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Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

STATE OF WASHINGTON,                                             No.  41199-7-II

                             Respondent,

       v.

ROBERT LEE LaBREC,                                         UNPUBLISHED OPINION

                             Appellant.

       Johanson, J.  --  Robert Lee LaBrec appeals the trial court's order revoking his Special Sex 

Offender Sentencing Alternative (SSOSA).  LaBrec argues that the trial court violated his due 

process rights because (1) the revocation was based on hearsay admitted without a finding of 

good cause and (2) the trial court failed to provide a written factual basis for the revocation.  

Concluding there is no reversible error, we affirm the revocation of LaBrec's SSOSA.

                                            FACTS

       In September 2008, LaBrec pleaded guilty to three counts of third degree child rape and

was given a SSOSA.  As part of the SSOSA, LaBrec was required to register as a sex offender 

with the sheriff in his county of residence.  Former RCW 9A.44.130 (2006).

       In February 2010, Corrections Officer Kacia Bernier filed a violation notice in Clallam  

No.  41199-7-II

County Superior Court against LaBrec for (1) failing to report a change of address since March of 

2009 and (2) failing to register as a sex offender since March 2009. On April 27, 2010, the State 

petitioned Clallam County Superior Court to revoke LaBrec's suspended sentence.

       Meanwhile, in March 2010, LaBrec pleaded guilty in Mason County Superior Court to 

failing to register as a sex offender from March 2009 through February 2010.  On April 19, 2010, 

the Mason County Superior Court sentenced LaBrec to nine months confinement.  

       At LaBrec's September 2010 SSOSA revocation hearing, Officer  Bernier testified, via 

telephone,  that in February 2010 she visited LaBrec's  last  registered  residential address in 

Shelton.  LaBrec's father and stepmother resided at that address.  His stepmother told Officer 

Bernier that LaBrec had moved out about a year earlier.  Officer Bernier also testified that LaBrec 

had never reported a change of address to her or the "detective who does the sex offender 

registration at Mason County."    Report of Proceedings (RP) (Sept. 8, 2010) at  18.  LaBrec 

objected to this testimony on hearsay grounds and the trial court overruled the objection.

       Finally,  Officer Bernier testified that she  completed  LaBrec's  jail intake in  the  Mason

County jail after he pleaded guilty for failing to register as a sex offender. She showed him a copy 

of his April 19 judgment and sentence, and he admitted to committing the offense.  The State 

moved to admit the April 19 Mason County judgment and sentence and LaBrec objected on the 

basis that it was not a certified copy of the document.  The trial court admitted the document.

       The trial court revoked LaBrec's SSOSA based on his failure to register as a sex offender 

in Mason County since March 2009.  The trial court did not address whether LaBrec failed to 

report a change of address, because it had already ruled on issues sufficient to support revoking 

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the SSOSA. LaBrec appeals.

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                                          ANALYSIS

                                        I.  Standard of Review

       LaBrec argues that we should review de novo the revocation of his SSOSA because of 

Fourteenth  Amendment  due process rights violations.    The State responds that an abuse of 

discretion standard is the appropriate standard of review.  

       We agree with the State that we review a trial court's decision to revoke a SSOSA for an 

abuse of discretion.  State v. Partee, 141 Wn. App. 355, 361, 170 P.3d 60 (2007);  State v. 

Badger, 64 Wn. App. 904, 908, 827 P.2d 318 (1992); see State v. Osman, 157 Wn.2d 474, 482, 

139 P.3d 334 (2006) ("The decision to impose a SSOSA is entirely within the trial court's 

discretion."). An abuse of discretion occurs only when the decision of the court is "manifestly 

unreasonable, or exercised on untenable grounds, or for untenable reasons." State ex rel. Carroll

v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).

       We also note that hearings concerning the revocation of a suspended sentence are not 

criminal proceedings and the due process rights afforded at a revocation hearing are not the same 

as those afforded at a criminal trial.  State v. Dahl, 139 Wn.2d 678, 683, 990 P.2d 396 (1999). 

An offender facing revocation of a suspended sentence has only minimal due process rights akin 

to one facing revocation of probation or parole.  Dahl, 139 Wn.2d at 683.  The minimal due 

process rights accorded at revocation proceedings include (1) written notice of the claimed 

violations, (2) disclosure to the parolee of the evidence against him (3) the opportunity to be 

heard; (4) the right to confront and cross-examine witnesses (unless there is good cause for not 

allowing confrontation); (5) a neutral and detached hearing body; and (6) a statement by the court 

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as to the evidence relied upon and the reasons for the revocation.  Dahl, 139 Wn.2d at 683 (citing 

Morrissey v. Brewer, 408 U.S. 471, 489, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972)).

                                   II.  Evidentiary Challenges

       LaBrec contends his due process rights were violated because the trial court relied on 

hearsay evidence admitted without good cause.  The State concedes that its solicited hearsay 

testimony from Officer Bernier was erroneously admitted but argues that any error is harmless.  

The State also argues that we should discern no error in the trial court's decision to admit into 

evidence the uncertified copy of the Mason County judgment and sentence.  

                                    A.  Officer Bernier's Testimony

       At LaBrec's SSOSA revocation hearing, Officer Bernier testified about statements made 

by LaBrec's stepmother that he no longer lived at his registered address.  Officer Bernier also 

testified that other Mason County employees told her that LaBrec had never reported a change of 

address to them.

