State of Washington v. Joshua James Pulliam ( 2021 )

FILED
APRIL 1, 2021
In the Office of the Clerk of Court
WA State Court of Appeals Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 36531-0-III
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
JOSHUA JAMES PULLIAM, )
)
Appellant. )
FEARING, J. — Joshua Pulliam challenges on appeal the juvenile court’s
declination of jurisdiction. He later, in adult court, pled guilty to two counts of rape, two
counts of assault, and one count of harassment. Because the juvenile court entered
thorough and comprehensive findings of fact supported by evidence and because the
juvenile court considered all relevant factors when declining jurisdiction, we affirm the
declination and Pulliam’s convictions.
FACTS
We briefly describe the crimes committed by Joshua Pulliam, before outlining the
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extensive facts of Pulliam’s background reviewed by the juvenile court when declining
jurisdiction. Pulliam’s convictions stem from three incidents in 2017. At different times,
Pulliam attacked three women, who were strangers to him, in public places. On March 8,
2017, Pulliam approached a woman and requested a kiss. He then proceeded to brutally
attack and rape her. On May 19, 2017, Pulliam attempted to rape another woman, but a
passerby intervened and Pulliam fled. Finally, on November 23, 2017, Pulliam
approached another woman, asked for a cigarette, and then attacked and raped her.
During the latter two attacks, Joshua Pulliam was on active supervision by the
juvenile court. Joshua Pulliam, born October 31, 2001, committed the charged crimes
between the ages of fifteen and sixteen years old.
PROCEDURE
The State of Washington originally charged Joshua Pulliam, in juvenile court, with
one count of first degree rape and one count of second degree assault for the March 8,
2017 incident, one count of attempted second degree rape for the May 19, 2017 incident,
and one count of second degree rape and one count of second-degree assault for the
November 23, 2017 incident. The State thereafter requested that the juvenile court
decline jurisdiction and transfer the case to adult court. Pursuant to the State’s request,
the juvenile court conducted a lengthy hearing to determine whether to decline
jurisdiction.
The parties elicited the following evidence during the declination hearing. Joshua
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Pulliam was diagnosed with attention-deficit hyperactivity disorder (ADHD) at an early
age. Pulliam also suffers from absence seizures, although he has never been diagnosed
with a seizure disorder. Absence seizures involve lapses in attention. In school, Pulliam
partook in an individualized education plan (IEP) and progressed poorly academically.
Pulliam also suffers from a speech impediment and an unspecified anxiety disorder.
Joshua Pulliam had earlier experiences in juvenile court. On March 15, 2017, he
completed a diversion program for malicious mischief in the third-degree. On April 13,
2017, the juvenile court placed him on probation for fourth-degree assault and malicious
mischief in the third-degree. On September 13, 2017, the juvenile court extended
probation for attempted third-degree malicious mischief.
Joshua Pulliam treats his ADHD with Ritalin, Strattera, and Concerta. According
to Pulliam and his mother, Pulliam uses phenobarbital to manage his seizures. The
Yakima County juvenile detention center did not list, however, phenobarbital as one of
Pulliam’s current medications. The detention center record listed, as Pulliam’s
medications, sertraline for depression, oxcarbazine for seizures, guanfacine for ADHD,
clonidine for anxiety, aripiprazole for major conduct disorder, and an albuterol inhaler for
asthma.
Linda Pulliam, Joshua Pulliam’s mother, testified about her son’s medical issues.
She helped Joshua administer his medications, and she averred that he took phenobarbital
consistently before his arrest.
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During the decline hearing, defense counsel asked Yakima County’s juvenile
detention manager, Steve Driscoll, when the detention facility removed Joshua Pulliam
from his long-term seizure medication, phenobarbital. Driscoll responded:
Never knew he was on it. There were indications that he was on
medication. Our nursing staff had called doctors and whoever was
purported to be prescribing medication, and they stated he had been off of it
for years and that they were uncomfortable in re-prescribing the medication
for him.
Report of Proceedings (RP) at 366. Driscoll commented that Pulliam had not taken
phenobarbital for many years.
At the decline hearing, both parties presented expert testimony. Forensic
psychotherapist Michael Comte assessed Joshua Pulliam and testified on Pulliam’s
behalf. Comte opined that preservation of juvenile court jurisdiction would serve
Pulliam’s best interests. Psychologist Hans Michielsen testified on behalf of the State
and opined that declination would serve the public’s and Pulliam’s interests. Other
experts testified to the condition of and treatment needed by Pulliam.
Michael Comte opined that Joshua Pulliam had an I.Q. score between seventy-five
to eighty-five points. Pulliam read and wrote at a first-grade level and could perform
mathematical computations at a fourth-grade level. He likened Pulliam’s emotional
maturity to an eleven- to thirteen-year-old. Pulliam acted impulsively and lacked insight.
