FILED FEBRUARY 22, 2024 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) ) No. 39325-9-III Respondent, ) ) v. ) ) A.V., ) UNPUBLISHED OPINION ) Appellant. )
STAAB, J. — A.V. pleaded guilty to attempted first degree robbery. A superior
court commissioner imposed a manifest injustice disposition downward to 70 weeks. On
revision, the superior court imposed a standard range sentence of 103-129 weeks, finding
a manifest injustice disposition was not supported by clear and convincing evidence.
A.V. appeals, raising three arguments. First, A.V. argues the superior court abused its
discretion by failing to consider nonstatutory mitigating factors in revising the
commissioner’s disposition or recognize its authority to do so. Second, A.V. argues that
clear and convincing evidence supports a finding of a manifest injustice so the imposition
of a standard range sentence is improper. Third, A.V. argues the superior court abused its
discretion by failing to recognize its authority to remand the case to the commissioner for
additional fact finding. We disagree with these arguments and affirm. No. 39325-9-III State v. A.V.
BACKGROUND
A.V. had just turned 17 when he was arrested and charged in juvenile court with
one count of first degree robbery. The allegations were that A.V. and two codefendants
flashed a gun and threatened a store clerk while stealing beer from a convenient store.
The State eventually reduced the charge to attempted first degree robbery in exchange for
A.V.’s guilty plea.
On September 7, 2022, A.V. entered a guilty plea before a superior court
commissioner. At the disposition hearing, the State requested a standard range sentence
of 103-129 weeks, while A.V. argued for a manifest injustice sentence of 30-40 weeks.
A.V. cited three statutory bases under RCW 13.40.150(h) supporting the manifest
injustice recommendation. First, A.V. asserted that he did not contemplate that his
conduct would cause or threaten serious bodily injury to the victim. Second, there had
been at least one year between the current offense and any prior criminal offense. And
third, A.V. had a mental condition that significantly reduced his culpability because he
was suffering from fetal alcohol syndrome.
A.V. also argued that nonstatutory factors supported his manifest injustice
recommendation. He asserted that the “purposes” of the Juvenile Justice Act outlined in
RCW 13.40.010(2) should be taken into account. These purposes include protecting
citizens from criminal behavior, providing for the handling of juvenile offenders by
2 No. 39325-9-III State v. A.V.
communities whenever consistent with public safety, and rehabilitating the juvenile
offender.
A.V. explained that “[he] and his parents are taking this matter seriously and are
planning to seek appropriate supportive services” and that “[he] is remorseful and
ashamed of his behavior and eager to ensure that nothing like it happens again.” Clerk’s
Papers (CP) at 104. Additionally, he asked the court to consider that he is adopted and
his parents separated in 2019, which was hard for him. A.V. noted that “[he] and his
parents have been working on putting together a plan for him to get on the right path such
as joining job corps [sic].” CP at 99. Further, that “[he] has not had the opportunity to
engage in community programs that would result in rehabilitation” nor has he “been
given the opportunity to make amends.” CP at 99-100. A.V. argued that these factors
support a manifest injustice disposition downward and the purposes of the Juvenile
Justice Act would not be served by a standard range sentence.
After hearing from the parties, the commissioner found that one of the statutory
mitigating factors was proved “by clear and convincing evidence,” while the others were
not. CP at 100. The commissioner agreed with A.V.’s contention that there had been at
least one year between his current offense and any prior criminal history, the
commissioner determined there was clear and convincing evidence supporting this as a
mitigating factor because A.V. had no criminal history.
3 No. 39325-9-III State v. A.V.
On the other hand, the commissioner determined that the other statutory factors
were not proved because there was not enough evidence to find that A.V.’s conduct
would cause or threaten bodily injury or that A.V. suffered from a mental condition.
With respect to A.V.’s contention that he had been diagnosed with fetal alcohol
syndrome, the commissioner noted that A.V. had not introduced any supporting medical
records. The commissioner rhetorically inquired, “[s]o how does the Court make those
types of findings on that factor without at least something more from a counselor or
psychologist? And the medical doctor that says: Hey, yeah. He suffered fetal alcohol
syndrome.” CP at 85. The commissioner determined that based on the materials
presented, the court could not find by clear and convincing evidence that A.V.’s mental
condition was a mitigating factor.
