State Of Washington v. Jason Spaulding

                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                       November 17, 2020



    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                                No. 53253-1-II

                                Respondent,

        v.                                                      PUBLISHED OPINION

 JASON PATRICK SPAULDING,

                                Appellant.



       MAXA, J. – Jason Spaulding appeals his conviction of indecent liberties with forcible

compulsion, claiming that the trial court erred in finding him ineligible for a Special Sex

Offender Sentencing Alternative (SSOSA). He also challenges the imposition of certain legal

financial obligations (LFOs).

       We conclude that the trial court erred in ruling that Spaulding was ineligible for a SSOSA

because he did not have an established relationship with the victim. However, that error is

harmless because we conclude that the trial court did not err in ruling that SSOSA was not

appropriate because Spaulding was not amenable to treatment and created a risk to the

community. Accordingly, we affirm the trial court’s denial of a SSOSA, but we remand for the

trial court to reevaluate the imposition of supervision fees as determined by the Department of

Corrections (DOC) and to strike the interest accrual provision regarding nonrestitution LFOs

from the judgment and sentence.
No. 53253-1-II


                                             FACTS

       Spaulding first contacted KM on August 1, 2018, by messaging her on Facebook. They

exchanged several messages through August 4. On August 8, they met in person for the first

time by happenstance at an apartment in Port Angeles. Spaulding then drove KM and three

others to Sequim for breakfast. On the way back to Port Angeles, they stopped at a store and

Spaulding bought KM some makeup, clothing, and other items. Spaulding was flirtatious and

was touching KM, including grabbing her rear end. KM tolerated Spaulding’s behavior because

“she believed they were developing a relationship and she was going to live with him.” Clerk’s

Papers (CP) at 309.

       The group drove to Spaulding’s residence outside of Port Angeles. Spaulding and KM

were preparing a room for her to stay in. Spaulding became more aggressive with KM, touching

her more and at one point throwing her down on the bed.

       Later that day, two of the people left and one went outside. Spaulding then pushed KM

into a chair, pulled her top up over her face, trapping her arms, and pulled her pants down. KM

told Spaulding no but he held her down, inserted his penis into her vagina, and inserted his

fingers into her rectum.

       When Spaulding left to take a shower, KM ran outside. She was topless, as her shirt had

come off during the rape. When Spaulding followed her outside, KM retrieved her shirt. Each

time she tried to leave, Spaulding physically prevented her from leaving. Eventually, KM and

the other person were able to run to a nearby house, where the owner came out with a gun and

called 911. Spaulding ran off.

       The State charged Spaulding with second degree rape by forcible compulsion. The State

offered to amend the information to the reduced charge of indecent liberties with forcible




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compulsion if Spaulding pled guilty to the reduced charge. The State also would recommend a

SSOSA if Spaulding was eligible. Spaulding agreed. Spaulding pleaded guilty to one count of

indecent liberties with forcible compulsion. The trial court accepted Spaulding’s guilty plea and

ordered a presentence investigation report (PSI) to determine if Spaulding was eligible for a

SSOSA.

       The community custody officer who prepared the PSI concluded that Spaulding was

ineligible for a SSOSA because he did not have an established relationship with the victim, a

requirement under RCW 9.94A.670(2)(e). Dr. Michael Comte performed a psychosexual

evaluation. In his report, he indicated that Spaulding was minimizing his responsibility, was not

acknowledging his actual behavior, and did not have insight into his mental health issues.

       The trial court denied the requested SSOSA and filed a memorandum opinion in support

of its decision. The court gave two reasons for denying the request. First, the court concluded

that Spaulding was not eligible for a SSOSA because he and KM did not have an “established

relationship” as required under RCW 9.94A.670(2)(e). The court acknowledged that Spaulding

and KM had some type of existing relationship, but that the relationship was not established

because they had known each other for only a short time. Second, the court concluded that

Spaulding was not amenable to treatment and presented a risk to the community, two of the

factors to be considered under RCW 9.94A.670(4).

