No. 25777-7-II.The Court of Appeals of Washington, Division Two.
Filed: June 29, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Cowlitz County, No. 99-1-00585-3, Hon. Stephen M. Warning, March 28, 2000, Judgment or order under review.
Counsel for Appellant(s), A. O. Denny, Cowlitz Co Dep Pros Atty, P.O. Box 882, Coupeville, WA 98239.
Counsel for Respondent(s), Eleanor M. Couto, Attorney At Law, 1402 Broadway, Suite 102, Longview, WA 98632.
John A. Hays, Attorney At Law, 1402 Broadway, Suite 103, Longview, WA 98632.
CARROLL C. BRIDGEWATER, J.
The State appeals Theodore Allen Jacobsen’s sentence, asserting that the trial court did not have the authority to order a suspended sentence under the Special Sexual Offender Sentencing Alternative without an evaluation or ordered treatment. We reverse. On January 20, 2000, Jacobsen pleaded guilty to one count of third degree child rape. Jacobsen’s offender score was zero and his standard range was 12+ to 14 months confinement. Without an evaluation showing that Jacobsen was amenable to treatment and without ordering sex offender treatment, the court imposed a sentence of one year plus one day and suspended the sentence under the Special Sex Offender Sentencing Alternative (SSOSA). RCW 9.94A.120. The State argued that the statute did not permit the trial court to suspend a sentence under SSOSA without an evaluation showing that the defendant is amenable to treatment.
The decision to impose SSOSA is within the trial court’s discretion. State v. Onefrey, 119 Wn.2d 572, 575, 835 P.2d 213 (1992); State v. Hays, 55 Wn. App. 13, 16, 776 P.2d 718 (1989). Sentences within the standard range generally may not be appealed. RCW 9.94A.210(1). The State may, however, challenge the trial court’s failure to follow the specific procedure required by the Sentencing Reform Act of 1981, Chapter 9.94A RCW (SRA). State v. Mail, 121 Wn.2d 707, 710-12, 854 P.2d 1042 (1993). The State contends that the trial court erred when it interpreted SSOSA to be available without an evaluation and without treatment. Thus, the central issue involves a matter of statutory construction, not a claim that the trial court abused its discretion. Onefrey, 119 Wn.2d at 574 n. 1. Thus, although Jacobsen’s sentence under SSOSA is within the standard range, the State may appeal it. Onefrey, 119 Wn.2d at 574 n. 1.
The statute, in effect at the time of the offense, provided:
(8)(a)(i) When an offender is convicted of a sex offense other than a violation of RCW 9A.44.050 or a sex offense that is also a serious violent offense and has no prior convictions for a sex offense or any other felony sex offenses in this or any other state, the sentencing court, on its own motion or the motion of the state or the defendant, may order an examination to determine whether the defendant is amenable to treatment.
. . . .
(ii) After receipt of the reports, the court shall consider whether the offender and the community will benefit from use of this special sex offender sentencing alternative and consider the victim’s opinion whether the offender should receive a treatment disposition under this subsection. If the court determines that this special sex offender sentencing alternative is appropriate, the court shall then impose a sentence within the sentence range. If this sentence is less than eleven years of confinement, the court may suspend the execution of the sentence and impose the following conditions of suspension:
(A) The court shall place the defendant on community custody for the length of the suspended sentence or three years, whichever is greater, and require the offender to comply with any conditions imposed by the department of corrections under subsection (15) of this section;
(B) The court shall order treatment for any period up to three years in duration. The court in its discretion shall order outpatient sex offender treatment or inpatient sex offender treatment, if available. A community mental health center may not be used for such treatment unless it has an appropriate program designed for sex offender treatment. The offender shall not change sex offender treatment providers or treatment conditions without first notifying the prosecutor, the community corrections officer, and the court, and shall not change providers without court approval after a hearing if the prosecutor or community corrections officer object to the change. In addition, as conditions of the suspended sentence, the court may impose other sentence conditions including up to six months of confinement, not to exceed the sentence range of confinement for that offense, crime-related prohibitions, and requirements that the offender perform any one or more of the following:
(I) Devote time to a specific employment or occupation;
(II) Remain within prescribed geographical boundaries and notify the court or the community corrections officer prior to any change in the offender’s address or employment;
(III) Report as directed to the court and a community corrections officer;
(IV) Pay all court-ordered legal financial obligations as provided in RCW 9.94A.030, perform community service work, or any combination thereof; or
(V) Make recoupment to the victim for the cost of any counseling required as a result of the offender’s crime; and
(C) Sex offenders sentenced under this special sex offender sentencing alternative are not eligible to accrue any earned release time while serving a suspended sentence.
