State Of Washington v. Jason M. Hirocke

S
                                                                         FILED
                                                                      APRIL 22, 2021
                                                               In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                         )
                                             )         No. 37281-2-III
                     Respondent,             )
                                             )
       v.                                    )
                                             )
JASON M. HIROCKE,                            )
                                             )
                     Appellant.              )
                                             )
                                             )
STATE OF WASHINGTON,                         )
                                             )         No. 37282-1-III
                     Respondent,             )
                                             )
       v.                                    )         UNPUBLISHED OPINION
                                             )
JASON M. HIROCKE,                            )
                                             )
                     Appellant.              )

       STAAB, J. — Jason Hirocke was charged with multiple felonies under two cause

numbers. To resolve all of these charges, he waived numerous constitutional rights,

signed a drug court contract, and agreed to enter drug court. After repeated violations,

Mr. Hirocke was terminated from drug court and convicted of all the charges following a
No. 37281-2-III & 37282-1-III
State v. Hirocke


stipulated bench trial. Mr. Hirocke appeals, contending that his waiver of a jury trial was

invalid because the drug court contract is illusory. He also argues that his multiple

convictions for trafficking in stolen items violate double jeopardy. In a supplemental

brief, he contends that his one conviction for possession of a controlled substance should

be reversed following the Supreme Court’s decision in State v. Blake, 

197 Wash. 2d 170

,

481 P.3d 521

(2021). For purposes of this opinion only, we are consolidating these cases.

                                          FACTS
       On March 18, 2016, Mr. Hirocke was charged with one count of second degree

burglary and four counts of trafficking in stolen property in the first degree. (37281-2-III).

The State alleged that while Mr. Hirocke was renting a storage unit, he removed wall

panels to access an adjacent storage unit and stole a significant amount of tools. Mr.

Hirocke then pawned some of these tools in four separate transactions.

       While these charges were pending, Mr. Hirocke was arrested and charged with

possession of a controlled substance under superior court case number 16-1-04328-4.

(37282-1-III).

       Mr. Hirocke expressed a desire to enter drug court. On April 26, 2017, prior to

admitting Mr. Hirocke into drug court, the State amended the information in cause

number 16-1-04328-4 to add four counts of forgery and one count of unlawful possession

of payment instruments. (37282-1-III) Mr. Hirocke entered pleas of not guilty to the

new charges and presented the court with paperwork to enter drug court.


                                             2
No. 37281-2-III & 37282-1-III
State v. Hirocke


       Mr. Hirocke’s attorney explained to the court that he had previously reviewed the

drug court waivers and contract with Mr. Hirocke and that he was “comfortable and

confident that [Mr. Hirocke] understands the nature of the rights that he’s giving up in

order to fully participate in drug court.” Report of Proceedings (37282-1-III) at 8. In

exchange for giving up these rights, the State agreed to dismiss all of the charges if Mr.

Hirocke completed the drug court program.

       The drug court contract required Mr. Hirocke to participate in treatment and

community-based recovery support groups, abstain from using controlled substances or

alcohol, and attend court hearings. The contract also listed several non-exclusive

violations that could result in termination from drug court, and provided that “[t]he

decision whether or not to terminate an individual from the Drug Court Program rests

solely with the Drug Court Judge, guided by input from the Drug Court Team.” Clerk

Paper’s (37282-1-III) at 7-10.

       Before admitting him into drug court, the trial court reviewed the drug court

waivers and contract with Mr. Hirocke. While explaining the termination procedure, the

court made the following comments:

              THE COURT: Excellent. Sir, the document finishes up by talking
        about the termination policy. Termination becomes an issue if there are
        allegations that the participant is not complying with all those conditions
        and requirements.

             We don’t jump to a termination hearing the first time somebody
        misses something, it does not work like that. But if there are repeated

                                             3
No. 37281-2-III & 37282-1-III
State v. Hirocke


        violations or allegations of violations or something pretty serious, then
        we would set a termination hearing.

