State v. Whittington

• Decision Date: 13 October 1980
• Docket Number: No. 7879-8-I,7879-8-I
• Citation: 618 P.2d 121,27 Wn.App. 422
• Parties: STATE of Washington, Respondent, v. Paul WHITTINGTON, Appellant.
• Court: Washington Court of Appeals

Page 422

27 Wn.App. 422

618 P.2d 121

STATE of Washington, Respondent, v. Paul WHITTINGTON, Appellant.

No. 7879-8-I.

Court of Appeals of Washington, Division 1.

Oct. 13, 1980.

Dennis Lee Burman, Jay Carey, Arlington, for appellant.

Russell Juckett, Snohomish County Pros. Atty., William W. Spencer, Deputy Pros. Atty., Everett, for respondent.

DURHAM-DIVELBISS, Judge.

Paul Whittington, age 14, appeals from his sentence of 52 weeks in the custody of the Department of Social and Health Services (DSHS), based on a finding of "manifest injustice" under RCW 13.40.160(2).

Whittington was convicted of second-degree reckless burning at an adjudicatory hearing on June 18, 1979. At the conclusion of the hearing, the State informed the court that it would seek a finding of "manifest injustice" at the disposition hearing.

At the disposition hearing on July 6, 1979 the court heard testimony from Whittington's mother, aunt, and probation counselor, and informed the parties that it had previously reviewed the State's presentence report. Whittington's counsel charged that the "manifest injustice" provision was unconstitutionally vague, and objected to the State's failure to provide prior written notice of its intent to seek it. He did not, however, object to the unsworn testimony of the probation counselor, or to the court's use of the presentence report.

The court found that it would be "manifestly unjust" to sentence Whittington within the standard range for a juvenile first offender because of the lack of rehabilitation programs available, Whittington's danger to himself and to society, and lack of parental control. He was sentenced to 52 weeks in the custody of DSHS. On September 27, 1979, the court designated the portions of the record on which it had relied in making its finding of manifest injustice, listing the presentence report, as well as a number of letters written by persons who had dealt with Whittington, expressing their evaluations of him.

Whittington first assigns error to the State's failure to provide him with prior written notice that it would seek a declaration of "manifest injustice." He claims that due process requires written notice of the specific charges and factual allegations to be considered at the hearing sufficiently in advance to permit adequate preparation.

Whittington relies primarily on Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967) where the court found the Colorado Sex Offender's Act to be unconstitutional. Holding that the defendant was "entitled to the full panoply of the relevant protections which due process guarantees in state criminal proceedings", Specht v. Patterson, supra at 609, 87 S.Ct. at 1212, quoting from United States ex rel. Gerchman v. Maroney, 355 F.2d 302, 312 (3d Cir. 1966), the court noted:

The case is not unlike those under recidivist statutes where an habitual criminal issue is "a distinct issue" (citation omitted) on which a defendant "must receive reasonable notice and an opportunity to be heard." Oyler v. Boles, 368 U.S. 448, 452, 82 S.Ct. 501, 503, 7 L.Ed.2d 446; Chandler v. Fretag, 348 U.S. 3, 8, 75 S.Ct. 1, 4, 99 L.Ed. 4.

Specht v. Patterson, supra, 386 U.S. at 610, 87 S.Ct. at 1212.

The State argues that our statute ¹ is distinguishable from that declared unconstitutional in Specht, citing a line of federal cases that found Specht inapplicable to an analogous federal sentencing scheme. United States v. Neary, 552 F.2d 1184 (7th Cir. 1977); United States v. Bowdach, 561 F.2d 1160 (5th Cir. 1977); United States v. Stewart, 531 F.2d 326, 41 A.L.R.Fed. 550 (6th Cir.), cert. denied, 426 U.S. 922, 96 S.Ct. 2629, 49 L.Ed.2d 376 (1976); United States v. Williamson, 567 F.2d 610 (4th Cir. 1977). However, inasmuch as those cases either avoided or distinguished Specht, they do not provide sufficient guidance upon which we can rely here.

To the contrary, Washington courts have adopted the Specht due process standards. In State v. Frazier, 81 Wash.2d 628, 503 P.2d 1073 (1972), the Supreme Court held that RCW 9.41.025, which enhanced the penalty for a crime committed with an inherently deadly weapon, merely created an additional penalty, rather than a separate crime. Nevertheless, the court held that the highest standards of due process applied.

