                                                                               FILED 

                                                                             DEC. 9,2014 

                                                                     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. 32144-4-111
                      Respondent,               )
                                                )
       v.                                       )
                                                )
KEVIN B. SNOW,                                  )          UNPUBLISHED OPINION
                                                )
                      Appellant.                )

       KORSMO, I. - Kevin Snow appeals from three felony convictions entered

following his termination from a drug court program. Concluding that his due process

protections were honored, we affirm.

                                            FACTS

       Mr. Snow was charged in the Spokane County Superior Court with one count of

second degree theft and two counts of first degree trafficking in stolen property. He

elected to enter drug court and his application for that program was approved. He agreed

that his entry into the program effectuated a waiver of several important rights, including

the right to a jury trial, the right to testify and present evidence, and the right to cross-

examine the State's witnesses. He also waived the right to be present at drug court

staffmg meetings. The agreement also detailed several grounds for termination from the
No. 32144-4-111
State v. Snow


program. Those grounds included falsifying or tampering with urinalysis samples.

Charges were to be dismissed with prejudice upon successful completion of the program.

Mr. Snow was accepted into the program April 25, 2013.

       Mr. Snow's performance in drug court was checkered. He received his first

sanction for violating his drug court agreement-an indefinite term of partial

confinement and 64 hours of community service-on June 6, 2013. By August 9, a

bench warrant issued for his arrest because his whereabouts were unknown. He was

apprehended and on August 28, the court again imposed a sanction for failing to meet his

program obligations. The court ordered Mr. Snow confined to the work release facility,

directed that he complete 40 hours of community service, and be evaluated for inpatient

treatment.

       Mr. Snow did not successfully progress in the program. After earlier efforts to

meet failed, a termination hearing was held on October 23,2013. The program judge

detailed at length the course of events:

               We had some of [sic] difficulties early on, and 1 will describe those.
       Had a stall test--excuse me-a positive on 4/26 and a no show on 5/22. He
       did attend treatment the first couple weeks he was with us. He completed
       his DOC orientation. He came back on 5/6-excuse me-5/6 there was a
       stall. 5/8 was a no show for a drug test. 5/15 and 5/16 were positives.
       Came back on 5/16 for a review hearing, and on that date 1 noted he missed
       treatment on 5/1, 5/3 and 5/8.
               He expressed to us some transportation issues. He had not kept his
       work crew appointment. There was some difficulty with contacting DOC.
       And we talked about the fact that he had to be more compliant.


                                             2

No. 32144-4-111
State v. Snow


              He then had a negative drug test on May 20th. And he attended all
      of his treatment, and appeared to be engaged in Drug Court at that point,
     although he missed his work crew orientation the day before court. We
     reset this matter for a review hearing two weeks out, as is our normal
     course, our practice.
              He had a stall on 5/29. A no show on 5/30. A positive on 6/5.
     Missed treatment on 5/29 and 5/31. He missed a one-on-one on 5/21 and
     5/23. When he came in on 6/6,1 had him sent to the jail and then off to
     Geiger. By then he had accumulated 104 hours of community service.
              We also had some concern about his housing, only because we
     couldn't verify everyone who was there in terms of who they were. That
     was really a secondary issue.
              He was in jail for six days. He went to Geiger on 6/12. He was in
     Geiger until July 18th, so over a month; 36 days if my math is correct,
     roughly. He was released on July 18th. And he completed his community
     service hours by that point in time, and he was placed back into the
     program.
              He missed a drug test on 7/23, but was negative on 7/25. He came
     back to court on 7/25. He had attended treatment.
              We of course moved forward. It is our practice to continue to work
     with folks.
              And on 7/26 unfortunately he had another stall. A positive on 8/1.
     A no show on 817. He was not in court at his scheduled review date of 8/8.
     He missed treatment on 7/24, 7/29 and 8/8. And because he did not appear
     on 8/8, 1 had a warrant issued, or 1 requested the state to give me a warrant.
     And then that warrant was in the system.
              And Mr. Snow was arrested within about ten days; 1 believe he was
     arrested on August 17th. And we held a hearing on 8/28, and left Mr. Snow
     in Drug Court; we gave him another opportunity, you would say. And 1
     believe we had a talk about being compliant and what was expected, and
     the fact that we had been through this one time before.
              He was in jail for several days. He was transported out to Geiger to
     recommence. We did have an assessment done for inpatient. We did offer
     that service. And the recommendation was not-was no inpatient at that
     time, so we restarted treatment again, and assigned him to find Oxford
     housing this time.
              He had started at Geiger 1 believe on 9/3 ... He was due to be
     released 1 believe on 9/25 ... On that date we were notified in staffing that
     Geiger had taken samples, VA samples, on 9/9 and 9/12, and both had