Comte noted that Pulliam responded aggressively toward other children while in
kindergarten. He further noted that Pulliam responded well to treatment throughout life,
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until reaching puberty, at which time his symptoms intensified.
Paula Fluegge, Joshua Pulliam’s probation counselor, testified that, beginning in
2017, Pulliam participated in WISe, a social services program. Pulliam enrolled in WISe
in the late summer of 2017, and he had an anticipated graduating in November 2017.
Pulliam did not graduate, however, due to his arrest for the crimes charged in this
prosecution. Psychologist Hans Michielsen testified that Pulliam made little to no
progress in WISe. According to Michielsen, programs like WISe, unlike IEPs, “don’t set
very clear and specific goals that are measurable and observable.” RP at 42.
According to Paula Fluegge, Joshua Pulliam violated his probation twice. Pulliam
failed to stay at his home and refused to abide by Linda Pulliam’s rules. Pulliam’s
mother also found drugs in his bedroom.
Paula Fluegge described Pulliam’s fragmented conversation style as “talking to
you about one thing and then all of a sudden, he’d be over on another tangent, you know,
talking about something else.” RP at 219. According to Fluegge, Pulliam “just marches
to a different drum than what other kids do.” RP at 232. Further, Pulliam often disclosed
information that went against his best interests. In one instance, Pulliam informed
Fluegge about illegally catching a large fish, which he traded for a sizeable amount of
marijuana, which drugs he then sold for $250. RP 233.
While using juvenile assessment tools, Paula Fluegge determined Joshua Pulliam
to be a moderate risk youth, but his risk level went “up higher since he re-offended
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again.” RP at 230. Nonetheless, she opined that Pulliam was amenable to treatment,
because he completed random drug tests and attended scheduled sessions in his diversion
programs.
Juvenile probation officer Dan Behler testified to Joshua Pulliam’s detention
history. Behler described an instance when, on December 15, 2017, Pulliam spoke, while
in detention, with his grandmother over the phone. Pulliam told his grandmother that
another juvenile hit him in the nose and that he planned “to beat the shit out of” the
person who hit him. RP at 321. Pulliam subsequently told his grandmother that he
would likely lose his phone privileges. Soon after, Pulliam attacked another juvenile
with a headlock, dragged the juvenile to the ground, and punched him several times
before an officer intervened.
Dan Behler testified that the department of corrections (DOC) recommended
“remanding Joshua Pulliam to adult jurisdiction.” RP at 311-12. Behler explained how
Pulliam’s actions factored into this recommendation:
One, there is a sense of surprise, okay; in reference to the—Joshua
Pulliam going towards a head and/or throat area in each situation; in
reference to the victims in the police matters: overpowering them, striking
them, being very aggressive with them; what led up to it, the planning,
whether it be instant planning or time to plan. It’s—there is the
commonality amongst all of them in reference to the sense of surprise and
how he approached or attacked or charged – however, you want to phrase
it—the victims.
RP at 320.
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Linda Pulliam testified that, before Joshua Pulliam attacked a fellow juvenile, he
stopped taking his phenobarbital to control his seizures. She noted that his behavior
changed after being taken off of the medication, after which “he was getting in trouble
right and left for everything.” RP at 374. Before Pulliam’s hearing, Michael Comte did
not know that Pulliam no longer took phenobarbital and opined that the ending of the
drug was problematic.
John Scott, a sex offender treatment coordinator for juvenile detention facility
Green Hill Academy, testified regarding Joshua Pulliam’s treatment options as either a
juvenile or an adult defendant. Scott explained that youthful offenders convicted as
adults serve DOC time in a Juvenile Rehabilitation Administration (JRA) facility, such as
Green Hill. Scott stated that youthful offenders generally stay at Green Hill until they
reach age twenty-one, but may be transferred to the DOC sooner if the offender exhibits
behavioral problems. By contrast, youth still under juvenile jurisdiction serve their entire
sentence at Green Hill and may not be sent to DOC. Youth sentenced as juveniles that
engage in aggressive behavior, however, may be transferred to the intensive management
unit, which would hinder the youth’s treatment.
John Scott described the treatment process for youths sentenced by juvenile court.
The youths receive individual counseling, cognitive behavioral therapy, and didactic
behavioral therapy. The courses run in 16-week cycles. Once the youths serve their
time, they are transferred to a group home, which is structured, but less structured than
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the detention facility. While in the group home, youths may continue school or obtain a
job. The youths later return home on parole.
