State v. Bacon

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This opinion was filed for record
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SUSAN L CARLSON
SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

NO. 94393-1
STATE OF WASHINGTON,

Respondent,
EN BANC

V.

EVAN BACON,
Filed ^ ^ 2018

Petitioner.

GORDON McCLOUD,J.—^Evan Bacon, a juvenile, pleaded guilty to second

degree robbery and received a suspended disposition. The State challenged the

juvenile court's authority to enter such a disposition, arguing that the Juvenile Justice

Act of 1977 (JJA), chapter 13.40 ROW, does not give trial courts the statutory

authority to suspend juvenile dispositions (except in specific situations that are

absent here). The Court of Appeals agreed, and so do we. We therefore affirm and

hold that juvenile court judges lack statutory authority to suspend JJA dispositions.
State V. Bacon (Evan), No. 94393-1

even manifest injustice JJA dispositions, unless the disposition fits under one ofthe

specifically listed exemptions in RCW 13.40.160(10).

Facts

Bacon pleaded guilty to robbery in the second degree after stealing a purse.

Based on his criminal history, the standard range disposition for this crime "was 52-

65 weeks. RCW 13.40.0357. The State and the juvenile probation officer both

recommended a disposition within that standard range.

Bacon, in contrast, requested a "manifest injustice" disposition below that

range; he sought a sentence of 30 days plus 12 months of community supervision

with standard probation conditions and "all conditions deemed appropriate by the

court." Clerk's Papers(CP)at 10. Bacon argued that a manifest injustice finding was

appropriate because (1)Bacon did not contemplate that his conduct would cause or

threaten serious bodily injury, RCW 13.40.150(3)(h)(i), and (2) Bacon made

significant growth in the months before the robbery. Specifically, Bacon stated that

he had been working to incorporate the skills he learned at a Juvenile Rehabilitation

Administration(JRA)facility. Both Bacon and his mother reported that he had been

doing better since his release. Additionally, Bacon had services already in place

within the community—Sea Mar Community Health Centers counseling, the Boys
State V. Bacon (Evan), No. 94393-1

and Girls Clubs, and TeamChild. Bacon noted that the Bellevue School District had

recently completed a comprehensive evaluation of his needs and that he had been

placed at Bellevue High School to address his academic, emotional, and behavioral

concerns. Bacon concluded that "if he is sent right back to JRA again, there is a real

risk that [he] will become institutionalized." CP at 14.

The juvenile court agreed with Bacon in part. On October 14, 2015, that court

imposed a 65 week disposition, but suspended it all for a period of 12 months. CP

at 22-23. The court acknowledged that this disposition fell outside the standard

range and entered a "manifest injustice" finding under RCW 13.40.150(3)(h)(i) to

support its imposition. Specifically, the court found that Bacon did not cause or

contemplate that his actions would cause serious bodily injury and that he needed

"[mjental health treatment and qualifie[d] for a suspended disposition pursuant to

RCW 30.40.167." CP at 23.

Procedural History

The State moved for reconsideration of the manifest injustice disposition on

the ground that the facts did not support the manifest injustice finding. In addition,

the State opposed the decision to suspend Bacon's disposition, arguing;
State V. Bacon (Evan), No. 94393-1

There is no statutory authorization for the Court to suspend a JRA
commitment where Option B,SSODA [special sex offender disposition
alternative], MHDA [mental health disposition alternative], and
C[D]DA [chemical dependency disposition alternative] are unavailable
under ROW 13.40.0357, 13.40.162, 13.40.167, and 13.40.165. Option
D ("Manifest Injustice") allows the Court to impose a disposition
outside the standard range, but does not authorize a court to suspend
one. To conclude otherwise would be to render the sections regarding
Option B, SSODA, MHDA, and C[D]DA—and their respective
eligibility restrictions—superfluous and, essentially, meaningless.

CP at 58 (State's Proposed Conclusions of Law 10). The juvenile court declined to

reconsider its October 14 decision.

On April 29, 2016, after Bacon failed to meet the conditions of his suspended

disposition, the court revoked it. The court noted that this was a manifest injustice

disposition and therefore reconsidered the initial 65 week sentence and instead

ordered 40 weeks of commitment to a JRA facility.

After the court revoked Bacon's suspended disposition, the State's appeal

became moot. However, both parties and the Court of Appeals commissioner

"agree[d]that the issue [of whether ajuvenile court can impose a suspended sentence

under the manifest injustice portion of the JJA] is recurring and that an appellate
State V. Bacon (Evan), No. 94393-1

decision by a panel ofjudges is warranted."^ The State did not pursue its argument

that the court's findings failed to support a manifest injustice finding. Both parties

submitted new briefings regarding the juvenile court's authority to suspend a

standard range disposition.

