State v. B.O.J.

yFTUEV
^ IN CLERKS OPPICe X
This opinion was
filed for record
SUnStE COURT.8IXIE OF WMSHMQTOI
I ^TE OCT (1 9ni9 Cj0t'^/r~ "
\ lO\M (\AAA^ir , ^ Susan L. Carison
^ CHIEF JUSTICE Supreme Court Clerk
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASfflNGTON, No. 95542-5
Respondent, EN BANC
V. Filed OCT 0 3
B.O.J.,
Petitioner.
FAIRHURST, C.J.—In this moot case of substantial and continuing public
interest, a juvenile offender challenges whether her need for treatment was an
appropriate basis for imposing a manifest injustice disposition. We hold that it was
not. We reverse the Court of Appeals' holding that B.O.J.'s need for treatment
supported the trial court's finding that a standard range disposition would effectuate
a manifest injustice.
Because the case is moot, we decline to reach B.O.J.'s claim that the State
breached its plea agreement.
State V. B.OJ.,m. 95542-5
1. FACTS AND PROCEDURAL HISTORY
B.OJ. had a difficult childhood and adolescence, having been bom crack
exposed. She was raised primarily by her grandmother, with intermittent contact
with her father. In March 2014, she entered into a dependency guardianship with the
former Department of Social and Health Services (DSHS).' Her grandmother died
in 2016.
B.O.J. habitually ran away from her DSHS foster placements, as evidenced
by 18 dependency contempt warrants issued from 2014 to 2016. During that same
period she began to accrue a criminal history, consisting of the following gross
misdemeanors: one count of attempted second degree taking of a motor vehicle, five
counts of attempted third degree theft, two counts of false statement, two counts of
fourth degree assault, and unlawful possession of alcohol by a minor. Also in that
time, roughly 30 warrants were issued for violations of a court order and for failure
to appear for mandatory court hearings.
On November 15, 2016, B.O.J. pleaded guilty to two counts of third degree
theft for shoplifting from a Safeway. These offenses subjected her to a '"local
sanctions'" standard sentence range, consisting of"one or more of the following":
(1)0-60 days of confinement,(2)0-24 months of community supervision,(3)0-300
'The newly created Department of Children, Youth, and Families took over child welfare
duties that were formerly the responsibility of DSHS,effective July 1, 2018. ROW 43.216.906.
State V. B.OJ.,^0. 95542-5
hours of community restitution, or (4) a fine of $0-$l,000. RCW 13.40.020(18),
.0357, .180. In exchange for her plea, the prosecution promised to recommend 6
months of community supervision, 8 hours of community service, credit for time
served, release at her sentencing disposition, and no contact with the victims. The
plea agreement specified that the State's recommendation could "INCREASE IN
SEVERITY" if B.O.J. "VIOLATE[D] CONDITIONS OF RELEASE." Clerk's
Papers(CP)at 15.
B.O.J.'s disposition hearing occurred on December 13, 2016. The State
contended that it was no longer bound by the plea agreement, asserting that B.O.J.
had violated the conditions of her release by running away from placement. The
State recommended a manifest injustice disposition of 27 to 36 weeks of
confinement in a Juvenile Rehabilitation Administration (JRA) facility. The
prosecutor stated that his recommendation was "based on [B.O.J.'s] inability to
comply with community supervision terms" and "her rather extreme needs that have
been untreated so far and cannot be treated in the community." Verbatim Report of
Proceedings (VRP)(Dec. 13, 2016) at 20-21. He reasoned, "That amount of time
will allow her at least one shot, if not two, at drug and alcohol treatment," a process
that "takes at least 10 weeks" and often needs to be tried more than once by "youth
who have been historically resistant to that treatment." Id. at 20.
State V. No. 95542-5
B.O.J.'sjuvenile probation counselor(JPC)submitted a report recommending
52 to 65 weeks of confinement at a JRA facility. The report detailed B.O.J.'s
personal, criminal, mental health, and substance abuse histories. Attached to the
report were roughly 80 pages of supplemental materials, including court records;
DSHS records; a global appraisal ofindividual needs assessment from July 28,2015;
a urinalysis from November 19, 2016 testing positive for cannabinoids; school
transcripts and disciplinary records; a mental health summary report from the
Juvenile Justice Assessment Team of the King County Superior Court; and a pass
from fall 2015 for inpatient drug and alcohol treatment at a facility in Spokane.
B.O.J.'s counsel recommended 60 days of confinement with a pass for
inpatient treatment and 4 months of community supervision.
The court found (1) that the standard range "would not allow sufficient time
for [B.O.J.] to complete the services she needs, nor would she engage with such
services in the community;"(2)that the standard range "would be too lenient in light
of[B.O.J.'s] uncharged criminal conduct, dismissed charges, and failures to comply
with court orders;" and (3) that "[ejither of these bases, standing alone, would be
sufficient for the Court to impose" the manifest injustice disposition. CP at 41
(Findings of Fact & Conclusions of Law for Manifest Injustice Disposition(FFCL)
paras. 20-24).