                                           3

No. 32144-4-111
State v. Snow


       come back as dilute, so those were sent off for testing or to---had been
       tested in a lab. And based upon our protocol, which is to set folks for
       termination when we have dilutes, we set it for termination. And that was a
       month ago, essentially; it is now 10123.

Report of Proceedings (RP) at 13-16.

       Mr. Snow was represented at the hearing by his drug court counsel who concurred

in the court's recitation of his client's history in the program. The prosecutor orally

moved the court to accept the treatment provider's recommendation that Mr. Snow be

terminated from the program. The drug counselor indicated that laboratory testing

confirmed that both of the two most recent urinalysis samples had been watered down. In

one instance, a jailer had instructed Mr. Snow to stop trying to use the sink while

providing his sample. I The counsellor also noted Mr. Snow's history was more extensive

than the court had indicated, stating that there had been "two additional stalls," "four

additional no shows," and "11 no shows for group." RP at 24.

       Defense counsel indicated his familiarity-and disagreement with-the treatment

provider's proposal. He indicated that he had earlier received e-mails indicating that his

client had twice provided diluted samples for testing while at the work release facility.

Counsel agreed that the samples were diluted, but argued that they were the result of

excessive drinking during the day. Mr. Snow addressed the court at length and supported



       I The information was provided in response to Mr. Snow's grievance to jail
authorities that the jailers were setting him up to fail the testing.

                                             4

No. 32144-4-111
State v. Snow


his counsel's argument-in part by reading a letter he had written and attempted to send

to the judge. He pointed out that there is little to do at work release except drink coffee

all day and that it would be impossible to water down the samples because of the way the

testing is conducted in the presence of the jailers.

       The court pointed out the critical importance of diluted samples to the drug court

program. In addition to masking drug use, the diluted samples show that the client is not

being honest with himself and simply cannot succeed in the program. While he would

have been willing to work further with Mr. Snow if there had been an otherwise pretty

good performance, the court was unwilling in light of his record and the need of the drug

court program to not excuse diluted samples. He revoked Mr. Snow from the program.

       A trial was subsequently held on stipulated facts. Mr. Snow was convicted on the

three counts and sentenced to a standard range prison sentence. He then timely appealed

to this court.

                                        ANALYSIS

       This appeal presents various due process challenges to the revocation of Mr.

Snow's drug court participation. After reviewing his general ability to raise these claims,

we address his specific challenges as part of his general due process challenge.

       The Fourteenth Amendment guarantees due process of law. In the context of

revocation decisions, due process affords a few minimal guarantees: written notice,

disclosure of evidence, opportunity to be heard, right to confront witnesses, a neutral

                                              5

No. 32l44-4-II1
State v. Snow


decision-maker, and a written statement of evidence considered. Morrissey v. Brewer,

408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972); State v. Nelson, 103 Wn.2d 760,

763,697 P.2d 579 (1985) (sentence revocation); In re Boone, 103 Wn.2d 224,231,691

P.2d 964 (1984) (probation revocation); State v. Marino, 100 Wn.2d 719, 725, 674 P.2d

171 (1984) (pretrial diversion agreement revocation); State v. Cass ill-Skilton , 122 Wn.

App. 652, 653, 94 P.3d 407 (2004) (drug court revocation).

       Mr. Snow essentially argues that most ofthese minimal protections were not

provided to him. However, he made no such claim below and, as a result, the record is

lacking information on many of these claims. That presents the fundamental question of

whether or not this court is even in a position to address Mr. Snow's arguments.

