State v. Osborn, 43887

• Decision Date: 27 May 1976
• Docket Number: No. 43887,43887
• Parties: STATE of Washington, Respondent, v. Richard L. OSBORN, Petitioner.
• Court: Washington Supreme Court

Page 161

87 Wn.2d 161

550 P.2d 513

STATE of Washington, Respondent, v. Richard L. OSBORN, Petitioner.

No. 43887.

Supreme Court of Washington, En Banc.

May 27, 1976.

Owens, Weaver, Davies & Dominick, Gayer G. Dominick, Olympia, for petitioner.

Patrick D. Sutherland, Pros. Atty., George O. Darkenwald, Deputy Pros. Atty., Richard A. Strophy, Chief Crim. Deputy Pros. Atty., Olympia, for respondent.

HOROWITZ, Associate Justice.

Petitioner Richard L. Osborn seeks review by way of certiorari of an order denying his motion (a) to compel the office of the Thurston County Prosecuting Attorney to file a petition alleging that defendant is a sexual psychopath, or (b) in the alternative, that the court make a determination that defendant is possibly a sexual psychopath and have him committed to Western State Hospital for the 90-day observation period. We deny the writ.

June 4, 1975, petitioner was charged with two counts of indecent liberties and one count of sodomy. He pleaded not guilty due to insanity. Upon petitioner's own motion and pursuant to RCW 10.77.060 (examination upon plea of not guilty due to insanity or court's doubt as to defendant's competency), he was admitted on June 10, 1975, to Western State Hospital for a 15-day observation period to determine his mental condition. June 16, 1975, the hospital reported to the court that petitioner was competent to stand trial, was not insane at the time of the alleged crime, and further stated in its report, the hospital

would strongly recommend that (petitioner) be committed to Western State Hospital for 90 days observation in the Sexual Psychopath Treatment Program. In our opinion this would be in the best interest of both Mr. Osborn and society.

On July 2, 1975, petitioner changed his plea to guilty on the charges of indecent liberties. The charge of sodomy was dismissed upon the prosecutor's motion. At this change of plea hearing, testimony was received supporting the recommendation of Western State Hospital.

On July 9, 1975, a deputy prosecutor informed the court the prosecutor did not intend to file a petition to initiate the sexual psychopath proceedings of RCW 71.06. Petitioner then made the motions in question concerning utilization of the sexual psychopath program. The court took the motions under advisement.

On September 19, 1975, the court, in conformity with his memorandum opinion, entered an order denying petitioner's motions. Petitioner then sought review by way of certiorari of the court's order. The trial court has not yet passed sentence.

The issue presented is better understood if we first review the court's powers and responsibilities in dealing with treatment needs of a sexual psychopath about to be sentenced.

A sexual phychopath is defined in RCW 71.06.010 as follows:

'Sexual psychopath' means any person who is affected in a form of psychoneurosis or in a form of psychopathic personality, which form predisposes such person to the commission of sexual offenses in a degree constituting him a menace to the health or safety of others.

Various sentencing procedures are available to a trial court after defendant is convicted of a sexual crime, when no petition alleging sexual psychopathy has been filed by the prosecutor and the court has reason to believe the defendant may be a sexual psychopath.

Preliminarily, in order to make an informed sentencing decision, the court may wish to ascertain the defendant's mental condition by obtaining a presentence report containing this information, or by making its own investigation, or both.

CrR 7.2 authorizes the court to obtain information concerning the defendant's mental condition from the presentencing report ordered from the Division of Institutions of the Department of Social and Health Services. A complete report may properly contain 'the offender's medical history and, if desirable, a psychological or psychiatric report . . .' ABA Standards, Probation § 2.3(ii)(F) (1974); See Leach v. United States, 115 U.S.App.D.C. 351, 320 F.2d 670 (1963); Leach v. United States, 118 U.S.App.D.C. 197, 334 F.2d 945 (1964); Fitzgerald, The Presentence Investigation, in Probation and Parole, 28, 50 (B. Kay & C. Vedder, eds. 1963).