              Termination hearings are formal. They are here in the courtroom
        on the record. We don’t figure it out in staffing. We don’t do it
        informally like our review hearings. The attorneys are here, the court
        reporter is here. I would hear argument from both sides. I would hear
        from treatment as to what the recommendations are. I would hear from
        the person who is at issue at that hearing, and then have to make a
        determination or decision.

             If the decision is made that the violations were committed, that
        they were willful and intentional, and that they were serious enough or
        repeated enough, then the person is terminated from the drug court
        program.

               What that means then, because you have given up your rights in
        this matter, is that you don’t go back to the trial docket, you don’t have a
        trial with witnesses and juries and lawyers making motions. It is simply
        a matter of the judge, usually me, maybe somebody else, simply looking
        at the affidavits in the file and the police reports to determine if you are
        guilty of these matters. Do you understand that.

             THE DEFENDANT: Yes, I do.

              THE COURT: Okay. So you’re giving up a whole lot to get into
        this program. I just want to make sure that’s clear to you. So thank you
        for that.

RP (37281-2-III) at 11-12. Mr. Hirocke was then admitted into the drug court program.

      Thirty months later, after repeated violations and a last-chance reinstatement, the

court held a termination hearing. The State moved to have Mr. Hirocke terminated from

drug court and Mr. Hirocke, through his attorney, asked to remain in the program. The

court found that the program had offered Mr. Hirocke all the opportunities and patience it




                                             4
No. 37281-2-III & 37282-1-III
State v. Hirocke


had to offer but that Mr. Hirocke was not amenable to the treatment offered through drug

court. RP (37282-1-III) 47-48.

       After terminating Mr. Hirocke from the drug court program, the court conducted a

stipulated bench trial and found Mr. Hirocke guilty on all counts.

                                         ANALYSIS
       1. Was the drug court contract invalid as illusory?

       In both cases on appeal, Mr. Hirocke argues that the drug court contract he signed,

including all of the constitutional waivers, is illusory because the judge retained sole

discretion to determine if the contract had been violated, and could find a violation

arbitrarily, for any reason, and at its sole discretion. We review under a de novo standard

the validity of a constitutional waiver. State v. Treat, 

109 Wash. App. 419

, 427, 

35 P.3d

1192

(2001).

       In framing this issue on appeal, there are a couple of points worth mentioning.

First, Mr. Hirocke did not object to the contract terms, the constitutional waivers, the

revocation, or the bench trial. On appeal, he argues that the State’s obligation under the

contract is illusory because the trial court retains sole discretion to determine a violation

and termination. Mr. Hirocke is not claiming that he complied with his obligations or the

State violated its obligations. Nor is he arguing that, as applied in this case, the court

abused its discretion or acted arbitrarily in terminating his contract. Instead, Mr. Hirocke




                                              5
No. 37281-2-III & 37282-1-III
State v. Hirocke


is making a facial challenge to the contract; arguing that since it could be arbitrarily

terminated, it is therefore illusory.

       We disagree. Even assuming that Mr. Hirocke has not waived these arguments by

failing to make any objections below, the drug court contract is not illusory. A

“‘promise’ may be illusory because it is so indefinite that it cannot be enforced, or

because provisions contained in the promise make its performance optional or entirely

discretionary on the part of the promisor.” State v. E.A.J., 

116 Wash. App. 777

, 784, 

67

P.3d 518

(2003).

       Mr. Hirocke argues that the drug court contract is illusory because the State’s

obligation to dismiss the charges is entirely optional, and the State can choose to

terminate a participant for any reason. The drug court contract provided several non-

exclusive examples that could cause termination from the drug court program, including

the failure to attend or participate in treatment and repeated positive drug tests. The

contract specifies that the decision to terminate an individual from drug court rests solely

with the judge, guided by input from the drug court team. Mr. Hirocke argues that

“[t]hese provisions allow the court to unilaterally and arbitrarily terminate a person from

drug court for virtually any reason.” Br. of Appellant (37281-2-III) at 9.

       In this case, the trial court found that after two-and-a-half years, numerous in-

patient treatment stays, mental health treatment, and significant counseling, Mr. Hirocke

was still not progressing in treatment and still testing positive for controlled substances.

