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2013 DEC ~9 mS'-M
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, No. 68849-9-1
Respondent,
v.
JASON PAUL MATHISON, UNPUBLISHED OPINION
Appellant. FILED: December 9, 2013
Verellen, J. — Jason Mathison appeals from the May 2012 superior court order
revoking his 2005 suspended special sex offender sentencing alternative (SSOSA)
sentence after the court determined that he failed to make satisfactory progress in sex
offender treatment and had unapproved contact with a minor. Mathison contends he
was denied due process because he was affirmatively advised he would have to
complete only three years of sex offender treatment and was not adequately informed
his suspended sentence could be revoked if he was terminated from treatment after
completing three years. Consistent with former RCW 9.94A.670 (1994), which
mandated the trial court to order sex offender treatment for "any period up to 3 years in
duration," one section of the judgment and sentence had a box checked stating that the
defendant shall complete sex offender treatment for three years, but the conditions of
community custody contained in the judgment and sentence unambiguously required
Mathison to satisfactorily participate in treatment until successful completion, even if it
No. 68849-9-1/2
took longer than three years. The trial court orally advised Mathison he was required to
successfully complete treatment even if it took longer than three years. And Mathison's
conduct is consistent with his understanding of this requirement. Mathison does not
establish a denial of due process or any other reversible error. We affirm.
FACTS
Mathison pleaded guilty to two counts of first degree rape of a child and one
count of possession of depictions of minors engaged in sexually explicit conduct for acts
occurring between September 1, 2004 and January 1, 2005. In his statement on plea of
guilty, Mathison acknowledged that in conjunction with the suspension of his sentence,
he would be "placed on community custody for the length of the statutory maximum
sentence of the offense," that he "will be ordered to participate in sex offender
treatment," and that "[i]f a violation of the sentence occurs during community custody,
the judge may revoke the suspended sentence."1
He was sentenced on September 30, 2005. The sentencing court suspended
131 months of confinement on the rape counts and imposed a SSOSA sentence,
requiring Mathison to first serve 12 months in prison on the pornography count, and to
then follow an extensive set of requirements of his sentence and community custody
conditions. The SSOSA portion of the judgment and sentence included a box that was
checked that the defendant shall undergo sex offender treatment "for [X] three years"2
But the judgment and sentence also required Mathison to "comply with any other
1Clerk's Papers at 14.
2Clerk's Papers at 40.
No. 68849-9-1/3
conditions stated in this [jjudgment and [sjentence,"3 including that he "shall participate
in the following crime-related treatment or counseling services: SSOSA treatment
pursuant to sex deviancy evaluation of [Northwest] Treatment Associates with all
treatment recommendations, attached."4 The sex offender evaluation attached as an
addendum expressly stated that the "[ejstimated duration for group treatment would be
three years plus."5 The sentencing court explained to Mathison that he would be
required to successfully complete treatment, whether it took three years or more:
Now, most people who are subjected to this sentencing alternative
succeed. Some of the most satisfying days that I have spent as a judge is
when a defendant appears before me at the conclusion of the treatment
period, after three or more years of treatment, and I receive not only
passing, but sometimes glowing reports of the progress that such
offenders have made as treatment recipients and as human beings. It's a
genuine pleasure at that point to sign documents indicating their
compliance and their success.
Upon release from jail, Mr. Mathison shall enter into and make
reasonable progress and successfully complete a program for the
treatment of sexual deviancy for a period of 3 years or however long it
takes to so successfully complete the program with Northwest Treatment
and associates.[6]
After serving a term of confinement, Mathison began treatment with Northwest
Treatment Associates in January 2006. He remained active in treatment until
February 8, 2012, when he was terminated based in part on information the Department
of Corrections listed in its January 31, 2012 notice that Mathison violated conditions of
his sentence. Specifically, the Department alleged that Mathison was engaged in a
3Clerk's Papers at 40.
4Clerk's Papers at 44.
5
Clerk's Papers at 46.
6 Report of Proceedings (RP) (Sept. 30, 2005) at 16-17.
No. 68849-9-1/4
romantic relationship with a woman who had a one-year-old daughter without disclosing
the nature of the relationship to his community corrections officer or treatment provider
as required. After he was terminated from treatment, the Department filed a
supplemental notice of violation to include his noncompliance with the treatment
requirement.
At the superior court hearing to address Mathison's violations, the State alleged
14 violations. Mathison stipulated he had been terminated from treatment and that it
was a violation of his SSOSA conditions.
