No. 47413-8-I.The Court of Appeals of Washington, Division One.
Filed: November 5, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of King County, No. 97-1-00649-6, Hon. Nicole Mac Innes, June 2, 2000, Judgment or order under review.
Counsel for Appellant(s), Nielsen Broman Associates Pllc, 810 Third Avenue, 320 Central Building, Seattle, WA 98104.
David B. Koch, Nielsen Broman Associates Pllc, 810 3rd Ave Ste 320, Seattle, WA 98104.
Jennifer K. Gilman, 1000 2nd Ave Ste 3500, Seattle, WA 98104.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/Appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Ann M. Summers, King County Prosecutors Office, 1850 Key Tower, 700 5th Ave, Seattle, WA 98104.
PER CURIAM.
Ciprian Ardelean challenges the order revoking his Special Sex Offender Sentencing Alternative (SSOSA) sentence. Because the State provided adequate notice of the alleged violations and substantial evidence supported the trial court’s determination that Ardelean had not made reasonable progress in his treatment program, the trial court did not abuse its discretion revoking Ardelean’s SSOSA sentence. Accordingly, we affirm.
Facts
In 1997, Ardelean pleaded guilty to one count of first degree child molestation. The trial court sentenced him to a standard-range term of 68 months, but suspended the sentence under the SSOSA provisions of RCW 9.94A.120(8)(a)(i). Under the terms of the suspended sentence, Ardelean was required to serve six months in jail, make reasonable progress in sexual deviancy therapy, follow all treatment recommendations, and have no contact with the victim or minor children. After completion of his jail term, Ardelean began treatment with Susan Moores. In May 1998, Moores terminated Ardelean from the program for failing to comply with treatment conditions. With court approval, Ardelean then began treatment with Robert Hirsch. Following an incident on December 12, 1999, Redmond police arrested Ardelean for `stalking’ a young woman. On January 12, 2000, the State notified Ardelean that it was seeking revocation of his suspended sentence. For purposes of this appeal, the relevant allegations were that Ardelean had failed to make reasonable progress in court-ordered treatment and that he had stalked a 16-year-old on December 12, 1999.
At the revocation hearing, 16-year-old Krista Simons testified that she was driving to work during the early afternoon of December 12, 1999. Simons had just merged into the far right lane when she noticed a white car drive up quickly behind her. The car, which was driven by Ardelean, was moving so fast that Simons thought it would strike her. The car then followed Simons so closely that she was unable to see the headlights in her rear-view mirror. Whenever Simons looked in the rear-view mirror, the driver of the white car appeared to be staring at her. Simons thought that the driver might be angry because she had cut him off. Ardelean’s car followed Simons for about eight blocks, until she turned into the parking lot of her workplace, the Redmond Confetti Junction, a large party supplies store. Ardelean followed Simons into the parking lot and parked about three spaces away. While Simons gathered her things together, Ardelean stayed in his car and stared at her. Simons got out of her car, entered the store, and told the assistant manager that a man was following her. Ardelean entered the store shortly after Simons and stood near the greeting cards, but did not appear to be looking at them. When the assistant manager took Simons to the back of the store, Ardelean also moved towards the back and stood in an area where there was no merchandise. According to the assistant manager, Ardelean appeared to be `looking around for nothing particular.’ When the assistant manager asked Ardelean if he needed help, Ardelean replied, `no, thank you.’ Ardelean left a short time later, and the assistant manager noted Ardelean’s license number and called the police.
Ardelean testified that he had been in a hurry on December 12 to meet his wife for lunch. He became frustrated and angry because Simons was driving too slowly and he acknowledged following her very closely. He looked intently at Simons’ rear-view mirror in an attempt to make her understand that he was in a hurry. Along the way, Ardelean remembered that he had been looking for an anniversary present and a birthday present for his daughter. He believed that Confetti Junction had opened recently and as he passed it, he decided to stop and see if he could find a present there. Ardelean looked at a few cards, but did not see any suitable presents. He then left the store.
Bruce Harris, Ardelean’s community corrections officer, testified that Ardelean had committed several serious treatment violations in October and November 1999 by making multiple calls to `telephone sex’ lines and failing to attend Sex Addicts Anonymous meetings. Ardelean also failed to tell either his CCO or his treatment provider about the violations. Harris recommended revocation of Ardelean’s SSOSA sentence.
Robert Hirsch, Ardelean’s treatment provider, testified that he had terminated Ardelean from the treatment program on December 24, 1999, based on information about the December 12 incident that Harris provided, including the results of a polygraph test that Ardelean had requested. But after reviewing the polygraph, Hirsch developed some doubts about the validity of the results. Hirsch indicated his willingness to continue Ardelean’s treatment, but only if Ardelean’s account of the December 12 incident was truthful.
The trial court found that Simons’ account of the December 12 incident was credible and that Ardelean had `purposefully followed and intimidated’ Simons while following her in his car and then entering the store. Based on that behavior and evidence of the serious treatment violations in October and November, the court concluded that Ardelean had failed to make reasonable progress in sexual deviancy treatment and revoked his SSOSA sentence.
