                                                                            FILED 

                                                                       September 1, 2015 

                                                                  In the Office of the Clerk of Court 

                                                                W A State Court of Appeals, Division III 





         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


STATE OF WASHINGTON,                             )      No. 32563-6-111
                                                 )
                     Respondent,                 )
                                                 )
              v.                                 )      UNPUBLISHED OPINION
                                                 )
PERRY ANTHONY ZUVELA,                            )

                                                 )

                     Appellant.                  )



       SIDDOWAY, C.J. - Perry Anthony Zuvela appeals the superior court's order

revoking his Special Sex Offender Sentencing Alternative (SSOSA). He argues the court

failed to exercise its discretion in ordering revocation. We conclude that the trial court

had a tenable basis for revocation and affirm.

                                      FACTS

       On February 20, 2009, Mr. Zuvela pleaded guilty to seven counts of third degree

child molestation and one count of attempted first degree child molestation for having

sexual contact with his three minor children. Clerk's Papers (CP) at 12. Mr. Zuvela

sought a SSOSA under RCW 9.94A.670, which allows a sentencing court to suspend the
No. 32563-6-III
State v. Zuvela


sentence of a first time sexual offender if the offender is shown to be amenable to

treatment. To determine Mr. Zuvela's amenability to treatment, Dr. Mark Cross

conducted a SSOSA psychosocial evaluation. He concluded that Mr. Zuvela was a

moderately low risk for sexual recidivism, but cautioned that his history of substance

abuse could increase his risk level.

       The trial court judge had reservations about giving Mr. Zuvela a SSOSA based on

Mr. Zuvela's minimization of his crimes and failure to disclose certain facts until he took

a polygraph test. The judge also expressed concern about Mr. Zuvela's substance abuse,

stating, "the things that got yourself sideways in was directly related to your addiction.

You continued to make very poor choices to supply your habit ... you're going to have to

figure out a way to stay sober, Mr. Zuvela, and you haven't figured that out up to this

point in your life." Report of Proceedings (RP) at 56. She also warned him that the

SSOSA was an "all or nothing deal" and that it would not be sufficient to merely

complete sex offender treatment. RP at 56. Ultimately, she granted the SSOSA, stating,

"I think it will prove itself out very quickly." Id.

       Based on numerous prior felonies, Mr. Zuvela's offender score was more than 9

points for each crime. CP at 26. The trial court sentenced him to 120 months of

confinement on the attempted first degree molestation conviction and 60 months on each



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No. 32563-6-III
State v. Zuvela


of the other counts, but suspended imposition of this sentence under the SSOSA. His

sentence conditions included that he "maintain law abiding behavior and commit no new

crimes," and "not unlawfully possess or consume any controlled substances except

pursuant to a lawfully issued prescription." CP at 28.

       On January 21,2010, the State filed a petition to revoke the SSOSA, alleging Mr.

Zuvela had failed to maintain law abiding behavior by shoplifting and carrying an illegal

switchblade knife. CP at 41. Mr. Zuvela stipulated to the violations at the hearing. Dr.

Cross, who was now Mr. Zuvela's treatment provider, sent a letter to Mr. Zuvela's

community corrections officer, Gerry Mungia, recommending revocation of the SSOSA:

       Mr. Zuvela has a lengthy history of antisocial, criminal behavior and he
       appears unwilling to change the behavior pattern. Mr. Zuvela is presenting
       increased risk to the community. He is not considered to be safe in the
       community, is not amenable to sexual offender treatment. Mr. Zuvela's
       SSOSA treatment is terminated and ... a revocation ... is recommended.

RP at 90.

       The court gave Mr. Zuvela another chance, but warned him that this was the last

chance.

       In August 2013, the State filed another revocation petition based on Mr. Zuvela's

alleged use of methamphetamine. The petition was amended on September 4,2013, to

include two more violations regarding methamphetamine use. Mr. Zuvela again



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    No. 32563-6-111
    State v. Zuvela


    stipulated to the violations. The court allowed him to stay on the SSOSA and ordered

    him to complete inpatient treatment.

           The State filed a third revocation petition on December 5,2014, based on Mr.

    Zuvela's failure to report a change of address, attend treatment, and maintain law-abiding

    behavior. CP at 71. At the March 7, 2014 hearing, Mr. Mungia recommended revocation

    based on Mr. Zuvela's drug use and failure to attend sex offender treatment. Dr. Cross

    testified that Mr. Zuvela was no longer amenable to treatment based on his continued

    drug use and avoidance of participation. Dr. Cross explained that drug use, particularly

    methamphetamine use, "causes people to become more hypersexual, more sexually

    preoccupied, more likely to involve in compulsive behaviors, doing things repeatedly

    despite whatever else is going on." RP at 160.

           The trial court found that Mr. Zuvela committed the violations, but deferred a

    decision until May 9 to give Mr. Zuvela the opportunity to participate in intensive

    outpatient sex offender treatment. The court released him from custody with the warning:

    "[t]he bottom line is this; ... if you screw up between now and 9th of May, if you get a

    dirty VA, if you miss a treatment session, ... if you screw up in any regard, okay,

    regardless of how minor or-I'm going to revoke your SSOSA." RP at 181.




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No. 32563-6-II1
State v. Zuvela


       On April 11, 2014, the State filed its fourth revocation petition, alleging that Mr.