John Scott testified that a juvenile sentenced in adult court would experience
essentially the same treatment as one sentenced by the juvenile court, at least up to age
twenty-one, at which time juvenile court offenders are transferred to DOC rather than to a
group home and later parole. Up to the age of twenty-one, however, the adult court
offender’s experience “would be no different than a JRA-convicted youth[’s],” aside
from the possibility of being sent to the DOC earlier for behavioral problems. RP at 258.
DOC treatment coordinator Cathi Harris testified that DOC evaluates a juvenile
sentenced as an adult for a sexual conviction to assess their treatment amenability. Harris
explained that youthful offenders are ineligible for sex-offender treatment until twelve to
twenty-four months before their release date.
Dr. Erin Gorter-Hines did not testify at Joshua Pulliam’s hearing, but rather
submitted a report of a comprehensive evaluation she performed in August 2017, as part
of a prior proceeding, in which she found Pulliam to be legally competent. She identified
Pulliam’s mother, Linda Pulliam, as highly inconsistent in reporting her son’s issues.
Michael Comte considered inconsistencies by Joshua Pulliam and Linda Pulliam
regarding Joshua’s medical and social history. Pulliam stated that, in the last couple of
years, he had been hearing a female’s voice that intoned: “[d]o me.” RP at 443. Comte
opined that Pulliam may have been malingering, because Pulliam had not disclosed this
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No. 36531-0-III
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psychiatric symptom until after being charged in this prosecution. Comte also rejected
Pulliam’s allegations of sexual abuse, which Pulliam claimed happened at age five. To
Dr. Erin Gorter-Hines, however, Pulliam reported sexual abuse at age thirteen. Comte
suspected that Pulliam occasionally refused to take his medications.
Michael Comte dismissed Linda Pulliam’s statement that Joshua Pulliam was
diagnosed with autism, as insufficient clinical evidence supported this diagnosis. Joshua
Pulliam informed Comte that he first drank alcohol between the ages of eight and ten and
would drink for a week at a time, whereas Pulliam informed Dr. Erin Gorter-Hines that
he began drinking alcohol at age fifteen and had only consumed on three occasions in
total. Comte observed that Joshua “has a tendency to lie in both directions,” opining that
Joshua cannot “hang on to what reality is all the time.” RP at 448.
Michael Comte’s written opinion read:
“If committed to a juvenile correctional facility, he [Joshua] will
most likely test the limits in authority. He will not be reinforced. In my
opinion, in time he will give up attempts to gain empowerment and control
and allow counseling staff to influence, guide, and direct him.”
RP at 458. Comte’s opinion continued:
“Although under the best of circumstances, it is difficult to predict
the future, I believe Joshua can be significantly influenced by age 21 and
will likely be at a reduced risk for future offending after that.”
RP at 459.
Michael Comte identified challenges to treat Joshua Pulliam for the first few
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months, but Pulliam would benefit from long term treatment. Comte testified that
maintaining juvenile jurisdiction was in Pulliam’s and the public’s best interest. He
expressed concern that adult prison would expose Pulliam to a criminal subculture with
people exploiting and abusing him. Spending eighteen years in prison would harm
Pulliam.
At the close of testimony at the declination hearing, the juvenile court delivered a
detailed oral ruling declining jurisdiction. The court viewed Dr. Erin Gorter-Hines’
evaluation of Joshua Pulliam to be the most comprehensive. The court opined that, while
Michael Comte recognized the discrepancies in Pulliam’s medical and social history,
Comte’s belief that these discrepancies were not substantial detracted from his report’s
credibility. The juvenile court noted that Comte lacked Pulliam’s police reports and
lacked the opportunity to interview Pulliam or his mother. The court also found, based
on Pulliam’s problems in detention and supervision and the inconsistencies in reports
from him and his mother, five years in a juvenile facility, with no ongoing community
supervision, would inadequately protect the public. Finally, the court determined that,
whether it declined juvenile jurisdiction or not, Pulliam would receive identical treatment
during his time at Green Hill.
During a later oral ruling during which Joshua Pulliam challenged proposed
findings of fact, the juvenile court analyzed the eight factors from Kent v. United States,
383 U.S. 541, 566-67, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966). CP 144-59. The court
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emphasized the importance of the public interest, factor eight in the analysis:
So to suggest that there was one piece of this Court’s ruling that
gave any untoward weight and it was not again looking at the totality of the
circumstances—and quite frankly, I could have relied solely on the fact that
I believed that the public’s best interests are protected by declining Mr.
Pulliam and simply relied on that. I didn’t because I—again, I’m going to
stand by my original ruling that I think Mr. Pulliam is also going to be the
one who does benefit long term from this.
RP at 577.
The juvenile court entered extensive written findings of fact and conclusions of
law. The findings included:
...
