Opinion
No. 32738-4-II.
September 6, 2006.
Appeal from a judgment of the Superior Court for Kitsap County, No. 97-1-01054-1, Anna M. Laurie, J., entered December 13, 2004.
Counsel for Appellant(s), James Lewis III Reese, Attorney at Law, Port Orchard, WA.
Counsel for Respondent(s), Randall Avery Sutton, Kitsap Co Prosecutor's Office, Port Orchard, WA.
Affirmed by unpublished opinion per Quinn-Brintnall, C.J., concurred in by Armstrong and Penoyar, JJ.
Larry Fields appeals the revocation of his special sex offender sentencing alternative (SSOSA) and reinstatement of his 97.5-month standard range sentence, contending that the trial court erred by (1) admitting hearsay evidence; (2) failing to give him notice of the revocation hearing; (3) applying the wrong standard to revoke his SSOSA; and (4) crediting an incorrect amount of time served when it re-imposed his original sentence. Pro se, Fields argues that (1) the sentencing condition requiring that he possess no pornography is unconstitutionally vague; (2) the evidence discovered during the search of his residence must be suppressed; (3) he was subjected to discrimination and harassment; and (4) he received ineffective assistance of counsel. Finding no error, we affirm.
FACTS
On May 20, 1998, Fields pleaded guilty and was convicted of two counts attempted first degree child molestation, counts I and II, and one count attempted second degree child molestation, count III. The trial court sentenced Fields to a standard range sentence of 97.5 months, but suspended all but four months under SSOSA according to former RCW 9.94A.120(8)(a)(ii) (1997). Fields's SSOSA sentence required that Fields possess no pornography as defined by his community corrections officer (CCO) or treatment official and possess or consume no alcohol or illegal drugs. He also was required to successfully complete a three-year outpatient sex offender treatment program with a qualified treatment provider, obey a 10 p.m. curfew, and abide by geographical restrictions. Fields was sentenced to serve four months' confinement with credit for 33 days already served.
January 2, 2003, Fields completed his sex offender treatment program portion of his sentence.
On August 31, 2004, Fields's CCO, Douglas Butcher, and another CCO visited Fields's residence. Fields lived downstairs and his mother lived upstairs. The CCOs walked with Fields to the back yard. There they noticed a small outlying cottage-like building. Fields told them that the cottage had been a residence but that now he and his mother used it as a tool shed. With Fields's permission, Butcher looked in the tool shed. There he discovered a marijuana grow operation. Fields admitted that the marijuana was his. Butcher called 911. When the police searched the cottage and the residence, they found pornographic videos and magazines in the laundry room of Fields's residence.
The record also refers to Butcher as Dave.
Fields was arrested for possession of marijuana and possessing pornographic videos and magazines. Kitsap County Judge Anna Laurie conducted a two-day revocation hearing to determine whether Fields's SSOSA should be revoked. Three people testified at the revocation hearing:
Fields pleaded guilty and, on October 20, 2004, was convicted for one count of manufacturing marijuana.
In addition to these three new violations, Fields had earlier violations for possession and use of pornography that were handled administratively. He also had other incidents with violation of his curfew and geographical restrictions. Additionally, the record is replete with testimony regarding Fields's use of secrecy and his failure to disclose things to his therapist, group, or CCO.
Butcher, Fields, and Dr. Whitehill.
During the revocation hearing, Fields admitted that he violated the conditions of his judgment and sentence by using and growing marijuana. He also admitted to using and possessing pornography in violation of his judgment and sentence. `Those triple `X' sex tapes were not supposed to be in my house. I was not supposed to be watching them, and I know that, and I shouldn't have kept it secret. I have nobody to blame except me.'2 Report of Proceedings (RP) at 56.
Dr. Whitehill testified that Fields was not a high risk to the community. He stated that he did not think that Fields had ever been a high risk, but that Fields's level of risk had increased as a result of his secrecy, marijuana growing, possessing unauthorized pornography, and having undisclosed relationships. Dr. Whitehill recommended against revoking Fields's SSOSA, stating that despite being serious, Fields's violations fell `far below the threshold' of when he usually recommended revocation. 2 RP at 25.