Mathison's sex offender treatment counselor, Mr. Dandescu, testified that
Mathison had fooled his counselors into believing he was succeeding in treatment when
in fact he was not:
A. ... He said that he was doing well. He seemed to be in
compliance. He would use—he would give little pieces of
information of something he would do wrong in order to appear as if
he was being disclosing and he was not. But that seemed to be
generated more towards the end of his treatment. So, again, had
he been someplace else, he may have been successfully advanced
out of treatment and that would have never come to the foreground.
So it's good fortune for the community that he was where he was
and that they were finally made aware that this was going on.[7]
Q. You also indicated that Mr. Mathison has been characterized as a,
quote, treatment failure.
A. Yes.
Q. And also you characterized his behavior as an egregious disregard
for his condition [of] treatment. Is that also fair to say?
A. Yes, it is.[8]
7RP (May 18, 2012) at 78.
8RP (May 18, 2012) at 87.
No. 68849-9-1/5
The trial court concluded that Mathison violated the terms of his sentence by
being terminated from treatment and having unapproved minor contact, revoked his
suspended sentence, and imposed the remainder of the sentence, 131 months, on the
rape counts.
ANALYSIS
Mathison contends that the trial court violated his due process right to notice
because he was not informed that his suspended sentence could be revoked if he was
terminated from treatment after completing three years. Mathison's argument is without
merit.
A SSOSA sentence may be revoked at any time where there is sufficient proof to
reasonably satisfy the trial court that "(a) the offender violates the conditions of the
suspended sentence, or (b) the court finds that the offender is failing to make
satisfactory progress in treatment."9 "Once a SSOSA is revoked, the original sentence
is reinstated."10 An offender serving a conditional suspended sentence has minimal
due process rights at a revocation hearing.11
Mathison's claim that he had inadequate notice of the condition requiring him to
remain in sex offender treatment is belied by the record and by his affirmative conduct.
The plea agreement, judgment and sentence, and sentencing court's oral remarks all
demonstrate that Mathison had ample notice that he was required to successfully
9 Former RCW 9.94A.670(10) (2004); State v. McCormick, 166 Wn.2d 689, 705,
213P.3d32(2009).
10 State v. Dahl, 139 Wn.2d 678, 683, 990 P.2d 396 (1999).
11 State v. Nelson, 103 Wn.2d 760, 762-63, 697 P.2d 579 (1985); State v.
Badger, 64 Wn. App. 904, 907, 827 P.2d 318 (1992).
No. 68849-9-1/6
complete treatment as a condition of his community custody, even if it took longer than
three years.
Mathison's own actions and words further reveal that he was not confused about
this requirement.12 Mathison remained in treatment for approximately six years. And
when he was terminated from treatment, he sought admission to a different program. At
the revocation hearing, Mathison conceded that he knew he was required to complete
treatment, and was frustrated by this fact, stating, "I attended treatment, but over
time ... I didn't know when I could be released or when community custody would ever
end and Icould move on with my life.[13]
At the revocation hearing, his counsel expressly conceded the violation:
COUNSEL: Your Honor, it's defense's position that Mr. Mathison
is admitting to the two violations, which are, in fact, DOC violations and
violations of the conditions of his judgment and sentence.
COURT: Which are?
COUNSEL: Which are that he has been terminated from
treatment. I think that's—that's clear.
COURT: Right.
COURT: So I just want to understand your position. I'm looking
at the judgment and sentence signed by Judge Fox back in September of
2005, appendix H says, two-thirds of the way down, "Defendant shall
participate in the following crime-related treatment or counseling services:
SSOSA treatment pursuant to sex deviancy evaluation of Northwest
Treatment Associates with all treatment recommendations. Attached."
And then there's a document that says, "Addendum to appendix H." So
part of your stipulation, I just want to be clear, is that Mr. Mathison is in
violation of that condition. Is that right?
12 See State v. Harris, 97 Wn. App. 647, 985 P.2d 417 (1999) ("Harris's own
actions in complying with the conditions of his SSOSA defeat his argument that without
an interpreter he did not have adequate notice of what he was required to do.")
