Opinion
29461-7-III
01-17-2013
STATE OF WASHINGTON, Respondent, v. KAM ALAN MILLS, Appellant.
UNPUBLISHED OPINION
Kulik, J.
Kam Alan Mills was convicted of first degree and second degree child molestation. The sentencing court considered and denied Mr. Mills's request for a special sex offender sentencing alternative (SSOSA). We affirmed the sentence and denied reconsideration.
The Washington Supreme Court granted Mr. Mills's petition for review and remanded the case to this court to reconsider the SSOSA issue in light of State v. Osman, 157 Wn.2d 474, 139 P.3d 334 (2006). State v. Mills, 174 Wn.2d 1012, 281 P.3d 289 (2012). We have done so. We again affirm the denial of the SSOSA request because the trial court, as in Osman, properly considered relevant factors, including that Mr. Mills could be released before completing treatment. The trial court did not abuse its discretion or commit any procedural errors. We affirm the denial of the SSOSA.
FACTS
In 2006, Mr. Mills was convicted of first degree and second degree child molestation. The trial court included a prior Michigan conviction in calculating Mr. Mills's offender score and sentence. On appeal, this court determined that the trial court improperly included the Michigan offense and remanded the case for resentencing.
Mr. Mills appeared for resentencing in 2010. Mr. Mills made a SSOSA request. Mr. Mills stated that a SSOSA was not appropriate in the 2006 sentence because of the presence of the Michigan conviction. However, Mr. Mills contended that he was now eligible for a SSOSA because the Michigan conviction could no longer be considered in sentencing. A 2006 sex offender treatment evaluation concluded that Mr. Mills would benefit from a minimum of two years of outpatient sex offender treatment under the SSOSA guidelines. The trial court read the evaluation.
Mr. Mills had not received treatment in prison because he did not have an estimated release date. He needed to be within one year of his release date to qualify for treatment and, consequently, he could not obtain an estimated release date until resentencing occurred.
Mr. Mills requested treatment under a two-year program. The State recommended a sentence of 67 months, the bottom of the sentencing range. Using the State's recommendation, the trial court calculated that Mr. Mills had approximately one year left on his sentence, based on his time served and good time credits. The trial court recognized that sentencing would be delayed further in obtaining a new SSOSA report and that Mr. Mills would be eligible for counseling in prison if the court imposed the State's recommended sentence.
The trial court denied Mr. Mills's SSOSA request. In making the decision, the trial court reasoned that there was not enough time or the ability to supervise Mr. Mills's SSOSA sentence. The best approach would be for Mr. Mills to return to prison and receive counseling for the remainder of the sentence. This approach would provide structure to complete the counseling and provide housing, rather than releasing Mr. Mills into the community "with a history of depression and no treatment in sight right now." Report of Proceedings (Sept. 29, 2010) at 10.
Mr. Mills appealed the 2010 judgment and sentence. In his lengthy statement of additional grounds for review (SAG), he challenged the trial court's decision denying the SSOSA. The opinion of this court addressed some of the issues presented in the SAG, but not the SSOSA issue. State v. Mills, noted at 166 Wn.App. 1015, 2012 WL 295123. Mr. Mills requested reconsideration and asked this court to consider the remaining issues in his SAG. This court reviewed the SSOSA issue, determined that it did not change the outcome of the opinion, and denied Mr. Mills's motion for reconsideration.
Mr. Mills petitioned the Washington Supreme Court for review under RAP 13.4(b). The Supreme Court granted review on the SSOSA issue only and remanded the case to this court for reconsideration in light of Osman. Mills, 174 Wn.2d 1012.
ANALYSIS
The trial court exercises its discretion in deciding to impose a SSOSA. Osman, 157 Wn.2d at 482. "A court abuses its discretion if it categorically refuses to impose a particular sentence or if it denies a sentencing request on an impermissible basis." Id.
As a general rule, the trial court's decision whether to grant a sentencing alternative is not reviewable, but an offender may challenge the procedure by which a sentence was imposed. State v. Grayson, 154 Wn.2d 333, 338, 111 P.3d 1183 (2005).
An offender is eligible for a SSOSA if all the criteria listed in RCW 9.94A.670(2) are met. Former RCW 9.94A.670 (2004). If the court finds that the offender is eligible for this alternative, the court may order an examination to determine whether the offender is amenable to treatment. RCW 9.94A.670(3).
