[No. 58255-1-I. Division One. October 22, 2007.]
[1] Sexual Offenses — Special Sex Offender Alternative — Revocation — Grounds — Violation of Condition or Failure To Make Progress in Treatment. Under RCW 9.94A.670(10), a special sex offender sentencing alternative may be revoked at any time if a court is reasonably satisfied that the offender has violated a condition of the suspended sentence or has failed to make satisfactory progress in treatment. [2] Sexual Offenses — Special Sex Offender Alternative — Revocation — Effect. Under RCW 9.94A.670, once a special sex offender sentencing alternative is revoked, the original sentence is reinstated. [3] Sexual Offenses — Special Sex Offender Alternative — Suspended Sentence — Revocation — Discretion of Court — Abuse — What Constitutes. The revocation of a suspended sentence under a special sex offender sentencing alternative is discretionary with the trial court. A trial court does not abuse its discretion unless its decision is manifestly unreasonable or is based on untenable grounds. [4] Sexual Offenses — Special Sex Offender Alternative — Suspended Sentence — Revocation — Due Process — Degree. A sex offender granted a suspended sentence under a special sex offender sentencing alternative is entitled to only minimal due process rights before the suspended sentence may be revoked. The due process rights to which the offender is entitled are comparable to those afforded to an offender facing revocation of probation or parole. They are (1) written notice of the claimed violations, (2) the disclosure of adverse evidence, (3) the opportunity to be heard, (4) the right to confront and cross-examine witnesses (unless there is good cause for not allowing confrontation), (5) a neutral and detached hearing body, and (6) a statement by the court as to the evidence relied upon and the reasons for the revocation. These requirements exist to ensure that the finding of a violation of a condition of the suspended sentence will be based upon verified facts. The revocation hearing should not be equated to a full-blown criminal prosecution because society has already been put to the burden of proving beyond a reasonable doubt that the defendant is guilty of the crime for which the sentence was imposed. A proceeding to revoke a suspended sentence is not a criminal proceeding. [5] Criminal Law — Punishment — Sentence — Conditions — Violation — Proof — Willfulness — Legal Financial Obligations and Restitution. RCW 9.94A.634 specifies willfulness as an element of noncompliance with a condition or requirement of sentence only with regard to legal financial obligations and restitution. [6] Sexual Offenses — Special Sex Offender Alternative — Suspended Sentence — Revocation — Violation of Condition — Willfulness — Necessity. Under RCW 9.94A.670(10), a sex offender is not required to have willfully violated a condition of suspended sentence under a special sex offender sentencing alternative before the sentencing alternative may be revoked. Under RCW 9.94A.634, willfulness is required only if the condition is a legal financial obligation or restitution. [7] Sexual Offenses — Special Sex Offender Alternative — Suspended Sentence — Revocation — Violation of Condition — Proof — Degree of Proof. The proof required to find that a sex offender has violated a condition of suspended sentence under a sex offender sentencing alternative need only reasonably satisfy the court that a breach of the condition occurred and need not be established beyond a reasonable doubt. Nature of Action: The State sought revocation of a sex offender's special sex offender sentencing alternative on the grounds that the offender had violated conditions of his suspended sentence. Superior Court: The Superior Court for Snohomish County, No. 99-1-01667-4, Thomas J. Wynne, J., on May 17, 2006, entered a modified judgment revoking the offender's special sex offender sentencing alternative and sentencing him to a term of imprisonment. Court of Appeals: Holding that the State was not required to show that the offender's violations of the conditions of his suspended sentence were willful before the special sentencing alternative could be revoked, the court affirms the modified judgment. Eric Broman- (of Nielsen, Broman & Koch, PLLC), for appellant. Janice E. Ellis-, Prosecuting Attorney, and Mary K. Webber-, Deputy, for respondent. ¶1 BAKER, J. — David McCormick appeals the trial court's order revoking his special sexual offender sentencing alternative (SSOSA). I ¶2 David McCormick was convicted of first degree rape of a child under the age of 12. At age 55, McCormick had no previous criminal history. The