State V. 95542-5
At the disposition hearing, the trial court orally stated its findings that both
the need for treatment and the fact that the standard range would be too lenient
supported the manifest injustice disposition. But immediately after stating its finding
that the standard range was too lenient, the trial court continued,"And I guess—let
me back up—^not so much the seriousness of her adjudications, but the seriousness
ofthe services that she needs in order to have success." VRP at 30. The court further
elaborated that
ifI'm given two choices, one being her on the street and hoping for the
best, and one being her in a place where she's stable and has access to
treatment ... at some point during that period of time, hopefully she
realizes . . . that there are things out there that can help her. . . . [The]
JRA in this state is not designed to warehouse people ... it's designed
to offer services in a place where you,[B.O.J.], weren't able to get them
before.
Id. at 34-35. The trial court also found as a mitigating factor that B.O.J.'s conduct
neither caused nor threatened serious bodily injury, RCW 13.40.150(3)(h)(i), but
concluded that "the services that [B.O.J.] needs far outweigh—let me back up—^the
aggravating factors in this case far outweigh that mitigating factor, and still require
a manifest injustice sentence." VRP at 36. The trial court imposed a manifest
injustice disposition of42 to 52 weeks of JRA confinement.
The Court of Appeals affirmed B.O.J.'s manifest injustice disposition. State
V. Jones, No. 76258-3-1 (Wash. Ct. App. Jan. 22, 2018) (unpublished),
https://www.courts.wa.gov/opinions/pdf/762583.pdf. We granted review.
State V. B.O.J, No. 95542-5
11. ANALYSIS
A. Whether a juvenile offender's need for treatment is an appropriate basis for
imposing a manifest injustice disposition is a matter of continuing and
substantial public interest
B.O.J. concedes that her appeal is moot. Because she has served her full
disposition and is no longer a juvenile, we can no longer provide effective relief. Cf.
State V. Turner, 98 Wn.2d 731, 733, 658 P.2d 658 (1983). But she argues that she
raises issues of substantial public interest that warrant our review.
"It is a general rule that, where only moot questions or abstract propositions
are involved, ... the appeal . .. should be dismissed." Sorenson v. City of
Bellingham, 80 Wn.2d 547, 558,496 P.2d 512(1972). Nevertheless, we may decide
a moot case if it involves "matters of continuing and substantial public interest." Id.We consider the following criteria in determining whether or not a
sufficient public interest is involved:
(1) the public or private nature of the question presented;
(2)the desirability ofan authoritative determination which
will provide future guidance to public officers; and(3)the
likelihood that the question will recur.
In re Det. of Swanson, 115 Wn.2d 21, 24-25, 793 P.2d 962, 804 P.2d 1 (1990)
(quoting Dunner v. McLaughlin, 100 Wn.2d 832, 838, 676 P.2d 444 (1984)); see
also Nat'l Elec. Contractors Ass'n v. Seattle Sch. Dist. No. 1, 66 Wn.2d 14, 20, 400
P.2d 778 (1965). "A fourth factor may also play a role: 'the level of genuine
adverseness and the quality of advocacy of the issues'." Westerman v. Cary, 125
Wn.2d 277, 286,885 P.2d 827,892 P.2d 1067(1994)(quotingT/ar? v. Dep'tofSoc.
6
State V. No. 95542-5
& Health Servs., Ill Wn.2d 445, 448, 759 P.2d 1206 (1988)). "In addition, we
consider the likelihood that the issue will never be decided by a court due to the
short-lived nature of the case." Philadelphia II v. Gregoire, 128 Wn.2d 707, 712,
911 P.2d389 (1996).
B.O.J. contends that the need for substance abuse and mental health treatment
is not an appropriate basis for imposing a manifest injustice disposition under the
Juvenile Justice Act of 1977(the Act), chapter 13.40 RCW.While B.O.J.'s particular
treatment needs are private, "the need to clarify [a] statutory scheme ... is a matter
ofcontinuing and substantial public interest." Dunner, 100 Wn.2d at 838. Moreover,
by citing other pending motions for discretionary review,B.O.J. convincingly argues
that this issue is likely to recur. And because of the relatively short length of most
juvenile offender dispositions, this court rarely has the opportunity to consider them
before they become moot. We thus conclude that whether the need for treatment may
support a juvenile court's manifest injustice finding is a matter of continuing and
substantial public interest that merits our review.
B.O.J. also asserts that the prosecution breached its plea agreement by
recommending a manifest injustice disposition. That allegation is tied up in the
unique facts ofthis case. She has not shown that the issue presents a public question
7
State V. No. 95542-5
or that it is likely to recur.^ Conscious of the fact that overuse of the public interest
exception would "threaten[] to swallow the basic rule" of not resolving moot
questions, we decline to reach this issue. Hart, 111 Wn.2d at 450.
B. Need for treatment is typically not an appropriate basis for imposing a
manifest injustice disposition
1. Standard ofreview
We typically review a manifest injustice disposition for manifest abuse of
discretion,^ asking whether "the reasons supplied by the disposition judge are
supported by the record which was before the judge," whether "those reasons clearly
and convincingly support the conclusion that a disposition within the range would
constitute a manifest injustice," and whether "the sentence imposed was neither
clearly excessive nor clearly too lenient." State v. M.L., 134 Wn.2d 657, 660, 952
P.2d 187 (1998); RCW 13.40.230(2). "Once a juvenile court has concluded that a
disposition within the standard range would effectuate a manifest injustice, the court
is vested with broad discretion in determining the appropriate sentence to impose."