                                              6
No. 37281-2-III & 37282-1-III
State v. Hirocke


Mr. Hirocke himself admitted to a recent relapse. The court noted that Mr. Hirocke was

not amenable to any treatment that could be provided through drug court and terminated

him from the program.

       Mr. Hirocke does not challenge these findings on appeal. He does not argue that

the findings were unsupported by the evidence. Nor does he argue that the reasons are

insufficient to justify termination under the contract’s explicit terms. Mr. Hirocke’s

termination from drug court was not arbitrary. Instead, it was supported by the terms of

the contract that he signed after advice from counsel.1

       Contrary to Mr. Hirocke’s argument, neither the State nor the court have

unfettered discretion to avoid the obligations set forth in the contract. Drug court

contracts are guided by statute and due process. See RCW 2.28.170. A defendant’s

stipulation in exchange for the State granting participation in the drug court program is a

knowing and intelligent waiver of all subsequent factual, legal, or procedural issues the

defendant might raise. State v. Varnell, 

137 Wash. App. 925

, 930, 

155 P.3d 971

(2007)

(Court upheld drug court agreement validly waiving procedural and constitutional rights

upon entry and defendant’s exercise of his right to terminate the program did not

implicate due process concerns). A defendant’s incentive for participating in the program

in compliance with the State’s terms is dismissal of the charges. State v. Drum, 

143 Wash.

7

No. 37281-2-III & 37282-1-III
State v. Hirocke


App. 608, 616-17, 

181 P.3d 18

(2008), aff’d on other grounds, 

168 Wash. 2d 23

, 

225 P.3d

237

(2010). These two sets of promises for performance establish consideration for the

drug court contract.

       The State retains discretion over admittance to the program and prosecutorial

decisions. State v. DiLuzio, 

121 Wash. App. 822

, 829-30, 

90 P.3d 1141

(2004). When the

State seeks to terminate an individual’s participation in drug court, the State must prove

non-compliance with the drug court diversion agreement to the neutral fact-finder by a

preponderance of the evidence. 

Varnell, 137 Wash. App. at 929

. The State cannot

terminate drug court participation without (1) giving the defendant notice and an

opportunity to contest the basis of the termination, and (2) creating a record of the

evidence relied on to terminate participation. State v. Cassill–Skilton, 

122 Wash. App. 652

,

658, 

94 P.3d 407

(2004).

       The trial court’s function in evaluating the State’s drug court termination motion is

similar to evaluating alleged probation violations.

Id. at 657–58.

The decision to revoke

probationary status rests in the sound discretion of the trial court. State v. Kuhn, 

81

Wash. 2d 648

, 650, 

503 P.2d 1061

(1972). Sound discretion does not mean arbitrary. The

trial’s court’s discretion is not unfettered.



       1
         To the extent Mr. Hirocke makes a facial challenge to the drug court contract, by
arguing that other reasons, not listed in the contract and not applied in this case, create
indefinite obligations, we decline to consider this argument.

                                                8
No. 37281-2-III & 37282-1-III
State v. Hirocke


         Mr. Hirocke also argues that the drug court contract is illusory because the court

retained complete discretion to terminate the contract. By making this argument, Mr.

Hirocke is conflating the state and the court. A promise may be illusory if performance is

“entirely discretionary on the part of the promisor.” 

E.A.J., 116 Wash. App. at 784

(emphasis added). In this case, the State is the promisor. The State does not have the

discretion to terminate the drug court contract. The court retains this discretion, but the

court is not a party to the contract. The court is the sole decider of whether the parties

have complied with the contract, just as in all disputes brought before the court. But

saying that the court has sole discretion to decide the issue is not the same as saying that

the court has unfettered discretion.

         The drug court contact was not illusory as applied in this case. In exchange for the

State’s promise to dismiss all of the charges if he complied with the drug court contract,

Mr. Hirocke made a knowing, intelligent, and voluntary waiver of his constitutional

rights after conferring with his attorney and being advised by the court. His waivers are

valid.

