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Violation of Washington SSOSA Need Not be Willful

The En Banc Washington state Supreme Court affirmed a lower court’s revocation of a sex offender’s suspended sentence under Washington’s Special Sex Offender Sentencing Alternative (SSOSA).

In 2000, David Elvin McCormick was convicted of raping his 11-year-old developmentally disabled granddaughter. The court suspended his 123 month sentence and imposed probation under the SSOSA. One condition of the suspended sentence was that McCormick “not frequent areas where minor children are known to congregate.”

McCormick violated this condition in 2004 and 2005, but after minor sanctions or added conditions, probation was continued. In 2006, McCormick regularly attended a St. Vincent De Paul Food Bank located on the premises of the Immaculate Conception Grade School. He was also alleged to have made numerous sexual comments about children. Several polygraphists refused to examine McCormick due to his low IQ. Even so, the court revoked the SSOSA sentence and imposed the 123 month sentence.

On appeal, McCormick argued that “the trial court was required to find that his violations were willful before it could revoke his suspended sentence and there was insufficient evidence to support the revocation.”

“Examining the plain language of the relevant statutes and…case law analyzing the wording of the condition,” the Court found that “the State is not required to prove McCormick willfully was in an area where minors are known to congregate.” It also held due process does not “require the State to prove McCormick willfully violated a condition of his SSOSA sentence,” since “the strong governmental interest in protecting the public outweighs McCormick’s diminished interest.”

The Court also rejected McCormick’s argument that “the evidence was insufficient to support the revocation of his suspended sentence” since the facts do not demonstrate he knew the food bank was where minors congregate.” The Court concluded that it was not an abuse of discretion to revoke McCormick’s sentence because “the evidence demonstrates McCormick went to a food bank located in an elementary school that is connected with a church. The trial court could reasonably conclude that the location of the food bank…presented a risk to the safety or welfare of society. This violation, combined with McCormick’s prior violations…on three separate occasions, justify revoking McCormick’s suspended sentence.”

One judge dissented because he believed due process “requires the State to prove McCormick willfully violated a condition of his sentencing alternative before revoking it.” See: State v. McCormick, 166 Wash.2d 689, 213 P.3d 32 (2009).

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Related legal case

State v. McCormick