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State v. Smalley

The Court of Appeals of Washington, Division One
Aug 27, 2007
140 Wn. App. 1019 (Wash. Ct. App. 2007)

Opinion

No. 57462-1-I.

August 27, 2007.


Michael Smalley challenges the sentencing court's decision to reject his request for a Special Sex Offender Sentencing Alternative (SSOSA). Smalley claims the court incorrectly relied on the current version of the SSOSA statute, RCW 9.94A.670, rather than former RCW 9.94A.120 and former RCW 9.94A.670, by giving "great weight" to the victim's position about whether to impose a SSOSA. Because the legislature in former RCW 9.94A.120 and former RCW 9.94A.670 also required the court to consider the victim's opinion in deciding whether to impose a SSOSA sentence, we disagree with Smalley's argument and affirm.

Smalley also challenged the sentencing court's decision to impose an indeterminate sentence and community custody under RCW 9.94A.712, and the court's finding that Count v occurred between April 27, 2000 to April 26, 2002. After filing his appeal, the sentencing court amended the judgment and sentence to correct the errors. In February 2007, this court granted the State's motion to enter the amended judgment and sentence.

FACTS

In spring 2004, 16 year-old K.B. told her school counselor that her stepfather, Michael Smalley, had sexually abused her since she was ten years old. Smalley was charged with fourteen different counts of rape, child molestation, and incest alleged to have occurred between 1998 and 2004.

In June 2005, Smalley pleaded guilty to rape of a child in the first degree, (Count I) occurring between April 27, 1998 and April 26, 2000, and rape of a child in the second degree (Count V) occurring between April 27, 2000 and April 26, 2002. In the Statement of Defendant on Plea of Guilty to Sex Offense, Smalley states in his own words that: "[b]etween April 27, 1998 and April 26, 2000, I had sexual intercourse with K.B. who was less than 12 years old. Between April 27, 2000, and August 29, 2001, I had sexual intercourse with K.B. who was between 12 and 14 years old." In exchange for Smalley's agreement to plead guilty, the State agreed to dismiss the other 12 counts and recommend a SSOSA subject to a number of conditions.

In February 2004, Dr. William H. Coleman completed a sexual deviancy evaluation and concluded Smalley was amendable to treatment but expressed a number of concerns. Dr. Coleman concluded that Smalley may suffer from a personality disorder. In assessing Smalley's risk for reoffense, Dr. Coleman said that if Smalley suffered from a personality disorder, there would be a significant risk of reoffense without specialized treatment. The tests Dr. Coleman administered also revealed that Smalley was rebellious and unwilling to conform to rules, had problems with anger and addiction, and his explosive anger scale was elevated.

In the Department of Correction's (DOC) presentence investigation report, DOC recommended against a SSOSA based on Smalley's "substance abuse, anger issues and criminal history," and noted the concerns outlined in Dr. Coleman's report. In addition, the DOC presentence report described the devastating impact of the long-time abuse on the victim, and Smalley's inability to empathize.

In 1975, Smalley was convicted of armed robbery while in South Dakota. Smalley also had a number of other misdemeanor convictions, including assault and driving while under the influence from 1979-1992.

Smalley abused the victim for six years about 200 times. She would tell him to stop at times and he would continue. The victim said SSOSA doesn't make up for the six and one-half years of what Smalley did to her. She said, `I want a punishment that fits the pain and suffering I felt.'

Although Smalley presented as very remorseful about the offense[,] his behavior in his marriage and with the victim lead one to question if he has the ability to empathize with others. His anger and central control issues appear deep-seated and I question whether he has any motivation to change his abusiveness. In my opinion, he appears too high a risk to place on the SSOSA program given his substance abuse, anger issues and criminal history.

At the sentencing hearing on November 21, 2005, the prosecutor acknowledged the conflicting recommendations from Dr. Coleman and DOC, but consistent with the plea agreement the prosecutor recommended that the court impose a SSOSA.

K.B and her mother, Darla Smalley, each asked the court to reject Smalley's request for a SSOSA. Darla described Smalley's anger and his need to control her and her children. Darla also questioned Smalley's remorse, saying he was "the master of manipulation." Darla told the court that no matter what punishment was imposed,

I do know there won't be any comparison to what we will endure possibly for the rest of our lives, not to mention the long-term effect and scarring this has caused all of us. Mike is a walking timebomb waiting to explode. I'm afraid of what he is capable of doing.

When K.B. addressed the court, she described Smalley's ongoing sexual abuse of her for six and one-half years, and his violent mood swings. K.B. also described an incident when "he told my mom if she called the police, that she'd better have them send an ambulance, because she would be dead before they even arrived." K.B. told the court that following her disclosure of the sexual abuse, she went from being an honor student with a 3.9 grade point to an at-risk youth with a 1.7 grade point. K.B. said skipped school, got into fights, and cut herself because of the emotional pain she was experiencing. K.B. concluded by telling the court that:

[i]f there is one thing, I know it's that no matter what sentence Mike receives today, it's never going to come close to the six and a half years I had to live in fear, confusion, and terrible loneliness, so that's why I look to you, Your Honor, to hopefully make the punishment close to the pain he caused in committing the crime.