The court may also make a presentence investigation of its own. State v. Dainard, 85 Wash.2d 624, 626, 537 P.2d 760 (1975). The scope of such an investigation is in the sound discretion of the trial judge. United States v. Tucker, 404 U.S. 443, 446--47, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); State v. Dainard, supra, 85 Wash.2d at 626, 537 P.2d 760; See State ex rel. Burgunder v. Superior Court, 180 Wash. 311, 314, 39 P.2d 983 (1935). There is no reason why the investigation may not deal with the defendant's mental condition if deemed appropriate. The court may utilize RCW 10.77.060 if the information already received is insufficient. That statute may be used by the court in the presentence investigation '(w)henever . . . there is reason to doubt his (defendant's) competency . . .' If, therefore, an observation period longer than 15 days is required to obtain information as to the most suitable sentence for the defendant, and defendant is agreeable to an extension, ¹ and the expertise and facilities are available at a state hospital, ² the court may request a period longer than the initial 15 days. The period may extend to 90 days from the date of submission for sentencing. ³

If the court then decides, from the presentence report or its own investigation or both, that the appropriate sentence must include treatment for sexual psychosis, the court has a choice of means to accomplish this.

(1) Probation with condition of receiving treatment. Upon granting probation, the court may suspend the imposition of the sentence (deferred sentence) or suspend the execution of the sentence, RCW 9.95.210; See State v. Proctor, 68 Wash.2d 817, 818 n.2, 415 P.2d 634 (1966). In addition, the court may 'direct that such suspension may continue . . . upon such terms and conditions as it shall determine.' RCW 9.95.210. This general language is followed in the statute by a specific provision relating to monetary payments the court may require the defendant to make. The intent of this specific provision is to restrict the preceding general language insofar as it encompasses the subject of monetary payments, rather than to define the scope of the general language. See Karrell v. United States, 181 F.2d 981, 986--87 (9th Cir. 1950); Cf. State v. Summers, 60 Wash.2d 702, 706--07, 375 P.2d 143 (1962).

Thus the trial court could condition the probation upon defendant's application and admission to the sexual psychopath program at Western State Hospital. RCW 71.05.050 permits any person to apply voluntarily to any public agency for treatment of a mental disorder. The regulations require the mental disorder to be one 'which presents likelihood of serious harm to others or self or which causes a person to be gravely disabled.' WAC 275--55--030. This regulation appears to encompass sexual psychotherapy defined in RCW 71.06.010. RCW 71.05.050 contains provision for unilateral release of the applicant at his own request before the treatment program is completed. These provisions are inapplicable when the treatment program is part of the probation program. Accordingly, the probation conditions must include requirements that (1) the defendant not exercise his right under the statute to immediate release from this program (RCW 71.05.050) without the court's permission, (2) he make satisfactory progress in his treatment as determined by the hospital and directors of the treatment program, and (3) he display good behavior for the remainder of his probation.

Requiring the defendant to apply and be admitted for psychiatric treatment is a common condition on probation, and is generally considered reasonable when the question has come up for judicial review. See United States v. Mercado, 469 F.2d 1148 (2d Cir. 1972); State v. Rahe, 22 Ariz.App. 14, 522 P.2d 775 (1974); People v. McDonald, 52 Ill.App.2d 298, 202 N.E.2d 100 (1964); State v. Muggins, 192 Neb. 415, 222 N.W.2d 289 (1974); ABA Standards, Probation § 3.2(c) (v) (1970) ('Conditions may appropriately deal with . . . undergoing available medical or psychiatric treatment.') Under the federal probation statute, 18 U.S.C. § 3651 (1970), similar to Washington's in giving the court broad authority to grant probation 'upon such terms and conditions as the court deems best,' and in specifying conditions which relate to monetary payments, a condition that the defendant obtain psychiatric care is common. Herlands, When and How Should a Sentencing Judge Use Probation 35 F.R.D. 487, 499 (1964).

(2) Suspended sentence with condition of receiving treatment.

Under RCW 9.92.060 the court may stay and suspend the sentence 'upon such terms as the court may determine.' These terms may include the conditions dealing with monetary payments specified in the statute. As in the case of the probation statute, these specific conditions do not limit the scope of the preceding grant of power to the court to specify the terms of the suspension.

However, it is unnecessary to analyze the precise reach of the court's power in this regard. As we next point out, the nature of Washington's suspended sentence law is such that more likely than not it is an inappropriate disposition for the sexual psychopath. The suspended sentence is not available if the defendant has been convicted of certain crimes, such as rape or carnal knowledge of a female child under the age of 10 years. RCW 9.92.060. Moreover, suspension of sentence without probation is usually used when the offense is petty and referral to a probation officer may be excessive or unnecessary (S. Rubin, in, Law of Criminal Correction 197 (2d ed. 1973)); when stability in the surroundings and personality makeup of the defendant and the deterrent effect of the experience from apprehension to conviction make a suspended sentence the...