38. More concerning than the number of priors, which includes
misdemeanors and gross misdemeanors, is the reality that the respondent
did not do well in following the conditions of release while charges were
pending or while on probation after adjudication.
39. The respondent spent 70 days in detention during a seven-month
period up until his arrest in November for violating conditions of release or
probation violations.
....
41. Ms. Fluegge’s quote was “‘Josh marches to the beat of a
different drum.”’
42. The respondent continued to show an increase in aggression at
home and school.
43. While in detention, he also shown [sic] increased aggression
even with the knowledge that the privileges he values, such as phone
privileges and visits with family, would be lost.
....
47. While this factor [Kent factor six] is somewhat straight forward
[sic], it is complicated by the respondent’s mother’s highly inconsistent
reporting that is not backed up by actual records.
....
54. There has been some sexual abuse that was articulated, though
not consistently, with one evaluator noting abuse at age 5 and the other
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noting it age 13.
55. Also, there is inconsistent reporting dealing with the hearing of
voices.
....
76. There was also an evaluation by Dr. Gorter-Hines of the Child
Study Treatment Center that was considered by the Court and found to be
the most comprehensive evaluation of the respondent.
....
90. Mr. Comte’s report and testimony recognizes the above
discrepancies in the information that the respondent’s mother gave to other
service providers, because he had Dr. Gorter-Hines’s report available to
him.
....
93. Even though he [Comte] testified that he recognized the
discrepancies in the information that he was provided, he opined that he did
not consider the discrepancies to be substantial, even though the
discrepancies related to anoxia, seizure history, sexual abuse, hearing
voices, and the age and frequency of the respondent’s use of alcohol.
94. This detracted from the credibility of Mr. Comte’s report.
....
102. Mr. Comte’s opinion—that the respondent will take three
months to acclimate to Green Hill Academy at Juvenile Rehabilitation
(‘JR’), after which time he will engage in meaningful treatment—is just an
opinion.
....
104. This Court can make a reasonable inference that the respondent
will take a longer time to orient himself at Green Hill Academy based on
his documented struggles with conditions of release, violations of
probation, and problems while in detention.
105. There is no way to accurately predict how much time the
respondent will spend in the Intensive Management Unit at JR for
unwanted behavior that will prevent meaningful engagement in the services
and treatment being offered at Green Hill Academy.
106. The respondent will receive identical treatment while at Green
Hill Academy whether he is facing juvenile jurisdiction or adult
jurisdiction.
....
110. The respondent is also going to need additional time to catch up
emotionally, for the difference in his emotional age and his chronological
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age, as discussed by his mother and Mr. Comte.
111. If maintained in juvenile jurisdiction, there would be only a five
year window with no ongoing community supervision.
112. The respondent’s documented problems in detention and on
supervision, the lack of records to back up assertions made by the
respondent and his family, the conflicting information regarding the
respondent’s issues, and the lack of truthfulness demonstrated on an
ongoing basis by the respondent lead to a reasonable inference that five
years is simply not enough of a window to provide adequate rehabilitation
that would, in turn, provide protection for the public upon release.
113. The adult system puts such safeguards in place.
114. The respondent will receive not only the same programming for
the first five years at JR but will then extend his opportunities to work on
those skills with additional programming opportunities for inmates at DOC
who have similar backgrounds.
115. The adult system will provide a longer structured environment
with the opportunity for booster sessions once reintegration is possible to
help if the process is not going well, rather than “‘21 and done’” at JR.
116. Not only would this court be placing the protection of the
public at significant risk by allowing for “‘21 and done,’” this court would
also not be giving the respondent every opportunity to be successful once
he is reintegrated into society.
117. Based upon the substantial documented needs of the
respondent, it is in his best interests to be rehabilitated in the adult system.
118. It is clearly in the public’s best interest from a safety standpoint
to move the respondent to the adult jurisdiction which could require a
lifetime community custody safety valve.
119. This factor [Kent factor eight]—the prospects for protecting the
public and the likelihood of rehabilitating the juvenile—weighs in favor of
moving the respondent to adult jurisdiction.
Clerk’s Papers (CP) at 149-58.
The juvenile court entered two conclusions of law:
120. Considering the seven Kent factors that apply in this case, in
light of all the evidence and testimony that has been presented, it is this
Court’s determination by a preponderance of the evidence that declination
will be in the best interest of the juvenile and the public; therefore, the
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State v. Pulliam
respondent is remanded to the adult jurisdiction by order of this Court.
121. The Court’s oral ruling delivered on the record is incorporated
herein by reference.
CP at 158.
