State v. B.O.J.

yFTUEV
^ IN CLERKS OPPICe X
This opinion was
filed for record
SUnStE COURT.8IXIE OF WMSHMQTOI

I ^TE OCT (1 9ni9 Cj0t'^/r~ "
\ lO\M (\AAA^ir , ^ Susan L. Carison
^ CHIEF JUSTICE Supreme Court Clerk

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASfflNGTON, No. 95542-5

Respondent, EN BANC

V. Filed OCT 0 3

B.O.J.,

Petitioner.

FAIRHURST, C.J.—In this moot case of substantial and continuing public

interest, a juvenile offender challenges whether her need for treatment was an

appropriate basis for imposing a manifest injustice disposition. We hold that it was

not. We reverse the Court of Appeals' holding that B.O.J.'s need for treatment

supported the trial court's finding that a standard range disposition would effectuate

a manifest injustice.

Because the case is moot, we decline to reach B.O.J.'s claim that the State

breached its plea agreement.
State V. B.OJ.,m. 95542-5

1. FACTS AND PROCEDURAL HISTORY

B.OJ. had a difficult childhood and adolescence, having been bom crack

exposed. She was raised primarily by her grandmother, with intermittent contact

with her father. In March 2014, she entered into a dependency guardianship with the

former Department of Social and Health Services (DSHS).' Her grandmother died

in 2016.

B.O.J. habitually ran away from her DSHS foster placements, as evidenced

by 18 dependency contempt warrants issued from 2014 to 2016. During that same

period she began to accrue a criminal history, consisting of the following gross

misdemeanors: one count of attempted second degree taking of a motor vehicle, five

counts of attempted third degree theft, two counts of false statement, two counts of

fourth degree assault, and unlawful possession of alcohol by a minor. Also in that

time, roughly 30 warrants were issued for violations of a court order and for failure

to appear for mandatory court hearings.

On November 15, 2016, B.O.J. pleaded guilty to two counts of third degree

theft for shoplifting from a Safeway. These offenses subjected her to a '"local

sanctions'" standard sentence range, consisting of"one or more of the following":

(1)0-60 days of confinement,(2)0-24 months of community supervision,(3)0-300

'The newly created Department of Children, Youth, and Families took over child welfare
duties that were formerly the responsibility of DSHS,effective July 1, 2018. ROW 43.216.906.
State V. B.OJ.,^0. 95542-5

hours of community restitution, or (4) a fine of $0-$l,000. RCW 13.40.020(18),

.0357, .180. In exchange for her plea, the prosecution promised to recommend 6

months of community supervision, 8 hours of community service, credit for time

served, release at her sentencing disposition, and no contact with the victims. The

plea agreement specified that the State's recommendation could "INCREASE IN

SEVERITY" if B.O.J. "VIOLATE[D] CONDITIONS OF RELEASE." Clerk's

Papers(CP)at 15.

B.O.J.'s disposition hearing occurred on December 13, 2016. The State

contended that it was no longer bound by the plea agreement, asserting that B.O.J.

had violated the conditions of her release by running away from placement. The

State recommended a manifest injustice disposition of 27 to 36 weeks of

confinement in a Juvenile Rehabilitation Administration (JRA) facility. The

prosecutor stated that his recommendation was "based on [B.O.J.'s] inability to

comply with community supervision terms" and "her rather extreme needs that have

been untreated so far and cannot be treated in the community." Verbatim Report of

Proceedings (VRP)(Dec. 13, 2016) at 20-21. He reasoned, "That amount of time

will allow her at least one shot, if not two, at drug and alcohol treatment," a process

that "takes at least 10 weeks" and often needs to be tried more than once by "youth

who have been historically resistant to that treatment." Id. at 20.
State V. No. 95542-5

B.O.J.'sjuvenile probation counselor(JPC)submitted a report recommending

52 to 65 weeks of confinement at a JRA facility. The report detailed B.O.J.'s

personal, criminal, mental health, and substance abuse histories. Attached to the

report were roughly 80 pages of supplemental materials, including court records;

DSHS records; a global appraisal ofindividual needs assessment from July 28,2015;

a urinalysis from November 19, 2016 testing positive for cannabinoids; school

transcripts and disciplinary records; a mental health summary report from the

Juvenile Justice Assessment Team of the King County Superior Court; and a pass

from fall 2015 for inpatient drug and alcohol treatment at a facility in Spokane.

B.O.J.'s counsel recommended 60 days of confinement with a pass for

inpatient treatment and 4 months of community supervision.

The court found (1) that the standard range "would not allow sufficient time

for [B.O.J.] to complete the services she needs, nor would she engage with such

services in the community;"(2)that the standard range "would be too lenient in light

of[B.O.J.'s] uncharged criminal conduct, dismissed charges, and failures to comply

with court orders;" and (3) that "[ejither of these bases, standing alone, would be

sufficient for the Court to impose" the manifest injustice disposition. CP at 41

(Findings of Fact & Conclusions of Law for Manifest Injustice Disposition(FFCL)

paras. 20-24).
State V. 95542-5

At the disposition hearing, the trial court orally stated its findings that both

the need for treatment and the fact that the standard range would be too lenient

supported the manifest injustice disposition. But immediately after stating its finding

that the standard range was too lenient, the trial court continued,"And I guess—let

me back up—^not so much the seriousness of her adjudications, but the seriousness

ofthe services that she needs in order to have success." VRP at 30. The court further

elaborated that

ifI'm given two choices, one being her on the street and hoping for the
best, and one being her in a place where she's stable and has access to
treatment ... at some point during that period of time, hopefully she
realizes . . . that there are things out there that can help her. . . . [The]
JRA in this state is not designed to warehouse people ... it's designed
to offer services in a place where you,[B.O.J.], weren't able to get them
before.

