IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE STATE OF WASHINGTON, ) No. 76028-9-1 ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) RICHARD ARNOLD LANE, ) ) 

## Appellant. ) FILED: January 17, 2017 Schindler, J. — Richard Arnold Lane challenges revocation of his special sex offender sentencing alternative (SSOSA) suspended sentence. Lane asserts 

### substantial evidence does not support revocation ofthe suspended sentence. Because there is no dispute Lane repeatedly violated the mandatory SSOSA conditions and substantial evidence supports the decision to revoke the suspended sentence, we affirm. 

### Lane pleaded guilty to one count of childmolestation in the firstdegree in violation ofRCW 9A.44.083 and two counts ofwitness tampering in violation of RCW 

### 9A.72.120(1)(a). The State agreed to recommend a SSOSA suspended sentence under RCW 9.94A.670 subjectto the requirements and conditions in "Appendix C - Recommendation ofState

- Statement of Defendant on Plea of Guilty." Lane agreed to 

### obtain a sexual deviancy evaluation from a treatment provider and "attend and makeNo. 76028-9-1/2 

### successful progress in sexual deviancy treatment." Lane agreed to complywith a number ofother conditions.1 

### At the sentencing hearing on February 12, 2010, the court agreed to follow the 

### recommendation to impose a SSOSA. The court imposed a suspended sentence of 82 months to life for child molestation inthe firstdegree on the condition that Lane serve 6 months in confinement for two counts ofwitness tampering and comply with a number ofmandatory conditions. Thejudgment and sentence states, inpertinent part: 

### (a) MANDATORY CONDITIONS: Defendant shall comply withthe following conditions during the term ofCommunity Placement/Custody: (3) Do not consume alcohol and/or controlled substances except pursuantto lawfully issued prescriptions; (4) Do not unlawfully possess controlled substances; 

### (6) Receive prior approval for living arrangements and residence location; 

### (9) Remain withingeographic boundary, as setforth inwriting bythe Community Corrections Officer.

1The State's recommendation lists the following pertinent conditions: The defendant shall attend and make successful progress in sexual deviancy treatment and shall be subjectto these conditions:

.... The defendant shall submitto polygraphs

... as requested by the treatment provider or [community corrections officer] (quarterly at a minimum);

.... The defendant shall not have any contactwiththe victim(s) or any member of the victim's family, either direct or indirect, or any minor child without prior written authorization from the treatment provider and community corrections officer; then said contact shall be inthe presence of a pre-approved adult supervisor;

.... The defendant... shall not consume any alcohol, and shall not possess or use any controlled substance without a valid prescription;

.... The defendant shall abide by any otherconditions as placed on him by the community corrections officer ortreatment provider.No. 76028-9-1/3 

### (b) OTHER CONDITIONS: Defendant shall complywith the following otherconditions during the term of community placement/ custody: 10. Reside at a residence and underliving arrangements approved of in advance by your Community Corrections Officer. You 

### shall not change your residence without first obtaining the authorization of you [sic] Community Corrections Officer. 

### 11. Obtain a Psychosexual Evaluation and complywith any recommended treatment by a State-Certified Sexual Deviancy 

### Counselor. You are to sign allnecessary releases to insure your Community Corrections Officerwill be able to monitor your progress in treatment. 

### 15. Hold no position of authority or trust involving children under the age of 18. 

### 16. Do not initiate or prolong physical contactwith children under the age of 18 for any reason. 

### 18. Submit to polygraph . . . testing as deemed appropriate upon direction of your Community Corrections Officerand/or therapist at your expense. 

### 22. Follow all conditions imposed by your Sexual Deviancy Treatment Provider. 

### 25. Nocontactwith any minors without priorapproval of the [Department ofCorrections]/[Community Corrections Officer] and Sexual Deviancy Treatment Provider. 

