IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
STATE OF WASHINGTON, Respondent,

v. CHRISTOPHER A. MILLER, Appellant. No. 68826-0-1 ORDER DENYING APPELLANT'S MOTION FOR RECONSIDERATION AND WITHDRAWING OPINION



### Appellant ChristopherMiller moved for reconsideration of the opinion filed in this
case on December 16, 2013. The panel hearing the case called for an answerfrom the State. The court considered the motion and answer, together with the records and files, and has determined that the motion for reconsideration should be denied. The court 

### also determined that the opinion should be withdrawn and a new opinionfiled. The court hereby ORDERS that the motion for reconsideration is denied and the opinion in the 

### above captioned case filed on December 16, 2013 is withdrawn. 

## Datedthis3 I^'dayppOn^*- ^*u-? 2014.

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JudgeIN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, Respondent,

v. CHRISTOPHER A. MILLER, Appellant. No. 68826-0- DIVISION ONE

PUBLISHED FILED: March 31. 2014
Cox, J. — Christopher Miller appeals the revocation of the special sex offender sentencing alternative (SSOSA) of his suspended sentence. The trial court revoked this SSOSA because Miller failed to commence sexual deviancy treatment within 90 days of his release from confinement, as required by his sentence. Miller claims this revocation violated his due process and equal protection rights. Because the trial court did not abuse its discretion in revoking this SSOA, we affirm. In 2010, Millerpleaded guilty to one count of first degree rape of a child. 

### As a first-time offender, he submitted to a forensicpsychological evaluationtqi? determine his suitability for a SSOSA. CO ooc

In 2011, without objection from the State, the sentencing court granted -tr _>•'' 

### Miller a SSOSA and ordered 12months ofconfinementwith 93 months to life JL suspended. One ofthe SSOSA conditions was that Miller commence sexual deviancy treatment "within 90 days from the Defendant's release from jail." When the trial court granted the SSOSA, itmade clear that Millerwas responsible for paying for this treatment. -icNo. 68826-0-1/2 InJanuary 2012, Miller was released from jail. Approximately a week later, the State informed the court that he did not have a stable residence. Miller told his correctional officer that he thought that he was going to be able to live with his father. But the mobile home park that his father lived in would not accept him as a resident. The trial court found no violation of any SSOSA condition at that point, but itordered Millerto check in daily with his correctional officer. A month later, the State moved to revoke Miller's SSOSA. Miller's correctional officer reported that Millerchecked in with her daily and had applied for benefits. But she also testified that Miller continued to not have a stable residence and that he did not have enough money to pay for sexual deviancy treatment. The trial court granted Miller 30 days to show compliance withthe SSOSA condition for treatment. The State renewed its motion to revoke the SSOSA. In May 2012, the trial 

### court heard testimony from Miller, his correctional officer, and thejail transition 

### coordinator. At the end of the hearing, the trial court gave its oral ruling. It revoked Miller's SSOSA and imposed 93 months ofconfinement because he was 

### not then insexual deviancy treatment, as the sentence required. The trial court later entered its written findings of fact and conclusions of law. The trial court found that Miller did not have the financial resources to
commence treatment at the mandated level. It also found that he would not have the resources to commence treatment within a reasonable amount oftime. 

### The court did not make any determination whether the failure to comply with the sentencing condition was willful.No. 68826-0-1/3 Millerappeals. REVOCATION OF SSOSA Millerargues that the trial court abused its discretion in revoking his SSOSA, violating his rights to due process and equal protection. We disagree. "ASSOSA sentence may be revoked at any time ifthere is sufficient proof 

### to reasonably satisfy the court that the offender has violated a condition ofthe 

### suspended sentenceorfailed tomake satisfactory progress in treatment."1 "Revocation of a suspended sentence due to violations rests within the discretion ofthe trial court and will not be disturbed absent an abuse of 

### discretion."2 "An abuse ofdiscretion occurs only when the decision ofthe court is 'manifestly unreasonable, or exercised on untenable grounds, or foruntenable reasons.'"3 

