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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,

 Respondent, 

 v. 

JUSTIN R. WHEELER, 

 Appellant.

No. 79574-1-I 

DIVISION ONE

UNPUBLISHED OPINION

LEACH, J. — Justin Ross Wheeler appeals the trial court’s order revoking his 

special sex offender sentencing alternative (SSOSA). He claims the trial court violated 

his double jeopardy rights by considering his previously sanctioned condition violations 

when it revoked the SSOSA. He also claims, and the State concedes, that he should 

receive credit for time served on work crew. 

Because the trial court’s consideration of earlier violations does not violate 

double jeopardy, we affirm the SSOSA revocation. But, the SSOSA statute requires the 

court to credit confinement time, and confinement time includes work crew service. So, 

we remand to the trial court to credit Wheeler for time served on work crew.

FACTS

In December 2008, Justin Ross Wheeler pleaded guilty to three counts of first 

degree child molestation. The trial court sentenced him to a special sex offender 
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sentencing alternative with a 130 month suspended sentence. The court ordered him to 

complete at least three years of outpatient sex offender treatment. The court also 

imposed community custody conditions, including (1) do not consume controlled 

substances; (2) do not contact minor children; (3) report to the assigned community 

corrections officer (CCO) as directed; and (4) participate in urinalyses as directed by the 

supervising CCO. In April 2015, Wheeler admitted to six community custody 

violations: contacting two minors, possessing alcohol, and failing to report for work crew 

three times.

The trial court ordered Wheeler to serve 360 days in jail as a sanction. It also 

ordered Wheeler to complete another two years of sex offender treatment, community 

custody, and imposed additional conditions, including: (1) prohibiting access to the 

internet, except as authorized by his CCO, and (2) requiring installation of monitoring 

software for any device with the internet. 

In May 2016, the State asked the court to revoke Wheeler’s SSOSA based on 

additional condition violations. The trial court found that he committed four violations

because he failed to report to his CCO, failed to report to work crew, consumed 

marijuana, and consumed Percocet without a valid prescription. The court denied the 

State’s request to revoke the SSOSA but sanctioned him with an additional 240 days in 

jail.

In October 2018, the State again asked the court to revoke Wheeler’s SSOSA 

based on additional condition violations. The State alleged that he failed to report to his 

CCO, consumed marijuana, and failed to install monitoring software on devices that 

could access the internet. 
No. 79574-1/ 3

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On January 16, 2019, the trial court held a revocation hearing. During closing

argument, the State mentioned Wheeler’s earlier violations and sanctions. Wheeler 

objected, arguing that double jeopardy and the plain language of the SSOSA statute 

prohibited the trial court from considering Wheeler’s earlier violations when deciding 

whether to revoke his SSOSA. The court found that while it could not rely on earlier

violations as evidence that he “violated on this particular occasion,” “[p]rior violations 

may be relevant when it comes to the issue of any sanction that may be appropriate just 

as prior criminal conduct would be.” 

The trial court found that Wheeler violated his SSOSA. The court found 

Wheeler’s failure to install monitoring software as “the most significant violation.” It 

revoked his SSOSA.

With regard to the prior sanctions and prior violation hearings held 

by the Court, I certainly do not suggest and would not punish Mr. Wheeler 

for the same conduct twice. However, there comes a time when the 

cumulative violations of a SSOSA, which is a matter of grace, not a matter 

of right, when the cumulative violations of the SSOSA suggest that the 

defendant should not remain upon a sexual, special sexual offender 

sentencing alternative. And the record in this file is replete with continued 

violations, and repeated hearings wherein violations have been found. 

Given the very serious nature of the violation on this occasion 

where there had been a prior violation using electronic devices where 

Judge Rickert had specifically ordered that there's monitoring software 

and where there was no monitoring software, the Court will find, and in 

light of the prior violations, the Court will find that revocation is appropriate 

in this case and will order revocation of the special sexual offender 

sentencing alternative.

After revoking the SSOSA, the court ordered Wheeler serve his original 

sentence, 130 months on all three counts, to run concurrently with credit for time served 

in jail on prior condition violations. Wheeler appeals.
No. 79574-1/ 4

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DISCUSSION

Wheeler claims the trial court violated the prohibition against double jeopardy by

considering his earlier condition violations when it decided to revoke his SSOSA. We

disagree. 

The Sentencing Reform Act of 1981, chapter 9.94A RCW authorizes a 

sentencing court to suspend the sentence of a first-time sexual offender if the offender 

is shown to be amenable to treatment and instead require that the offender be released 

into community custody and receive outpatient or inpatient treatment.

1

A trial court may revoke a SSOSA at any time if the offender violates the 

conditions of the suspended sentence or if the court finds the offender fails to make 

satisfactory progress in treatment.