       The trial court found that Spaulding did not have the ability to pay discretionary LFOs

and imposed only the mandatory $500 victim assessment fee and struck the discretionary fees.

Without comment, the court did not strike a provision in the judgment and sentence requiring

Spaulding to “pay supervision fees as determined by DOC.” CP at 97. And without comment,

the court did not strike an interest accrual provision stating: “The financial obligations imposed




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No. 53253-1-II


in this judgment shall bear interest from the date of the judgment until payment in full, at the rate

applicable to civil judgments.” CP at 101.

       Spaulding appeals the trial court’s failure to impose a SSOSA and the court’s imposition

of supervision fees and interest.

                                             ANALYSIS

A.     SSOSA ELIGIBILITY AND APPROPRIATENESS

       Spaulding argues that the trial court erred in finding him ineligible for a SSOSA because

he had an established relationship or connection with KM and in finding that he was not

amenable to treatment. We agree with the first contention but not with the second.

       1.    Legal Principles

       RCW 9.94A.670(2) provides the eligibility requirements for a SSOSA. An offender is

eligible for a SSOSA if, among other requirements not at issue here, “The offender had an

established relationship with, or connection to, the victim such that the sole connection with the

victim was not the commission of the crime.” RCW 9.94A.670(2)(e).

       If the defendant is eligible for a SSOSA, the court must consider a number of factors in

deciding whether to grant a SSOSA:

       After receipt of the reports, the court shall [1] consider whether the offender and
       the community will benefit from use of this alternative, [2] consider whether the
       alternative is too lenient in light of the extent and circumstances of the offense, [3]
       consider whether the offender has victims in addition to the victim of the offense,
       [4] consider whether the offender is amenable to treatment, [5] consider the risk the
       offender would present to the community, . . . . The fact that the offender admits to
       his or her offense does not, by itself, constitute amenability to treatment.

RCW 9.94A.670(4) (emphasis added).

       The statute requires the trial court to enter written findings stating its reasons only if the

court imposes a SSOSA contrary to the victim’s opinion. RCW 9.94A.670(4).




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No. 53253-1-II


       2.   Standard of Review

       The decision to grant a SSOSA is entirely at the trial court’s discretion, as long as the

court’s decision does not rest on an impermissible basis. State v. Sims, 171 Wn.2d 436, 445, 256

P.3d 285 (2011). A trial court abuses its discretion when its sentencing decision is manifestly

unreasonable or exercised on untenable grounds. State v. Autrey, 136 Wn. App. 460, 470, 150

P.3d 580 (2006).

       However, we review de novo whether a defendant is eligible for a SSOSA under RCW

9.94A.670(2)(a) because that question is a matter of statutory interpretation. State v. Pratt, 11

Wn. App. 2d 450, 457, 454 P.3d 815 (2019), review granted, 195 Wn.2d 1023 (2020).

       3.   Established Relationship or Connection

       The trial court concluded that Spaulding did not have an established relationship with

KM and made the following finding:

       The court finds that Mr. Spaulding and the victim in this matter did not have an
       established relationship as required under RCW 9.94A.670(2)(e). They became
       aware of one another a few days prior to the date of the crime, and in fact met in
       person for the first time on the date of the crime. On the day of the crime their
       relationship consisted, in large part, of him buying the victim gifts, promising her
       housing, and engaging in sexualized behavior leading up to the crime.

       Inherent in the concept of an “established relationship” is the passage of time. In
       other words, an “existing relationship” is different than an “established
       relationship.” There was some kind of existing relationship, but it was not an
       established relationship. For purposes of RCW 9.94A.670, the court finds that an
       established relationship is not created by a few phone calls and social media
       contacts over a few days, followed by in person contact for a few hours prior to the
       commission of the crime.

CP at 157-58.