### Under the Sentencing Reform Act of 1981, chapter 9.94A RCW, a first

### time sex offender may be eligible for a suspended sentence under the SSOSA 

### provisions.4 "SSOSAwas created because itwas believed thatfor certain firsttime sexual offenders, 'requiring participation in rehabilitation programs is likely to 

### prove effective in preventing future criminality.'"5
1State v. McCormick, 166 Wn.2d 689, 705, 213 P.3d 32 (2009). 

### 2Id, at 705-06. 3\± at 706 (quoting State ex rel. Carroll v. Junker, 79Wn.2d 12,26, 482 P.2d 775 (1971)). 

### 4RCW 9.94A.670(2). 5State v. Goss. 56 Wn.App. 541, 544, 784 P.2d 194 (1990) (quoting D. Boerner, Sentencing inWashington § 2.5(c) (1985)). 3No. 68826-0-1/4 

### Under RCW 9.94A.670(11), "The court may revoke the suspended 

### sentence at any time during the period of community custody and order execution ofthe sentence if: (a) The offender violates the conditions of the 

### suspended sentence, or (b) the court finds that the offender isfailing to make 

### satisfactory progress in treatment." As the supreme court has noted, the plain 

### language of this provision does not require that a trial courtfind that a violation of either ofthe above conditions was willful in order to revoke the suspended sentence.6 Nonetheless, the United States Supreme Court has recognized 

### "substantive"7 protections when an offender's probation isrevoked because he or 

### shefailed to pay imposed fines orrestitution.8 In Bearden v. Georgia, the State charged Danny Bearden with felonies of 

### burglary andtheft.9 Georgia's trial court sentenced him to three years of probation for the burglary charge and a concurrentyear ofprobation for thetheft 

### charge.10 One oftheconditions tohis probation was that he pay a $500 fine and

6McCormick, 166 Wn.2d at 697-98 (citing former RCW 

### 9.94A.120(8)(a)(vi), which contains identical language to RCW 9.94A.670(11)). 7See Black v. Romano, 471 U.S. 606, 611, 105 S. Ct. 2254, 85 L. Ed. 2d 

### 636 (1985) (citing Bearden v. Georgia, 461 U.S. 660, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983)) (explaining that the Bearden court "recognized substantive limits on the automatic revocation ofprobation where an indigent defendant is unable to pay a fine or restitution"). 

### 8McCormick, 166 Wn.2d at 700 (citing Bearden, 461 U.S. at 666). 9461 U.S. 660, 662, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983). 10 Id.No. 68826-0-1/5 

### $250 in restitution.11 Beardenborrowed some moneyfrom his parents to partially pay these obligations, but he was laid offfrom his job before he could pay the 

### remaining balance.12 Therecord showed thatBearden, who had "only a ninth grade education and [could not] read, tried repeatedly to find otherwork but was 

### unable to do so."13 The trial courtrevoked his probation because he failed to pay the full amount he owed.14 

### The Court began with acknowledging that ithas "long been sensitive to 

### the treatmentofindigents in ourcriminaljustice system."15 The Bearden Court explained that the question presented was "whether a sentencing court can 

### revoke a defendant's probation forfailure to pay the imposed fine and restitution, absent evidence and findings that the defendantwas somehow responsible for 

### thefailure orthatalternativeforms ofpunishmentwere inadequate."16 In its analysis of this issue, the Court explained that due process and 

### equal protection principles "converge."17 In determining what protections should be afforded to an offender when the State seeks to revoke his or her probation 

### based on a failure to pay an imposed fine orrestitution, the Courtengaged in "a
11 kL 

### 12 ii at 662-63. 

### 13jcL 14 \± at 663. 

### 15kLat 664. 

### 16jd. at 665. 17 Id.No. 68826-0-1/6 careful inquiry into such factors as 'the nature ofthe individual interest affected, the extent to which it is affected, the rationality ofthe connection between legislative means and purpose, [and] the existence ofalternative means for 

