in fact attended some of the meetings listed

on his slip. After some prompting by the judge, he told the court he had forged the

dates because he was scared of going to jail.

       Leesha Shafford, a certified chemical dependency counselor with Catholic

Community Services, testified that when she first met with Reed to discuss starting

intensive outpatient treatment, she reiterated her expectations that he would “show

up and be honest.”      These two expectations are, according to Shafford, the

cornerstones of the program because the absence of participation and honesty

further perpetuates addiction and is incompatible with the treatment program. After

Reed submitted the forged meeting slip, the ADTC team discussed what type of

sanction to impose and how to deal with his dishonesty. According to Shafford

and Katherine Shiner, a drug court coordinator, the team decided that Reed’s




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dishonesty led them to conclude termination was the best option, because honesty

was the “foundation of recovery.”

      We conclude that terminating Reed for being dishonest with his treatment

team and the drug court was reasonable. Kessler is instructive in determining the

materiality of Reed’s forgery and lack of candor with the court. In that case, this

court held that Kessler’s dishonesty regarding his contacts with his crime victim

was a material violation of his diversion agreement because “it was essential to his

treatment regimen that Kessler break the habit of being secretive and dishonest

about his conduct.” 75 Wn. App. at 641. As in Kessler, Reed’s drug court team

described the importance of honesty with Reed when he entered the program, the

witnesses explained to the reviewing court why honesty was so foundational to the

treatment regimen, and the program documentation put Reed on notice that

forging sober support meeting slips was a terminable offense.         Under these

circumstances, the reviewing court’s findings of fact support the legal conclusion

that terminating Reed from the drug court program was reasonable.

      Affirmed.




WE CONCUR:




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