M.L., 134 Wn.2d at 660. If a trial court's ruling is based on an erroneous view ofthe
law or involves application of an incorrect legal analysis, it necessarily abuses its
^ To the contrary, B.O.J.'s counsel conceded at oral argument that this issue is unlikely to
recur. Wash. Supreme Court oral argument, State v. No. 95542-5 (Mar. 12, 2019), at 8
min., 36 sec., video recording by TVW, Washington State's Public Affairs Network,
http://www.tvw.org.
^ State V. Sledge, 133 Wn.2d 828, 844, 947 P.2d 1199(1997).
8
State V. B.O.J, No. 95542-5
discretion. Dix v. ICTGrp., Inc., 160 Wn.2d 826, 833, 161 P.3d 1016 (2007); State
V. Kinneman, 155 Wn.2d 272, 289, 119 P.3d 350 (2005).
This case also involves a question ofstatutory interpretation: whether the need
for treatment is an appropriate basis for imposing a manifest injustice disposition
under the Act. "Statutory interpretation 'is a question of law reviewed de novo.'"
BNSFRy. Co. v. Clark, 192 Wn.2d 832, 837, 434 P.3d 50(2019)(quoting State v.
James-Buhl, 190 Wn.2d 470, 474, 415 P.3d 234 (2018)). "The goal of statutory
interpretation is to discern and implement the legislature's intent." State v.
Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007). To discern legislative intent,
we look first to the statute's plain language.Id. Ifthe plain language is unambiguous,
our inquiry is at an end. Id. Where the plain language admits of more than one
reasonable interpretation, it is ambiguous.Id. We may then look to legislative history
as a further indication oflegislative intent. Id. at 110-11."'The ordinary use ofwords
at the time when used, and the meaning adopted at that time, is usually the best guide
for ascertaining legislative intent.'" Jongeward v. BNSF Ry. Co., 174 Wn.2d 586,
596, 278 P.3d 157(2012)(quoting 5/oomer v. Todd, 3 Wash. Terr. 599, 615, 19 P.
135 (1888)).
2. The statutory scheme
The Act states that "[i]f the court concludes .. . that disposition within the
standard range would effectuate a manifest injustice the court shall impose a
State V. B.O.J.,^0. 95542-5
disposition outside the standard range .... The court's finding of manifest injustice
shall be supported by clear and convincing evidence." RCW 13.40.160(2).
This statutory scheme is most naturally read as imposing a two-part procedure
on the juvenile sentencing court. First, the court must "conclude[] ... that
disposition within the standard range would effectuate a manifest injustice." Id.Then, having made this threshold determination, the court determines what
particular length and form of manifest injustice disposition is appropriate. This
reading is indicated by the conditional form of RCW 13.40.160(2): "if the court
concludes . . . that disposition within the standard range would effectuate a manifest
injustice the court shall impose a disposition outside the standard range."(Emphasis
added.)
The court's threshold determination that a standard range disposition would
effectuate a manifest injustice is guided by the statutory definition of "manifest
injustice." In the case of a manifest injustice disposition that exceeds the standard
range, the court must find, as a threshold matter, that a standard range disposition
"would impose a serious, and clear danger to society in light ofthe purposes of this
chapter." RCW 13.40.020(19)(defining "manifest injustice").
Chapter 13.40 RCW expressly lists 13 "equally important purposes." RCW
13.40.010(2). Some of the statutorily enumerated purposes will be relevant to this
determination (e.g., "[pjrotect the citizenry from criminal behavior," RCW
10
State V. No. 95542-5
13.40.010(2)(a)), while others will not(e.g.,"[djevelop effective standards and goals
for the operation, funding, and evaluation of all components of the juvenile justice
system and related services at the state and local levels," RCW 13.40.010(2)(i)).
Under the plain language of the Act, only to the extent that they suggest that "a
serious, and clear danger to society" are the statutorily enumerated purposes relevant
to the threshold manifest injustice determination. RCW 13.40.020(19).
At the disposition hearing, the trial court is required to consider statutorily
enumerated mitigating and aggravating factors. RCW 13.40.150(3)(h),(i). But see
State V. Rhodes, 92 Wn.2d 755, 759, 600 P.2d 1264 (1979), overruled on other
grounds by State v. Baldwin, 150 Wn.2d 448, 78 P.3d 1005 (2003), and abrogated
on other grounds by State v. T.J.S.-M., 193 Wn.2d 450, 441 P.3d 1181 (2019)
("[T]he court is not limited to consideration of the statutorily enumerated factors.).
Aggravating and mitigating factors may be relevant to both the threshold
determination that a standard disposition would effectuate a manifest injustice and
the court's subsequent determination of what particular form (i.e., confinement or
community supervision) and length of manifest injustice determination is
appropriate. For example, the fact that the juvenile's "conduct neither caused nor
threatened serious bodily injury'"^—or, conversely, that "[t]he offense was
RCW 13.40.150(3)(h)(i)(mitigating factor).
