IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 73913-1-1
Respondent, DIVISION ONE
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BINH THAI TRAN, UNPUBLISHED
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Appellant. FILED: November 14. 2016
Cox, J. - Binh Thai Tran appeals his judgment and sentence, arguing that
the trial court abused its discretion in denying his request for a Special Sex
Offender Sentencing Alternative (SSOSA) sentence. Because the record
supports the trial court's decision that Tran was not amenable to treatment, we
hold that the trial court did not abuse its discretion in denying Tran's SSOSA
request. We affirm.
Tran pleaded guilty to one count of indecent liberties with the victim,
J.V.T., by forcible compulsion. At the sentencing hearing, both parties advised
the trial court that J.V.T. supported a SSOSA sentence. Norman Glassman, a
certified sex offender treatment provider, conducted a sexual deviancy evaluation
of Tran and recommended that the trial court grant Tran a SSOSA sentence.
However, the Department of Corrections recommended that the court deny the
request for a SSOSA sentence.
No. 73913-1-1/2
At the sentencing hearing, the trial court considered the documentary
evidence together with a letter written to the court by Tran. It denied Tran's
SSOSA request, determining that he was not amenable to treatment. The trial
court imposed an 82 month sentence, the "high end of the standard range." It
also entered its judgment in accordance with its oral decision.
Tran appeals.
PRESERVATION OF ERROR
The State argues that Tran failed to preserve the error he now claims on
appeal. We disagree.
Sentencing courts have considerable discretion under the Sentencing
Reform Act1 (SRA) to determine if an offender is eligible for an alternative
sentence and whether the alternative is appropriate.2
A standard range sentence is generally not appealable.3 But an offender
"may always challenge" the procedure the trial court used to impose a sentence.4
Appellate review remains available to correct legal errors or abuses of discretion
in sentence determinations.5
1 Chapter 9.94A RCW.
2 State v. Hender, 180 Wn. App. 895, 900-01, 324 P.3d 780 (2014).
3 RCW 9.94A.585(1); see also State v. Grayson, 154 Wn.2d 333, 338, 111
P.3d 1183(2005).
4 Grayson, 154 Wn.2d at 338.
5 State v. Kinneman. 155 Wn.2d 272, 283, 119 P.3d 350 (2005).
No. 73913-1-1/3
Here, the issue at Tran's sentencing hearing was whether the trial court
should grant Tran a SSOSA sentence under RCW 9.94A.670. Tran argues that
the trial court made a legal error by failing to comply with RCW 9.94A.670(4). He
claims the court failed to consider the victim's opinion and failed to make findings
regarding her opinion under this statute. Tran's argument is reviewable.
AMENABILITY TO TREATMENT
Tran argues that the trial court failed to comply with the SSOSA statute.
We disagree.
Under the SRA, a first-time sex offender may be eligible for a suspended
sentence under the SSOSA provisions. SSOSA was created on the belief that
required participation in rehabilitation programs "'is likely to prove effective in
preventing future criminality'" for certain first-time sexual offenders.6
We review for an abuse of discretion a trial court's refusal to order
treatment under SSOSA.7
RCW 9.94A.670(2) provides the six requirements for SSOSA eligibility.
These are not in dispute here.
What is at issue are the provisions of RCW 9.94A.670(4). Specifically, the
question is whether the trial court properly considered certain factors stated in
6 State v. Miller, 180 Wn. App. 413, 417, 325 P.3d 230 (2014) (internal
quotation marks omitted) (quoting State v. Goss, 56 Wn. App. 541, 544, 784 P.2d
194 (1990)), review denied. 181 Wn.2d 1022 (2014), cert, denied, 135 S. Ct.
1555, 191 L.Ed. 2d 646 (2015).
7 State v. Sims, 171 Wn.2d 436, 445, 256 P.3d 285 (2011).
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that section of the statute. The statute provides that after the court receives the
required reports following examination of the defendant:
[T]he court shall consider whether the offender and the community
will benefit from use of this alternative, consider whether the
alternative is too lenient in light of the extent and circumstances of
the offense,... consider whether the offender is amenable to
treatment, . . . and consider the victim's opinion whether the
offender should receive a treatment disposition under this
section. The court shall give great weight to the victim's opinion
whether the offender should receive a treatment disposition
under this section. If the sentence imposed is contrary to the
victim's opinion, the court shall enter written findings stating its
reasons for imposing the treatment disposition. The fact that
the offender admits to his or her offense does not, by itself,
constitute amenability to treatment.^
State v. Oliva9 is instructive. There, the State entered into a plea
agreement with Jose Oliva and agreed to recommend a SSOSA sentence if
Oliva was amenable to treatment.10 Oliva met the SSOSA eligibility requirements
under RCW 9.94A.670(2), and the trial court had to determine whether Oliva was
amenable to treatment.11 It concluded that Oliva was not so amenable.12
On appeal, Division Three of this court described some of the factors that
apply to determine whether one is amenable to treatment, stating: "That is, given
his background, history, social and economic circumstances, and psychological
8 RCW 9.94A.670(4) (emphasis added).
9 117 Wn. App. 773, 779, 73 P.3d 1016 (2003).
10 id, at 775.
11 id, at 779-80.
12 Id. at 778.
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condition, could both he and the community benefit from community-based
treatment under SSOSA."13
The question before Division Three of court was whether the record
supported the trial court's decision.14 The court affirmed the trial court's decision
to deny a SSOSA sentence, concluding that the record "amply supported] the
[trial] court's determination that SSOSA was inappropriate for Mr. Oliva,
regardless of what an evaluation might have found."15
Here, the trial court denied Tran's SSOSA request and stated its
reasoning at the sentencing hearing. The trial court did not mention J.V.T.'s
opinion on whether Tran should receive a treatment disposition.
