Opinion
No. 60157-1-I.
January 22, 2008.
Appeal from a judgment of the Superior Court for King County, No. 07-8-01208-9, Philip G. Hubbard, Jr., J., entered June 4, 2007.
Remanded by unpublished per curiam opinion.
N.K. appeals the manifest injustice disposition imposed following his conviction in juvenile court for first degree reckless burning. He argues that statements he made during a psychological evaluation should have been excluded, the court's reasons for imposing a manifest injustice disposition are insufficient and/or tainted by the evaluation, and the length of the disposition is clearly excessive. We remand for further proceedings.
FACTS
In April 2007, the court arraigned N.K. on first degree reckless burning. When counsel indicated the charge involved setting fires in his parents' home, the court asked the parents to comment on whether he should be detained or released pending trial. They told the court that N.K. had always been fascinated by fire. When he was very young and first starting school, he lit Kleenex on fire. He had also lit a trellis on fire in the backyard. The court ordered N.K. detained pending trial.
In May 2007, N.K. pleaded guilty. In his statement on plea of guilty, he admitted he "started a small fire which recklessly damaged property in my parents' home." CP at 16. A certification for probable cause prepared by an assistant fire marshal/fire investigator stated that N.K. told the investigator, "[T]the reason he was lighting fires in his room was he knew his parents would not approve and did not want them to know what he was doing and that it also relaxed him." Clerk's Papers (CP) at 3. N.K. admitted lighting other fires in his room and said, "he would pour some cologne and/or deoderant into a small shot glass and light the vapors." CP at 3. According to his parents, N.K. had also lit fires in the bathroom and had been expelled from school for "burning a note on school grounds, threatening a girl with an immediate abortion and possession of a razor knife." CP at 4. N.K. had also indicated to others that he was going to commit suicide.
At the plea hearing, N.K.'s counsel told the court that a probation officer had ignored N.K.'s invocation of his Fifth Amendment rights and had pressured him into speaking with the original JPC. Counsel moved to exclude any statements N.K. made to that JPC and for the assignment of a new JPC. When the original JPC offered to reassign the case, the court instructed her to do so and to seal her notes from her interview with N.K.
When the case came on for disposition, the new JPC recommended a manifest injustice disposition based in part on a psychological evaluation. Defense counsel moved to exclude the evaluation and the JPC's recommendation, arguing that N.K. did not receive Miranda warnings prior to the evaluation and that he agreed to the evaluation based on an affirmative misrepresentation. Specifically, counsel alleged that during a "conversation" with the new JPC, he had been assured she would not recommend a manifest injustice disposition and would instead seek only local sanctions. Based on that misrepresentation, counsel advised N.K. to submit to the evaluation. Counsel told the court that had he known the JPC might recommend a manifest injustice, he would have advised N.K. to invoke his Fifth Amendment rights and not participate in the evaluation. Counsel argued that given these facts, any waiver of N.K.'s Fifth Amendment rights was involuntary and the court could not consider either the evaluation or the JPC's recommendation. In addition, counsel argued that there was no basis for a manifest injustice disposition.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
In response, the JPC submitted "an e-mail from myself to [defense counsel] regarding what he's talking about." Disposition Hearings (DH) (June 4, 2007) at 24. The e-mail, which is dated two days prior to the evaluation, states that the JPC is "leaning towards" a standard range recommendation. CP at 77. After showing a copy of the e-mail to counsel, the JPC submitted it, without objection, to the court.
By order of the superior court, the e-mail has been "made part of the record for appeal." CP at 76.
Without expressly ruling on the motion to suppress, the court imposed a manifest injustice disposition based on statutory and nonstatutory aggravating factors. In its oral decision, the court stated,
I think this argument about how the psychological evaluation came about is interesting, but the overarching reality is that when the respondent entered his guilty plea, he entered it having been advised that whatever the probation officer's recommendation or the prosecutor's recommendation or the defense recommendation might be, they aren't binding on the court. And that's what I believe to be the controlling factor here.
I think the argument that respondent's Fifth Amendment rights were infringed upon is interesting. I don't know that it was. I don't know that he had a Fifth Amendment right not to talk to the psychologist. I don't believe, however, that particularly in a case where the public safety, the safety of the family members and the safety of the respondent . . ., I don't think that equitably suppressing this kind of information and entering a dispositional order without taking into account the kind of information that is before the court would be irresponsible.
I believe that there is a very significant basis for the JPC's recommendation, and I'm going to follow it.
DH (June 6, 2007) at 29-30. In its written conclusions of law, the court stated,
The court finds that at the time of the plea, [N.K.] knew that the recommendations made by the State, JPC and Defense were not binding on the court. The pleading paperwork indicated at the time of plea that the former JPC was planning on asking for a manifest injustice upward. The Defense raised a 5th Amendment Due Process violation when [N.K.] spoke with a mental health counselor. This court has not made any determination as to whether or not there is indeed a 5th Amendment right to not speak to a mental health counselor for the purposes of disposition treatment based on the argument by counsel.
CP at 35.
The court stated that each of its reasons "standing alone, is sufficient justification for the length of the manifest injustice sentence. . . . In the event that an appellate court affirms at lease one of the substantial and compelling reasons, the length of the sentence should remain the same. . . ." CP at 36.
DECISION
N.K. contends the JPC unlawfully obtained his psychological evaluation and then used it to secure an exceptional sentence. He contends the evaluation and derivative portions of the JPC's recommendation should have been suppressed for two reasons.