Id. at 34-35. The trial court also found as a mitigating factor that B.O.J.'s conduct

neither caused nor threatened serious bodily injury, RCW 13.40.150(3)(h)(i), but

concluded that "the services that [B.O.J.] needs far outweigh—let me back up—^the

aggravating factors in this case far outweigh that mitigating factor, and still require

a manifest injustice sentence." VRP at 36. The trial court imposed a manifest

injustice disposition of42 to 52 weeks of JRA confinement.

The Court of Appeals affirmed B.O.J.'s manifest injustice disposition. State

V. Jones, No. 76258-3-1 (Wash. Ct. App. Jan. 22, 2018) (unpublished),

https://www.courts.wa.gov/opinions/pdf/762583.pdf. We granted review.
State V. B.O.J, No. 95542-5

11. ANALYSIS

A. Whether a juvenile offender's need for treatment is an appropriate basis for
imposing a manifest injustice disposition is a matter of continuing and
substantial public interest

B.O.J. concedes that her appeal is moot. Because she has served her full

disposition and is no longer a juvenile, we can no longer provide effective relief. Cf.

State V. Turner, 98 Wn.2d 731, 733, 658 P.2d 658 (1983). But she argues that she

raises issues of substantial public interest that warrant our review.

"It is a general rule that, where only moot questions or abstract propositions

are involved, ... the appeal . .. should be dismissed." Sorenson v. City of

Bellingham, 80 Wn.2d 547, 558,496 P.2d 512(1972). Nevertheless, we may decide

a moot case if it involves "matters of continuing and substantial public interest." Id.

We consider the following criteria in determining whether or not a
sufficient public interest is involved:
(1) the public or private nature of the question presented;
(2)the desirability ofan authoritative determination which
will provide future guidance to public officers; and(3)the
likelihood that the question will recur.

In re Det. of Swanson, 115 Wn.2d 21, 24-25, 793 P.2d 962, 804 P.2d 1 (1990)

(quoting Dunner v. McLaughlin, 100 Wn.2d 832, 838, 676 P.2d 444 (1984)); see

also Nat'l Elec. Contractors Ass'n v. Seattle Sch. Dist. No. 1, 66 Wn.2d 14, 20, 400

P.2d 778 (1965). "A fourth factor may also play a role: 'the level of genuine

adverseness and the quality of advocacy of the issues'." Westerman v. Cary, 125

Wn.2d 277, 286,885 P.2d 827,892 P.2d 1067(1994)(quotingT/ar? v. Dep'tofSoc.
6
State V. No. 95542-5

& Health Servs., Ill Wn.2d 445, 448, 759 P.2d 1206 (1988)). "In addition, we

consider the likelihood that the issue will never be decided by a court due to the

short-lived nature of the case." Philadelphia II v. Gregoire, 128 Wn.2d 707, 712,

911 P.2d389 (1996).

B.O.J. contends that the need for substance abuse and mental health treatment

is not an appropriate basis for imposing a manifest injustice disposition under the

Juvenile Justice Act of 1977(the Act), chapter 13.40 RCW.While B.O.J.'s particular

treatment needs are private, "the need to clarify [a] statutory scheme ... is a matter

ofcontinuing and substantial public interest." Dunner, 100 Wn.2d at 838. Moreover,

by citing other pending motions for discretionary review,B.O.J. convincingly argues

that this issue is likely to recur. And because of the relatively short length of most

juvenile offender dispositions, this court rarely has the opportunity to consider them

before they become moot. We thus conclude that whether the need for treatment may

support a juvenile court's manifest injustice finding is a matter of continuing and

substantial public interest that merits our review.

B.O.J. also asserts that the prosecution breached its plea agreement by

recommending a manifest injustice disposition. That allegation is tied up in the

unique facts ofthis case. She has not shown that the issue presents a public question

7
State V. No. 95542-5

or that it is likely to recur.^ Conscious of the fact that overuse of the public interest

exception would "threaten[] to swallow the basic rule" of not resolving moot

questions, we decline to reach this issue. Hart, 111 Wn.2d at 450.

B. Need for treatment is typically not an appropriate basis for imposing a
manifest injustice disposition

1. Standard ofreview

We typically review a manifest injustice disposition for manifest abuse of

discretion,^ asking whether "the reasons supplied by the disposition judge are

supported by the record which was before the judge," whether "those reasons clearly

and convincingly support the conclusion that a disposition within the range would

constitute a manifest injustice," and whether "the sentence imposed was neither

clearly excessive nor clearly too lenient." State v. M.L., 134 Wn.2d 657, 660, 952

P.2d 187 (1998); RCW 13.40.230(2). "Once a juvenile court has concluded that a

disposition within the standard range would effectuate a manifest injustice, the court

is vested with broad discretion in determining the appropriate sentence to impose."

