No. 48781-7-I.The Court of Appeals of Washington, Division One.
Filed: March 31, 2003. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of King County, Docket No: 01-1-01229-7 Judgment or order under review, Date filed: 06/07/2001.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 810 Third Avenue, 320 Central Building, Seattle, WA 98104.
David Bruce Koch, Nielsen Broman Koch PLLC, 810 3rd Ave Ste 320, Seattle, WA 98104-1622.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Carol Jean Murray, King Co Prosecutor’s Ofc, 516 3rd Ave Ste W554, Seattle, WA 98104-2390.
PER CURIAM.
A trial court does not abuse its discretion in ordering a mental health evaluation for an offender as a condition of community custody where the facts in the presentence report illustrate the offender is mentally ill and the mental condition likely influenced the offense. Thus, where a presentence report finds that the defendant suffers from at least two mental illnesses which affected his cognitive or volitional functions and that these conditions influenced his offense and rate of recidivism, a court does not err in relying upon the report and ordering such an evaluation. Affirmed.
FACTS
Billy Burgans was charged with and pleaded guilty to one count of delivering ecstacy in violation of RCW 69.50.401(a)(1)(i). After noting defense counsel’s concerns about Burgans’ learning deficit, the trial court ordered the Department of Corrections to interview Burgans and provide a full presentence report. At Burgans’ sentencing hearing, the court reviewed two presentence reports: the Department of Corrections’ presentence investigation report and Burgans’ presentence report. The court also considered oral statements from Burgans’ mother.
The Department of Corrections’ presentence investigation report noted that Burgans suffered from attention deficit hyperactivity disorder (ADHD) and “static encephalopathy,” a neurological impairment characterized by a short attention span and impulsive behavior. This condition appears to have a global affect on his behavior and general functioning, including severe Attention Deficit Hyperactivity Disorder (ADHD), impairment in sequential orientation, delays in auditory processing, difficulty in language comprehension and expression, among others. I, additionally, administered to Mr. Burgans the Department of Corrections Quick Mental Health Status Examination (QMHSE) and its results tended to confirm that he suffers from significant mental health issues.
Burgans was determined to present a moderate risk (48.1 percent) for recidivism and included his possible mental health problems as a risk factor. The presentence investigation report concluded that Burgans’ mental health problems contributed to his offense behavior, and recommended that Burgans be “ordered to obtain a written substance abuse and mental health evaluation from a qualified provider and complete all treatment recommendations.”
Burgans’ presentence report stated that he qualified as learning disabled as early as the second grade and was diagnosed with static encephalopathy in 1993. The presentence report asserted that Burgans’ ADHD was secondary to his mental condition, but that neither of the deficits would interfere with Burgans’ successful participation in a drug offender sentencing alternatives (DOSA) program. Burgans’ mother expressed her opinion that a mental health evaluation was necessary because of his impulsive behavior, his tendency to act out, and her hope that he would get treatment for his neurological problems.
The trial court imposed 12 months of confinement and 12 months of community custody pursuant to DOSA. The trial court also stated that it was “strongly inclined to impose all of the conditions” recommended by the Department of Corrections, noting that a mental health evaluation might be able to provide new recommendations for Burgans. The court imposed the condition that Burgans obtain a substance abuse evaluation and the additional condition that he “[o]btain a written mental health evaluation from a qualified provider and complete all treatment recommendations, as approved and directed by the Community Corrections Officer.” Burgans timely appealed the mental health evaluation condition of his community custody.
DISCUSSION
Burgans asserts that the trial court improperly imposed the additional condition that he submit to a mental health evaluation. Burgans cites various provisions of the Sentencing Reform Act of 1981 (SRA) and contends that in addition to the DOSA conditions, the only conditions that the trial court could have imposed in his case were “crime-related treatment or counseling services.”[1] He argues that his mental health is not directly linked to the delivery of a controlled substance offense, the risk of reoffending, or community safety, and thus the court could not order the evaluation. This court reviews crime-related prohibitions of court orders for an abuse of discretion.[2] Burgans selectively chooses from various provisions of the SRA, thus omitting an additional provision that specifically allows for a mental health evaluation condition. At the time of Burgans’ sentencing hearing, in addition to the conditions referenced by Burgans, a court could order an offender whose sentence included community placement or supervision to undergo a mental status evaluation and to participate in available outpatient mental health treatment, if the court finds that reasonable grounds exist to believe that the offender is a mentally ill person as defined in RCW 71.24.025 [of Washington’s Community Mental Health Services Act], and that this condition is likely to have influenced the offense. An order requiring mental status evaluation or treatment must be based on a presentence report. . . .[3]
Here, although the sentencing court did not enter written findings regarding Burgans’ mental health, it complied with the provisions of the SRA in imposing a mental health evaluation condition on Burgans’ community placement and did not abuse its discretion.
At the plea hearing, after recognizing the concerns of Burgans’ attorney that Burgans was learning disabled, the court ordered the Department of Corrections to interview Burgans and submit a presentence report. Burgans did not object to any facts set forth in the presentence investigation report, so they will be accepted as verities on appeal.[4]
Both the Department of Corrections’ presentence investigation report and Burgans’ own presentence report noted that Burgans had a childhood history of ADHD and an adult medical history of static encephalopathy, a neurological impairment. The presentence investigation report stated that these conditions affected Burgans’ ability to communicate, process information, language comprehension, and had a “global effect” on Burgans’ behavior and general functioning.
A person qualifies as mentally ill under Washington’s Community Mental Health Services Act,[5] and under the SRA, when he or she is a “seriously disturbed person;” an individual who has a mental disorder which causes “major impairment in several areas of daily living.”[6]
The act further defines mental disorder as “any organic, mental, or emotional impairment which has substantial adverse effects on an individual’s cognitive or volitional functions.”[7] Clearly, Burgans’ conditions are organic impairments which have substantial adverse effects on his cognitive or volitional functions. Further, the record illustrates that his conditions cause major impairment in his daily living, including communication with others, as well as behavior and general functioning. Thus, the preponderance of the evidence presented at the sentencing hearing illustrated that Burgans’ conditions are mental disorders under the SRA.[8] In addition to affecting Burgans’ general functioning and mental well being, the presentence investigation report indicated that Burgans’ mental disorders influenced both his offense behavior and his risk for recidivism.
The presentence investigation report recommended a mental health evaluation based on these combined factors. The court indicated in its oral ruling that it was strongly inclined to follow the Department of Corrections’ recommendations and impose a mental health evaluation. After listening to the objections of defense counsel to the mental health evaluation, the court opined that the evaluation might be able to provide Burgans new recommendations to help him deal with his mental health issues, and ordered the evaluation.
Because the evidence illustrates that Burgans suffers from a mental illness as defined by RCW 71.24.025, the mental illness influenced the offense, and because the court based its order on the presentence report as required by the SRA, Burgans has not shown that the trial court abused its discretion in ordering him to submit to a mental health evaluation.
The decision of the trial court is affirmed.
SCHINDLER and COX, JJ., concur.
RCW or chapter 69.52 RCW are set forth in former RCW 9.94A.120(9)(b)-(c)).