       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,                              No. 79766-2-1

                                Respondent,        DIVISION ONE

                v.
                                                   UNPUBLISHED OPINION
 CAITLIN JEAN CRAIG,

                                Appellant.


       CHUN, J. — The State charged Caitlin Craig with two counts of possession

of a controlled substance and two counts of bail jumping. Craig pleaded not

guilty to all counts and entered into an Adult Drug Treatment Court (ADTC)

agreement, which stipulated that the trial court would dismiss all charges should

she successfully complete the ADTC program. After Craig failed to appear for an

ADTC hearing, the State recommended terminating her from the program. The

trial court followed the recommendation and then convicted Craig of the four

crimes. Craig appeals, raising issues for the first time on appeal. We affirm.

                                  I. BACKGROUND

       The State charged Craig with possession of heroin in Snohomish County.

Craig failed to appear for a motion hearing and the trial court issued a bench

warrant for her arrest. The State charged Craig with bail jumping. The State

later charged Craig with possession of methamphetamine in Skagit County, and

another count of bail jumping following her failure to appear at an omnibus



  Citations and pin cites are based on the Westlaw online version of the cited material.
No. 79766-2-I/2


hearing for that charge. Police arrested Craig on the outstanding Snohomish

County warrant.

       The Snohomish County Prosecutor’s Office brought the Skagit County

charges to Snohomish County; Craig agreed not to challenge venue. The State

moved to transfer Craig to drug court. Craig agreed to participate in the ADTC

program, which, upon successful completion, would lead to the dismissal of all

four charges. As part of the ADTC agreement, Craig waived her constitutional

rights to a speedy trial and a trial by jury for the charges. The agreement also

required that Craig appear for all drug court hearings and stated that failure to do

so would warrant termination from the program. Under the agreement, if Craig

disagreed with any decision to terminate her from the program, she could request

a full adversarial hearing to contest the decision:
       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 be
       ultimately 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.

The agreement informed Craig that the State could prosecute her for the charges

if she did not complete the program:
       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


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       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 agreement also addressed the effects of termination on Craig’s underlying

charges and confirmed waiver of her rights:
       I understand . . . that if I am terminated from the ADTC Program, a
       Judge will read the affidavit of probable cause and/or police reports
       and other materials submitted by the prosecuting authority and,
       based solely upon that evidence, the Judge will decide if I am guilty
       or not guilty of the crime(s) charged herein.
       ...
       I have read or have read to me and I understand this agreement. I
       understand the rights I waive and do hereby knowingly waive these
       rights and enter into these agreements with the ADTC. I have no
       further questions to ask.

Craig signed the ADTC agreement in the presence of her counsel, who also

signed.

       After Craig failed to appear for an ADTC hearing, the trial court issued a

warrant and the police arrested her. Craig appeared at the next hearing and the

State moved to terminate her participation in the program due to her violating the

agreement’s requirement that she attend all drug court hearings. During the

proceeding, Craig did not request a hearing to challenge the State’s

recommendation to terminate her. She did not oppose the State’s motion.

Instead, Craig’s counsel confirmed that Craig had reviewed and understood the

reasons behind the State’s request to terminate her from the program. The trial

court accepted the team’s decision to terminate Craig, reasoning that she “was

on long term bench warrant since March 2, 2018, and was arrested on new

criminal law allegations.” It did not require that the State prove the violations by a



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preponderance of the evidence. And it found Craig guilty of the underlying

offenses of possession of a controlled substance and bail jumping.

       At sentencing, Craig again did not request an evidentiary hearing or object

in any way to the proceedings but instead stated that drug court “wasn’t for [her]

and [she] had planned on opting out of it when it was too late.” Craig now asks

the Court to reverse the order of termination and vacate her convictions.

                                    II. ANALYSIS

       Craig argues (1) the trial court deprived her of due process when it

terminated her from the ADTC program without holding an evidentiary hearing

and (2) insufficient evidence supports the trial court’s finding that Craig violated

the terms of the ADTC agreement. Because Craig raises these issues for the

first time on appeal, we decline to review them.