11
State V. B.O.J.,^0. 95542-5
committed in an especially heinous, cruel, or depraved manner"^—speaks both to
whether a standard range disposition would "impose a serious, and clear danger to
society"^ and to what precise form and length of disposition is appropriate.
The trial court articulated two independent reasons supporting its decision to
impose a manifest injustice disposition. We consider each in turn.
3. B.O.J's need for treatment does not support a finding of manifest
injustice
First, the trial court found that a standard range disposition "would not allow
sufficient time for [B.O.J.] to complete the services she needs, nor would she engage
with such services in the community." CP at 41 (FFCL para. 20). We hold that this
was not an appropriate basis for imposing a manifest injustice disposition.
To impose a manifest injustice disposition, the trial court must find that the
standard range "would impose a serious, and clear danger to society in light of the
purposes of this chapter." RCW 13.40.020(19), .160(2). In this case, the trial judge
found that the standard range would effectuate a manifest injustice in part because
of the seriousness of the substance abuse and mental health treatment services that
B.O.J. needed, and because ofthe length oftime that the State believed B.O.J. would
need to complete those services.
^ RCW 13.40.150(3)(i)(ii)(aggravating factor).
^ RCW 13.40.020(19)(defining "manifest injustice").
12
State V. B.O.J, No. 95542-5
But a juvenile's need for such services typically does not impose a serious,
and clear danger to society, and there is no indication that B.OJ.'s particular needs
did so either. The record does not indicate, for example,that the State sought mental
health treatment services to prevent B.O.J. from harming other members of society.
Instead, the record indicates that B.O.J. would benefit from counseling to address
the substantial trauma of her unstable home life and experiences as a transient youth.
And the record fails to indicate that her history of alcohol and marijuana use, while
personally harmful, imposed a serious, and clear danger to society.
The State argues that since "[p]rovid[ing] necessary treatment, supervision,
and custody for juvenile offenders" is one of "equally important" statutorily
enumerated purposes ofthe Act, RCW 13.40.010(2)(g), the trial court's finding that
B.O.J. had treatment needs supported its conclusion that the standard range "would
impose a serious, and clear danger to society in light ofthe purposes ofthis chapter.'"
RCW 13.40.020(19)(emphasis added). But"in light ofthe purposes ofthis chapter"
modifies "would impose a serious, and clear danger to society"—not the other way
around. As discussed above, the Act's purposes are relevant to the trial court's
threshold manifest injustice finding only to the extent that they speak to "a serious,
and clear danger to society." Id.^ Of course, once the trial court has made its
' Alternatively, the State proposes that B.O.J. is herself included as a member of"society"
for the purposes of RCW 13.40.020(19). Hence, the fact that a standard range would impose a
serious, and clear danger to B.O.J. herself, by denying her access to necessary treatment, is
13
State V. B.O.J.,^0. 95542-5
threshold manifest injustice finding, the Act's purpose of providing necessary
treatment is relevant to the length and form of the particular disposition imposed.
The Act "does not set up a rigidly punitive system," and it is incumbent on the
juvenile justice system to help its youthful offenders. State v. Rice, 98 Wn.2d 384,
391,655 P.2d 1145(1982). But the need for treatment is typically not relevant to the
trial court's manifest injustice finding because it typically does not implicate a
serious, and clear danger to society.
B.O.J. and amici argue that extended confinement of B.O.J. in a manifest
injustice disposition at best failed to mitigate any serious and clear danger to society
posed by her standard length sentence, and at worst increased such danger. For
support, they cite empirical studies suggesting that increased incarceration terms for
juveniles either fail to reduce or actually increase recidivism. Most notable is a 2016
peer reviewed study of Washington youths committed to JRA facilities that "failed
to find a relationship between length of stay and felony recidivism occurring within
one year of release." Sarah Cusworth Walker & Asia Sarah Bishop, Length ofStay,
Therapeutic Change, and Recidivism for Incarcerated Juvenile Offenders, 55 J. OF
Offender Rehabilitation 355,371 (2016). The study found that "[t]he recidivism
rate among . . . five lengths of stay levels stayed consistent with a slight.
sufficient to support the trial court's manifest injustice finding. Such a reading would swallow the
rule set forth in RCW 13.40.020(19) and .160(2), and we reject it.
14
State V. B.O.J., No. 95542-5
nonsignificant, dip for stays lasting 9-11 months," which the authors suggested
"adds to a growing body of literature also failing to find any empirical support for
the relationship between longer custodial sentences and reduced future offending."
Id. In essence, B.O.J. and amici argue that the trial court's disposition decision in
this case, while a well-intentioned effort to help B.O.J. get access to substance abuse,
mental health, and education services, is statistically likely to backfire.
