State v. Halgren , 137 Wash. 2d 340 ( 1999 )

Madsen, J.

Petitioner, who was convicted of unlawful imprisonment, contends that an exceptional sentence based upon the aggravating factor of future dangerousness cannot be imposed unless the conviction is for a sex offense as specifically defined in the Sentencing Reform Act of 1981 (SRA). RCW 9.94A. We agree, and reverse the decision of the Court of Appeals.

FACTS

Just after midnight on September 27, 1995, defendant Michael Halgren approached Pamela Townsel, a prostitute, in downtown Seattle. He indicated she should get into his car, which she did, and identified himself as “Al.” They agreed to sex for money. At that point Halgren told Townsel he was a police officer and told her to put her hands out so he could handcuff her (using plastic handcuffs). Townsel refused and asked to see his badge. Halgren said he would take her to his partner.

They passed a police van, and instead of stopping his car Halgren speeded up. When Townsel asked why Halgren did not stop, he smiled strangely, which terrified Townsel. Hal-gren approached an alley and turned his car very fast. Townsel opened the door to jump out, but Halgren grabbed her and told her “Oh no. You can’t get away.” Clerk’s Papers (CP) at 37. Townsel nevertheless managed to get out of the car and fell to the ground as the car was still moving, suffering injuries. As she fell, she saw a police car and yelled at the officer to follow Halgren’s car and arrest him. The officer pursued Halgren, who eventually pulled over and was arrested.

Following his arrest, Halgren waived his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A.L.R.3d 974 (1966). He claimed that he had told Townsel that he was driving to a cash machine to get money, but she “freaked out” and told him to drop her off. He said he tried to calm her down and tried to keep her from getting hurt but he could not hold her.

When Halgren’s car was searched a white plastic cuff and screwdriver were found on the driver’s floor; two white plastic flex cuffs and a roll of duct tape were found behind the driver’s seat. Halgren was not a law enforcement officer.

Halgren was originally charged with kidnapping in the second degree alleged to have been committed with sexual motivation. On December 21, 1995, the State filed an amended information changing the charge to unlawful imprisonment and eliminating the sexual motivation allegation. Although plea negotiations occurred, Halgren ultimately decided not to plead guilty and instead requested a stipulated facts trial based upon police reports. He argued at trial that the evidence was insufficient for a conviction of unlawful imprisonment, but instead supported at most a conviction for attempted unlawful imprisonment. The trial court found Halgren guilty of unlawful imprisonment.

The day before Halgren’s sentencing hearing, his attorney and the prosecuting attorney both learned for the first time that the community corrections officer who prepared the presentence report would recommend an exceptional sentence upward. That recommendation was largely based upon psychological reports and evaluations of Hal-gren by Dr. Stuart Brown, a Washington certified sexual deviancy treatment provider, who had evaluated Halgren when Halgren was convicted in 1989 of first degree rape. Dr. Brown’s reports describe Halgren’s failure to complete treatment programs. Halgren did not complete the Twin Rivers Treatment Program while incarcerated on the 1989 rape conviction. Upon his release in 1993, while under Dr. Brown’s supervision and treatment, he used cocaine and solicited a prostitute in violation of conditions of his parole and was returned to prison. He was again released in 1994, and again was returned to prison after violating conditions of his parole. Halgren had participated for only a short time in a sexual deviancy and abuse program imposed as a condition of community placement. His present crime was committed six months after he was released after serving the full length of his sentence on the 1989 rape conviction.

Dr. Brown testified at Halgren’s sentencing hearing that Halgren is not amenable to treatment. The State joined the Department of Corrections’ recommendation that an exceptional sentence be imposed.

The trial court sentenced Halgren to an exceptional sentence of 60 months based upon the nonstatutory aggravating factor of future dangerousness. The standard range sentence is 3-8 months. The court found that in looking at the facts from a commonsense perspective, Halgren’s actions constituted a sexual offense, although unlawful imprisonment is not defined as a sex offense in the Sentencing Reform Act of 1981; that he has a history of similar criminal acts—the 1989 rape which the court found was factually similar to the current offense, the 1994 arrest for patronizing a prostitute, and the history of assaultive behavior he gave Dr. Brown; and that he is not amenable to treatment as shown by failed attempts at treatment, violations of his treatment and parole (including soliciting a prostitute within three days of a group therapy session), and Dr. Brown’s testimony that Halgren is not amenable to treatment. The court found the aggravating factor of future dangerousness, and accordingly imposed an exceptional sentence.¹

Halgren appealed, raising several issues.² The Court of Appeals affirmed. State v. Halgren, 87 Wn. App. 525, 942 P.2d 1027 (1997), review granted, 134 Wn.2d 1024 (1998). Halgren petitioned for discretionary review on only one issue, the use of future dangerousness as an aggravating factor.