   A. Due Process

       Craig claims the ADTC agreement entitles her to an evidentiary hearing

before termination. She also argues that the trial court violated her due process

rights by failing to provide her with written notice of the alleged ADTC agreement

violations, notice as to what documents the prosecution would present to

establish the violations, and an opportunity to present evidence or confront

adverse witnesses to contest the violations. Craig claims that the ADTC

agreement guaranteed her these procedures when it stated the trial court would

terminate Craig in accordance with Marino and Kessler. Because the trial court

did not follow these procedures when terminating her from the ADTC program,




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she claims the trial court violated her due process rights. Craig raises this issue

for the first time on appeal.

       We may refuse to review any claim of error that a party did not raise

before the trial court. RAP 2.5(a). A limited exception exists, however, for

manifest errors affecting a constitutional right. RAP 2.5(a)(3). An error is

manifest only if it has “practical and identifiable consequences apparent on the

record that should have been reasonably obvious to the trial court.” State v.

O’Hara, 167 Wn.2d 91, 108, 217 P.3d 756 (2009) (citing State v. Kirkman, 159

Wn.2d 918, 935, 155 P.3d 125 (2007)). It is not the role of an appellate court on

direct appeal to address claims where trial counsel could have been justified in

their actions or failure to object. Id. at 100.

       Craig’s claim raises a constitutional error. Craig argues that the trial court

violated her due process rights when it did not provide her an evidentiary hearing

and procedures outlined in Marino and Kessler.

       But Craig’s claim of constitutional error is not manifest. RAP 2.5(a)(3).

Craig signed the ADTC agreement in the presence of her counsel, confirming her

understanding of her right to an evidentiary hearing. But during the termination

proceeding, Craig did not request an evidentiary hearing. Craig also did not

contest the State’s violation allegations but instead acknowledged them and took

responsibility for her missed court appearance. Thus, the record indicates that

Craig did not wish to pursue an evidentiary hearing. In addition to acknowledging

the allegations, Craig did not claim to have—nor does she now claim to have—

evidence to refute the State’s violation allegations. Lastly, Craig’s counsel may


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have been justified in opting not to object to a lack of hearing because Craig was

unlikely to surmount the State’s allegations and they wanted to move forward

with the case. See O’Hara, 167 Wn.2d at 100. Because Craig’s claim of

constitutional error is not manifest, we decline to review it for the first time on

appeal.

   B. Sufficient Evidence

       Craig argues that the trial court terminated her from the ADTC program

without sufficient evidence. Craig argues that the trial court erred when it did not

require the State to prove its violation allegations by a preponderance of the

evidence. Craig raises this issue for the first time on appeal.

       The State’s burden to prove Craig’s violations by a preponderance of the

evidence inheres in an evidentiary hearing concerning termination from a

diversion program. See Marino, 100 Wn.2d at 725 (“[A]ppellant is entitled to

have factual disputes resolved by a neutral fact finder. This includes an

independent determination that the deferred prosecution agreement was

violated, by a preponderance of the evidence with the burden of proof on the

State.”).

       As discussed above, Craig’s claim of error regarding a hearing does not

involve a manifest error. Because the issues of hearing and preponderance of

the evidence are interrelated—i.e., the State bears no burden of proof without an

evidentiary hearing—her sufficiency of the evidence claim is likewise not

manifest. There are no practical or identifiable consequences for failing to hold

the State to a preponderance of the evidence burden when an evidentiary


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hearing did not occur.1 Thus, we decline to review Craig’s claim of error

regarding sufficiency of the evidence for the first time on appeal.2

       We affirm.




 WE CONCUR:




       1
          And except to the extent this claim of error interrelates with the due process
issue above, it does not concern a constitutional right. See RAP 2.5(a)(3).
        2
          Given our conclusion, we need not reach the State’s argument that we should
remand for correction of findings of fact and conclusions of law if we find error in the trial
court’s ruling.
        And we note that, at the time of termination, a copy of the bench warrant for
Craig’s failure to appear at the ADTC hearing was on file with the trial court.


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