State Of Washington v. Raymond Tiangson ( 2018 )


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  •                                                                                           cf)CD
    )                '
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    C—    rrt
    Tr"         CD
    STATE OF WASHINGTON,                      )                                         crt
    )       DIVISION ONE                              cPrn
    cri
    Respondent,          )
    )       No. 75562-5-1
    v.                          )
    )       UNPUBLISHED OPINION
    RAYMOND SOMERA TIANGSON,                  )
    )
    Appellant.           )
    )       FILED: January 16, 2018
    )
    DWYER, J. — Raymond Tiangson appeals from the order of the trial court
    terminating his participation in King County's Enhanced Community Center for
    Alternative Programs(CCAP)and requiring him to spend 169 days in
    confinement. On appeal, Tiangson contends that the superior court erred by not
    providing him with a meaningful opportunity to be heard during his third CCAP
    violation hearing and by not entering written findings of fact in support of its
    ruling. He further contends that the superior court erred because its ruling was
    not supported by the record. Concluding that there was no error, we affirm.
    1
    Tiangson pleaded guilty to committing one count of residential burglary,
    one count of trafficking in stolen property in the first degree, and one count of
    No. 75562-5-1/2
    vehicle prowl in the second degree. As a sentencing alternative to 180 days in
    confinement, Tiangson was ordered to participate in 180 days of CCAP.1
    The sentencing order incorporated by reference the conditions of conduct
    for persons sentenced into CCAP. One pertinent condition of conduct required
    that Tiangson attend, with strict compliance and punctuality, all CCAP programs
    and CCAP caseworker appointments.
    Tiangson agreed to the CCAP conditions of conduct. In so doing,
    Tiangson acknowledged that he was subject to a graduated sanctions process
    for violations of the CCAP conditions of conduct. He further acknowledged that
    the sanction for a violation "will be determined by the CCAP Enhanced
    sanctioning grid according to the severity level of the violation and the number of
    violations committed." Tiangson also acknowledged that, "[i]f the violation you
    commit results in a sanction that falls outside of the sanctioning grid, you will be
    immediately removed from the Community Corrections Program and graduated
    sanctions violation process and a request will be sent to the court to place you in
    secure detention to await a hearing."
    Tiangson was ordered to report to CCAP on February 1, 2016. He
    reported as ordered on the first day. However, during the rest of the month of
    February, Tiangson violated CCAP conditions of conduct on 11 occasions by not
    1 CCAP is "a weekly itinerary.. . of structured programs" administered at the
    Yesler Building in downtown Seattle. There are two different CCAP tracks:
    CCAP Enhanced and CCAP Basic. Offenders ordered into CCAP Enhanced
    report in person to the Yesler Building daily, while those ordered into CCAP
    Basic report only by phone.
    State v. Medina, 
    180 Wash. 2d 282
    , 285, 324 P.3d 682(2014)(alteration in original)(footnotes
    omitted).
    2
    No. 75562-5-1/3
    appearing at CCAP or by arriving late without giving an allowable excuse.
    Consequently, CCAP officials removed Tiangson from CCAP due to his poor
    attendance rate and his lack of proper justification for his absences and
    tardiness. CCAP officials requested a warrant for his arrest.
    Two months later, Tiangson was arrested and brought before the King
    County Superior Court for a hearing. At the hearing, Tiangson admitted to failing
    to attend CCAP. He explained that he had become sick and conceded that he
    should have contacted CCAP about his absences. The superior court judge
    reinstated Tiangson's participation in CCAP but warned him,"This is your last
    shot, Mr. Tiangson. You need to get this done."
    Over the next week, in late April and early May, Tiangson failed to attend
    CCAP on one day and arrived late on five other days, all without giving an
    allowable excuse. As a result, CCAP officers removed Tiangson from CCAP,
    again due to his poor attendance and his lack of proper justification for his
    absences and tardiness. A warrant was issued for Tiangson's arrest.
