Opinion
No. 51875-5-I.
Filed: May 24, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-8-01877-9. Judgment or order under review. Date filed: 02/14/2003. Judge signing: Hon. Leroy McCullough.
Counsel for Appellant(s), Maureen Marie Cyr, Washington Appellate Project, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Counsel for Respondent(s), Andrew C. Herman, Attorney at Law, King Co Courthouse W554, 516 3rd Ave, Seattle, WA 98104-2385.
The trial court found K.R. guilty of one count of rape of a child in the first degree. It imposed a manifest injustice disposition, suspended it, and imposed a special sexual offender disposition alternative (SSODA). The terms of the SSODA required that K.R. serve it in a residential sexual offender treatment facility. The trial court also ordered that if a suitable placement for K.R. were not found within 6 to 8 weeks, the SSODA would be revoked and the manifest injustice disposition reinstated. The court revoked K.R.'s SSODA approximately three months after granting it on the grounds that K.R. had not found a suitable placement, and reinstated his manifest injustice disposition. K.R. appeals. We affirm.
FACTS
While visiting the home of his 9- or 10-year-old victim, K.R. offered her some marijuana and threatened to kill her family if she did not comply with his demand that she perform oral sex on him. When K.R.'s victim refused, he told her he would kill her first if she did not comply. On October 2, 2002, K.R. pleaded guilty to one count of rape of a child in the first degree.
Subsequent to being charged, K.R. underwent a sexual deviancy evaluation conducted by Dr. Dan Knoepfler. In his evaluation, Dr. Knoepfler stated that K.R. was at a moderate to high risk to reoffend, needed long-term treatment, had substance abuse problems, and experienced a profound lack of parental control. Dr. Knoepfler recommended a manifest injustice disposition. He recommended a special sexual offender disposition alternative (SSODA) for K.R., only if K.R. were able to serve it in a facility offering sexual offender treatment. Dr. Knoepfler also noted in his evaluation that if a placement at a residential treatment facility could not be found within 6 to 8 weeks, K.R. should receive his treatment in a secure Juvenile Rehabilitation Administration (JRA) facility.
Like Dr. Knoepfler, Lynda Stone, K.R.'s juvenile probation counselor (JPC), recommended a manifest injustice disposition of 103 to 129 weeks. Stone also recommended that the manifest injustice disposition be suspended and that K.R. be granted a SSODA only if a placement at a treatment facility were found within a reasonable amount of time. On March 3, 2002, the trial court ordered a manifest injustice disposition of 103 to 129 weeks, suspended it, and then ordered a SSODA. Discussing K.R.'s impending sentence at a February 2002 hearing, the trial court stated that the SSODA would be revoked and the manifest injustice disposition reinstated if a suitable placement were not found within 6 to 8 weeks.
The standard range disposition for K.R.'s conviction is 15 to 36 weeks.
K.R. sought help from TeamChild to obtain a placement at a residential treatment facility, and TeamChild's attorneys helped him file a dependency petition.
"The primary purpose of a dependency adjudication is to allow [the] court to order remedial measures to preserve and mend family ties, and to alleviate the problems which prompted the State's initial intervention." In re Dependency of A.W., 53 Wn. App. 22, 27, 765 P.2d 307 (1988).
At a review hearing in April 2003, the trial court deferred its decision on whether K.R.'s SSODA should be revoked pending the outcome of K.R.'s dependency petition. On May 7, when the trial court learned that K.R.'s dependency petition had not yet been granted or denied, it vacated K.R.'s SSODA and reinstated his manifest injustice disposition. K.R. appeals his manifest injustice disposition and the revocation of his SSODA.
ANALYSIS I. Manifest Injustice Disposition
K.R. asserts that two aggravating factors relied upon by the trial court do not support his manifest injustice disposition and, therefore, his manifest injustice disposition must be reversed.
A court may impose a sentence outside the standard range for a juvenile offender if it determines that a sentence within the standard range would "effectuate a manifest injustice." RCW 13.40.160(2); State v. Beaver, 148 Wn.2d 338, 345, 60 P.3d 586 (2002). "`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 of 1977]" (JAA). State v. Moro, 117 Wn. App. 913, 73 P.3d 1029 (2003); RCW 13.40.020(17). These purposes include protecting the citizenry from criminal behavior; making the juvenile accountable for his or her criminal behavior; providing for punishment commensurate with the age, crime and criminal history of the juvenile; and providing necessary treatment, supervision, and custody of juvenile offenders. RCW 13.40.010(2)(a), (c), (d), (f).
