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State v. Childs

January 27, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
ROBERT J. CHILDS, JR., APPELLANT.



Appeal from Superior Court of King County. Docket No: 94-1-06410-6. Date filed: 10/02/95. Judge signing: Hon. Kathleen J. Learned.

Authored by Susan R. Agid. Concurring: Faye C. Kennedy, C. Kenneth Grosse.

The opinion of the court was delivered by: Agid

AGID, J. -- Robert Childs appeals the modification of his sentence for rape in the third degree. The trial court found that he committed ten violations of his community placement conditions and ordered 450 days of confinement. We decline to reach the merits of Childs' issues and dismiss his appeal as moot because he has served his term of confinement and is no longer under community supervision for the underlying crime. In addition, we cannot adequately address the only significant issue without further briefing which we will not require in a moot case.

A case is moot when the court can not provide adequate relief to the parties and the issues are thus merely academic. In re Marriage of T., 68 Wash. App. 329, 336, 842 P.2d 1010 (1993). In general, this court will not review a moot case unless it presents issues of continuing public interest or we determine that a decision on the merits is appropriate, considering "(1) the public or private nature of the question presented; (2) the desirability of an authoritative determination which will provide future guidance to public officers; and (3) the likelihood that the question will recur." In re Swanson, 115 Wash. 2d 21, 24, 793 P.2d 962, amended, 804 P.2d 1 (1990) (quoting Dunner v. McLaughlin, 100 Wash. 2d 832, 838, 676 P.2d 444 (1984)). Childs admits that the court cannot fashion a remedy which would provide effective relief. However, he argues that this court should review his appeal on the merits because he presents issues of compelling public interest. We disagree.

Childs contends that the trial court violated his confrontation rights when it allowed his CCO and the investigating officer to testify at his modification hearing in lieu of his accusers. Allowing an investigating officer and a CCO to testify to accusers' statements at a sentence modification hearing does not necessarily violate the confrontation clause. But Childs argues that the two Washington cases that discuss the issue of a defendant's confrontation rights in a sentence modification hearing, State v. Badger, 64 Wash. App. 904, 827 P.2d 318 (1992), and State v. Nelson, 103 Wash. 2d 760, 697 P.2d 579 (1985), are inconsistent and create confusion. Neither party adequately briefed this issue. We will await a more appropriate case to address any confusion these cases create.

Childs also argues: (1) there was insufficient evidence to find one violation; (2) he was denied due process because the trial court considered the unsworn testimony of the CCO; (3) the trial court ordered confinement for a violation it found he did not commit and erroneously doubled the confinement for another; and (4) one of the community supervision conditions was unconstitutionally vague. These are all fact-specific issues that do not merit review in a moot case.

Dismissed.

WE CONCUR:

Faye C. Kennedy

C. Kenneth Grosse

19970127 ...


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