                                                                       FILED
                                                                   FEBRUARY 7, 2017
                                                                In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division Ill




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                         )
                                             )        No. 33838-0-III
                     Respondent,             )
                                             )
       v.                                    )
                                             )
STEVEN RUIZ-SIBAJA,                          )        UNPUBLISHED OPINION
                                             )
                     Appellant.              )

      KORSMO, J. -    Steven Ruiz Sibaja appeals from an order revoking his special

sexual offender sentencing alternative (SSOSA), arguing that the court abused its

discretion. Because the parties agree that one of the two reasons for revocation was

improper and we are uncertain whether the court would have made the same ruling in

consideration of only the valid factor, we reverse and remand for a new revocation

hearing.

                                         FACTS

      Mr. Sibaja was given a SSOSA sentence after he pleaded guilty to one count of

first degree child rape. Among the conditions imposed as part of the judgment and

sentence were that he (1) not possess or peruse pornography and (2) not consume alcohol.
No. 33838-0,.111
State v. Ruiz-Sibaja


After more than a year of apparently unavailing treatment, the State moved to revoke the

sentence for violation of the two noted sentencing conditions.

         The pornography concern arose after he revealed, during a polygraph examination,

that a 21-year-old woman had sent naked pictures of herself to his phone and he had

received and viewed them. He also revealed that he had consumed wine. At the hearing

he explained that he had consumed small amounts of wine at church and with a friend at

Christmas. He also explained that his friend had sent him pictures of her breasts.

         Mr. Sibaja' s treatment providers and the corrections officer all recommended that

the court revoke the SSOSA. In part they questioned how honest Mr. Sibaja was being

with them and expressed concerns that he was not progressing in treatment.

         The court granted the motion, concluding that Mr. Sibaja had violated the

pornography and alcohol conditions. The court concluded that it was "just not going to

work so I think revocation is appropriate and I so order." 3 Report of Proceedings at 128.

A written order revoking the SSOSA was entered. Mr. Sibaja timely appealed to this

court.

                                         ANALYSIS

         The sole issue presented by this appeal is whether the court erred in revoking the

SSOSA. Because the parties agree that one of the bases for revocation was

unconstitutionally vague, we remand the matter to the court to once again consider

whether or not to grant the motion.

                                              2
No. 33838-0-111
State v. Ruiz-Sibaja


       In general, a SSOSA is a sentencing alternative that permits some sexual offenders

the ability to receive a suspended sentence and undergo treatment if they are amenable to

it. RCW 9.94A.670. The sentencing court imposes conditions of the suspended

sentence, including prohibitions on behavior. RCW 9.94A.670(5)(d). The SSOSA may

be revoked if the offender fails to make satisfactory treatment or violates any conditions

of the suspended sentence. RCW 9.94A.670(10); State v. Dahl, 139 Wn.2d 678, 682-83 ,

990 P.2d 396 (1999). The decision to revoke a suspended sentence is reviewed for abuse

of discretion. State v. Kuhn , 81 Wn.2d 648, 650, 503 P.2d 1061 (1972). Discretion is

abused when it is exercised on untenable grounds or for untenable reasons. State ex rel.

Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (197_1).

       Here, the court expressly found that both violations occurred and revoked the

suspended sentence. Appellant argues, and respondent agrees, that the possession of

pornography condition is unconstitutionally vague. We also agree. State v. Sansone , 127

Wn. App. 630, 639, 111 P.3d 1251 (2005). 1 Both parties thus conclude that the judge

could not consider that violation in revoking the SSOSA. However, respondent contends

that since the alcohol use violation alone would justify the revocation, this court should

simply affirm.



       1
       Respondent writes that the condition should be changed to "sexually explicit
conduct" as defined in RCW 9.68A.Ol l. Brief ofResp' t at 6. The parties are free to
make that suggestion at the next hearing.

                                             3
No. 33838-0-III
State v. Ruiz-Sibaja


       While there certainly was reason to revoke the SSOSA due to the alcohol violation

and repeated reports that the defendant was making limited or no progress in treatment,

the trial court did not rely solely on either of those factors. Instead, the stated reason for

the revocation was due to both of the violations. It does not appear that either violation

alone, or the limited progress in treatment, was seen as a sufficient reason to revoke the

SSOSA. We draw a direct analogy to the court' s imposition of an exceptional sentence

on multiple grounds, some of which are subsequently invalidated on appeal. In that

circumstance, the rule is that resentencing is required unless the trial court gave

indication that it would have imposed the same sentence based solely on a valid factor.

E.g. , State v. Gaines, 122 Wn.2d 502, 512, 859 P.2d 36 (1993).

       The revocation order contains no severance clause or other language indicating

that a single factor was sufficient for revocation. Since the invalid factor involved sexual

conduct and the admitted wine consumption was minimal, we cannot say on this record

that the court would have revoked the suspended sentence solely due to the drinking.

Given the nature of the underlying conviction, the pornography violation likely was

accorded significant weight in light of the minimal progress defendant had made in

treatment.




                                               4
No. 33838-0-III
State v. Ruiz-Sibaja


       Accordingly, we reverse and remand for a new revocation hearing. The court

should also strike the pornography condition, and is free to modify that condition as it

deems appropriate.

      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:




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