M.L., 134 Wn.2d at 660. If a trial court's ruling is based on an erroneous view ofthe

law or involves application of an incorrect legal analysis, it necessarily abuses its

^ To the contrary, B.O.J.'s counsel conceded at oral argument that this issue is unlikely to
recur. Wash. Supreme Court oral argument, State v. No. 95542-5 (Mar. 12, 2019), at 8
min., 36 sec., video recording by TVW, Washington State's Public Affairs Network,
http://www.tvw.org.
^ State V. Sledge, 133 Wn.2d 828, 844, 947 P.2d 1199(1997).
8
State V. B.O.J, No. 95542-5

discretion. Dix v. ICTGrp., Inc., 160 Wn.2d 826, 833, 161 P.3d 1016 (2007); State

V. Kinneman, 155 Wn.2d 272, 289, 119 P.3d 350 (2005).

This case also involves a question ofstatutory interpretation: whether the need

for treatment is an appropriate basis for imposing a manifest injustice disposition

under the Act. "Statutory interpretation 'is a question of law reviewed de novo.'"

BNSFRy. Co. v. Clark, 192 Wn.2d 832, 837, 434 P.3d 50(2019)(quoting State v.

James-Buhl, 190 Wn.2d 470, 474, 415 P.3d 234 (2018)). "The goal of statutory

interpretation is to discern and implement the legislature's intent." State v.

Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007). To discern legislative intent,

we look first to the statute's plain language.Id. Ifthe plain language is unambiguous,

our inquiry is at an end. Id. Where the plain language admits of more than one

reasonable interpretation, it is ambiguous.Id. We may then look to legislative history

as a further indication oflegislative intent. Id. at 110-11."'The ordinary use ofwords

at the time when used, and the meaning adopted at that time, is usually the best guide

for ascertaining legislative intent.'" Jongeward v. BNSF Ry. Co., 174 Wn.2d 586,

596, 278 P.3d 157(2012)(quoting 5/oomer v. Todd, 3 Wash. Terr. 599, 615, 19 P.

135 (1888)).

2. The statutory scheme

The Act states that "[i]f the court concludes .. . that disposition within the

standard range would effectuate a manifest injustice the court shall impose a
State V. B.O.J.,^0. 95542-5

disposition outside the standard range .... The court's finding of manifest injustice

shall be supported by clear and convincing evidence." RCW 13.40.160(2).

This statutory scheme is most naturally read as imposing a two-part procedure

on the juvenile sentencing court. First, the court must "conclude[] ... that

disposition within the standard range would effectuate a manifest injustice." Id.

Then, having made this threshold determination, the court determines what

particular length and form of manifest injustice disposition is appropriate. This

reading is indicated by the conditional form of RCW 13.40.160(2): "if the court

concludes . . . that disposition within the standard range would effectuate a manifest

injustice the court shall impose a disposition outside the standard range."(Emphasis

added.)

The court's threshold determination that a standard range disposition would

effectuate a manifest injustice is guided by the statutory definition of "manifest

injustice." In the case of a manifest injustice disposition that exceeds the standard

range, the court must find, as a threshold matter, that a standard range disposition

"would impose a serious, and clear danger to society in light ofthe purposes of this

chapter." RCW 13.40.020(19)(defining "manifest injustice").

Chapter 13.40 RCW expressly lists 13 "equally important purposes." RCW

13.40.010(2). Some of the statutorily enumerated purposes will be relevant to this

determination (e.g., "[pjrotect the citizenry from criminal behavior," RCW

10
State V. No. 95542-5

13.40.010(2)(a)), while others will not(e.g.,"[djevelop effective standards and goals

for the operation, funding, and evaluation of all components of the juvenile justice

system and related services at the state and local levels," RCW 13.40.010(2)(i)).

Under the plain language of the Act, only to the extent that they suggest that "a

serious, and clear danger to society" are the statutorily enumerated purposes relevant

to the threshold manifest injustice determination. RCW 13.40.020(19).

At the disposition hearing, the trial court is required to consider statutorily

enumerated mitigating and aggravating factors. RCW 13.40.150(3)(h),(i). But see

State V. Rhodes, 92 Wn.2d 755, 759, 600 P.2d 1264 (1979), overruled on other

grounds by State v. Baldwin, 150 Wn.2d 448, 78 P.3d 1005 (2003), and abrogated

on other grounds by State v. T.J.S.-M., 193 Wn.2d 450, 441 P.3d 1181 (2019)

("[T]he court is not limited to consideration of the statutorily enumerated factors.).

Aggravating and mitigating factors may be relevant to both the threshold

determination that a standard disposition would effectuate a manifest injustice and

the court's subsequent determination of what particular form (i.e., confinement or

community supervision) and length of manifest injustice determination is

appropriate. For example, the fact that the juvenile's "conduct neither caused nor

threatened serious bodily injury'"^—or, conversely, that "[t]he offense was

RCW 13.40.150(3)(h)(i)(mitigating factor).
11
State V. B.O.J.,^0. 95542-5

committed in an especially heinous, cruel, or depraved manner"^—speaks both to

whether a standard range disposition would "impose a serious, and clear danger to

society"^ and to what precise form and length of disposition is appropriate.