         2. Do Mr. Hirocke’s multiple convictions for trafficking in stolen property violate
            double jeopardy?

         Pertaining to his appeal in No. 372812, Mr. Hirocke contends that his multiple

convictions for trafficking in stolen property violate double jeopardy. Specifically, he

argues that pawning stolen property from one burglarized storage unit on four different


                                               9
No. 37281-2-III & 37282-1-III
State v. Hirocke


occasions constitutes an ongoing course of conduct that supports only one unit of

prosecution. The State responds that the crime of trafficking in stolen property is an

alternative means crime that can be committed by either participating in a theft for the

purpose of selling the stolen property or transferring property known to be stolen. Under

the second alternative, each transfer of property is a separate unit of prosecution. Thus,

Mr. Hirocke’s four transactions support his four convictions.

       Although Mr. Hirocke did not raise this issue below, a claim of double jeopardy is

a manifest error affecting a constitutional right and can be raised for the first time on

appeal. RAP 2.5(a)(3); State v. Bobic, 

140 Wash. 2d 250

, 257, 

996 P.2d 610

(2000).

       The double jeopardy clause of the Washington State Constitution, article I, section

9, and the Fifth Amendment to the United States Constitution “‘protect against multiple

punishments for the same offense.’” State v. Graham, 

153 Wash. 2d 400

, 404, 

103 P.3d

1238

(2005). A defendant may face multiple charges arising from the same conduct, but

double jeopardy forbids entering multiple convictions for the same offense. State v.

Michielli, 

132 Wash. 2d 229

, 238–39, 

937 P.2d 587

(1997).

       When faced with multiple violations of the same statute, we apply the “unit of

prosecution” test to determine a double jeopardy issue. State v. Adel, 

136 Wash. 2d 629

,

634, 

965 P.2d 1072

(1998). We focus on the particular evil the legislature is

criminalizing and the actual act necessary to commit the crime. State v. Novick, 196 Wn.

App. 513, 522, 

384 P.3d 252

(2016). Our goal is to determine the criminal conduct or

                                              10
No. 37281-2-III & 37282-1-III
State v. Hirocke


unit of prosecution that the legislature intended to be a punishable act. State v. Tvedt, 

153

Wash. 2d 705

, 710, 

107 P.3d 728

(2005).

       [T]he first step is to analyze the statute in question. Next, we review the
       statute’s history. Finally, we perform a factual analysis as to the unit of
       prosecution because even where the legislature has expressed its view on
       the unit of prosecution, the facts in a particular case may reveal more than
       one “unit of prosecution” is present.

State v. Varnell, 

162 Wash. 2d 165

, 168, 

170 P.3d 24

(2007).

       Turning first to the statute, we evaluate whether the legislative intent is clear from

the plain language by considering the text of the provision in question, the context of the

statute in which the provision is found, related provisions, and the statutory scheme as a

whole. State v. Dennis, 

191 Wash. 2d 169

, 172-73, 

421 P.3d 944

(2018). When the words

in a statute are clear and unequivocal, the court must apply the statute as written.

Michielli, 132 Wash. 2d at 237

.

       Trafficking in stolen property is an alternative means crime; it can be committed

by either facilitating the theft of property in order to sell it to others or by trafficking, i.e.,

receiving or transferring property known to be stolen. RCW 9A.82.050.2 Mr. Hirocke

was convicted under the second alternative means. The term “traffic” is further defined

as “to sell, transfer, distribute, dispense, or otherwise dispose of stolen property to



       2
          RCW 9A.82.050: “A person who knowingly initiates, organizes, plans, finances,
directs, manages, or supervises the theft of property for sale to others, or who knowingly
traffics in stolen property, is guilty of trafficking in stolen property in the first degree.”

                                                11
No. 37281-2-III & 37282-1-III
State v. Hirocke


       another person, or to buy, receive, possess, or obtain control of stolen property,

with intent to sell, transfer, distribute, dispense, or otherwise dispose of the property to

another person.” RCW 9A.82.010(19).

       The crime of trafficking focuses on the transfer of stolen property. The statute’s

plain language supports a conclusion that each separate transaction is a separate unit of

prosecution.

