State Of Washington, Resp. v. Alexander Nichelin, App. ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 70304-8-1
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DIVISION ONE
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UNPUBLISHED OPINION 3C O-r
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ALEXANDER SCOTT NICHELIN, UD —^ "C
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Appellant. FILED: June 9, 2014
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Trickey, J. — Alexander Nichelin appeals his convictions for identity theft
and possession of stolen property, arguing that the trial court considered
undisclosed information at his drug court termination hearing violating his right to
due process. Because this claim is based on speculation raised for the first time
on appeal, and because the record demonstrates that the trial court relied on
evidence presented at the hearing, we affirm.
FACTS
In July 2011, the State charged Alexander Nichelin with three counts of
second degree identity theft and one count of second degree possession of
stolen property. On February 29, 2012, Nichelin and the State entered into an
Adult Drug Treatment Court (ADTC) agreement. Nichelin agreed to submit the
charges to the trial court on a stipulated record for a determination of guilt if he
failed to complete the drug court program. The agreement also states:
I agree that any failure in my treatment program, including, but not
limited to: positive urinalysis tests, missed tests or out-of-range
urine samples, missed treatment, missed court appearances, any
failure to abide by the terms of this agreement, or commission of a
new crime, may result in modification of the treatment program,
revocation of my pre-trial release, or termination from the ADTC.
No. 70304-8-1 / 2
I must follow the treatment plan as developed by the ADTC
Treatment Provider.
I agree to abstain from any use or possession of alcohol, drugs, or
drug paraphernalia. If any drugs are prescribed for me by a doctor,
I will immediately inform my treatment provider and provide the
required documentation.111
Nichelin also signed a statement of ADTC program expectations. He
initialed the following paragraphs:
I am aware that I will be expected to abstain from all use of
alcohol and other drugs, except medications prescribed by
dentist or doctor. Dentists and doctors must be informed of my
drug use history and my participation in Drug Treatment Court.
Use of all mind and mood altering medication requires completion
of the ADTC Medication Form prior to use. I am aware that all
mind and mood altering substances, poppy seeds, medications
(such as Nyquil) which contains alcohol and products containing
ephedrine (found in sinus and cold allergy meds & an ingredient in
amphetamine and methamphetamine) are not to be consumed
while in the program. I am aware that I must show any and all
prescribed and over-the-counter medications to have approval from
the ADTC Team before taking them.
I am aware that I must contact the Drug Court Coordinator or my
treatment counselor immediately if I have relapsed. My success in
Drug Treatment Court requires me to be honest about any
continued use or relapse.[2]
ADTC coordinators also provide program participants with a handbook
directing them to "be very careful not to ingest," among other things, "'[njatural' or
herbal remedies or supplements," "[o]ver the counter or prescription medicines
without prior approval by [a] treatment provider," and "[a]ny mind or mood altering
substances."3 The handbook continues:
1 Clerk's Papers (CP) at 71-72.
2 Exhibit (Ex.) 8.
3 Ex. 6 at 11.
No. 70304-8-1 / 3
If you receive a positive UA [(urinalysis)] result because you
ingested one of the above substances without prior approval, it will
be treated as a positive UA and you will be sanctioned.
Read labels and ask questions before you put a substance in your
body. Claiming that you did not know what was in something will
not be accepted as an excuse. If you receive a positive UA
because you used one of the above and failed to follow the
directions of your treatment counselor or the ADTC team, you will
receive a sanction or be terminated from the program. Be aware
of what you are putting into your body. If you have questions,
ask your treatment counselor FIRST![4]
In November 2012, a urinalysis test indicated that Nichelin had used
Kratom. The ADTC team decided to terminate Nichelin from the program for (1)
using the substance Kratom, and (2) being dishonest with the team about his use
of Kratom. Nichelin requested an evidentiary hearing before a judge who was
not a member of his ADTC team, according to the provisions of the ADTC
agreement.
At a hearing in March 2013, ADTC coordinator Karla Rasmussen testified
that she learns of new drugs and substances through professional conferences
and her contacts with other drug court coordinators and urinalysis specialists.
She testified that "Kratom" is an "addictive" "[m]ind and mood-altering substance"
of which the ADTC team had been aware for two years.5 Rasmussen
acknowledged that Kratom "is currently legal" but claimed "it's on the way to
becoming illegal."6 Upon hearing rumors from other program participants that
4 Ex. 6 at 11.
5Verbatim Report of Proceedings (VRP) 3/12/13 at 27-28.
