* State Of Washington, Respondent V. Justin Ross Wheeler, Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON,
Respondent,
v.
JUSTIN ROSS WHEELER,
Appellant.
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No.79574-1-I
ORDER GRANTING
MOTION TO
PUBLISH OPINION
The respondent, State of Washington, having filed a motion to publish opinion and
the hearing panel having considered the motion and finding that the opinion will be of
precedential value; now, therefore it is hereby:
ORDERED that the unpublished opinion filed September 8, 2020, shall be published.
FOR THE COURT:
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Citations and pincites are based on the Westlaw online version of the cited material.
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
JUSTIN R. WHEELER,
Appellant.
No. 79574-1-I
DIVISION ONE
UNPUBLISHED OPINION
L EACH , J. — 	Justin Ross Wheeler appeals the trial court’s order revoking his
special sex offender sentencing alternative (SSOSA). 	He claims the trial court violated
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.
FACTS
In December 2008, Justin Ross Wheeler pleaded guilty to three counts of first
degree child molestation. 	The trial court sentenced him to a special sex offender
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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 also
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 the
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 years 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 monitoring
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.
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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 court 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 to install monitoring software as “the most significant violation.” 	It
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 specifically 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 credit for time served
in jail on prior condition violations. Wheeler appeals.
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No. 79574-1/ 4
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DISCUSSION
Wheeler claims the trial court violated the prohibition against double jeopardy by
considering his earlier condition violations when it decided to revoke his SSOSA. 	We
disagree.
The 	Sentencing 	Reform 	Act 	of 	1981, 	chapter 	9.94A 	RCW 	authorizes 	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 trial 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 original 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 RCW 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 at 683 (citing State v. Badger, 64 Wn. App. 904, 907, 827
P.2d 318 (1992)).
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No. 79574-1/ 5
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the same offense’ imposed in a single proceeding.”6 We review double jeopardy claims
de novo.7
“In 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 jeopardy 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 specific question of whether double jeopardy prohibits a court from
considering earlier SSOSA condition violations in 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.
So, considering them would constitute a double punishment.
First, revoking a SSOSA is not separate punishment. 	If an offender violates a
condition of a suspended sentence, or if the court finds that an 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 impose 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), overruled 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).
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No. 79574-1/ 6
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punishment.12 	The court does not add extra time to the original sentence when it
revokes a SSOSA since the offender’s original sentence is reinstated. Second, the trial
court considered Wheeler’s earlier SSOSA violations in determining whether to 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 offender 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
court held that a prior conviction enhancement did not constitute a second punishment
for the earlier offense, but rather the existence of the former conviction amplified the
seriousness of the current offense 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. 	Double jeopardy rights do not prohibit 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).
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No. 79574-1/ 7
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enhancements, because that does not penalize the offender for that same earlier crime
twice. 	Instead, this consideration treats a repeat offense 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 	legislative 	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 convictions.”16 If the 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 statute 	to 	both 	protect 	children 	and 	promote
rehabilitation.17
Wheeler 	also 	claims 	the 	two 	statutes 	authorizing 	punishment 	for 	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 sentencing 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).
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No. 79574-1/ 8
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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 attaches to jury’s verdict of acquittal.”18 	And
again, 	under 	Wheeler’s 	reasoning, 	double 	jeopardy 	would 	prohibit 	courts 	from
considering earlier convictions for sentence enhancements, because there too the
offender has served the sanction and the punishment is 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 his position.
Consideration of earlier condition violations for SSOSA revocations not only
withstands a double jeopardy challenge, but it is logical and fair. 	The logic lies 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 We hold
the 	trial 	court 	properly 	considered 	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).
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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 confinement 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 sanctioned 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
prohibited the trial court from considering earlier condition violations when determining
whether to revoke his SSOSA. 	But, because the 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).
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