But the court disagreed. It found that Fields was impossible to supervise under his SSOSA sentence.
XIX.
That as a result of these deceptions and failure to disclose, the defendant is impossible to supervise under his SSOSA sentence.
XX.
That the defendant is a threat to the community because of his ability to deceive, his failure to disclose his behavior and because he has possessed pornography and committed the crime of manufacturing marijuana all while under community custody supervision.
Clerk's Papers (CP) at 125-26.
The court signed findings of fact and conclusions of law, but the record contains only an unsigned copy. It found that he was a threat to the community because of his ability to deceive and failure to disclose his sexual relationships and because he possessed pornography and manufactured marijuana while in community custody. It concluded that he violated the terms of his SSOSA by possessing pornography and manufacturing marijuana and revoked his SSOSA.
The court revoked Fields's SSOSA and reinstated Fields's original 97.5-month sentence with credit for the four months' confinement time already served. Fields appeals.
ANALYSIS Hearsay/Due process
Fields maintains that Butcher's hearsay testimony at the revocation hearing violated his due process rights.
An individual accused of violating the conditions of a SSOSA is entitled to minimal due process protections. State v. Abd-Rahmaan, 154 Wn.2d 280, 288, 111 P.3d 1157 (2005); State v. Dahl, 139 Wn.2d 678, 683, 990 P.2d 396 (1999). Those include the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation), a written finding as to the evidence relied on, and reasons for the revocation. Dahl, 139 Wn.2d at 683. The court may admit hearsay evidence in a post-conviction hearing upon a finding of good cause. Dahl, 139 Wn.2d at 686. `Good cause is defined in terms of `difficulty and expense of procuring witnesses in combination with `demonstrably reliable' or `clearly reliable' evidence.'' Dahl, 139 Wn.2d at 686 (quoting State v. Nelson, 103 Wn.2d 760, 765, 697 P.2d 579 (1985)). `When admitting hearsay on a finding of good cause, trial courts are required to articulate the basis on which they are admitting the hearsay testimony by either oral or written findings in order to facilitate appellate review.' Abd-Rahmaan, 154 Wn.2d at 291.
While Abd-Rahmaan is a modification hearing case, the rules still apply to revocation hearings because the two types of hearings are not substantially different.
Fields asserts that the trial court erred by permitting Butcher's hearsay testimony without requiring the State to show good cause and without articulating on the record the basis for admitting the hearsay evidence. He asserts that he was prejudiced by this violation and asks that we dismiss the State's revocation petition.
Butcher testified that the pornography was found by an officer in the laundry room. Because Butcher testified from an incident report, Fields objected on hearsay grounds. The court overruled the objection, stating:
Fields argued that the statement was inadmissible hearsay and that the State is going to have to show that Fields was in possession of the backdrop because there were other people that lived in the home in different areas.
Well, I appreciate that there was a misunderstanding and I don't think that's completely unusual.
Defense maintained that it originally thought that Butcher found the pornography.
In this case I am going to allow the testimony under rule 1101, but how much can be gleaned from the bare records in terms of [defense counsel's] point that it may have been in possession of some of the other housemates, I guess remains to be seen.,
1 RP at 37.
Violations of a defendant's minimal due process right to confrontation are subject to harmless error analysis. The harm in erroneously admitting hearsay evidence, and thus denying the right to confront witnesses in a revocation case, is the possibility that the trial court will rely on unverified evidence in revoking the suspended sentence. Dahl, 139 Wn.2d at 688.
But here, error, if any, was clearly harmless. Fields admitted that he violated the conditions of his SSOSA by possessing triple X videos. Moreover, he testified that the pornography in question was in the laundry room. After Fields's admission, the hearsay statement itself where in Fields's house the box of pornography was located is totally irrelevant. The harm from erroneously admitting hearsay evidence in the context of a revocation hearing is the possibility that the trial court will rely on unverified evidence in revoking the suspended sentence. Dahl, 139 Wn.2d at 688. Here, Fields's admission verified the hearsay statement and the trial court did not rely on unverified evidence in making its decision to revoke Fields's SSOSA. Thus, any error was harmless.