First, he contends the JPC did not inform him of his Fifth Amendment rights prior to the evaluation. It is undisputed that N.K. had a Fifth Amendment right to refuse to participate in the evaluation and that unwarned custodial admissions generally may not be used to enhance a juvenile's sentence. There also appears to be no dispute that N.K. received no Miranda warnings prior to his evaluation. But even assuming such warnings were required in this case, it is clear from the record that N.K. was in fact aware of his Fifth Amendment rights and intentionally waived them; therefore, N.K. suffered no prejudice from the alleged omission.
A juvenile has a postadjudication Fifth Amendment right against self-incrimination, State v. N.B., 127 Wn. App. 776, 781, 112 P.3d 579 (2005), and unwarned admissions generally may not be used as the basis for an exceptional sentence. See State v. Diaz-Cardona, 123 Wn. App. 477, 479, 98 P.3d 136 (2004) (juveniles may refuse to participate in sex offender evaluation ordered for disposition purposes); State v. Bankes, 114 Wn. App. 280, 289, 57 P.3d 284 (2002) (adult defendant).
Cf. State v. Earls, 116 Wn.2d 364, 372 n. 4, 805 P.2d 211 (1991) (court may consider defendant's familiarity with police procedures in finding a waiver).
Second, N.K. argues that his waiver was involuntary because it was induced by the JPC's misrepresentation. Alternatively, he contends the State is estopped from asserting a waiver because he relied to his detriment on the JPC's misrepresentation.
We agree that the facts alleged below potentially demonstrate either an involuntary waiver or a basis for estoppel. We also agree that the trial court erred in concluding that it did not need to resolve this issue. As previously noted, the trial court concluded that it could consider the evaluation because N.K. pleaded guilty knowing both that the original JPC planned to recommend a manifest injustice and that the court was not bound by anyone's recommendation. But pleading guilty with such knowledge did not waive N.K.'s right to insist that the JPC's recommendation and the court's disposition be based on lawfully obtained evidence. The trial court therefore erred in denying the motion to suppress the evaluation and other derivative evidence without resolving the dispute as to whether N.K.'s waiver was involuntary.
See State v. Allen, 63 Wn. App. 623, 626, 821 P.2d 533 (1991) (juvenile's waiver not voluntary where "she was led to believe the sole purpose of the questioning was to determine whether a third person could be charged with rape, and this belief was material to her decision to talk."); Miranda, 384 U.S. at 476 ("[A]ny evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege.").
We note that the State does not reassert or attempt to defend the trial court's reasoning on appeal.
Contrary to the State's assertions, this error was not harmless beyond a reasonable doubt. Although the record suggests the sentencing court would have imposed the same sentence in the absence of the psychological evaluation, we cannot say the error was harmless beyond a reasonable doubt. Much, if not most, of the evidence relied on by the JPC and the court came from sources other than the psychological evaluation. But it is undisputed that immediately prior to the evaluation, the JPC was leaning toward recommending a standard range disposition. And while the sentencing judge stated that he did not read the evaluation, he did read the JPC's summary of it and expressly followed the JPC's recommendation. In these circumstances, we are unable to conclude that the alleged error was harmless beyond a reasonable doubt.
Error arising from a Fifth Amendment violation is constitutional error and can be declared harmless only if the reviewing court finds the error harmless beyond a reasonable doubt. State v. Levy, 156 Wn.2d 709, 731-32, 132 P.3d 1076 (2006).
We are also unable to resolve the factual dispute concerning the JPC's alleged misrepresentation. The e-mail from the JPC two days prior to the evaluation indicates that she had not, at that point, ruled out recommending a manifest injustice disposition. On the other hand, defense counsel alleged that he had a "conversation" with the JPC in which she stated she would not be seeking a manifest injustice and would instead request local sanctions. Nothing in the record indicates when this conversation occurred. If it occurred after the e-mail, then N.K.'s waiver may have been induced by a misrepresentation.
The conversation and e-mail appear to have been separate events since counsel specifically recalled the JPC stating in their conversation that she would recommend local sanctions and there is no mention of local sanctions in the e-mail.
Accordingly, we remand for the court to hold a suppression hearing, resolve the factual dispute, and rule on the motion to suppress. If the court denies the motion, then the original disposition stands. If the court grants the motion, then a new disposition hearing must be held.
N.K. also challenges the aggravating factors cited by the court in support of a manifest injustice disposition. We will sustain a manifest injustice 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 on the basis of the remaining valid aggravating factors." Because the trial court made it clear that it would impose a manifest injustice based on any one of the aggravating factors standing alone and because we conclude there were valid aggravating factors, it is unnecessary for us to review all the factors cited by the court.
State v. S.H., 75 Wn. App. 1, 12, 877 P.2d 205 (1994); State v. Campas, 59 Wn. App. 561, 567-68, 799 P.2d 744 (1990).
The trial court found that N.K. "is a threat to community safety and is a high risk to re-offend given that his criminal behavior is escalating from assaultive behavior to very dangerous behavior such as fire starting with potential life-threatening results." CP at 35. The court further found that N.K. "needs structure in order to alter his behavior and receive the treatment he needs." CP at 35. N.K.'s risk of reoffense and need for treatment are valid bases for a manifest injustice disposition and are supported by substantial evidence. N.K. essentially concedes this point but argues that the evidence supporting these aggravating factors and the length of the court's disposition were a product of the alleged violation of his Fifth Amendment and should have been suppressed. As discussed above, resolution of N.K.'s Fifth Amendment claim must await the outcome of the proceedings on remand.
See State v. J.V., 132 Wn. App. 533, 541, 132 P.3d 1116 (2006); State v. T.E.C., 122 Wn. App. 9, 21, 92 P.3d 263 (2004).
Remanded for proceedings consistent with this opinion.