After juvenile court declination, the State in adult court, by second amended
information, charged Joshua Pulliam with rape in the first degree, assault in the fourth
degree, rape in the second degree, assault in the second degree, and felony harassment of
another via threat to kill. Pulliam pled guilty to the charged crimes. When entering his
guilty plea, Pulliam maintained his objection to the juvenile court’s decision to decline
jurisdiction. The adult court sentenced Joshua Pulliam to an indeterminate sentence of
200 months’ to life.
LAW AND ANALYSIS
On appeal, Joshua Pulliam argues: (1) the evidence does not support the juvenile
court’s findings regarding Michael Comte’s consideration of inconsistencies, (2) the
defective findings regarding Comte impacted the juvenile court’s evaluation of Kent
factor six, (3) the evidence does not support the juvenile court’s finding regarding
Pulliam’s treatment options and responses to interventions, (4) the juvenile court’s
defective findings impacted its evaluation of Kent factor eight, and (5) the inadequate
evaluation of factors six and eight led to a mistaken decision to decline jurisdiction.
Pulliam also asserts cumulative error.
RCW 13.40.110(3) governs when a juvenile court may decline jurisdiction:
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No. 36531-0-III
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The court after a decline hearing may order the case transferred for
adult criminal prosecution upon a finding that the declination would be in
the best interest of the juvenile or the public. The court shall consider the
relevant reports, facts, opinions, and arguments presented by the parties and
their counsel.
A juvenile court’s decision on whether to decline jurisdiction is discretionary and
reversible only if this court finds that the juvenile court abused its discretion. State v.
M.A., 106 Wn. App. 493, 498, 23 P.3d 508 (2001). A juvenile court abuses its discretion
when it exercises it on a ground, or to an extent, clearly untenable or manifestly
unreasonable. State v. M.A., 106 Wn. App. at 498.
When considering whether to decline jurisdiction, the juvenile court must consider
eight factors outlined by the United States Supreme Court in Kent v. United States, 383
U.S. 541, 566-67 (1966). The Kent factors include:
(1) the seriousness of the alleged offense and whether the protection
of the community requires waiver; (2) whether the alleged offense was
committed in an aggressive, violent, premediated or willful manner; (3)
whether the alleged offense was against persons or against property; (4) the
prosecutive merit of the complaint; (5) the desirability of juvenile trial and
disposition of the entire offense in one court when the juvenile’s
accomplices in the alleged offense are adults; (6) the juvenile’s
sophistication and maturity as determined by consideration of his or her
home, environmental situation, emotional attitude, and pattern of living; (7)
the juvenile’s record and previous history; and (8) the prospects for
adequate protection of the public and the likelihood of reasonable
rehabilitation of the juvenile by the use of procedures, services, and
facilities available in the juvenile court.
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State v. M.A., 106 Wn. App. at 497-98 (footnotes omitted). Although not all eight of the
Kent factors must be proven in order to justify declination, the juvenile court abuses its
discretion when it does not consider all eight factors. State v. M.A., 106 Wn. App. at 498.
In support of his arguments, Joshua Pulliam assigns error to the following findings
of fact: 38-39, 41-43, 47, 53-55, 76, 90, 93-94, 102, 104-106, 110-119. Pulliam further
argues that substantial evidence fails to support conclusions of law 120 and 121. We
earlier quoted the challenged findings of fact and conclusions of law.
This court will not disturb the juvenile court’s factual findings if substantial
evidence supports them. State v. M.A., 106 Wn. App. at 498. Evidence is substantial
when it is of sufficient quantity to persuade a fair-minded, rational person of the truth of
the allegation. State v. Ware, 111 Wn. App. 738, 742, 46 P.3d 280 (2002). To determine
whether substantial evidence supports the juvenile court’s decision, this court examines
the entire record, including the court’s oral opinion. State v. M.A., 106 Wn. App. at 498.
This court treats unchallenged findings of fact as verities on appeal. State v. Stenson, 132
Wn.2d 668, 697, 940 P.2d 1239 (1997).
Michael Comte’s Consideration of Inconsistencies
The juvenile court found that Joshua Pulliam and his mother Linda reported
inconsistent facts to different mental health care professionals. The inconsistencies
included Joshua’s alcohol consumption, hearing of voices, and sexual abuse. The
juvenile court inferred from this evidence that the Pulliams reported new information to
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Michael Comte that they did not report to Dr. Erin Gorter-Hines in an attempt to skew
Comte’s report in favor of juvenile jurisdiction.
Joshua Pulliam argues that the juvenile court’s findings of fact relating to Michael
Comte’s testimony and report are unsupported by substantial evidence.
Nevertheless, in his brief, Pulliam concedes that he and his mother reported facts
inconsistent with facts reported to other professionals and even inconsistently reported
facts to Michael Comte. Pulliam further agrees that he and his mother attempted to skew
the opinions of Comte by providing him false information and that Comte concluded that
Pulliam and his mother misled him.
