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State v. J.M.G.

March 31, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
[J.M.G.] *FN1, D.O.B. 3/26/82, APPELLANT.



Appeal from Superior Court of King County. Docket No: 95-8-07001-1. Date filed: 03/01/96. Judge signing: Hon. Michael S. Spearman.

Authored by C. Kenneth Grosse. Concurring: Faye C. Kennedy, Susan R. Agid.

The opinion of the court was delivered by: Grosse

GROSSE, J. -- J.M.G. was convicted in juvenile court of taking and riding a motor vehicle without permission. We reject his assertions that the court committed reversible error by: (1) failing to enter its reasons for a manifest inJustice Disposition on the record; (2) improperly considering the possibility of early release when determining the length of the Disposition, thus making it clearly excessive; and (3) determining and ordering community supervision after setting a term exceeding the standard range.

The standard range juvenile Disposition for this offense included 15 to 30 days confinement. At the Disposition hearing defense counsel recommended a standard range sentence including 30 days' confinement. A probation counselor recommended 52 weeks commitment in order to allow sufficient time for treatment of J.M.G.'s many problems, especially treatment for alcohol abuse. Agreeing with the probation counselor's report, the court found that a Disposition within the standard range would effectuate a manifest inJustice. Therefore, the court committed J.M.G. to the custody of the Department of Juvenile Rehabilitation for 52 weeks, with credit for 49 days served. Findings and Conclusions supporting the conviction were filed, but no findings and Conclusions supporting the manifest inJustice sentence were filed.

It is well-settled law that written findings and Conclusions are not necessary to support a manifest inJustice Disposition. *fn2 Nevertheless, J.M.G. claims that a Disposition order must be reversed if the court failed to set forth on the order those portions of the record material to the Disposition as required by JuCR 7.12(e). However, as held in E.J.H., RCW 13.40.230 authorizes appellate review of the whole record, including the trial court's oral ruling. *fn3 The absence of written findings does not preclude meaningful appellate review of a manifest inJustice Disposition. RCW 13.40.230 provides that an appellate court may uphold a manifest inJustice Disposition if it finds: "(1) the Disposition court's reasons are supported by the record; (2) those reasons clearly and convincingly support the Conclusion that a Disposition within the standard range would constitute a manifest inJustice; and (3) the sentence is neither clearly too lenient nor clearly too excessive." *fn4 The trial court's failure to set forth those portions of the record material to the Disposition in its order does not require reversal so long as the record adequately supports the trial court's finding. *fn5

A review of the transcript of the Disposition hearing and the decision of the juvenile court adequately sets forth the court's reasons for imposing a manifest inJustice sentence. The court made the Dispositional report an exhibit and incorporated it into the oral decision. Included within the greater report were the reports of the probation counselor and the psychologist. From these reports, the court identified reasons on which it relied in imposing a manifest inJustice sentence. The court stated that J.M.G. was a high risk to reoffend *fn6 and that he required more treatment and supervision than could be afforded within the standard range. The court noted J.M.G.'s propensity to run away from his mother, from school, and his seemingly dependent affinity for alcohol at the age of 13, now 14. Additionally, the court cited J.M.G.'s recent criminal history and his failure to follow previous Dispositional orders. The record clearly and convincingly supports the court's Disposition. The third prong of RCW 13.40.230 is discussed below.

Next, J.M.G. contends the trial court erred in considering possible early release in determining the length of the Disposition, thus the Disposition should be reversed as being clearly excessive. In State v.

S.H., *fn7 this court held that it is error for the Dispositional court to consider possible early release in determining the length of a manifest inJustice Disposition. That case relied on dicta in State v. Bourgeois *fn8 for its holding. It was the first case so holding, although Washington courts have consistently held that the availability of early release is not an acceptable reason for imposing an exceptional sentence. Then, in State v. Sledge, *fn9 this court restricted S.H. to its particular facts and overruled its holding as to the consideration of good time in determining the length of a Disposition, and determined that a juvenile court does have the authority to consider a juvenile's potential early release in determining the length of a manifest inJustice Disposition.

As the Sledge court points out:

To impose a Disposition longer than the standard range, a juvenile court must find an aggravating factor that was necessarily not considered in establishing the standard range; the factor must be one that distinguishes the offense from others in the same category.

A court may not decide to impose a sentence longer than the standard range merely out of a sense that the standard range would be inadequate if shortened by early release, because to do so would usurp authority that the statute places elsewhere. It is not up to the court to decide what a standard range term should be and it is not up to the court to decide whether an inmate should be able to earn early release from a standard range term. But once a juvenile court has legitimately decided to depart from the standard range, the court has broad discretion to structure a manifest inJustice Disposition. [A

previous case's] concern about circumventing the standard range is no longer present. Sledge, 83 Wash. App. at 645-46 (footnotes omitted).

In the case before us, the Disposition of the juvenile court attempted to provide a period of time to ensure the treatment suggested for J.M.G. and to provide protection to the public. J.M.G. has not kept himself out of trouble, and neither his mother nor any other adult is able to supervise him effectively outside of confinement. The reasons given are legitimate in view of the purposes of the Juvenile Justice Act of 1977. Here, as in Sledge, in order for the juvenile court to fashion a Disposition keeping J.M.G. under supervision for treatment for a certain period, it is necessary for the court to consider the possibility of early release.

Finally, J.M.G. alleges the juvenile court exceeded its authority by ordering an unspecified amount of community supervision after imposing a manifest inJustice Disposition of a greater than standard range term of confinement. However, a careful review of the order of Disposition and of the transcript of the ...


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