To impose a manifest injustice disposition, the court must have "clear and convincing evidence" that a disposition within the standard range would be clearly excessive or clearly too lenient. RCW 13.40.160(2); State v. M.L., 134 Wn.2d 657, 660, 952 P.2d 187 (1998). It is clearly excessive "`only when it cannot be justified by any reasonable view which may be taken of the record.'" State v. Tauala, 54 Wn. App. 81, 87, 771 P.2d 1188 (1989) (quoting State v. Strong, 23 Wn. App. 789, 794-95, 599 P.2d 20 (1979)). In determining the appropriate disposition, a trial court may consider both statutory and non-statutory aggravating factors, including that the juvenile is at a high risk to reoffend. State v. S.H., 75 Wn. App. 1, 11, 877 P.2d 205 (1994), rev. denied, 125 Wn.2d 1016, 890 P.2d 20 (1995). A lack of parental/family control may also be an aggravating factor. State v. N.E., 70 Wn. App. 602, 604, 854 P.2d 672 (1993). It is also proper for the trial court to consider a juvenile's need for treatment in relation to a manifest injustice determination. Tauala, 54 Wn. App. at 87. "[A]n extended period of structured residential care and specialized treatment" may be appropriate where a juvenile is considered a high risk to reoffend. State v. J.N., 64 Wn. App. 112, 114-15, 823 P.2d 1128 (1992).
Under RCW 13.40.230, an appellate court may uphold a manifest injustice disposition if it finds that: (1) the disposition court's reasons are supported by the record; (2) those reasons clearly and convincingly support the conclusion that a disposition within the standard range would constitute a manifest injustice; and (3) the sentence is neither clearly too lenient nor clearly too excessive. RCW 13.40.230(2)(a), (b). "To withstand review, `the standard range for this offense and this defendant must present, beyond a reasonable doubt, a clear danger to society.'" J.N., 64 Wn. App. at 114 (quoting State v. Rhodes, 92 Wn.2d 755, 760, 600 P.2d 1264 (1979).
The court's findings of fact are reviewed under a clearly erroneous standard and will be reversed only if "no substantial evidence supports its conclusion." Whether an aggravating factor justifies a departure from the standard range is a question of law.
"An aggravating factor is legally adequate to justify a sentence outside of the standard range as long as the aggravating factor was not necessarily considered by the Legislature in establishing the standard range, and as long as the asserted aggravating factor is sufficiently `substantial and compelling to distinguish the crime in question from others in the same category.'"
S.H., 75 Wn. App. at 9 (internal citations omitted).
In this case, the trial court's "Findings of Fact" included the following:
3. The court finds that [K.R.] has a high risk of reoffense and is a threat to community safety. [He] has a previous conviction for Assault in the Fourth Degree with Sexual Motivation. Further, [he] has not adjusted to past punishment meted out to him. While previously committed to [JRA, he] had numerous write ups for rule violations.
4. The court finds [K.R.] has a need for treatment. [He] desperately needs both sexual offender treatment and substance abuse treatment. [Dr.] Knoepfler recommended two years of sex offense specific treatment in a structured program that can monitor [him] at all time. While [he] received sporadic treatment for sexual abuse between the ages of 5-10, since then [he] has had no effective drug and alcohol treatment and no sex offender treatment. Further, [he] received hospital care twice in the past for overdoses.
5. The court finds the offense was committed in an especially heinous, cruel, or depraved manner. The court finds that [K.R's] exposure of the victim to drugs before commission of the offense supports this statutory factor.
6. The court finds [that K.R.] has other complaints, which have resulted in a finding or plea of guilt but are not included as criminal history. The court reviewed [his] criminal history, attached as Appendix E to the [S]tate's brief.
7. The court finds there is a lack of parental control. [K.R.] left the care of his mother in 1993 and resided with his father. In 1998, [he] returned to the care of his mother. In June of 2000, [he] was returned to his father's care because his mother could not control him. [His] father professes to current use of marijuana.
(Emphasis added).
In its "Conclusions of Law," the trial court noted that a standard range sentence was too lenient and did not adequately protect society. K.R. maintains that the trial court erred in determining that his need for treatment is a valid aggravating factor. He acknowledges that a need for treatment may be a valid aggravating factor in some cases. He also concedes that the record supports the court's finding of a need for treatment. Relying upon S.H., however, K.R. contends that "the record must indicate that . . . treatment is available and will continue for the duration of the disposition" in order for a need for treatment to be a valid aggravating factor.
