Opinion
No. 36375-5-II.
July 2, 2008.
Appeal from a judgment of the Superior Court for Grays Harbor County, No. 07-8-00047-8, Jean A. Cotton, J. Pro Tem., entered April 19, 2007.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Houghton, J.; Quinn-Brintnall, J., dissenting.
A.R.W. appeals the manifest injustice disposition that the juvenile division of the Grays Harbor County Superior Court imposed after she pleaded guilty to threatening to bomb her high school. We affirm.
FACTS
On February 2, 2007, A.R.W., a minor, wrote, "Fuck this shit I'll bomb it during 6th" on the wall of a bathroom stall at her high school. CP at 3. She pleaded guilty on February 22, 2007, to one count of threat to bomb or injure property. The trial court set over sentencing for one month. Pending sentencing, A.R.W. committed the crime of forgery. The trial court ordered a diagnostic evaluation.
On April 19, 2007, A.R.W. appeared before the Grays Harbor Superior Court for sentencing on three separate incidents, including revocation of a deferred sentence for residential burglary and third degree theft, the bomb threat at issue in this case, and the forgery she committed while on house arrest pending sentencing for the bomb threat. The State recommended and the trial court imposed local sanctions for the burglary, theft, and forgery dispositions for time already served.
The standard sentence for local sanctions is 0 to 30 days. The State and the probation counselor strongly recommended an upward manifest injustice disposition (MI) of 52 to 60 weeks in detention for the bomb threat, based on the danger A.R.W. posed to the community. As additional support for an MI, the State informed the court that A.R.W. committed the forgery while on house arrest for the bomb threat and that when she committed the residential burglary, she took along two young children she was babysitting, ages three and four. A.R.W.'s diagnostic evaluation, a predisposition psycho-social evaluation, ordered by a different judge at an earlier hearing indicated that A.R.W. had serious problems with anger management, depression, and attention deficit issues. She showed no remorse for her actions and took no responsibility for her behavior, which in this case, resulted in her expulsion from high school.
The trial court also perceived A.R.W. to be a threat to the community and likely to re-offend. It imposed the MI disposition of 52 to 60 weeks, finding as aggravating factors that:
Although it probably could have done so, the trial court did not list A.R.W.'s likelihood of reoffending as an aggravating factor. State v. T.E.H., 91 Wn. App. 908, 917-18, 960 P.2d 441 (1998). Instead, it merely mentioned the likelihood that A.R.W. would reoffend in its oral discussion with A.R.W.
[(1)] The victim was particularly vulnerable;
[(2)] The respondent has a recent criminal history or has failed to comply with conditions of a recent dispositional order or diversion agreement;
. . .
[(3)] There are other complaints which have resulted in diversion or a finding or plea of guilty which are not included as criminal history; and
[(4)] The standard range disposition is clearly too lenient considering the seriousness of the juvenile's prior adjudications.
[(5)] [The] youth is a clear threat to the community.
The trial court handwrote the last two (listed as numbers five and six here) aggravating factors in the space titled "Other." CP at 13.
[(6)] Counselling [sic] is indicated.
CP at 13.
The trial court denied A.R.W.'s request to revise the decision. She appealed the trial court's ruling and our commissioner affirmed. This court granted her motion to modify the commissioner's ruling. She appeals.
ANALYSIS I. State's Promise
A.R.W. first contended that we must reverse the trial court's disposition because the State breached her plea agreement. Accordingly, she argues that she is entitled to specific performance of the plea agreement or withdrawal of her guilty plea. Her statement on plea of guilty indicates her belief that there would be such a recommendation.
Her statement on plea of guilty states:
13. I understand that the prosecuting attorney will make the following recommendation to the judge: Local Sanctions.
14. I understand that the probation counselor will make the following recommendation to the judge: Local Sanctions
CP at 9.
We do not address the relevant law regarding plea agreements because here there is no evidence that a plea agreement existed. The prosecuting attorney did not sign her statement on plea of guilty, there was no separate document memorializing a plea agreement, and the prosecuting attorney never made a statement regarding any type of plea agreement. The only reference to A.R.W.'s understanding is in her own statement on plea of guilty.
Only A.R.W., her counsel, and the trial court signed the plea agreement. There is no evidence that the State made an offer to A.R.W. concerning her disposition. The State contends that it believed that the case would likely continue for fact finding and had no indication before the disposition hearing that A.R.W. planned to change her plea to guilty.
