No. 20746-3-IIIThe Court of Appeals of Washington, Division Three. Panel Eight.
Filed: December 5, 2002 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Yakima County, No. 011013951, Hon. James P. Hutton, November 28, 2001, Judgment or order under review.
Counsel for Appellant(s), Dennis W. Morgan, Attorney At Law, 120 W Main Ave, Ritzville, WA 99169-1408.
Counsel for Respondent(s), Lauri M. Boyd, Deputy Prosecutor, Yakima Co Crths-Appel Div, 128 N 2nd St. Ste 211, Yakima, WA 98901-2631.
BROWN, C.J.
Stephen A. Bailey appeals from a Yakima County Superior Court order revoking his probation previously imposed for his gross misdemeanor conviction upon plea of guilty to harassment-domestic violence. He challenges the sufficiency of the evidence to support the revocation order.
FACTS AND PROCEDURE
Mr. Bailey pleaded guilty on August 10, 2001, to gross misdemeanor harassment of another — domestic violence, RCW 9A.46.020. The court sentenced him to 365 days with 360 days suspended. The judgment and sentence also required Mr. Bailey to serve 12 months’ probation, subject to the following conditions:
. . . .
3. While on probation the defendant shall maintain good behavior, to include no criminal violations, and shall:
a. Comply with the instructions, rules and regulations of probation services, including reporting as directed to a probation officer, remaining within geographic boundaries, notifying the probation officer of any change in the defendant’s address or employment, and paying the supervision fee assessment.
b. Comply with the full terms of the court’s judgment and sentence.
. . . .
d. Defendant shall pay all costs, fees, fines, assessments and restitution set forth in the Financial Order herein.
e. Abide by the following conditions:
{X} Not consume any alcohol. {X} Not use or possess any controlled substance, including marijuana without a prescription. {X} Report for urinalysis as ordered by the Probation Services. . . . . {X} Shall obtain a drug and alcohol evaluation and follow recommended guidelines. {X} Enter into and successfully complete a Department of Corrections- approved drug and alcohol counseling course.
Clerk’s Papers at 19.
On November 20, 2001, the State filed a petition for order to modify the August 10 sentence to impose jail time based upon Mr. Bailey’s alleged failure to comply with the sentence conditions. The petition was supported by a sworn notice of violation from probation Officer Gary Burchett, alleging violation 1 — that Mr. Bailey failed to maintain good behavior because he refused to comply with instructions of his probation officer; and, violation 2 — that he failed to obey all laws and be of good conduct because he was charged in Yakima County Superior Court (case number 01-1-01753-1) on October 2, 2001, with second degree criminal trespass and taking a motor vehicle without the owner’s permission.
Officer Burchett alleged that when Mr. Bailey reported to probation services for an intake appointment on September 26, 2001, he stated he did not have to comply with his judgment and sentence, financial order or probation order, because it is a violation of his rights. Mr. Bailey stated he would not pay his fines and fees and would not comply with TASC. Officer Burchett thus recommended Mr. Bailey’s probation be revoked and that he be ordered to serve the balance of his sentence in jail.
At a November 28, 2001 hearing on the matter, defense counsel denied that Mr. Bailey committed violation 1, but admitted to violation 2. Officer Burchett testified for the State that during Mr. Bailey’s September 26 intake appointment, he spent over 30 minutes explaining to Mr. Bailey the judgment and sentence and financial and probation orders. Mr. Bailey continually insisted this was a violation of his constitutional rights. He stated he would not pay his fines and fees nor comply with TASC, which would require his going through a chemical dependency evaluation and urinalysis tests. Mr. Bailey thus disagreed with the financial and probation orders and said he would not comply. Officer Burchett had to request a security officer to escort Mr. Bailey from his office.[1] Officer Burchett testified on cross-examination that September 26 was the first day Mr. Bailey was due in his office. As of September 10, he already owed $55 of the judgment’s financial obligations, and there was no evidence that he had paid it. Officer Burchett said he did not know whether Mr. Bailey had the ability to make payments. On redirect, Officer Burchett stated he was unable to give Mr. Bailey a schedule or a time to go to TASC due to his refusal to comply. Mr. Bailey said it was a violation of his constitutional rights, so Officer Burchett did not have an opportunity to get that far with the intake appointment. Mr. Bailey testified to a different version of the events. He said he was trying to explain to Officer Burchett that he had already been on probation with DOC for two years and was already involved with TASC, so he did not need to further pursue it. Since another probation officer was currently administering other programs, he was trying to explain to Officer Burchett that he did not want the two probations to interfere with each other. He did tell Officer Burchett that he had certain constitutional rights, but was only trying to come to an understanding with him — not disobey the terms of his probation. He never said he would not abide by the conditions. Mr. Bailey admitted on cross-examination that he knew the court had imposed probation and told him he must follow all conditions of sentencing. But Mr. Bailey said, “{t}hose weren’t my conditions of sentencing.” Report of Proceedings (RP) at 9. Defense counsel argued Mr. Bailey did not commit violation 1 because he was simply not given sufficient time to comply, or not.