       The general rule in Washington is that an appellate court will not consider an issue

on appeal which was not first presented to the trial court. RAP 2.5(a); State v. Scott, 110

Wn.2d 682,685, 757 P.2d 492 (1988). However, RAP 2.5(a)(3) permits a party to raise

initially on appeal a claim of "manifest error affecting a constitutional right." The error

must be both (1) manifest and (2) truly of constitutional magnitude. ld. at 688. It is

"manifest" if it either (1) "results in actual prejudice to the defendant," or (2) the party

has made a "plausible showing" that the error had "practical and identifiable

consequences" to the trial. State v. WWJ Corp., 138 Wn.2d 595,602-03,980 P.2d 1257

( 1999) (citations and internal quotation marks omitted).




                                               6

No. 32144-4-III
State v. Snow


       Mr. Snow clearly states a constitutional claim. Whether or not it is manifest is

unclear. The prosecution does not squarely challenge his ability to make the due process

argument, but does argue that several of the specific claims were waived by the drug

court agreement. In reply, Mr. Snow contends that he has satisfied the criteria of RAP

2.S(a)(3) and does not address the waivers included in the drug court application form. 2

       On the whole, we are uncertain whether Mr. Snow can maintain his due process

challenge in these circumstances. Nonetheless, since his arguments also are negatively

impacted by his failure to challenge the procedures during the revocation hearing, we will

address them.

       Mr. Snow initially claims that he did not receive sufficient notice of the intent to

terminate him from the program, arguing that the record lacks written notice of the

alleged violations. On this record, we cannot tell if this claim is correct or not, but we

can tell that Mr. Snow's counsel received an e-mail from the treatment provider

indicating his intent to seek termination from the program due to the two diluted samples.

RP at 19. Mr. Snow personally prepared a written response to that notice, and defense

counsel conducted research, talked to his client, and came to the hearing prepared to

argue against the proposal. Very tellingly, the defense did not demand any additional


       2 The waiver provision does address drug court staffing meetings as well as
matters of trial-related rights such as the right to a speedy trial. It also addresses
generically issues such as cross-examination and the ability to call witnesses that might
apply to both trial and revocation procedures.

                                              7

No. 32144-4-111
State v. Snow


notice nor seek additional time 3 to respond to the issue. The drug court agreement

likewise put the defense on notice that invalid samples were a basis for termination.

       The defense evidenced no surprise about the purpose of the hearing. In this

circumstance, we doubt that the alleged error is truly manifest. At a minimum, any error

was clearly harmless under these facts. Accordingly, we conclude that Mr. Snow has not

established that he was prejudiced in any manner from the proceedings below.

       Mr. Snow next argues, on several bases, that his confrontation rights were violated

when the court admitted the diluted test results without a witness being called whom the

defense could examine. This argument fails for numerous reasons.

       The primary reason is one noted in Nelson. There the defendant did not object to

the use of written reports from staff and even pointed out, in response to the State's

objection, that the rules of evidence did not apply at a revocation hearing. 103 Wn.2d at

766. The court focused on the defense failure to object to the procedures used at the

hearing.

       Defendant's only objection came in the form of a motion after the court's
       ruling regarding the insufficiency of evidence in support of the court's
       decision to revoke probation. Defendant's failure to object to a violation of
       due process and his own use of hearsay during argument constituted a
       waiver of any right of confrontation and cross examination.




      3 The record does reflect that the October 23 hearing was the third attempt in a
one month period at holding the revocation hearing. RP at 15-16.

                                             8

No. 32144-4-III
State v. Snow


       As noted by the United States Supreme Court, there may be instances
       where there is no substitute for live testimony, thereby providing a right of
       confrontation and cross examination. [citation omitted] If the probationer
       believes such is necessary for protection of his due process rights he can
       seek a pretrial order from the trial court or challenge the State's evidence by
       timely objection or at the end of the State's case. Such suggested
       procedures guarantee the probationer's due process right. The probationer
       may not sit by, without objection (and in fact use similar hearsay evidence),
       and then on appeal for the first time claim lack of due process. . .. Such
       simple suggested notification, objection or motion does not unduly burden
       the probationer's rights or relieve the State of its burden of proof....
       Defendant simply has both failed to show the merits of his claim and failed
       to raise the issue of due process right of confrontation at any stage prior to
       appeal.