    Over three weeks later, Tiangson was arrested and brought before the
    superior court. Tiangson again admitted to failing to attend CCAP. He explained
    that his tardiness was due to transportation problems and he indicated that he
    planned to take public transportation to CCAP going forward. The superior court
    reinstated his participation in CCAP.
    One week later, in early June, Tiangson twice failed to appear at CCAP or
    contact CCAP officials. He did not provide an explanation justifying his absence.
    3
    No. 75562-5-1/4
    Accordingly, CCAP officials removed Tiangson from CCAP and requested a
    warrant for Tiangson's arrest.
    One month later, Tiangson was arrested and brought before the superior
    court for a hearing before the superior court judge who had presided over his
    initial CCAP violation hearing. Tiangson admitted to not attending CCAP and
    stated that he had a medical excuse for not attending because he had been
    suffering from lower back pain related to a fall.
    The superior court judge determined that Tiangson's medical excuse
    explanation was of the same type as the one that he had given her in April.
    Concluding that Tiangson's violations of the CCAP conditions of conduct were
    unexcused, the superior court judge issued an order terminating his participation
    in Enhanced CCAP. Tiangson received 11 days of credit for the time that he had
    attended CCAP and the superior court judge converted the remainder of his
    sentence to a term of incarceration.
    11
    Tiangson contends that the superior court abused its discretion by
    terminating his participation in CCAP because it did not provide him with minimal
    due process during his third CCAP violation hearing.2 We disagree.
    "Revocation of a suspended sentence due to violations rests within the
    discretion of the trial court and will not be disturbed absent an abuse of
    2 The State contends that Tiangson's claim is moot because he is no longer imprisoned.
    We exercise our discretion and elect to consider the merits of Tiangson's appeal. In re Det. of
    M.K., 
    168 Wash. App. 621
    , 626, 279 P.3d 897(2012)(citing Born v. Thompson, 
    154 Wash. 2d 749
    ,
    762-64, 
    117 P.3d 1098
    (2005); Habeas Corpus of Monohan v. Burdman, 
    84 Wash. 2d 922
    , 925, 
    530 P.2d 334
    (1975)).
    4
    No. 75562-5-1/5
    discretion." State v. McCormick, 
    166 Wash. 2d 689
    , 705-06, 213 P.3d 32(2009).
    "An abuse of discretion occurs only when the decision of the court is 'manifestly
    unreasonable, or exercised on untenable grounds, or for untenable reasons."
    
    McCormick, 166 Wash. 2d at 706
    (quoting State ex rel. Carroll v. Junker, 
    79 Wash. 2d 12
    , 26,482 P.2d 775 (1971)).
    Proof of violations need not be established beyond a reasonable doubt but
    must only "reasonably satisfy" the trial court that the breach of condition
    occurred. State v. Badger, 
    64 Wash. App. 904
    , 908, 827 P.2d 318(1992)(citing
    State v. Kuhn, 81 Wn.2d 648,650, 
    503 P.2d 1061
    (1972)). "The revocation of a
    suspended sentence is not a criminal proceeding, but rather an extension of the
    original criminal conviction." 
    McCormick, 166 Wash. 2d at 699
    . "Accordingly, an
    offender facing a revocation of a suspended sentence has only minimal due
    process rights because the trial has already occurred and the offender was found
    guilty beyond a reasonable doubt." 
    McCormick, 166 Wash. 2d at 700
    (citing State V.
    Dahl, 
    139 Wash. 2d 678
    , 683, 
    990 P.2d 396
    (1999)).
    The United States Supreme Court has determined that, in
    the context of parole violations, minimal due process entails:(a)
    written notice of the claimed violations;(b) disclosure to the parolee
    of the evidence against him;(c)the opportunity to be heard;(d) the
    right to confront and cross-examine witnesses (unless there is good
    cause for not allowing confrontation);(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. Morrissey v.
    Brewer, 
    408 U.S. 471
    , 
    92 S. Ct. 2593
    , 
    33 L. Ed. 2d 484
    (1972).
    These requirements exist to ensure that the finding of a violation of
    a term of a suspended sentence will be based upon verified facts.