Notice of Violations/Due Process
Fields also argues that we must reverse his sentence because the absence of a formal revocation motion deprived him of the opportunity to explain his version of events. The State argues that the record shows that Fields was informed of the violations and the hearing and that he had ample opportunity to present his case.
Minimal due process requires that Fields receive written notice of claimed violations and disclosure of the evidence against him. Dahl, 139 Wn.2d at 683.
The record contains a notice of violation dated September 1, 2004. This notice does not bear a filing stamp, but it specifies that on or about August 31, 2004, Fields violated three conditions of his supervision by possessing and/or manufacturing marijuana, possessing pornography in video format, and possessing pornography in magazine format. The document also lists the evidence supporting the alleged violation. In the report, Butcher recommended that a violation hearing be scheduled for the earliest possible convenience.
The supplemental clerk's papers also contain a document dated September 15, 2004. This document indicates that there is a motion to revoke SSOSA special set for October 20, 2004, and that Fields received written and oral notice of the hearing date. It indicates that on September 15, 2004, Fields appeared in custody and was represented by counsel. The record also contains a document noting the State's motion to continue the October 20, 2004 SSOSA revocation hearing until November 15, 2004. This document shows that the court granted the continuance and that Fields received oral and written notice of the new hearing date. The record shows that Fields's due process rights to adequate notice and an opportunity to be heard were protected.
Revocation Standard
Citing former RCW 9.94A.120(8)(a)(ii), Fields argues that the trial court improperly focused on whether revocation was in the community's best interests and did not adequately consider whether it was also in Fields's best interest. Fields argues that before revoking a SSOSA, the trial court must determine whether revocation is in the community's and the offender's best interest. We disagree.
Former RCW 9.94A.120(8)(a)(ii) stated:
After receipt of the reports, the court shall consider whether the offender and the community will benefit from use of this special sex offender sentencing alternative and consider the victim's opinion whether the offender should receive a treatment disposition under this subsection. If the court determines that this special sex offender sentencing alternative is appropriate, the court shall then impose a sentence within the sentence range. If this sentence is less than eleven years of confinement, the court may suspend the execution of the sentence and impose the following conditions of suspension.
Former RCW 9.94A(8)(a)(vi) (1997) governed Fields's SSOSA revocation hearing, not former RCW 9.94A(8)(a)(ii). That statute provided that an offender's SSOSA may be revoked at any time an offender has violated a condition of his suspended sentence or failed to make satisfactory progress in treatment. Former RCW 9.94A.120(8)(a)(vi); Dahl, 139 Wn.2d at 683. The applicable revocation standard did not require the court to consider the violating offender's best interests. Former RCW 9.94A.120(8)(a)(vi).
Former RCW 9.94A(8)(a)(vi) states:
The court may revoke the suspended sentence at any time during the period of community custody and order execution of the sentence if: (A) The defendant violates the conditions of the suspended sentence, or (B) the court finds that the defendant is failing to make satisfactory progress in treatment. All confinement time served during the period of community custody shall be credited to the offender if the suspended sentence is revoked.
The State cites to RCW 9.94A.670(10)(a) as the authority for revoking Fields's sentence. The court's unsigned conclusions of law also reference this provision. But this statute was not in effect at the time Fields committed the crime and was sentenced. Former RCW 9.94A.120(8)(a)(vi) is the correct statute. The statutes contain exactly the same language regarding the court's discretionary ability to revoke SSOSA.
`Proof of violations need not be established beyond a reasonable doubt, but only must `reasonably satisfy' the court the breach of condition occurred.' State v. Badger, 64 Wn. App. 904, 908, 827 P.2d 318 (1992).
