Opinion
No. 37801-9-II.
January 6, 2009.
Appeal from a judgment of the Superior Court for Clark County, No. 08-8-00453-3, Carin Schienberg, J. Pro Tem., entered May 29, 2008.
Affirmed by unpublished opinion per Penoyar, J., concurred in by Van Deren, C.J., and QuinnBrintnall, J.
UNPUBLISHED OPINION
NMB appeals the manifest injustice disposition imposed by the Clark County Juvenile Court upon her plea of guilty to second degree theft. She contends that the court's reasons for the disposition are factually and legally insufficient. We affirm.
NMB was born on June 7, 1991. Because she is a juvenile, and some privacy in such cases is appropriate, we refer to her by her initials.
A commissioner of this court reviewed the matter pursuant to RAP 18.13 and referred it to a panel of judges.
FACTS
The State charged NMB with two counts of second degree theft, and she pleaded guilty to one count, which was based on her taking her mother's debit card. She withdrew $500 from her mother's bank account, which she used to run from her parents' custody.
NMB's standard range disposition was 0 to 30 days in detention. At the first disposition hearing, her probation counselor recommended a manifest injustice disposition of 40 weeks. The juvenile court continued the hearing in order to obtain a psychological evaluation and a drug and alcohol dependency evaluation.
The psychological evaluation recommended both individual and family counseling, but cautioned that NMB's emotional distance from others and general distrust would need to be addressed before therapy could be effective. The chemical dependency assessment recommended 30 to 60 days of inpatient treatment. That evaluator also believed there would be difficulties involved in providing effective treatment, noting that NMB did not see the need to stop using marijuana and alcohol and had a high level of resistance to treatment.
At the second disposition hearing, the State and NMB's parents argued for a manifest injustice disposition above the standard range. They pointed to NMB's substance abuse problems, for which she had so far refused treatment, and her repeated run away behavior. NMB's parents told the court that NMB had had eight weeks of individual counseling with no lasting improvement. They said that they had tried everything they could think of to control her behavior, from leniency to boot camp to locking her in her room. The State advised the court that NMB had not complied with court orders, had violated probation orders four times, and had had four warrants out for her arrest because she repeatedly ran away. In the eight months before the disposition hearing, she had been on the run and on warrant status for 134 days.
NMB's counsel argued for a standard range disposition. She told the court that NMB was now willing to engage in individual counseling and to undergo inpatient drug and alcohol treatment.
The juvenile court placed great emphasis on NMB's repeated running away. The commissioner told NMB, "[t]here is no question in my mind that if I let you out, you will be immediately on the run. You will be gone in a very short period of time. And you'll justify it because somebody looked at you the wrong way or somebody said something that you took the wrong way." Report of Proceedings (RP) at 42. The commissioner was also concerned about NMB's failure to stay in school, failure to obtain drug and alcohol treatment, and failure to follow the direction of her parents. She imposed 30 to 40 weeks in juvenile detention, finding that:
The drug and alcohol dependency evaluation diagnosed NMB as alcohol and cannabis (marijuana) dependent.
(1) This youth has shown through her behavior that her conduct poses a risk to the community by clear and convincing evidence;
(2) This youth's behavior is out of control in a community setting. She has run away on multiple occasions and does not follow her parents' direction;
(3) This youth has failed to comply with prior court orders and has had four probation violations and four warrants filed;
(4) This youth has a serious drug and alcohol problem and treatment is necessary for her to become a successful adult;
(5) This youth has not been in an educational program during this school year and needs a secured facility to complete her education; [and]
(6) The drug/alcohol [evaluation] and the psych [evaluation] support a manifest injustice up.
Clerk's Papers (CP) at 39-41.
Analysis
A juvenile court may impose a disposition outside the standard range if it determines that a disposition within the standard range would effectuate a manifest injustice. RCW 13.40.160(2). RCW 13.40.020(17) defines a manifest injustice as "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 this chapter." The purposes of the Juvenile Justice Act (JJA), chapter 13.40 RCW, include protecting the citizenry from criminal behavior, making the juvenile offender accountable for his or her behavior, and providing necessary treatment, supervision, and custody for juvenile offenders. RCW 13.40.010 (2)(a), (c), and (f).
NMB challenges all of the court's findings. We will uphold them if: (1) they are supported by the record; (2) they clearly and convincingly support the conclusion that a disposition within the standard range would constitute a manifest injustice; and (3) the disposition is neither clearly excessive nor clearly too lenient. RCW 13.40.230(2).