Former RCW 9.94A.120(8) (1999 Supp.) (previously codified at RCW 9.94A.120(7)) (Emphasis added).
The trial court ruled that the SSOSA statute, former RCW 9.94A.120(8), allowed it to suspend a sentence under the SSOSA option without an evaluation or treatment. The State contends the statute is clear that an evaluation is a prerequisite to eligibility and that treatment is required.
When interpreting a statute, the primary objective is to carry out the legislature’s intent. State v. Young, 125 Wn.2d 688, 694, 888 P.2d 142
(1995). To determine that intent we must look first to the language of the statute itself. Young, 125 Wn.2d at 694.
SSOSA EVALUATION
Former RCW 9.94A.120(8)(a)(i) provides that the sentencing court, on its own motion or on the motion of the state or the defendant, may order an examination for a first time sex offender to determine whether the defendant is amenable to treatment. This initial decision whether to consider SSOSA and order an evaluation is discretionary. Once the trial court makes this initial decision, the statute requires that the court order an evaluation with reports by providing that `[a]fter receipt of the reports, the court shall consider whether the offender and the community will benefit from use of this special sex offender sentencing alternative and consider the victim’s opinion whether the offender should receive a treatment disposition under this subsection.’ Former RCW 9.94A.120(8)(a)(ii) (Emphasis added).
The policy behind SSOSA supports the position that evaluations are required. The legislature created SSOSA because it believed that for certain first-time sexual offenders, `requiring participation in rehabilitation programs is likely to prove effective in preventing future criminality.’ D. Boerner, Sentencing in Washington § 2.5(c) (1985).
The provision was intended to be used for those offenders who had committed less serious crimes and who were thought to be amenable to treatment. State v. Goss, 56 Wn. App. 541, 545, 784 P.2d 194 (1990). The option is limited to offenders who may be considered acceptable risks. Goss, 56 Wn. App. at 545. It is apparent that the legislature did not intend for offenders to receive the special sentencing alternative without an evaluation under SSOSA. The trial court acknowledged, as it must, that the statute required it to `consider whether the offender and the community will benefit from use of this special sex offender sentencing alternative and consider the victim’s opinion’ before imposing the SSOSA option. Former RCW 9.94A.120(8)(a)(ii). But the trial court ignored the first part of this sentence, which provides the trial court shall consider the benefits `[a]fter receipt of the reports[.]’ Without an evaluation on amenability to treatment, the court has no basis to make the necessary evaluation of whether the offender or community will benefit from the SSOSA option.
In spite of the statutory language, the trial court regarded an evaluation as discretionary. Jacobsen maintains that the trial court did not err and that the statute merely sets forth the requirements for evaluations if the court orders an evaluation. But a statute must be read as a whole, giving effect to all of the language used. Young, 125 Wn.2d at 696. Each provision must be viewed in relation to other provisions and harmonized if at all possible to insure proper construction of every provision. Young, 125 Wn.2d at 696. Thus, to give effect to the statute’s plain language, to harmonize the provisions of the SSOSA statute, and to assure proper statutory construction, we hold that former RCW 9.94A.120(8)(a)(ii) cannot be construed, as Jacobsen suggests, to give the trial court authority to impose the SSOSA option without the necessary evaluation.
The Supreme Court’s opinion in Young undoubtedly supports this position. In Young, the Supreme Court considered whether a trial court has the authority to order the expenditure of public funds for a SSOSA evaluation. Young, 125 Wn.2d 688. The court stated that there must be an initial evaluation to determine whether the offender is amenable to treatment to establish eligibility for the alternative sentencing option. [A]n initial SSOSA evaluation is required to establish eligibility for the alternative sentencing option. Although the Legislature recognized research suggesting that early intervention may help a sex offender control his impulses, it was also aware that `curing’ a sex offender is highly unlikely. Wash. State Governor’s Task Force on Comm’ty Protec., Final Report IV-23 (Nov. 28, 1989).
On this basis, the Legislature limited the SSOSA option to those defendants found to be amenable to treatment through an initial evaluation.
. . . .
Before imposing the SSOSA option, the Legislature has also required that the sentencing judge determine `whether the offender and the community will benefit from use of this special sexual offender sentencing alternative. . . .’ RCW 9.94A.120(7)(a)(ii). The judge cannot make this decision without first knowing whether the offender is amenable to treatment. A statute must be read as a whole giving effect to all of the language used. Each provision must be viewed in relation to other provisions and harmonized if at all possible to insure proper construction of every provision. Young, 125 Wn.2d at 695-96 (citations omitted).