Division One reversed. It adhered to its prior decision in State v. A.S., 116

Wn. App. 309,65 P.3d 676(2003)(per curiam), which held thatjuvenile courts lack

inherent authority to suspend dispositions and can do so only when the legislature

grants such authority. It therefore held that the JJA did not authorize suspended

dispositions for juveniles convicted of robbery in the second degree, even with a

finding of manifest injustice. State v. Bacon, 197 Wn. App. 772, 391 P.3d 556,

review granted, 189 Wn.2d 1008,403 P.3d 39(2017).

Bacon moved for reconsideration based on this court's decision in State v.

Houston-Sconiers, 188 Wn.2d 1, 391 P.3d 409(2017). The Court of Appeals denied

that motion. This court granted review, in part to resolve the conflict between

^ Ruling Referring Accelerated Review Issue to Panel, State v. Bacon,No 74233-7-
1, at 2(Wash. Ct. App. Sept. 12, 2016)(citing In re Pers. Restraint of Cross, 99 Wn.2d
373, 377,662 P.2d 828 (1983)).
State V. Bacon (Evan), No. 94393-1

Division One's decision in this case and Division Three's decision to the contrary in

State V. Crabtree, 116 Wn. App. 536,66 P.3d 695 (2003).^

During oral arguments in this court, both parties acknowledged that the JJA

did not give thejuvenile court the statutory authority to suspend Bacon's disposition,

even with the manifest injustice finding.^ As discussed below, we agree."^ We also

reject the argument that the trial court possesses inherent authority to impose such

sentences in the face of the statute's directive to the contrary.

Standard of Review

Issues of statutory construction are questions oflaw that we review de novo.

State V. Martin, 137 Wn.2d 774,788,975 P.2d 1020(1999).

^ In Crabtree, a juvenile received a suspended sentence after a manifest injustice
finding. Division Three affirmed the juvenile court, stating, "Once a manifest injustice is
on the table, the court's discretion is broad enough to encompass whatever dispositional
elements the court deems most suitable to the circumstances." 116 Wn. App. at 546. We
disagree.

^ Wash. Supreme Court oral argument.State v. Bacon,No.94393-1 (Feb. 22,2018),
at 9 min., 55 sec. to 10 min., 15 sec.; 19 min., 55 sec. to 20 min., 40 sec., audio recording
by TVW,Washington State's Public Affairs Network, http;//www.tvw.org.

Because '"it is well established that a party concession or admission concerning a
question oflaw or the legal effect ofa statute as opposed to a statement offact is not binding
on the court,"' {State v. Knighten, 109 Wn.2d 896, 902, 748 P.2d 1118 (1988)(plurality
opinion) (emphasis omitted)(quotuig Dettore v. Brighton Twp. ex rel. Brighton Twp. Bd.
ofAppeals, 91 Mich. App. 526, 534, 284 N.W.2d 148 (1979), vacated on other grounds,
408 Mich. 957,294 N.W.2d 692(1980)), we provide our analysis below.
State V. Bacon (Evan), No. 94393-1

Analysis

I. Juvenile courts do not have the inherent authority to suspend
dispositions

For many years, this court has held that trial courts lack authority to suspend

sentences without statutory authorization to do so. State v. Bird, 95 Wn.2d 83, 85,

622 P.2d 1262 (1980) ("There is no dispute that the trial court lacks inherent

authority to suspend a sentence." (citing State v. Gibson, 16 Wn. App. 119, 127-28,

553 P.2d 131 (1976)); State ex rel. Lundin v. Superior Court, 102 Wn.600,602, 174

P. 473(1918)("we think the law is, in the absence of statute, that courts do not have

the inherent authority to suspend sentence indefinitely, nor did they ever possess any

such power at common law"). ^

Those older cases remain binding on this point. As this court recently

emphasized,"'[T]he fixing oflegal punishments for criminal offenses is a legislative

^ See also State v. Monday, 85 Wn.2d 906, 909-10, 540 P.2d 416 (1975)("it is the
function of the legislature and not of the judiciary to alter the sentencing process"),
overruled in part on other grounds by In re Pers. Restraint ofPhelan, 97 Wn.2d 590, 596,
647 P.2d 1026 (1982); State v. Mulcare, 189 Wn. 625, 628, 66 P.2d 360 (1937)("Fixing
of penalties or punishments for criminal offenses is a legislative function, and the power
of the legislature in that respect is plenary and subject only to constitutional provisions
against excessive fines and cruel and inhuman punishment."); State v. Le Pitre, 54 Wn.
166, 169, 103 P. 27(1909)("acknowledged power ofthe legislature to provide a minimum
and maximum term within which the trial court may exercise its discretion in fixing
sentence").
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State V. Bacon (Evan), No. 94393-1

function.'" State v. Pillatos, 159 Wn.2d 459, 469, 150 P.3d 1130 (2007)(quoting

State V. Hughes, 154 Wn.2d 118, 149, 110 P.3d 192 (2005), overruled in part on

other grounds by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L.

