case, TJ.S.-M., a juvenile, challenges his suspended manifest
injustice disposition. The Court of Appeals dismissed his
claim on ripeness grounds. T.J.S.-M. contends his appeal is
ripe for review. TJ.S.-M. also argues the trial court applied
the wrong standard of proof during the sentencing hearing
and, accordingly, improperly imposed a manifest injustice
following reasons, we reverse the Court of Appeals'
decision but affirm TJ.S.-M.'s conviction and sentence.
February 2016, T.J.S.-M., on three separate occasions,
embraced, groped, and kissed three different high school
classmates. In each of these instances, the victims indicated
they were not comfortable with T.J.S.-M.'s conduct and
attempted to leave. T J.S.-M. detained each girl against her
will before eventually releasing her.
the incidents were reported and investigated, the State
charged T.J.S.-M. with two counts of indecent liberties, two
counts of unlawful imprisonment with sexual motivation, and
one count of fourth degree assault with sexual motivation.
The case proceeded to bench trial, where T.J.S.-M. was
convicted of the two counts of unlawful imprisonment with
sexual motivation and one count of fourth degree assault
without sexual motivation.
T.J.S.-M. had no prior criminal history, he requested the
standard range of 0-30 days' confinement and 12
months' probation with conditions, including sex offender
counseling, with credit for 83 days served. The State
recommended a manifest injustice disposition of 36 weeks'
confinement to be suspended by a special sex offender
disposition alternative (SSODA).
trial court adopted the State's recommendation. Applying
a "clear and convincing" standard, which it
understood to be "just below beyond a reasonable
doubt," 2 Verbatim Report of Proceedings (Jan. 25, 2017)
(VRP) at 353, the court found that T.J.S.-M. had threatened
serious bodily harm and sexual motivation was an aggravating
factor. It also found T.J.S.-M. had a high risk to reoffend
due to the sexual nature of the offense, posed a threat to
community safety, and had intellectual limitations that could
also show a high risk to reoffend. As mitigating factors, the
court noted that T.J.S.-M. had no prior criminal record and
had some mental health issues.
appealed the manifest injustice disposition. The Court of
Appeals dismissed the appeal on ripeness grounds, holding
that a manifest injustice disposition suspended by a SSODA is
not reviewable until the SSODA has been revoked and the
disposition imposed. See State v. T.J.S.-M., No.
35130-1-III (Wash.Ct.App. Sept. 20, 2018) (unpublished),
Between the filing of T.J.S.-M.'s notice of appeal and
the Court of Appeals' ruling, T.J.S.-M. violated his
SSODA conditions. His SSODA was revoked and his suspended
disposition was revoked; he was committed to confinement.
Decl. of Samuel J. Comi, Attach. F. T.J.S.-M. sought review
in this court.
preliminary matter, both parties agree that this case is moot
since T.J.S.-M. already served his sentence and we cannot
provide relief for him on appeal. Generally, we do not
consider questions that are moot. State v. Hunley,
175 Wn.2d 901, 907, 287 P.3d 584 (2012) (citing State v.
Gentry, 125 Wn.2d 570, 616, 888 P.2d 1105 (1995)). A
case is moot if we can no longer provide effective relief on
appeal. Id. The expiration of a sentencing term
technically renders a case moot. Id. (citing In
re Pers. Restraint of Mattson, 166 Wn.2d 730, 736, 214
P.3d 141 (2009)). Nevertheless, we may retain and decide a
case if it involves matters of continuing and substantial
interest. Id. We consider three factors when
determining whether the issue presents a continuing and
substantial public interest: '"[(1)] the public or
private nature of the question presented, [(2)] the
desirability of an authoritative determination for the future
guidance of public officers, and [(3)] the likelihood of
future recurrence of the question.'" Id.
(alterations in original) (internal quotation marks omitted)
(quoting Mattson, 166 Wn.2d at 736).
the timing of appealing a suspended manifest injustice
disposition is a matter of public interest. It is not unique
to TJ.S.-M., and whether a suspended disposition may be
challenged is irrefutably of substantial public interest.
Next, the lower court relied on a prior Court of Appeals case
to dismiss TJ.S.-M.'s appeal on ripeness grounds. We have
not had the opportunity to decide this issue. Since we have not
ruled on this issue, there is a need for future guidance,
meeting the second factor. Finally, this issue is likely to
recur because manifest injustice dispositions are prevalent
in juvenile proceedings and enhanced sentences are often
challenged. Based on these considerations, we proceed to the
merits of the case.
of Suspended Manifest Injustice Dispositions
first issue is whether a suspended manifest injustice
disposition is reviewable prior to revocation of a SSODA. The
Court of Appeals dismissed TJ.S.-M.'s appeal based on RCW
13.40.162 and State v. J.B., 102 Wn.App. 583, 9 P.3d
890 (2000). J.B. involved a challenge to a suspended
manifest injustice disposition. Relying on State v.
Langland, 42 Wn.App. 287, 711 P.2d 1039 (1985)
(suspended life sentence as cruel and unusual punishment is
not ripe for review until the sentence is actually imposed),
the court in J.B. held that a suspended manifest
injustice disposition is not ripe for review because
"the consequences of such rulings are merely potential,
not actual." J.B., 102 Wn.App. at 585. The
court stated that "the proper time to appeal a suspended
manifest injustice disposition is after that disposition is
imposed following SSODA revocation." Id. at
on J.B., the State contends that the appeal should
have been brought after TJ.S.-M.'s "SSODA was
revoked and the [suspended] JRA [(Juvenile Rehabilitation
Administration) sentence] imposed." Suppl. Br. of
Resp't at 7. The State urges that since T.J.S.-M. failed
to wait until his suspended sentence was imposed, his
sentence is not ripe for review.
Governing Manifest Injustice and SSODA Dispositions
first note that a manifest injustice disposition and a SSODA
disposition are governed by different statutes. Imposition of
a manifest injustice sentence is governed by RCW
13.40.160(2). Under that section, the court must enter its
reasons for imposing a manifest injustice sentence as
indicated in option D of RCW 13.40.0357, and the sentence
imposed under option D "shall be comprised of
confinement or community supervision, or a combination
thereof." RCW 13.40.160(2). "Community
supervision" is defined in part as "an
individualized program comprised of. . . [Residential
treatment, where substance abuse, mental health, and/or
co-occurring disorders have been identified in an assessment
by a qualified mental health professional." RCW
13.40.02O(5)(e). If the court "imposes a sentence of
confinement exceeding thirty days, the court shall sentence
the juvenile to a maximum term." RCW 13.40.160(2). A
court may suspend the execution of the manifest injustice
disposition if imposed in conjunction with a SSODA
disposition. RCW 13.40.160(10).
disposition outside the standard range is appealable under
RCW 13.40.230 by the state or the respondent." RCW
13.40.160(2). If appealed, a manifest injustice disposition
must be supported by the record, those reasons must clearly
and convincingly support a disposition outside the standard
range, and the sentence imposed must not be clearly too
excessive or too lenient. RCW 13.40.230(2). RCW 13.40.230(1)
provides that appeal of a manifest injustice sentence
"shall be heard solely upon the record that was before
the disposition court. No written briefs may be required, and