Washington DV Press

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, )
No. 60816-9-I

Respondent,
DIVISION ONE

v.

STEPHEN F. FROST,

)

Appellant. ) FILED: September 2, 2008

PER CURIAM.
While a state certified domestic violence treatment provider has wide latitude to impose treatment conditions on defendants, such latitude is not limitless. The reason for such conditions must have a rationalbasis in fact. Moreover, defendants are entitled to minimal due process in sentence modification hearings. A defendant’s due process rights are violated where, as here, a treatment provider requires a urinalysis test based solely on a confidential report and the trial court refuses to evaluate or review the basis for
the provider’s decision. We reverse.

FACTS

In March 2007, Stephen Frost pleaded guilty to domestic violence (DV)
harassment. The trial court imposed a suspended sentence of 12 months on the
No. 60816-9-I/2condition that Frost enroll in and successfully complete a state certified DV treatment program. Frost enrolled in a program with Associated Behavioral Health, Inc. and he was assigned Barry Glatt as his DV counselor. Frost attended four group therapy meetings.
On July 23, 2007, Glatt demanded that Frost submit to a random
urinalysis (UA) as a condition of Frost remaining in the program. Glatt informed Frost that the reason for his request was a confidential report he had received from the victim in which she alleged that Frost was using illegal substances.
Frost denied using illegal drugs and refused to take the UA test. The next day,
Frost wrote Glatt a letter requesting the counselor interview other persons before changing his treatment plan and requiring him to submit to random drug testing.
On August 2, 2007, Glatt informed Frost by letter that he was discharged
for noncompliance. Unbeknownst to Frost, Glatt also sent a copy of this letter to the court. Shortly thereafter, Frost received a notice of a sentencing modification hearing in his case. Frost then filed a motion to clarify his sentence with regard to his DV treatment.
At the modification hearing, Glatt testified that he suspected Frost was
using illegal drugs based on a confidential report he had received from the
victim. Over Frost’s objections, the trial court refused to permit any further
examination regarding Glatt’s proffered reason for requiring the UA or whether
imposition of such a requirement was appropriate in his case. The court
modified Frost’s sentence, ordering Frost serve 15 days’ imprisonment. Frost’s

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No. 60816-9-I/3
sentence was again suspended on the condition that Frost continue in and
successfully complete a state certified DV treatment program. Frost appeals.

ANALYSIS

A court has authority to modify a sentence only as authorized by statute.
1 RCW 9.94A.634(1) authorizes a court to “modify its order of judgment and sentence and impose further punishment “where “an offender violates any condition or requirement of a sentence.” When an offender violates any requirement of a sentence, the trial court retains broad discretion to modify the sentence and/or impose additional punishment.
2 A trial court abuses its discretion if its decision is manifestly unreasonable, based on untenable grounds, or for untenable reasons.
3 A decision rests on untenable grounds if based on facts unsupported by the record.
4 Here, the court modified Frost’s sentence after finding that he had
violated a condition of his suspended sentence. Sentence modification hearings
are substantially similar to other revocation hearings and require minimum due
process protections as articulated in Morrissey v. Brewer.5 Morrissey is the
seminal case involving an individual’s due process rights at a parole revocation
hearing. The minimum protections required are
(a) written notice of the claimed violations of parole;
(b) disclosure

1 State v. Shove, 113 Wn.2d 83, 89, 776 P.2d 132 (1989).
2 RCW 9.94A.634(1); State v. Woodward, 116 Wn. App. 697, 703, 67 P.3d 530 2003).
3 State v. Mason, 160 Wn.2d 910, 922, 162 P.3d 396 (2007).
4 T.S. v. Boy Scouts of Am., 157 Wn.2d 416, 423-24, 138 P.3d 1053 (2006).
5 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972).

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No. 60816-9-I/4 to the parolee of evidence against him;

(c) opportunity to be heard in person and to present witnesses and documentary evidence;

(d) the right to confront and cross-examine adverse witnesses (unless
the hearing officer specifically finds good cause for not allowing confrontation);
(e) a “neutral and detached” hearing body . . . ; and
(f) a written statement by the factfinders as to the evidence relied
on and reasons for revoking parole.

[6] As noted in State v. Abd-Rahmann, these protections exist to “ensure that a revocation of parole will be based on verified facts and accurate information of the parolee’s behavior.”

7 Here, the trial court abused its discretion by categorically refusing to consider the underlying basis of the DV treatment provider’s decision to require Frost to undergo drug testing.
8 The court found Frost’s refusal to submit to a UA test to be a violation of his probation without verifying any of the information. Frost’s original judgment and sentence required him to “enter into, make reasonable progress and successfully complete a state certified domestic violence treatment program.”
There is no evidence that Frost was failing to make reasonable progress prior to his discharge from the program by his treatment counselor. Rather, when testifying at trial, Glatt indicted that the sole reason Frost was discharged from the DV program was his refusal to cooperate in taking the UA test. Glatt did not testify that his own observations of Frost led

6 State v. Abd-Rahmaan, 154 Wn.2d 280, 286, 111 P.3d 1157 (2005) (quoting

Morrissey, 408 U.S. at 489) (emphasis omitted).

7 Abd-Rahmaan, 154 Wn.2d at 286.

8 See State v. Grayson, 154 Wn.2d 333, 343, 111 P.3d 1183 (2005) (trial court
has considerable discretion under the Sentencing Reform Act of 1981 (SRA), but
must still act within the principles of due process of law).

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No. 60816-9-I/5 him to believe he was under the influence of drugs. The sole basis for his requiring the UA test was the confidential report. Due process requires the “opportunity to be heard ‘at a meaningful time and in a meaningful manner.’”9 Failure to permit Frost the opportunity to cross-examine the witness, or the trial court’s failure to review the underlying confidential report in camera, denied Frost due process.

The trial court abdicated its authority and prevented Frost from presenting any meaningful argument.
Reversed.

For the Court:

9 Mathews v. Eldridge, 424 U.S. 319, 333-34, 96 S. Ct. 893, 47 L. Ed. 2d 18

(1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 14 L.

Ed. 2d 62 (1965)).

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