State v. Young

• Decision Date: 19 January 1995
• Docket Number: No. 61195-5,61195-5
• Citation: 888 P.2d 142,125 Wn.2d 688
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Petitioner, v. John Clinton YOUNG, Respondent.

Page 688

125 Wn.2d 688

888 P.2d 142

The STATE of Washington, Petitioner, v. John Clinton YOUNG, Respondent.

No. 61195-5.

Supreme Court of Washington,

En Banc.

Jan. 19, 1995.

[888 P.2d 143] C. Danny Clem, Kitsap County Prosecutor,

Pamela B. Loginsky, Deputy, Ione S. George, Deputy, Port Orchard, for petitioner

Ronald D. Ness & Associates, Jeffrey J. Jahns, Port Orchard, for respondent.

MADSEN, Justice.

Respondent John C. Young (Young) pleaded guilty to second degree child molestation in Kitsap County Superior Court and, thereafter, moved for an order granting the use of public funds for a psychosexual evaluation to determine

his eligibility for the special sexual offender sentencing alternative (SSOSA) option. The trial court granted Young's motion. Petitioner, State of Washington (State), seeks review of the trial court's order. At issue is whether the trial court has the authority to order the expenditure of public funds for a psychosexual evaluation to be used at sentencing.

FACTS

Young was charged by information filed on October 11, 1993, with one count of child molestation in the second degree. ¹ On October 25, 1993, the trial court found Young to be indigent and appointed counsel at public expense. On November 30, 1993, Young pleaded guilty as charged pursuant to a plea agreement with the State. The plea agreement contained the following provision:

The State will consider recommending the Special Sex Offender Sentencing Alternative (RCW 9.94A.120(7)(a)) after reviewing an evaluation of the defendant, with all applicable conditions if defendant is found amenable to treatment by an evaluator acceptable by the State. Examination shall include polygraph and plethysmograph testing and a proposed treatment plan. The State does not agree, hereby, to the disbursement of public funds for payment of this evaluation.

Clerk's Papers, at 11.

At the time of entering his plea, Young acknowledged he understood the State was not agreeing to disbursement of funds for a psychosexual evaluation. Nevertheless, he moved the trial court to approve the use of public funds for an evaluation. The State opposed the motion and on December 28, 1993, a hearing was held with both parties submitting memoranda of law and making oral arguments.

The trial court granted Young's motion concluding that it had the "authority and the obligation, pursuant to RCW 9.94A.120, CrR 3.1(f) and the Constitutions of the United States and the State of Washington, to order the use of public funds for an evaluation to determine whether an indigent The trial court stayed disbursal of public funds and sentencing was continued pending the State's appeal. The State petitioned this court for direct review of the trial court's order. Petition for review was granted on March 17, 1994, pursuant to RAP 2.3(b)(2), 4.2(a)(3), and 4.2(a)(4).

defendant is amenable to treatment and qualifies for the SSOSA option". Clerk's Papers, at 44. Moreover, the trial court concluded that if it were to deny Young's motion, his right to due process and equal protection would be violated.

ANALYSIS

In Washington, CrR 3.1 sets forth the right of an indigent defendant to the assistance of counsel and authorizes payment for expert services when necessary to an adequate defense. CrR 3.1(a), (d), (f); see also State v. Mines, 35 Wash.App. 932, 935, 671 P.2d 273 (1983), review denied, 101 Wash.2d 1010 (1984). The rule provides, in part, that:

(1) Counsel for a defendant who is financially unable to obtain investigative, expert, or other services necessary to an adequate defense in the case may request them by a motion to the court.

(2) Upon finding the services are necessary and that the defendant is financially unable to obtain them, the court ... shall authorize counsel to obtain the services on behalf of the defendant.

CrR 3.1(f). Whether expert services are necessary for an indigent defendant's adequate defense lies within the sound discretion of the trial court and shall not be overturned absent a clear showing of substantial prejudice. Mines, 35 Wash.App. at 935, 671 P.2d 273.

The trial judge, here, found that the requested SSOSA evaluation was necessary both to aid her in determining Young's amenability to treatment and to allow Young to rebut an adverse inference regarding his amenability to treatment. The State does not contend that the judge abused her discretion in so finding. Rather, the State asserts, as a matter of law, that CrR 3.1(f) does not authorize the expenditure of public funds for this purpose. See Br. of Pet'r, at 8. In support of its position, the State cites State v. Hermanson, 65 Wash.App. 450, 829 P.2d 193, review denied, 120 Wash.2d 1016, 844 P.2d 436 (1992); State v. Melos, 42 Wash.App. 638, 713 P.2d 138, review denied, 105 Wash.2d 1021 (1986); and State v. Tuffree, 35 Wash.App. 243, 666 P.2d 912, review denied, 100 Wash.2d 1015 (1983).

