State v. Hendron

STATE OF WASHINGTON, Respondent, v. ADAM ROSS HENDRON, Appellant.

No. 37978-7-III

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

July 1, 2021

UNPUBLISHED OPINION

LAWRENCE-BERREY, J. — Adam Hendron appeals after the trial court revoked his SSOSA¹ sentence and ordered that he have only indirect contact with his minor son conditioned upon the mother's approval. We affirm the trial court's revocation of Mr. Hendron's SSOSA sentence, but remand for it to consider on the record a less restrictive alternative no contact order.

FACTS

On October 9, 2008, Adam Hendron pleaded guilty to two counts of rape of a child in the second degree. The trial court accepted Mr. Hendron's plea and imposed a SSOSA sentence of 131 months in prison with all but 12 months suspended.

Mr. Hendron's SSOSA required him to refrain from contact with minors, to stay within a specific geographical boundary, to comply with crime-related prohibitions, to comply with sexual deviancy treatment, and to perform affirmative acts necessary to monitor compliance with court orders as required by the Department of Corrections (DOC).

Mr. Hendron was released from custody on May 1, 2009. On June 22 and June 24, Mr. Hendron failed to report as required for a polygraph examination. Mr. Hendron further failed to attend sex offender treatment throughout the month of June and had no further communication with DOC. Based on this, the trial court issued a warrant for his arrest. Unknown to the authorities, Mr. Hendron had absconded to Mexico where he married and had a son.

In 2016, Mr. Hendron was apprehended and extradited to California and then to Washington. The State moved to revoke Mr. Hendron's SSOSA. The trial court denied the motion but sentenced Mr. Hendron to 240 days of jail time. It further ordered Mr. Hendron to report to DOC for treatment immediately after his release.

Mr. Hendron served his time and did well after his release. He complied with his SSOSA treatment for several months. His January 24, 2018 progress report recommended that he be allowed to have contact with his son. Mr. Hendron brought amotion to modify his community custody conditions to allow contact with his son. On May 4, 2018, the court denied the motion without prejudice.

Mr. Hendron was uncooperative with the polygraph examination on August 21, 2018. He was breathing deeply and changing his answers on the control question. The polygrapher asked Mr. Hendron several times not to do these things. The polygraph produced invalid results and the polygrapher notified DOC but DOC chose not to sanction Mr. Hendron.

Mr. Hendron was uncooperative during his next polygraph examination on January 23, 2019. He made it impossible for the examiner to conduct a valid test because he controlled his breathing and changed his answers to the control questions despite being repeatedly told not to do so. Mr. Hendron's refusal to cooperate resulted in the examination being stopped.

The polygrapher notified Mr. Hendron's new community corrections officer, Julie Johnson, of Mr. Hendron's refusal to cooperate. Ms. Johnson discussed the matter with her supervisor. On review of Mr. Hendron's file, the supervisor found that he had committed a willful violation. Mr. Hendron was then detained in jail.

DOC suspected that Mr. Hendron was having unauthorized contact with his son. Ms. Johnson visited Mr. Hendron in jail and requested the password to his cell phone.Although a condition of Mr. Hendron's SSOSA required him to comply with this request, he refused and asked for his attorney. Mr. Hendron's treatment provider terminated treatment because of these and other problematic behaviors.

The State filed a petition to revoke Mr. Hendron's SSOSA. The petition set forth three violations: (1) failure to cooperate with the January 23, 2019 polygraph examination, (2) termination from treatment, and (3) refusal to provide the telephone password for an approved search.

The trial court heard testimony from five witnesses over the course of four nonconsecutive days. Following the hearing, the trial court announced its decision:

[A]fter listening to all of the testimony in this case . . . [and] after I review my notes, and given the totality of the evidence, I simply do not believe that Mr. Hendron is going to be successful or be able to sufficiently comply or complete the SSOSA sentence.

. . . .

The violations that we've been discussing today are more than just happenstance. I want to say that I do not believe that missing one day of antianxiety medication, or antidepression, would lead to the type of reaction that Mr. Hendron purportedly had during the polygraph exam. I also don't believe that it was Officer Johnson's responsibility to go over all of the terms of the SSOSA again with Mr. Hendron. He's had those terms gone over with him numerous times since 2009.

So the treatment termination, the failure to comply with the polygraph, the failure to turn over the cell phone password, the totality of all of these things lead me to revoke the SSOSA that was given to Mr. Hendron.

Report of Proceedings (RP) at 281-82. The trial court ordered Mr. Hendron to serve his 131 months of incarceration followed by lifetime community custody.

Mr. Hendron then asked to have e-mail or telephonic contact with his son. The State objected to the request until it had a chance to hear from the mother and the son. The court agreed and asked that defense counsel provide the mother's contact information to the State or obtain a notarized statement from the mother signifying her support so contact could be facilitated.

In the order revoking Mr. Hendron's SSOSA, the trial court wrote: "[Mr. Hendron] may not have contact with minor children except for email and phone contact with biological son: J.H.-V. upon approval of bio[logical] mom via email." Clerk's Papers at 114. Mr. Hendron timely appealed the revocation order.

ANALYSIS

ORAL RULING ADEQUATE FOR REVIEW

Mr. Hendron argues the trial court's oral ruling is inadequate for appellate review. He does not seek remand for entry of formal findings of fact and conclusions of law. Nor does he assign error to challenge the evidentiary bases given by the trial court for revoking his SSOSA sentence.

A SSOSA sentence may be revoked at any time if there is sufficient proof to reasonably satisfy the court that the offender has violated a condition of the suspended sentence or failed to make satisfactory progress in treatment. State v. McCormick, 166 Wn.2d 689, 705, 213 P.3d 32 (2009); RCW 9.94A.670(11)(a)-(b). We review a trial court's decision to revoke a SSOSA sentence for an abuse of discretion. State v. Ramirez, 140 Wn. App. 278, 290, 165 P.3d 61 (2007).

An offender facing revocation of a SSOSA sentence has only minimal due process rights akin to one facing revocation of probation or parole. State v. Dahl, 139 Wn.2d 678, 683, 990 P.2d 396 (1999). "Due process requires that judges articulate the factual basis of the decision." Id. at 689. "Although oral rulings are permitted, we strongly encourage judges to explain their reasoning in written findings." Id. A reviewing court that is unable to determine from the record the basis for a lower court's discretionary ruling may reverse the ruling and remand the case for further proceedings. State v. Rafay, 167 Wn.2d 644, 655, 222 P.3d 86 (2009).

Mr. Hendron argues the trial court's findings are insufficient for meaningful review and we should reverse the trial court. He cites Dahl as an example of a case where the court reversed a SSOSA revocation because there were no written findings. Mr. Hendron misapprehends the holding in Dahl. In Dahl, the court reviewed a casewhere the trial court had taken unreliable hearsay evidence at the proceeding. 139 Wn.2d at 690. Because the trial court did not give written findings and did not adequately show what evidence it based its decision on, the court in Dahl was unable to determine whether the error was harmless. Id. The error that required reversal was not the findings themselves, as Mr. Hendron argues here, but the hearsay evidence. Id.

Mr. Hendron...