       Mr. Hirocke argues that the legislature intended the unit of prosecution for

trafficking to be a continuing course of conduct. In support of this argument, he cites

State v. Ose, 

156 Wash. 2d 140

, 146, 

124 P.3d 635

(2005). In Ose, the court addressed the

unit of prosecution for possession of stolen property. The statutory definition included

possessing “a stolen access device.” RCW 9A.56.160(1)(c). The court found that the use

of the indefinite article “a” in the clause “a stolen access device” clearly demonstrated an

intent to create a unit of prosecution for each singular access device. 

Ose, 156 Wash. 2d at

146

. Mr. Hirocke uses Ose to make the inverse argument: since the trafficking statute

does not use a singular article to describe property, the legislature must have intended a

continuing course of conduct.

       This argument denies the antecedent and fails to recognize the difference between

possessing stolen property and trafficking stolen property. Trafficking is clearly focused

on the transfer as opposed to the possession of the stolen property. Similarly, trafficking

can be distinguished from theft.

                                              12
No. 37281-2-III & 37282-1-III
State v. Hirocke


       In State v. Michielli, the defendant stole items from a house where he was a tenant

and then pawned the items to two different pawn 

shops. 132 Wash. 2d at 237

. He

challenged his convictions for theft and three counts of trafficking in stolen property,

arguing that he could not be charged with both theft and trafficking. The court disagreed,

noting that transferring stolen property to another is an element of trafficking but not

theft.

Id. at 236

(citing State v. Strohm, 

75 Wash. App. 301

, 

879 P.2d 962

(1994)). “Under

the plain language of the trafficking statute, one who knowingly sells stolen property can

be charged with trafficking, regardless of whether that person is the one who stole the

property, and regardless of whether the person sells the property to a fence or an

unsuspecting purchaser.”

Id. at 237.

       Mr. Hirocke points out that the trafficking crime includes possession of stolen

items with the intent to transfer. He contends that since a person who possesses and then

transfers stolen property is guilty of only one crime, the legislature must have intended

the unit of prosecution to be a continuing course of conduct. Possessing stolen property

with intent to transfer and actually transferring the stolen property are alternative means

of committing a trafficking offense. RCW 9A.82.010(19). The hypothetical posed by

Mr. Hirocke is not before us, and we will not provide an advisory opinion on the unit of

prosecution under this scenario.




                                             13
No. 37281-2-III & 37282-1-III
State v. Hirocke


       In this case, each transfer of stolen property caused harm to stores that

unknowingly purchased stolen property from Mr. Hirocke. The plain language of the

trafficking statute supports the conclusion that when trafficking of stolen property is

based on the transfer of property to another, the unit of prosecution is each transfer.

       This does not end the inquiry, however. We must also conduct a factual analysis

to decide if more than one unit of prosecution is present in this particular case. “Even

where the Legislature has expressed its view on the unit of prosecution, the facts in a

particular case may reveal more than one ‘unit of prosecution’ is present.” State v. Bobic,

140 Wash. 2d 250

, 266, 

996 P.2d 610

(2000). We have no problem concluding that the

facts in the case support four convictions for trafficking in stolen property. Mr. Hirocke

transferred stolen property four separate times. Each transfer supports a separate

conviction. Double jeopardy has not been violated by Mr. Hirocke’s multiple convictions

for multiple counts of trafficking in stolen property.

       3. Should Mr. Hirocke’s conviction for possession of a controlled substance be
          reversed in light of State v. Blake?

       While this appeal was pending, the Supreme Court decided State v. Blake, 

197

Wash. 2d 170

.

       Mr. Hirocke was granted permission to supplement his brief and challenge his one

conviction for possession of a controlled substance. The State concedes that the




                                             14
No. 37281-2-III & 37282-1-III
State v. Hirocke


conviction should be reversed in light of Blake. We accept the State’s concession and

reverse this conviction. His remaining convictions are affirmed.

      A majority of the panel has determined 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.

                                            _________________________________
                                                    Staab, J.

WE CONCUR:


_________________________________
      Fearing, J.


_________________________________
      Lawrence-Berrey, J.




                                           15

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