Agid, J. Webster, A.c.j., and Coleman, J., concur.
The State appeals the trial court's sentencing of defendant Cletus Jackson under former RCW 9.94A.120(7)(a), the special sexual offender sentencing alternative (SSOSA). The State asserts that the trial court erred in ruling that a defendant convicted of attempted second degree rape was eligible for sentencing under the SSOSA provision in effect at the time of Jackson's crime. We affirm.
On July 7, 1989, Jackson was charged by information with attempted rape in the second degree in violation of RCW 9A.28.020 (attempt) and RCW 9A.44.050(1)(a) (second degree rape). Jackson entered a plea of guilty under North Carolina v. Alford, 400 U.S. 25, 27 L. Ed. 2d 162, 91 S. Ct. 160 (1970) on October 25, 1989. In the Statement of Defendant on Plea of Guilty, Jackson stated, "I do not believe I am guilty of the crime charged because I do not
remember what happened that night." He later told the trial court that he did not remember what happened because he had been drunk.
Sentencing was held on January 19, 1990. Jackson had no prior convictions. Based on an offender score of 0 and a seriousness level of 8, the sentencing range was 15.75 to 20.25 months, with a 5-year maximum term. Defense counsel asked that Jackson be considered for an alternative sentence under SSOSA, arguing that Jackson had thought he would be eligible for SSOSA when he pleaded guilty. The State responded that SSOSA, which specifically excluded from eligibility defendants convicted under RCW 9A.44.040 (first degree rape) or RCW 9A.44.050 (second degree rape), was not available to Jackson and asked that Jackson serve 20 months in the Department of Corrections. The trial court ruled that a defendant convicted of attempted second degree rape, as opposed to the completed crime, could be considered for an alternative sentence under SSOSA.
Based on the evaluating doctor's determination that Jackson was amenable to treatment and that there was a high probability of successful treatment, the trial court sentenced Jackson to 20.25 months but suspended the sentence under SSOSA on the condition that Jackson serve 6 months in jail on work release and participate in the recommended treatment program following release. In sentencing Jackson, the trial court also considered that Jackson was regularly employed, had a supportive family structure and had voluntarily entered treatment for alcohol abuse after the attempted rape.
The SSOSA provision in effect at the time of Jackson's crime provided in pertinent part:
When an offender is convicted of a sex offense other than a violation of RCW 9A.44.040 or RCW 9A.44.050 and has no prior convictions for a sex offense or any other felony sexual offenses in this or any other state, the sentencing court, on its own motion or the motion of the state or the defendant, may order an examination to determine whether the defendant is amenable to treatment.
After receipt of the reports, the court shall then determine whether the offender and the community will benefit from use of this special sexual offender sentencing alternative. If the court determines that both the offender and the community will benefit from use of this provision, the court shall then impose a sentence within the sentence range and, if this sentence is less than six years of confinement, the court may suspend the execution of the sentence and place the offender on community supervision for up to two years.
RCW 9.94A.120(7)(a).*fn1 As a condition of the suspended sentence, the court may impose certain specified conditions, including outpatient or inpatient sex offender treatment. See RCW 9.94A.120(7)(a)(i)-(vi).
Because the State has not appealed the terms of the sentence imposed, the only issue in this case is whether, by virtue of the explicit exclusion of defendants convicted under RCW 9A.44.050 (second degree rape), defendants convicted of attempted ...