2 After a court revokes a SSOSA, the court reinstates 

the original sentence.3 Because revocation is not a criminal proceeding, the due 

process rights at a revocation hearing are not the same as those guaranteed at trial.4 

The offender at a revocation hearing has “only minimal due process rights.”5

The double jeopardy clause of the Fifth Amendment guarantees protection 

against: (1) a second prosecution for the same offense after an acquittal; (2) a second 

prosecution for the same offense after a conviction; and (3) “‘multiple punishments for 

 

 1 RCW 9.94A.670. 2 RCW 9.94A.670(11); State v. McCormick, 166 Wn.2d 689, 698, 705-06, 213

P.3d 32 (2009). 3 State v. Dahl, 139 Wn.2d 678, 683, 990 P.2d 396 (1999).

4 Dahl, 139 Wn.2d at 683 (citing State v. Nelson, 103 Wn.2d 760, 763, 697 P.2d 

579 (1985)). 5 Dahl, 139 Wn.2d at 683 (citing State v. Badger, 64 Wn. App. 904, 907, 827 

P.2d 318 (1992)).
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the same offense’ imposed in a single proceeding.”6 We review double jeopardy claims 

de novo.7

“In the multiple punishments context,” double jeopardy protection is “‘limited to 

ensuring that the total punishment did not exceed that authorized by the legislature.’”8

“A double jeopardy violation does not occur simply because two adverse consequences 

stem from the same act.”9 Principles of double jeopardy generally do not apply to 

sentencing other than in the death penalty context.

10 Washington courts have not yet 

answered the specific question of whether double jeopardy prohibits a court from 

considering earlier SSOSA condition violations in its decision to revoke a SSOSA. 

Wheeler claims that the SSOSA revocation is an additional penalty, and that 

considering earlier violations when deciding whether to revoke a SSOSA violates 

double jeopardy because the court already sanctioned him for those earlier violations. 

So, considering them would constitute a double punishment.

First, revoking a SSOSA is not separate punishment. If an offender violates a 

condition of a suspended sentence, or if the court finds that an offender fails to make 

satisfactory progress in treatment, the court can revoke the suspended sentence and 

apply the original sentence.11 So, revoking the SSOSA does not impose a double 

 6 Jones v. Thomas, 491 U.S. 376, 381, 109 S. Ct. 2522, 105 L. Ed. 2d 322

(1989) (quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed.

2d 656 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S.

Ct. 2201, 104 L. Ed. 2d 865 (1989)).

7 State v. Hughes, 166 Wn.2d 675, 681, 212 P.3d 558 (2009). 8 Thomas, 491 U.S. at 381 (quoting U.S. v. Halper, 490 U.S. 435, 450, 109 S. Ct.

1892, 104 L. Ed. 2d 487 (1989), abrogated by Hudson v. U.S., 522 U.S. 93, 118 S. Ct.

488, 139 L. Ed. 2d 450 (1997)).

9 Matter of Mayner, 107 Wn.2d 512, 521, 730 P.2d 1321 (1986). 10 State v. Maestas, 124 Wn. App. 352, 357, 101 P.3d 426 (2004). 11 RCW 9.94A.633(2)(d).
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punishment.12 The court does not add extra time to the original sentence when it 

revokes a SSOSA since the offender’s original sentence is reinstated. Second, the trial 

court considered Wheeler’s earlier SSOSA violations in determining whether to revoke 

his SSOSA and not in determining whether he committed the alleged new SSOSA 

violation. This is the same function that sentencing enhancements accomplish by 

considering criminal history for sentencing purposes, but not for determining guilt. So, 

the trial court did not “effectively [punish] Wheeler twice for prior violations,” as he 

claims it did, but merely considered those earlier violations in assessing whether to 

revoke his SSOSA or impose a lessor sanction. 

Wheeler’s argument would require a court to always treat an offender as a first 

time offender regardless of the offender’s history. The U.S. Supreme Court has already 

rejected the claim that harsher penalties imposed as a result of a prior conviction violate 

double jeopardy protections.13 In McDonald v. Commonwealth of Massachusetts,

14 the 

court held that a prior conviction enhancement did not constitute a second punishment 

for the earlier offense, but rather the existence of the former conviction amplified the 

seriousness of the current offense thus justifying a more extreme sentence.15

Here too, the previous violations enhance the seriousness of the current 

violations thus supporting a SSOSA revocation. But, the revocation is not a second 

punishment. Double jeopardy rights do not prohibit courts from considering criminal 

history for purposes of deciding an appropriate sentence or imposing sentencing 

 12 In re Albrecht, 147 Wn.2d 1, 13, 51 P.3d 73 (2002). 13 McDonald v. Commonwealth of Massachusetts, 180 U.S. 311, 21 S. Ct. 389,

45 L. Ed. 542 (1901).

14 180 U.S. at 311. 15 Commonwealth of Massachusetts, 180 U.S. at 312; Chenowith v. 