Ed. 2d 466 (2006)). Thus, in Pillatos, this court rejected the State's argument that

trial courts could develop their own procedures for imposing exceptional sentences

above the standard range, even after the United States Supreme Court completely

invalidated our state's statutory provisions for imposing such sentences.^ Id. at 480,

We held that trial courts had to wait for legislative authorization to impose such

sentences; they could not impose such exceptionally high sentences without that

statutory authority. Id. at 469.

Thus, the rule established by our older cases retains its vitality today: the

power to impose and suspend sentences must be granted by the legislature.^ State ex

rel. Woodhouse v. Dore,69 Wn.2d 64,69,416 P.2d 670(1966)("The power to defer

6 Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

^ There are, of course, constitutional limits on that legislative power. E.g., Blakely,
542 U.S. 296;Houston-Sconiers 188 Wn.2d 1. But as discussed in Section III below,such
constitutional limits are not really argued here.

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State V. Bacon (Evan), No. 94393-1

imposition of sentence, as with the power to suspend, must come expressly from the

legislature.").

II. The legislature did not grant juvenile courts the statutory authority to
suspend manifest injustice dispositions, except under listed exemptions
that are absent here

The JJA did not give the trial court the authority to suspend the disposition in

this case. The JJA contains very specific sentencing standards. This includes RCW

13.40.0357, a sentencing schedule, which declares,"This schedule must be used for

juvenile offenders. The court may select sentencing option A,B,C,or D."(emphasis

added). Under the standard sentencing schedule ("Option A: Juvenile Offender

Sentencing Grid"), Bacon would have received a 52-65 week disposition. RCW

13.40.0357 also describes several other options—"Option B: Suspended Disposition

Alternative," "Option C: Chemical Dependency/Mental Health Disposition

Alternative," and "Option D: Manifest Injustice"—^that might be used to determine

Bacon's disposition.

Based on his age, prior adjudications, and current offense. Bacon was eligible

only for Option A: Juvenile Offender Sentencing Grid or Option D: Manifest

Injustice. He was not eligible for the other options. The juvenile court in this case

entered an Option D manifest injustice finding. Option D states, "If the court
State V. Bacon (Evan), No. 94393-1

determines that a disposition under option A, B, or C wolild effectuate a manifest

injustice, the court shall impose a disposition outside the standard range under RCW

13.40.160(2)." Option D does not mention suspended dispositions.

The legislature did specifically address the juvenile court's authority to

suspend dispositions elsewhere, though. RCW 13.40.160(10) states, "Except as

provided under subsection (3),^^^ (4),^^^ (5),'-'°^ or (6)^^'^ ofthis section, or option B of

RCW 13.40.0357, or RCW 13.40.127, the court shall not suspend or defer the

^ "If a juvenile offender is found to have committed a sex offense, other than a sex
offense that is also a serious violent offense as defined by RCW 9.94A.030, and has no
history of a prior sex offense, the court may impose the special sex offender disposition
altemative under RCW 13.40.162." RCW 13.40.160(3).

^ "Ifthe juvenile offender is subject to a standard range disposition oflocal sanctions
or 15 to 36 weeks of confinement and has not committed an A- or B+ offense, the court
may impose the disposition altemative under RCW 13.40.165." RCW 13.40.160(4).

"If a juvenile is subject to a commitment of 15 to 65 weeks of confinement, the
court may impose the disposition altemative under []RCW 13.40.167[, repealed by Laws
of 2016, ch. 106, § 4]." RCW 13.40.160(5).

"When the offender is subject to a standard range commitment of 15 to 36 weeks
and is ineligible for a suspended disposition altemative, a manifest injustice disposition
below the standard range . . . , the court in a county with a pilot program under []RCW
13.40.169 may impose the disposition altemative under RCW 13.40.169[, expired July 1,
2005]." RCW 13.40.160(6)(reviser's note omitted).

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State V. Bacon (Evan), No. 94393-1

imposition or the execution of the disposition."'^ Bacon was ineligible for any of

these suspended disposition options because of the nature of his offense (a second

degree robbery conviction that is a B+ juvenile disposition offense is exempt from

RCW 13.40.160(10)'s suspended sentence options).

Of critical importance here, RCW 13.40.160(10)'s list of exceptions to the

suspended disposition prohibition does not include subsection (2), under which

Bacon was sentenced. Subsection(2), which is cross-referenced by the text ofOption

D, is the one that describes a court's authority to impose a non-standard-range

disposition after a finding of manifest injustice.