We base our holding on the plain, unambiguous language of the statute, not
on the basis of empirical studies. Nonetheless, we do not make decisions in a
vacuum, and the studies cited by B.O.J. and amici offer a cautionary tale against
imposing lengthy sentences over standard range dispositions with the hope of
improving outcomes for juvenile defendants. We note that juvenile trial courts may
appropriately consider such studies when relevant and material, and may rely on
them to the extent of their probative value. ROW 13.40.150(1) ("In disposition
hearings all relevant and material evidence . . . may be received by the court and
may be relied upon to the extent of its probative value.").
The plain, unambiguous language of the Act states that "a serious, and clear
danger to society" is the sole basis for an adjustment upward from a standard range
disposition. RCW 13.40.020(19), .160(2). The Act's purpose of "[p]rovid[ing]
necessary treatment"^ to juvenile offenders will generally be relevant only to the trial
RCW 13.40.010(2)(g).
15
State V. B.OJ.,^0. 95542-5
court's determination of what form and length of manifest injustice disposition to
impose—^not to the threshold determination of whether a manifest injustice
disposition is appropriate. Because nothing indicated that B.O.J.'s need for treatment
posed a serious, and clear danger to society, her need for treatment was not an
appropriate basis for imposing a manifest injustice disposition.
4. Overleniency of the standard range can support a manifest injustice
disposition, but the trial court in this case relied almost exclusively on B.O.J's
treatment needs
As a second independent reason for imposing a manifest injustice disposition,
the trial court found that a standard range disposition "would be too lenient in light
of[B.O.J.j's uncharged criminal conduct, dismissed charges, and failures to comply
with court orders." CP at 41 (FFCL para. 21).
As a general rule, leniency of the standard range is an appropriate basis for
imposing a manifest injustice disposition above the standard range. At the
disposition hearing, the trial court is statutorily required to consider the existence or
absence of certain mitigating and aggravating factors. RCW 13.40.150(3)(h), (i).
Aggravating factors include whether "[tjhere are other complaints which have
resulted in diversion or a finding or plea of guilty but which are not included as
criminal history," and whether "[t]he standard range disposition is clearly too lenient
considering the seriousness of the juvenile's prior adjudications." RCW
13.40.150(i)(vii),(viii). Not only are these listed as aggravating factors, but they are
16
State V. B.O.J.,No. 95542-5
also more obviously relevant to whether the standard range would impose a serious,
and clear danger to society than is the need for treatment and they may support a
trial court's manifest injustice finding.
The particular facts ofthis record fail to convince us that the trial court would
have imposed a manifest injustice disposition in the absence of B.O.J.'s treatment
needs. To be sure, the trial court expressly found that "either" B.O.J.'s treatment
needs or the leniency ofthe standard range,"standing alone, would be sufficient for
the Court to impose the [manifest injustice up] in this case." CP at 41 (FFCL para.
22). But this bare conclusion is belied by the trial court's oral and written findings
and conclusions.
In the disposition hearing, the trial court focused almost exclusively on
B.O.J.'s treatment needs as the basis for imposing a manifest injustice disposition.
The court did find that the standard range disposition was too lenient, referencing
the JPC report without elaboration, but immediately downplayed the significance of
that finding to its decision, stating,"And I guess—let me back up—^not so much the
seriousness of her adjudications, but the seriousness ofthe services that she needs in
order to have success." VRP at 30.
After introducing the JPC report into the trial record and sealing it, the trial
court continued with an extended description of B.O.J.'s treatment needs and
unrealized potential. The court agreed with B.O.J.'s attorney
17
State V. 95542-5
that there's no evidence out there that the juvenile justice system ... is
in a position to get[B.O.J.] what she wants and to help her in a unilateral
way. But her being on the street, . . . her trying to find a place to live
without any drug treatment and without any help from anyone ... is
going to result in worse.
And I hate to be patronizing, and I hate to be thejudge who thinks
that they can fix everything,. . . but ifI'm given two choices, one being
her on the street and hoping for the best, and one being her in a place
where she's stable and has access to treatment,. . . then maybe some of
that potential gets used in a positive way.
Id. at 34. The court then exhorted B.O.J. to avail herself of the treatment
opportunities in JRA confinement and found "that local sanctions are a manifest
injustice given the needs that [B.O.J.] has." Id. at 35. The court also noted lack of
violence as a mitigating factor but concluded that "the services that [B.O.J.] needs
far outweigh—let me back up—^the aggravating factors in this case far outweigh that
mitigating factor." Id. at 36.
Similarly, the trial court's written findings and conclusions undercut any
inference that it found the leniency aggravator to be a sufficient basis, standing
alone, for imposing a manifest injustice disposition. For example, the trial court
found that B.O.J. "violated probation or pretrial supervision" and "failed to appear
for mandatory court hearings." CP at 41 (FFCL paras. 9-10). But in each case, the
court found that "this makes it impossible to provide [B.O.J.] with services while
she remains on probation or supervision." Id.(FFCL paras. 9-10).
All of this leaves the indelible impression that the trial court's finding of
manifest injustice was motivated almost exclusively by B.O.J.'s treatment needs.
