State v. Zwede

• Citation: 508 P.3d 1042
• Decision Date: 02 May 2022
• Docket Number: 81186-0-I
• Parties: STATE of Washington, Respondent, v. Daniel Achaw ZWEDE, Appellant.
• Court: Court of Appeals of Washington

508 P.3d 1042

STATE of Washington, Respondent,

v.Daniel Achaw ZWEDE, Appellant.

No. 81186-0-I

Court of Appeals of Washington, Division 1.

FILED May 2, 2022

Casey Grannis, Nielsen Koch & Grannis, PLLC, 2200 6th Ave. Ste. 1250, Seattle, WA, 98121-1820, for Appellant.

James Morrissey Whisman, King County Prosecutor's Office, 516 3rd Ave. Ste. W554, Seattle, WA, 98104-2362, for Respondent.

PUBLISHED OPINION

Andrus, C.J.

¶1 In 2014, Daniel A. Zwede pleaded guilty to one count of first degree rape of a child for a crime he committed at the age of 19. He was sentenced, pursuant to an agreed recommendation, to a Special Sex Offender Sentencing Alternative (SSOSA).¹ The trial court imposed an indeterminate standard range sentence of 120 months to life in prison, but suspended that sentence if Zwede complied with certain conditions while living in the community. Five years later, the trial court revoked Zwede's SSOSA and imposed the previously suspended indeterminate sentence.

¶2 Zwede does not appeal the trial court's findings that he violated the terms of his SSOSA or its decision to revoke it. Instead, he appeals the imposition of the indeterminate sentence, arguing that the trial court had the discretion under the SSOSA statute to impose a sentence below the standard range set out in his original judgment and sentence. He further contends that his indeterminate sentence violates article I, section 14 of the Washington Constitution because the trial court imposed it without considering his youthfulness at the time he committed his crime. Finally, Zwede maintains his trial counsel was ineffective for not raising his youthfulness when Zwede entered the plea and agreed to the SSOSA.

¶3 We conclude that RCW 9.94A.670 does not give trial courts the discretion to modify an original suspended indeterminate sentence at a revocation hearing. We further hold that neither the Eighth Amendment of the United States Constitution, nor article I, section 14 of the Washington State Constitution required the trial court to resentence Zwede and take into account his age at the time he committed the underlying crime when, as a 25-year-old adult, he violated the terms of a SSOSA sentence to which he had agreed.

¶4 Finally, we conclude Zwede did not receive ineffective assistance of counsel when his attorney chose not to argue for an exceptional downward departure from the sentencing guidelines based on Zwede's youthfulness at the time of the crime. Nothing in this record suggests the State would have agreed to a SSOSA sentence, under which Zwede avoided serving any prison time, had Zwede not agreed to a standard range indeterminate sentence as a part of the plea agreement.

¶5 We therefore affirm Zwede's sentence.

FACTS

¶6 In March 2013, the State charged Daniel Zwede with two counts of first degree rape of a child for crimes Zwede allegedly committed against his 9-year-old niece, R.A.A. In September 2014, Zwede pleaded guilty to a single count of first degree rape of a child. Zwede admitted that between September 2011 and March 2013, he had had sexual intercourse with R.A.A. Zwede, born in November 1992, was 19 or 20 at the time. R.A.A. was 8 or 9 years old during this period.

¶7 In exchange for the plea, the State agreed to dismiss the second rape count and to recommend a SSOSA. Under the terms of the SSOSA, the parties agreed to a standard range indeterminate sentence of 120 months to life in prison,² with credit for time served, with the prison term suspended as long as Zwede made reasonable progress in a five-year sexual deviancy treatment program and complied with all Department of Corrections (DOC) conditions of supervision.

¶8 At his plea hearing, the trial court confirmed Zwede's understanding that if he violated the terms of the SSOSA and the court imposed the balance of his sentence, he would be in prison for a minimum term of 10 years and face possible imprisonment for life. Zwede acknowledged the risks associated with violating the SSOSA sentence. The trial court accepted Zwede's plea, finding that he understood the elements of the crime, was aware of the rights he was forfeiting, and understood "all actual and potential consequences of [his] plea."

¶9 At the sentencing hearing, both the State and Zwede urged the trial court to follow the parties’ joint sentencing recommendation for a SSOSA. Neither party addressed Zwede's youthfulness at the time of the offense. The only reference to his age occurred when Zwede's attorney asked the court to impose the SSOSA so that Zwede, who would soon turn 21, could pursue a GED³ certificate. The court accepted this negotiated sentence recommendation and imposed a SSOSA consistent with the plea agreement.