Under the statutory interpretation rule expressio unius est exclusio alterius,

the legislature's decision to omit subsection (2) from RCW 13.40.160(10)'s list of

specific exemptions to the bar on suspended sentences must be considered

This subsection has been amended several times since its original adoption in
1981. See former RCW 13.40.160(10)(2007); former RCW 13.40.160(9)(2004); former
RCW 13.40.160(8)(1997); former RCW 13.40.160(8)(1995); former RCW 13.40.160(8)
(1994); former RCW 13.40.160(7)(1992); former RCW 13.40.160(6)(1981).
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State V. Bacon (Evan), No. 94393-1

intentional. Wash. Nat. Gas Co. v. Pub. Util. Dist. No. 1, 77 Wn.2d 94,98,459 P.2d

633 (1969).

The legislative history of RCW 13.40.160(10) compels the same conclusion.

In 1980, this court held that trial courts possessed the authority to suspend

dispositions under the JJA. Bird, 95 Wn.2d at 89. Then, in 1981, the legislature

amended chapter 13.40 RCW to state, "[T]he court shall not suspend or defer the

imposition or the execution of the disposition." Former RCW 13.40.160(6)(1981),

Laws of 1981, ch. 299, § 13; see also A.S., 116 Wn. App. at 314-15 & n.24. This

statute was later modified and recodified at RCW 13.40.160(10). As stated by the

Court ofAppeals in ^.5"., the 1981 legislative amendment"effectively overruled RzW

by unambiguously removing, and later limiting, the discretion to suspend juvenile

dispositions." 116 Wn. App. at 315. Some exemptions have been added since the

original amendment, but manifest injustice dispositions were never included in the

list of permitted suspended dispositions.

We therefore hold that a finding of manifest injustice (Option D) does not

provide a juvenile court with the discretion necessary to suspend a sentence under

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State V. Bacon (Evan), No. 94393-1

the JJA. The decision to the contrary in State v. Crabtree, 116 Wn. App. 536, is

disapproved.

III. Bacon's equity argument is a policy question for the legislature

Both parties agree that the Eighth Amendment does not compel us to

recognize a trial court's inherent authority to impose suspended dispositions. See

Wash. Supreme Court oral argument,supra, at 2 min., 55 sec. to 3 min., 50 sec.; 14

min. to 14 min., 10 sec.; U.S. CONST, amend. VIII. Rather, Bacon argues that an

equitable application ofHouston-Sconiers supports such a result. But our holding in

Houston-Sconiers was based squarely on the United States Constitution, not simply

on equity or policy. In addition, our decision in Houston-Sconiers concerned only

the length of the sentence, not the authority to suspend it. 188 Wn.2d at 9. We did

not address whether or when a disposition could be suspended in juvenile court.

Additionally, none of the Eighth Amendment decisions cited by Bacon

provide direct support for the argument made in his briefs—but withdrawn at oral

argument—^that the United States Constitution requires juvenile courts to have the

power to suspend dispositions. See Miller v. Alabama,567 U.S. 460,465, 132 S. Ct.

2455, 183 L. Ed. 2d 407 (2012); Graham v. Florida, 560 U.S. 48, 82, 130 S. Ct.

2011, 176 L. Ed. 2d 825 (2010); Roper v. Simmons, 543 U.S. 551, 578, 125 S. Ct.

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State V. Bacon (Evan), No. 94393-1

1183, 161 L. Ed. 2d 1 (2005). All ofthese cases hold that children are different from

adults and that those differences require trial court discretion at sentencing and/or

categorically bar certain juvenile sentences. But none of them hold that the United

States Constitution requires sentencing courts to possess the authority to suspend

dispositions for juveniles.

Conclusion

The JJA is designed to "[pjrovide for punishment commensurate with the age,

crime, and criminal history of the juvenile offender" and to "[pjrovide for the

handling of juvenile offenders by communities whenever consistent with public

safety."'"^ Suspended dispositions based on manifest injustice findings might well

further those goals. But that is a policy argument for the legislature. As currently

written, the JJA clearly limits the juvenile court's authority to impose suspended

manifest injustice dispositions to the specific situations listed in RCW

13.40.160(10). We therefore affirm the Court of Appeals and hold that manifest

'3 RCW 13.40.010(2)(d).

'^RCW 13.40.010(2)(h).

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State V. Bacon (Evan), No. 94393-1

injustice dispositions cannot be suspended unless they fit within one ofthe exclusive,

listed statutory prerequisites to imposing a suspended disposition.

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 State V. Bacon (Evan), No. 94393-1

WE CONCUR:

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