### 28. Regular [urinalyses].[2] 

### Thejudgment and sentence states the court "may revoke the suspended sentence at any time" ifthe defendant "violates the conditions ofthe suspended 

### sentence orthe court finds that the defendant is failing to make satisfactory progress in
treatment." 

### REVOCATION OFSUSPENDED SENTENCE. The court may revoke the suspended sentence at any time during the period of community custody and orderexecution ofthe sentence, with credit for any confinement served during the period ofcommunity custody, ifthe defendant violates the conditions ofthe suspended sentence or the courtfinds that the

2Boldface in original.No. 76028-9-1/4 defendant is failing to make satisfactory progress intreatment. RCW 9.94A.670.P) On February 18, 2010, Lane signed a "Sex OffenderTreatment Program Therapy Contract" agreeing to a number ofconditions. The contract states, inpertinent part: The following conditions define more carefully our requirements of clients in sex offender treatment: 1. Clients agree to disclose completely and honestly the nature oftheir sexual history and behavior; clients also agree to assume full responsibility for their offenses and behavior. However, honest selfdisclosure willnot protect a clientfrom the consequences of his behavior, especially in the case of a new sexual offense, probation violation, or violation of the terms ofthis contract.

3. Clients are prohibited from supervised or unsupervised contact with minors, including family members, unless otherwise agreed to by the treatment group and primary clinician. Any person seeking to supervise a client's contact with minors must be approved by treatment staffin advance ofthe client's first contact with the minor(s).

. . .

13. Clients will not use alcohol or other controlled substances of any type during the time they participate intreatment. Any such usage, inside or outside ofgroup, represents a violation ofthis contract. .. .

17. Polygraph assessment, for purposes ofdetermining treatment compliance, is mandatory. The first such assessment will occur within the amenability to treatment period. Subsequent assessments will be scheduled at the discretion ofthe treating clinician and / or probation officer,w On March 1, 2010, Lane signed and acknowledged receipt ofthe Departmentof Corrections (DOC) "Standard Conditions, and Requirements" form. The form "includes 3Boldface in original. 4Emphasis in original.No. 76028-9-1/5 

### the standard condition that Mr. Lane obtain written permission before he travels outside the county inwhich he resides." On March 21, 2012, DOC filed a notice of violation alleging Lane violated the 

### conditions of his SSOSA by having contactwith a minor. The court held a hearing on the violation. Lane stipulated that he violated the conditions ofthe SSOSA by having "contactwith a minor" on March 2, 2012 and by lying to his community corrections officer (CCO) and sex offendertreatment provider about contactwith the minor. The 

### court entered an orderfinding Lane violated the conditions ofthe SSOSA and imposing 105 days in jail. 

### On February 11, 2015, Lane tested positive for methamphetamine. The polygraph examination on February 18 indicated his denial ofthe use of methamphetamine was "deceptive." 

### The State filed a petition to revoke the SSOSA suspended sentence. The court 

### held a hearing overthe course ofseveral days. The court found that Lane violated the conditions ofthe SSOSA but denied the petition to revoke the SSOSA suspended sentence. The court ordered Lane to serve 120 days in jail. The order states Lane has

" 'absolutely zero margin for error.'" 

### Lane was released from jail on June 18, 2015. On August 11, CCO Gregory Devorss learned Lane went to the Red Wing Casino inThurston County the previous weekend. Officer Devorss had not given Lane permission to leave Pierce County. 

### Lane denied leaving Peirce County. Inresponse to the question of "when the last time it
was he wentto the Red Wing Casino," Lane told Devorss he wentto the casino "about 

### eight months ago" when Devorss "gave him a travel pass to take his mother there."No. 76028-9-1/6 

### Devorss scheduled a polygraph examination of Lane. On August 13, the 

### polygraph examiner asked Lane, "Have you left[the] countywithout permission since last test?" In response, Lane admitted he "had gone to the Red Wing Casino" on 

### Saturday, August 8. Laneemphatically denied using " 'illegal drugs since lasttest.'" The polygraph examinerconcluded his response was "[n]ot [t]ruthful." The next day, Devorss went to Lane's residence. When Devorss entered the 

### living room, he saw "a young . . . child in a feeding high chair." Lane's stepfathertold Devorss he babysat his grandchild several times per week. Devorss toldLane's mother and stepfatherthat Lane "had never spoken to me of getting approval for a child to be at his residence and that itwas highly irregular and a serious matterthat needed preapproval prior to ithappening." 

### Devorss scheduled another polygraph examination for September 1. The 

### polygraphexaminerasked Lane, "Have you used any illegal drug since yourrelease from jail inJune 2015?" And, "Have you used any methamphetamine since your 

### release fromjail inJune 2015?" Lane responded "no" to both questions. The polygraph examiner concluded, "Mr. Lane did not answertruthfully to the questions." 