¶10 The judgment and sentence set five annual review hearings, each occurring in August, starting in 2015, with a treatment termination hearing in August 2019. Appendix H of the judgment and sentence prohibited Zwede from having direct contact with his victim, required him to obtain a sexual deviancy evaluation and to follow all treatment recommendations, required him to inform his community corrections officer of any dating relationships, prohibited any sexual contact without his treatment provider's approval, and prohibited any contact with minors without the supervision of a responsible adult with knowledge of his conviction. If Zwede was enrolled in school, he was permitted to have contact with other students only during regular school hours and at officially sanctioned school functions.

¶11 Zwede struggled to comply with these conditions. In September 2014, within a month of the judgment and sentence, the DOC notified the court that Zwede had failed to register as a sex offender as required. The trial court found the violation to be willful and ordered Zwede confined for 20 days as a sanction. In January 2015, the DOC detained Zwede again for having contact with his victim. It notified the court of Zwede's violation, and Zwede served another 12 days in jail before being released by the court in February 2015.

¶12 Zwede began sexual deviancy treatment in October 2014. In progress reports submitted to the court, the treatment provider believed Zwede was making satisfactory progress in treatment and was a low risk for committing another sex offense. In August 2015, Zwede's treatment provider reported that he had had unauthorized contact with a minor and, at a subsequent violation hearing, the court found Zwede had committed a willful violation and ordered Zwede to arrange with the DOC to attend "Thinking for a Change" programming.

¶13 At Zwede's annual SSOSA review hearings in September 2016 and October 2017, the trial court found Zwede to be in compliance with the SSOSA sentence based on reports from his treatment provider and the DOC.

¶14 In December 15, 2017, Zwede's treatment provider, Pasha Grant, informed the court that she was unaware of any violations of SSOSA conditions by Zwede, and he had successfully completed treatment.

¶15 In June 2018, the State notified the court that Zwede had engaged in six new violations. These violations led the State to move to revoke the SSOSA in January 2019. The State alleged the following violations as the basis for revocation:

Violation 1: Having contact with minors, without prior approval, since on or about 10/31/2016.

Violation 2: Failing to receive prior approval for living arrangements and residence location since on or about 6/3/2018.

Violation 3: Failing to inform supervising [Community Corrections Officer (CCO)] of any dating relationship since on or about 10/31/2016.

Violation 4: Failing to abide by a curfew of 10 p.m. to 5 a.m., since on or about 3/23/2018.

Zwede's CCO, Bryan Dalton, recommended revocation. Dalton testified that in 2018, he discovered that Zwede was living with his sister without Dalton's prior approval. When he visited the sister's home, he discovered three minor children, including a 7-year-old daughter, living in the same home as Zwede, in violation of his SSOSA conditions. When he searched Zwede's cell phone, he found pictures of Zwede holding his minor nephew in his lap. He also discovered text messages between Zwede and his sister in which she appeared to be giving Zwede instructions on how to care for the children in her absence. When police officers interviewed the young children, they confirmed that Zwede was their babysitter.

¶16 Dalton further learned that, contrary to Zwede's statements to his treatment provider, he had been having sexual contact with underage girls dating back to October 2016. The treatment provider refused to take Zwede back into treatment because Zwede had not been truthful about his unauthorized contact with minors.

¶17 Zwede, now age 26, admitted violations one, two and four. The violations occurred when he was between the age of 24 and 25.

¶18 At the conclusion of the evidentiary hearing, the court asked both the State and Zwede's counsel if the court had the authority to impose a term of imprisonment of anything less than 10 years. Zwede's counsel stated that while the court could modify the sentence by imposing new conditions, it could not modify the suspended portion of the sentence imposed in 2014. The court asked, "So it's all or nothing?" Zwede's attorney answered in the affirmative.

¶19 The court continued the hearing to receive written closing arguments from the parties. In Zwede's closing argument, he asked the court not to revoke the SSOSA. He argued

Mr. Zwede was between the ages of 19 and 21 when he committed the underlying offenses. He falls squarely within State v. O'Dell, 183 Wash.2d 680, 358 P.3d 359 (2015), which examined youth as a mitigating factor for individuals over 18. Citing to Roper v. Simmons, the Washington Supreme Court concluded that ‘[t]he qualities that distinguish juveniles from adults do not disappear when an individual turns 18 [just as] some under 18 have already attained a level of maturity some adults will never reach." O'Dell, 183 Wash.2d at 695, 358 P.3d 359 (internal

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