Smalley apologized and expressed remorse for what he had done. But he said that he had changed while in jail, that he was learning to control his anger and he asked the court to impose a SSOSA.

The court stated that it must first consider whether the offender and the community would benefit from a SSOSA. In analyzing that question, the court described the long-term and recurring nature of the offense and its significant impact on the victim. The court also stated that although Dr. Coleman concluded Smalley was amenable to treatment, his report noted some significant concerns related to Smalley's risk factor and risk level. When the court then quoted the statutory requirement to consider the victim's opinion and give it "great weight", defense counsel reminded the court that Smalley was being sentenced under the previous statute, which did not use the term "great weight." In response, the court indicated that even under the former SSOSA statutes, the court could give great weight to the victim's opinion about whether to impose a SSOSA sentence. Defense counsel agreed the court had discretion to consider the victim's opinion.

In rejecting Smalley's request for a SSOSA sentence, the court took into account the victim's position that Smalley should serve a prison sentence. In addition, the court pointed to the concerns set forth by Dr. Coleman and highlighted by DOC. The court imposed a standard range concurrent 131 month sentence for each count, with a maximum term of life in prison.

The standard range for Count I was 120 to 160 months and 102 to 136 months on Count V.

ANALYSIS

Smalley claims the sentencing court improperly relied on the most recent version of the SSOSA statute, RCW 9.94A.670, by giving "great weight" to the victim's opinion about whether to impose a SSOSA sentence. But even under the previous SSOSA statutes, former RCW 9.94A.120(8)(a)(ii) (2000) and former RCW 9.94A.670(4) (2001), the legislature required the court to consider the victim's opinion in determining whether a SSOSA sentence is appropriate.

Except when the court fails to comply with the procedural requirements of the Sentencing Reform Act (SRA), Chapter 9.94A RCW, a defendant cannot appeal a standard range sentence. RCW 9.94A.585(1); State v. Mail, 121 Wn.2d 707, 711, 854 P.2d 1042 (1993). In a procedural appeal, the offender must show that "the sentencing court had a duty to follow some specific procedure required by the SRA, and that the court failed to do so." Mail, 121 Wn.2d at 712. The SSOSA statute gives the court broad discretion about whether to impose a SSOSA sentence. RCW 9.94A.670; former 9.94A.670(4); former RCW 9.94A.120(8)(a)(ii); State v. Onefrey, 119 Wn.2d 572, 575, 835 P.2d 213 (1992). "A court abuses its discretion if it categorically refuses to impose a particular sentence or if it denies a sentencing request on an impermissible basis." State v. Osman, 157 Wn.2d 474, 482, 139 P.3d 334 (2006).

Under the applicable former SSOSA statutes, the court had an obligation to determine whether the offender and community would benefit from a SSOSA, and to consider the victim's opinion about whether the offender should receive a SSOSA. Former RCW 9.94A.120(8)(a)(ii); former RCW 9.94A.670(4). The legislature intended the sentencing court to consider the victim's statements, as well as reports by treatment providers, "to determine if `the community will benefit' from the use of the sex offender sentencing alternative." State v. Hays, 55 Wn. App. 13, 17, 776 P.2d 718 (1989). Former RCW 9.94A.120(8)(a)(ii) and former RCW 9.94A.670(4) state that "the court shall . . . consider the victim's opinion whether the offender should receive" a SSOSA. On July 1, 2005, RCW 9.94A.670 was amended to require the court to give "great weight" to the victim's opinion of whether the offender should receive a SSOSA.

Smalley argues that by giving great weight to the victim's opinion in deciding to reject a SSOSA, the court erred in relying on the most recent version of the SSOSA statute. But as previously discussed, even under the applicable former SSOSA statutes, the sentencing court had broad discretion to consider and give great weight to the victim's opinion.

Moreover, the record does not support Smalley's position that the court in fact relied on the current version of the SSOSA statute. When the sentencing judge started to quote from the 2005 version of RCW 9.94A.670(4), that "the court shall give great 7 weight to the . . .", defense counsel noted that the former, not the current version of the statute applied, "[e]xcuse me, Your Honor. I don't mean to interrupt, but you're reading from the current statute, and Mr. Smalley is being sentenced under the previous statute." Although the court agreed, the court correctly concluded it still had the discretion to consider the victim's opinion about whether to grant Smalley's request for a SSOSA.

In addition, separate and apart from the devastating effect the long-term sexual abuse had on K.B., the court expressly considered a number of factors other than the victim's opinion, in deciding that the community would not benefit from a SSOSA sentence for Smalley, including the risk factors noted by Dr. Coleman in his report, and Smalley's inability to successfully engage in treatment outside of a structured environment.

On this record, we conclude the court did not abuse its discretion in deciding that a SSOSA would not benefit the community and affirm.


Summaries of

State v. Smalley

The Court of Appeals of Washington, Division One
Aug 27, 2007
140 Wn. App. 1019 (Wash. Ct. App. 2007)
Case details for

State v. Smalley

Case Details

Full title:STATE OF WASHINGTON, Respondent, v. MICHAEL SMALLEY, Appellant

Court:The Court of Appeals of Washington, Division One

Date published: Aug 27, 2007

Citations

140 Wn. App. 1019 (Wash. Ct. App. 2007)
140 Wash. App. 1019