The trial court articulated two independent reasons supporting its decision to

impose a manifest injustice disposition. We consider each in turn.

3. B.O.J's need for treatment does not support a finding of manifest
injustice

First, the trial court found that a standard range disposition "would not allow

sufficient time for [B.O.J.] to complete the services she needs, nor would she engage

with such services in the community." CP at 41 (FFCL para. 20). We hold that this

was not an appropriate basis for imposing a manifest injustice disposition.

To impose a manifest injustice disposition, the trial court must find that the

standard range "would impose a serious, and clear danger to society in light of the

purposes of this chapter." RCW 13.40.020(19), .160(2). In this case, the trial judge

found that the standard range would effectuate a manifest injustice in part because

of the seriousness of the substance abuse and mental health treatment services that

B.O.J. needed, and because ofthe length oftime that the State believed B.O.J. would

need to complete those services.

^ RCW 13.40.150(3)(i)(ii)(aggravating factor).
^ RCW 13.40.020(19)(defining "manifest injustice").
12
State V. B.O.J, No. 95542-5

But a juvenile's need for such services typically does not impose a serious,

and clear danger to society, and there is no indication that B.OJ.'s particular needs

did so either. The record does not indicate, for example,that the State sought mental

health treatment services to prevent B.O.J. from harming other members of society.

Instead, the record indicates that B.O.J. would benefit from counseling to address

the substantial trauma of her unstable home life and experiences as a transient youth.

And the record fails to indicate that her history of alcohol and marijuana use, while

personally harmful, imposed a serious, and clear danger to society.

The State argues that since "[p]rovid[ing] necessary treatment, supervision,

and custody for juvenile offenders" is one of "equally important" statutorily

enumerated purposes ofthe Act, RCW 13.40.010(2)(g), the trial court's finding that

B.O.J. had treatment needs supported its conclusion that the standard range "would

impose a serious, and clear danger to society in light ofthe purposes ofthis chapter.'"

RCW 13.40.020(19)(emphasis added). But"in light ofthe purposes ofthis chapter"

modifies "would impose a serious, and clear danger to society"—not the other way

around. As discussed above, the Act's purposes are relevant to the trial court's

threshold manifest injustice finding only to the extent that they speak to "a serious,

and clear danger to society." Id.^ Of course, once the trial court has made its

' Alternatively, the State proposes that B.O.J. is herself included as a member of"society"
for the purposes of RCW 13.40.020(19). Hence, the fact that a standard range would impose a
serious, and clear danger to B.O.J. herself, by denying her access to necessary treatment, is
13
State V. B.O.J.,^0. 95542-5

threshold manifest injustice finding, the Act's purpose of providing necessary

treatment is relevant to the length and form of the particular disposition imposed.

The Act "does not set up a rigidly punitive system," and it is incumbent on the

juvenile justice system to help its youthful offenders. State v. Rice, 98 Wn.2d 384,

391,655 P.2d 1145(1982). But the need for treatment is typically not relevant to the

trial court's manifest injustice finding because it typically does not implicate a

serious, and clear danger to society.

B.O.J. and amici argue that extended confinement of B.O.J. in a manifest

injustice disposition at best failed to mitigate any serious and clear danger to society

posed by her standard length sentence, and at worst increased such danger. For

support, they cite empirical studies suggesting that increased incarceration terms for

juveniles either fail to reduce or actually increase recidivism. Most notable is a 2016

peer reviewed study of Washington youths committed to JRA facilities that "failed

to find a relationship between length of stay and felony recidivism occurring within

one year of release." Sarah Cusworth Walker & Asia Sarah Bishop, Length ofStay,

Therapeutic Change, and Recidivism for Incarcerated Juvenile Offenders, 55 J. OF

Offender Rehabilitation 355,371 (2016). The study found that "[t]he recidivism

rate among . . . five lengths of stay levels stayed consistent with a slight.

sufficient to support the trial court's manifest injustice finding. Such a reading would swallow the
rule set forth in RCW 13.40.020(19) and .160(2), and we reject it.
14
State V. B.O.J., No. 95542-5

nonsignificant, dip for stays lasting 9-11 months," which the authors suggested

"adds to a growing body of literature also failing to find any empirical support for

the relationship between longer custodial sentences and reduced future offending."

Id. In essence, B.O.J. and amici argue that the trial court's disposition decision in

this case, while a well-intentioned effort to help B.O.J. get access to substance abuse,

mental health, and education services, is statistically likely to backfire.

We base our holding on the plain, unambiguous language of the statute, not

on the basis of empirical studies. Nonetheless, we do not make decisions in a

vacuum, and the studies cited by B.O.J. and amici offer a cautionary tale against

imposing lengthy sentences over standard range dispositions with the hope of

improving outcomes for juvenile defendants. We note that juvenile trial courts may

appropriately consider such studies when relevant and material, and may rely on

them to the extent of their probative value. ROW 13.40.150(1) ("In disposition

hearings all relevant and material evidence . . . may be received by the court and

may be relied upon to the extent of its probative value.").

