Washington’s “Sex Offender Sentencing Alternative,” RCW 9.94A.670, commonly known as a “SSOSA,” allows a sentencing judge the discretion not to follow the mandatory guidelines of long prison stretches if the sex offender is low risk to re-offend and amenable to community-based treatment. Mr. Sallinger plead guilty to two counts of child molestation in the second degree, and received a SSOSA sentence. His 48-month prison term was suspended; he only had to serve 12 months of county jail time. Mr. Sallinger’s Judgment and Sentence conditions included obtaining a psychosexual evaluation and complying with the treatment recommended in the evaluation, and abide by any other condition imposed by the Court, Department of Corrections (“DOC”) or his assigned Community Corrections Officer (“CCO”). The legal issue later arising was that the sentencing court did not order a specific internet location or social media restriction. Mr. Sallinger did not appeal any of his Judgment and Sentence conditions.
In sex offender treatment upon release from jail, Mr. Sallinger was given a treatment condition by his provider not to download social media or unauthorized internet accounts, and given a long laundry list of prohibited internet locations. He was informed that permitted electronic devices would be monitored, and such monitoring subject to review by his CCO. DOC conditions included not utilizing electronic devices unless there was specific approval, and such devices could not have internet access capability unless specifically authorized. Mr. Sallinger could not delete his internet search history. DOC submitted three separate “notice of violations” to the court. The first two Mr. Sallinger agreed he committed, by admitting he accessed TikTok & Twitter, deleting web browsing history and not having a monitoring app on his cell phone and laptop. Mr. Sallinger was given sanctions by DOC of county “work crew” hours (those are the guys picking up trash along the roadway) and “what were you thinking” essay reports.
Mr. Sallinger was deceptive on a compliance polygraph. A subsequent search of his cellphone revealed his contacting a well known pornography site known as “PornHub,” which he did again after being caught! Mr. Sallinger made excuses for such behavior, resulting in his termination from treatment. The State moved to revoke Mr. Sallinger’s SSOSA and send him to prison. At his revocation hearing, the Court recalled Mr. Sallinger stating that a “SSOSA was a privilege,” yet the Court had reports he was engaging in dishonest behaviors and that he “blatantly disregarded rules.” Sallinger, at pg. 7. The Court revoked Sallinger’s SSOSA, and off to prison he went. He appealed the revocation.
Mr. Sallinger did not contest that he violated SSOSA conditions, since he stipulated he had done so. He argued the predicate violations were violative of the First Amendment and unconstitutionally vague, i.e., the internet and social media restrictions were unconstitutional (i.e., the court couldn’t restrict Mr. Sallinger’s ability to satiate his pornography desires). However, the restrictions could have been appealed by administrative review under RCW 9.94A.704 to challenge the social media agreement with the DOC, nor did he request court review to challenge the treatment provider’s similar rules. Division III held there are “distinct procedural avenues to challenge the court conditions.” Sallinger, at pg. 10. Mr. Sallinger did not preserve his claims by doing so. Most importantly, he did not challenge getting kicked out of treatment; in fact, he stipulated that he was terminated at his revocation hearing. Termination from court-ordered sex offender treatment is a direct violation of a SSOSA. RCW 9.94A.670(11), and State v. McCormick, 166 Wn.2d 689, 698 (2009).
The standard to review the trial court’s revocation of a SSOSA is by the “abuse of discretion” standard. State v. Ramirez, 140 Wn. App. 278, 290 (2007). Abuse of discretion must be by a showing that a “decision is manifestly unreasonable or based on untenable grounds/reasons.” State v. Gunderson, 181 Wn.2d 916, 922 (2014).
It’s really a stretch to argue abuse of discretion when the trial court’s oral and written rulings relied on the totality of Mr. Sallinger’s circumstances. Mr. Sallinger demonstrated he could not follow logical rules despite being “given ample opportunity to comply but failing to do so.” Sallinger, at pg. 11.
Courts always order that defendants being privileged to receive a SSOSA follow all terms and conditions independently required by the therapist and DOC. No defendant can violate such conditions, then say they are unfair.