### On September 8, Devorss issued a notice ofviolation alleging Lane violated the SSOSA conditions by leaving Pierce County without permission and failing to make satisfactory progress insexual deviancy treatment before September 1, 2015. Violation 1: Leaving Pierce County without permission on or about 8/8/15. 

### Violation 2: Failing to make satisfactory progress insexual deviancy treatment since on or before 9/1/15.No. 76028-9-1/7 

### Devorss recommended the court "[r]evoke the suspended sentence." The State filed a petition to revoke the SSOSA suspended sentence. The court held a hearing on the petition to revoke the SSOSA on October 22. 

### Lane stipulated that he leftPierce County without permission on August 8, 2015 but denied failing to make satisfactory progress intreatment before September 1. Devorss and sex offendertreatment provider Dr. Paula van Pul testified atthe 

### hearing. The court admitted intoevidence a number of exhibits including Lane's Sex OffenderTreatment Program Therapy Contract, the polygraph reports for August 13 and September 1, a September 9 progress report from Dr. van Pul, and the September 8 notice of violation describing the previous and current SSOSA violations. 

### Devorss testified itwas "notfeasible" to supervise Lane because Lane was not truthful. 

### Q Howfeasible is itthat you can adequately supervise Mr. Lane as a 

### sex offenderwhen he is not forthcoming with you about issues of leaving the county, whether he leftthe county without your permission? 

### A It's notfeasible. Itseverely undermines our ability to adequately monitor Mr. Lane and be confident that his risk is not a threat to the community. 

### Dr. van Pul testified Lane's "progress intreatment" on a scale of 1 to 10 was "probably about" a 7. Dr. van Pul stated there were five sections inthe "relapse prevention plan" and Lane was "on Section D." But Dr. van Pul admitted itwas importantfor Lane to be honest and transparent with both his CCO and his sex offender treatment provider. Dr. van Pul said Lane's lack ofhonesty was a concern. Q But you are aware that he was not open and honest with Mr. Devorss when he was asked whether or not he went to a casino out of county? A Absolutely.No. 76028-9-1/8 

### Q And is that

— as his treatment provider, is that ofconcern to you? A He admitted that ingroup, yes. Q Is it ofconcern to you that he is this far along intreatment and he was not being

— he was not being transparent, excuse me, with his CCO on that question? A Yes. 

### The courtfound Lane violated the conditions of his SSOSA by leaving the county without permission. The court revoked the SSOSA suspended sentence because of his "pattern ofdeception." The court ruled, inpertinent part: One ofthe core issues that I have in this case is that we are where we are because ofdeception, and that's how we got here. That's how we gotto the first violation. That's definitely how we gotto the violation in February, and Icame this close to revoking atthattime

.... And so, in this case, he wasn'tforthcoming about being out of county. He was actually caught. He was confronted, and he stillwas not forthcoming until he actually went in for the polygraph, and then he said, "I bettertell the polygrapherthat Ilied to my CCO." And Ireally believe that's because he got caught. But what Iam more focused on in this case is this pattern of deception. The child inthe house wasn't something that was, again, forthcoming. Was that the issue, the violation? There is no indication that he was actually physically around the child. But again, the CCO had to find it out, and Ithink that amenability to treatment is many things

.... But Ithink the ability to be in SSOSA isn'tjust about the success of group, but it's about a person's total willingness to be honest in every step and to be forthcoming and to be proactive and to not putthemselves in situations where they are having to lie to their CCO, and they are having deception detected on a polygraph.

... Iam very concerned about deception not once buttwice on the very issue that was in front ofthe Courtjustthree months earlierorfour or five months earlier, earlierthis year, which is the use of methamphetamine. Obviously, polygraphs are not infallible and we are dealing with someone that has an anxiety issue. That may in fact accountfor the deception. But the problem is, we are left in a position where we don't trust. And Mr. Devorss understandably does not trust Mr. Lane. And under all ofthese circumstances

— first of all, Ifind the first violation. Itwas stipulated to. He did not get permission. But itisn'tthe not getting permission and the fact that the Red Wind Casino is slightly over the county line, it's the fact he lied about itwhen confronted. That's the issue for the Court.