The plain, unambiguous language of the Act states that "a serious, and clear

danger to society" is the sole basis for an adjustment upward from a standard range

disposition. RCW 13.40.020(19), .160(2). The Act's purpose of "[p]rovid[ing]

necessary treatment"^ to juvenile offenders will generally be relevant only to the trial

RCW 13.40.010(2)(g).
15
State V. B.OJ.,^0. 95542-5

court's determination of what form and length of manifest injustice disposition to

impose—^not to the threshold determination of whether a manifest injustice

disposition is appropriate. Because nothing indicated that B.O.J.'s need for treatment

posed a serious, and clear danger to society, her need for treatment was not an

appropriate basis for imposing a manifest injustice disposition.

4. Overleniency of the standard range can support a manifest injustice
disposition, but the trial court in this case relied almost exclusively on B.O.J's
treatment needs

As a second independent reason for imposing a manifest injustice disposition,

the trial court found that a standard range disposition "would be too lenient in light

of[B.O.J.j's uncharged criminal conduct, dismissed charges, and failures to comply

with court orders." CP at 41 (FFCL para. 21).

As a general rule, leniency of the standard range is an appropriate basis for

imposing a manifest injustice disposition above the standard range. At the

disposition hearing, the trial court is statutorily required to consider the existence or

absence of certain mitigating and aggravating factors. RCW 13.40.150(3)(h), (i).

Aggravating factors include whether "[tjhere are other complaints which have

resulted in diversion or a finding or plea of guilty but which are not included as

criminal history," and whether "[t]he standard range disposition is clearly too lenient

considering the seriousness of the juvenile's prior adjudications." RCW

13.40.150(i)(vii),(viii). Not only are these listed as aggravating factors, but they are

16
State V. B.O.J.,No. 95542-5

also more obviously relevant to whether the standard range would impose a serious,

and clear danger to society than is the need for treatment and they may support a

trial court's manifest injustice finding.

The particular facts ofthis record fail to convince us that the trial court would

have imposed a manifest injustice disposition in the absence of B.O.J.'s treatment

needs. To be sure, the trial court expressly found that "either" B.O.J.'s treatment

needs or the leniency ofthe standard range,"standing alone, would be sufficient for

the Court to impose the [manifest injustice up] in this case." CP at 41 (FFCL para.

22). But this bare conclusion is belied by the trial court's oral and written findings

and conclusions.

In the disposition hearing, the trial court focused almost exclusively on

B.O.J.'s treatment needs as the basis for imposing a manifest injustice disposition.

The court did find that the standard range disposition was too lenient, referencing

the JPC report without elaboration, but immediately downplayed the significance of

that finding to its decision, stating,"And I guess—let me back up—^not so much the

seriousness of her adjudications, but the seriousness ofthe services that she needs in

order to have success." VRP at 30.

After introducing the JPC report into the trial record and sealing it, the trial

court continued with an extended description of B.O.J.'s treatment needs and

unrealized potential. The court agreed with B.O.J.'s attorney

17
State V. 95542-5

that there's no evidence out there that the juvenile justice system ... is
in a position to get[B.O.J.] what she wants and to help her in a unilateral
way. But her being on the street, . . . her trying to find a place to live
without any drug treatment and without any help from anyone ... is
going to result in worse.
And I hate to be patronizing, and I hate to be thejudge who thinks
that they can fix everything,. . . but ifI'm given two choices, one being
her on the street and hoping for the best, and one being her in a place
where she's stable and has access to treatment,. . . then maybe some of
that potential gets used in a positive way.

Id. at 34. The court then exhorted B.O.J. to avail herself of the treatment

opportunities in JRA confinement and found "that local sanctions are a manifest

injustice given the needs that [B.O.J.] has." Id. at 35. The court also noted lack of

violence as a mitigating factor but concluded that "the services that [B.O.J.] needs

far outweigh—let me back up—^the aggravating factors in this case far outweigh that

mitigating factor." Id. at 36.

Similarly, the trial court's written findings and conclusions undercut any

inference that it found the leniency aggravator to be a sufficient basis, standing

alone, for imposing a manifest injustice disposition. For example, the trial court

found that B.O.J. "violated probation or pretrial supervision" and "failed to appear

for mandatory court hearings." CP at 41 (FFCL paras. 9-10). But in each case, the

court found that "this makes it impossible to provide [B.O.J.] with services while

she remains on probation or supervision." Id.(FFCL paras. 9-10).

All of this leaves the indelible impression that the trial court's finding of

manifest injustice was motivated almost exclusively by B.O.J.'s treatment needs.
18
State V. B.O.J.,'No. 95542-5

But under the Act, B.OJ.'s treatment needs were not an appropriate basis for

imposing a manifest injustice disposition. The trial court thus based its manifest

injustice finding on an erroneous view ofthe law."If[a] trial court's ruling is based

on an erroneous view ofthe law or involves application ofan incorrect legal analysis

it necessarily abuses its discretion." Dix, 160 Wn.2d at 833. We therefore hold that

the trial court abused its discretion in imposing a manifest injustice disposition.

