State v. B.O.J.

194 Wash.2d 314

449 P.3d 1006

STATE of Washington, Respondent,

v.B.O.J., Petitioner.

No. 95542-5

Supreme Court of Washington.

Filed OCTOBER 03, 2019

Travis Stearns, Gregory Charles Link, Thomas Michael Kummerow, Washington Appellate Project, 1511 3rd Avenue, Suite 610, Seattle, WA 98101-3647, for Petitioner.

James Morrissey Whisman, King County Prosecutor's Office, 516 3rd Avenue, W554 King County Courthouse, Seattle, WA 98104-2385, Samuel Bay Dinning, Attorney at Law, 14 Phillips Street, Natick, MA 01760-5620, for Respondent.

Nancy Lynn Talner, Attorney at Law, 901 5th Avenue, Suite 630, Seattle, WA 98164-2086, Vanessa Torres Hernandez, Northwest Justice Project, 401 2nd Avenue S, Suite 407, Seattle, WA 98104-3811, Amy Irene Muth, Law Office of Amy Muth, PLLC, 1000 Second Avenue, Suite 3140, Seattle, WA 98104, Marsha L. Levick, Jessica Feierman, Katherine E. Burdick, Juvenile Law Center, 1315 Walnut Street, 4th Floor, Philadelphia, PA 19107, for Amicus Curiae (American Civil Liberties Union of Washington, Columbia Legal Services, Juvenile Law Center, Legal Voice).

Sara Anne Zier, TeamChild, 715 Tacoma Avenue S, Tacoma, WA 98402-2206, Hickory Maimonides Gateless, The Mockingbird Society, 2100 24th Avenue S, Seattle, WA 98144, for Amicus Curiae (TeamChild, The Mockingbird Society).

FAIRHURST, C.J.

¶1 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.

¶2 Because the case is moot, we decline to reach B.O.J.’s claim that the State breached its plea agreement.

I. FACTS AND PROCEDURAL HISTORY

¶3 B.O.J. had a difficult childhood and adolescence, having been born 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).¹ Her grandmother died in 2016.

¶4 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.

¶5 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 hours of community restitution, or (4) a fine of $0-$1,000. 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.

¶6 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.

¶7 B.O.J.’s juvenile 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 of individual 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.

¶8 B.O.J.’s counsel recommended 60 days of confinement with a pass for inpatient treatment and 4 months of community supervision.

¶9 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 "[e]ither 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).

¶10 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 of the services that she needs in order to have success." VRP at 30. The court further elaborated that

if I’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 of 42 to 52 weeks of JRA confinement.

¶11 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.

II. 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

¶12 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 Wash.2d 731, 733, 658 P.2d 658 (1983). But she argues that she raises issues of substantial public interest that warrant our review.

¶13 "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 Wash.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 of an 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 Wash.2d 21, 24-25, 793 P.2d 962, 804 P.2d 1 (1990) (quoting Dunner v. McLaughlin , 100 Wash.2d 832, 838, 676 P.2d 444 (1984) ); see also Nat’l Elec. Contractors Ass’n v. Seattle Sch. Dist. No. 1 , 66 Wash.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 Wash.2d 277, 286, 885 P.2d 827, 892 P.2d 1067 (1994) (quoting Hart v. Dep’t of Soc. & Health Servs., 111 Wash.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 Wash.2d 707, 712, 911 P.2d 389 (1996).

¶14 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 of continuing and substantial public interest." Dunner, 100 Wash.2d at 838, 676 P.2d 444....