NMB acknowledges that there is sufficient evidence in the record to support findings 2, 3, and 4. However, she argues that the evidence was disputed and could not be relied upon in the absence of an evidentiary hearing. For the purposes of disposition, a juvenile court may consider all relevant and material evidence, whether or not admissible for the purposes of adjudication. The juvenile or the juvenile's attorney must be given the opportunity to examine and controvert written reports and cross examine the persons making the reports if they are reasonably available. RCW 13.40.150(1). NMB did not request the opportunity to cross examination any of the persons who produced reports, and a review of the record demonstrates that there was no dispute of the material facts.
The juvenile court's second finding was that NMB was out of control in a community setting. This was clearly demonstrated by her crimes against her parents, her refusal to undertake drug treatment, and her repeated running away, none of which she disputed. In fact, NMB admitted that she ran when she had problems at home, and her attorney acknowledged that her run behavior was a "significant problem."
The court's third finding was that NMB had failed to comply with court orders and had four probation violations and four warrants filed. Again, there was no dispute about the existence of the warrants or the probation violations. The fourth finding was that NMB had a serious drug problem and needed treatment. She and her attorney both agreed that she needed treatment, and they agreed to the period recommended. They simply argued that she should be given another opportunity to undertake treatment in the community.
NMB also argues that in making findings 2, 3, and 4, the juvenile court relied upon uncharged and unproven claims of criminal offenses. It is certainly true that a sentencing court may not base an exceptional sentence on an uncharged or unproved crime. State v. Morreira, 107 Wn. App. 450, 458, 27 P.3d 639 (2001). But that did not happen here. NMB points to the court's discussion of the State's allegations that during her most recent run, she was arrested in New Mexico for driving under the influence. New Mexico did not file charges, electing to return her to Washington instead. Defense counsel strenuously objected to consideration of that matter, and the commissioner said that she was not making a finding on it. There is no reason to question that statement. The only finding that might be relevant is the third finding, and none of the four probation violations to which it refers were based on the DUI.
This argument is a bit confusing. Counsel first asserts that factors 2, 3, and 4 do not distinguish NMB's crime from the ordinary second degree theft. However, the argument presented pertains to unproven crimes. In any case, these findings are recognized aggravating factors. See RCW 13.40.150(h)(iv); State v. J.V., 132 Wn. App. 533, 541, 132 P.3d 1116 840 P.2d 891 (2006); and State v. S.S., 67 Wn. App. 800, 814-15, (1992).
NMB challenges findings 1 and 5 on the basis that there is insufficient evidence to support them. As to the first finding, she argues that all the evidence showed was that she was a danger to herself, and possibly her parents, but not to the community. Her parents are, of course, part of the community. The psychological evaluation indicated that in the absence of intervention, she was likely to continue to run away from home. The report also indicated that she stole from her parents in order to finance that activity. Thus, she posed a continuing risk to her family. Moreover, NMB admitted the use of controlled substances. That is activity which the legislature has criminalized to protect individuals and the public. There was substantial evidence that NMB's untreated substance abuse and running behavior made her a risk to the community.
The fifth finding was that NMB had not been in an educational program for the past school year. NMB asserts that the evidence showed that she was "enrolled in and is active" in a high school equivalency program at a local community college. Br. Of Appellant at 10. What the evidence showed was that she was anticipating such a program for the coming fall. At the time of the disposition hearing, May 2008, she was participating in a GED program in detention. What the record also showed was that NMB had been on the run 134 days of the last eight months. That is at least 19 weeks outside any sort of classroom. Any GED participation in the intervening periods of detention was likely sporadic. This is ample support for the finding that she had not been in an educational program and would not engage in such a program outside of a secured facility.
Finally, NMB challenges the sixth finding, contending that the evidence does not support a determination that the substance abuse and psychological evaluations support an exceptional disposition. This challenge is based on arguments that (1) the evaluations do not show that she cannot be treated in the community, and (2) there is no support in the evaluations for the length of the disposition. As to the first argument, her prior running history and refusal of drug treatment are more than sufficient to support the conclusion that treatment cannot be successfully provided outside a secure facility.
As to the second argument, once a juvenile court concludes that a disposition within the standard range would effectuate a manifest injustice, the determinate sentencing scheme of the JJA no longer applies, and the juvenile court is vested with broad discretion in determining the disposition. State v. J.V., 132 Wn. App. 533, 545, 132 P.3d 1116 (2006). The court abuses its discretion only if its decision cannot be justified by any reasonable view of the record. See State v. Tauala, 54 Wn. App. 81, 87, 771 P.2d 1188 (1989). In this case, NMB needed 30 to 60 days of drug treatment, but she had been highly resistant to such treatment, and there was no guarantee it would begin immediately. In addition, she needed individual counseling, but her level of distrust was expected to make that process difficult, as well. Finally, she had the majority of her eleventh grade of education to complete. The detention imposed was well justified by these concerns.
The disposition is affirmed.
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.
Van Deren, C.J., Quinn-Brintnall, J., concur.