[d. at 766-67.

       Having not insisted on a right to confrontation below, Mr. Snow cannot claim error

here. [d. The same rule applies at trial. Absent a timely objection on confrontation

grounds, a confrontation argument is waived. E.g., State v. Schroeder, 164 Wn. App. 164,

167-68,262 P.3d 1237 (201l) (citing cases).

       A second reason that Mr. Snow's confrontation-related claims fail is that he

stipulated to the results. His counsel stated: "no one is contesting these are dilute

samples." RP at 27. Having previously agreed to the evidence, he is in no position to

challenge it now.

       Mr. Snow's related hearsay challenge fares no better. As defense counsel noted in

Nelson, 103 Wn.2d at 766, the rules of evidence do not apply to revocation hearings. ER

1101(c)(3). Hearsay rules apply in revocation proceedings only to the extent that a


                                             9

No. 32144-4-111
State v. Snow


revocation cannot be based solely on unreliable hearsay. Nelson, 103 Wn.2d at 765. A

hearsay objection must be lodged ifit is to be considered in this context. Id. at 764-67. 4

       For all of these reasons, the confrontation and hearsay related arguments fail.

They also thus fail to constitute manifest constitutional error under these facts. RAP

2.5(a)(3).

       Mr. Snow also argues that the court erred in not providing a written explanation of

the evidence relied upon and the reasons for his termination from drug court. This issue,

too, was addressed in Nelson. There it was noted that while due process requires a

written explanation, "the lack of specific written findings is not fatal where, as here, the

trial court states ... its reasons for revocation." 103 Wn.2d at 767. Here, the trial court

discussed at great length the consequences of diluted samples and the significance both to

Mr. Snow and to the entire drug court program of disregarding them. The court's

rationale here was clear in the record and, as in Nelson, any error in not reducing them to

writing was harmless. Id.

       Finally, Mr. Snow argues that the trial court erred in terminating him from drug

court. As also noted in Nelson, the revocation decision is highly discretionary. Id. at

766-68. Mr. Snow was on notice from his entry into the program that diluted samples

were a basis for termination from drug court. He agreed that he provided diluted


      4 It also appears that this drug court agreement waived the confrontation and
hearsay objections. Clerk's Papers at 7.

                                             10 

No. 32144-4-111
State v. Snow


samples. His defense was that it was an innocent mistake. Given that no one disputed

that the samples were diluted, the evidence clearly supported the trial court's

determination. Even at that, the court considered whether it was appropriate to continue

Mr. Snow in the drug court program or not. The judge ultimately concluded that given

his body of work to that point, there was no reason to continue giving more time to Mr.

Snow. The diluted samples were the straw that broke the camel's back.

       Drug court is a non-adversarial alternative to traditional criminal justice efforts.

Cass ill-Skilton , 122 Wn. App. at 657. The team effort at individual rehabilitation, closely

supervised by the trial judge in an informal environment, is an uncomfortable fit with the

requirements of due process when the defendant's case is not proceeding successfully.

At that point the demands of due process require a shift to a more formal approach. A

written notice of intent to revoke (or, at least, of the possibility of revocation), coupled

with a statement of the reasons why, is necessary. A copy of that notice should make it

into the appellate court record by way of filing in superior court.

       If the court makes the determination to revoke participation in a therapeutic court,

a written explanation of why that action was taken, including a review of the evidence

supporting the decision, should enter. Again, we appreciate that these actions are at odds

with the non-adversarial approach taken to that point. Nonetheless, when the focus is on

removing someone from the program instead of assisting in recovery, the informality of

the treatment modality must give way to the formalities of the adversarial process.

                                              11 

No. 32144-4-111
State v. Snow


       Here, Mr. Snow received all of the due process rights he sought. The judge was

well within his authority-indeed, he had showed great patience throughout the

proceedings-to decide that enough was enough. Mr. Snow was not progressing and did

not appear likely to progress further. The trial judge has great discretion at that point to

conclude that the program's limited resources would be better served on someone else.

       The decision to terminate Mr. Snow from the drug court program is 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.


                                                                   orsmo, J.

WE CONCUR: 





       Lawrence-Be




                                             12 