6 VRP 3/12/13 at 55.
No. 70304-8-1/4
Nichelin "was involved with Kratom," Rasmussen asked the urinalysis
department to test him for it.7
According to Rasmussen, when confronted with the positive test, Nichelin
initially said that he had used Kratom six months earlier. After she told him that
the test only detects use within three to five days, Nichelin admitted recent use
and explained that "someone in his doctor's office had recommended Kratom to
him as a sleep aid and that he had been having problems sleeping so he took it
for that."8 Rasmussen also identified letters Nichelin had written to each ADTC
team member apologizing for his dishonesty regarding his use of Kratom.
Rasmussen testified that honesty "is a critical part of the treatment plan,"
and dishonesty "might be the number one reason" participants are terminated.9
She explains to all program participants that there are increasingly serious levels
of dishonesty about continued use or relapse that lead to more serious sanctions.
For example, Rasmussen noted the differing levels of dishonesty between
participants who (1) call the drug coordinator and admit use immediately; (2)
admit use to the technician when providing a sample; (3) admit use after being
confronted with positive test; and (4) deny use after being confronted with a
positive test.10 Rasmussen also testified that in her view, lying about use of mind
or mood-altering substances that "fly underneath drug court's radar" because
testing is new, rare, or expensive, is "really egregious" dishonesty.11
7 VRP 3/12/13 at 28.
8 VRP 3/12/13 at 30.
9 VRP 3/12/13 at 34-36.
10VRP 3/12/13 at 34-35.
11 VRP 3/12/13 at 40-41.
No. 70304-8-1 / 5
Nichelin presented two witnesses who testified about his progress in
therapy and counseling. Nichelin did not present any evidence or testimony to
contradict Rasmussen's testimony.
During closing argument, defense counsel suggested that "no one really
knows at this point" what Kratom is.12 The following exchange occurred:
THE COURT: Would I have the ability to take judicial notice of what
I know of Kratom?
[DEFENSE COUNSEL]: You certainly can. And I don't know how
much Mr. Nichelin knew at that time. So, Your Honor, I am asking
the Court --
THE COURT: Well, do I have the ability to speculate?
[DEFENSE COUNSEL]: I'd ask the Court not to speculate. And I
don't know how much the Court actually does know of Kratom, so
I'd ask if the Court does take judicial notice that it only be facts of
Kratom itself based on some reliable source.113'
At a hearing two days later, the trial court gave its oral ruling. Without
mentioning the concept of judicial notice or identifying any source of information
outside the record, the trial court found that (1) Kratom is a mood-altering
substance; (2) Nichelin tested positive for use of Kratom; (3) Nichelin knew of the
policies, procedures, and expectations of the ADTC team; (4) Nichelin's honesty
level regarding his use of Kratom was the lowest; and (5) Nichelin should have
considered Kratom a mood-altering substance and requested permission before
using it specifically because it was recommended at his doctor's office for the
express purpose of altering his mood.
12 VRP 3/12/13 at 77.
13 VRP 3/12/13 at 77-78.
No. 70304-8-1 / 6
The trial court entered a written order terminating Nichelin from drug court
for the following reasons: "(1) Consuming Kratom on or about 11/1/2012, [and]
(2) [d]ishonesty to the court regarding use of Kratom."14 After finding Nichelin
guilty of the original charges based on the stipulated record, the trial court
imposed a standard range sentence.
Nichelin appeals.
ANALYSIS
When seeking to terminate an individual's participation in drug court, the
State must prove non-compliance with the drug court diversion agreement by a
preponderance of the evidence. State v. Varnell. 137 Wn. App. 925, 929, 155
P.3d 971 (2007) (quoting State v. Marino, 100 Wn.2d 719, 725, 674 P.2d 171(1984)). In drug court termination proceedings, drug court participants are
entitled to the same minimal due process rights required in proceedings involving
alleged probation, parole, or conditions of sentence violations. State v. Cassill-
Skilton. 122 Wn. App. 652, 656-58, 94 P.3d 407 (2004). Revocation of a
suspended sentence or deferred disposition rests within the discretion of the
court. State v. Badger, 64 Wn. App. 904, 908, 827 P.2d 318 (1992); State v. J.A.,
105 Wn. App. 879, 887, 20 P.3d 487 (2001) (juvenile offender deferred
disposition). A decision to terminate participation in a drug diversion court
requires a similar exercise of discretion. We therefore review Nichelin's
termination from drug court under an abuse of discretion standard.