### effectuating the purpose . . . .'"18 After examining the interests of Bearden and the State, the Court held that due process and equal protection principles require that a trial court "inquire into 

### thereasons" why a probationer hasfailed topayfines orrestitution.19 Ifthe probationerwillfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of sentencing authority. Ifthe probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternative measures ofpunishment other than imprisonment. Only ifalternative measures are not adequate to meet the State's interests in punishment and deterrence may the court imprison a 

### probationerwho has made sufficient bona fide efforts to pay. To do otherwise would deprive the probationer of his conditional freedom 

### simply because, through no fault of his own, he cannot pay the fine. Such a deprivation would be contrary to the fundamental fairness 

### required bytheFourteenth Amendment.'201 The Court reversed thejudgment and remanded so that the lower courts 

### could determine ifBearden had made"sufficientbonafide efforts topay."21 And

18 ]d, at 666-67 (alterations in original) (quoting Williams v. Illinois. 399 U.S. 235, 260, 90 S. Ct. 2018, 26 L. Ed. 2d 586 (1970)). 

### 19 Id, at 672. 20 \± at 672-73. 21 Id. at 674.No. 68826-0-1/7 if so, whether an "alternate punishment" or an "alternate measure" was available 

### and was "adequateto meetthe State's interest in punishment and deterrence."22 In State v. McCormick, our supreme court explained the limitations to the 

### holding in Bearden.23 Our supremecourtexplained, "The Bearden Courtdid not address whether a finding of willfulness was required in other settings and, if 

### anything, it indicated a finding of willfulness would not be required ifthe condition 

### is athreatto thesafety orwelfare ofsociety."24 There, a SSOSA condition was at issue. Specifically, the condition 

### prohibitedMcCormick, who was convicted of firstdegree rape of a child, from 

### "'frequent[ing] areas where minorchildren are known to congregate, as defined 

## bythe supervising Community Corrections Officer.'"25 Thetrial courtfound that McCormick violated this condition when he went to a food bank located on a 

### school's property.26 McCormick argued that the "due process clauses of the state and federal 

### constitutions require the State to prove a willful violation ofcommunity custody 

### conditions before revoking asuspended sentence."27 The supreme court disagreed.

22 Id,
23 166Wn.2d689, 7(
24 Id,
25 id. at 693.
26 Id, at 696.
27 Id. at 699.No. 68826-0-1/8 

### The court "conducted] a careful inquiry" intothe factors that Bearden 

### identified.28 As noted above, these factors included "the nature of the individual interest affected, the extent to which it is affected, the rationality ofthe 

### connection between the legislative means and purposes, and the existence of 

### alternative meansfor effectuating thepurpose."29 Afterconducting this inquiry, the court concluded: Given the State's strong interest in protecting the public, McCormick's diminished interest because of his status as a 

### convicted sex offender serving a SSOSA sentence, and that McCormick's proposed scenario leads to dangerous situations where McCormick can frequent places where minors are known to 

### congregate, due process does not require the State to prove that 

### McCormickwillfully violated the condition.1301 Unlike Bearden, the trial court in McCormick did not have to "inquire into the 

### reasons" why McCormickviolated the condition.31 The courtbased this conclusion on the fact that the violation of this condition was a "threat to the 

### safety orwelfare ofsociety."32 Here, the SSOSA condition at issue is both similar to and different from the conditions in McCormick and Bearden. As noted above, one of Miller's 

### SSOSAconditions required that he commence sexual deviancy treatment "within



### 28 Id,at 701-02(citing Bearden,461 U.S. at 666-67). 29 Id,(citing Bearden,461 U.S. at 666-67). 30 Id, at 703. 31 Compare jd, at 705, wjth Bearden, 461 U.S. at 672. 32 McCormick, 166 Wn.2d at 701, 706.
8No. 68826-0-1/9 90 days from the defendant's release from jail." Additionally, Miller was ultimately responsible for paying for this treatment. Like McCormick, a violation of Miller's condition is a threat to the safety 