After considering the statutory mitigating factors, the commissioner considered the
nonstatutory mitigating factors proffered by A.V. The commissioner stated, “counsel
also pointed out that there’s some nonstatutory factors. And they weren’t really argued
by either side, but . . . the Court is given some discretion to consider other factors.” CP at
91.
Following these considerations, the commissioner imposed a disposition. In doing
so, he stated:
So, what the Court is basically going to do is this: I can make a finding under one of the factors. And that’s that first factor. And the Court has made that finding that you haven’t committed any other offenses.
4 No. 39325-9-III State v. A.V.
And the court will—what the Court is going to do is this: I’m going to enter a manifest injustice downward. However, I only have, really, one statutory factor that the Court made a finding on. And your attorney pointed out some of the nonstatutory factors, and the Court did consider those. Basically, the Court is given discretion to kind of consider a bunch of factors if you make a manifest injustice downward. And there’s some basis there.
CP at 91-92. The commissioner further explained, “I’m going to exercise [my] discretion
and have [the sentence] go down some, to take into account the factors that the Court can
find and some of the nonstatutory factors.” CP at 93. He noted, “if I don’t have enough
of the other information, I’m not going to take it down any further.” CP at 93.
Accordingly, the commissioner imposed a manifest injustice of 70 weeks’ confinement
based on the statutory factor that there had been at least one year between the current
offense and any prior criminal offense and the other nonstatutory factors presented by
A.V.
Following the commissioner’s imposition of a manifest injustice downward
disposition, the State moved for revision by the superior court. At the revision hearing,
the State argued that A.V.’s lack of criminal history cannot be a mitigating factor because
the standard range disposition is the same regardless of criminal history.
Free access — add to your briefcase to read the full text and ask questions with AI
FILED FEBRUARY 22, 2024 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) ) No. 39325-9-III Respondent, ) ) v. ) ) A.V., ) UNPUBLISHED OPINION ) Appellant. )
STAAB, J. — A.V. pleaded guilty to attempted first degree robbery. A superior
court commissioner imposed a manifest injustice disposition downward to 70 weeks. On
revision, the superior court imposed a standard range sentence of 103-129 weeks, finding
a manifest injustice disposition was not supported by clear and convincing evidence.
A.V. appeals, raising three arguments. First, A.V. argues the superior court abused its
discretion by failing to consider nonstatutory mitigating factors in revising the
commissioner’s disposition or recognize its authority to do so. Second, A.V. argues that
clear and convincing evidence supports a finding of a manifest injustice so the imposition
of a standard range sentence is improper. Third, A.V. argues the superior court abused its
discretion by failing to recognize its authority to remand the case to the commissioner for
additional fact finding. We disagree with these arguments and affirm. No. 39325-9-III State v. A.V.
BACKGROUND
A.V. had just turned 17 when he was arrested and charged in juvenile court with
one count of first degree robbery. The allegations were that A.V. and two codefendants
flashed a gun and threatened a store clerk while stealing beer from a convenient store.
The State eventually reduced the charge to attempted first degree robbery in exchange for
A.V.’s guilty plea.
On September 7, 2022, A.V. entered a guilty plea before a superior court
commissioner. At the disposition hearing, the State requested a standard range sentence
of 103-129 weeks, while A.V. argued for a manifest injustice sentence of 30-40 weeks.
A.V. cited three statutory bases under RCW 13.40.150(h) supporting the manifest
injustice recommendation. First, A.V. asserted that he did not contemplate that his
conduct would cause or threaten serious bodily injury to the victim. Second, there had
been at least one year between the current offense and any prior criminal offense. And
third, A.V. had a mental condition that significantly reduced his culpability because he
was suffering from fetal alcohol syndrome.
A.V. also argued that nonstatutory factors supported his manifest injustice
recommendation. He asserted that the “purposes” of the Juvenile Justice Act outlined in
RCW 13.40.010(2) should be taken into account. These purposes include protecting
citizens from criminal behavior, providing for the handling of juvenile offenders by
2 No. 39325-9-III State v. A.V.
communities whenever consistent with public safety, and rehabilitating the juvenile
offender.