Fields additionally appears to claim that because the proper standard is whether revocation would benefit the offender and the community, the court `negated [his] right to allocution' by applying the wrong standard. Br. of Appellant at 30. We cannot fairly address inadequately briefed issues. RAP 10.3(a)(5). Moreover, the record shows that Fields was not denied the right to allocution. During allocution, Fields said: `I'm very sorry. This has been my fault from the beginning, and I wish that her Honor could have found a different verdict the other day, but I understand where we're at today, and I hope to do better in the future. I hope this is the last time to see me.' RP (Nov. 19, 2004) at 4.
Credit for Time Served
Fields argues that the trial court erred by giving him only four months' credit toward his time served against his original sentence.
On June 22, 1998, Fields was sentenced to serve 97.5 months' confinement. The sentence was suspended on SSOSA conditions. One sentencing condition required that Fields serve four months in confinement. When the court revoked Fields's SSOSA, it ordered that he shall serve `all previously suspended sentence[s].' CP at 116. It also entered an order amending the judgment and sentence placing him in community custody following incarceration. Following his SSOSA revocation, Fields was ordered to serve 93.5 months' confinement with the Department of Corrections (DOC).
Fields maintains that he is also entitled to credit against the 97.5-month term for the time he spent in community custody from June 22, 1998 to August 31, 2004. He asserts that his sentence was never suspended because the trial court did not check the box on the judgment and sentence that states: `[t]he defendant is a sex offender and is sentenced under SSOSA. The execution of the sentence of confinement is suspended and the defendant is placed on community custody' (CP at 55), but it checked the box stating that he was placed on community custody. He argues that due to this scrivener's error his sentence was never suspended and that he should be credited with all of his time in community custody as if he had been incarcerated. Fields also argues that the legislature did not intend to negate a participant's entire time spent serving community custody when the offender violates the terms of his sentence late in the SSOSA program.
Section 4.6 of the judgment and sentence contains a box that reads: `4.6 SSOSA. . . . The defendant is a sex offender and is sentenced under SSOSA. The execution of the sentence of confinement is suspended and the defendant is placed on community custody.' CP at 55. This box was not checked. There is another box under the heading `supervision' that places defendant on community custody; it is also numbered 4.6, and this box is checked.
The State argues that Fields's claim is contrary to the plain language of the SSOSA statute under which Fields's sentence was suspended and later revoked. It argues that the trial court's failure to check the box was clearly scrivener's error. We agree with the State.
SSOSA is a sentencing alternative authorized by the Sentencing Reform Act of 1981, chapter 9.94A RCW. SSOSA permits a sentencing court to suspend the sentence of a first-time sex offender if the offender meets certain eligibility criteria defined in former RCW 9.94A.120(8). State v. Canfield, 154 Wn.2d 698, 701 n. 1, 116 P.3d 391 (2005); Dahl, 139 Wn.2d at 682-83. If the trial court revokes an offender's SSOSA sentence, the trial court reinstates the offender's original sentence. Dahl, 139 Wn.2d at 683. Fields could not be on SSOSA without the court suspending his original sentence:
If the court determines that this special sex offender sentencing alternative is appropriate, the court shall then impose a sentence within the sentence range. If this sentence is less than eleven years of confinement, the court may suspend the execution of the sentence and impose the following conditions of suspension:
(A) The court shall place the defendant on community custody for the length of the suspended sentence or three years, whichever is greater, and require the offender to comply with any conditions imposed by the department of corrections under subsection (14) of this section.
Former RCW 9.94A.120(8)(a)(ii) (emphasis added).
The SSOSA statute also requires that the court impose the original sentence if it revokes the suspension:
The court may revoke the suspended sentence at any time during the period of community custody and order execution of the sentence if: (A) The defendant violates the conditions of the suspended sentence, or (B) the court finds that the defendant is failing to make satisfactory progress in treatment. All confinement time served during the period of community custody shall be credited to the offender if the suspended sentence is revoked.
Former RCW 9.94A.120(8)(a)(vi) (emphasis added).
Because Fields was on SSOSA, his sentence was suspended. Former RCW 9.94A.120 (8)(a)(ii).
