      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                                  No. 73913-1-1


                      Respondent,                     DIVISION ONE


                                                                                  jk-




BINH THAI TRAN,                                       UNPUBLISHED
                                                                                  o


                      Appellant.                      FILED: November 14. 2016




       Cox, J. - Binh Thai Tran appeals his judgment and sentence, arguing that

the trial court abused its discretion in denying his request for a Special Sex

Offender Sentencing Alternative (SSOSA) sentence. Because the record

supports the trial court's decision that Tran was not amenable to treatment, we

hold that the trial court did not abuse its discretion in denying Tran's SSOSA

request. We affirm.

       Tran pleaded guilty to one count of indecent liberties with the victim,

J.V.T., by forcible compulsion. At the sentencing hearing, both parties advised

the trial court that J.V.T. supported a SSOSA sentence. Norman Glassman, a

certified sex offender treatment provider, conducted a sexual deviancy evaluation

of Tran and recommended that the trial court grant Tran a SSOSA sentence.

However, the Department of Corrections recommended that the court deny the

request for a SSOSA sentence.
No. 73913-1-1/2



        At the sentencing hearing, the trial court considered the documentary

evidence together with a letter written to the court by Tran. It denied Tran's

SSOSA request, determining that he was not amenable to treatment. The trial

court imposed an 82 month sentence, the "high end of the standard range." It

also entered its judgment in accordance with its oral decision.

      Tran appeals.

                          PRESERVATION OF ERROR

      The State argues that Tran failed to preserve the error he now claims on

appeal. We disagree.

      Sentencing courts have considerable discretion under the Sentencing

Reform Act1 (SRA) to determine if an offender is eligible for an alternative

sentence and whether the alternative is appropriate.2

      A standard range sentence is generally not appealable.3 But an offender

"may always challenge" the procedure the trial court used to impose a sentence.4

Appellate review remains available to correct legal errors or abuses of discretion

in sentence determinations.5




       1 Chapter 9.94A RCW.

       2 State v. Hender, 180 Wn. App. 895, 900-01, 324 P.3d 780 (2014).

       3 RCW 9.94A.585(1); see also State v. Grayson, 154 Wn.2d 333, 338, 111
P.3d 1183(2005).

       4 Grayson, 154 Wn.2d at 338.

       5 State v. Kinneman. 155 Wn.2d 272, 283, 119 P.3d 350 (2005).
No. 73913-1-1/3



       Here, the issue at Tran's sentencing hearing was whether the trial court

should grant Tran a SSOSA sentence under RCW 9.94A.670. Tran argues that

the trial court made a legal error by failing to comply with RCW 9.94A.670(4). He

claims the court failed to consider the victim's opinion and failed to make findings

regarding her opinion under this statute. Tran's argument is reviewable.

                         AMENABILITY TO TREATMENT

       Tran argues that the trial court failed to comply with the SSOSA statute.

We disagree.

       Under the SRA, a first-time sex offender may be eligible for a suspended

sentence under the SSOSA provisions. SSOSA was created on the belief that

required participation in rehabilitation programs "'is likely to prove effective in

preventing future criminality'" for certain first-time sexual offenders.6
       We review for an abuse of discretion a trial court's refusal to order

treatment under SSOSA.7

       RCW 9.94A.670(2) provides the six requirements for SSOSA eligibility.

These are not in dispute here.

       What is at issue are the provisions of RCW 9.94A.670(4). Specifically, the

question is whether the trial court properly considered certain factors stated in




       6 State v. Miller, 180 Wn. App. 413, 417, 325 P.3d 230 (2014) (internal
quotation marks omitted) (quoting State v. Goss, 56 Wn. App. 541, 544, 784 P.2d
194 (1990)), review denied. 181 Wn.2d 1022 (2014), cert, denied, 135 S. Ct.
1555, 191 L.Ed. 2d 646 (2015).

       7 State v. Sims, 171 Wn.2d 436, 445, 256 P.3d 285 (2011).
No. 73913-1-1/4



that section of the statute. The statute provides that after the court receives the

required reports following examination of the defendant:

       [T]he court shall consider whether the offender and the community
       will benefit from use of this alternative, consider whether the
       alternative is too lenient in light of the extent and circumstances of
       the offense,... consider whether the offender is amenable to
       treatment, . . . and consider the victim's opinion whether the
       offender should receive a treatment disposition under this
       section. The court shall give great weight to the victim's opinion
       whether the offender should receive a treatment disposition
       under this section. If the sentence imposed is contrary to the
       victim's opinion, the court shall enter written findings stating its
       reasons for imposing the treatment disposition. The fact that
       the offender admits to his or her offense does not, by itself,
       constitute amenability to treatment.^

       State v. Oliva9 is instructive. There, the State entered into a plea

agreement with Jose Oliva and agreed to recommend a SSOSA sentence if

Oliva was amenable to treatment.10 Oliva met the SSOSA eligibility requirements

under RCW 9.94A.670(2), and the trial court had to determine whether Oliva was

amenable to treatment.11 It concluded that Oliva was not so amenable.12

       On appeal, Division Three of this court described some of the factors that

apply to determine whether one is amenable to treatment, stating: "That is, given

his background, history, social and economic circumstances, and psychological



       8 RCW 9.94A.670(4) (emphasis added).

       9 117 Wn. App. 773, 779, 73 P.3d 1016 (2003).

       10 id, at 775.

       11 id, at 779-80.

       12 Id. at 778.
No. 73913-1-1/5



condition, could both he and the community benefit from community-based

treatment under SSOSA."13

       The question before Division Three of court was whether the record

supported the trial court's decision.14 The court affirmed the trial court's decision

to deny a SSOSA sentence, concluding that the record "amply supported] the

[trial] court's determination that SSOSA was inappropriate for Mr. Oliva,

regardless of what an evaluation might have found."15

       Here, the trial court denied Tran's SSOSA request and stated its

reasoning at the sentencing hearing. The trial court did not mention J.V.T.'s

opinion on whether Tran should receive a treatment disposition.

       The trial court stated:


       I have done a number and granted a fair amount of SSOSAs in my
       time when I am convinced that the defendant is amenable to
       treatment, that they have approached the acts that gave rise to the
       criminal charge with honesty, with humility, with acceptance,
       realizing that they have a problem, not knowing fully the extent of it
       but willing to deal with it in a forthright manner. In reading all of the
       materials that I've read, Mr. Tran, you don't come in front of me as
       that type of individual.'161

       The court referred to the "personality" portion of Glassman's sexual

deviancy evaluation to support its determination. The court then stated that Tran

committed "a horrific crime" and that it did not see "any willingness on [Tran's]



       13 id at 780.

       14 id,

       15 id,

       16 See Report of Proceedings (July 30, 2015) at 12.
No. 73913-1-1/6



behalf to accept responsibility for this."17 The court further stated: "The profile

that I'm being presented with is a gentleman of arrogant sense of self-worth, a

talent for feigning dignity and confidence, indifference to the welfare of others,

and a deceptive social manner.. . . You are a predator."18

       The court also referred to Tran's "excuse" and stated that Tran continued

abusing J.V.T. because she did not tell him to stop.19 The court then concluded

by stating: "After due consideration, sir, I don't believe that you are amenable to

treatment."20

       The trial court's determination was not an abuse of discretion. Although

Glassman recommended a SSOSA sentence, his sexual deviancy evaluation,

especially the portion describing Tran's personality, supports the trial court's

determination that Tran is not amenable to treatment.

       Tran next argues that the trial court failed to comply with the SSOSA

statute because it did not enter findings regarding the victim's support for Tran's

SSOSA application. He specifically argues that the trial court must enter findings

when it decides not to impose "a treatment disposition." This conflicts with the

statute's plain language.




       17 id, at 12-13.

       18 id, at 13.

       19 id,

       20 Id.
No. 73913-1-1/7



       When interpreting statutes, we determine the legislative intent from the

statute's plain language and its context in the statutory scheme.21

       RCW 9.94A.670(4) requires that the trial court consider, and "give great

weight to the victim's opinion whether the offender should receive a treatment

disposition." Ifthe trial court imposes a sentence contrary to the victim's opinion,

the trial court must "enter written findings stating its reasons for imposing the

treatment disposition."22

       There simply was no imposition of any treatment disposition in this case.

Rather, the court determined Tran was not amenable to treatment. Thus, the

victim's opinion in support of treatment is irrelevant to the requirement for

entering written findings. Tran misread the statute's plain language in arguing

otherwise.

       Tran argues that the trial court's failure to make findings regarding J.V.T.'s

opinion renders it impossible to determine whether the trial court followed the

statute's directive. He cites State v. Fellers23 to support this argument. His

reliance is misplaced.

       For the reasons just discussed, there is no showing that the court failed to

follow the statute's directive. In any event, Fellers is distinguishable.




       21 State v. Conover, 183 Wn.2d 706, 711, 355 P.3d 1093(2015).

       22 (Emphasis added.)

       23 37 Wn. App. 613, 683 P.2d 209 (1984).
No. 73913-1-1/8



       There, the statute at issue set forth required procedures for the trial court

to follow for a dispositional hearing.24 It required that the trial court state its

findings of fact and enter its decision on the record. The findings shall include

"the evidence relied upon by the court in reaching its decision."25 Another statute

provided the factors that the trial court must consider in the dispositional

hearing.26

       On appeal, this court concluded that the trial court failed to follow the

statute's procedures.27 This court further stated that the record was "devoid of

findings or an oral decision from which we can determine whether the court

properly reviewed the matters before it. Since the court did not set forth what it

considered, it is impossible to ascertain whether it followed the [statute's]

directives."28

       Here, conversely, RCW 9.94A.670(4) did not require that the trial court

make written findings about J.V.T's opinion. No treatment disposition was

imposed. Thus, Tran mistakenly relies on Fellers.

       Lastly, Tran argues that the trial court failed to consider J.V.T.'s opinion

and failed to give it great weight. He bases this argument on the trial court's




       24 id, at 616, 618.

       25 id, at 616 (quoting RCW 13.40.130(4)).

       26 id, at 618.

       27 id,

       28 Id. at 619.



                                            8
No. 73913-1-1/9



omission from its oral decision of a statement of J.V.T.'s opinion in its reasons for

denying Tran's SSOSA request.

       For the reasons already discussed, consideration of J.V.T.'s opinion was

not relevant because there was no imposition of treatment. Thus, giving that

opinion great weight was not necessary under the plain words of the statute.

                                      COSTS

      Although neither Tran nor the State raises the issue of appellate costs in

their appellate briefs, we do so sua sponte.

       Under our recent opinion in State v. Sinclair, the issue of appellate costs is

to be decided by the panel that renders the decision.29 We do so here.

       Shortly after the trial court entered the judgment and sentence, Tran filed

a motion and declaration seeking review at public expense and appointment of

an attorney.30 The motion stated that the Snohomish County Officer of Public

Defense determined Tran to be indigent.31 The trial court granted the motion,

appointing an appellate attorney under RAP 15.2.32




       29 See 192 Wn. App. 380, 385-86, 367 P.3d 612, review denied, 185
Wn.2d 1034(2016).

      30 Motion and Declaration for Order Authorizing the Defendant to Seek
Review at Public Expense and Appointing an Attorney.

       31 id, at 2.

       32 Order Authorizing the Defendant to Seek Review at Public Expense and
Appointing an Attorney on Appeal.
No. 73913-1-1/10



      Under Sinclair, there is a presumption that indigency continues unless the

record shows otherwise.33 We have reviewed this record and see nothing to

overcome this presumption. Accordingly, an award to the State for appellate

costs is inappropriate under these circumstances.

      We affirm the judgment and sentence, and deny costs to the State.


                                                        Cc%xl.

WE CONCUR:




       ^




      33 Sinclair, 192 Wn. App. at 393.

                                          10