The first question is whether treatment is available. The record does not contain direct evidence from JRA describing the nature of treatment available to K.R. at its facilities. It is clear from Dr. Knoepfler's report that he understands the availability of and differences in the treatment offered at community-based structured residential programs like Griffin House and Ruth Dykeman, and sex offender programs in a secure JRA facility. He stated K.R. would probably best be served through placement in one of the sex offender programs in a secure JRA facility. We are satisfied in this context with the inference on this record that such a program with adequate treatment for K.R. existed or Dr. Knoepfler would not have made that recommendation.
The trial court relied heavily on Dr. Knoepfler's recommendation in granting the manifest injustice and committing K.R. to JRA. Such an action is inconsistent with an inference that the court was not satisfied that treatment was available at JRA. K.R.'s counsel acknowledged his need for treatment and pushed to have K.R. treated in the community.
We would also expect that K.R.'s counsel would have objected to the manifest injustice disposition on the basis that the unavailability of adequate treatment at JRA had not been established. Failure to offer evidence in the face of the objection that adequate treatment at JRA was unavailable would surely have strengthened counsel's argument that a residential treatment facility would have been the only option. Yet K.R.'s counsel did not make such an argument. Counsel's silence is incongruous with an inference on this record that adequate treatment was unavailable at JRA. Further, we note that K.R.'s counsel acknowledged at the disposition hearing that adequate treatment was available at JRA and in the community. Counsel did so in the context of arguing in favor of a standard range disposition. However, the manifest injustice disposition implicates the duration of treatment, not its adequacy.
Where concern has been expressed about the availability or appropriateness of treatment for the offender, we would require a formal showing on the record to be satisfied that appropriate treatment is available. While we could return the case to the trial court for a new disposition hearing at which a clearer record could be made that adequate treatment is available at JRA, we do not believe any change in disposition would result. K.R.'s interests are adequately protected by his ability to file a Personal Restraint Petition if in fact he does not receive adequate treatment. We conclude that the record, though sparce, is sufficient to establish that JRA could provide adequate treatment for K.R
The second question is whether treatment will continue for the duration of the disposition. This requirement contemplates only that the confinement imposed for treatment not be longer in duration than the actual course of treatment. See State v. P., 37 Wn. App. 773, 779, 686 P.2d 488 (1984). Here, the trial court correctly imposed a disposition for the same period that treatment was ordered to be provided.
Therefore, we conclude the record is sufficient to indicate that treatment was available and would continue for the duration of the disposition. In conjunction with the acknowledged need for treatment for K.R., it properly demonstrates that the need for treatment was a valid aggravating factor supporting a manifest injustice disposition.
K.R. also assigns error to Finding of Fact 5 because he did not commit his offense in "an especially heinous, cruel, or depraved manner." He maintains that "offering . . . marijuana" to his victim prior to his offense was not "sufficiently substantial and compelling to distinguish the crime . . . from others in the same category."
"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. Ogden, 102 Wn. App. 357, 364, 7 P.3d 839 (2000) (quoting State v. Payne, 58 Wn. App. 215, 220, 795 P.2d 134, 805 P.2d 247 (1990)). The record does not support the trial court's conclusion that K.R. committed his offense in a heinous, cruel, or depraved manner. The contrast between K.R.'s commission of his offense, and the commission of offenses in other juvenile cases wherein the court has found the offenses to be heinous, cruel, or depraved, is substantial and illustrates that K.R.'s offense does not rise to the level of being heinous, cruel, or depraved. Cf., State v. E.A.J., 116 Wn. App. 777, 67 P.3d 518 (2003), rev. denied, State v. Jacobson, 150 Wn.2d 1028, 82 P.3d 243 (2004) (A 14-year-old offender choked a 5-year-old victim until she passed out, and then raped her after he thought she was dead.); Ogden, 102 Wn. App. at 365 (teenage offender repeatedly knocked homeless victim over head until he fell to the ground, stabbed him multiple times, witnessed him bleed to death, and then carved an incision on his eyelid); S.H., 75 Wn. App. at 10-11, (depravity was a valid aggravating factor where "crime was committed in a forcible and maniacally obsessive manner" and offender had to be physically pulled off of victim). K.R. offered his young victim marijuana, but the record does not indicate that it rendered her less able to resist the rape, or that it contributed to the completion of the crime. Although K.R.'s "exposure of [his] victim to drugs before commission of the offense" was criminally reprehensible, it does not rise to the level of being heinous, cruel, or depraved.