The general rule, stated in Melos, is that CrR 3.1(f) does not mandate appointment of an expert at public expense unless such services are necessary to an adequate defense. Melos, 42 Wash.App. at 640, 713 P.2d 138. The defendant in that pre-SRA case requested the expenditure of funds to obtain a psychological evaluation for use at sentencing. His request was denied and he appealed, arguing that the expenditure was mandated by CrR 3.1(f). The Court of Appeals disagreed and found that the trial court had not abused its discretion in denying the request. Because the defendant had pleaded guilty, the Court of Appeals found that the trial court reasonably concluded that the evaluation was not necessary to an adequate defense. Melos, at 641, 713 P.2d 138. The Melos court also found the evaluation was not necessary to rebut similar, adverse evidence presented by the State and thus not mandated under the exception noted in Tuffree. Melos, 42 Wash.App. at 641, 713 P.2d 138.

In Tuffree, the Court of Appeals affirmed a trial court denial of the expenditure of public funds for a psychiatric evaluation to be used at sentencing. Tuffree, 35 Wash.App. at 250, 666 P.2d 912. Because the defendant did not need the evaluation to rebut similar, adverse evidence presented by the State at sentencing, the court concluded that the expenditure was not mandatory; and therefore, the trial court had not abused its discretion in denying the request. Tuffree, at 249-50, 666 P.2d 912.

Most recently, in Hermanson, the Court of Appeals considered the arguments of two defendants who asserted that CrR 3.1(f) mandated the expenditure of public funds for sexual deviancy evaluations. Hermanson, 65 Wash.App. at 451, 829 P.2d 193. Defendant Hermanson was offered an opportunity for a reduction of charges, either in number or degree, if he obtained a favorable evaluation. The other defendant, Heath, sought the evaluation solely for use at sentencing. In resolving these cases, the court made it clear that CrR 3.1(f) does not mandate the expenditure of public funds for a sexual deviancy evaluation at public expense unless the evaluation will affect criminal liability or is necessary to rebut similar, adverse evidence presented by the State at sentencing. Hermanson, at 453, 829 P.2d 193. The court thus concluded that the denial of the expenditure for Hermanson amounted to an abuse of discretion since the evaluation was linked to the issue of liability. Hermanson, at 455, 829 P.2d 193. Conversely, the court found no abuse of discretion in the denial of Heath's requested appointment since the evaluation was solely for the purpose of sentencing. Hermanson, at 455, 829 P.2d 193.

Contrary to the State's position, the holdings in Melos, Tuffree, and Hermanson do not deprive the trial court of authority to expend funds for psychological evaluations to be used at sentencing. The trial court's authority to approve the expenditure of public funds under CrR 3.1(f) was not argued, nor decided in those cases. Rather, the conclusion reached by those courts is that CrR 3.1(f) does not mandate the expenditure of public funds for such evaluations when used solely for sentencing purposes. These decisions are in line, therefore, with the general rule that a trial court determination that expert testimony is necessary to an adequate defense will be upheld absent an abuse of discretion.

As an additional basis of authority for ordering the expenditure in this case, the trial court relied on RCW 9.94A.120(7) to order an evaluation at public expense. Through that statute the Washington Legislature has authorized trial court discretion to order psychosexual evaluations to determine a defendant's eligibility for SSOSA--a special sentencing option for qualifying defendants. The Legislature developed the special sentencing provision for first time sex offenders in an attempt to prevent future crimes and protect society. See David Boerner, Sentencing in Washington § 8.1, at 8-1 to 8-2 (1985). The statute provides in pertinent part that:

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.

....

The court on its own motion may order, or on a motion by the state shall order, a second examination regarding the offender's amenability to treatment. The evaluator shall be selected by the party making the motion. The defendant shall pay the cost of any second examination ordered unless the court finds the defendant to be indigent in which case the state shall pay the cost.

RCW 9.94A.120(7)(a)(i).

The State points out that the statute is silent regarding payment for the initial SSOSA evaluation. In contrast, the Legislature has authorized the expenditure of public funds for second SSOSA evaluations. Br. of...