The trial court stated:
I have done a number and granted a fair amount of SSOSAs in my
time when I am convinced that the defendant is amenable to
treatment, that they have approached the acts that gave rise to the
criminal charge with honesty, with humility, with acceptance,
realizing that they have a problem, not knowing fully the extent of it
but willing to deal with it in a forthright manner. In reading all of the
materials that I've read, Mr. Tran, you don't come in front of me as
that type of individual.'161
The court referred to the "personality" portion of Glassman's sexual
deviancy evaluation to support its determination. The court then stated that Tran
committed "a horrific crime" and that it did not see "any willingness on [Tran's]
13 id at 780.
14 id,
15 id,
16 See Report of Proceedings (July 30, 2015) at 12.
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behalf to accept responsibility for this."17 The court further stated: "The profile
that I'm being presented with is a gentleman of arrogant sense of self-worth, a
talent for feigning dignity and confidence, indifference to the welfare of others,
and a deceptive social manner.. . . You are a predator."18
The court also referred to Tran's "excuse" and stated that Tran continued
abusing J.V.T. because she did not tell him to stop.19 The court then concluded
by stating: "After due consideration, sir, I don't believe that you are amenable to
treatment."20
The trial court's determination was not an abuse of discretion. Although
Glassman recommended a SSOSA sentence, his sexual deviancy evaluation,
especially the portion describing Tran's personality, supports the trial court's
determination that Tran is not amenable to treatment.
Tran next argues that the trial court failed to comply with the SSOSA
statute because it did not enter findings regarding the victim's support for Tran's
SSOSA application. He specifically argues that the trial court must enter findings
when it decides not to impose "a treatment disposition." This conflicts with the
statute's plain language.
17 id, at 12-13.
18 id, at 13.
19 id,
20 Id.
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When interpreting statutes, we determine the legislative intent from the
statute's plain language and its context in the statutory scheme.21
RCW 9.94A.670(4) requires that the trial court consider, and "give great
weight to the victim's opinion whether the offender should receive a treatment
disposition." Ifthe trial court imposes a sentence contrary to the victim's opinion,
the trial court must "enter written findings stating its reasons for imposing the
treatment disposition."22
There simply was no imposition of any treatment disposition in this case.
Rather, the court determined Tran was not amenable to treatment. Thus, the
victim's opinion in support of treatment is irrelevant to the requirement for
entering written findings. Tran misread the statute's plain language in arguing
otherwise.
Tran argues that the trial court's failure to make findings regarding J.V.T.'s
opinion renders it impossible to determine whether the trial court followed the
statute's directive. He cites State v. Fellers23 to support this argument. His
reliance is misplaced.
For the reasons just discussed, there is no showing that the court failed to
follow the statute's directive. In any event, Fellers is distinguishable.
21 State v. Conover, 183 Wn.2d 706, 711, 355 P.3d 1093(2015).
22 (Emphasis added.)
23 37 Wn. App. 613, 683 P.2d 209 (1984).
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There, the statute at issue set forth required procedures for the trial court
to follow for a dispositional hearing.24 It required that the trial court state its
findings of fact and enter its decision on the record. The findings shall include
"the evidence relied upon by the court in reaching its decision."25 Another statute
provided the factors that the trial court must consider in the dispositional
hearing.26
On appeal, this court concluded that the trial court failed to follow the
statute's procedures.27 This court further stated that the record was "devoid of
findings or an oral decision from which we can determine whether the court
properly reviewed the matters before it. Since the court did not set forth what it
considered, it is impossible to ascertain whether it followed the [statute's]
directives."28
Here, conversely, RCW 9.94A.670(4) did not require that the trial court
make written findings about J.V.T's opinion. No treatment disposition was
imposed. Thus, Tran mistakenly relies on Fellers.
Lastly, Tran argues that the trial court failed to consider J.V.T.'s opinion
and failed to give it great weight. He bases this argument on the trial court's
24 id, at 616, 618.
25 id, at 616 (quoting RCW 13.40.130(4)).
26 id, at 618.
27 id,
28 Id. at 619.
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omission from its oral decision of a statement of J.V.T.'s opinion in its reasons for
denying Tran's SSOSA request.
For the reasons already discussed, consideration of J.V.T.'s opinion was
not relevant because there was no imposition of treatment. Thus, giving that
opinion great weight was not necessary under the plain words of the statute.
COSTS
Although neither Tran nor the State raises the issue of appellate costs in
their appellate briefs, we do so sua sponte.
Under our recent opinion in State v. Sinclair, the issue of appellate costs is
to be decided by the panel that renders the decision.29 We do so here.
Shortly after the trial court entered the judgment and sentence, Tran filed
a motion and declaration seeking review at public expense and appointment of
an attorney.30 The motion stated that the Snohomish County Officer of Public
Defense determined Tran to be indigent.31 The trial court granted the motion,
appointing an appellate attorney under RAP 15.2.32
29 See 192 Wn. App. 380, 385-86, 367 P.3d 612, review denied, 185
Wn.2d 1034(2016).
30 Motion and Declaration for Order Authorizing the Defendant to Seek
Review at Public Expense and Appointing an Attorney.
31 id, at 2.
32 Order Authorizing the Defendant to Seek Review at Public Expense and
Appointing an Attorney on Appeal.
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Under Sinclair, there is a presumption that indigency continues unless the
record shows otherwise.33 We have reviewed this record and see nothing to
overcome this presumption. Accordingly, an award to the State for appellate
costs is inappropriate under these circumstances.
We affirm the judgment and sentence, and deny costs to the State.
Cc%xl.
WE CONCUR:
^
33 Sinclair, 192 Wn. App. at 393.
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