In determining whether to grant a SSOSA request, "the court shall consider whether the offender and the community will benefit from the use of this alternative, consider whether the alternative is too lenient in light of the extent and circumstances of the offense, consider whether the offender has victims in addition to the victim of the offense, consider whether the offender is amenable to treatment, consider the risk the offender would present to the community, to the victim, or to persons of similar age and circumstances as the victim, and consider the victim's opinion whether the offender should receive a treatment disposition under this section." RCW 9.94A.670(4).
In Osman, Mr. Osman was eligible for a SSOSA. Osman, 157 Wn.2d at 477. However, the presentence investigation report recommended against a SSOSA if Mr. Osman could be deported before he could receive treatment. Id. at 478. In the alternative, the report concluded that there were no objections to the SSOSA if the defense could rule out deportation and Mr. Osman was amenable to treatment. Id. The report further noted that Mr. Osman could also receive treatment through the correctional facility while serving a standard range sentence. Id.
The trial court "considered the possible consequences of no treatment or inadequate punishment if [Mr.] Osman could be deported when released into the community after completing the incarceration portion of his SSOSA." Id. at 482. The court denied Mr. Osman's request for a SSOSA based on the possibility that Mr. Osman might evade treatment and/or receive inadequate punishment. Id. On appeal, the Washington Supreme Court concluded that "[t]he trial court did not abuse its discretion by considering the impact that possible deportation would have on [Mr.] Osman's treatment and punishment." Id. at 483.
In contrast, in State v. Adamy, 151 Wn.App. 583, 587-88, 213 P.3d 627 (2009), the trial court abused its discretion by categorically refusing to grant a SSOSA because Mr. Adamy was subject to a deportation order. The trial court refused to consider other factors based on its erroneous belief that a defendant who was subject to a deportation order was not eligible for a SSOSA. Id. at 586-87.
Here, the trial court did not abuse its discretion in denying Mr. Mills's request for a SSOSA. Like in Osman, the trial court appropriately considered the possibility that Mr. Mills could be released before completing his SSOSA sentence. The trial court also considered Mr. Mills's history of depression, the need for structured treatment, and the possibility of further delayed treatment if the SSOSA request was granted. The trial court concluded that it was in the best interest of Mr. Mills to serve his sentence in the correctional facility where treatment was available to him. The trial court did not categorically refuse treatment but, instead, considered the possibility that Mr. Mills would not get the treatment he needed if released into the community.
In light of Osman, we conclude that the trial court did not abuse its discretion in denying Mr. Mills's SSOSA request. And the trial court did not fail to follow procedural requirements. Instead, the trial court considered relevant factors that affected Mr. Mills's treatment.
Alternatively, we conclude that Mr. Mills was not eligible for a SSOSA because of his prior Michigan conviction. RAP 12.1 allows this court to consider issues not raised by the parties if necessary to reach a proper decision. And, we review an offender's eligibility for a SSOSA de novo. State v. Landsiedel, 165 Wn.App. 886, 889, 269 P.3d 347, review denied, 174 Wn.2d 1003, 278 P.3d 1111 (2012).
Pertinent to Mr. Mills's situation, a defendant is eligible for a SSOSA, if "[t]he offender has no prior convictions for a sex offense as defined in RCW 9.94A.030 or any other felony sex offense in this or any other state." RCW 9.94A.670(2)(b). Other felony sex offenses include out-of-state sex offenses that are comparable as well as all other out-of-state felony sex offenses. State v. McInally, 125 Wn.App. 854, 864-65, 106 P.3d 794 (2005). Mr. Mills's prior Michigan conviction for first degree criminal sexual conduct is a felony under Michigan law. Mich. Comp. Laws 750.520b(2).
When Mr. Mills appeared for resentencing, he explained to the court that he qualified for a SSOSA because his Michigan conviction was not comparable to Washington and did not count toward SSOSA eligibility. This is incorrect. The prior Michigan felony sex conviction made him ineligible for a SSOSA. Thus, Mr. Mills was not eligible for a SSOSA, regardless if the crimes are comparable.
We affirm the denial of Mr. Mills's SSOSA request.
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.
WE CONCUR: Sweeney, J., Korsmo, C.J.