Opinion
No. 38003-0-II.
April 28, 2009.
Appeal from a judgment of the Superior Court for Grays Harbor County, No. 08-8-00079-4, Gordon Godfrey, J., entered June 19, 2008.
Remanded by unpublished opinion per Bridgewater, J., concurred in by Van Deren, C.J., and Houghton, J.
D.L.C. pleaded guilty to second degree arson. The juvenile court imposed a manifest injustice disposition upward. D.L.C. appeals, arguing that the juvenile court abused its discretion in imposing a manifest injustice disposition because (1) the record does not support the aggravating factors found by the court and (2) a disposition of 110 to 120 weeks is clearly excessive. A commissioner of this court initially considered this matter on an accelerated basis, under RAP 18.13, and then referred it to a panel of judges. Concluding that the juvenile court did not make a sufficient record for this court to review, we remand for a new disposition hearing.
On April 30, 2008, D.L.C. set his stepfather's truck on fire. The State charged D.L.C. with second degree arson and he pleaded guilty. The standard disposition range for his offense was commitment to Juvenile Rehabilitation Administration (JRA) for 15 to 36 weeks. Both the State and the probation counselor recommended a manifest injustice disposition of 120 weeks. The juvenile court found the following aggravating factors:
The offense was committed in an especially heinous, cruel, or depraved manner;
The respondent has a recent criminal history or has failed to comply with conditions of a recent dispositional order or diversion agreement;
There are other complaints which have resulted in diversion or a finding or plea of guilty which are not included as criminal history; and
The standard range disposition is clearly too lenient considering the seriousness of the juvenile's prior adjudications;
Other: (1) Youth on parole at time of offense
(2) Offense committed after recent release from JRA Institution
(3) Youth is threat to community [and] self.
CP at 16.
The juvenile court found a manifest injustice and committed D.L.C. to 110 to 120 weeks in JRA. Due to a recording malfunction, D.L.C.'s disposition hearing was not recorded. At a second hearing, conducted to create a record, the juvenile court stated in support of its finding of a manifest injustice:
THE COURT: . . . I have dealt with [D.L.C.] since he was probably about ten or eleven years of age, if not younger than that. I have dealt with him on at-risk matters. I have dealt with him in family court matters. I have dealt with him in criminal matters.
Now let's look at the nature of this offense. It was arson in the second degree. We [sic] torched a motor vehicle, and there was absolutely no rationale for this.
RP (Oct. 10, 2008) at 5. The juvenile court also based its finding on its understanding of D.L.C.'s family life, given the judge's years of interaction with D.L.C. and his mother.
D.L.C. moved to withdraw his guilty plea, arguing that he only pleaded guilty so that he could get drug and alcohol treatment. The juvenile court denied his motion. D.L.C. appeals.
D.L.C. argues that the juvenile court abused its discretion in imposing a manifest injustice disposition because the record does not support any of the seven aggravating factors relied upon by the juvenile court. The State argues that the juvenile court correctly imposed a manifest injustice disposition because of D.L.C.'s long criminal history, at-risk status, and failure to comply with prior dispositional orders.
A juvenile court may impose a disposition outside the standard range if it determines that a disposition within the standard range would effectuate a manifest injustice. RCW 13.40.160(2). "'Manifest injustice'" means a disposition that would either impose an excessive penalty on the juvenile or would impose a serious and clear danger to society in light of the purposes of the [Juvenile Justice Act]." RCW 13.40.020(17). This court reviews a finding of manifest injustice according to RCW 13.40.230(2), which provides:
To uphold a disposition outside the standard range, the court of appeals must find (a) that the reasons supplied by the disposition judge are supported by the record which was before the judge and that those reasons clearly and convincingly support the conclusion that a disposition within the range would constitute a manifest injustice, and (b) that the sentence imposed was neither clearly excessive nor clearly too lenient.
This review is limited to the record before the disposition court. RCW 13.40.230(1).
First, D.L.C. argues that that the record does not support a finding that he acted in a heinous, cruel, or depraved manner. In its brief, the State argues that the record supports this finding because the truck that was burned may have been the victim's only means of transportation. But at oral argument, the State conceded that the record does not support this finding.
A crime is heinous, cruel, and depraved only if the heinousness, cruelty, and depravity of the particular crime go "beyond what could be said to be part of any act of [that type of crime]." State v. Payne, 58 Wn. App. 215, 220, 795 P.2d 134, 805 P.2d 247 (1990). The focus of the heinous, cruel, and depraved nature of the crime aggravating factor is on the juvenile's conduct rather than exclusively on the victim's pain and suffering. State v. Ogden, 102 Wn. App. 357, 365, 7 P.3d 839 (2000), review denied, 143 Wn.2d 1012 (2001). The record shows that D.L.C. set his stepfather's truck on fire, but does not demonstrate any additional acts beyond setting a fire to property. The record does not support a finding that D.L.C. acted in a heinous, cruel, or depraved manner.
Next, D.L.C. argues that the record does not support the remaining aggravating circumstances. The State concedes that the record does not contain any evidence or documentation of D.L.C.'s criminal history, failures to comply with conditions of prior dispositional orders, other complaints, parole status or recent release from JRA. At oral argument it stated that such information is contained in the "institutional memory" of the juvenile court judge. While that "institutional memory" may be accurate, it cannot be reviewed by this court. This court recognizes the reality that in smaller counties the same judge may see a juvenile over time in a number of judicial settings. But that cannot absolve the State from presenting, and the juvenile court from making, a sufficient record for this court to review. Without a sufficient record, this court cannot review D.L.C.'s claims and this court must remand for another disposition hearing.
Finally, D.L.C. argues that his disposition of 110 to 120 weeks is clearly excessive. Once a trial court has properly decided to depart from the standard range, it has broad discretion to determine the length of the disposition. State v. Duncan, 90 Wn. App. 808, 815, 960 P.2d 941 (1998). A disposition is clearly excessive "only when it cannot be justified by any reasonable view which may be taken [from] the record." State v. Tauala, 54 Wn. App. 81, 87, 771 P.2d 1188, review denied, 113 Wn.2d 1007 (1989)). Again, the incomplete record precludes review by this court and requires remand.
We remand to the juvenile court for another disposition hearing, at which the State must present a sufficient record for the juvenile court to make findings as to whether a manifest injustice exists and, if so, what disposition is appropriate.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, J. and VAN DEREN, C.J., concur.