ANALYSIS

In order to impose an exceptional sentence the sentencing court must find substantial and compelling reasons set forth in written findings and conclusions which support imposition of an exceptional sentence. RCW 9.94A.120(2). Upon review, an appellate court may be asked to decide (1) whether there is sufficient evidence in the record to support the reasons for imposing an exceptional sentence under a clearly erroneous standard, (2) whether as a matter of law the reasons justify an exceptional sentence, and (3) whether an exceptional sentence is clearly excessive under an abuse of discretion standard. RCW 9.94A.210(4); State v. Nordby, 106 Wn.2d 514, 723 P.2d 1117 (1986). Here, the only issue involves the second inquiry, whether as a matter of law the reason given for Hal-gren’s exceptional sentence justifies an exceptional sentence.

Future dangerousness is a nonstatutory aggravating factor which may support an exceptional sentence in a sexual offense case. State v. Strauss, 119 Wn.2d 401, 414, 832 P.2d 78 (1992); State v. Pryor, 115 Wn.2d 445, 799 P.2d 244 (1990). To impose an exceptional sentence in a sexual offense case, two conditions must be satisfied: “(1) the defendant has a history of similar criminal acts; and (2) the defendant is not likely to be amenable to treatment.” Strauss, 119 Wn.2d at 414; Pryor, 115 Wn.2d at 453-55. Future dangerousness may not, however, be relied upon to impose an exceptional sentence in nonsexual offense cases. State v. Barnes, 117 Wn.2d 701, 818 P.2d 1088 (1991).

Halgren contends that if an offense is not a sex offense as defined in the SRA the future dangerousness factor cannot be applied.³ Thus the issue here is what constitutes a sex offense for purposes of the future dangerousness factor. In considering this question, we are mindful that although the future dangerousness factor is a nonstatutoiy factor, its scope is determined by the SRA. Thus, when deciding in Barnes that the future dangerousness factor does not apply to nonsexüal offenses, both the lead and concurring opinions focused on distinctions drawn by the SRA, as well as policies underlying the act. For instance, the lead opinion explained that the court’s formulation of the future dangerousness factor was based upon the Legislature’s differing treatment of sexual offenses:

At the time the SRA was enacted, the Superior Court Judges Association recommended sex offenders be treated differently from other offenders due to their belief that a sex offender’s behavior was compulsive and likely to continue without treatment. See [David] Boerner, [Sentencing in Washington,] at 8-2 [1985]. The options created for sexual offenders were authorized “because it was believed that for these groups of offenders, requiring participation in rehabilitation programs is likely to prove effective in preventing future criminality.” D. Boerner, at 2-37.

Barnes, 117 Wn.2d at 708. The lead opinion also observed, among other things, that judicial authority to impose treatment as part of a sentence, other than for sexual and first time offenders, did not exist under the SRA. Id. at 710. Both the lead and concurring opinions expressed concern about the level of discretion accorded the sentencing judge for nonsexual offenses. The lead opinion concluded that extension of the future dangerousness factor to nonsexual offense cases would violate purposes of sentence reform, disrupt the SRA’s proportionality policy, and grant “too broad a grant of discretion to the sentencing judge, which discretion the Legislature intended to limit.” Id. at 711-12. The concurrence stated that it would be improper to impose on trial courts a duty of resolving conflicting testimony on the issue of future dangerousness without a grounding in the SRA for such authority and its exercise. Id. at 713-14 (Guy, J., concurring in the result).

As in Barnes, we turn to the SRA to determine the scope of the future dangerousness factor. Prior to the enactment of the Community Protection Act of 1990 (Laws of 1990, ch. 3), sex offenses defined in the SRA included what might be called sex offenses in a conventional sense, such as rape and incest: felony violations of RCW 9A.44 (sex offenses), RCW 9A.64.020 (incest), or RCW 9.68A.040 (sexual exploitation of children), or criminal attempts, criminal solicitation, or criminal conspiracy to commit such crimes were the sex offenses defined in the SRA. See RCW 9.94A-.030(33)(a).⁴ Under the Community Protection Act, the Legislature expanded the definition of sex offenses to include other crimes where there is a finding of sexual motivation. See RCW 9.94A.030(33)(b). A finding of sexual motivation will occur only where the State files a special allegation of sexual motivation and proves the allegation beyond a reasonable doubt, and the court or the jury in a jury trial finds that the defendant committed the crime with a sexual motivation. See RCW 9.94A.127. Sexual motivation is defined as meaning that “one of the purposes for which the defendant committed the crime was for the purpose of his or her sexual gratification.” RCW 9.94A.030(34). If a finding of sexual motivation is made, an exceptionál sentence upward may be imposed pursuant to RCW 9.94A-.390(2)(f).

