Opinion
No. 34506-4-II.
May 22, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 01-1-00619-5, D. Gary Steiner, J., entered March 3, 2006.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Van Deren, A.C.J., and Quinn-Brintnall, J.
James Brian Shaughnessy appeals from a revocation of his Special Sexual Offender Sentencing Alternative (SSOSA). We hold that revocation was appropriate in light of his admission that he violated five conditions of the suspended sentence. Also, Shaughnessy fails to demonstrate any violation of article I, section 11 of the Washington State Constitution with regard to his free exercise of religion because he requested the non-religious treatment program when there were religious-based programs available. We affirm.
FACTS
In April 2001, Shaughnessy pleaded guilty to one count of first degree child molestation and one count of first degree assault of a child with sexual motivation. In June 2001, the trial court accepted a joint recommendation, suspending Shaughnessy's sentence and imposing a SSOSA sentence.
The SSOSA required Shaughnessy to complete three years of a sex offender treatment program. It also required him to register as a sex offender; to report to a community correction officer (CCO); to find full-time employment in an approved program; to notify a CCO of any change in address; and to not travel outside of Pierce County without prior approval.
After attending the first two or three sessions of his sex offender treatment program, Shaughnessy fled to Mexico. In October 2001, the State filed a notice of violation for failure to register with a CCO, and in November 2001, the trial court issued a bench warrant for his arrest.
Meanwhile, after living in Mexico for a year, Shaughnessy obtained a United States passport under a false name. He traveled to Venezuela and later to Columbia where he was robbed of his fake passport. In April 2004, Shaughnessy was deported back to the United States.
In November 2004, Shaughnessy pleaded guilty to federal crimes related to the false passport and was sentenced to 10 months. In July 2005, after he served his federal sentence, the federal government returned him to Pierce County.
Upon his return to Pierce County custody, Shaughnessy's CCO filed a supplemental notice of violation alleging that Shaughnessy violated SSOSA conditions when he (1) failed to notify his CCO of his change of address, (2) failed to comply with a sex offender program, (3) failed to register as a sex offender, (4) failed to obtain full-time employment in an approved program, and (5) failed to stay within Pierce County. His CCO asked the court to revoke the SSOSA and impose the original suspended sentence.
At the SSOSA revocation hearing, Shaughnessy stipulated that he committed all of the alleged violations. He nonetheless asked the trial court to exercise its discretion and give him a second chance to complete his SSOSA. Shaughnessy testified that the only reason he fled was that his sex offender treatment provider, Marsha Macy, would not let him bring a Bible to his treatment sessions and imposed conditions on his church attendance.
But Shaughnessy's judgment and sentence informed him that he could change sex offender treatment providers with the approval of his CCO and the court. The judgment also warned Shaughnessy that the court could revoke his suspended sentence at any time if he violated his SSOSA conditions. At the hearing, he admitted that he read every sentence of his judgment and sentence. And Shaughnessy's public defender in 2001 testified that his general practice included telling his clients about how to address problems with a specific provider.
In its oral ruling, the trial court declined to consider Shaughnessy's trouble with his sex offender treatment provider over religion as mitigation:
I do not see this as a religious freedom case. . . . This religion business, while very, very important in our life and his, is not a basis for him to throw up his hands and say [he is] going to Venezuela.
RP (Mar. 3, 2006) at 145. After noting Shaughnessy's history of sexual assaults disclosed in his offender treatment, his pedophilia diagnosis, his flight to Mexico, and the federal crime he committed, the trial court ruled:
I'm revoking his SSOSA for all the reasons advanced by the State. . . . He's run away from it. Committed a federal crime. I don't feel comfortable having him out in the community.
RP (Mar. 3, 2006) at 146. The trial court then signed an order revoking Shaughnessy's SSOSA that noted that Shaughnessy stipulated to violating the terms and conditions of his sentence.
ANALYSIS I. Abuse of Discretion and Due Process
Shaughnessy contends that the trial court abused its discretion when it revoked his suspended sentence without adequately weighing his religious beliefs. In addition, he alleges the trial court violated his due process rights by failing to clearly articulate its reasons for revoking his sentence.
