No. 48752-3-I.The Court of Appeals of Washington, Division One.
Filed: October 7, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of King County Docket No: 91-1-03117-3 Judgment or order under review Date filed: 06/08/2001.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, 810 Third Avenue, 320 Central Building, Seattle, WA 98104.
Christopher Gibson, Nielsen Broman Koch Pllc, 810 3rd Ave Ste 320, 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.
Page B. Ulrey, W554, 516 3rd Ave, Seattle, WA 98104.
FAYE C. KENNEDY, J.
Thomas Ayers was ordered at sentencing to participate in sex offender treatment as directed by his Community Corrections Officer (CCO) after his release from prison. He signed a treatment contract with the Department of Corrections (DOC) Sex Offender Treatment Program, agreeing that he would not consume alcohol during treatment, and that any violation of the contract would be reported to his CCO and would be grounds for termination of the treatment program. Ayers consumed alcohol twice during treatment. These violations were reported to his CCO, and he was removed from the program. The court sentenced Ayers to 180 days in jail and struck the requirement that he participate in the treatment program. Ayers appeals, contending that abstention from alcohol was not an express condition of his community placement, and if it was an implied condition he was not given adequate notice of that fact, in violation of his right to due process.
We affirm the trial court’s modification of Ayers’ sentence. By consuming alcohol in violation of the contract, Ayers failed to participate in treatment as directed by his CCO, resulting in termination of the treatment program. Before entering treatment, Ayers read and initialed each page of the treatment contract, and signed it, thereby acknowledging that he had been warned that consumption of alcohol would result in his termination from the program. Accordingly, there was no violation of his right to due process.
FACTS
Ayers pleaded guilty to one count of first-degree child molestation in 1991. He was sentenced to 89 months of confinement and two years of post-release community placement. As a condition of community placement, Ayers was ordered to participate in sex offender treatment as directed by his CCO. After his release from prison, Ayers signed a DOC Sex Offender Treatment Program contract, one of the requirements of which, listed under a section titled `General Therapy Expectations,’ was a prohibition against drug or alcohol use. The contract further stated: “Violation(s) of the contract will be reported to my Community Corrections Officer or appropriate authority. Any violation of the contract will be grounds for termination from Phase III services.” Clerk’s Papers at 51. Ayers initialed all four pages of the contract and, on the last page, he signed below language acknowledging that he had read the entire document, had the opportunity to receive clarification on anything not understood, and agreed to the terms of the contract.
The State filed a notice of violation of community placement against Ayers on March 20, 2001. The notice alleged that Ayers failed to abide by his sex offender treatment contract by consuming alcohol on January 26, 2001. After two continuances, a modification hearing was held on June 8, 2001, to address what had, by then, grown to three allegations of violation of community placement by Ayers. In addition to the first allegation, the State was now alleging that Ayers failed, a second time, to abide by his sex offender treatment contract, by consuming alcohol on April 15, 2001, and that he failed to abide by sexual deviancy treatment conditions, resulting in termination of treatment on April 27, 2001. At the modification hearing, without waiving his objections, Ayers admitted all three allegations, and moved to dismiss the modification proceeding on the same grounds as those raised in this appeal.
The trial court denied Ayers’ motion to dismiss, ruling:
[T]he judgment and sentence does, certainly, by clear implication include the requirement that the defendant comply with all of the requirements of the treatment program, as the Court in State versus R[i]les observed, that the requirement would essentially be meaningless if a defendant was not required to participate successfully and cooperate and follow all of the requirements of the program. I’m also going to conclude that Mr. Ayers had perfectly clear notice of the requirement, and therefore the motion to dismiss will be denied.
Report of Proceedings, June 8, 2001, at 10.[1]
The court then sentenced Ayers to 60 days per violation, for a total jail term of 180 days, and, because only a short period of community placement remained, struck the treatment condition from Ayers’ judgment and sentence.
ANALYSIS
Ayers first argues that, at the time he was sentenced, only the trial court had authority to impose his community placement conditions, and because it was the DOC that imposed the alcohol abstention requirement as part of his treatment, that condition was unenforceable and without authority. We reject this argument. The trial court did not afford the DOC the authority to unilaterally impose conditions; rather, the court imposed treatment and permitted the DOC, an administrative body, to direct the specifics of the treatment. Execution of the sentence and the application of the various provisions for the mitigation of punishment and the reformation of the offender are administrative in character and are properly exercised by an administrative body, according to the manner prescribed by the Legislature. State v. Mulcare, 189 Wn. 625, 628, 66 P.2d 360 (1937). The trial court did not improperly delegate authority to the DOC.
Ayers also argues that although he was ordered to participate in sex offender treatment, the treatment contract he signed simply established `expectations.’ Thus, he contends, his consumption of alcohol on two occasions does not mean that he was not still properly `participating’ in the treatment program. We disagree. As both this court, in State v. Eaton, 82 Wn. App. 723, 734, 919 P.2d 116 (1996), and our Supreme Court, in State v. Riles, 135 Wn.2d 326, 351, 957 P.2d 655 (1998), have said, `participate’ means to take part in, and to actively cooperate, so as to receive the benefit of treatment; otherwise, treatment cannot be effected.
The contract Ayers signed did not merely provide guidance; it spelled out exactly what Ayers was required to do and not to do, in order to receive the benefit of treatment. Participation in the treatment program as required by Ayers’ CCO meant adhering to the treatment contract, which Ayers admittedly did not do. Last, Ayers argues that he was denied his due process rights because he was not adequately notified that consuming alcohol could lead to his confinement. Rather, he contends, the contract led him to believe that if use of alcohol or drugs were to become an issue, he would simply be required to undergo urinalysis. The contract provides: “There will be no use of alcohol or drugs. If this becomes an issue, the client will submit to appropriate tests, i.e., UA’s at TASC.” Clerk’s Papers at 49. But of course, the purpose of urinalysis would be to prove the use of drugs or alcohol, if a participant were to deny such use, thus placing the question of violation of the contract in issue. Ayers admittedly consumed alcohol, and there was no need for urinalysis to prove that fact. The contract was clear: consumption of alcohol was a violation that would be reported to the CCO, and that would result in termination of treatment. One cannot participate in treatment that has been terminated. Participation in treatment was a condition of community placement. Violation of that condition would result in incarceration. Ayers does not contend that he did not understand this to be the case. There was no violation of due process here.
Accordingly, we affirm.
WE CONCUR: BAKER, J.