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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                   No. 67433-1-I
                      Respondent,
       v.                                          DIVISION ONE

FERNANDO ANTONIO IRIZARRY,                         UNPUBLISHED OPINION

                      Appellant.                   FILED:  February 21, 2012

       Leach, J.  --  In this consolidated proceeding,1 Fernando Irizarry alleges 

the State violated his due process rights by failing to provide him with adequate 

notice of four alleged  community custody violations and failed to prove he 

violated any condition actually imposed upon him.  Because the record does not 

show that the court or the Department of Corrections (DOC) actually imposed 

one condition the trial court found Irizarry violated or that Irizarry received the 

written notice that due process requires for one additional violation, we reverse

in part and otherwise affirm.

                                     Background

       Fernando Irizarry pleaded guilty in 1998 to first degree rape of a child.  

The court sentenced him to 108 months in confinement and three years of 

       1 In a notation ruling dated May 6, 2010, the Division Two administrator-
court clerk granted the State's motion to consolidate Irizarry's personal restraint 
petition with his pending direct appeal. 

No. 67433-1-I / 2

community custody.  The judgment and sentence required Irizarry to submit to 

HIV (human immunodeficiency virus) and DNA (deoxyribonucleic acid) testing 

and imposed special conditions of community custody listed in appendix F.  The 

special conditions included:

       The offender shall report to and be available for contact with the 
       assigned community corrections officer as directed;

       The offender shall work at Department of Corrections approved 
       education, employment, and/or community service; 

       The offender shall not consume controlled substances except 
       pursuant to lawfully issued prescriptions;

       An offender in community custody shall not unlawfully possess 
       controlled substances; 

       The offender shall pay community placement fees as determined 
       by DOC;

       The residence location and living arrangements are subject to the 
       prior approval of the department of corrections during the period of 
       community placement.

       The offender shall submit to affirmative acts necessary to monitor 
       compliance with court orders as required by DOC.

       The court imposed one additional special condition:  "No contact by any 

means directly or indirectly with the victim K.S., or her family."

       After Irizarry served his time in confinement, the DOC released him to a 

three-year community custody term in July 2005.2          On July 28, 2009, Irizarry's 

community corrections officer (CCO), Pamela Bohon, issued an order for his 

       2 Originally, Irizarry's community custody term should have ended in July 
2008.  However, his community custody time was tolled for some unspecified 
time period during 2005 and 2006 while Irizarry was incarcerated awaiting trial 
on an unrelated criminal charge.  

                                           -2- 

No. 67433-1-I / 3

arrest and detention, charging that Irizarry had violated community custody 

terms.  Based on Bohon's order, Irizarry was arrested.  Pierce County filed a 

petition with the superior court, asking that it determine Irizarry failed to comply 

with three conditions and commit him for 60 days for each violation.  Specifically, 

the State alleged these violations: 

       1)     Defendant has failed to abide by the Department of 
              Corrections imposed conditions by having unauthorized 
              minor contact since January 2009; and 
       2)     Defendant has failed to obey all laws by failing to correctly 
              register his address from January 2009 to May 31, 2009; 
              and 
       3)     Defendant left Pierce County and traveled to King County 
              multiple times since January 2009.

       On July 29, the trial court found probable cause to believe Irizarry violated 

the conditions of release and set a revocation hearing for August 14.3  Irizarry 

agreed to stay incarcerated until the hearing.4  At the violation hearing on August

14, Irizarry protested that he had not received written notice of the charges 

against him.  The prosecutor acknowledged that as of that day, possibly due to a 

clerical error, even the judge had not yet received notice of the charges, and the 

court reset the hearing for September 11.  The prosecutor asked that Irizarry 

remain incarcerated until the hearing, and the judge set bail at $25,000.  At the 

end of the hearing, the judge told Irizarry that counsel would be assigned to 

represent him and that his attorney would speak with him about the allegations 

       3 Proceedings from this hearing are not in the record; the record contains 
only the judge's order finding probable cause.
       4 Ultimately, Irizarry appeared in court at least six times over the next six 
months, and he stayed incarcerated for the duration.  

                                           -3- 

No. 67433-1-I / 4

so that he could prepare a defense.  

       During the September 11           hearing,  Irizarry's counsel requested a 

continuance based on the fact that she had only recently received the case and 

wanted to research jurisdictional issues regarding the tolling of Irizarry's term of 

community custody during his incarceration.  

