State v. Osman
| Decision Date | 03 August 2006 |
| Docket Number | No. 76948-6.,76948-6. |
| Citation | 157 Wn.2d 474,139 P.3d 334 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Respondent, v. Semi OSMAN, Petitioner. |
Stephanie C. Cunningham, Seattle, for Petitioner/Appellant.
Kathleen Proctor, P. Grace Kingman, Pierce County Prosecutor's Office, Tacoma, for Appellee/Respondent.
¶ 1 Semi Osman seeks review of a published Court of Appeals decision upholding the trial court's imposition of a standard range sentence. Osman claims that the trial court violated the Sentencing Reform Act of 1981(SRA), chapter 9.94A RCW, the equal protection clause of the fourteenth amendment to the United States Constitution, and article I, section 12 of the Washington Constitution by denying his request for a sentence under the special sex offender sentencing alternative (SSOSA), former RCW 9.94A.120(8)(a) (2000), recodified as RCW 9.94A.670(4) by Laws of 2000, chapter 28, sections 5 and 20, based on his possible deportation. We affirm the Court of Appeals and hold that the trial court did not violate the SRA or Osman's equal protection rights.
¶ 2 In November 2003, Osman pleaded guilty to three counts of incest in the second degree under RCW 9A.64.020(2).1 Osman was eligible for2 and requested a SSOSA.3
¶ 3 The Pierce County Presentence Investigation/Intake Unit submitted a presentence investigation (PSI) report recommending a standard range sentence. The report stated that certain risk factors warranted consideration of an exceptional sentence above the standard range, including lack of consistent employment, financial instability, marital instability, residential instability, excess idle or discretionary time, presence of criminal acquaintances, and a history of substance abuse. The report recommended against a SSOSA if Osman could be deported before he could receive treatment. However, it stated that if the defense could demonstrate "the non-possibility of deportation" and if Osman was amenable to treatment,4 there were "no objections" to a SSOSA. Clerk's Papers (CP) at 31. The PSI further stated that Osman could receive treatment through the Twin Rivers Corrections Center's treatment facility while serving a standard range sentence. The record indicates that an amenability evaluation was completed, and Osman was found amenable to treatment.
¶ 4 At the sentencing hearing, the State asked the court to impose a sentence at the high end of the standard range on each count to run concurrently, followed by 36 to 48 months of community custody on release. The State argued that if the court imposed a SSOSA, the United States Citizenship and Immigration Services (USCIS) would detain Osman after he completed his reduced sentence, but before treatment, and he would be subject to deportation proceedings. The State's primary concern was that if Osman was deported, he would not undergo treatment nor would he receive adequate punishment. The State also argued that it had reduced the charges against Osman for the express purpose of avoiding a SSOSA.
¶ 5 Osman acknowledged that he was deportable but claimed it was unlikely that he would actually be deported.5 Osman argued that he would be able to receive treatment when the USCIS released him from detention. Osman further argued that the only way he could receive treatment was if the court imposed a SSOSA because, as a deportable alien, he did not qualify for treatment while in prison, a claim directly contradicted by the PSI.
¶ 6 The trial court acknowledged that a SSOSA is generally appropriate if an offender is amenable to treatment. It expressed concern, however, about the possibility that Osman would receive neither treatment nor punishment if he were deported. After hearing the parties' arguments, the court denied Osman's request for a SSOSA and imposed a sentence at the low end of the standard range of 51 months for each count, to run concurrently, followed by 36 to 48 months of community custody on release.
¶ 7 Osman appealed his sentence to the Court of Appeals, arguing that the trial court violated the SRA and his equal protection rights by considering his status as a noncitizen in deciding whether to impose a SSOSA. The Court of Appeals affirmed, concluding that there was no SRA violation because the trial court considered Osman's possible deportation only in relation to whether it would "render a SSOSA sentence unworkable." State v. Osman, 126 Wash.App. 575, 581, 108 P.3d 1287 (2005). The court also concluded that there was no equal protection violation because the trial court based its decision only on whether "the purposes of SSOSA would have been achieved" in Osman's case and not on Osman's "noncitizen or possible deportation status." Id. at 583, 108 P.3d 1287. It found that the trial court considered Osman's alienage only with respect to his "ability to remain in the country to complete the treatment portion of SSOSA." Id. Osman petitioned this court for review, which we granted. State v. Osman, 155 Wash.2d 1021, 126 P.3d 1279 (2005).