Initially, Shaughnessy suggests that the trial court abused its discretion because it failed to adequately consider Macy's allegedly anti-Christian attitude in treatment. We review a trial court's decision to revoke a SSOSA suspended sentence for abuse of discretion. State v. Badger, 64 Wn. App. 904, 908, 827 P.2d 318 (1992). A trial court abuses its discretion when its decision is manifestly unreasonable or is based on untenable grounds. State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003).
An offender's SSOSA may be revoked at any time if a court is reasonably satisfied that an offender violated a condition of his suspended sentence. State v. Dahl, 139 Wn.2d 678, 683, 990 P.2d 396 (1999); RCW 9.94A.670(10)(a) (formerly RCW 9.94A.120(8)(a)(vi)(A) (2000)). Shaughnessy stipulated to several violations, including fleeing to Mexico, failing to register as a sex offender, failing to notify his CCO of a change of address, failing to complete a sex offender treatment program, and failing to obtain full time employment. We hold, as a matter of law, that when an offender flees the country while on a suspended SSOSA sentence, the trial court does not abuse its discretion by deciding to revoke the suspended sentence.
In any case, Shaughnessy is factually incorrect. The trial court did consider his explanation for why he violated the conditions of his suspended sentence. The trial court correctly noted that Shaughnessy's dissatisfaction with Macy was not a valid reason to flee the country. This is especially true where his judgment and sentence notified him that he could change his treatment provider with the proper approval. The trial court did not abuse its discretion in revoking Shaughnessy's SSOSA.
Shaughnessy next argues that the trial court violated his due process rights by failing to adequately state its reasons for revoking his SSOSA sentence. An offender facing revocation of a suspended sentence has minimal due process rights. Dahl, 139 Wn.2d at 683. The purpose of these minimal rights is to ensure that a revocation is based on verified facts. Dahl, 139 Wn.2d at 683. These rights include the right to (a) notice, (b) disclosure of the State's evidence, (c) an opportunity to be heard, (d) a somewhat limited right to confront witnesses, (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." Dahl, 139 Wn.2d at 683. While we encourage written findings, the trial court may satisfy the last requirement in its oral ruling, so long as the oral ruling is sufficiently detailed to be amenable to judicial review. Dahl, 139 Wn.2d at 689.
The trial court's written order specified that it was revoking Shaughnessy's SSOSA because he had violated the conditions of his suspended sentence. There is a sufficient record for our review when the trial court's written order is considered with its oral ruling. The trial court indicated that considering Shaughnessy's sexual crime, his flight to Mexico, his federal crime, and his pedophilia diagnosis, it was not comfortable letting him back into the community. This statement is sufficient for us to determine that Shaughnessy violated the conditions of his sentence and that the trial court did not abuse its discretion.
Shaughnessy next argues that the trial court's oral ruling is not clear because the court appeared to speculate about crimes he might have committed while in Mexico. He relies on Dahl and State v. Lawrence, 28 Wn. App. 435, 624 P.2d 201 (1981), to argue that the trial court may not base its decision on speculative evidence. These decisions are distinguishable.
In both Dahl and Lawrence, the trial court relied on improper hearsay evidence as proof that a violation had occurred. Dahl, 139 Wn.2d at 689-90; Lawrence, 28 Wn. App. at 439. In contrast, in this case, Shaughnessy admitted to several violations, each of which would have been a sufficient independent basis for revoking his SSOSA. A fair reading of the record shows that the trial court based its decision on Shaughnessy's flight, the federal crime, his pedophilia diagnosis, the nature of his crime, and his admitted sexual past. As these facts were not derived from improper evidence, Dahl and Lawrence do not compel reversal.
The trial court did note that he was an unsupervised pedophile for a considerable number of months during his flight and that the trial court believed that there were thousands of unprotected children in Mexico, Venezuela, and Columbia. But the trial court did not speculate that Shaughnessy committed any sexual assaults. While it might have been inappropriate to speculate about what Shaughnessy may have done while abroad, the trial court did not revoke his SSOSA for hypothetical events. The error, if any, was not harmless. Dahl, 139 Wn.2d at 687-88 (holding that consideration of improper evidence is subject to harmless error analysis).
II. First Amendment
Shaughnessy next argues that the State violated his First Amendment right to free exercise of religion by making him use a sex offender treatment provider who did not allow him to bring a Bible to treatment sessions and conditioned his church attendance on avoiding children in church.
