Opinion
No. 64918-3-I.
March 28, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for King County, No. 09-1-03524-1, James D. Cayce, J., entered January 25, 2010.
Affirmed by unpublished opinion per Grosse, J., concurred in by Becker and Spearman, JJ.
The decision to deny a defendant's request for a special sex offender sentencing alterative (SSOSA) is within the discretion of the trial court. That both the mother of victim and the prosecutor supported imposition of a SSOSA does not remove the court's discretion to refuse to impose the alternative sentence when the court followed the procedures outlined in the statute. We affirm the judgment and sentence.
FACTS
Jon Lalum pleaded guilty to two counts of first degree child molestation, committed against his then six-year-old daughter, G.L. The minimum standard range for Lalum's offenses was 67 to 89 months. Pursuant to a plea agreement, the State made the agreed upon recommendation for a six-month suspended SSOSA. G.L.'s mother supported a SSOSA, but also expressed her fears about Lalum's ability to follow through with what was required and worried that Lalum might view the SSOSA as a "free pass of sorts." Additionally, G.L.'s mother expressed her belief that Lalum needed to serve the maximum time before being released into the program.
Because the acts here were so egregious, the court expressed its concern about imposing a SSOSA. The State responded that the evaluator had found Lalum highly amenable to treatment and that immediate treatment was in the interest of the community. The court continued the matter to give both the prosecution and defense an opportunity to bolster their recommendation for a SSOSA. Several studies were presented to the court, and it is evident from the record that the court received and reviewed them. Additionally, the victim's mother again presented her support for a SSOSA. After hearing argument, the court was still concerned with matters that were disclosed in Lalum's evaluation, including his history of viewing child pornography on the computer and his admission to sexually assaulting G.L. on five or six occasions, not just the two he pleaded guilty to. The court noted that the polygraph examination revealed other instances involving other victims. The court refused to impose a SSOSA. Lalum appeals.
ANALYSIS
We review the trial court's denial of a request for a SSOSA sentence for an abuse of discretion. A trial court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds or reasons. RCW 9.94A.670(4) sets forth the procedure the trial court must follow:
State v. Frazier, 84 Wn. App. 752, 753, 930 P.2d 345 (1997).
State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971); State v. Hays, 55 Wn. App. 13, 16, 776 P.2d 718 (1989).
After receipt of the reports, the court shall consider whether the offender and the community will benefit from 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. The court shall give great weight to the victim's opinion whether the offender should receive a treatment disposition under this section. If the sentence imposed is contrary to the victim's opinion, the court shall enter written findings stating its reasons for imposing the treatment disposition. The fact that the offender admits to his or her offense does not, by itself, constitute amenability to treatment. If the court determines that this alternative is appropriate, the court shall then impose a sentence or, pursuant to RCW 9.94A.507, a minimum term of sentence, within the standard sentence range. If the sentence imposed is less than eleven years of confinement, the court may suspend the execution of the sentence as provided in this section.
The record here reveals that the trial court gave consideration to all of the criteria set forth in the statute. The court noted that the crimes committed were egregious. The trial court stated during the sentencing hearing that it had reviewed the materials that both the prosecutor and Lalum had submitted in support of the imposition of a SSOSA. The court also noted that it gave great weight to the victim's mother, but still felt that, on the record before it, a SSOSA was inappropriate. The fact that the victim's mother supported a SSOSA does not override the trial court's discretion to not impose the alternative sentence. The trial court is not required to follow the victim's mother's recommendation, only to consider it. The record clearly shows the trial court considered it and gave great weight to it. Under the circumstances here, the trial court did not abuse its discretion.
Lalum also filed a pro se statement of additional grounds in which he argues that the trial court was not correctly advised regarding the length of confinement it could impose if it granted Lalum a suspended sentence. Both the State and defense counsel correctly informed the court that the statute provided a maximum of 12 months confinement. Lalum argues that this was incorrect because the statute provides that a longer sentence than 12 months (or the maximum term within the standard range) can be imposed where there is a finding of an aggravating circumstances listed in RCW 9.94A.535(3). But here there is no predicate finding of an aggravating circumstance. This issue was not raised below and on the record before us we cannot determine whether such a finding would have been considered.
RCW 9.94A.670(5)(a) provides in pertinent part: "The court may order the offender to serve a term of confinement greater than twelve months or the maximum term within the standard range based on the presence of an aggravating circumstance listed in RCW 9.94A.535(3)."
The remaining grounds addressed in Lalum's statement of additional grounds raise no new issues. Accordingly, we affirm the trial court's judgment and sentence.
WE CONCUR