State Of Washington, Res. v. N.a.j.(dob 2/11/98), App. ( 2013 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 69275-5-1
Respondent,
DIVISION ONE
UNPUBLISHED OPINION
N.A.J.,
Appellant. FILED: May 13,2013
Appelwick, J. — N.A.J, appeals the manifest injustice disposition imposed by the
juvenile court. He argues that the juvenile court erred in basing its manifest injustice
disposition on factors not included in the statute. The juvenile court considered factors
consistent with the purposes ofthe Juvenile Justice Act of 1977.1 We affirm.
FACTS
N.A.J., a juvenile, pleaded guilty to one count of attempted robbery in the second
degree. The State recommended 30 days detention, a disposition within the standard
range of 0-30 days. But, the juvenile probation counselor recommended a manifest
injustice disposition of 40 to 52 weeks of detention.
1Chapter 13.40 RCW.
No. 67108-1-1/2
The juvenile court adopted the probation counselor's recommendation and
imposed a manifest injustice disposition of 40 to 52 weeks of detention. It made four
findings in support of the manifest injustice disposition. First, it found that N.A.J, posed
a high risk to reoffend and was a threat to community safety. Second, it found that
N.A.J, committed the offense while other criminal matters were pending. Third, it found
that a standard range disposition would not provide necessary treatment and
supervision for N.A.J. Fourth, it found that prior services, supervision, and parental
control had been insufficient to rehabilitate N.A.J.
DISCUSSION
The Juvenile Justice Act provides sentencing standards for juvenile offenders.
See RCW 13.40.0357. However, where a court finds that disposition within the
standard range would effectuate a manifest injustice, the court may impose a sentence
outside the standard range. RCW 13.40.160(2). The act defines "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."
RCW 13.40.020(18). A finding of manifest injustice will be upheld if substantial
evidence supports the reasons given, those reasons clearly and convincingly support
the disposition, and the disposition is not too excessive or too lenient. RCW
13.40.230(2); State v. J.V.. 132 Wn. App. 533, 540, 132 P.3d 1116 (2006). N.A.J,
challenges the disposition only under the second prong of this test, arguing the reasons
given by the trial court do not properly support the manifest injustice disposition.
No. 67108-1-1/3
N.A.J, contends that RCW 13.40.150(3)2 sets forth an exclusive, rather than
illustrative, list of factors that courts can consider in making a manifest injustice
determination. He asserts that the juvenile court improperly relied solely on
nonstatutory aggravating factors. N.A.J, acknowledges that this court has approved the
use of nonstatutory factors to support a manifest injustice disposition. But, he contends
that these cases were based on a prior version of the Sentencing Reform Act of
1981(SRA), ch. 9.94A RCW, rather than the Juvenile Justice Act.
2RCW 13.40.150(3) provides:
Before entering a dispositional order as to a respondent found to have
committed an offense, the court shall hold a disposition hearing, at which
the court shall:
(i) Consider whether or not any of the following aggravating factors
exist:
(i) In the commission of the offense, or in flight therefrom, the
respondent inflicted or attempted to inflict serious bodily injury to another;
(ii) the offense was committed in an especially heinous, cruel, or
depraved manner;
(iii) the victim or victims were particularly vulnerable;
(iv) The respondent has a recent criminal history or has failed to
comply with conditions of a recent dispositional order or diversion
agreement;
(v) The current offense included a finding of sexual motivation
pursuant to RCW 13.40.135;
(vi) The respondent was the leader of a criminal enterprise
involving several persons;
(vii) There are other complaints which have resulted in diversion or
a finding or plea of guilty but which are not included as criminal history;
and
(viii) The standard range disposition is clearly too lenient
considering the seriousness of the juvenile's prior adjudications.
No. 67108-1-1/4
Contrary to N.A.J.'s contentions, the clear language of the Juvenile Justice Act,
as well as our cases applying the act, call on juvenile courts to consider the overall
purposes of the act when making a manifest injustice determination. RCW 13.40.150
provides a list of aggravating factors which the juvenile court should consider to
determine whether a manifest justice disposition is justified. But, we have consistently
approved the consideration of nonstatutory factors. See, e.g.. State v. T.E.H., 91 Wn.
App. 908, 917-18, 960 P.2d 441 (1998) (a high risk that a juvenile will reoffend is a valid
ground for a manifest injustice disposition); State v. S.H., 75 Wn. App. 1, 11-12, 877
P2d 205 (1994)3 (a high risk to reoffend and the need for treatment are valid grounds for
a manifest injustice disposition). And, we recently reiterated in JAA, that the juvenile
court may consider both statutory and nonstatutory factors. 132 Wn. App. at 540-41.
N.A.J, relies on In re Postsentence Review of Leach, 161 Wn.2d 180, 163 P.3d
782 (2007), to support his argument that RCW 13.40.150(3) provides an exclusive list.
In Leach, our Supreme Court examined a list in the SRA that enumerates which crimes
are subject to a sentence of community custody. 161 Wn.2d at 184. It held that the list
was exhaustive and that courts may not add to the list, because to do so would usurp
the legislature's authority. Id at 186. But, N.A.J.'s reliance on Leach ignores
differences in language and purposes of the Juvenile Justice Act and the SRA.
3 State v. Sledge. 83 Wn. App. 639, 922 P.2d 832 (1996), which abrogated this
case on other grounds was subsequently vacated, 133 Wn.2d 828, 947 P.2d 1199(1997)
No. 67108-1-1/5
By contrast, under the Juvenile Justice Act the juvenile court must consider the
aggravating and mitigating factors enumerated in RCW 13.40.150, all relevant and
material evidence and recommendations, and the stated purposes of the act. State v.
P, 37 Wn. App. 773, 778, 686 P.2d 488 (1984). RCW 13.40.150 is not an exclusive list
of manifest injustice factors. Leach does not control.
In this case, the juvenile court considered appropriate factors in its manifest
injustice determination. It stated four aggravating factors to support imposing a
manifest injustice disposition. Three factors that it considered—that N.A.J, posed high
risk of reoffending, that a standard range disposition would not provide adequate
treatment, and that prior services and supervision were insufficient to rehabilitate
N.A.J.—relate to the stated purposes of the Juvenile Justice Act. Those purposes
include preserving the community safety and providing necessary treatment,
supervision, and custody for juvenile offenders. RCW 13.40.010(2); P, 37 Wn. App. at
778.
Additionally, contrary to N.A.J.'s assertion that the court considered only
nonstatutory factors, the fourth factor considered by the juvenile court was based in
statute. RCW 13.40.150(3)(i)(vii) requires the court to consider whether there are "other
complaints which have resulted in diversion or a finding or plea of guilty but which are
not included as criminal history." On July 11, 2012, N.A.J, pleaded guilty to burglary in
the second degree and escape in the second degree, both of which occurred prior to
the attempted robbery in the second degree at issue at this disposition hearing. Neither
No. 67108-1-1/6
offense was included in N.A.J.'s criminal history for purposes of this disposition. The
court found that N.A.J, committed the current offense while other criminal matters were
pending, "justifying imposition of a manifest injustice disposition under RCW
13.40.150(3)."
We affirm.
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