Joshua Pulliam’s challenge to the trial court’s findings consists more of a
challenge to inferences drawn by the court from the underlying evidence rather than an
assertion to a lack of supporting evidentiary facts. Pulliam objects to the court’s
extrapolation that, when Michael Comte rendered his opinions, Comte failed to
adequately consider Pulliam’s manipulation and lack of credibility. In turn, Pulliam
challenges the trial court’s choosing of the opinions of one expert over another expert.
The trial court decided to base its conclusions more on the opinions rendered by Dr. Erin
Gorter-Hines. We discern no error in the court accepting Dr. Gorter-Hines’ opinions
instead. The credit to be given to any expert opinion testimony is quintessentially a
matter for the trier of fact to determine. Strauss v. Premera Blue Cross, 194 Wn.2d 296,
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302, 449 P.3d 640 (2019); Grove v. PeaceHealth St. Joseph Hosp., 182 Wn.2d 136, 146,
341 P.3d 261 (2014).
Kent Factor Six: The Juvenile’s Sophistication and Maturity
In deciding whether to decline juvenile jurisdiction, the juvenile court must
consider, along with all seven other factors, Kent factor six addressing the juvenile’s
sophistication and maturity as determined by consideration of his or her home,
environmental situation, emotional attitude, and pattern of living. State v. M.A., 106 Wn.
App. 493, 497-98 (2001). In finding of fact 63, the juvenile court found that Kent factor
six weighed in Joshua Pulliam’s favor.
On appeal, Joshua Pulliam contends that, although the juvenile court resolved
Kent factor six in his favor, the court’s erroneous findings of fact relating to Michael
Comte’s evaluation resulted in this factor weighing less in Pulliam’s favor than it would
have if the court entered findings supported by substantial evidence. Nevertheless, as
analyzed above, the findings of fact relating to Michael Comte’s evaluation were
sufficient. Although Pulliam assigned error to those findings, his argument did not
challenge the findings. We question whether the accused may ever successfully
challenge the trial court’s weighing of a Kent factor, when the court deems the factor to
favor the accused. Nevertheless, we find no error in the trial court’s handling of factor 6
when the facts supported the trial court’s use of the factor.
Joshua Pulliam’s Treatment Options and Responses to Intervention
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Joshua Pulliam next asserts that the juvenile court entered insufficient findings
relating to his treatment options and his responses to previous time spent in juvenile
detention. Pulliam challenges the court’s findings that: (1) he would receive identical
treatment opportunities during his first five years at Green Hill regardless of whether the
court declined jurisdiction, (2) he acted inappropriately following his release pending
charges and while on probation after adjudication of his prior convictions, (3) he showed
increased aggression at home, at school, and in detention, and (4) he would not respond
well to continuous treatment available in juvenile detention for the next five years if the
juvenile court retained jurisdiction. We address these discrete contentions in such order.
A. Identical Treatment
Joshua Pulliam challenges the following findings of fact:
106. The respondent will receive identical treatment while at Green
Hill Academy whether he is facing juvenile jurisdiction or adult
jurisdiction.
....
114. The respondent will receive not only the same programming for
the first five years at JR but will then extend his opportunities to work on
those skills with additional programming opportunities for inmates at DOC
who have similar backgrounds.
CP at 156-57. Nevertheless, ample testimony supported these two findings.
Joshua Pulliam highlights that, under adult jurisdiction, he would lack the
opportunity to transition to a group home or parole after his twenty-first birthday. He
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also emphasizes that he could be transferred to DOC before he turned twenty-one years
old.
The juvenile court noted that, while Joshua Pulliam remained at Green Hill, his
treatment would be identical to that of one sentenced in juvenile court. The juvenile
court did not find that Pulliam’s treatment would remain identical once he transferred to
the DOC. Furthermore, as the State argues, while Pulliam could be transferred to DOC
early, the transfer would result from his behavior at Green Hill. Additionally, according
to DOC Treatment Coordinator Cathi Harris, Joshua Pulliam has the chance to seek sex
offender treatment during the final twelve to twenty-four months of his sentence.
B. Probation Performance
Joshua Pulliam next argues that the juvenile court entered three findings of fact
based on a misunderstanding of witness testimony regarding his prior court contacts.
Pulliam challenges the following findings of fact:
38. More concerning than the number of priors, which includes
misdemeanors and gross misdemeanors, is the reality that the respondent
did not do well in following the conditions of release while charges were
pending or while on probation after adjudication.
39. The respondent spent 70 days in detention during a seven-month
period up until his arrest in November for violating conditions of release or
probation violations.
....
41. Ms. Fluegge’s quote was “‘Josh marches to the beat of a
different drum.’”