Fields's assertion that he should receive credit for the amount of time he was in community custody is without merit. Former RCW 9.94A.120(8)(a)(vi) requires that he receive credit for `confinement time' upon revocation of Fields's SSOSA. Fields served only four months' confinement time. The trial court's order that Fields serve 93.5 months, 97.5 months less 4 months, was proper.
Statement of Additional Grounds (SAG)
Pro se, Fields raises numerous issues in his SAG. These issues also are without merit.
Vagueness
We requested and considered the parties' additional briefing on this issue.
Fields challenges the supervision condition requiring that he shall `[p]ossess no pornography as defined by CCO or treatment official.' CP at 57. He argues that this condition is unconstitutionally vague as applied to him.
Two out of the three alleged incidents that formed the basis for revoking Fields's SSOSA were possessing pornography in video and magazine format. Numerous items were confiscated during Butcher's home visit on August 31, 2004: 13 pornographic videos, several pornographic magazines, a calendar, and a torture wax kit. The following exhibits were admitted at the revocation hearing without objection: Exhibits 1-4, 7, 10, 11, 13, 15, 17-19. The court revoked Fields's SSOSA in part based upon his admitted possession of this pornography.
Exhibits 8 and 9 are not in the record on appeal, but these were also admitted and are the pictures confiscated from a 1999 incident and reconfiscated from Fields during the August 31, 2004 incident. Exhibit 12 is not in the record on appeal, but was described by Butcher as a `torture wax kit.' 1 RP at 33.
Exhibits 1-4 are four pornography videos, respectively titled: Real Pussy Real Torment; Cumshots #7; The Art of Ass; and Cum Swapping Sluts #3.
Fields stated that this is a photo of his son. The CCO stated that this picture was a red flag because Fields was originally convicted for child sex crimes and that the photo was never approved by him for Fields to have, but he was not sure if Fields was allowed by his therapy group to have it or not.
Exhibits 10 and 11 are different issues of a magazine titled `For Play.'
Exhibit 13 is a magazine titled `Torture Garden.'
Exhibit 15 is a calendar.
Exhibit 17 is a magazine titled `Raven Hill Studios' (spanking magazine); Exhibit 18 is a Polaroid photo of a woman in a G-string bikini (Fields's SAG states that this is a picture of his girl friend); Exhibit 19 is a magazine titled `Fetish Dream Girls.'
Fourteenth Amendment due process requires that citizens be afforded fair warning of proscribed conduct. City of Spokane v. Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990). An individual on a SSOSA sentence has a due process right to sentencing conditions that are sufficiently clear to inform him of what conduct will result upon him being returned to prison. See United States v. Guagliardo, 278 F.3d 868, 872 (9th Cir. 2002).
A challenger seeking to establish that a sentencing condition is vague as applied to him must show beyond a reasonable doubt either: (1) that the condition does not define a violation with sufficient definiteness that allows persons of ordinary intelligence to understand what conduct is prohibited; or (2) the condition does not provide ascertainable standards of guilt to protect against arbitrary enforcement. Douglass, 115 Wn.2d at 178. `Vagueness in the constitutional sense means that persons of ordinary intelligence are obliged to guess as to what conduct' is proscribed. Douglass, 115 Wn.2d at 179; and see State v. Smith, 111 Wn.2d 1, 10, 759 P.2d 372 (1988).
Sufficient Definiteness
At his revocation hearing, Fields admitted having possessed pornographic items. In particular, he admitted to possessing and viewing the triple X tapes. He also admitted knowing that his possession of these items was prohibited: `Those triple `X' sex tapes were not supposed to be in my house. I was not supposed to be watching them, and I know that, and I shouldn't have kept it a secret. I have nobody to blame except me.' 2 RP at 56. Fields, therefore, established that he knew that the particular materials he was punished for possessing were proscribed. Thus, his claim that the order was unconstitutionally vague as applied to his possession of these materials necessarily fails.