Further, defense counsel never claimed before the trial court that the State had reached an agreement with A.R.W. Even when defense counsel argued that the trial court should impose probation instead of the MI disposition, he did not contend that the State violated any agreement with A.R.W. Nor did he object when the State recommended the MI disposition based on the diagnostic evaluation.
Even assuming that there was some obligation on the State's behalf to object when A.R.W. informed the trial court that she would plead guilty, circumstances changed between the time she entered her plea and her sentencing. Namely, A.R.W. committed another felony and the trial court ordered a diagnostic evaluation.
Finally, A.R.W. took the position at oral argument before this court that even though her statement of plea on guilty plainly stated that the trial court could impose any sentence, it did not inform her that committing a felony while awaiting sentencing could affect the prosecuting attorney's recommendation and the sentence the trial court imposed. She also indicated that she was not informed that the trial court could order a diagnostic evaluation before sentencing and that the result of the diagnostic might change the State's recommendation. These arguments are specious. Any person, even a minor, would understand that the commission of a felony pending sentencing would put the trial court, the prosecutor, and the probation office in a very different position regarding sentencing or sentencing recommendations.
There is no evidence that the State made any promises regarding sentence recommendations, and thus, it did not breach any agreement by asking the trial court for the MI disposition. Further, even if A.R.W. understood that the State would make a favorable recommendation, A.R.W.'s subsequent felony while waiting for sentencing relieved the State of any obligation to her. A.R.W.'s plea remained voluntary even after she committed a new felony pending sentencing. There was no error.
II. Probation Counselor's Promise
A.R.W. next argues that we must vacate her sentence because the two probation counselors in this case recommended the 52- to-60-week MI disposition. But, as discussed above, there is no evidence in the record, other than defense counsel's written indication, that the probation counselor made any promise whatsoever. Even if we considered the argument, it is without merit. The probation counselor is an agent of the juvenile court, not the State, and can recommend exceptional sentences even when those recommendations conflict with the State's. State v. Merz, 54 Wn. App. 23, 26, 771 P.2d 1178, review denied, 113 Wn.2d 1002 (1989). Under RCW 13.04.040, a probation counselor shall:
(2) Make recommendations to the court regarding the need for continued detention or shelter care of a child unless otherwise provided in this title;
. . .
(4) Prepare predisposition studies as required in RCW 13.40.130, and be present at the disposition hearing to respond to questions regarding the predisposition study.
Here, the probation counselors prepared the psycho-social diagnostic report that the trial court requested following A.R.W.'s guilty plea but before her disposition. Once the probation counselors received the diagnostic, they made their recommendation to the trial court. Thus, A.R.W.'s argument fails. Even assuming the probation officers had promised a specific recommendation, of which there is no evidence, that promise would be meaningless in light of A.R.W.'s subsequent felony while she waited for sentencing.
III. Manifest Injustice Disposition
A.R.W. next argues that the record does not support the trial court's MI disposition. When sentencing a juvenile offender, the trial court must impose a standard range disposition unless it finds that such a sentence would create a manifest injustice. RCW 13.40.160(2). The phrase "manifest injustice" refers to either a disposition that would impose an excessive penalty on the juvenile or a disposition that would impose a serious and clear danger to society in light of the purposes of the Juvenile Justice Act (JJA) of 1977. RCW 13.40.020(17). Those purposes include protecting the public from juvenile criminal behavior and providing necessary treatment and supervision for juvenile offenders. RCW 13.40.010(2)(a) and (f).
To uphold a disposition outside the standard range, we must find: (1) that the record supports the trial court's reasons; (2) those reasons clearly and convincingly support the conclusion that a disposition within the standard range would constitute a manifest injustice; and (3) the disposition was neither clearly excessive nor clearly too lenient. RCW 13.40.230(2). We review a trial court's findings of fact under a clearly erroneous standard and will reverse only if substantial evidence fails to support the trial court's conclusion. State v. T.E.C., 122 Wn. App. 9, 18, 92 P.3d 263, review denied, 152 Wn.2d 1012 (2004). We review whether an aggravating factor justifies departure from the standard range as a question of law. State v. Duncan, 90 Wn. App. 808, 813, 960 P.2d 941, review denied, 136 Wn.2d 1015 (1998). We will sustain an MI disposition if one or more of the factors supported by the record clearly and convincingly support the disposition and we can determine that the trial court would have entered the same sentence based on the remaining valid aggravating factors. State v. S.H., 75 Wn. App. 1, 12, 877 P.2d 205 (1994), review denied, 125 Wn.2d 1016 (1995), overruled on other grounds by State v. Sledge, 83 Wn. App. 639, 645-46, 922 P.2d 832 (1996); State v. Campas, 59 Wn. App. 561, 567-68, 799 P.2d 744 (1990).
As a preliminary matter, A.R.W. contends that the trial court did not satisfy the requirements of JuCR 7.12(e), which requires that "a sentence based upon a finding of manifest injustice . . . shall set forth those portions of the record material to the disposition." Here, the trial court identified the applicable aggravating factors by checking boxes on the order on adjudication and disposition. Juvenile court rules do not expressly require entry of written findings in support of a manifest injustice disposition and the absence of written findings does not preclude meaningful appellate review so long as the trial court satisfied the three-part test under RCW 13.40.230. State v. E.J.H., 65 Wn. App. 771, 775, 830 P.2d 375 (1992). Under this statute, we review the whole record, including the trial court's oral ruling. E.J.H., 65 Wn. App. at 775. Here, the trial court's oral remarks adequately inform this court of its basis for the findings.
A.R.W. next complains that the trial court based its decision on the erroneous assumption that she would likely serve only half of her 52 to 60 weeks of confinement due to early release as credit for time already served. A.R.W. argues, citing Sledge, 133 Wn.2d at 845, that the trial court cannot base its MI disposition on the possibility of early release because it invites too much speculation. While A.R.W. is correct, it appears that the trial court recognized this mistake at the disposition hearing and still chose to impose the 52 to 60 weeks. Therefore, the trial court did not base its decision on this faulty assumption.
She also argues that the trial court, with a different judge sitting during A.R.W.'s motion for revision, stated that she would likely serve less than a year due to the credit she would receive for time served, even though the trial court's disposition order noted that she would not receive any such credit. The fact that a different judge incorrectly assumed during A.R.W.'s motion for revision that she would not serve the full term does not affect the trial court's decision at the disposition hearing, where he recognized his mistake and still imposed the 52-to-60-week term. We follow Sledge, holding that reliance on early release is not a permissible reason to impose an MI disposition, but because the trial court here recognized its mistake and did not rely on this assumption, it did not err.
A.R.W. also challenges the first, second, and sixth aggravating factors. As to the first, she argues that the trial court improperly considered the vulnerability of the 80-year-old victim of her forgery charge. There is no reason for us to make such an assumption, particularly in light of the fact that the trial court imposed only 28 days of detention for that crime. Instead, the record indicates that the trial court discussed the seriousness of the threat of bombing a school in the context of all of the events and problems reported on the news, and the trial court almost certainly considered that the vulnerable victims were the students and teachers at the school.
The first, second, and sixth aggravating factors are:
[(1)] The victim was particularly vulnerable;
[(2)] The respondent has a recent criminal history or has failed to comply with conditions of a recent dispositional order or diversion agreement;
. . .
[(6)] Counselling [sic] is indicated.
CP at 13.
The charging statute is informative on this issue. RCW 9.61.160 states:
(1) It shall be unlawful for any person to threaten to bomb or otherwise injure any public or private school building . . . or to communicate or repeat any information concerning such a threatened bombing or injury, knowing such information to be false and with intent to alarm the person or persons to whom the information is communicated or repeated.
(Emphasis ours). The statute clearly contemplates that the intent is to protect those victims inside of the school. Here, the trial court discussed news reports about school shootings involving harm to innocent students and faculty, including a student with a 4.0 grade point average. The record supports this aggravating factor of particular vulnerability.
A.R.W. next challenges the aggravating factor regarding recent criminal history, contending that the forgery did not constitute "history" because it occurred after the bomb threat. MAR at 17. But the burglary and theft occurred just 10 months before the bomb threat, and A.R.W. was on probation for those crimes when she made the threat. The record supports this valid aggravating factor. See RCW 13.40.150(3)(i)(iv).