13 RP (May 18, 2012) at 136.
6
No. 68849-9-1/7
COUNSEL: Correct.[14]
A trial court's decision to revoke a SSOSA suspended sentence is reviewed for
an abuse ofdiscretion.15 Atrial court abuses its discretion only where the trial court's
decision is "manifestly unreasonable, or exercised on untenable grounds, or for
untenable reasons."16 Here, the trial court applied the correct legal standards in
revoking Mathison's SSOSA sentence. Mathison fails to demonstrate any denial of due
process or abuse of discretion.
Mathison raises additional arguments in his statement of additional grounds for
review. None of Mathison's arguments has merit.
Mathison contends that the trial court's failure to set a prospective "treatment
termination hearing" and the treatment provider to send "quarterly reports," as required
in former RCW 9.94A.670 "caused the conditions on the Appellants J&S to become
ambiguous."17 But the judgment and sentence was not ambiguous. Mathison had
notice that he was required to successfully complete treatment, whether it took up to
three years, or longer. Whether the court and treatment providers fulfilled their
obligations to set a hearing and generate reports is collateral to this issue.
Mathison contends that he received ineffective assistance of counsel at his
revocation hearing because his counsel failed to argue that his judgment and sentence
was rendered ambiguous by the court's failure to set a termination hearing. However,
14 RP (May 18, 2012) at 118-19.
15 State v. Partee, 141 Wn. App. 355, 361, 170 P.3d 60 (2007).
16 State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
17 Statement of Additional Grounds at 3-4.
No. 68849-9-1/8
these were collateral issues. Given the unambiguity of the judgment and sentence and
the record demonstrating Mathison's awareness of the treatment requirements, counsel
was not ineffective for not focusing on these concerns.
Mathison argues that he was denied the opportunity for allocution upon
revocation of his suspended sentence. At the revocation hearing, Mathison's counsel
informed the court he wished to allocute only after the court announced its decision. His
request was granted. Mathison addressed the court and the court stated that it
appreciated Mathison's remarks, then signed the order revoking the sentence.
Although our Supreme Court in State v. Canfield recognized a defendant's
"limited right of allocution based upon the common law right of allocution and the
minimal due process requirements at revocation hearings," this "is not a right of
constitutional magnitude."18 As was true in Canfield, here, the trial court did not have
"adequate notice that [the defendant] wished to offer a plea in mitigation of his sentence
or to plead for leniency" before it announced its decision to revoke the suspended
sentence.19 If a trial court fails to solicit a defendant's statement before imposing
sentence, the defendant must object in order to preserve a claim of error. The
Washington Supreme Court decision in State v. Hatchie controls.20 There, the trial court
18154 Wn.2d 698, 708, 116 P.3d 391 (2005). Mathison cites and quotes
extensively from the Court of Appeals decision in State v. Canfield, 120 Wn. App. 729,
86 P.3d 806 (2004). To the extent that the earlier opinion is inconsistent with the later
Supreme Court opinion, it is no longer applicable authority.
19 154 Wn.2d at 707, 708 ("while allocution itself is not a right of constitutional
magnitude, the constitutional 'right to be heard in person' includes a right to allocution if
the defendant requests it").
20 161 Wn.2d 390, 405, 166 P.3d 698 (2007).
No. 68849-9-1/9
announced its sentence before giving the defendant a chance to speak.21 Concluding
that the defendant waived the issue by failing to object, the court refused to consider
Hatchie's challenge to the timing ofthe allocution.22 The same analysis applies here.
Because Mathison failed to object below, he has not preserved the issue for appeal,
and his challenge fails.
Mathison's argument that his counsel was ineffective by her failure to ask for
allocution earlier does not establish prejudice under these circumstances. He was
given the opportunity to address the court, and availed himself of that opportunity.
Finally, Mathison asserts that he should receive credit against his sentence for
time spent in the court-ordered treatment program. Our Supreme Court held in State v.
Pannell that "an offender is not entitled to credit against the maximum sentence for
nonconfined time spent when a sentence is suspended pursuant to a SSOSA."23
Mathison fails to persuasively distinguish his case from Pannell.
Affirmed.
WE CONCUR:
21 Hatchie, 161 Wn.2d at 405-06.
22 The Supreme Court also has refused to consider a challenge to a complete
failure to offer an opportunity for allocution where the defendant did not object in the trial
court. State v. Hughes. 154 Wn.2d 118, 153, 110 P.3d 192 (2005), overruled on other
grounds, Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466
(2006); accord State v. Ague-Masters, 138 Wn. App. 86, 109-10, 156 P.3d 265 (2007).
23 173 Wn.2d 222, 234, 267 P.3d 349 (2011).