Opinion
No. 18664-4-III.
Filed: January 18, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Spokane County, No. 91-1-00196-1, Hon. Kathleen O'Connor, July 26, 1999, Judgment or order under review.
Counsel for Appellant(s), Susan M. Gasch, Attorney At Law, P.O. Box 30339, Spokane, WA 99223-3005.
Counsel for Respondent(s), Kevin M. Korsmo, Spokane County Prosecutor's Office, W. 1100 Mallon, Spokane, WA 99260.
The State charged Keith Haynie with violating the terms of his probation. After a hearing, the court found that he had willfully failed to pay his financial obligations. It also found violations for failing to report and notify the Department of Corrections of a change in his address. Claiming the evidence did not support these findings, Mr. Haynie appeals. We affirm.
In 1991, Mr. Haynie received a deferred sentence under the Special Sex Offender Sentencing Alternative (SSOSA) program for pleading guilty to one count of first degree child molestation. The court imposed a financial obligation of $397.83 for costs, assessments, and restitution, but determined he was currently unable to pay these obligations. On August 26, 1997, Mr. Haynie agreed to pay $10 a month toward these obligations.
In 1999, the State alleged Mr. Haynie violated the terms of his probation for failing to report to his supervising officer and failing to notify the Department of Corrections (DOC) of a change in his address. It also claimed he did not pay his financial obligations as required. After a hearing, the court determined that although Mr. Haynie was required to report on April 8, 1999, he did not. It also found he failed to change his address with the DOC. After considering Mr. Haynie's monthly income and expenses, the court determined that he had agreed to pay $10 a month and he had the ability to do so. Thus, the court found he had willfully failed to pay his financial obligations.
The court imposed 60 days in jail for each of the three violations. This appeal follows.
Mr. Haynie first claims the trial court erred by finding he willfully failed to pay his financial obligations. A trial court may punish an offender who has violated any condition or requirement of his sentence.
RCW 9.94A.200(1). The State has the burden to show by a preponderance of the evidence that the defendant violated a sentencing condition. Former RCW 9.94A.200(2)(b) (1989); State v. Gropper, 76 Wn. App. 882, 887, 888 P.2d 1211 (1995). Once the State has met this burden, the defendant has the burden of showing that the violation was not willful under the `show cause' provision of former RCW 9.94A.200(2)(a) (1989). Gropper, 76 Wn. App. at 887. It is undisputed that Mr. Haynie has not complied with the financial obligations imposed by the court. He claims that because of his limited income he was not able to make the required payments. But a defendant claiming indigency must do more than merely plead poverty. State v. Bower, 64 Wn. App. 227, 233, 823 P.2d 1171 (1992). To demonstrate that the failure to pay was due to true indigency rather than willful conduct, the defendant should provide the court with his (1) actual income, (2) reasonable living expenses, (3) efforts to find employment, and (4) efforts to legally acquire resources from which to pay his court ordered obligations. Id. Mr. Haynie only established the first two factors. He did not testify regarding his efforts to find employment. He also did not mention any additional resources that he could use to meet his obligations. Failure to make a bona fide effort to seek employment or otherwise legally acquire resources to satisfy the court ordered financial obligations may reflect an insufficient concern for paying the debt owed to society for a crime. Id. at 231-32. Mr. Haynie did not establish that his failure to pay was not willful. The court did not err by so finding. Mr. Haynie next claims the court erred by finding he willfully failed to report and change his address as required by the terms of his sentence.
Mr. Haynie claims the DOC is trying to add a $10 fee and the State is imposing interest to his financial obligation and he should not be required to pay either. There is nothing in the record regarding either alleged addition to his obligation. Because this argument deals with information outside the record, it must be brought in a personal restraint petition. See State v. McFarland, 127 Wn.2d 322, 338 n. 5, 899 P.2d 1251 (1995).
In his pro se brief, Mr. Haynie alleges the court should have permitted him to perform community service in lieu of restitution. Only if the violation was not willful is the court required to consider alternatives to incarceration. Gropper, 76 Wn. App. at 886.
RCW 9.94A.200(1) permits a court to modify a judgment and sentence and impose further punishment if an offender violated any condition or requirement of a sentence. The State has the burden of showing noncompliance by a preponderance of the evidence. Former RCW 9.94A.200(2)(b) (1989); Gropper, 76 Wn. App. at 887. With respect to violations for failure to report and failure to notify of an address change, the court need not consider if the violations are willful. Id. at 885. First the State alleged Mr. Haynie failed to report. His probation officer testified Mr. Haynie was ordered to report on April 8. He called his officer on April 6 and told the officer he was in the hospital. But other than his testimony, there is no evidence of his hospitalization. He did not report on April 8 as required. The court did not err by finding a failure to report.
The State also alleged that Mr. Haynie failed notify the DOC of an address change. His sentence required such notification. His last known address was the House of Charity. On April 9, 1999, the DOC learned that Mr. Haynie had not been at that address in over one week. This was enough to establish failure to notify the DOC of an address change. Finally, Mr. Haynie claims he was denied his constitutional right to confront a witness because a violation report contained statements from his former girlfriend, who did not testify at the hearing. A defendant has minimal due process rights in a probation revocation hearing, including the right to confront witnesses. In re Personal Restraint of Boone, 103 Wn.2d 224, 230-31, 691 P.2d 964 (1984). The court applies this same standard to a hearing to consider violations of a sentence. See State v. Badger, 64 Wn. App. 904, 907-08, 827 P.2d 318 (1992). Because of the need for flexibility in these types of proceedings, a defendant's confrontation right may be limited by the admission of hearsay evidence. See State v. Nelson, 103 Wn.2d 760, 763, 697 P.2d 579 (1985). Many hearsay documents are inherently reliable and may be admitted at a probation violation hearing in lieu of live testimony. State v. Anderson, 88 Wn. App. 541, 544, 945 P.2d 1147 (1997). Mr. Haynie contests the use of a violation report containing the hearsay statements of his former girlfriend supporting his failure to report. These statements were corroborated by the probation officer's own testimony whom Mr. Haynie cross-examined. The evidence was sufficiently reliable, and the court had good cause to admit it. Affirmed.
Mr. Haynie points to the fact that his probation officer did not verify his registered address with the sheriff's office as evidence he did not commit the violation. But he was not charged with failing to register with the sheriff and thus there was no need to make such a verification.
A majority of the panel has determined that 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: BROWN, A.C.J., KATO, J.