18
State V. B.O.J.,'No. 95542-5
But under the Act, B.OJ.'s treatment needs were not an appropriate basis for
imposing a manifest injustice disposition. The trial court thus based its manifest
injustice finding on an erroneous view ofthe law."If[a] trial court's ruling is based
on an erroneous view ofthe law or involves application ofan incorrect legal analysis
it necessarily abuses its discretion." Dix, 160 Wn.2d at 833. We therefore hold that
the trial court abused its discretion in imposing a manifest injustice disposition.
Were this case not moot, we would remand to the trial court for a new
disposition hearing. On remand, the trial court would remain free to impose a
manifest injustice based on appropriate factors (inter alia, the fact that the standard
range would be too lenient)—^provided that it found by clear and convincing
evidence, and entered reasons for its finding, that a disposition outside the standard
range would effectuate a manifest injustice. ROW 13.40.160(2); T.JS.-M., 193
Wn.2d at 458-62. But because the case is now moot, we are unable to provide this
remedy and must simply issue our decision.
III. CONCLUSION
The trial court abused its discretion in basing its manifest injustice finding on
B.O.J.'s need for substance abuse and mental health treatment. A juvenile does not
usually pose a serious, and clear danger to society merely because they need
treatment. Accordingly,the Act's purpose of"[p]rovid[ing] necessary treatment"^ to
RCW 13.40.010(2)(g).
19
State V. B.O.J., No. 95542-5
juvenile offenders is typically relevant only to the trial court's determination of what
form and length of manifest injustice disposition to impose—not to the threshold
determination of whether a manifest injustice disposition is appropriate. We reverse
the Court of Appeals.
B.O.J.'s claim that the prosecution breached its plea agreement is not a matter
of continuing and substantial public interest, and we decline to review it.
20
State V. B.O.J, No. 95542-5
WE CONCUR:
n
)
7
21
State V. B.O.J
No. 95542-5
Gonzalez, J.(concurring)—I concur with the majority that the need for
treatment is not an appropriate basis for a manifest injustice disposition. The need
for treatment should be a mitigator, not an aggravator. I would also hold that the
misguided belief that incarceration is good for children may not be the basis for a
manifest injustice disposition. Incarceration harms children.'
I write separately to express my concerns with the juvenile probation
counselor's report. The report contained many problematic statements. Among
these statements are descriptions of B.O.J. as "liv[ing] a gangster lifestyle" and
being "addicted to a life of crime." Manifest Injustice Dispositional Report to
Court at 3 (sealed); see Barry C. Feld,The EVOLUTION OF THE JUVENILE COURT
100(2017)("Code words are symbols or phrases that implicate racial themes but
without directly challenging egalitarian ideals."). B.O.J. objected to the report's
'"Incarcerating children for minor crimes leads to increased delinquency and other negative
consequences. They experience higher levels of substance abuse, difficulty in school, violence,
and difficulty adjusting throughout adulthood." Pet'r's Suppl. Br. at 7-8 (citations omitted)
(citing James Snyder et ah. Peer Deviancy Training and Peer Coercion: Dual Processes
Associated with Early-Onset Conduct Problems, 79 Child Dev., 252(2008); Barry Holman &
Jason Ziedenberg, Justice Policy Institute, The Dancers of Detention: The Impact of
Incarcerating Youth in Detention and Other Secure Facilities (2011) at 6).
1
State V. No. 95542-5 (Gonzalez, J., concurring)
unfounded characterizations, which were used to recommend a manifest injustice
disposition. The trial court followed the report's recommendation.
There is considerable evidence that bias results in harsher dispositions for
children of color, and for girls of color in particular. See Amici Curiae Br. of
TeamChild & Mockingbird Soc'y at 19 & n.42 (citing Wendy S. Heipt, Courts
Igniting Change: Girls' Court: A Gender Responsive Juvenile Court Alternative,
13 Seattle!. Soc. Just. 803, 816 (2015)).^ And, in my view,"bias 'found its way
into the final judgment'" and the trial court's reliance on the report appears to "cast
doubt on the trial court's entire ruling." In re Marriage ofBlack, 188 Wn.2d 114,
135, 137, 392 P.3d 1041 (2017)(quoting v. Jacoby, 763 So.2d 410, 414
(Fla. 2000)).
With these observations, I concur.
^ The problem of bias adversely influencing a manifest injustice disposition is not at all unique to
B.O.J. See, e.g., George S. Bridges & Sara Steen, Racial Disparities in Official Assessments of
Juvenile Offenders: Attributional Stereotypes as Mediating Mechanisms, 63 Am. Soc. Rev. 554
(1998)[https://perma.cc/J6RJ-J4BV]; Michael J. Leiber & Jennifer H. Peck, Race in Juvenile
Justice and Sentencing Policy: An Overview ofResearch and Policy Recommendations, 31 Law
& Ineq. 331 (2013)[https://perma.cc/X6HS-SAT9]; Emily Gaarder, Nancy Rodriguez 8l
Marjorie S. Zatz, Criers, Liars, and Manipulators: Probation Officers' Views ofGirls, 21 Just.
Q. 547(2004); cf. State v. Sledge, 133 Wn.2d 828, 843 n.7, 947 P.2d 1199 (1997).
State V. B.O.J.,'S\o. 95542-5 (Gonzalez, J., concurring)
State V. B.O.J.