8No. 76028-9-1/9 And it's that pattern ofdeception, which Isaw in February and Isaw again now that Ithink makes him inappropriate to continue in a SSOSA, and Iwill grantthe State's petition to revoke. The order revoking the SSOSA suspended sentence states, inpertinent part: The court heard testimony from witnesses &heard oral arguments from part[ies] and found the following violations (1) leaving Pierce County without permission on or about 8/8/15 (defendant stipulated to this) & (2) failed to make satisfactory progress in sexual deviancy treatment since on or before 9/1/15; the court revoked [because] the defendant is not deemed amenable to treatment due to his ongoing history of being dishonest with his CCO. Lane appeals the decision to revoke his SSOSA suspended sentence. Lane asserts substantial evidence does not supportfinding he failed to make satisfactory progress in treatment before September 1, 2015. Revocation of a suspended sentence rests within the discretion ofthe trial court and will not be disturbed absent an abuse ofdiscretion. State v. McCormick, 166 Wn.2d 689, 705-06, 213 P.3d 32 (2009); State v. Miller, 180Wn. App. 413, 416-17, 325 P.3d 230 (2014). "Anabuse ofdiscretion occurs only when the decision ofthe court is 'manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.'" McCormick. 166 Wn.2d at 706 (quoting State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)). We review the trial court's findings offact for substantial evidence. Miller, 180 Wn. App. at425. Substantial evidence is evidence sufficientto persuade a fair-minded person ofthe truth ofthe asserted premise. Miller, 180 Wn. App. at 425. The trial court may revoke a SSOSA sentence "at any time ifthere is sufficient proof to reasonably satisfy the court thatthe offender has violated a condition ofthe suspended sentence or failed to make satisfactory progress intreatment." McCormick,No. 76028-9-1/10 

### 166 Wn.2d at 705; Miller, 180 Wn. App. at 416; State v. Ramirez, 140 Wn. App. 278, 290, 165 P.3d 61 (2007). RCW 9.94A.670(11) states, in pertinent part: The court may revoke the suspended sentence at any time during the period ofcommunity custody and order execution ofthe sentence if: (a) The offender violates the conditions ofthe suspended sentence, or (b) the courtfinds that the offender is failing to make satisfactory progress in treatment. The record supports the court's decision to revoke the SSOSA suspended sentence because Lane "is not deemed amenable to treatment due to his ongoing history of being dishonest with his CCO." There is no dispute that Lane repeatedly violated the mandatory conditions of his suspended sentence. Although Dr. van Pul stated Lane was "making good progress" in the treatment program, the record shows Lane repeatedly violated the conditions ofthe

sex offendertreatment program and thejudgment and sentence. The mandatory conditions prohibit "contactwith minors, including family members, unless otherwise agreed to by the treatment group and primary clinician." But Lane had contactwith a minor on March 2, 2012 and lied to the CCO and treatment provider about contactwith the minor. The mandatory conditions also prohibitthe use of"alcohol or other controlled substances of any type." Lane tested positive for methamphetamine in February 2015 and lied inAugust and September 2015 about using illegal drugs. Further, Dr. van Pul testified that the "number one reason" individuals do not successfully complete a sexual deviancy treatment program "is that people aren't truthful, and they don'tfollowthe rules." Dr. van Pul stated that "being open, honest and

10No. 76028-9-1/11 

### transparentwith both the treatment provider and the CCO is a very importantaspectof
treatment." 

### Q And as his treatment provider, is itimportantto you as a provider in assessing ifsomeone is amenable whether or not the client is complying and adhering to their CCO's condition? 

### A Ibelieve a client being open, honest and transparentwith both the treatment provider and the CCO is a very important aspect of treatment inthe ability to monitor somebody inthe community. I don't disagree with that. Q And ifIheard you correctly, you saidjust being open, honest, 

### transparent is not only required with you, the treatment provider, but with the CCO, as well? 

### A Ibelieve any time there is a supervisor, those three qualities are important. Substantial evidence supports finding Lane was not amenable to treatment 

### because of "his ongoing history of being dishonest." Because the court did not abuse 

### itsdiscretion in revoking the SSOSAsuspended sentence, weaffirm.5 

# ^ML

WE CONCUR: 

# \ \f\cX<fc s/ ^j

5Afterconsideration of the nonexclusive factors in State v. Sinclair. 192 Wn.App. 385,"391; 367 P.3d 612 (2016), we waive the imposition ofappellate costs.

11