A.V. explained that “[he] and his parents are taking this matter seriously and are
planning to seek appropriate supportive services” and that “[he] is remorseful and
ashamed of his behavior and eager to ensure that nothing like it happens again.” Clerk’s
Papers (CP) at 104. Additionally, he asked the court to consider that he is adopted and
his parents separated in 2019, which was hard for him. A.V. noted that “[he] and his
parents have been working on putting together a plan for him to get on the right path such
as joining job corps [sic].” CP at 99. Further, that “[he] has not had the opportunity to
engage in community programs that would result in rehabilitation” nor has he “been
given the opportunity to make amends.” CP at 99-100. A.V. argued that these factors
support a manifest injustice disposition downward and the purposes of the Juvenile
Justice Act would not be served by a standard range sentence.
After hearing from the parties, the commissioner found that one of the statutory
mitigating factors was proved “by clear and convincing evidence,” while the others were
not. CP at 100. The commissioner agreed with A.V.’s contention that there had been at
least one year between his current offense and any prior criminal history, the
commissioner determined there was clear and convincing evidence supporting this as a
mitigating factor because A.V. had no criminal history.
3 No. 39325-9-III State v. A.V.
On the other hand, the commissioner determined that the other statutory factors
were not proved because there was not enough evidence to find that A.V.’s conduct
would cause or threaten bodily injury or that A.V. suffered from a mental condition.
With respect to A.V.’s contention that he had been diagnosed with fetal alcohol
syndrome, the commissioner noted that A.V. had not introduced any supporting medical
records. The commissioner rhetorically inquired, “[s]o how does the Court make those
types of findings on that factor without at least something more from a counselor or
psychologist? And the medical doctor that says: Hey, yeah. He suffered fetal alcohol
syndrome.” CP at 85. The commissioner determined that based on the materials
presented, the court could not find by clear and convincing evidence that A.V.’s mental
condition was a mitigating factor.
After considering the statutory mitigating factors, the commissioner considered the
nonstatutory mitigating factors proffered by A.V. The commissioner stated, “counsel
also pointed out that there’s some nonstatutory factors. And they weren’t really argued
by either side, but . . . the Court is given some discretion to consider other factors.” CP at
91.
Following these considerations, the commissioner imposed a disposition. In doing
so, he stated:
So, what the Court is basically going to do is this: I can make a finding under one of the factors. And that’s that first factor. And the Court has made that finding that you haven’t committed any other offenses.
4 No. 39325-9-III State v. A.V.
And the court will—what the Court is going to do is this: I’m going to enter a manifest injustice downward. However, I only have, really, one statutory factor that the Court made a finding on. And your attorney pointed out some of the nonstatutory factors, and the Court did consider those. Basically, the Court is given discretion to kind of consider a bunch of factors if you make a manifest injustice downward. And there’s some basis there.
CP at 91-92. The commissioner further explained, “I’m going to exercise [my] discretion
and have [the sentence] go down some, to take into account the factors that the Court can
find and some of the nonstatutory factors.” CP at 93. He noted, “if I don’t have enough
of the other information, I’m not going to take it down any further.” CP at 93.
Accordingly, the commissioner imposed a manifest injustice of 70 weeks’ confinement
based on the statutory factor that there had been at least one year between the current
offense and any prior criminal offense and the other nonstatutory factors presented by
A.V.
Following the commissioner’s imposition of a manifest injustice downward
disposition, the State moved for revision by the superior court. At the revision hearing,
the State argued that A.V.’s lack of criminal history cannot be a mitigating factor because
the standard range disposition is the same regardless of criminal history. Although A.V.
did not explicitly concede that his lack of criminal history cannot be a mitigating factor,
he argued instead that “the commissioner actually based his decision on more than just
the one statutory factor [and] that there were other factors that he considered.” Rep. of
5 No. 39325-9-III State v. A.V.
Proc. (RP) at 32. A.V. contended that the manifest injustice disposition was supported by
the nonstatutory factors because these factors show that a longer sentence is not needed to
rehabilitate A.V. or to protect the community, and these are the purposes underlying the
Juvenile Justice Act.
The superior court determined that the commissioner had improperly relied on a
statutory factor. “So, clearly, your parents are supportive and I’m sure you’re remorseful.
