State v. Whitbeck

1

STATE OF WASHINGTON, Respondent, v. AUSTEN MICHAEL WHITBECK, Appellant.

No. 84182-3-I

Court of Appeals of Washington, Division 1

April 17, 2023

UNPUBLISHED OPINION

HAZELRIGG, A.C.J.

Austin Whitbeck appeals the trial court's ruling to revoke his residential drug offender sentencing alternative, asserting violations of his due process right to notice and that the findings of fact were insufficient because they did not reflect the entirety of the evidence relied upon. Whitbeck did not raise the issue of notice before the trial court, nor did he object to the sufficiency of the findings at the time of the hearing, so those challenges are waived. The court's findings were sufficient and its revocation ruling was not an abuse of discretion. Accordingly, we affirm.

FACTS

On April 28, 2021, the State charged Austen Whitbeck with one count of burglary in the first degree, a class A felony and a most serious, or "strike," offense.^[1] Pursuant to an agreement with the State Whitbeck entered a guilty plea to amended charges: one count each of residential burglary, malicious mischief in the first degree, and assault in the third degree. The State agreed to recommend a residential drug offender sentencing alternative (DOSA) wherein Whitbeck would serve 24 months of community custody, on the condition that he complete three to six months of residential substance use disorder treatment. On October 22, 2021, the trial court adopted the parties' joint recommendation and imposed the residential DOSA. The trial court set a progress hearing for January 28, 2022.

On November 8, 2021, Whitbeck began residential treatment at American Behavioral Health Systems (ABHS) in Chehalis Washington. One month later, on December 9, Whitbeck was temporarily discharged from ABHS "due to COVID concerns" and was instructed to resume inpatient treatment following a 14-day self-quarantine period. During his temporary discharge from ABHS, Whitbeck was instructed to report via telephone to the Department of Corrections (DOC) Renton field office on December 14, 2021. However, according to DOC, Whitbeck was arrested in downtown Seattle on December 11, 2021. The incident was outlined in a DOC notice of violation (NOV) filed on December 17, 2021, which indicated that Whitbeck had smashed the glass door of a building and pulled the fire alarm while intoxicated. When officers arrived, they observed him engaging in selfharming behavior. During the arrest, officers asserted Whitbeck physically resisted and spat blood on them. He was subsequently taken to the hospital by police.

Whitbeck did not report to the DOC Renton field office on December 14 as required. As a result, the December 17 NOV identified one violation for failure to report to DOC as ordered and another for noncompliance with urinalysis (UA) based on that failure to report. DOC requested the trial court issue a bench warrant for Whitbeck's arrest and revoke the residential DOSA. On January 19, 2022, DOC filed a supplemental NOV as Whitbeck had failed to return to ABHS and resume treatment following his temporary discharge. Again, DOC recommended revocation of the DOSA.

On January 21, 2022, the court conducted a review hearing on the DOSA and Whitbeck appeared in custody.^[2] He stipulated to the three violations. Rather than revoking the DOSA as DOC recommended, the trial court entered an order for Whitbeck to return to inpatient treatment at ABHS and set a review hearing.^[3]Five days later, Whitbeck resumed treatment. He successfully completed the program and was discharged from ABHS on April 27, 2022. Whitbeck was found to be in compliance with the DOSA at each of the three compliance hearings conducted while he was in residential treatment.

Whitbeck was instructed to report to the DOC field office within 24 hours of discharge from ABHS and he complied. He was further ordered to report to the DOC field office the following week on May 4, 2022, but failed to do so. Two days later, DOC filed a NOV asserting two new violations: one for the failure to report and another for the failure to comply with the UA requirement. The NOV provided that a DOC community corrections officer (CCO) visited Whitbeck's release address, spoke with the housing manager, and discovered that Whitbeck was kicked out of the clean and sober house on April 29 after he "admitted to consuming methamphetamine." DOC again recommended that the court issue a bench warrant for Whitbeck's arrest and revoke the residential DOSA.

At the violation hearing conducted on May 27, 2022, Whitbeck again appeared in custody^[4] and stipulated that he committed the two violations contained in the NOV. He asserted that he had relapsed and further admitted that he absconded during his temporary discharge from ABHS in December 2021. Whitbeck offered an explanation of the circumstances surrounding these newest violations and requested to be returned to inpatient treatment.