In Cassill-Skilton, the court held that the State could not terminate drug
court participation without (1) giving the defendant an opportunity to contest the
14 CP at 55.
No. 70304-8-1 / 7
basis of the termination and (2) creating a record of the evidence relied on to
terminate participation. 122 Wn. App. at 658. Nichelin does not dispute that he
received notice of the alleged violations and had an opportunity to be heard in a
recorded proceeding.
Nichelin first contends that the State failed to present any evidence that
Kratom is a mind or mood-altering substance other than Rasmussen's
"unsubstantiated opinion."15 But after Nichelin's initial objection regarding the
foundation of Rasmussen's knowledge of Kratom, she identified her sources of
information and her experience attempting to detect and prevent its use by
program participants. Rasmussen then repeated her opinion of Kratom. Nichelin
did not object or present any evidence to contradict her testimony. And Nichelin
did not dispute Rasmussen's report that Nichelin himself admitted that he took
Kratom based on advice from his doctor's office to use it as a sleep aid. The
court had discretion to accept or reject Rasmussen's opinion of Kratom, and it did
not abuse its discretion by ruling as it did. We do not review the trial court's
determinations as to persuasiveness, credibility, and weight of the evidence.
See State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
Next, for the first time on appeal, Nichelin contends that the trial court
erred by taking judicial notice of facts reasonably subject to dispute, specifically,
that Kratom is a mind or mood-altering substance. Nichelin claims that the court
"appeared to rely on what it knew about Kratom and its own 'cursory search' on
the [l]nternet."16 But the record does not establish that the trial court actually took
15 Brief of Appellant (Br. of App.) at 19.
16 Br. of App. at 20.
No. 70304-8-1 / 8
judicial notice of any fact or consulted any outside resource, on the Internet or
otherwise. Nichelin relies on statements in the oral ruling that could refer merely
to the evidence presented at the hearing and reasonable inferences from that
evidence. Because Nichelin did not object, request clarification, or dispute the
factual basis for the findings regarding Kratom below, the trial court had no
opportunity to address this concern. We therefore decline to speculate whether
the trial court consulted information outside the record and will not consider the
issue for the first time on appeal. See State v. Scott. 110 Wn.2d 682, 685, 757
P.2d 492 (1988); RAP 2.5(a).17
Moreover, we reject Nichelin's related argument that the trial court failed
to clearly state the evidence upon which it relied to determine that Kratom is a
mind-altering substance. The trial court's findings are consistent with
Rasmussen's uncontroverted testimony, the only evidence presented at the
hearing regarding Kratom. And the court explicitly relied on the fact that "the
doctor's office made the recommendation for the express purpose of changing
his mood, i.e., to deal with his anxiety," to find that Nichelin should have known
Kratom was a mood-altering substance and requested approval before using it.18
Because the record demonstrates that the trial court had ample basis to find that
Kratom is a mood-altering substance by a preponderance of the evidence
presented at the hearing, and because the trial court explicitly relied on that
17 We also deny Nichelin's motion for this court to consider materials downloaded from
the Internet to demonstrate that a "cursory search" would reveal that the purported mind-
altering effects of Kratom are reasonably subject to dispute. Because the record
demonstrates that the trial court considered and relied upon the evidence presented at
the hearing, we need not resolve the question of whether outside sources dispute the
effects of Kratom.
18 VRP 3/14/13 at 5.
8
No. 70304-8-1 / 9
evidence, Nichelin fails to establish a violation of his right to due process. See
Marino. 100 Wn.2d at 726-27 (where factual disputes are resolved and trial
court's decision is based on the evidence, due process is satisfied).
In his statement of additional grounds for review, Nichelin claims that he
was treated differently by drug court officials after he reported being sexually
assaulted by a laboratory employee while producing a sample for a urinalysis test.
He suggests that their knowledge of his potential lawsuit against the laboratory
contributed to the ADTC team's initial decision to terminate him from the program.
Because Nichelin relies on matters outside the record, a personal restraint
petition is the appropriate means to raise such issues. State v. McFarland, 127
Wn.2d 322, 338, 899 P.2d 1251 (1995).
Affirmed.
WE CONCUR: