Opinion
No. 35032-7-II.
May 8, 2007.
Appeal from a judgment of the Superior Court for Wahkiakum County, No. 06-8-00003-1, Michael J. Sullivan, J., entered June 5, 2006.
Reversed and remanded by unpublished opinion per Van Deren, A.C.J., concurred in by Bridgewater and Armstrong, JJ.
After AVR pleaded guilty to one count each of vehicular homicide and vehicular assault, the juvenile court imposed a manifest injustice disposition of 126 weeks of confinement in a Juvenile Rehabilitation Administration (JRA) facility. He appeals, arguing that (1) insufficient evidence supports the court's findings of fact and (2) the length of his disposition was clearly excessive. This court reviewed this matter on AVR's motion for accelerated review pursuant to RAP 18.13. After hearing oral argument, a commissioner of this court referred the appeal to a panel of judges. We conclude that the record does not support the juvenile court's findings. Accordingly, we reverse the manifest injustice disposition and remand for a new disposition hearing before a different judge.
We will use initials to identify the defendant and the victims in this case under this Division's General Order 2006-1 which states "in all opinions, orders, and rulings this Court shall use initials or pseudonyms in place of the juveniles' names and in place of the juveniles' parents' names."
RAP 18.13 states:
(a) Generally. Dispositions in a juvenile offence proceeding beyond the standard range for such offenses, juvenile dependency and termination of parental rights, shall be review on the merits by accelerated review as provided in this rule.
(b) Accelerated Review by Motion. The accelerated review of the disposition shall be done by motion.
Because our conclusion is dispositive of AVR's appeal, we do not reach AVR's second argument.
FACTS
In the early morning hours of February 20, 2006, AVR, then 17 years old, crashed the SUV he was driving with his two friends, RJM and EMP, inside. AVR was intoxicated at the time. RJM died at the scene. EMP sustained severe head trauma and other injuries.
See footnote 1.
The State charged AVR with one count each of vehicular homicide and vehicular assault. The standard range for the vehicular homicide charge was 15 to 36 weeks of confinement. The standard range for the vehicular assault charge was local sanctions. AVR initially entered a plea of not guilty to both charges. Pursuant to RCW 13.40.110(1)(a), the juvenile court set a mandatory decline hearing for April 10, 2006.
Scott Jacot, the probation officer assigned to the case, completed a report in preparation for the decline hearing. The report chronicled AVR's criminal history and social background. Jacot noted that, although AVR had a good relationship with his parents and that he was active in his church's youth group, AVR also had substance abuse issues involving alcohol and marijuana. He never received any counseling or treatment to address these issues. Regarding the current offenses, Jacot opined that AVR "feels very badly about what has happened," Clerk's Papers (CP) at 28, and described AVR as "remorseful." CP at 29. Jacot also noted that the police reports and witness statements about the incident indicated that AVR knew "right away" that he had "done something terribly wrong." CP at 28. Jacot opined that AVR would pose a risk to the community if he continued to use drugs or alcohol, but that his prospects for rehabilitation within the juvenile justice system were good. Jacot recommended that the case remain in juvenile court.
In February 2002, AVR signed a diversion agreement after being charged with minor in possession and supplying liquor to a minor for giving his cousin alcohol in a Pepsi bottle. The agreement required that AVR complete 16 hours of community service and a drug and alcohol evaluation. He completed these requirements in December 2002. In March 2004, AVR signed a diversion agreement after being charged with third degree theft for shoplifting a wallet. This agreement required that AVR complete 16 hours of community service and that he write a letter of apology to the store. He completed these requirements in August 2004. AVR was not assigned to probation for either of these offenses.
Before the decline hearing took place, however, AVR agreed to plead guilty to both charges and the State agreed not to pursue the decline hearing. The parties' agreement also provided, among other things, that:
[AVR] and State jointly agree to a manifest injustice sentence of 82.4 to 103 weeks in JRA + 12 months community supervision with standard substance abuse/alcohol conditions upon release from JRA;
[AVR] agrees not to appeal manifest injustice sentence in the range specified . . . above, [AVR] retains the right to appeal a manifest injustice sentence higher than that specified . . . above.
CP at 42.
AVR pleaded guilty to each offense on May 22, 2006. At the disposition hearing, the State recommended that the court sentence him to 103 weeks of confinement followed by 12 months of community supervision. Jacot joined the State's recommendation. The defense requested that the court "abide by the agreed recommendation." Report of Proceedings (RP) (June 5, 2006) at 8.
Leanne Grasseth, a prevention specialist at an area high school, spoke on AVR's behalf. She said that, at her request, AVR spoke at the high school about the incident. She also told the court:
If you want to know if he has any remorse. Definitely. His voice was cracking the whole time. He couldn't keep a straight face. It was awful for him to go through. We lived it from the beginning all the way to the end and I want you to know that he does have remorse.
RP (June 5, 2006) at 13.
The kids [at the high school] are coming up to me talking about, you know, I learned something from him. And it wasn't for the benefit of him at all, it was to get some points across to these kids that the choices they're making can affect everybody's life forever.
RP (June 5, 2006) at 14.
RJM's father also addressed the court. He described the impact RJM's death had on their family and said that RJM's mother had twice attempted suicide. The court noted that it received and read letters from both victims' families and friends.
AVR addressed the court as follows:
THE COURT: Young man, first I'm going to ask you not to face me but to face the families.
[AVR]: Words can't even begin to describe how sorry I am. I'm going to do my time and devote my life to [RJM]. I owe him.
THE COURT: Young man, if you're going to address the families, I would ask you to have the courtesy to raise your eyes and look at them.
[AVR]: I've taken from you guys. I can't give back. I'm indebted to you guys. I owe my life to you guys. I can't take back what I did.
RP (June 5, 2006) at 58.
The court imposed a manifest injustice sentence of 126 weeks. In its oral ruling, the court noted that it was "disappointed with" AVR because he "did not somehow force [him]self to continue to look at" the victims' families when he addressed them. RP (June 5, 2006) at 63 The court continued:
I think that was the least you owed them was to look at them in spite of how bad it may have hurt you or how bad you may feel at this time. I'm disappointed that you chose not to or weren't able to put aside your suffering and anguish and respect the families enough to look at them while you were talking to them.
. . . .
I'm just not impressed with — [AVR], with what you had to say. Also — that's why I'm finding it.
RP (June 5, 2006) at 63-65. The court also noted that it did not appear that AVR "learned something" from the 2002 diversion agreement. RP (June 5, 2006) at 65. Finally, the court said that a lesser sentence would not "instill confidence in the system," RP (June 5, 2006) at 67, and that the "severe impact and tragedy to the families mandates a sentence more strict than what was agreed to." RP (June 5, 2006) at 68.
The court entered the following written findings of fact:
1.1 [AVR] has a recent criminal history, to-wit: 2-17-02 MIP and diversion as to an alcohol offense. This shows a continuing pattern of abuse of alcohol and lack of rehabilitation.
1.2 [AVR], by his actions, including his statements in Open Court, has shown that he does not have genuine remorse over his conduct.
1.3 The sentence of 103 weeks as recommended by the State and Respondent is not high enough to instill public confidence in the efficacy of the Juvenile Justice System, given the enormity of the harm caused by Respondent's actions.
1.4 The actions of [AVR], have resulted in severe emotional impact to the families of the victims, to an extent greater than that normally associated with the offenses involved in this case.
CP at 76.
The court also made the following conclusion of law: "[t]here is a high risk that this juvenile will reoffend as evidenced by the juvenile's prior history." CP at 77. AVR appeals.
ANALYSIS
A juvenile court may impose a disposition outside the standard range if it determines a disposition within the standard range would effectuate a manifest injustice. RCW 13.40.160(2). '"Manifest injustice"' means a disposition that "would impose a serious, and clear danger to society." RCW 13.40.020(17); State v. Ogden, 102 Wn. App. 357, 363, 7 P.3d 839 (2000). When reviewing a manifest injustice disposition, this court must determine whether: (1) the record supports the reasons given by the trial court in sentencing outside the standard range; (2) those reasons clearly and convincingly support the trial court's conclusions that a sentence within the standard range would result in manifest injustice; and (3) the disposition was neither too excessive nor too lenient. RCW 13.40.230(2); Ogden, 102 Wn. App. at 363. A "finding of manifest injustice shall be supported by clear and convincing evidence." RCW 13.40.160(2).
AVR argues that the record does not support the juvenile court's findings of fact that (1) he had a recent criminal history that demonstrated a pattern of alcohol abuse and his lack of rehabilitation; (2) he showed a lack of remorse; and (3) his actions severely impacted the victims' families. The State responds that clear and convincing evidence supports all of the court's findings. This court will uphold the juvenile court's findings unless they are '"clearly erroneous."' State v. P.B.T., 67 Wn. App. 292, 301, 834 P.2d 1051 (1992) (citations omitted).
I. Recent Criminal History
The juvenile court's finding that AVR's 2002 diversion constituted a recent criminal history that showed a continuing pattern of abuse of alcohol and lack of rehabilitation is not supported by the record. The single event underlying the 2002 offenses does not give rise to a "continuing pattern" of behavior. CP at 76. Moreover, Jacot's report indicated that, although AVR completed a drug and alcohol evaluation in 2002 as part of the agreement, he never received any treatment. He has not received any treatment, nor has any treatment been recommended for him, since. As a result, the juvenile court's findings that AVR had a recent criminal history and failed to rehabilitate are clearly erroneous.
The juvenile court also found that AVR posed a high risk to re-offend based on his prior history. But there is no evidence in the record to support this finding. Indeed, Jacot noted in his report that AVR's prospects for rehabilitation were good. The State did not present any evidence to rebut Jacot's conclusion nor did it present any other evidence that AVR posed a risk to re-offend. The court's finding to that effect is, thus, clearly erroneous.
"A finding erroneously labeled a conclusion of law is reviewed as a finding of fact." State v. Wood, 57 Wn. App. 792, 799 n. 4, 790 P.2d 220 (1990) (citing Willener v. Sweeting, 107 Wn.2d 388, 730 P.2d 45 (1986)).
II. Lack of Remorse
The juvenile court's finding that AVR demonstrated a lack of remorse is not supported by the record. To be considered an aggravating factor, a respondent's "lack of remorse must be aggravated or egregious." State v. Garibay, 67 Wn. App. 773, 781, 841 P.2d 49 (1992). Both Jacot and Grasseth described AVR's remorse about the incident. The State presented no evidence to the contrary. The court's statements indicate that it found AVR's inability to look at the victims' families as he apologized to them significant in concluding that he lacked remorse. Even if that behavior indicated a lack of remorse, it was not so egregious to support an exceptional sentence. See Garibay, 67 Wn. App. at 781. The juvenile court's finding that AVR showed a lack of remorse is, thus, clearly erroneous.
III. Impact on Families
The juvenile court's finding that AVR's actions severely impacted the victims' families presents a closer question. To be considered an aggravating factor, an offense's impact on those other than the victims must be (1) distinctive in a "manner not usually associated" with the offense and (2) foreseeable to the respondent. State v. Way, 88 Wn. App. 830, 834, 946 P.2d 1209 (1997). Here, the victims' families described the impact the incident had on their lives in letters to the court and in oral testimony at the disposition hearing. But the State presented no evidence demonstrating that the families' reactions were unusual for these offenses. Nor did it present any evidence that AVR could have foreseen the families' reactions. Even assuming the court's finding is supported by the record, we must determine whether that finding alone justifies the manifest injustice disposition. See State v. Payne, 58 Wn. App. 215, 221-22, 795 P.2d 134 (1990). After a careful review of the record, we cannot say that a finding of this single aggravating factor justifies the imposed manifest injustice sentence in light of AVR's stipulation to a manifest injustice sentence of 82.4 to 103 weeks in JRA when the standard range sentence was 15 to 36 weeks.
The juvenile court also found that a sentence of 103 weeks of confinement was not high enough to instill public confidence in the juvenile justice system, based on the enormity of the harm AVR's actions caused. It appears that the court based this finding on the emotional impact on the victims' families. As explained above, we are unable to conclude that such consideration alone supports the trial court's exceptional sentence beyond the agreed manifest injustice disposition.
CONCLUSION
In sum, the juvenile court's findings that AVR showed a lack of remorse, that his criminal history demonstrates a pattern of alcohol abuse and a lack of rehabilitation, and that he poses a high risk to re-offend are not supported by the record. We are unable to say that the court would have imposed the same sentence relying solely on the finding that AVR's actions severely impacted the victims' families. Accordingly, we reverse the trial court's manifest injustice disposition and remand for a new disposition hearing before a different judge.
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.
We concur:
Bridgewater, J.
Armstrong, J.