No. 95542-5
MADSEN,J.(dissenting)—In this juvenile disposition, the trial court found that
either B.O.J.'s treatment needs or the leniency of the standard range, standing alone,
provided a sufficient basis for a manifest injustice disposition. Clerk's Papers(CP)at 41.
The majority acknowledges but dismisses this express, written finding on the basis that it
is seemingly insincere. Majority at 17. The appropriate inquiry, however, is whether the
trial court abused its discretion in making the noted determination. In my view, it did
not. Here, the court's concern for the legitimate treatment needs of this juvenile were
inextricably entwined with her criminal record, her ongoing criminal behavior, her failure
to comply with court orders, the community's safety, and B.O.J.'s personal safety. The
majority's approach undermines the very purpose ofthe Juvenile Justice Act of 1977
(JJA), ch. 13.40 RCW,to help juveniles while simultaneously protecting society.
Accordingly, I dissent.
Specifically, the majority concludes that the trial court misapplied the law and thus
abused its discretion in making its manifest injustice disposition determination. I believe
it is the majority that is misapplying well-settled law. B.O.J. pleaded guilty to two counts
No. 95542-5
Madsen, J., dissenting
of third degree theft for shoplifting items, including five bottles of liquor, from a
supermarket. Instead ofthe 60 day standard range sentence, the juvenile court imposed a
manifest injustice sentence of42 to 52 weeks, relying on the sealed juvenile probation
counselor's presentence report, other documentation, and the electronic records ofthe
juvenile's extensive criminal history. The report, in part, noted the juvenile was a
chronic runaway,* who lived a transient lifestyle, had been involved in assaults, is
violent, uses drugs and alcohol, and associates with gang members.^ Manifest Injustice
Dispositional Report to Court(Report) at 3. The report also noted that the juvenile's
criminal history was lengthy and escalating(22 criminal referrals, some as felonies), that
she is not concerned about the impact of her actions on her victims, that she has not
changed her behavior in 3 years, and that she has never exhibited concern or remorse for
her victims; the report concluded that a standard range sentence was inadequate to protect
the community against further offenses and recommended 52 to 65 weeks in juvenile
detention. As noted, the juvenile court imposed a manifest injustice disposition of42 to
52 weeks.
^ I agree with the concurrence that excessive incarceration harms children. However,the
manifest injustice sentence here actually provides B.O.J. with an opportunity for treatment,
which she and counsel agree B.O.J. critically needs.
^ The report states that the juvenile indicates she shoplifts when she feels hungry and she steals
hard liquor for resale on the street to support herself. Manifest Injustice Dispositional Report to
Court at 4. The juvenile is "a Ward of the State that has never complied with her treatment plans
or stayed in DCFS [(Division of Children and Family Services)] placements;" she "runs [away]
whenever she is released from detention." Id. at 3. Noting that the juvenile has "22 police
referrals, 31 criminal warrants, 20 DCFS warrants, 7 guilty pleas and 5 modifications" and that
"[B.O.J.] has been screened into detention 32 times," the report concludes that the juvenile "is
not amenable to ... community supervision at this moment." Id.No. 95542-5
Madsen, J., dissenting
B.O.J. contends that the evidence supporting the manifest injustice disposition was
inadequate. 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). A reviewing court can
affirm a manifest injustice finding if one or more ofthe factors supported by the record
clearly and convincingly support the disposition and we can determine that the trial court
would have entered the same sentence on the basis of the remaining valid aggravating
factors. State v. S.H., 75 Wn. App. 1, 12, 877 P.2d 205 (1994).
Here, the juvenile court found substantial and compelling reasons for imposing a
manifest injustice disposition, determining in part that B.O.J.'s significant substance
abuse and welfare needs would require more treatment and counseling than could be
accomplished with local sanctions and that this was a basis for departing upward from the
standard range. CP at 41. The record supports this. The report notes B.O.J.'s "need for a
structured setting . .. where she can receive consistent treatment without interruption,"
including drug and alcohol treatment and mental health treatment. Report at \ \\see S.H.,
75 Wn. App. at 11-12(a high risk to reoffend and the need for treatment are valid
grounds for a manifest injustice disposition), 22(affirming the manifest injustice
disposition, but remanding for imposition of a 208-week disposition commensurate with
the social worker's recommendation of4 years of treatment); of. State v. P, 2>1 Wn. App.
773, 778-79, 686 P.2d 488(1984)(where the need for treatment is the sole basis for the
No. 95542-5
Madsen, J., dissenting
manifest injustice disposition, the length of sentence cannot exceed the available
treatment).^
The juvenile court also determined that B.O.J. had a significant criminal history,
as well as continuing criminal conduct similar to the current offense that was dismissed;
in addition she continued to offend while cases were pending and failed to comply with
court orders. In light of these circumstances, and the fact that B.O.J. was highly unlikely
to comply with voluntary treatment or probationary options, the court believed the
standard range was too lenient, warranting a departure upward from the standard range.
As noted, the court expressly determined that any ofthese reasons, standing alone, was
sufficient to justify the length ofthe disposition imposed. CP at 42. The record supports
the manifest injustice determination. See 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).