       On October 9, counsel resolved the jurisdictional issue relating to time 

Irizarry spent in confinement on an unrelated charge.          Then Irizarry's counsel 

asked that Irizarry be released because he had never been served with a 

violation report.  The prosecutor and a DOC official stated that a lengthy report 

on the violation hearing had been faxed to the Department of Assigned Counsel.  

Defense counsel acknowledged that his office had a copy of that report.  The 

judge said she was unaware of this issue, and because the prosecutor filling in 

that day was not prepared to address this notice issue, the judge set a hearing 

date for October 14 to resolve  whether  "he was served or whatever the 

compliance with that administrative code is."5       The October 14 hearing did not 

occur because counsel agreed there was no jurisdictional issue and the WAC 

notice provisions did not apply to judicial violation hearings.

       At the November 4 hearing, the attorneys again requested the case be set 

over because the State's witnesses were not present and the defense needed

extra time to gather evidence.  Counsel agreed that based on Irizarry's time 

       5 The order entered that day notes, "State to confirm compliance with 
WAC by 10/14."  

                                           -4- 

No. 67433-1-I / 5

spent incarcerated waiting for the hearing, his DOC supervision would not end 

before October 26, 2011.  Irizarry again asserted that he had not received notice 

of the allegations at any time during his 100 days in confinement for the alleged 

violations or at any of his six court appearances.  The State argued that "the 

defendant was given verbal notice of all of the allegations prior to his initial court 

appearance. . . .  [P]robable cause on the allegations was found."              Defense 

counsel agreed that because a judge had found probable cause to believe the 

alleged violations occurred, the procedural requirements for an administrative 

hearing did not apply.  The court hearing was rescheduled for December 11.  

Then,  on  December 11, the State requested another continuance                  due to 

numerous witnesses being unavailable.  Over defense objection, the court reset 

the hearing for January 22, 2010.

       On January 22, the court conducted an evidentiary hearing to determine if 

Irizarry violated his community custody conditions.  The State presented three 

witnesses:   Ane Black Crow; Ane's daughter, Morgan Black Crow; and CCO 

Pamela Bohon.  Ane Black Crow testified that between May and July 2009, 

Irizarry frequently stayed at her home in Auburn.6      She stated that Morgan's two-

year-old daughter, as well as an unrelated minor child, were living in the house 

at the time Irizarry stayed there.  Morgan Black Crow also testified that Irizarry 

stayed in the Black Crow house twice for two-week intervals, while she and her 

       6 She estimated that there were two separate two-week periods when 
Irizarry stayed at her residence for approximately ten nights out of the two 
weeks.  

                                           -5- 

No. 67433-1-I / 6

daughter were there.  Pamela Bohon, Irizarry's CCO, testified that as part of his 

DOC supervision, Irizarry was required to remain in Pierce County unless he 

received prior written authorization from her, that he never received 

authorization to go to the Black Crow residence in Auburn, and that he never 

notified her that he was staying there.  

       Bohon also testified that on July 27, 2009, Iesha Holley came to her office 

and played several threatening voice mails and text messages from Irizarry.  

Iesha Holley did not appear as a State's witness.  Irizarry testified on his own 

behalf that he called and texted Holley because he was angry after receiving a 

bad check from her.

       In closing,   the  State  addressed  six  alleged  violations of community 

custody:    (1) unauthorized contact with minors on multiple occasions from 

January to May 2009; (2) failure to register;7 (3) failure to comply with address 

requirements from January 9 to May 2009; (4) failure to remain within the 

geographic boundaries prescribed; (5) making harassing, threatening phone 

calls; and (6) an unknown violation the State chose not to pursue.8          The judge 

found all four charged violations pursued by the State occurred and imposed 60-

day sanctions for counts 1 and 5.  Because the conditions violated in counts 3 

and 4 were similar, she imposed 30 days for each count.  In total, Irizarry 

       7 During argument, the State stated it would not pursue this violation for  
"different legal reasons."
       8 The prosecutor states only, "I'm not going to pursue violation No. 6.  Ms. 
Holley is not present.  We were unable to locate her. . . .Those are the four 
violations that the State is pursuing."  

                                           -6- 

No. 67433-1-I / 7

received 180 days of  sanctions and credit for the 178 days he                     spent 

incarcerated awaiting the violation hearing.  