Ascertainable Standards of Guilt
The second prong of a vagueness challenge requires that we examine whether the restriction at issue invites inordinate discretion on the part of law enforcement authorities. City of Seattle v. Montana, 129 Wn.2d 583, 597, 919 P.2d 1218 (1996). A restriction that lacks standards and allows law enforcement to subjectively decide what conduct is proscribed or what conduct will comply with a restriction in any given case is unconstitutionally vague. State v. Maciolek, 101 Wn.2d 259, 267, 676 P.2d 996 (1984). `[T]he requirement of ascertainable standards . . . is intended to protect against `arbitrary, erratic, and discriminatory enforcement.'' State v. Coria, 120 Wn.2d 156, 164, 839 P.2d 890 (1992) (quoting Douglass, 115 Wn.2d at 180).
Because this is an applied challenge, we evaluate the sentencing condition in light of the particular facts of the case, not by examining hypothetical situations that may exist in other cases. Douglass, 115 Wn.2d at 182-83. We have reviewed the materials and, as Fields acknowledged, some of the confiscated items are indisputably prohibited pornography by anyone's standards. No reasonable CCO could have doubted that Fields's possession of them violated the terms of his SSOSA sentence. Additionally, Fields admitted that he knew the triple X tapes were prohibited pornography, thus, as applied to Fields, the sentencing condition at issue did not subject him to arbitrary enforcement as it relates to these items.
We are not unmindful of State v. Sansone, 127 Wn. App. 630, 111 P.3d 1251 (2005), where Division One of this court held that a community custody condition with virtually identical language to the SSOSA condition at issue here was unconstitutionally vague as applied. But Sansone is distinguishable. Sansone disputed whether the confiscated item was pornographic and it was not obvious that the item was pornographic by anyone's standards. 127 Wn. App. at 635.
Sansone was `not [to] possess or peruse pornographic materials unless given prior approval by [his] sexual deviancy treatment specialist and/or [CCO]. Pornographic materials are to be defined by the therapist and/or [CCO].' Sansone, 127 Wn. App. at 634-35 (second alteration in original). Sansone's CCO took him into custody for possessing alleged pornographic picture materials that she found in Sansone's possession depicting women in low-cut blouses, a woman clothed only from the bottom down covering her breasts with her arms, and a woman covered in sheer material. Sansone, 127 Wn. App. at 635. Sansone denied that the pictures were pornographic, but the trial court disagreed and Sansone was sentenced to 60 days' confinement for violating his community placement conditions. Sansone appealed, arguing that the aforementioned community custody condition was unconstitutionally vague. Sansone, 127 Wn. App. at 635.
Although the court found Sansone's challenge to his sentence technically moot, the court addressed the argument. The court held that the term `pornography' is unconstitutionally vague as applied because it lacks sufficient definiteness and ascertainable standards of guilt. Sansone, 127 Wn. App. at 634. It found that the definition of pornography lacked sufficient definiteness because the term's meaning was to be defined by the probation officer. It found that it lacked ascertainable standards of guilt because Sansone cannot ascertain if materials are pornographic without showing them to the probation officer to obtain his determination. Sansone, 127 Wn. App. at 639.
Guagliardo and United States v. Loy, 237 F.3d 251 (3rd Cir. 2001), are also distinguishable because those cases addressed a pre-enforcement challenge to the parole condition.
The petitioner in Guagliardo challenged a condition of his supervised release requiring that he not possess `any pornography' including legal adult pornography. The court held this condition unconstitutionally vague, finding that the petitioner could not reasonably understand what a blanket provision on `pornography' encompasses. It found that the deficiency could not be cured by delegating the task of defining the term to the probation officer because it would make the definition too subjective. The court remanded to the district court to impose a condition with greater specificity. Guagliardo, 278 F.3d at 870-83.
The petitioner in Loy challenged the condition of his supervised release, which prohibited him from possessing `all forms of pornography, including legal adult pornography.' 237 F.3d at 253. The court held that this condition was unconstitutionally vague because it failed to provide any method for Loy or his probation officer to determine in advance what was pornographic and prohibited from that which was merely titillating. Loy, 237 F.3d at 254.