A. Is the SRA violated if the trial court, when determining whether to grant a defendant's request for a SSOSA, considers the defendant's possible deportation?
B. Are a defendant's equal protection rights violated if the trial court, when determining whether to grant a defendant's request for a SSOSA, considers the defendant's possible deportation?
A. The SRA
¶ 8 Osman contends that the trial court did not follow the procedures or terms of the SRA in imposing a standard range sentence rather than a SSOSA by improperly basing its denial of a SSOSA on Osman's alienage status. The State argues that a defendant can only appeal a standard range sentence under the SRA if the trial court has failed to follow procedural requirements of the SRA. It contends that because the trial court has discretion to consider subjective factors such as the risk posed to the community, the court properly considered the possibility that Osman might not receive adequate treatment or punishment if he was deported.
¶ 9 Trial courts must generally impose sentences within the standard range. State v. Law, 154 Wash.2d 85, 94, 110 P.3d 717 (2005). If an offender is eligible for and requests a SSOSA, however, the court must determine whether an alternative sentence is appropriate. Former RCW 9.94A.120(8)(a).6 In determining whether a SSOSA is appropriate, the court has discretion to order an examination of the offender to determine if he or she is amenable to treatment. Id. If the court orders an examination, the report of the examination must consider problems related to the offender, the offender's social and employment situation, the offender's amenability to treatment, and the effect that the offender's early release could have on the community. Id. The SRA requires courts to apply sentencing guidelines equally to all offenders without "discrimination as to any element that does not relate to the crime or the previous record of the defendant." RCW 9.94A.340.
¶ 10 Generally, a defendant cannot appeal a sentence within the standard range; however, the prohibition is not absolute. RCW 9.94A.585(1); State v. Garcia-Martinez, 88 Wash.App. 322, 329, 944 P.2d 1104 (1997). A defendant may appeal a standard range sentence if the sentencing court failed to comply with procedural requirements of the SRA or constitutional requirements.7 State v. Mail, 121 Wash.2d 707, 711-13, 854 P.2d 1042 (1993); State v. Onefrey, 119 Wash.2d 572, 574, 835 P.2d 213 (1992); State v. Herzog, 112 Wash.2d 419, 423, 771 P.2d 739 (1989); State v. McNeair, 88 Wash.App. 331, 336, 944 P.2d 1099 (1997).
¶ 11 The decision to impose a SSOSA is entirely within the trial court's discretion. Onefrey, 119 Wash.2d at 575, 835 P.2d 213. A court abuses its discretion if it categorically refuses to impose a particular sentence or if it denies a sentencing request on an impermissible basis. State v. Khanteechit, 101 Wash.App. 137, 139, 5 P.3d 727 (2000). Neither Washington case law nor RCW 9.94A.340 specifies alienage or deportability as an impermissible basis for denial of a SSOSA.8 The court may consider such subjective factors as problems related to a particular offender, the offender's social situation, and the impact on the community when imposing a sentence under the SRA. Former RCW 9.94A.120(8)(a).
¶ 12 Here, the court considered the possible consequences of no treatment or inadequate punishment if Osman could be deported when released into the community after completing the incarceration portion of his SSOSA. The record supports the conclusion that the trial court based its denial of a SSOSA on the possibility that Osman might evade treatment and/or adequate punishment for his offenses, not merely his status as an alien. We hold the trial court did not violate the SRA when, in determining whether to give Osman a SSOSA or a standard range sentence, it considered the effect that Osman's possible deportation had on his treatment and/or punishment.
¶ 13 We conclude that the trial court did not fail to follow procedural requirements of the SRA. The trial court did not abuse its discretion by considering the impact that possible deportation would have on Osman's treatment and punishment. There was no violation of the SRA.
B. Equal protection
¶ 14 Osman argues that the trial court violated his equal protection rights under the Fourteenth Amendment9 and article I, section 12 of the Washington Constitution10 by denying his request for a SSOSA based on his status as an alien.11 Osman does not allege that the trial court's denial of a lower sentence violated a fundamental right, nor does he raise a facial challenge to the SRA. Osman argues only that the trial court unconstitutionally applied the SRA to him. Osman also argues that because he is a member of a suspect class, the court must apply strict...
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