However, this Court has to obey the laws and the statutes of what a revision is. And I
believe the State is correct.” RP at 34. The court explained that it could not uphold the
manifest injustice disposition because of the cases listed in the State’s motion holding
that criminal history cannot be a mitigating factor when the standard range disposition is
the same regardless. The court also read the commissioner’s ruling during the disposition
hearing, quoted above, and then explained to A.V. why the court could not uphold the
commissioner’s disposition:
So, what happened here was the commissioner gave you a manifest injustice based on you have no criminal history. And that is something that the commissioner cannot do. That is something that I cannot do. I—I think that if we had the discretion, probably you would get a manifest injustice on that. But, the case law is clear that that is not something the Court is allowed to give a manifest injustice on. It’s just not.
RP at 36.
A.V. also provided actual medical documents regarding his fetal alcohol syndrome
to show that his mental condition was a mitigating factor. Regarding these documents,
6 No. 39325-9-III State v. A.V.
the court explained that it must base its decision only on what is in the record at the time
of sentencing and it would be a violation to accept the actual documents because they
were not presented at sentencing.
The court then amended A.V.’s disposition to a standard range disposition of 103-
129 weeks’ confinement. In doing this, the court explained:
So, based on what I have and I’m sorry to have to say this, there is no clear and convincing evidence for a mitigation downward. So, I can’t do it. And I’m sorry, but I just—it would be nice if the legislature, if they changed the rules and say hey, you know what, we’re going to allow for people to argue mitigation on a charge that has the same range, no matter what your criminal history is, then this court will start to do that. But until we’re allowed that authority, we can’t. Okay? So, I am glad that you are remorseful. I’m glad that you are making plans. I, unfortunately, have to sentence you to the standard range.
RP at 37.
A.V. appeals.
ANALYSIS
1. REVIEWING SUPERIOR COURT’S ORDER ON REVISION
A.V. argues the superior court erred in revising the commissioner’s disposition
because the commissioner’s disposition was supported by its findings on nonstatutory
mitigating factors. We decline to address this issue.
This court does not review a superior court’s decision on whether or not to revise a
commissioner’s ruling. Instead, when an appeal is taken after a superior court considers a
7 No. 39325-9-III State v. A.V.
motion for revision, we review the superior court’s decision, not the commissioner’s
decision. In the Matter of Marriage of Lyle, 199 Wn. App. 629, 633, 398 P.3d 1225
(2017). When a superior court considers a motion for revision, the court takes full
jurisdiction of the case and reviews the commissioner’s decision de novo. Id. at 632.
“Although the superior court judge cannot accept new evidence, RCW 2.24.050, a motion
on revision is in all other respects equal to any other matter on the court’s docket.” Id.
The denial of a motion for revision constitutes an adoption of the commissioner’s
findings and conclusions. Maldonado v. Maldonado, 197 Wn. App. 779, 391 P.3d 546
(2017). If the superior court grants revision, the court may issue its own findings and
conclusions if it disagrees with any part of the commissioner’s decision. See Lyle, 199
Wn. App. at 632-33. On subsequent appeal to this court, we review the superior court’s
findings and conclusions, whether they are original or adopted. Id.
Thus, to the extent that A.V. asks us to review the superior court’s order granting
revision, we decline.
2. REMAND FOR NEW EVIDENCE
After granting revision, the superior court declined to consider new evidence of
A.V.’s diagnosis of fetal alcohol syndrome. On appeal, A.V. contends that the court
abused its discretion by failing to remand to the commissioner to consider the new
evidence.
8 No. 39325-9-III State v. A.V.
As noted above, although a superior court takes full jurisdiction of a case when
reviewing a motion for revision, “such revision shall be upon the records of the case.”
RCW 2.24.050. While a superior court judge sitting on revision is precluded from
considering new evidence, the court does have the authority to remand the case to the
commissioner for consideration of additional evidence and fact-finding. Perez v. Garcia,
148 Wn. App. 131, 138, 198 P.3d 539 (2009).
Here, the superior court rejected A.V.’s proposed new evidence after recognizing
the limitation imposed by RCW 2.24.050. A.V. did not request that the court remand the
case for consideration of additional evidence. Yet, on appeal, A.V. argues that the
superior court abused its discretion by failing to sua sponte remand for additional
evidence. He contends that the failure to exercise discretion is an abuse of discretion,
citing In re Marriage of Mishko and Kehr, 23 Wn. App. 2d 571, 578, 519 P.3d 240
(2022).