In defining sex offenses to include crimes committed with sexual motivation, the Legislature in 1990 recognized the valid premise that an offense could factually be a sexually based crime without being a specifically defined sex offense like rape or incest. We have noted this legislative determination. In referring to the juvenile counterpart to RCW 9.94A.030(33)(b), this court stated that “[t]he sexual motivation statute is directed at the action or conduct of committing a crime because of the defendant’s desire for sexual gratification.” State v. Halstien, 122 Wn.2d 109, 123, 857 P.2d 270 (1993). The statute punishes the defendant for acting on sexual thoughts in a criminal manner. Id.

The Court of Appeals similarly reasoned in some decisions to which the Community Protection Act of 1990 did not apply that offenses could factually be sexual in nature despite not falling within the pre-1990 definition of sex offenses in the SRA. In State v. Stewart, 72 Wn. App. 885, 895, 866 P.2d 677 (1994), aff’d, 125 Wn.2d 893, 890 P.2d 457 (1995), the Court of Appeals said that

for purposes of determining whether an offense is a sexual offense and whether future dangerousness may be considered as an aggravating factor, a court is not restricted to the SRA’s definition of sex offense. Rather, for these purposes, the court should look at the defendant’s acts in committing the crime and determine, from a common sense perspective, whether the offense is capable of treatment as a sexual offense. If it is, future dangerousness may be considered as an aggravating factor.

The Court of Appeals in this case adhered to this holding, and concluded that the record supported the trial court’s determination that the crime here was sexual in nature.

However, regardless of the merits of the “common sense perspective” approach, the Legislature has now both defined what are factually sex offenses and directed how the determination is to be made. Recognizing this change, in In re Personal Restraint of Rama, 73 Wn. App. 503, 869 P.2d 1122 (1994), Division One relied upon the commonsense perspective analysis of Stewart but said that “[o]ur holding, like that of Stewart, is necessarily limited to prosecutions that preceded July 1, 1990, the date the sexual motivation statute, RCW 9.94A.127, went into effect.” Rama, 73 Wn. App. at 507 n.4;⁵ see also State v. Hicks, 77 Wn. App. 1, 888 P.2d 1235 (1995) (future dangerousness factor may be applied only where defendant is being sentenced for a sex offense as defined in the SRA); cf. Pryor, 115 Wn.2d at 449 (suggesting that passage of the Community Protection Act of 1990 would affect the way the future dangerousness factor would be applied in the future).

We agree with Halgren that there is no longer room for the argument that a judicial determination may be made that factually a crime is a sex offense even if not defined as such in the SRA. As the SRA directs, where a crime is not specifically identified as a sex offense, like rape or incest, the determination that a crime is a sex offense may be made only after the prosecution alleges and proves sexual motivation beyond a reasonable doubt, and the court or the jury makes a finding of sexual motivation. RCW 9.94A.127. The Legislature has thus provided the guidelines for the determination of whether an offense is factually a sex offense.

As noted, a majority of this court in Barnes noted that the nonstatutory factor should not be applied in nonsexual offenses because to do so would expand the discretion of the sentencing judge in a way not contemplated by the SRA. The same problem arises if the factor is applied in cases like the present one, where the crime charged and proved by the State is not a sexual offense as defined in the SRA. In such cases, the sentencing judge would have to decide whether the crime is sufficiently sexually motivated as part of the judge’s exercise of discretion in deciding whether to impose an exceptional sentence. Given the specific requirements for a sexual motivation finding, such a decision is beyond the discretion afforded the sentencing judge under the SRA.

Specific legislative requirements would be thwarted in other ways if the future dangerousness factor could be applied without regard to the Legislature’s specific definition of sex offenses in the SRA. A prosecutor could decide not to allege sexual motivation, which requires proof beyond a reasonable doubt, and then seek an exceptional sentence arguing that the offense was, in fact, sexually motivated. Allowing what is essentially a sexual motivation allegation to be made and found at sentencing is inconsistent with the SRA’s requirement that the prosecutor file a special allegation of sexual motivation. A concomitant problem is that, as a result, some defendants committing offenses sexual in nature would receive an exceptional sentence based only on matters proved beyond a reasonable doubt, while others would suffer such consequences without that burden of proof on the State.