Were this case not moot, we would remand to the trial court for a new

disposition hearing. On remand, the trial court would remain free to impose a

manifest injustice based on appropriate factors (inter alia, the fact that the standard

range would be too lenient)—^provided that it found by clear and convincing

evidence, and entered reasons for its finding, that a disposition outside the standard

range would effectuate a manifest injustice. ROW 13.40.160(2); T.JS.-M., 193

Wn.2d at 458-62. But because the case is now moot, we are unable to provide this

remedy and must simply issue our decision.

III. CONCLUSION

The trial court abused its discretion in basing its manifest injustice finding on

B.O.J.'s need for substance abuse and mental health treatment. A juvenile does not

usually pose a serious, and clear danger to society merely because they need

treatment. Accordingly,the Act's purpose of"[p]rovid[ing] necessary treatment"^ to

RCW 13.40.010(2)(g).
19
State V. B.O.J., No. 95542-5

juvenile offenders is typically relevant only to the trial court's determination of what

form and length of manifest injustice disposition to impose—not to the threshold

determination of whether a manifest injustice disposition is appropriate. We reverse

the Court of Appeals.

B.O.J.'s claim that the prosecution breached its plea agreement is not a matter

of continuing and substantial public interest, and we decline to review it.

20
State V. B.O.J, No. 95542-5

WE CONCUR:

n

)

7

21
State V. B.O.J

No. 95542-5

Gonzalez, J.(concurring)—I concur with the majority that the need for

treatment is not an appropriate basis for a manifest injustice disposition. The need

for treatment should be a mitigator, not an aggravator. I would also hold that the

misguided belief that incarceration is good for children may not be the basis for a

manifest injustice disposition. Incarceration harms children.'

I write separately to express my concerns with the juvenile probation

counselor's report. The report contained many problematic statements. Among

these statements are descriptions of B.O.J. as "liv[ing] a gangster lifestyle" and

being "addicted to a life of crime." Manifest Injustice Dispositional Report to

Court at 3 (sealed); see Barry C. Feld,The EVOLUTION OF THE JUVENILE COURT

100(2017)("Code words are symbols or phrases that implicate racial themes but

without directly challenging egalitarian ideals."). B.O.J. objected to the report's

'"Incarcerating children for minor crimes leads to increased delinquency and other negative
consequences. They experience higher levels of substance abuse, difficulty in school, violence,
and difficulty adjusting throughout adulthood." Pet'r's Suppl. Br. at 7-8 (citations omitted)
(citing James Snyder et ah. Peer Deviancy Training and Peer Coercion: Dual Processes
Associated with Early-Onset Conduct Problems, 79 Child Dev., 252(2008); Barry Holman &
Jason Ziedenberg, Justice Policy Institute, The Dancers of Detention: The Impact of
Incarcerating Youth in Detention and Other Secure Facilities (2011) at 6).

1
State V. No. 95542-5 (Gonzalez, J., concurring)

unfounded characterizations, which were used to recommend a manifest injustice

disposition. The trial court followed the report's recommendation.

There is considerable evidence that bias results in harsher dispositions for

children of color, and for girls of color in particular. See Amici Curiae Br. of

TeamChild & Mockingbird Soc'y at 19 & n.42 (citing Wendy S. Heipt, Courts

Igniting Change: Girls' Court: A Gender Responsive Juvenile Court Alternative,

13 Seattle!. Soc. Just. 803, 816 (2015)).^ And, in my view,"bias 'found its way

into the final judgment'" and the trial court's reliance on the report appears to "cast

doubt on the trial court's entire ruling." In re Marriage ofBlack, 188 Wn.2d 114,

135, 137, 392 P.3d 1041 (2017)(quoting v. Jacoby, 763 So.2d 410, 414

(Fla. 2000)).

With these observations, I concur.

^ The problem of bias adversely influencing a manifest injustice disposition is not at all unique to
B.O.J. See, e.g., George S. Bridges & Sara Steen, Racial Disparities in Official Assessments of
Juvenile Offenders: Attributional Stereotypes as Mediating Mechanisms, 63 Am. Soc. Rev. 554
(1998)[https://perma.cc/J6RJ-J4BV]; Michael J. Leiber & Jennifer H. Peck, Race in Juvenile
Justice and Sentencing Policy: An Overview ofResearch and Policy Recommendations, 31 Law
& Ineq. 331 (2013)[https://perma.cc/X6HS-SAT9]; Emily Gaarder, Nancy Rodriguez 8l
Marjorie S. Zatz, Criers, Liars, and Manipulators: Probation Officers' Views ofGirls, 21 Just.
Q. 547(2004); cf. State v. Sledge, 133 Wn.2d 828, 843 n.7, 947 P.2d 1199 (1997).
State V. B.O.J.,'S\o. 95542-5 (Gonzalez, J., concurring)
State V. B.O.J.