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CP at 149. Pulliam does not challenge finding of fact 38 insofar as it states that his
number of prior convictions causes concern. Additionally, he only challenges finding of
fact 41 inasmuch as it suggests that the court believed Paula Fluegge’s statement referred
to his lack of success on probation.
The three findings of fact relate to the juvenile court’s analysis for Kent factor
seven, Joshua Pulliam’s prior criminal record and history. State v. M.A., 106 Wn. App.
493, 498 (2001). In its findings, the juvenile court labeled its analysis of factor seven as
factor four and vice versa. Kent factor four relates to the prosecutive merit of the
complaint against the juvenile. State v. M.A., 106 Wn. App. at 497. We deem the
confusion to constitute a scrivener’s error that does not detract from the juvenile court’s
analysis.
The juvenile court found that Kent factor seven weighed in Joshua Pulliam’s
favor:
44. Even though the Court is concerned about this factor, the
respondent’s prior criminal history weighs in favor of retaining juvenile
jurisdiction.
CP at 150.
Joshua Pulliam contends that the juvenile court misunderstood his probation
counselor, Paula Fluegge’s, testimony. Fluegge testified that Pulliam did not graduate
from the WISe program due to being arrested for the crimes charged in this matter.
Fluegge indicated that Pulliam violated his probation twice, once when failing to obey his
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No. 36531-0-III
State v. Pulliam
mother’s home rules by leaving the house as he pleased and once when his mother found
drugs in his room. According to Fluegge, Pulliam “just marches to a different drum than
what other kids do.” RP at 232.
Using juvenile assessment tools, Paula Fluegge determined Joshua Pulliam to be at
moderate risk for reoffending, but his risk level increased since his re-offense.
Nonetheless, Fluegge opined that Pulliam was amenable to treatment, because he
completed random drug tests and attended scheduled sessions in his diversion programs.
Joshua Pulliam argues that, when Paula Fluegge stated that he “‘re-offended
again,’” she was “referring to minor offenses unrelated to the pending charges.”
Amended Br. of Appellant at 32. Pulliam fails to explain why Fluegge’s opinion as to his
likelihood of reoffending should be diminished due to the type of violations he
committed.
The juvenile court determined that Joshua Pulliam did not follow his probation
conditions after his prior adjudications. The juvenile court noted Paula Fluegge’s
decision to increase Pulliam’s risk level from moderate to high. The juvenile court found
Pulliam’s poor probation performance significant. Nevertheless, despite its concerns, the
juvenile court resolved Kent factor seven, labeled in its findings as Kent factor four, in
Pulliam’s favor. Substantial evidence supports the juvenile court’s findings regarding
Joshua Pulliam’s poor probation performance.
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No. 36531-0-III
State v. Pulliam
C. Increased Aggression
Joshua Pulliam asserts that evidence did not support the juvenile court’s findings
of fact related to his increased aggression at home, in school, and in detention. Pulliam
contends that, based on these findings, the juvenile court erroneously concluded that he
would not be amenable to treatment in juvenile detention. Pulliam argues that his
adolescence and abrupt removal from phenobarbital resulted in his behavioral changes.
Joshua Pulliam and his mother maintained that Pulliam took phenobarbital to
control his seizures and that he took this medication consistently until being placed in
juvenile detention in 2017. Pulliam’s mother noted that his behavior had changed after
being taken off of phenobarbital, stating that “he was getting in trouble right and left for
everything.” RP at 374. Before Pulliam’s hearing, Michael Comte did not know that
Pulliam “was taken off of his phenobarbital without being—apparently without being
tapered off his phenobarbital, which, oooh, can be really scary.” RP at 431. Pulliam
contends that being suddenly taken off phenobarbital contributed heavily to his increased
aggression.
The trial record demonstrates that a provider prescribed phenobarbital to Joshua
Pulliam. Aside from the Pulliams’ testimony, the record establishes that Pulliam took
this medication for a significant period before entering juvenile detention. Nevertheless,
Yakima County’s records list the current medications Pulliam took while in juvenile
detention: sertraline for depression, oxcarbazine for seizures, guanfacine for ADHD,
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No. 36531-0-III
State v. Pulliam
clonidine for anxiety, aripiprazole for major conduct disorder, and an albuterol inhaler for
asthma. Phenobarbital is not listed. Furthermore, when defense counsel asked Yakima
County juvenile detention manager Steve Driscoll when Pulliam was taken off of
phenobarbital, Driscoll replied that he did not know Pulliam took the medication and
communications from detention staff to Pulliam’s doctors indicated that he had not taken
the medication for years. Thus, the record supports a finding that Pulliam had not been
taking phenobarbital on entering juvenile detention.