The State agreed with the DOC recommendation and argued for revocation, asserting "it's time, given the violations and the concern here and the serious nature of the charge, to revoke the DOSA." The State maintained that Whitbeck had not treated the sentencing alternative seriously. After the State provided the trial court with the sentencing range for Whitbeck's offenses, the court noted that after Whitbeck's initial sentencing, there had been "an allegation of Theft, Obstructing and False Statement." The court expressed particular concern with the allegation of obstructing.

In response, Whitbeck asserted that he was taking the DOSA seriously and attempting to be accountable. He explained that his recent relapse was a result of being taken advantage of by the individuals at the clean and sober house. Additionally, he stated that he attempted to check in at the DOC field office on May 4, but he was misadvised by people on the bus, got off on the wrong stop, and arrived "literally like five minutes late."

The trial court revoked the DOSA, stating that it was "too concerned about community safety to conclude that a second return to ABHS [would be] appropriate." Based on his stipulation, the trial court found that Whitbeck had violated the conditions of the DOSA by failing to report to DOC and failing to submit a UA; it also found those violations were willful. The trial court imposed a standard range sentence of 22 months in prison, followed by 12 months of community custody.

Whitbeck timely appealed.

ANALYSIS

The DOSA program was created to encourage defendants to participate in substance-abuse treatment. In re Pers Restraint of McKay, 127 Wn.App. 165, 168, 110 P.3d 856 (2005). Pursuant to RCW 9.94A.660(3), once a trial court determines that a defendant is eligible for a residential DOSA, the court may waive a standard range sentence and instead impose residential treatment under RCW 9.94A.664. When the trial court imposes a residential DOSA, it "shall impose treatment and other conditions" during "any period of community custody." RCW 9.94A.664(2)(a). DOC may also set additional conditions of community custody. RCW 9.94A.660(6)(b). If the defendant violates the conditions or requirements of the DOSA at any point during the period of community custody, the trial "court may order the [defendant] to serve a term of total confinement within the standard range of the [defendant's] current offense." RCW 9.94A.660(7)(c).

I. Issue Preservation and RAP 2.5

Whitbeck assigns error to the revocation of his DOSA and the trial court's "stated grounds" for doing so. According to Whitbeck, he was denied due process because the State "failed to notify him of the grounds it argued in support of revocation" and the trial court "relied on those grounds" in revoking the sentencing alternative. We decline to reach the merits on these unpreserved challenges.

"It has long been the law in Washington that an 'appellate court may refuse to review any claim of error which was not raised in the trial court.'" State v. O'Hara, 167 Wn.2d 91, 97-98, 217 P.3d 756 (2009) (quoting RAP 2.5(a)). Generally, we will not consider issues raised for the first time on appeal. State v. A.M., 194 Wn.2d 33, 38, 448 P.3d 35 (2019). However, a party may seek review of a "manifest error affecting a constitutional right" for the first time on review. RAP 2.5(a)(3). To satisfy RAP 2.5, "an appellant must demonstrate (1) the error is manifest, and (2) the error is truly of constitutional dimension." O'Hara, 167 Wn.2d at 98. In other words, the appellant must make a plausible showing "that the error has practical and identifiable consequences in the trial of the case." In re Det. of T.C., 11 Wn.App. 2d 51, 61, 450 P.3d 1230 (2019).

Whitbeck's assignments of error concerning the alleged violation of his right to due process were not preserved for review as he failed to object on this basis at the time of the court's ruling. Although he asserts in his opening brief that his right to due process was violated, he fails to even reference the exception set out in RAP 2.5(a) until his reply brief. This court will not consider issues raised for the first time in a reply brief. State v. Ho, 8 Wn.App. 2d 132, 140-41, 437 P.3d 726 (2019). Even issues of constitutional magnitude raised for the first time in a reply brief need not be considered. State v. Manthie, 39 Wn.App. 815, 826 n.1, 696 P.2d 33 (1985). As Whitbeck failed to preserve his due process argument and waited until his reply brief to address RAP 2.5(a), we decline to review his claims regarding notice.^[5]

II. Written Findings Supported by the Record

Whitbeck's remaining assignment of error reads: "The trial court's written findings of fact were checked boxes on a standardized form and do not reflect the evidence it stated it relied on or the...