In this case we are dealing with a factual determination which, if determined adversely to the appellant, irrevocably forbids the court from exercising its independent judgment concerning whether the appellant is to receive a deferred or suspended sentence. The result of an adverse determination is to compel incarceration in the penal institutions for certain fixed minimum periods of time. This determination is all made prior to the imposition of final judgment and sentence. Procedural due process of the highest standard must, therefore, be afforded the appellant. Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967).

State v. Frazier, supra, 81 Wash. at 634, 503 P.2d at 1077.

These same high standards of due process have also been held to apply under the habitual criminal statute, often referred to as a "status," rather than a separate, crime. See State v. Tatum, 61 Wash.2d 576, 379 P.2d 372 (1963); State v. Harkness, 1 Wash.2d 530, 96 P.2d 460 (1939).

Here, the court was required by statute to sentence a first-time juvenile offender to serve a term of community service. Before a more severe punishment could be imposed, it was necessary for the court to conclude that community supervision would create a "danger to society." This is indistinguishable from the statutory requirement in Specht, i. e., that the court determine whether the defendant "constitutes a threat of bodily harm to members of the public." Specht v. Patterson, supra, 386 U.S. at 607, 87 S.Ct. at 1211.

Accordingly, Whittington was entitled to all the procedural safeguards normally required in any criminal trial. This places no more burden on the State than exists when the State seeks a deadly weapon finding, see State v. Cosner, 85 Wash.2d 45, 530 P.2d 317 (1975), or an habitual offender judgment, see State v. Tatum, supra.

It is not necessary for the State to include its intent to seek a finding of manifest injustice in the information charging the juvenile with the underlying crime, because a finding of manifest injustice is not an automatic result of conviction, but merely a possible collateral consequence. State v. Shaffer, 18 Wash.App. 652, 571 P.2d 220 (1977), cert. denied, 439 U.S. 1050, 99 S.Ct. 729, 58 L.Ed.2d 710 (1978); State v. Johnson, 17 Wash.App. 486, 564 P.2d 1159 (1977); Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962).

It only remains then to determine whether appellant's due process rights were violated by the procedures employed here. The State informed Whittington and the court at the conclusion of the adjudicatory hearing of its intent to seek a declaration of manifest injustice. The presentence report submitted by Whittington's probation counselor recommended a finding of manifest injustice and stated the reasons for such a recommendation. It also recommended the increased penalty ultimately imposed, i. e., a period of 52 weeks in the custody of DSHS, Department of Institutions. The record reveals that Whittington's counsel received and reviewed the report before the disposition hearing. While the State might well find it advantageous to adopt more formal procedures, such as those used in the habitual offender statute, we believe that these circumstances do not dictate a finding of denial of due process.

Whittington next assigns error to the court's reliance on the presentence report, a number of letters, and the testimony of the probation counselor, all of which contained hearsay.

Mrs. Whittington, the appellant's mother, was the source of much of the information contained in the presentence report. It states that she told the probation counselor of several fires her son had set over a number of years. The report also contains a history of Whittington's difficulties in group homes, a description of his family problems, and excerpts from neurological and psychiatric reports evaluating Whittington's behavior problems. A number of letters written by persons who had dealt with Whittington, and which the court considered, contained similar material.

In addition, Mrs. Whittington and the probation counselor testified at the disposition hearing. Mrs. Whittington related to the court that her son had recently started two minor fires in their house. The probation counselor told the court that he had been informed by Mrs. Whittington of an incident in which Whittington destroyed his mailbox with an explosive firecracker, and of Whittington's alleged theft of money from a family guest.

Although the statute provided Whittington with the right to cross-examine witnesses at the disposition hearing, RCW 13.40.150(1), Whittington's attorney did not attempt to cross-examine either the probation counselor or Mrs. Whittington.

The admissibility of hearsay testimony in the adjudicatory phase of a juvenile proceeding was addressed in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). In that case, the juvenile defendant was found to be a juvenile delinquent on the basis of a complaint that he had made an obscene telephone call. Other than the complainant's statements to the arresting officer, the only evidence consisted of Gault's admission that he made some of the remarks. His admission was later ruled...