The court ruled it was clear from the order that Mr. Bailey was to comply with the instructions, rules and regulations of the probation department. Officer Burchett instructed him to do certain required things and his refusal to do those things was a violation of the probation order. The court expressly rejected the credibility of Mr. Bailey’s testimony. The court imposed the entire amount of jail time previously suspended and terminated Mr. Bailey’s probation.
The court entered a written order imposing the jail sentence and terminating Mr. Bailey’s probation based upon findings that he willfully failed to pay legal financial obligations that he had the ability to pay; failed to obtain a drug/alcohol evaluation; failed to maintain good behavior; and, failed to obey all laws and be of good conduct due to the October 2 charges for criminal trespass and taking a motor vehicle without the owner’s permission. Mr. Bailey appeals.
ANALYSIS
The issue is whether sufficient evidence exists of sentencing condition violations to support the trial court’s termination of Mr. Bailey’s probation.
A court’s decision to revoke probation lies within its sound discretion. State v. Kuhn, 81 Wn.2d 648, 650, 503 P.2d 1061 (1972). An abuse of discretion occurs only when the court’s decision is manifestly unreasonable or based on untenable grounds or reasons. Davis v. Globe Mach. Mfg. Co., 102 Wn.2d 68, 77, 684 P.2d 692 (1984). To support revocation of probation, the evidence must be sufficient to “reasonably satisfy” the court that the probationer has breached a condition of probation. Kuhn, 81 Wn.2d at 650. Due process requires that a finding of a probation violation be based only on verified facts. See In re Pers. Restraint of Boone, 103 Wn.2d 224, 232, 691 P.2d 964 (1984). To assure such a basis, the court must provide a statement of the evidence relied on and the reasons for its decision so as to permit effective appellate review. Id. Although no evidence indicates Mr. Bailey actually had the ability to pay his overdue financial obligation, the court was entitled to accept as credible the testimony of Officer Burchett that Mr. Bailey was outright refusing to comply with the validly imposed conditions of paying fines and obtaining the ordered drug/alcohol evaluation. The court was likewise entitled to reject Mr. Bailey’s version of the events as not credible — a determination that will not be disturbed on appeal. State v. Tocki, 32 Wn. App. 457, 461, 648 P.2d 99 (1982); State v. Smith, 13 Wn. App. 859, 863, 539 P.2d 101 (1975). Thus, Mr. Bailey’s analogy to State v. Bennett, 35 Wn. App. 298, 666 P.2d 390 (1983) (good faith efforts of drug addicts and alcoholics to comply with conditions of probation must be distinguished from violation of conditions relating to potential for rehabilitation) is not applicable. Nor is Mr. Bailey’s reference to his constitutional rights, which are not offended by the terms of the probation order. Considering the evidence in the context of Mr. Bailey’s stated refusals to comply, he was violating the conditions of his probation by refusing to behave in such a manner as to comply with the instructions of probation services regarding those conditions specified in the probation order. Officer Burchett’s allegations against Mr. Bailey did not pertain to any new conditions not specified in that order. Thus, Mr. Bailey’s citation to State v. Williams, 97 Wn. App. 257, 264-66, 983 P.2d 687 (precise delineation of terms of probation is non-delegable judicial task), review denied, 140 Wn.2d 1006 (2000), for the proposition that the court improperly delegated authority to the probation department is without merit. The evidence deemed credible by the court was sufficient to support the existence of violation 1 under the Kuhn standard.
In any event, Mr. Bailey admitted to violation 2 — the criminal conduct for which he entered the Alford plea. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Although Mr. Bailey is correct that an Alford plea is by definition not an admission of guilt see State v. Morreria, 107 Wn. App. 450, 456, 27 P.3d 639 (2001), the effect of such a plea is nevertheless the same as a general guilty plea See In re Discipline of McLendon, 120 Wn.2d 761, 771, 845 P.2d 1006
(1993). Mr. Bailey admitted to entering the plea because the State gave him a deal. See RP at 14, 15. He makes no showing of any promise by the State to recommend against the instant probation revocation as part of that plea. His opening concession at the revocation hearing, coupled with the fact of his admitted guilty plea in the other matter, is sufficient evidence to constitute a violation of the probation order condition that he maintain good behavior without criminal violations.
The court had ample factual basis with either or both of the violations to revoke and terminate Mr. Bailey’s probation and impose the remainder of his suspended sentence. The court acted within its discretion in so doing. Kuhn, 81 Wn.2d at 650.
Affirmed.
A majority of the panel has determined 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.
SWEENEY and KURTZ, JJ., concur.