No. 95542-5

MADSEN,J.(dissenting)—In this juvenile disposition, the trial court found that

either B.O.J.'s treatment needs or the leniency of the standard range, standing alone,

provided a sufficient basis for a manifest injustice disposition. Clerk's Papers(CP)at 41.
The majority acknowledges but dismisses this express, written finding on the basis that it

is seemingly insincere. Majority at 17. The appropriate inquiry, however, is whether the

trial court abused its discretion in making the noted determination. In my view, it did

not. Here, the court's concern for the legitimate treatment needs of this juvenile were

inextricably entwined with her criminal record, her ongoing criminal behavior, her failure

to comply with court orders, the community's safety, and B.O.J.'s personal safety. The

majority's approach undermines the very purpose ofthe Juvenile Justice Act of 1977

(JJA), ch. 13.40 RCW,to help juveniles while simultaneously protecting society.

Accordingly, I dissent.

Specifically, the majority concludes that the trial court misapplied the law and thus

abused its discretion in making its manifest injustice disposition determination. I believe

it is the majority that is misapplying well-settled law. B.O.J. pleaded guilty to two counts
No. 95542-5
Madsen, J., dissenting

of third degree theft for shoplifting items, including five bottles of liquor, from a

supermarket. Instead ofthe 60 day standard range sentence, the juvenile court imposed a

manifest injustice sentence of42 to 52 weeks, relying on the sealed juvenile probation

counselor's presentence report, other documentation, and the electronic records ofthe

juvenile's extensive criminal history. The report, in part, noted the juvenile was a

chronic runaway,* who lived a transient lifestyle, had been involved in assaults, is

violent, uses drugs and alcohol, and associates with gang members.^ Manifest Injustice

Dispositional Report to Court(Report) at 3. The report also noted that the juvenile's

criminal history was lengthy and escalating(22 criminal referrals, some as felonies), that

she is not concerned about the impact of her actions on her victims, that she has not

changed her behavior in 3 years, and that she has never exhibited concern or remorse for

her victims; the report concluded that a standard range sentence was inadequate to protect

the community against further offenses and recommended 52 to 65 weeks in juvenile

detention. As noted, the juvenile court imposed a manifest injustice disposition of42 to

52 weeks.

^ I agree with the concurrence that excessive incarceration harms children. However,the
manifest injustice sentence here actually provides B.O.J. with an opportunity for treatment,
which she and counsel agree B.O.J. critically needs.
^ The report states that the juvenile indicates she shoplifts when she feels hungry and she steals
hard liquor for resale on the street to support herself. Manifest Injustice Dispositional Report to
Court at 4. The juvenile is "a Ward of the State that has never complied with her treatment plans
or stayed in DCFS [(Division of Children and Family Services)] placements;" she "runs [away]
whenever she is released from detention." Id. at 3. Noting that the juvenile has "22 police
referrals, 31 criminal warrants, 20 DCFS warrants, 7 guilty pleas and 5 modifications" and that
"[B.O.J.] has been screened into detention 32 times," the report concludes that the juvenile "is
not amenable to ... community supervision at this moment." Id.
No. 95542-5
Madsen, J., dissenting

B.O.J. contends that the evidence supporting the manifest injustice disposition was

inadequate. A finding of manifest injustice will be upheld if substantial evidence
supports the reasons given, those reasons clearly and convincingly support the
disposition, and the disposition is not too excessive or too lenient. RCW 13.40.230(2);
State V.J.V., 132 Wn. App. 533, 540, 132 P.3d 1116 (2006). A reviewing court can

affirm a manifest injustice finding if one or more ofthe factors supported by the record

clearly and convincingly support the disposition and we can determine that the trial court

would have entered the same sentence on the basis of the remaining valid aggravating

factors. State v. S.H., 75 Wn. App. 1, 12, 877 P.2d 205 (1994).

Here, the juvenile court found substantial and compelling reasons for imposing a

manifest injustice disposition, determining in part that B.O.J.'s significant substance

abuse and welfare needs would require more treatment and counseling than could be

accomplished with local sanctions and that this was a basis for departing upward from the

standard range. CP at 41. The record supports this. The report notes B.O.J.'s "need for a

structured setting . .. where she can receive consistent treatment without interruption,"

including drug and alcohol treatment and mental health treatment. Report at \ \\see S.H.,

75 Wn. App. at 11-12(a high risk to reoffend and the need for treatment are valid

grounds for a manifest injustice disposition), 22(affirming the manifest injustice

disposition, but remanding for imposition of a 208-week disposition commensurate with

the social worker's recommendation of4 years of treatment); of. State v. P, 2>1 Wn. App.

773, 778-79, 686 P.2d 488(1984)(where the need for treatment is the sole basis for the
No. 95542-5
Madsen, J., dissenting

manifest injustice disposition, the length of sentence cannot exceed the available
treatment).^

The juvenile court also determined that B.O.J. had a significant criminal history,

as well as continuing criminal conduct similar to the current offense that was dismissed;

in addition she continued to offend while cases were pending and failed to comply with

court orders. In light of these circumstances, and the fact that B.O.J. was highly unlikely

to comply with voluntary treatment or probationary options, the court believed the

standard range was too lenient, warranting a departure upward from the standard range.

As noted, the court expressly determined that any ofthese reasons, standing alone, was

sufficient to justify the length ofthe disposition imposed. CP at 42. The record supports

the manifest injustice determination. See State v. T.E.H., 91 Wn. App. 908, 917-18, 960

P.2d 441 (1998)(a high risk that a juvenile will reoffend is a valid ground for a manifest

injustice disposition).