We additionally note that sentencing provisions and options for sex offenders under the SRA differ from those in the case of a nonsexual offense. The finding of sexual motivation “trigger [s] the same consequences as any other sex offense, such as higher offender points for subsequent sex offenses, civil commitment, and eligibility or ineligibility for SSOSA or SSODA.” Final Legislative Report, 52d Leg. 143 (Wash. 1990). The Court of Appeals’ decision in this case dispenses with that differing treatment for a current nonsexual offense (as defined by the SRA), while still allowing the offense to be treated as a sexual offense for purposes of an exceptional sentence.

We next comment on a matter raised by the Court of Appeals. That court rejected what it said was Halgren’s argument that a finding of sexual motivation under RCW 9.94A.127 is now a prerequisite to an exceptional sentence based upon future dangerousness. Halgren, 87 Wn. App. at 534-35. The court reasoned that such a requirement would mean that prosecutors would have to determine all the information learned in the presentence report at the time the charging decision is made. Id. The court said that because evidence of prior treatment is not relevant or admissible at trial, the criminal justice system would have no way of assuring that information would be available before trial. Id. at 535. However, this does not seem to be Halgren’s argument, nor does it make sense. The statutory aggravating factor based upon sexual motivation does not require, as does the nonstatutory future dangerousness factor, prior similar history and lack of amenability to treatment. Instead the sexual nature of the current offense is the relevant inquiry. Accordingly, accepting Halgren’s argument does not mean that the prosecution would be put in the position of not having sufficient information about prior treatment or prior history for making the charging decision whether to allege sexual motivation, because neither is relevant to the sexual motivation determination.

Nor is the need for a sexual motivation allegation unduly burdensome to the State. Here, for example, the State in fact originally charged Halgren with kidnapping in the second degree alleged to have been committed with sexual motivation. The State then dropped the sexual motivation allegation. Having made that decision, the State is not entitled to seek an exceptional sentence based upon the sexual nature of the crime.

CONCLUSION

The scope of the future dangerousness aggravating factor for purposes of an exceptional sentence under the SRA is resolved in light of express provisions in the SRA as well as its policies and goals. The SRA prescribes how a determination is to be made that an offense is a sex offense. The Legislature’s guidelines for deciding when a crime is factually a sex offense even if not a specified sex offense such as rape or incest preclude application of the future dangerousness factor where a crime does not fall within the SRA’s definition of a sex offense.

We reverse the Court of Appeals’ decision and remand for resentencing.

Smith, Johnson, Alexander, and Sanders, JJ., concur.

1 The trial court also entered as a finding that the standard range sentence was clearly too lenient. Clerk’s Papers (CP) at 62. This aggravating factor requires findings establishing either harm or culpability beyond that accounted for in the presumptive sentence. State v. Batista, 116 Wn.2d 777, 789, 808 P.2d 1141 (1991). The court did not enter such findings. However, the court also did not base the exceptional sentence on this factor, as the only conclusions of law concern the future dangerousness factor.

2 Halgren argued he did not voluntarily waive his right to a jury trial, that the trial court erred in considering the psychological reports and evaluations upon which the Department of Corrections’ presentence report was based, that future dangerousness could not be used to support an exceptional sentence, that the length of his sentence was clearly excessive, and that his right to speedy sentencing was violated. In regard to use of the psychological evaluations, there may be Fifth Amendment implications when admissions are made during treatment for sexual deviancy and then used for purposes of imposing an exceptional sentence. See generally State v. King, 130 Wn.2d 517, 925 P.2d 606 (1996). However, the Court of Appeals said that Halgren failed to timely object to admissibility of the reports and evaluations, failed to controvert any information he alleged was inaccurate, failed to object to the testimony of Dr. Brown and the presentence report writer at the sentencing hearing, and did not request an evidentiary hearing to controvert information in the reports. State v. Halgren, 87 Wn. App. 525, 532-33, 942 P.2d 1027 (1997), review granted, 134 Wn.2d 1024 (1998). The Court of Appeals held that the trial court properly considered the reports and evaluations. Id. at 533. Halgren does not challenge this holding on discretionary review.

3 This is an issue of first impression. Although this issue was raised in State v. Stewart, 125 Wn.2d 893, 890 P.2d 457 (1995), and this court made some comments concerning it, the comments are dicta as resolution of the case did not turn on the issue.

4 RCW 9.94A.030(33)(c) also lists as sex offenses any federal or out-of-state convictions which would be sex offenses, as listed under subsection (a), under the laws of this state.

5 Division One departed from Rama in the present case.