       However, the trial court ignored the plain language of RCW 9.94A.670(2)(e). The statute

does not necessarily require an “established relationship.” RCW 9.94A.670(2)(e) states that to

be eligible for a SSOSA the defendant must have “an established relationship with, or



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No. 53253-1-II


connection to, the victim.” (Emphasis added.) So the defendant must have either an established

relationship or an established connection with the victim.1 Further, the relationship or

connection must be “such that the sole connection with the victim was not the commission of the

crime.” RCW 9.94A.670(2)(e).

       Here, there was evidence that Spaulding had an established connection to KM even if

they did not have an established relationship. Spaulding and KM chatted online for several days.

At some point they decided she would move into his house. They happened to meet, and drove

to Sequim. On the way back to Port Angeles, Spaulding stopped and bought KM various items.

When they went to Spaulding’s house, Spaulding and KM were preparing the room in which she

planned to live.

       We conclude that the trial court erred in failing to consider whether this interaction

between Spaulding and KM constituted an established connection under RCW 9.94A.670(2)(e).

In addition, the trial court erred in failing to consider whether Spaulding’s “sole connection with

[KM] was not the commission of the crime.” RCW 9.94A.670(2)(e).

       4.   Amenability to Treatment/Risk to the Community

       The trial court also found that a SSOSA was not appropriate for Spaulding because he

was not amenable to treatment, which created a risk to the community.

       A defendant is “amenable” to treatment if “given his background, history, social and

economic circumstances, and psychological condition . . . both he and the community [could]

benefit from community-based treatment under SSOSA.” State v. Oliva, 117 Wn. App. 773,




1
 In Pratt, this court concluded that although the statutory language is ambiguous, the word
“established” modifies both “relationship” and “connection.” Pratt, 11 Wn. App. 2d at 459.


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No. 53253-1-II


780, 73 P.3d 1016 (2003). We examine the record to see if it supports the sentencing court’s

decision that a defendant is not amenable to treatment. Id.

       Here, the trial court stated:

       [Spaulding] invalidated part of the testing by his inconsistent responses. The
       evaluator made note of other contradictions in responses Mr. Spaulding provided
       to inquiries. There were concerns about his accurately reporting of his past and he
       was confused about events and the sequence of events. Although he had admitted
       the elements of the crime as required by statute, he does not admit all aspects of the
       crime. Of significant concern to the court is the minimizing of the behavior.
       ...

       Taken as a whole, the court finds that Mr. Spaulding[’s] inability to accurately
       report and understand his actions create a risk to the community. . . . His lack of
       insight, lack of candor about the crime, and inability to accurately report and
       understand events all indicate that he is not amenable to treatment, and does present
       a risk to the community.

       Accordingly, the request for a SSOSA under RCW 9.94A.670 is denied.

CP at 158-59.

       Dr. Comte’s report provides substantial evidence to support the trial court’s finding that

Spaulding was minimizing his responsibility and not acknowledging his actual behavior. In the

report, Dr. Comte set out Spaulding’s version of the events, which was completely different than

KM’s description and was implausible. For example, Spaulding denied that sexual intercourse

occurred even though a forensic exam revealed semen inside KM’s vagina. Dr. Comte also

found that Spaulding’s testing for the personality scoring was invalid because of inconsistent

responses. Further, Dr. Comte observed, “He is acknowledging the alleged victim did ‘mumble

no’ during the alleged assault, but he said he did not take her refusal seriously and continued to

sexually interact with her.” CP at 137.

       Dr. Comte also noted, “Despite years of mental health counseling, he does not appear to

have a great deal of insight into his issues.” CP at 136. Dr. Comte stated:




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No. 53253-1-II


       I suspect he might not qualify for SSOSA, because he is not admitting [to] all
       aspects of the alleged assault. Specifically, he is denying penile penetration of the
       alleged victim. Because of Mr. Spaulding’s emotional stability, it is difficult to
       advocate for probation, but if he was receiving mental health counseling in Port
       Angeles and sex offender counseling elsewhere, there is always a chance he could
       stabilize and lean to live a productive and responsible life.

CP at 138.