Once a court determines that a disposition within the standard range would

effectuate a manifest injustice, a trial court is vested with broad discretion in determining

what sentence to impose. A disposition will be reversed only if the sentence imposed is

so clearly excessive as to constitute an abuse of discretion. ROW 13.40.230(2)(b); State

3 See also State v. Sledge, 133 Wn.2d 828,947 P.2d 1199(1997). There, this court
acknowledged that "the Juvenile Justice Act retains treatment, in addition to punishment, as one
of its express goals." Id. at 844 n.8. This court held that "with no specificjuvenile treatment
program requiring a specific duration to complete, a trial judge may not take into consideration
the possibility of early release in imposing an exceptional disposition, as the entitlement to such
release is entirely too speculative." Id. at 846 (emphasis added). The highlighted proviso
indicates this court's acknowledgement that the need for treatment and its completion is a valid
basis for imposing an exceptional sentence of sufficient length to facilitate treatment needs.
No. 95542-5
Madsen, J., dissenting

V. Melton,63 Wn. App. 63, 70, 817 P.2d 413 (1991); State v. Sledge, 133 Wn.2d 828,
844, 947 P.2d 1199(1997)(trial court's determination is reviewed for manifest abuse of
discretion). Here, the juvenile court's imposition of a 42 to 52 week manifest injustice
disposition was not an abuse of discretion. See State v. Taylor, 42 Wn. App. 74, 76-77,
709 P.2d 1207(1985)(noting that property crimes can create a clear danger to society
and holding that a 65 week disposition is not clearly excessive). '"[A] sentence is
excessive only when it cannot be justified by any reasonable view which may be taken of
the record.'" State v. Tauala, 54 Wn. App. 81, 87, 771 P.2d 1188(1989)(alteration in

original)(quoting State v. Strong, 23 Wn. App. 789, 794-95, 599 P.2d 20(1979)); see
also State v. Salgado-Mendoza, 189 Wn.2d 420,427,403 P.3d 45(2017)(reviewing

court may not find abuse of discretion simply because it would have decided the case

differently; it must be convinced that no reasonable person would take the view adopted
by the trial court).

Further, I disagree that this case concerns a trial judge who imposed incarceration

for an improper reason. Notably, the findings and conclusions concerning the manifest
injustice disposition focus on the juvenile's extensive criminal history (listing 11

convictions, including 2 assaults); the numerous times B.O.J. has run away from

placement, resulting in warrants (listing 18 such occasions); the numerous probation

violations, resulting in violation of court order warrants (noting 19 such occasions); and

numerous instances of failure to appear for mandatory court hearings (noting 12 such

occasions)—all occurring within the preceding two years and all established through
No. 95542-5
Madsen, J., dissenting

court records. Sec CP at 40. The juvenile court also noted B.O.J. s substantial substance

abuse treatment needs, which, the court noted, both B.O.J. and her counsel had admitted

at many court hearings, including the sentencing hearing here. See id. at 41. Here, as
noted, B.O.J.'s disposition was adjudicated in juvenile court, a forum expressly charged
with "responding to the needs of youthful offenders." ROW 13.40.010(2). "In resolving
issues that turn upon the legislative purpose ofthe JJA, a court should seek to effectuate

'to the fullest possible extent both the purpose of rehabilitation and the purpose of
punishment.'" State v. J.N., 64 Wn. App. 112, 117, 823 P.2d 1128(1992)(quoting
V. Rice, 98 Wn.2d 384, 394, 655 P.2d 1145 (1982)). Noting "the juvenile system's focus

on the current needs ofthe juvenile offender, treatment, and rehabilitation," the J.N. court

explained that "[t]he concept of'treatment' under the JJA is not limited to any particular

form; the appropriate treatment must be determined by the specific needs ofthe offender

in each case." Id.(citing Rice, 98 Wn.2d at 393). And particularly applicable here, the

J.N. court noted that under the JJA, the "existence of recent criminal history is an

aggravating circumstance that may support a manifest injustice disposition." Id. In

affirming the juvenile's sentence, the J.N. court explained,"In imposing the manifest

injustice disposition, a primary concern ofthe disposition court here was to respond to

J.N.'s specific needs and to give the system a reasonable opportunity to address those

needs." Id. at 118. The same is true in B.O.J.'s case. As in J.N., the trial court here was

"responding to the specific needs of the offender for treatment." Id. As in J.N., there was
No. 95542-5
Madsen, J., dissenting

no abuse of discretion and B.O.J.'s manifest injustice disposition should likewise be

affirmed.

Finally, there is simply no basis to reverse here; nor does this record provide an

appropriate basis to elaborate on how the trial court should appropriately exercise its

discretion. In light ofthe many valid justifications for imposing a manifest injustice

disposition, as noted above, any second guessing by this court is objectively unwarranted

in the present case. The majority's disagreement with the trial court's exercise of

discretion is not a valid basis for reversal. Salgado-Mendoza, 189 Wn.2d at 427.

For the reasons discussed above, I dissent.
No. 95542-5
Madsen, J., dissenting

■Jr.--