                                       Analysis

Mootness

       The State argues Irizarry's claims are moot.  "A case is moot if a court can 

no longer provide effective relief."9   By the DOC's revised calculation, Irizarry's 

community custody term should have expired on October 26, 2011.  But, at the 

November 9 hearing, the prosecutor noted that date was tentative since Irizarry 

remained in confinement awaiting an evidentiary hearing on the community 

custody violations.  He remained incarcerated until the following January, and 

his community custody sentence was tolled during that period.  The State has 

not shown that Irizarry's community custody has, in fact, ended.  Therefore, we 

cannot conclude that the appeal is moot.

Due Process in Revocation Hearings

       In Morrissey v. Brewer,10 the United States Supreme Court held that the 

Fourteenth Amendment guarantees minimum due process in the context of a 

parole revocation hearing because the process involves deprivation of a 

conditional liberty.   Our Supreme Court has held that sentence modification 

hearings should be treated the same as parole revocation hearings.11

       9 Orwick v. City of Seattle, 103 Wn.2d 249, 253, 692 P.2d 793 (1984).
       10 408 U.S. 471, 408, 92 S. Ct 2593, 33 L. Ed. 2d 484 (1972).
       11 State v. McCormick, 166 Wn.2d 689, 700, 213 P.3d 32 (2009); State v. 
Abd-Rahmaan, 154 Wn.2d 280, 288, 111 P.3d 1157 (2005).

                                           -7- 

No. 67433-1-I / 8

       Irizarry repeatedly    objected to not receiving written notice of the 

allegations against him, citing RCW 9.94A.737.  Counsel agreed that this statute 

applied only to a revocation hearing held by DOC hearing officers.  But when the 

legislature established concurrent enforcement procedures to be administered 

by DOC, it did not divest superior courts of the authority to enforce sentences.12  

Because both proceedings involve the potential deprivation of a conditional 

liberty, Morrissey's minimum due process standards apply to each.

       Irizarry claims that the State's failure to provide him with timely written 

notice of the allegations against him violates his due process rights.  The State 

contends that Irizarry has not properly preserved this assignment of error.  

Without explicitly saying so, the State encourages this court to find that no issue 

is preserved for appeal without the utterance of the express words, "I object."  

RAP 2.5 provides, "The appellate court may refuse to review any claim of error 

which was not raised in the trial court."     The rule does not prescribe a specific 

form for raising error in the trial court. Certainly, it cannot be read to require 

dismissal of a meritorious claim on the hypertechnical argument that the party 

asserting error failed to use a legal term of art to put his objection on the record.  

       Because Irizarry clearly articulated to the court on multiple occasions that 

he had due process concerns about notice, we reject the State's argument and 

consider the merits of his claim.

       Due process in a parole revocation hearing requires (1) written notice of 

       12 State v. Gamble, 146 Wn. App. 813, 814, 192 P.3d 399 (2008).

                                           -8- 

No. 67433-1-I / 9

the claimed parole violations, (2) disclosure of evidence against the parolee, (3) 

opportunity to be heard in person and to present witnesses and documentary 

evidence, (4) the right to confront and cross-examine adverse witnesses, (5) a 

"neutral and detached" hearing body, and (6) a written statement by the fact

finder describing the evidence relied on and the reasons for revoking parole.13  

During the October 9 hearing, defense counsel acknowledged that the 

Department of Assigned Counsel had received some notice of the State's 

charges.14  The record does not show that Irizarry's counsel ever provided this 

information to Irizarry.  The State also claims that Irizarry received oral notice of 

the allegations at the probable cause hearing.15   However,  Morrissey makes 

clear that whether the proceeding is administrative or judicial, oral notice will not 

suffice; the defendant must receive written notice.16          Additionally, the State 

continued to change its charges throughout the proceedings.  The violations the 

court found Irizarry  committed  included one not listed  in the violation report.  

       13 Morrissey, 408 U.S. at 489.
       14 The State asserts that they faxed the violation report to the Department 
of Assigned Counsel twice.  But the prosecutor references a 19-page fax from
Department of Assigned Counsel to the prosecutor's office.  The document is not 
included in the appellate record, so we are unable to determine what notice it 
may have provided.    
       15 The appellate record does not include a transcript of the probable 
cause hearing.  It contains only the court's order finding probable cause and 
Irizarry's written stipulation to remain      incarcerated pending the August 14 
hearing.  Neither document shows what the State claims occurred. 
       16 On December 11, Irizarry mentioned the State's allegations regarding 
his threatening Iesha Holley.  Further, Irizarry tried to present evidence to 
explain his contact with Holley.  The         only violation report included      in the 
appellate record does not mention any violations relating to Holley.  Clearly, at 
some point, Irizarry was made aware of at least that part of the State's case 
against him.  