Commonwealth, 12 S.W. 585, 11 Ky. L. Rptr. 561 (1889).
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enhancements, because that does not penalize the offender for that same earlier crime 

twice. Instead, this consideration treats a repeat offense more seriously than a first 

offense with a more serious penalty. Similarly, double jeopardy does not apply here

either. 

Wheeler claims that we cannot analogize a SSOSA revocation to a sentencing 

enhancement because “there is no corresponding legislative intent to allow for 

revocation of a SSOSA based on previously sanctioned violations.” But, the SSOSA 

statute does show a legislative intent that a court consider an offender’s history. To be 

eligible for a SSOSA, the offender must have “no prior convictions.”16 If the court must

consider an offender’s conviction history before imposing a SSOSA, then it logically 

follows that the court can consider the offender’s conduct history after receiving a 

SSOSA, including violations, when deciding whether to revoke a SSOSA. Also, 

prohibiting courts from considering earlier condition violations would frustrate the 

legislature’s effort with the SSOSA statute to both protect children and promote 

rehabilitation.17 

Wheeler also claims the two statutes authorizing punishment for condition 

violations suggest a legislative intent to prohibit sentencing courts from considering 

earlier violations when considering a SSOSA revocation, because the statutes offer “two 

mutually exclusive options when an individual violates” a SSOSA. He explains how if

the court chooses to confine an offender but later revokes the SSOSA, the offender

receives credit for confinement time. “In other words, the sanction is served and the 

punishment is final.” But, “[n]either the history of sentencing practices, nor the pertinent 

 16 RCW 9.94A.670(2)(b).

17 State v. Flowers, 154 Wn. App. 462, 466, 225 P.3d 476 (2010).
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rulings of [the] [Supreme] Court, nor even considerations of double jeopardy policy 

support the proposition that a criminal sentence, once pronounced, is to be accorded 

constitutional finality similar to that which attaches to jury’s verdict of acquittal.”18 And 

again, under Wheeler’s reasoning, double jeopardy would prohibit courts from 

considering earlier convictions for sentence enhancements, because there too the 

offender has served the sanction and the punishment is final. But, because sentence 

enhancements do not violate double jeopardy, Wheeler’s claim fails. 

Wheeler relies on State v. Buckley,

19 where the court punished a juvenile for the 

same offense during two separate court proceedings that resulted in two separate 

punishments. But here, the court did not punish Wheeler in two separate proceedings 

for the same past violation. The court merely considered the earlier condition violations 

in determining whether to revoke his SOSSA and reinstated his original sentence. 

Because the court did not punish Wheeler twice, Buckley does not support his position.

Consideration of earlier condition violations for SSOSA revocations not only

withstands a double jeopardy challenge, but it is logical and fair. The logic lies in the 

“attempt to deter repeated criminal activity, while the fairness is obvious in the notion 

that a recidivist should receive a stiffer sentence than a first-time offender.”20 We hold 

the trial court properly considered Wheeler’s earlier condition violations when

determining whether to revoke his SSOSA. 

 18 U.S. v. DiFrancesco, 449 U.S. 117, 101 S. Ct. 426, 66 L. Ed. 2d 328 (1980). 

19 83 Wn. App. 707, 924 P.2d 40 (1996).

20 Com. v. Arriaga, 422 Pa. Super. 52, 56, 618 A.2d 1011 (1993). 
No. 79574-1/ 9

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Credit for Time Served 

Wheeler next claims, and the State concedes, that he should receive credit for 

the time served on work crew during his SSOSA. 

RCW 9.94A.670(11) requires that “[a]ll confinement time served during the period 

of community custody shall be credited to the offender if the suspended sentence is 

revoked.” “Confinement” includes both partial and total confinement.21 Partial 

confinement includes work crew.22

The court sanctioned Wheeler for prior SSOSA violations and ordered him to 

serve on work crew multiple times. The sentencing court gave him credit for all jail time 

in the SSOSA revocation but omitted credit for work crew. We remand for the 

sentencing court to credit work crew time in the order. 

CONCLUSION

We affirm in part and remand in part. Wheeler fails to show that double jeopardy 

prohibited the trial court from considering earlier condition violations when determining 

whether to revoke his SSOSA. But, because the SSOSA statute requires a credit for

confinement, and confinement includes work crew service, and Wheeler’s sentence did 

not provide credit for work crew service, we remand to the trial court to correct this 

omission. 

WE CONCUR:

 21 RCW 9.94A.030(8). 

22 RCW 9.94A.030(36).