Warrantless Search
Fields asserts for the first time on appeal that all the evidence seized on August 31, 2004, must be suppressed because neither Butcher nor the police had a warrant.
At the revocation hearing, Exhibits 1-4, 7, 10, 11, 13, 15, and 17-19 were admitted without objection.
The record shows that after Fields consented to the search of the cottage and Butcher saw the marijuana, he called the police to investigate further. The police arrived and found pornography in the downstairs laundry room. Fields did not challenge the lawfulness of this search at the revocation hearing or object to admission of the exhibits. Moreover, reasonable suspicion of a violation, not probable cause, is required before CCOs can search the premises of a person on community supervision without a warrant. State v. Massey, 81 Wn. App. 198, 200, 913 P.2d 424 (1996). Fields may not raise a challenge to the lawfulness of the search for the first time on appeal. RAP 2.5(a)(3); State v. McFarland, 127 Wn.2d 322, 332-33, 899 P.2d 1251 (1995). See also State v. WWJ Corp., 138 Wn.2d 595, 603, 980 P.2d 1257 (1999) (declining to address a Fourth Amendment issue when the record was insufficiently developed to consider the claim).
Discrimination/Harassment
Fields asserts that he has been the victim of discrimination and harassment at the hands of the DOC as a result of his being `intersex.' He asserts that characterizing his wearing of women's clothing as a violation is discriminatory. He did not raise this issue at his revocation hearing. Now Fields contends for the first time that the CCO and DOC's use of the Catwalk incident is a continuation of that discrimination.
The `Catwalk incident' occurred in 2003. Fields was seen in a parking lot outside a Seattle bar called the Catwalk in violation of the curfew and geographical restriction conditions of his SSOSA. He was dressed in women's clothing. Fields said the Catwalk `is part of the gay community . . ., friendly, and certainly embraces that lifestyle of the gay community. . . . [It] supports the transgender lifestyle also.' 1 RP at 65-66. The officers identified Fields and wrote an incident report. Fields's CCO ordered him back to therapy to deal with his transgender issues that he had not disclosed earlier.
To the extent that Fields is raising a generalized discrimination and harassment claim, there is no evidence in the record to show that Fields was discriminated against.
To the extent that he is claiming that the State characterized his intersex and transgender orientation as being a violation of his SSOSA, he misreads the record. Fields did not violate his SSOSA in the Catwalk incident by being intersex and dressing in women's clothing. He violated his SSOSA by disobeying the 10 p.m. curfew and geographical limitations of his suspended sentence. Moreover, it is clear from the record that the therapeutic concern surrounding this incident was only that Fields had failed to disclose to his CCO, therapist, or group that he was transgendered and intersexed.
Ineffective Assistance of Counsel
Lastly, Fields alleges that he received ineffective assistance of counsel because his attorney wrongly advised him that he should plead guilty to the marijuana conviction and that, as prt of the plea, the State would not pursue SSOSA revocation. He also claims his counsel was ineffective because he did not submit his doctor's statement confirming his treatment for various illnesses.
To demonstrate ineffective assistance of counsel, a defendant must make two showings: (1) defense counsel's representation was deficient, i.e., it fell below an objective standard of reasonableness based on consideration of all the circumstances; and (2) defense counsel's deficient representation prejudiced the defendant, i.e., there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different. McFarland, 127 Wn.2d at 334-35.
We will not consider matters outside the trial record on appeal. McFarland, 127 Wn.2d at 335. Review of issues which require that we consider matters outside of the record are properly presented in a personal restraint petition. McFarland, 127 Wn.2d at 338.
Here, Fields's claims lie outside the record because there is no record of his attorney's advice regarding the marijuana manufacture charge nor is there a record of his doctor's statement. On this record, Fields is unable to show that counsel's representation was deficient and that he was prejudiced as a result. See McFarland, 127 Wn.2d at 335-38.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, J. and PENOYAR, J., concur.