### and welfare ofsociety. Sexual deviancy treatment will help ensure that Miller will not reoffend, and the ability to participate intreatment and rehabilitate is the 

### purpose ofgranting a SSOSA.33 But, unlike McCormick, Miller's condition involves a financial burden. In contrast, Miller's condition is like the condition in Bearden because that condition involved a financial burden—payment offines and restitution. But, unlike Bearden, Miller's condition related to the safety and welfare ofsociety. Thus, the issue is whether the trial court properly exercised its discretion when itrevoked Miller's SSOSA for failing to participate in sexual deviancy 

### treatment, which he had to pay for, withoutconsidering whetherthe violation was willful. 

### As noted above, whether a finding of willfulness is required begins with a 

### "careful inquiry" into theinterests affected.34 Here, we considerMiller's and the State's interests respectively. 

### Miller has an interest in being "punished onlywhen he acted willfully in 

## violating the terms ofhis probation" like the probationerin McCormick.35 As the McCormick court explained, this "interest comes from the idea that a person is 

### 33 See Goss. 56Wn. App. at 544. 34 McCormick. 166 Wn.2d at 701-02 (citing Bearden. 461 U.S. at 666-67). 35 Id. at 702.No. 68826-0-1/10 

### punished onlyforthe actswithin his or hercontrol."36 "Thatinterest isaffected if the State does not have toprove McCormick actedwillfully."37 Additionally, Miller argues that he has a significant interest in remaining on 

### probation.38 Specifically, he argues thatunder Bearden. he has an interest in not 

## having his SSOSArevoked because ofhis "involuntary indigency."39 He contends that revoking his SSOSA based on his inability to pay fortreatment is 

### "'punishing aperson for his poverty.'"40 The State has "'an important interest in protecting society, particularly 

### minors, from a person convicted of raping a child,'" as the McCormick court also 

### recognized.41 "That interest isrationally servedby imposing stringentconditions related to the crime" that Miller committed."42 Here, the condition that required Miller to participate in sexual deviancy treatment serves as a way to prevent 

### Millerfrom reoffending.43 But requiring Millerto payforthetreatmentwhen he cannot afford itdoes not necessarily serve this purpose.



### 36 Id, 

### 37 Id, 38 BriefofAppellant at 25 (citing Bearden. 461 U.S. at 671). 

### 39 Id,at 23-26. 40Id,at 25 (quoting Bearden,461 U.S. at 671). 41 Briefof Respondent at 11 (quoting McCormick, 166Wn.2d at 702). 42 McCormick, 166 Wn.2d at 702. 43 See id.
10No. 68826-0-1/11 Because Miller's ability to pay for the treatment determines if he can fulfill the SSOSA condition, the rule announced in Bearden controls here: "[l]fthe probationer has made all reasonable efforts to pay [for treatment], and yet cannot do so through no fault of his own, it is fundamentally unfair to revoke probation automatically without considering whether adequate alternative methods of 

### punishing the defendant are available."44 "This lack offault provides a 'substantial reaso[n] which justifie[s] or mitigate[s] the violation and [could] make[] 

### revocation inappropriate."45 Ourtask, then, is todetermine whether thetrial court inthis case fulfilled its obligation under this rule. Here, the trial court inquired into the reasons why Millerwas not in treatment and why he could not pay for treatment. The court appeared to 

### acknowledge that Millerwas willing to undergo treatment but was unable to pay 

### forit. It stated, "[l]t is regrettable that people find themselves in positions such as Mr. Miller where they lack financial assistance or the financial means to get into 

### treatment."46 In itswritten findings, thetrial court stated: The defendant has dismal prospects for employment. It is likelythe 

### only way the defendant would ever be able to pay for sexual deviancy treatment would be with public assistance. It is unknown ifthe defendant would be eligible for benefits (SSI) which could potentially pay for treatment. Inany case, the earliest the defendant would receive benefits from SSI would be 12 months 