Dan Behler, a juvenile probation officer, recommended declining juvenile
jurisdiction. In support of his decision, Behler cited Joshua Pulliam’s aggressive attacks
of the victims, including how Pulliam overpowered them, struck them, and went for the
victims’ head or throat during his surprising assaults. These actions occurred before
Pulliam’s confinement, when he and his mother alleged that he regularly took
phenobarbital. Even if, as Pulliam argues, he had been taking his medication consistently
when he committed these crimes, this evidence harms his argument.
If Joshua Pulliam aggressively attacked three women, while on phenobarbital,
Pulliam’s attack of a fellow juvenile while in detention likely would have occurred
irrespective of his suddenly ceasing the medication. Dan Behler described this attack. In
addition, in December 2017, Pulliam spoke with his grandmother over the phone.
Pulliam indicated that he had been hit in the nose and that he was “going to beat the shit
out of” someone, presumably the person who hit Pulliam. RP at 321. Pulliam
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No. 36531-0-III
State v. Pulliam
subsequently told his grandmother that he would likely lose his phone privileges. Soon
after, Pulliam attacked another juvenile with a headlock, dragged the juvenile to the
ground, and punched him several times before an officer intervened.
In short, substantial evidence supports the juvenile court’s findings related to
Joshua Pulliam’s aggression.
D. Continuous Treatment
The juvenile court’s finding of fact 39 declares that Joshua Pulliam spent seventy
days in detention during a seven-month period until his arrest in November for violating
conditions of release or probation violations. Pulliam construes this finding as suggesting
that his period of confinement was continuous, not intermittent, or that his prior custody
indicated that his future treatment in a juvenile facility would be ineffective over the next
five years, if the juvenile court retained jurisdiction.
We agree with Joshua Pulliam that he spent time in and out of detention, rather
than being held continuously for seventy days. Nevertheless, the juvenile court did not
find that Pulliam spent seventy continuous days in confinement, particularly since the
juvenile court wrote that Pulliam spent seventy days in incarceration over the course of
seven months. Seven months contains more than seventy days.
Joshua Pulliam claims that, if he received continuous treatment for an extended
period, he would have responded well. He observes that, according to John Scott, Green
Hill’s sex offender treatment coordinator, group therapy courses run in 16-week cycles.
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No. 36531-0-III
State v. Pulliam
Because Pulliam’s longest prior stint in custody would not have allowed him to complete
half of one 16-week program, he argues that the treatment he received was substantially
disrupted over his time in and out of custody.
Joshua Pulliam’s contention assumes that, during his prior period of confinement,
he spent time at Green Hill. The record does not support this fact. Rather, Pulliam was
incarcerated at the juvenile detention center in Yakima County. Thus, Pulliam could not
have accessed the treatment options that Green Hill offers.
Joshua Pulliam did not respond well to treatment intervention during his
intermittent confinement across seven months. Although Green Hill would afford
Pulliam more aggressive treatment options, he remained unamenable to treatment during
his previous incarceration periods. The record supports that Pulliam will require more
time to rehabilitate than five years, the maximum stay in the juvenile system. Thus, the
juvenile court did not err in finding that Pulliam’s prior court interventions were
representative of his future treatment amenability.
Kent Factor Eight: Protecting the Public and Rehabilitating Joshua Pulliam
The juvenile court resolved Kent factor eight in favor of declining jurisdiction
because adult court would both protect the public and assist in Joshua Pulliam’s
rehabilitation. Pulliam argues that the findings of fact that he previously challenged
infected the juvenile court’s consideration of Kent factor eight and its decision to decline
jurisdiction.
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No. 36531-0-III
State v. Pulliam
Kent factor eight requires the juvenile court to consider “the prospects for
adequate protection of the public and the likelihood of reasonable rehabilitation of the
juvenile by the use of procedures, services, and facilities available in the juvenile court.”
State v. M.A., 106 Wn. App. 493, 498 (2001) (footnote omitted). We have already
determined that substantial evidence supports all of the juvenile court’s findings that
Joshua Pulliam challenges. The juvenile court gave due consideration to each Kent factor
and found that declination is in both the public’s and Pulliam’s best interests by a
preponderance of the evidence. The juvenile court did not abuse its discretion by
remanding Pulliam to adult court jurisdiction.
Cumulative Error
Joshua Pulliam also contends that cumulative error led to the juvenile court’s
declination of jurisdiction. Since we find no error, the cumulative error doctrine does not
apply.
CONCLUSION
We affirm the juvenile court’s declination of jurisdiction and, in turn, the adult
court convictions of Joshua Pulliam.
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No. 36531-0-III
State v. Pulliam
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_________________________________
Fearing, J.
WE CONCUR:
______________________________
Lawrence-Berrey, J.
______________________________
Staab, J.
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