Jacobsen attempts to dismiss Young as a case limited to the issue of expenditure of public funds. But the court’s ruling that the initial evaluation was required for eligibility was essential to its analysis of the funding issue. Because the evaluation is required, the court reasoned that, once ordered, there must be some correlation between the judge’s ability to order the necessary evaluation and the order being executed. Young, 125 Wn.2d at 696. The court concluded that the legislature intended to confer upon trial courts not only the discretion to order the necessary evaluation but the discretion to order the expenditure of public funds when the initial evaluation is ordered for an indigent defendant. `To conclude otherwise would result in effectively removing the discretion from the sentencing judge to impose the SSOSA option on all qualifying first-time sex offenders and, thereby, defeat the purpose of the statute.’ Young, 125 Wn.2d at 695-96. Young unambiguously provides that an evaluation is necessary to SSOSA.
Therefore, the statute does not authorize the SSOSA option without an evaluation to determine amenability to treatment.
SEX OFFENDER TREATMENT
The State also submits that the trial court erred in imposing the SSOSA option without imposing treatment. The statute provides that `[t]he court shall order treatment for any period up to three years in duration.’ Former RCW 9.94A.120(8)(a)(ii)(B). `Shall’ is a mandatory term. The statute is clear that the trial court is required to order a period of treatment. The statute provides that the treatment can be for any period; thus, the statute mandates some `period’ of treatment, some duration of time. While the statute’s `for any period’ provision may grant the sentencing court the power to order minimal treatment, we hold that the statute does not permit courts to avoid all treatment. See State v. Hall, 35 Wn. App. 302, 666 P.2d 930 (1983). Thus, the trial court contravened the statute when it failed to impose some period of treatment.
Jacobsen cites Ziegler for the proposition that SSOSA is discretionary and treatment is not mandatory under the statute. In Ziegler, this court held that former RCW 9.94A.120(7)(a) (1989) did not require that the defendant be a sexual deviant. State v. Ziegler, 60 Wn. App. 529, 803 P.2d 1355 (1991). This court further briefly noted, `Indeed, treatment is not even mandatory under the statute. Treatment is merely listed as a condition of a suspended sentence which the sentencing court `may impose.” Ziegler, 60 Wn. App. at 533. Jacobsen fails to note that the legislature has substantially amended the version of the SSOSA statute that applied in Ziegler. Ziegler was sentenced under a former version of the SSOSA statute, which placed treatment with a list of conditions that the court had the discretion to impose. Ziegler, 60 Wn. App at 532; Former RCW 9.94A.120(7)(a) (1989). The 1989 version of the statute that applied in Ziegler provided in part:
If the court determines that both the offender and the community will benefit from use of this provision, the court shall then impose a sentence within the sentence range and, if this sentence is less than six years of confinement, the court may suspend the execution of the sentence and place the offender on community supervision for up to two years. As a condition of the suspended sentence, the court may impose other sentence conditions including up to six months of confinement, not to exceed the sentence range of confinement for that offense, crime-related prohibitions, and requirements that the offender perform any one or more of the following:
(i) Devote time to a specific employment or occupation;
(ii) Undergo available outpatient sex offender treatment for up to two years, or inpatient sex offender treatment not to exceed the standard range of confinement for that offense. A community mental health center may not be used for such treatment unless it has an appropriate program designed for sex offender treatment;
(iii) Remain within prescribed geographical boundaries and notify the court or the community corrections officer prior to any change in the offender’s address or employment;
(iv) Report as directed to the court and a community corrections officer[.]
Former RCW 9.94A.120(7)(a) (1989) (emphasis added).
In 1990, the legislature substantially amended this section. The amendments included adding new mandatory language to the condition of sex offender treatment, removing the treatment condition from the list of other discretionary conditions, and renumbering the subsections. Laws of 1990, ch. 3 § 705. The amended statute provided:
If [the standard range sentence is less than a certain number of years of confinement], the court may suspend the execution of the sentence and impose the following conditions of suspension:
(A) The court shall place the defendant on community supervision . . .; and
(B) The court shall order treatment for any period up to three years in duration. The court in its discretion shall order outpatient sex offender treatment or inpatient sex offender treatment, if available. . . .
In addition as conditions of the suspended sentence, the court may impose other sentence conditions . . . [listing several discretionary conditions].
Laws of 1990, ch. 3 § 705. The current statute contains this same language.
Accordingly, the comment in Ziegler that treatment is not mandatory under SSOSA does not apply because the legislature eliminated the statutory basis for that reasoning in the Laws of 1990, ch. 3 § 705.[1]
More importantly, the legislature’s addition of mandatory language and shift in placement of the treatment provision amplifies that, under the amended statute, treatment is a requirement with the SSOSA sentencing option.
We hold that the trial court erred because the SSOSA statute requires both an evaluation and treatment.
Reversed and remanded for resentencing.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
WE CONCUR: MORGAN, P.J., HOUGHTON, J.