Zuvela had recently used methamphetamine. CP at 74-75. At the hearing, Mr. Mungia

testified that Mr. Zuvela had a positive urinalysis and had admitted to using

methamphetamine. Mr. Mungia again recommended revocation ofthe SSOSA based on

Mr. Zuvela's continuing pattern of drug use. The trial court revoked the SSOSA,

observing:

       We don't have sex crime related offenses.
               But we still have this kind of chronic abuse of controlled substances,
       which I think is really something that's driven Mr. Zuvela's life for his
       whole life .
               . . . I appreciate the request for one last-for one more chance. I
       think I succumbed to that request the last time this matter was before me.

RP at 198-99.
                                    ANALYSIS

       Mr. Zuvela argues that the trial court failed to exercise its discretion and relied on

untenable grounds in revoking his SSOSA. We review a trial court's decision to revoke a

SSOSA for an abuse of discretion. State v. McCormick, 166 Wn.2d 689,705-06,213

P.3d 32 (2009). A trial court abuses its discretion if its decision is '''manifestly

unreasonable, or exercised on untenable grounds, or for untenable reasons.'"

McCormick, 166 Wn.2d at 706 (quoting State ex. rei. Carroll v. Junker, 79 Wn.2d 12,26,

482 P.2d 775 (1971)).


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No. 32563-6-II1
State v. Zuvela


          RCW 9.94A.670(l1) provides that a court may revoke a SSOSA at any time during

the period of community custody if (1) the offender violates the conditions of the

suspended sentence, or (2) the court finds that the offender is failing to make satisfactory

progress in treatment. When a SSOSA sentence is revoked, the original sentence is

reinstated. State v. Miller, 159 Wn. App. 911, 918, 247 P.3d 457 (2011).

          Mr. Zuvela contends the court's statement at the third revocation hearing that "if

you screw up, May 9th you're going to prison" constitutes an improper categorical

prejudging of any future violation. See RP at 181. He argues that by stating it intended to

revoke for any violation, no matter how minor, the court effectively failed to exercise any

discretion at all. He also argues that the court's decision to revoke the SSOSA was

manifestly unreasonable because Mr. Zuvela was not committing violations of a sexual

nature.

          Mr. Zuvela's arguments are not persuasive. As the State points out, the trial

court's exercise of discretion is adequately demonstrated by the numerous second chances

it afforded Mr. Zuvela. At the first revocation hearing, the court cautiously maintained

Mr. Zuvela's SSOSA over the objection of Dr. Cross and Mr. Mungia, stating, "I'm even

questioning my own sanity at this particular point, because Mr. Zuvela, if! were a betting

person and I was looking at your record and knowing your history as I do, I don't think


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    No. 32563-6-111 

    State v. Zuvela 



    I'd be putting a lot of money on the bet right now." RP at 109. The court continued to

    deny the State's motions to revoke the SSOSA, opting to work with Mr. Zuvela. Finally,

    at the third revocation hearing, after Dr. Cross advised the court that Mr. Zuvela's

    continued drug use impeded his sex offender treatment, the court advised Mr. Zuvela that

    this was his last chance and gave him another month to participate in treatment.

           In view of this record, we find no abuse of discretion. By the time the trial court

    revoked Mr. Zuvela's SSOSA, he had been given three chances to comply with the

    conditions of his sentence. If Mr. Zuvela's last violation had been unforeseeably

    innocuous and the court refused to take that into consideration, Mr. Zuvela might have a

    point. But the final violation was the type of violation that the court foresaw, and that it

    warned Mr. Zuvela would result in revocation. And at the final hearing, the court listened

    to arguments from the State and the defense, as well as Mr. Zuvela individually. The

    court could have exercised discretion and terminated the SSOSA at the first revocation

    hearing, the second, or the third. The fact that it had exercised its discretion to reach a

    conclusion by the time of the third revocation hearing that it adhered to at the fourth does

    not demonstrate a failure to exercise discretion, it reflects the patient exercise of

    discretion and a forthright warning to Mr. Zuvela of the court's intention if there was a

    future violation.



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State v. Zuvela


       Nevertheless, Mr. Zuvela maintains that the court abused its discretion because his

violations did not involve any victims and were not sexual in nature. He compares the

facts of his case to other cases in support of his argument that the revocation was

unreasonable because "the public safety concerns ... are incomparable [to the other

cases]." Appellant's Br. at 15. However, this is not the standard for assessing whether a

decision is manifestly unreasonable. We look for any tenable basis in the record to

support the decision.

       Here, the trial court did not categorically refuse to consider a sentence or refuse to

exercise its discretion. Despite Mr. Zuvela's chronic drug use and repeated violations of

his sentence conditions, the court continued to give him chances. Despite these chances,

Mr. Zuvela continued to use methamphetamine, which seriously compromised his

treatment. Dr. Cross explained how Mr. Zuvela's chronic drug abuse affected his sex

offender treatment:

      If somebody is not participating or not there, they are obviously not getting
      the benefit of being involved in treatment, being able to address those
      issues, things of that sort. And when somebody is using substances, they
      are not using their rational thinking and good decision-making, and placing
      them at higher risk.

RP at 168.




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1

I
f	   No. 32563-6-111
     State v. Zuve fa



            On these facts, the court's ultimate decision to revoke the SSOSA was not an

     abuse of discretion.

            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.




     WE CONCUR: 





     L.. _,"-.. .   l. .. -   ~v.r..<.11
     Lawrence-Berrey, J.




                                                  9