       Sex offenders facing a SSOSA revocation have a "minimal due process right to confront 

and cross-examine witnesses [that] is not absolute." Dahl, 139 Wn.2d at 686.  Hearsay evidence 

is admissible at revocation hearings, but "only if there is good cause to forgo live testimony."

Dahl, 139 Wn.2d at 686.  Good cause exists if there is difficulty and expense in procuring 

witnesses in combination with "'demonstrably reliable'" or "'clearly reliable'" evidence.  Dahl,

139 Wn.2d at 686 (quoting State v. Nelson, 103 Wn.2d 760, 765, 697 P.2d 579 (1985)).  When a 

trial court improperly admits hearsay evidence, reversal of the revocation is required unless the 

error is harmless.  Dahl, 139 Wn.2d at 688.

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No.  41199-7-II

       Here, the State acknowledges that the trial  court did not make a record or finding 

concerning any difficulty or expense in procuring witnesses in relation to the challenged hearsay 

statements in Officer Bernier's testimony.  But any error in admitting the challenged testimony 

about whether LaBrec failed to report a change of address is harmless.  First, the trial court 

expressly rested its SSOSA revocation decision on LaBrec's failure to register for a period of 

time and expressly stated that it did not need to evaluate the allegations that LaBrec had also 

failed to report a change of address at some point.  Thus, the challenged testimony concerning 

failing to a report a change of address relates to a legal theory that ultimately did not form the 

basis of the trial court's revocation ruling, any error in admitting this  challenged testimony is 

harmless.  As to Officer Bernier's testimony about LaBrec's stepmother's statements, any error is 

harmless because the trial court expressly stated that it based its revocation decision on the 

uncertified copy of the April 19 judgment and sentence.

                               B.  Mason County Judgment and Sentence

       Next, LaBrec argues that the uncertified copy of the Mason County judgment was 

erroneously admitted hearsay evidence considered by the trial court. We disagree.  The trial court 

did not abuse its discretion when relying on the uncertified document to revoke LaBrec's SSOSA.

       The  rules of evidence  generally do not apply to sentencing or proceedings involving 

revocation of a suspended sentence.  ER 1101(c)(3); State v. Anderson, 88 Wn. App. 541, 544, 

945 P.2d 1147 (1997) (stating that the rules of hearsay  evidence  do not apply to probation 

revocation hearings); Badger, 64 Wn. App.  at 907-08 n.1 (stating that SSOSA revocation 

hearings are analogous to probation revocation hearings).  Although the best evidence of a prior 

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conviction is a certified copy of the judgment and sentence, other comparable evidence may be 

introduced to establish criminal history.  State v. Ford, 137 Wn.2d 472, 480, 973 P.2d 452 

(1999).  The State must prove a prior conviction by a preponderance of the evidence, a burden 

which may be satisfied by evidence that has some minimal indicium of reliability.     Ford, 137 

Wn.2d at 480-81.

       Here, the uncertified copy of the judgment and sentence has the necessary minimum 

indicium of reliability for the document to be admissible. First, the document has an official filed 

date stamp from the Mason County Superior Court clerk indicating the official filing date of the 

judgment and sentence.  Second, the criminal history listing in the Mason County judgment and 

sentence includes information that is identical to criminal history information included in the 

underlying 2008 Clallam County judgment and sentence, which is in our record and resulted in 

LaBrec's SSOSA.  Finally, LaBrec's signature is on the copy of the Mason County judgment and 

sentence and he has never contested that the signature is not his.  Moreover, at the revocation 

hearing, LaBrec did not object substantively to Officer Bernier's testimony explaining that LaBrec 

acknowledged his Mason County conviction after being presented with a copy of the same

uncertified judgment and sentence ultimately admitted at the hearing.  Under these circumstances, 

we cannot say that the trial court abused its discretion by considering the uncertified judgment and 

sentence in reaching its decision to revoke LaBrec's SSOSA.

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                                  III.  Statement By the Court

       LaBrec also argues that the trial court erred by failing to enter a written statement 

explaining the factual basis and evidence it relied on when reaching its revocation decision.  The 

State responds that written findings are not required and that the trial court's oral rulings 

adequately explained its decision to revoke LaBrec's SSOSA.  We discern no error.

       Due process requires a trial court to state the factual basis of its decision revoking a 

suspended sentence.  Nelson, 103 Wn.2d at 767.    Although our Supreme Court has encouraged 

courts to make written statements outlining the basis for its decision, written explanations are not 

required.  Dahl, 139 Wn.2d at 689 ("Although oral rulings are permitted, we strongly encourage

judges to explain their reasoning in written findings.  Such written findings would prevent the

unnecessary confusion presented by this case.").  Accordingly, a lack of written findings is not 

fatal where the trial court states on the record the evidence it relies upon and its reasons for 

revocation.  State v. Murray, 28 Wn. App. 897, 900-01, 627 P.2d 115, review denied, 95 Wn.2d 

1029 (1981)).

       Here, the trial court's oral ruling established that it revoked LaBrec's suspended sentence 

because he committed a "substantial violation of his judgement [sic] and sentence" by failing to 

register as a sex offender in Mason County where he was living.  RP (Sept. 8, 2010) at 27.  The 

trial court's oral ruling sufficiently explained the factual basis for LaBrec's SSOSA revocation and 

the trial court's failure to put its reasons in writing does not require remand.

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       We affirm the revocation of LaBrec's SSOSA.

       A majority of this panel has determined that this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.

                                                              Johanson, J.
We concur:

____________________________
       Quinn-Brintnall, J.

       Worswick, A.C.J.

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