RCW 13.40.150(3)(i)(iv) provides, "The respondent has a recent criminal history or has failed to comply with conditions of a recent dispositional order or diversion agreement."
Finally, A.R.W. contends that even though a need for treatment can be an appropriate basis for an MI disposition, the trial court's reference to counseling in the sixth factor is too vague to support the MI disposition. "Responding to a need for treatment is an appropriate basis for a manifest injustice disposition and is determined by the specific needs of the particular defendant." S.H., 75 Wn. App. at 12. A.R.W. argues that the trial court's handwritten aggravating factor states only that "Counseling is indicated." Motion for Acc. Review (MAR) at 18. Additionally, she faults the trial court's failure to discuss any particular treatment programs that would be applicable to her situation.
The MAR states that the trial court merely stated, "treatment is indicated," MAR at 18, but the disposition indicates that the trial court wrote, "Counselling [sic] is indicated." CP at 13.
She cites S.H. in support of this contention, but S.H. does not require a trial court to determine the specific plan for treatment. She next cites S.H. for the proposition that the length of the disposition must have "a reasonable, supportable relationship" to the need for treatment. MAR at 18 (quoting S.H., 75 Wn. App. at 13). But this statement applies when "treatment is the sole basis for the disposition." S.H., 75 Wn. App. at 13. Here, the trial court did not base the disposition solely on her need for treatment, as discussed below.
The probation counselors in this case provided a disposition recommendation and summary of A.R.W.'s psycho-social diagnostic, which recommended the MI disposition because A.R.W. did not accept responsibility for her actions and had been committing crimes at an alarming rate. The summary also notes that the doctor who prepared her diagnostic diagnosed her as an oppositional defiant, suffering from conduct disorder, depression, and attention deficit disorder. The recommendation describes A.R.W. as impulsive, easily angered, and without regard for the well being of others. The report also shows that A.R.W.'s criminal activity was escalating. While testifying, both counselors reiterated these reasons and explicitly recommended the MI disposition. We hold that the record supports this aggravating factor as one of several supporting the MI disposition.
Even if we were to determine that the trial court erred by applying any of the challenged aggravating factors, another unchallenged aggravating factor clearly supports both A.R.W.'s MI disposition and the length of her incarceration. Although A.R.W.'s motion for accelerated review mentions it only briefly, the trial court here relied on the diagnostic, along with testimony from the State and both counselors, to determine that she was a clear "threat to the community." CP at 11, 13; RP at 22. The need to remove a juvenile from the community to protect both society and the juvenile is an appropriate basis for a MI disposition. S.H., 75 Wn. App. at 12 n. 4 (citing E.J.H., 65 Wn. App. at 777). Here, this factor clearly supported the trial court's MI disposition.
We hold that the record supports the trial court's reasons for imposing the MI disposition, these reasons clearly and convincingly support that a standard range sentence would be a manifest injustice, and that the trial court's disposition was neither clearly excessive nor clearly too lenient under RCW 13.40.230(2).
We affirm the adjudication and disposition.
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, P.J., concur.
Although I agree with the majority that there is no showing on this record that the State had or breached a plea agreement with A.R.W., I disagree with its characterization that A.R.W.'s arguments for why her guilty plea was constitutionally invalid are specious. In my view, A.R.W.'s guilty plea is constitutionally deficient because she pleaded guilty to one count of threat to bomb or injure a party believing that the State and the probation officer would recommend a sentence of local sanctions. Review of the record supports her claim. As the majority notes, her statement on plea of guilty states:
. . . I understand that the prosecuting attorney will make the following recommendation to the judge: Local Sanctions.
. . . I understand that the probation counselor will make the following recommendation to the judge: Local Sanctions.
Clerk's Papers (CP) at 9. The plea of guilty also states:
. . . Although the judge will consider recommendations of the prosecuting attorney and the probation officer, the judge may impose any sentence he or she feels is appropriate, up to the maximum allowed by law.
. . . The judge has asked me to state in my own words what I did that makes me guilty of this crime. This is my statement: February 2, 2007[,] I threatened to bomb the Elma school.
CP at 9.
