Appeal from Superior Court of Skagit County. Docket No: 95-8-00244-1. Date filed: October 31, 1995.
Petition for Review Granted May 7, 1997,
Authored by Mary K. Becker. Concurring: William W. Baker, Ann L. Ellington.
The opinion of the court was delivered by: Becker
BECKER, J. -- A juvenile court imposed an exceptional Disposition of 103 weeks of confinement on Nicholas Sledge. The rationale for the sentence was to ensure that, even with time off for good behavior, Sledge would remain in custody until his 18th birthday. Finding no reason why courts should not have the authority to consider a juvenile's potential early release in determining the length of a manifest inJustice Disposition, we affirm.
Nicholas Sledge pleaded guilty to a charge of Taking a Motor Vehicle Without Permission. *fn1 The standard range juvenile Disposition for his offense included 21-28 weeks of confinement. The plea agreement required the State to recommend a standard range Disposition.
Prior to Sledge's Disposition hearing, his probation officer submitted a manifest inJustice report. The report summarized Sledge's extensive criminal history, dating back to the age of nine. The history included 18 juvenile Dispositions; the most common among them were second and third degree theft, fourth degree assault, and third degree malicious mischief.
As a result of his offenses, Sledge had been committed to the Department of Juvenile Rehabilitation (DJR) twice, placed in county detention facilities numerous times, and had spent over two years under community supervision.
His behavior at the state facility was described as "problematic in all areas", and included physical altercations, threats to others, property destruction, and two escape attempts. His behavior in county detention was also poor. While awaiting Disposition on the current offense, Sledge had compiled 12 incident reports in one month, mainly for fighting and property destruction. Sledge's parole officer described him as "an extremely difficult kid to supervise on parole". Sledge had no parental supervision, he did not attend school, and he had never been employed. The manifest inJustice report said Sledge admitted using alcohol, marijuana, cocaine, crack, LSD, and speed. The report recommended a Disposition of 103 weeks of commitment.
At the outset of the Disposition hearing, the prosecutor recommended a standard range Disposition. The prosecutor acknowledged that Sledge had "a significant amount of criminal history over the course of his lifetime," but nearly all of his crimes were misdemeanors. The State had decided to give Sledge "one last shot" in juvenile court, but would seek a decline to adult court if there was another offense:
It's the State's position that . . . once Mr. Sledge is released from JRA, if he commits another offense in this county, the State will be moving to decline him into adult court.
Sledge's probation officer then presented the manifest inJustice recommendation. She testified that she believed Sledge's prior commitments were too short; Sledge needed to be "in a structured environment" for a longer period of time in order to change his behavior. Her reason for recommending a sentence of 103 weeks was because that sentence would "allow
Nick to be placed at JRA [Juvenile Rehabilitation Administration] *fn2 until he's 18."
By statute, when the court imposes a maximum term greater than one year, the actual time served is within a range up to that term, but the minimum term may be no less than 80 percent of the maximum term. *fn3 Sledge's 18th birthday was 82 weeks in the future. Therefore, to ensure that he would remain at a JRA facility until age 18, the court needed to impose a maximum of 103 weeks.
The Court followed the recommendation in the manifest inJustice report and ordered a Disposition that included 103 weeks' commitment to JRA. The court concluded that Sledge was a "serious threat to the community":
Despite community supervision, prior detention and prior commitments to DJR, the respondent continues to reoffend.
Respondent's prior period of commitments to DJR, one of four months and the other eight months, have been insufficient to make an impact on the respondent or his offense behavior. A much lengthier period of time is necessary to protect the community as well as to provide an opportunity for the respondent to turn his life around. The opportunity to make a significant positive change in respondent's life must occur within the highly structured environment of a Juvenile Rehabilitation Administration institution because of his threat to the community.
Length Of The Manifest InJustice Disposition
In order to uphold a manifest inJustice Disposition, this court must find that the length of the Disposition is not "clearly excessive". *fn4 While the trial court is vested with broad discretion in determining the appropriate sentence, *fn5 the sentence chosen must have a "tenable basis" in the record. *fn6 Sledge contends the court here abused its discretion by factoring the possibility of his early release into the sentencing determination. As the State acknowledges, the 103 week sentence was based, in part, on the prospect that JRA would release Sledge before the end of the maximum term.
Among numerous issues we reviewed in State v. S.H. *fn7, on which Sledge relies, was a sentencing computation that took early release into consideration. The trial court wanted to follow a recommendation that the offender receive treatment in a closed institution for up to four years.
The court believed that in view of the 80 percent rule described above, the only way to ensure that S.H. would remain in a state institution for at least four years was to impose a manifest inJustice Disposition of five years. We reversed and remanded for entry of a Disposition of four years. *fn8
We held the court erred in increasing the Disposition to five years based on the possibility that the State would release S.H. before his maximum term. *fn9
S.H. was the first case to hold that a court should not consider the possibility of early release when deciding the length of the Disposition.
Washington courts have squarely and consistently held that the availability of early release is not an acceptable reason for imposing an exceptional sentence. The concern originated in a footnote in State v. Fisher, *fn10 a 1987 Supreme Court decision involving an exceptional sentence for an adult offender:
In oral remarks during the sentencing proceeding, the trial court also noted that under the SRA, an offender could get credit for good behavior equal to one-third of the sentence. He observed that he had no doubt that Fisher would behave himself while in confinement, and if Fisher were given only the maximum sentence within the standard range, he would be eligible for release after serving ...