Once a court determines that a disposition within the standard range would
effectuate a manifest injustice, a trial court is vested with broad discretion in determining
what sentence to impose. A disposition will be reversed only if the sentence imposed is
so clearly excessive as to constitute an abuse of discretion. ROW 13.40.230(2)(b); State
3 See also State v. Sledge, 133 Wn.2d 828,947 P.2d 1199(1997). There, this court
acknowledged that "the Juvenile Justice Act retains treatment, in addition to punishment, as one
of its express goals." Id. at 844 n.8. This court held that "with no specificjuvenile treatment
program requiring a specific duration to complete, a trial judge may not take into consideration
the possibility of early release in imposing an exceptional disposition, as the entitlement to such
release is entirely too speculative." Id. at 846 (emphasis added). The highlighted proviso
indicates this court's acknowledgement that the need for treatment and its completion is a valid
basis for imposing an exceptional sentence of sufficient length to facilitate treatment needs.
No. 95542-5
Madsen, J., dissenting
V. Melton,63 Wn. App. 63, 70, 817 P.2d 413 (1991); State v. Sledge, 133 Wn.2d 828,
844, 947 P.2d 1199(1997)(trial court's determination is reviewed for manifest abuse of
discretion). Here, the juvenile court's imposition of a 42 to 52 week manifest injustice
disposition was not an abuse of discretion. See State v. Taylor, 42 Wn. App. 74, 76-77,
709 P.2d 1207(1985)(noting that property crimes can create a clear danger to society
and holding that a 65 week disposition is not clearly excessive). '"[A] sentence is
excessive only when it cannot be justified by any reasonable view which may be taken of
the record.'" State v. Tauala, 54 Wn. App. 81, 87, 771 P.2d 1188(1989)(alteration in
original)(quoting State v. Strong, 23 Wn. App. 789, 794-95, 599 P.2d 20(1979)); see
also State v. Salgado-Mendoza, 189 Wn.2d 420,427,403 P.3d 45(2017)(reviewing
court may not find abuse of discretion simply because it would have decided the case
differently; it must be convinced that no reasonable person would take the view adopted
by the trial court).
Further, I disagree that this case concerns a trial judge who imposed incarceration
for an improper reason. Notably, the findings and conclusions concerning the manifest
injustice disposition focus on the juvenile's extensive criminal history (listing 11
convictions, including 2 assaults); the numerous times B.O.J. has run away from
placement, resulting in warrants (listing 18 such occasions); the numerous probation
violations, resulting in violation of court order warrants (noting 19 such occasions); and
numerous instances of failure to appear for mandatory court hearings (noting 12 such
occasions)—all occurring within the preceding two years and all established through
No. 95542-5
Madsen, J., dissenting
court records. Sec CP at 40. The juvenile court also noted B.O.J. s substantial substance
abuse treatment needs, which, the court noted, both B.O.J. and her counsel had admitted
at many court hearings, including the sentencing hearing here. See id. at 41. Here, as
noted, B.O.J.'s disposition was adjudicated in juvenile court, a forum expressly charged
with "responding to the needs of youthful offenders." ROW 13.40.010(2). "In resolving
issues that turn upon the legislative purpose ofthe JJA, a court should seek to effectuate
'to the fullest possible extent both the purpose of rehabilitation and the purpose of
punishment.'" State v. J.N., 64 Wn. App. 112, 117, 823 P.2d 1128(1992)(quoting
V. Rice, 98 Wn.2d 384, 394, 655 P.2d 1145 (1982)). Noting "the juvenile system's focus
on the current needs ofthe juvenile offender, treatment, and rehabilitation," the J.N. court
explained that "[t]he concept of'treatment' under the JJA is not limited to any particular
form; the appropriate treatment must be determined by the specific needs ofthe offender
in each case." Id.(citing Rice, 98 Wn.2d at 393). And particularly applicable here, the
J.N. court noted that under the JJA, the "existence of recent criminal history is an
aggravating circumstance that may support a manifest injustice disposition." Id. In
affirming the juvenile's sentence, the J.N. court explained,"In imposing the manifest
injustice disposition, a primary concern ofthe disposition court here was to respond to
J.N.'s specific needs and to give the system a reasonable opportunity to address those
needs." Id. at 118. The same is true in B.O.J.'s case. As in J.N., the trial court here was
"responding to the specific needs of the offender for treatment." Id. As in J.N., there was
No. 95542-5
Madsen, J., dissenting
no abuse of discretion and B.O.J.'s manifest injustice disposition should likewise be
affirmed.
Finally, there is simply no basis to reverse here; nor does this record provide an
appropriate basis to elaborate on how the trial court should appropriately exercise its
discretion. In light ofthe many valid justifications for imposing a manifest injustice
disposition, as noted above, any second guessing by this court is objectively unwarranted
in the present case. The majority's disagreement with the trial court's exercise of
discretion is not a valid basis for reversal. Salgado-Mendoza, 189 Wn.2d at 427.
For the reasons discussed above, I dissent.
No. 95542-5
Madsen, J., dissenting
■Jr.--