At the hearing at which she was to be sentenced for the bomb threat, the State and the probation counselor recommended that the court make a finding of a manifest injustice and impose an exceptional sentence. Although there is no evidence that the State or the probation counselor were parties to the statement of defendant on plea of guilty or had agreed to recommend local sanctions, and they were not bound to do so, the knowing and voluntariness of A.R.W.'s plea of guilty to the bomb threat charge hinges on her belief as demonstrated by the record of her plea hearing that local sanctions would be the recommended sentence. According to her statement of defendant on plea of guilty contained in the record, A.R.W. was expressly informed that the court will consider the State and the prosecutor's recommendation for local sanctions. In essence, A.R.W. reasonably believed that she would "pick up another number" to her criminal history but she would not experience additional restrictions on her liberty. Because there was no such agreement, A.R.W.'s counsel misled her when he drafted the statement of defendant on plea of guilty and she entered her guilty plea based on this misrepresentation. State v. McCollum, 88 Wn. App. 977, 982, 947 P.2d 1235 (1997), review denied, 137 Wn.2d 1035 (1999); see State v. Stowe, 71 Wn. App. 182, 187, 858 P.2d 267 (1993) (Even though defense counsel does not have an obligation to inform his client of all possible collateral consequences of a guilty plea, counsel may fall below the objective standard of reasonableness if he misinforms a defendant as to the collateral consequences of a guilty plea.); see, e.g., State v. Smith, 134 Wn.2d 849, 853, 953 P.2d 810 (1998) (Defendant did not intelligently waive his right to appeal because his counsel's statements conflicted with the plea agreement but the statements went uncorrected by both the judge and the prosecutor. Moreover, a plea is not voluntary when the defendant, his attorney, and the trial judge labor under a false impression that defendant has a right to appeal.).
I agree that anyone who commits additional crimes while pending sentencing for previously committed ones should and will know that it is at least unlikely that the agreed sentencing recommendation for the prior offenses will be made. But we read the statement of defendant on plea of guilty in the light most favorable to the juvenile defendant who is agreeing to waive all rights to have the charge against her proved beyond a reasonable doubt by entering the guilty plea. Although many such documents contain a clause that the State or probation counselor's sentencing recommendation may increase if she commits additional crimes before sentencing, A.R.W.'s plea document promising her local sanctions does not. Accordingly, A.R.W. is entitled to withdraw her plea to the bomb threat charge. State v. Adams, 119 Wn. App. 373, 82 P.3d 1195 (2003) (Inaccurate advice about defendant's eligibility for special sex offender sentencing alternative program materially affected his decision to plead guilty. Thus, defendant was entitled to withdraw his plea.). A.R.W. is not entitled to request specific performance, however. State v. Codiga, 162 Wn.2d 912, 929, 175 P.3d 1082 (2008). The remedy of specific performance presupposes an enforceable plea agreement and, because neither the State nor the probation counselor agreed to make the local sanctions recommendation, no enforceable agreement exists to be specifically performed.
The CrR 4.2(g) form for a written statement of the defendant provides an assumption of risk clause as follows:
If I am convicted of any new crimes before sentencing, or if any additional criminal history is discovered, both the standard sentence range and the prosecuting attorney's recommendation may increase. Even so, my plea of guilty to this charge is binding on me. I cannot change my mind if additional criminal history is discovered even though the standard sentencing range and the prosecuting attorney's recommendation increase or a mandatory sentence of life imprisonment without the possibility of parole is required by law.
CrR 4.2(g)(6)(d); State v. Codiga, 162 Wn.2d 912, 928, 175 P.3d 1082 (2008). The JuCR 7.7 juvenile statement on plea of guilty form's assumption of the risk clause provides in pertinent part: "I understand that if any additional criminal history is discovered, both the standard sentence range and the prosecuting attorney's recommendation may increase. Even so, my plea of guilty to this charge is binding." JuCR 7.7(7). A.R.W.'s form is identical to the JuCR 7.7 form. Cf. State v. Christen, 116 Wn. App. 827, 829, 67 P.3d 1157 (2003) (juvenile defendant's plea form contained an assumption of the risk clause stating that if he were convicted of new crimes before sentencing, or if additional criminal history were discovered before sentencing, his standard range and the prosecutor's recommendation would increase but his plea of guilty would remain binding), review denied, 150 Wn.2d 1027 (2004).
I would reverse and remand with directions that A.R.W. be allowed to withdraw her plea and proceed to trial on the bomb threat charge.
QUINN-BRINTNALL, J.