       Spaulding’s lack of insight into his own sexual issues, his minimization of the events

with KM, and his implausible denial that he had sexual intercourse with KM support the trial

court’s decision. We conclude that the trial court did not abuse its discretion in finding

Spaulding unamenable to treatment and created a risk to the community.

       5.    Harmless Error

       The trial court based its denial of a SSOSA both on Spaulding’s ineligibility under RCW

9.94A.670(2)(e) and on the fact that he was not amenable for treatment and created a risk to the

community, two of the factors to be considered under RCW 9.94A.670(4). One of the reasons

on which the court relied, ineligibility for a SSOSA, was incorrect.

       However, even if Spaulding was eligible for a SSOSA, he had no right to a SSOSA.

Sims, 171 Wn.2d at 445. We are convinced after reviewing the trial court’s oral comments at

sentencing and the court’s memorandum opinion that the court would have declined to impose a

SSOSA even if Spaulding was eligible. Therefore, the trial court’s error regarding application of

RCW 9.94A.670(2)(e) was harmless.

B.     IMPOSITION OF LFOS

       1.    Supervision Fees

       Spaulding argues that the sentencing court erred in imposing supervision fees as

determined by DOC because he is indigent. The State disagrees, arguing that such fees are not

“costs” under RCW 10.01.160.



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       RCW 9.94A.703(2)(d) governs the community custody supervision assessment and

states, “Unless waived by the court, as part of any term of community custody, the court shall

order an offender to . . . [p]ay supervision fees as determined by the DOC.” Community custody

supervision fees are discretionary LFOs because they are waivable by the court. State v. Dillon,

12 Wn. App. 2d 133, 152, 456 P.3d 1199 (2020), review denied, 195 Wn.2d 1022 (2020).

       Spaulding relies on RCW 10.01.160(3), which states, “The court shall not order a

defendant to pay costs if the defendant at the time of sentencing is indigent as defined in RCW

10.101.010(3)(a) through (c).” However, the supervision fee is not a “cost” under RCW

10.01.160(3) just because it is a discretionary financial obligation. RCW 10.01.160(2) defines

“cost” as an expense specially incurred by the State to prosecute the defendant, to administer a

deferred prosecution program, or to administer pretrial supervision. The supervision fee is not a

“cost” under this definition. Therefore, RCW 10.01.160(3) does not prohibit the imposition of

supervision costs on an indigent defendant.

       However, we acknowledge that the imposition of LFOs on indigent defendants can create

a significant hardship. See State v. Blazina, 182 Wn.2d 827, 835-37, 344 P.3d 680 (2015). The

court in State v. Clark emphasized that there are strong policy arguments in favor of considering

an indigent defendant’s ability to pay discretionary LFOs even when such consideration is not

required. 191 Wn. App. 369, 376, 362 P.3d 309 (2015). And under RCW 9.94A.703(2)(d), the

trial court has discretion to waive the supervision fee.

       Here, it is unclear here whether the trial court actually intended to impose a supervision

fee as an LFO. Therefore, we encourage the trial court on remand to reevaluate the imposition of

the supervision fee.




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       2.   Interest Accrual Provision

       Spaulding claims, and the State concedes, that the sentencing court erred in imposing

interest on his nonrestitution LFOs because the legislature amended RCW 10.82.090 in 2018 to

eliminate interest accrual on nonrestitution portions of LFOs. We agree.

       The statutory language is unambiguous: “As of June 7, 2018, no interest shall accrue on

nonrestitution legal financial obligations.” RCW 10.82.090(1). Spaulding was convicted after

June 7, 2018. Therefore, we remand for the trial court to strike this provision from the judgment

and sentence.

                                         CONCLUSION

       We affirm the trial court’s denial of a SSOSA, but we remand for the trial court to

reevaluate imposition of the supervision fees and to strike the interest accrual provision

regarding nonrestitution LFOs from the judgment and sentence.



                                                     MAXA, J.



 We concur:



LEE, C.J.




SUTTON, J.




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