Although Finding of Fact 5 is an invalid aggravating factor, striking it does not invalidate the manifest injustice disposition. S.H., 75 Wn. App. at 12. K.R.'s manifest injustice disposition is supported by four other aggravating factors. "This court can affirm a manifest injustice finding 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 on the basis of the remaining valid aggravating factors." S.H., 75 Wn. App. at 12. The remaining four aggravating factors cited by the trial court are valid, supported by substantial evidence, and clearly and convincingly support the imposition of a manifest injustice disposition. We conclude the trial court would have entered the same manifest injustice disposition based on these remaining factors. The trial court did not abuse its discretion when it imposed a manifest injustice disposition.
II. SSODA
K.R. asserts that the trial court erred when it revoked his SSODA on the grounds that a suitable placement had not been found.
When sentencing a juvenile offender under . . . (JJA), [chapter] 13.40 [RCW], the court may in appropriate cases suspend the juvenile's disposition and impose a [SSODA]. RCW 13.40.160(5). An [sic] SSODA disposition places the juvenile on community supervision and ordinarily includes a number of conditions. State v. Hayden, 72 Wn. App. 27, 30, 863 P.2d 129 (1993).
RCW 13.40.160(3), which authorizes a SSODA, states in part:
(3) When a juvenile offender is found to have committed a sex offense . . . the court, on its own motion or the motion of the state or the respondent, may order an examination to determine whether the respondent is amenable to treatment.
. . . .
The examiner shall assess and report regarding the respondent's amenability to treatment and relative risk to the community. A proposed treatment plan shall be provided and shall include, at a minimum:
(a)(i) Frequency and type of contact between the offender and therapist;
(ii) Specific issues to be addressed in the treatment and description of planned treatment modalities;
(iii) Monitoring plans, including any requirements regarding living conditions, lifestyle requirements, and monitoring by family members, legal guardians, or others;
(iv) Anticipated length of treatment; and
(v) Recommended crime-related prohibitions.
"The decision to grant or deny a SSODA lies wholly within the discretion of the trial court, and [this court on appeal] review[s] its decision only for abuse of discretion." State v. L.W., 101 Wn. App. 595, 599, 6 P.3d 596 (2000). The court reviews issues of law de novo. State v. McCormack, 117 Wn.2d 141, 143, 812 P.2d 483 (1991), cert. denied, McCormack v. Washington, 502 U.S. 111, 112 S.Ct. 1215, 117 L.Ed.2d 453 (1992). Issues of statutory construction are also reviewed de novo. McFreeze Corp. v. State, Dep't of Revenue, 102 Wn. App. 196, 198, 6 P.3d 1187 (2000).
Relying upon RCW 13.40.160(3)(b)(ix), K.R. asserts that the trial court acted outside its statutory authority when it revoked his SSODA. RCW 13.40.160(3)(b)(ix) states:
If the offender violates any condition of the disposition or the court finds that the respondent is failing to make satisfactory progress in treatment, the court may revoke the suspension and order execution of the disposition or the court may impose a penalty of up to thirty days' confinement for violating conditions of the disposition. The court may order both execution of the disposition and up to thirty days' confinement for the violation of the conditions of the disposition. The court shall give credit for any confinement time previously served if that confinement was for the offense for which the suspension is being revoked.
K.R. reasons that because RCW 13.40.160(3)(b)(ix) does not expressly provide that a SSODA may be revoked on the grounds that a placement is unavailable, the trial court erred in revoking his SSODA when it determined that a placement in a treatment facility was unavailable. We disagree. RCW 13.40.160(3)(b)(ix) delineates specific bases authorizing the trial court to revoke a SSODA. By definition, however, a juvenile offender must actively participate in a sexual offender treatment program in order to receive a SSODA. Thus, RCW 13.40.160 is predicated on an assumption that a viable treatment program for a juvenile offender granted a SSODA is in place. Under RCW 13.40.160, if a juvenile offender is not participating in a qualified treatment program, the trial court has the authority to revoke the SSODA disposition. In this case, a qualified treatment program was unavailable. Thus, albeit through no fault of his own, K.R. clearly was unable to "make satisfactory progress in treatment" as required under RCW 13.40.160(3)(b)(ix). The trial court was not required to grant a SSODA and leave it in place absent a placement, nor to withhold its order until a placement was immediately available. The method used by the trial court provided ample time to arrange a SSODA and authorized a SSODA in the event that a placement became available. Accordingly, the trial court did not exceed its authority when it revoked K.R.'s SSODA.