### after releasefromjail.[47]
44 Bearden, 461 U.S. at 668-69. 

### 45 Id, at 669 (some alterations in original). 

### 46 Report ofProceedings II (May 8, 2012) at 11. 47 Clerk's Papers at 7.
11No. 68826-0-1/12
The trial court acknowledged that Millertried to find employment but was unable to do so. The court further explained that Miller's family members initially led the court to believe they could help pay for treatment but that was no longer the
case. As Bearden requires, the trial court impliedly acknowledged that Miller made bona fide efforts to pay for treatment but was unable to do so. The trial court then properly considered whetherthere were alternative 

### forms ofpunishment otherthanincarceration.48 It noted in its oral ruling that Millerwas receiving free mental health treatment, but it would not replace the sexual deviancy treatment. In its written findings, the trial court found that the fact that Millerwas not in sexual deviancy treatment increased the risk that Miller would reoffend. Consequently, this mental health treatment was not an adequate 

### alternative measure to meetthe State's interest in punishment anddeterrence.49 Because Millerwas not receiving sexual deviancy treatment for which he 

### had to pay and there were no adequate alternative measures, the trial court did not abuse its discretion when itrevoked Miller's SSOSA. Although the trial court needed to inquire into the reasons why Miller was not participating intreatment 

### that he had to pay for, the court did not need to findthat Miller's failure was willful in order to revoke the SSOSA. Miller argues that the court's finding that "ifMr. Miller remained inthe 

### community without sexual deviancy treatment, Mr. Miller posed a 'significant risk

48 See Bearden, 461 U.S. at 672. 49 Id. at 672-73.
12No. 68826-0-1/13 

### tore-offend'.
. .was not supported by substantial evidence."50 Butthis argument is not supported by the record. 

### This court reviews findings offact for substantial evidence.51 Substantial evidence is "evidence sufficientto persuade a fair-minded, rational person ofthe 

### truth ofthedeclared premise."52 Here, the Report ofForensic Psychological Evaluation, which was before the trial court, stated that Miller's "long-term risk ofsexual recidivism falls in the 

### low-moderate range."53 Specifically, "On an actuarial basis, personswith history similar to Mr. Miller'shave a probability ofsexual reoffending of .09 over 5 years, 

### .13 over 10years, and .16 over 15years."54 It recommended thatMillerenter into sexual deviancy treatmentfor a period notless than three years. The report 

## explained that "[treatmentobjectives should include relapse prevention."55 Given this report, substantial evidence supports the trial court's finding that Miller was at risk for reoffending if he was not insexual deviancy treatment. 

### Miller's arguments to the contrary are not persuasive.

50 Brief ofAppellant at 30. 51 Sunnvside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 879, 73 P.3d 369 (2003). 52 Price v. Kitsap Transit, 125 Wn.2d 456, 464, 886 P.2d 556 (1994). 

### 53 Clerk's Papers at 105. 54 Jd, 55 Id. at 106.
13No. 68826-0-1/14 Milleralso makes separate due process and equal protection arguments in his opening brief. But, as discussed above, the Supreme Court has explained 

### that due process andequal protection principles converge forthis type ofissue.56 Thus, there is no separate evaluation ofthese constitutional provisions for purposes ofthis issue. Miller purports to challenge the constitutionality of RCW 9.94A.670. He offers no authority or argument supporting any challenge beyond the constitutional issues that are fully addressed in this opinion. Accordingly, we do not further address this challenge. 

### In sum, even though the trial court did not explicitly apply the rule in Bearden, it followed the principles ofthat case. The court inquired into the 

### reasons why Miller was not insexual deviancy treatment and why he could not 

### pay for this treatment. Because there were no adequate alternative measures, the court properlyexercised its discretion inrevoking the SSOSA in this case. We affirm the orders revoking the SSOSA. /O *-rWE CONCUR:

56 See Bearden, 461 U.S. at 665.
14