    
    Id. at 484.
    Dahl, 139 Wash. 2d at 683
    .
    5
    No. 75562-5-1/6
    Here, Tiangson's third CCAP violation hearing occurred before the
    superior court judge who had presided over Tiangson's initial CCAP violation
    hearing. The third hearing began as follows:
    [PROSECUTOR]: [Tiangson's] sentence was to serve six
    months in custody, but 180 days of those were converted to
    CCAP. The allegations before the court are that he failed to
    attend CCAP, and this is the third violation hearing, essentially,
    that we're having before the court on the SRA calendar. He has
    approximately 150 days remaining on CCAP.
    THE COURT: Okay.
    [DEFENSE COUNSEL]: So, Your Honor, Mr. Tiangson did
    have a medical excuse of fall. He did have -- he did have with him
    in jail and provided to my paralegal that he was seen at his
    doctor's, David Nguyen, on June 13th and treated for a lower back
    pain related to a fall. He wants to emphasize to the court that he
    knows he's had attendance problems with CCAP, but he's getting
    better. That he's improving. That he has -- he does benefit from
    both the structure and the program and that he, you know, has
    when he had previous absences, he has called his caseworker. He
    has a one-year-old son. He says he really is improving and that
    this is obviously much better for him and his family than jail. So it's
    not like he completely blows off his obligations. He does have
    severe difficulties and —
    THE COURT: Well, Ms. Jackson, let me tell you. This is the
    identical thing he told me back in April.
    [DEFENSE COUNSEL]: Mm-hmm.
    THE COURT: It's the identical story. And I took notes, so
    I'm going to convert him.
    [DEFENSE COUNSEL]: Okay.
    THE COURT: This is the third time.
    THE DEFENDANT: What's going on?
    [DEFENSE COUNSEL]: She's not going to return you to
    CCAP. She's going to have you spend —
    THE COURT: You told me the same thing back in April.
    [DEFENSE COUNSEL]: -- the remainder of your sentence
    in jail.
    THE DEFENDANT: But I have --
    THE COURT: Right. You said the identical thing last
    time.
    THE DEFENDANT: But I have my doctor papers.
    [DEFENSE COUNSEL]: I mean, he does have a paper
    from his doctor that he was seen on June 13th.
    6
    No. 75562-5-1/7
    THE COURT: I'm sure he does.
    Tiangson had a fair opportunity to be heard at his third CCAP violation
    hearing. Tiangson did not contest during the hearing—nor did he attempt to
    controvert on appeal—that he had violated the CCAP conditions of conduct.
    In addition, the record reflects that Tiangson and his counsel were afforded
    the opportunity to argue at the violation hearing—albeit unsuccessfully—that
    he had a medical excuse that justified his violations. The record does not
    support Tiangson's claim that the judge refused to consider his doctor's
    "note." To the contrary, it is clear that the court was aware of the note and did
    not credit it. The judge plainly knew that the doctor's opinion was based on
    information given to the doctor by Tiangson. And the judge did not consider
    Tiangson truthful, instead considering him to be a malingerer. The superior
    court allowed Tiangson a meaningful opportunity to be heard. He was simply
    unpersuasive. There was no error.3
    Tiangson next contends that the superior court deprived him of his right to
    due process because it did not enter written findings of fact when it terminated
    his participation in CCAP and because its oral ruling did not allow for adequate
    appellate review. We disagree.
    3 The parties' appellate briefing do not contest whether Tiangson has a protected liberty
    interest in the termination of his participation in CCAP. We assume for the purposes of this order
    that he has such a liberty interest. Ganpon v. Scarpelli, 
    411 U.S. 778
    , 781-82, 
    93 S. Ct. 1756
    , 36
    L. Ed. 2d 656(1973)(revocation of probation); 
    Morrissey, 408 U.S. at 481-482
    (revocation of
    parole); In re Pers. Restraint of Bush, 
    164 Wash. 2d 697
    , 703-04, 193 P.3d 103(2008)(revocation
    of a conditional commutation); State v. Abd-Rahmaan, 
    154 Wash. 2d 280
    , 282-83, 
    111 P.3d 1157
    (2005)(revocation of community placement); 
    Dahl, 139 Wash. 2d at 683
    (revocation of special sex
    offender sentencing alternative).
    7
    No. 75562-5-1/8
    Our Supreme Court has held that an oral ruling during a revocation
    hearing satisfies due process when the "judge's oral opinion, transcribed in the
    statement of facts, provides an ample record of the evidence on which the judge
    relied and the reasons for the revocation." State v. Myers, 
    86 Wash. 2d 419
    , 429,
    545 P.2d 538(1976)(citing Blake v. United States, 
    372 F. Supp. 186
    , 190(M.D.
    Fla.1973), aff'd per curiam, 
    489 F.2d 1402
    (5th Cir. 1974); People v. Scott, 
    34 Cal. App. 3d 702
    , 708, 110 Cal. Rptr. 402(1973)).
    Here, we were provided with the oral opinion of the superior court judge,
    as well as the entire record of the CCAP revocation proceedings. The superior
    court judge's oral ruling and the transcript of the proceedings provide "an ample
    record of the evidence on which the judge relied and the reasons" for terminating
    Tiangson's participation in CCAP. 
    Myers, 86 Wash. 2d at 429
    . There was no error.4
    Ill
    Tiangson next contends that the superior court abused its discretion by
    terminating his participation in CCAP because its decision was not supported
    by the record.
    4 Tiangson asserts that the superior court erred by terminating his participation in CCAP
    during his third CCAP violation hearing because the superior court deprived him of two statutory
    rights granted to him pursuant to ROW 9.94A.500. Tiangson first contends that the superior court
    denied him his right to allocute. There is no indication in the record that Tiangson gave "the court
    some indication of his wish to plead for mercy or offer a statement in mitigation of his sentence."
    State v. Canfield, 
    154 Wash. 2d 698
    , 707, 
    116 P.3d 391
    (2005). Indeed, "[t]he record shows that he
    was simply attempting to reargue the evidence introduced at his hearing." 
    Canfield, 154 Wash. 2d at 707-08
    . By not asserting a desire for formal allocution, Tiangson forfeited the right. 
    Canfield, 154 Wash. 2d at 708
    .
    Tiangson next contends that the superior court denied him the statutory right to present
    argument during the third CCAP violation hearing. We disagree. As analyzed above, Tiangson
    was afforded a meaningful opportunity to be heard.
    -8-
    No. 75562-5-1/9
    The superior court terminated Tiangson's participation in CCAP based on
    his admitted violations of CCAP conditions of conduct and his reliance on a
    medical excuse of a type that he had previously relied on to justify his past CCAP
    violations.
    The superior court's reasoning was tenable. The record demonstrates
    that, by the time that Tiangson came before the superior court for his third CCAP
    violation hearing, Tiangson had already twice admitted to violating CCAP
    conditions of conduct concerning attendance and punctuality. He had previously
    relied upon medical and transportation excuses that, he claimed, prevented him
    from consistently attending CCAP. Therefore, when Tiangson came before the
    superior court for his third CCAP violation hearing and admitted to violating
    CCAP conditions of conduct concerning attendance and again alleged that he
    had a medical excuse for the violations, the superior court acted within its
    discretion by electing not to reinstate his participation in CCAP.
    The superior court did not abuse its discretion. There was no error.5
    Affirmed.
    We concur:
    5 During Tiangson's third CCAP violation hearing, the superior court judge misspoke by
    stating that, during each CCAP violation hearing, Tiangson had relied on a medical issue to
    excuse his violations. Because "[Me may affirm the trial court on any basis the record supports,"
    State v. Olmos, 
    129 Wash. App. 750
    , 755, 120 P.3d 139(2005), we conclude that, notwithstanding
    this misstatement, the record amply supports the superior court's order terminating Tiangson's
    participation in CCAP.
    9