Decision
Ardelean contends the State violated his right to due process by not providing adequate notice of the alleged violations of his suspended sentence. Because revocation of a suspended sentence is not a criminal proceeding, a sexual offender facing revocation of a SSOSA sentence is entitled to `the same minimal due process rights as those afforded during the revocation of probation or parole.’[1] Among other things, Ardelean was entitled to notice of the specific violations alleged and the facts that the State was relying on to prove the violations.[2] Ardelean argues that the notice was inadequate because the State relied on `unspecified incidents’ to establish his failure to make reasonable progress in treatment. In particular, he points to the State’s failure to inform him that it was relying on his use of `telephone sex’ lines and his failure to attend Sex Addicts Anonymous meetings. But the State was not relying on these incidents as separate violations of the SSOSA sentence; rather they constituted some of the evidence of Ardelean’s failure to make reasonable progress in his treatment program.
These and other facts supporting the State’s allegations were contained in the reports prepared by Ardelean’s treatment providers and CCO and supplied to Ardelean prior to the hearing. Because the State notified Ardelean of both the alleged SSOSA violations and the facts upon which it was relying to prove the violations, the requirements of minimal due process were met in this case.[3] Moreover, as the State notes, Ardelean acknowledged at the hearing that he had made multiple calls to `telephone sex’ lines and had missed several meetings of Sex Addicts Anonymous during October and November 1999.
Ardelean has not alleged or demonstrated any specific prejudice resulting from the lack of formal written notice. Ardelean also contends that the evidence was insufficient to support the trial court’s finding that he `purposefully followed and intimidated’ Simons. Violations of a suspended sentence need not be proved beyond a reasonable doubt. Rather, the evidence must be sufficient to `reasonably satisfy’ the court that the breach of condition occurred.[4]
Simons testified that Ardelean drove up quickly behind her and followed her closely for about eight blocks. Ardelean also appeared to be staring intently at her. When Simons turned into the Confetti Junction parking lot, Ardelean followed and parked a few spaces away. He then waited in his car until Simons entered the store before following her inside. While inside the store, Ardelean appeared to follow Simons toward the rear of the store and then stood in an area with no merchandise.
Although Ardelean denied that he attempted to intimidate Simons, he acknowledged that he had followed her very closely, that he was angry because she was driving too slowly, and that he had attempted to `make her understand’ that he wanted her to drive faster. Viewed in the light most favorable to the State, the foregoing evidence was sufficient to support the trial court’s finding that Ardelean purposefully followed and intimidated Simons. The trial court’s determination that Ardelean’s testimony was not persuasive is a credibility assessment that is not subject to appellate review.[5] Ardelean appears to contend that the revocation notice was inadequate because the State alleged a `stalking’ incident but failed to prove the elements of stalking as set forth in RCW 9A.46.110. But Ardelean’s treatment provider testified that if Ardelean had intentionally followed Simons, whether out of anger or because of sexual attraction, his conduct would constitute a serious violation of his treatment conditions and justify revocation.
As already indicated, substantial evidence supported the trial court’s finding that Ardelean purposefully followed and intimidated Simons. The State was not required to prove the criminal offense of stalking in order to support revocation. Contrary to Ardelean’s contention, substantial evidence also supports the trial court’s finding that he had not made reasonable progress in his sexual deviancy treatment program. Bruce Harris, Ardelean’s CCO, testified that Ardelean had alternated periods of compliance with problematic behavior.
In early 1999, Ardelean admitted calling `telephone sex’ lines and masturbating while on the phone. Harris did not recommend revocation at this time and Ardelean continued in treatment with some progress. But Harris had several conversations with Ardelean in November and December, and Ardelean failed to reveal that he had resumed calling `telephone sex’ lines and that he had missed several meetings of Sex Addicts Anonymous. Nor had Ardelean revealed these new violations to his treatment provider. According to Harris, Ardelean was well aware of the need for absolute honesty with his treatment provider and CCO and his continuing deception indicated that he was `still managing information’ and that he was not demonstrating the progress that should have been evident after more than two years of treatment. Based on Ardelean’s lack of honesty, his inability to exhibit the positive conduct expected in his treatment program, and his intimidating behavior in the December 12 incident, Harris concluded that Ardelean was not currently safe to be in the community.
Robert Hirsch, Ardelean’s treatment provider, characterized Ardelean’s resumption of repeated calls to telephone sex lines, his failure to attend Sex Addicts Anonymous meetings, and his failure to disclose these incidents as very serious treatment violations. Hirsch’s willingness to continue treatment with Ardelean was only conditional, and he advised the court that he would recommend revocation and would not continue treatment if Ardelean’s account of the December 12 incident was not truthful.
Ardelean’s serious violations of his treatment conditions in October and November 1999, his failure to disclose the violations to his CCO and treatment provider, and his conduct in following and intimidating Simons amply support the trial court’s determination that he failed to make reasonable progress in his treatment program. Consequently, the trial court did not abuse its discretion in revoking Ardelean’s suspended sentence.[6] Affirmed.