                                           -9- 

No. 67433-1-I / 10

Even if Irizarry received a copy of the violation report, this notice was insufficient 

to provide him with an opportunity to prepare a defense against the allegations 

actually presented at the evidentiary hearing which were not contained in the 

violation report.  

       The court punished Irizarry for one violation not imposed by the judgment 

and sentence or DOC and one not alleged in the State's violation report.  On 

July  31, 2009, Pierce County prosecutors filed a petition for a  hearing to 

determine noncompliance with condition or requirement of sentence.  That 

petition alleged that Irizarry (1) had unauthorized contact with a minor, (2) failed 

to correctly register his address, and (3) left Pierce County and traveled to King 

County multiple times.  The judgment and sentence imposed only one of these 

conditions on Irizarry, the standard requirement for all sex offenders, that he 

register with the county sheriff within 24 hours of his release from custody.          In 

addition, CCO Bohon testified that DOC restricted Irizarry's travel to within 

Pierce County unless he received prior written authorization from her.  The 

appellate record contains no evidence of a general prohibition against contact 

between Irizarry and minors.

       At the evidentiary hearing, the prosecutor did not limit himself to the 

allegations listed in the State's petition.  Instead, he delineated six violations, 

four of which he asked the court to decide.  The judge found all four violations 

had occurred.  The order modifying sentence found these violations:  (1) having 

contact with minors, (2) failing to comply with address notification to community 

                                          -10- 

No. 67433-1-I / 11

corrections officer, (3) failing to remain in geographical boundaries by traveling 

out of county, and (4) violating law abiding behavior by making threats to Iesha 

Holley.

       Irizarry did not receive notice sufficient to allow him to prepare a defense 

to the fourth violation found by the trial court.    Also, the trial court modified his 

sentence for violating one condition not included in his judgment and sentence

or imposed  by DOC -- no  contact with minors.  "The court cannot punish 

someone for violating a condition of sentence that was not actually imposed by 

the court"17  or DOC.      Both of these errors violate Morrissey         due process 

requirements and require reversal of the trial court with respect to violations for 

contact with minors and making threats to Iesha Holley.

       In his personal restraint petition, Irizarry repeats the due process claims 

raised in his direct appeal.  In addition, he claims that the trial court improperly 

imposed sanctions after the expiration of his community custody term and that 

the State failed to timely arraign him in Pierce County Superior Court case no. 

10-1-00153-2.18 His additional claims are frivolous.

       Irizarry's claim that his community custody term expired before the court 

considered the alleged violations ignores the provisions of former RCW 

9.94A.625(3)    (2000).19   This statute provided for the tolling of a term of 

       17 State v. Robinson, 120 Wn. App. 294, 302, 85 P.3d 376 (2004).
       18 In this action, Irizarry was charged with failure to register as a sex 
offender.  
       19 Recodified as RCW 9.94A.171(3) (Laws of 2008, ch. 321, § 28), 
effective August 1, 2009, but the tolling provisions remain the same.

                                          -11- 

No. 67433-1-I / 12

community custody when an offender is in custody for any reason.  After being 

released to community custody on November 5, 2006, Irizarry was in custody 

pending trial on an unrelated charge from his arraignment on November 29, 

2006, until his sentencing date of October 17, 2008.  His term of community 

custody was tolled during this period.     Before he was taken into custody on the 

subject violation allegations, his term was to expire on October 26, 2011.  

Therefore, Irizarry's challenge to the trial court's authority to impose sanctions 

based upon an alleged expiration of his community custody term fails.

       Irizarry's claims related to case no. 10-1-00153-2 are moot because the 

case was dismissed before trial.  As a result, Irizarry is under no restraint and is 

not facing the possibility of any restraint related to that case.  

                                      Conclusion

       Because Irizarry was not given adequate notice of one  of  the  alleged 

violations and because he was sanctioned for violating one community custody 

condition not imposed, we reverse the trial court with respect to the violations for 

contact with minors and making threats to Iesha Holley.           We otherwise affirm

and remand for further proceedings consistent with this opinion.

                             Personal Restraint Petition

       Because we find for Irizarry in his direct appeal, we make no 

consideration of the additional grounds stated in his personal restraint petition.

                                          -12- 

No. 67433-1-I / 13

WE CONCUR:

                                          -13-