We review the order revoking Shaughnessy's SSOSA, not the conduct of his sex offender treatment provider. The statute allowing a trial court to revoke Shaughnessy's SSOSA for his failure to comply with any conditions on his sentence simply does not implicate Shaughnessy's right to practice religion. Moreover, the trial court did not revoke his SSOSA because he practiced Christianity or because Shaughnessy was Christian. In fact, the trial court was careful to indicate his decision was not based on Shaughnessy's religious beliefs. Instead, the trial court revoked Shaughnessy's SSOSA because he fled the country and violated several conditions of his suspended sentence. In other words, Shaughnessy's free exercise of religion did not lead to his revocation; rather, his ill-advised decision to flee to Mexico did.
If Shaughnessy wished to challenge a condition of his original SSOSA as being unconstitutional, his remedy was to file a personal restraint petition, not to flee the country and only return when deported from Columbia. Alternatively, as noted in his judgment and sentence, he could have asked the court to change his providers. He did neither.
We agree with the State that the SSOSA in this case did not violate Shaughnessy's First Amendment rights because State action did not burden Shaughnessy's free practice of religion. Article I, section 11 of the Washington Constitution, which absolutely protects the free exercise of religion, provides broader protections than the federal constitution. First Covenant Church of Seattle v. City of Seattle, 120 Wn.2d 203, 229-30, 840 P.2d 174 (1992). We therefore analyze Shaughnessy's claim under the broader Washington protections. State action is constitutional under our constitution if the action results in no infringement of a citizen's right or if a compelling state interest justifies any burden on the free exercise of religion. First Covenant, 120 Wn.2d at 226.
We analyze free exercise claims in a three-part analysis. First, we determine if the parties have an arguably sincere religious belief central to the practice of their religion. Munns v. Martin, 131 Wn.2d 192, 199, 930 P.2d 318 (1997). Second, the challenging party must show that the challenged enactment burdens his free exercise of religion. State v. Balzer, 91 Wn. App. 44, 54, 954 P.2d 931, review denied, 136 Wn.2d 1022 (1998). Once the party establishes a burden on a religious free exercise, we determine if the burden is offset by a compelling state interest served by the least restrictive means to achieve that interest. Balzer, 91 Wn. App. at 56.
Shaughnessy's argument fails because the State did not burden his free exercise of religion. The only state enactment in this case is the trial court's condition requiring Shaughnessy to complete a sex offender treatment program. But Shaughnessy does not complain of the court's condition; he argues that a private person, Marsha Macy, made him feel uncomfortable about his religion.
Taking Shaughnessy's statement of facts as true for purposes of our analysis, several factors prevent Shaughnessy from sustaining his burden of showing a constitutional violation. After receiving a favorable evaluation from Macy, Shaughnessy requested that the State require him to attend Macy's rehabilitation program. There were, and are, other providers available who apparently do not have the same approach to religion. Shaughnessy could have initially requested another provider, or he could have requested another provider after discovering Macy would not let him carry a Bible into treatment sessions.
Ultimately, the State did not burden Shaughnessy's religious practice. A private party may have. And, the State does not violate the constitution when it uses a provider that uses or does not use particular religious content. See In re Pers. Restraint of Garcia, 106 Wn. App. 625, 630, 24 P.3d 1091, 33 P.2d 750 (2001) (holding the Establishment Clause is not violated by a religiously oriented chemical dependency program when an alternative program without religious content are available). No condition imposed by the State prohibited, affected, or interfered with Shaughnessy's religious beliefs.
Because there were alternative programs and a means specified in his judgment and sentence that permitted him to change treatment providers, Shaughnessy cannot maintain his claim that the State denied him his right to the free exercise of religion.
Because we hold that Macy was not a state actor, we need not address the specific claims; but we note that a provider requirement that he not attend church programs where there were children was entirely appropriate. The State could have placed such a prohibition just as one could be enforced prohibiting his presence at school grounds or parks where children were present. Many alternatives were available to him to practice his religion in the absence of children; attendance by broadcast media was available; being in church in another room; attendance at services where children do not attend or attendance and participation as many invalids or shut-ins are forced to practice their religion, even to the taking of sacraments at their residences remote from the church building.
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.
QUINN-BRINTNALL, J. and VAN DEREN, A.C.J., concur.