court suspended his sentence of 123 months and sentenced him to a SSOSA. In doing so, the court imposed a number of conditions, including requirements that he not frequent areas where minor children are known to congregate and that he participate and make progress in sexual deviancy treatment. ¶3 After three years of therapy, the court relieved McCormick from continuing treatment. ¶4 One year later, the court was notified that McCormick had initiated conversation with two female minors. His Community Corrections Officer (CCO) also reported that McCormick's niece, who lived in California, had revealed that McCormick had sexually molested her and her sister on numerous occasions approximately 30 years before. McCormick signed a stipulated agreement acknowledging he had contact with minor children, and agreed to re-enroll in sexual deviancy treatment. ¶5 McCormick was back in court the following year. This time the court found he had violated the conditions of his SSOSA by visiting the Everett Baptist Church, the Twin Lakes Park, and Everett High School, all areas where children are known to congregate. McCormick was sentenced to 120 days in jail and ordered once again into treatment. ¶6 In March 2006, McCormick's CCO received information from one of McCormick's housemates that McCormick had been visiting a food bank located in the Immaculate Conception Elementary School and had on numerous occasions made vulgar sexual comments about young girls. As churches and schools are considered places where children are known to congregate, the CCO determined that McCormick was in violation of the terms of his supervision. The CCO informed McCormick's therapist that McCormick would be taken into custody for violating the conditions of his SSOSA. ¶7 The therapist then terminated McCormick's participation in the sexual deviancy program he had been attending. In a letter summarizing the termination, the therapist noted two previous similar incidences to which McCormick had responded with denial and blame. He also noted that McCormick always claimed to be avoiding high-risk situations. The therapist concluded that keeping McCormick in sex offender treatment was no longer clinically justified. ¶8 At a court hearing, the State offered a written statement by McCormick's housemate, David Bralley, but did not call Bralley himself as a witness. In the statement, Bralley asserted that McCormick had visited the food bank regularly and made numerous sexual comments about children. ¶9 McCormick's CCO testified that she had provided him with a list of places he was barred from visiting, including schools, churches, and day care centers. The CCO also testified that the high school McCormick had been sanctioned for visiting was located across the street from the food bank. ¶10 The court found McCormick had once again frequented a place where minors are known to congregate and failed to complete a sexual deviancy treatment program. It revoked McCormick's SSOSA and sentenced him to 123 months in prison. ¶11 McCormick now appeals. II ¶14 Minimal due process at a revocation proceeding entails: (a) written notice of the claimed violations, (b) disclosure to the parolee of the evidence against him, (c) the opportunity to be heard, (d) the right to confront and cross-examine witnesses (unless there is good cause for not allowing confrontation), (e) a neutral and detached hearing body, and (f) a statement by the court as to the evidence relied upon and the reasons for the revocation. ¶15 A revocation hearing should not be equated to a full-blown criminal prosecution, because society has already been put to the burden of proving beyond a reasonable doubt that the defendant was guilty of the crime for which the sentence was imposed. Willfulness ¶17 In support of his argument, he cites a number of cases addressing willfulness in relation to conviction. State v. Sisemore ¶18 He also relies on Bearden v. Georgia ¶19 Reflecting that moral imperative, RCW 9.94A.634 (covering noncompliance with condition or requirement of sentence) specifies willfulness as an element of noncompliance only with regard to legal financial obligations and restitution. ¶20 Under the Sentencing Reform Act of 1981, ¶21 This court addressed the issue of willfulness in State v. Gropper: RCW 9.94A.200(2)(c) ¶22 We follow the clear precedent of the Gropper decision and hold that no finding of willfulness was required. ¶23 The remainder of this opinion has no precedential value. Therefore, it will be filed for public record in accordance with the rules governing unpublished opinions. COX and DWYER, JJ., concur. Reconsideration denied December 24, 2007.