Citations and pincites are based on the Westlaw online version of the cited mater ial. 

### IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON
, Respondent
,

v.
JUSTIN R. WHEELER
, Appellant. No. 79574 -1-I

D IVISION ONE

UNP UBLISHED OPINION

L EACH , J. — Justin Ross Wh eeler appeals the trial court’s order revoking his
special sex offender sentencing alternative ( SSOSA ) . He claims the trial court violat ed
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.

FA CTS

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

. T he trial court sentenced him to a special sex offenderNo. 79574

- 1/ 2

2 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 a lso
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 th e 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 yea rs 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 mon itoring
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

3 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 co urt 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 t o install monitoring software as “the most significan t violation.” I t

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 specif ically 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 credi t for time served
in jail on prior condition violations. Wheeler appeals

.No. 79574

- 1/ 4

4 DISCUSSION

Wheeler claims the trial court violated the prohibition against double jeopardy by
considering his earlier condition violations when it deci ded to revoke his SSOSA

. We
disagree.

The Sentencing Re form Act of 1981 , chapter 9.94A RCW authorize s 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 tr ial 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 origin al 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 R CW 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 a t 683 (citing State v. Badger , 64 Wn. App. 904, 907, 827 P.2d 318 (1992) )

.No. 79574

- 1/ 5

5 th e same offense’ imposed i n a single proceeding.” 6 We review double jeopardy claims

de novo. 7

“I n 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 jeopa rdy 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 specif ic question of whether double jeopardy prohibits a court from
considering earlier SSOSA condition violations i n 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

. S o , considering t hem would constitute a double punishment.
First, revoking a SSOSA is not separate punishment. If a n offe nder violates a

condition of a suspended sentence, or if the court finds that a n 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 impos e 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)
, overru led 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).No. 79574

- 1/ 6

6 punishment. 12 The court does not add extra time to the original sentence when it

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

court considered Wheeler’s earlier SSOSA violations in determin ing whether t o 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 of fender 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

c ourt held that a prior conviction enhancement did not constitute a second pun ishment
for the earlier offense, but r ather the existence of the former conviction amplified the

seriousness of the c urrent o ffense 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. D ouble jeopardy rights do not prohibi t 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).No. 79574

- 1/ 7

7 en hancements, because that does not penaliz e the offender for that same earlier crime

twice

. Instead
, this consideration treats a repeat off ense 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 legisl ative 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 co nvictions .” 16 If th e 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 statu te to both protect children and promote

rehabilitation. 17

Wheeler also claims the two statutes authorizing punishment f or 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 se ntencing 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)

.No. 79574

- 1/ 8

8 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 att aches to jury’s verdict of acquittal.” 18 And
again, under Wheeler’s reasoning, double jeopardy would prohibit courts from
considering earlier convictions for sentence enhan cements, because there too the

offender has served the sanction and the punishment i s 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 h is position

. Consideration of earlier condition violations for SSOSA revocation s not only

withstands a double jeopardy challenge
, but it is logical and fair. The logic l ies 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 W e hold

the trial court properly consider ed 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

9 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 con finement 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 sanctione d 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
prohibit ed the trial court from considering earlier condition violations when determining

whether to revoke his SSOSA. But
, because th e 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).