While we agree with A.V.’s premise, it is also true that a court cannot abuse
discretion that it has not been asked to exercise. Moreover, since the issue of remand was
not raised below, it cannot be raised for the first time on appeal unless it constitutes a
manifest constitutional error. RAP 2.5(a)(3). Because A.V. did not ask the superior
court to remand this case for additional evidence and fact-finding, and does not contend
that the failure to do so was a manifest error, we decline to review this issue.
9 No. 39325-9-III State v. A.V.
3. STANDARD RANGE DISPOSITION
A.V. challenges the superior court’s standard range disposition, arguing that the
court failed to consider non-statutory mitigating factors.
We review a juvenile court’s sentencing decision for an abuse of discretion. See
State v. J.W.M., 1 Wn.3d 58, 70, 524 P.3d 596 (2023). A juvenile court must impose a
standard range disposition unless doing so would effectuate a manifest injustice. RCW
13.40.0357, .160(2); State v. K.E., 97 Wn. App. 273, 278, 982 P.2d 1212 (1999). A
“‘[m]anifest injustice’ means a disposition that would either impose an excessive penalty
on the juvenile or would impose a serious, and clear danger to society in light of the
purposes of” the Juvenile Justice Act. RCW 13.40.020(20). “The court’s finding of
manifest injustice shall be supported by clear and convincing evidence.” RCW
13.40.160(2).
Before imposing a juvenile disposition, the court must consider various mitigating
factors provided in RCW 13.40.150(3)(h). The court may also consider nonstatutory
factors when making its determination. J.W.M., 1 Wn.3d at 70. Additionally, a court
may consider the purposes of the Juvenile Justice Act, such as rehabilitating the juvenile
and protecting the public from criminal behavior. State v. K.E., 97 Wn. App. at 283
(holding that a “court may enter a manifest injustice . . . disposition where [it] finds that a
standard range disposition is not needed to rehabilitate the juvenile offender or protect the
public from criminal behavior”). The court must consider all the information and
10 No. 39325-9-III State v. A.V.
arguments offered by the parties. RCW 13.40.150(3)(b); see also State v. M.L., 114 Wn.
App. 358, 363, 57 P.3d 644 (2002) (holding that “the juvenile court is required to
consider on the record any aggravating or mitigating factors presented”). This
requirement is met if the trial court states that it has reviewed the reports submitted by the
parties, “even though those reports were not discussed at the hearing.” Id.
Here, the juvenile court found that the record did not support a manifest injustice
disposition. The court appropriately found that A.V.’s criminal history could not support
a statutory mitigating factor. In K.E., 97 Wn. App. at 281, this court held that where “the
standard range disposition is the same regardless of the juvenile offender’s criminal
history, notwithstanding RCW 13.40.150(3)(h)(v), the juvenile’s criminal history, in and
of itself, is not a valid basis for finding that a standard range would result in a manifest
injustice and imposing a downward exceptional disposition.”
While A.V. contends that the court failed to consider the nonstatutory factors, the
record does not support this position. Instead, after reviewing the record, the court found
that the nonstatutory factors did not support a manifest injustice disposition. The superior
court read part of the commissioner’s decision into the record, including the
commissioner’s statements regarding the nonstatutory factors. After concluding that the
statutory factors were not met, the court considered the record and found that “there is no
clear and convincing evidence for a mitigation downward.” RP at 37. The court noted
the evidence of nonstatutory factors, indicating, “I am glad that you are remorseful. I’m
11 No. 39325-9-III State v. A.V.
glad that you are making plans. I, unfortunately, have to sentence you to the standard
range.” Id. After revising A.V.’s disposition, the superior court stated, “And for the
record, I did review everything and all—everything that was provided to Mr. or
Commissioner Middleton.” RP at 40.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_________________________________ Staab, J.
WE CONCUR:
_________________________________ Lawrence-Berrey, A.C.J.
_________________________________ Cooney, J.