"[A] juvenile offender is entitled to credit for time spent in detention prior to a dispositional order. . . ." RCW 13.40.160(8). The trial court, in setting the reasonable time period, must be cognizant that a juvenile offender will spend that period of time in detention or another facility while awaiting a placement. The time a juvenile offender spends in detention will be credited against the disposition and may shorten the treatment time available. For example, the ten months that K.R. spent in detention while awaiting his final disposition is time that will be unavailable for treatment once he is sent to a JRA facility.
The trial court was not required to grant a SSODA and leave it in place absent a placement, nor to withhold its order until a placement was secured. The method used by the trial court made K.R.'s manifest injustice disposition clear. It provided a reasonable amount of time to arrange a SSODA and authorized a SSODA in the event that a placement became available.
K.R. also argues that the trial court's revocation of his SSODA solely because of a lack of placement contravenes RCW 13.40.150(5). RCW 13.40.150(5) provides that "[a] court may not commit a juvenile to a state institution solely because of the lack of facilities, including treatment facilities, existing in the community." RCW 13.40.150(5).
K.R. was committed to JRA under a manifest injustice disposition based on his high risk to reoffend, his need for treatment, and a lack of parental control. This commitment was not solely for lack of treatment facilities in the community and did not contravene RCW 13.40.150(5). The subsequent suspension of this commitment for entry of a SSODA was a discretionary act which presupposed the availability of a treatment placement in the community. When the treatment bed was not available as contemplated, neither safety concerns nor treatment could be assured in the community. The trial court properly reversed the order suspending the commitment. This action is not contrary to RCW 13.40.150(5). It merely reinstated the original commitment which was properly ordered. Accordingly, the trial court did not abuse its discretion when it vacated K.R.'s SSODA and reinstated his manifest injustice disposition.
K.R. also raises an equal protection claim. The equal protection clauses of the state and federal constitutions require that similarly situated individuals receive like treatment under the law. The record is not clear that a private placement was available if K.R. had the financial means to pay for it. However, we assume his equal protection claim is based on his belief that his SSODA was revoked because of his indigence and that he would have secured a private placement if he had the funds for one. Juveniles are neither a suspect class nor semi-suspect class for equal protection purposes. State v. Schaaf, 109 Wn.2d 1, 19, 743 P.2d 240 (1987). The decision to grant a SSODA is discretionary and reserved for appropriate cases. RCW 13.40.160; L.W., 101 Wn. App. at 599. A SSODA does not implicate a fundamental right. Because neither a fundamental right nor a suspect class is implicated in K.R.'s argument, the statute must merely satisfy the rational basis test to comply with the equal protection clause. L.W., 101 Wn. App. at 606. "`[T]he law must be rationally related to a legitimate state interest, and will be upheld unless the classification rests on grounds wholly irrelevant to the achievement of a legitimate state objective.'" L.W., 101 Wn. App. at 606 (quoting DeYoung v. Providence Med. Ctr., 136 Wn.2d 136, 144, 960 P.2d 919 (1998)).
K.R. states in his Supplemental Brief that the revocation of his SSODA violated his due process rights, but he does not argue the issue.
The United States Constitution, amendment XIV, section 1, states that "[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The Washington State Constitution, article I, section 12, states that "[n]o law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations."
K.R. does not argue that if only state-funded placements were allowed under the statute, but that all were filled when he applied, then denial of placement under the statute would violate his equal protection rights. Rather, he argues that because qualified SSODA petitioners may be placed in private pay facilities when available, but K.R. could not afford to pay for such a placement, the refusal of the trial court to grant the SSODA and pay for the private placement violates equal protection.
The state has a legitimate interest in using private pay treatment facilities in treating juvenile offenders. Each juvenile who pays privately for treatment reduces the demand on the public purse for funding treatment of juveniles in JRA facilities and in other state-funded placements. The use of private pay placements enhances rather than limits the access of juveniles situated similarly to K.R. to state-funded treatment placements. The equal protection clause is not violated by the application of the SSODA statute to juveniles who cannot afford a private pay placement.
Accordingly, we conclude that K.R.'s right to equal protection was not violated when the trial court revoked his SSODA upon learning that he had not secured a placement within a reasonable time following his disposition.
We affirm.
ELLINGTON and BAKER, JJ., concur.