                                                                           FILED
                                                                        JUNE 27, 2017
                                                                 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. 34654-4-111
                     Respondent,              )
                                              )
       V.                                     )
                                              )         UNPUBLISHED OPINION
JONATHAN HOWARD SHURTZ,                       )
                                              )
                     Appellant.               )

       SIDDOWAY, J. - Jonathan Shurtz, a juvenile, appeals a manifest injustice sentence

imposed following his plea of guilty to second degree burglary. We affirm.

                    FACTS AND PROCEDURAL BACKGROUND

      Early one morning in May 2016, Jonathan Shurtz, then 17 years old, attempted to

steal a half gallon of Malibu Rum from a Safeway store in Moses Lake-a store from

which he had been permanently trespassed. When a Safeway employee yelled at Mr.

Shurtz, he left the bottle behind and ran from the store. Located by police a short time

later, Mr. Shurtz resisted being taken into custody and tried to hit an officer. He was

detained, booked into the Grant County Juvenile Detention Center, and charged with

second degree burglary, minor in possession of alcohol, and resisting arrest. He later

pleaded guilty to second degree burglary.
No. 34654-4-III
State v. Shurtz


         At the outset of the July 2016 disposition hearing, the court reviewed a

predisposition diagnostic report prepared by the juvenile department that disclosed the

following matters, among others:

         •   Since September 2014, Mr. Shurtz's criminal history included 11 (or more)
             criminal adjudications, not counting the crimes charged in this matter.
         •   Mr. Shurtz had incurred 17 probation violations since November 2014 and
             spent approximately 190 days in detention in 2015.
         •   Before the charges in this matter, Mr. Shurtz had incurred 3 new criminal
             charges since the beginning of 2016.
         •   Mr. Shurtz had been provided multiple opportunities to engage in rehabilitative
             interventions, including aggression replacement training, functional family
             therapy, and mental health services but had failed to successfully complete
             them.
             Mr. Shurtz had been hospitalized 4 times due to crisis intervention and suicide
             attempts.
         •   While in detention, Mr. Shurtz had been involved in at least 44 incidents
             ranging from destruction of property to self-mutilation.
         •   Beginning in early childhood, Mr. Shurtz had been diagnosed with 9 mental
             health disorders and had received a multitude of psychiatric mental health
             services from several providers.
         •   Mr. Shurtz admitted to using marijuana and alcohol frequently and had never
             participated in any drug or alcohol treatment program.
         •   Mr. Shurtz struggled with maintaining attendance in school.

Ex. 1.

         The representative of the juvenile department told the court the department was

recommending a manifest injustice sentence upward of 39 to 52 weeks. He stated that

the department had worked with Jonathan "very closely over the last year and a half' and



                                               2
No. 34654-4-III
State v. Shurtz


had concerns that it had exhausted the services and interventions that could be provided

locally. Report of Proceedings (RP) at 18-19. He explained that a longer Juvenile

Rehabilitation Administration (JRA) commitment would provide "a lot of available

services that could be--at the disposal of [Mr. Shurtz] that a standard range wouldn't

effectuate." RP at 20.

       The court next heard from the prosecutor, who reported that it was the agreed

recommendation of the State and the defense that Mr. Shurtz serve a 15 to 36 week

sentence. He pointed out that while Mr. Shurtz had numerous convictions, they had been

misdemeanors, and he had not been to JRA before-this would be his "first stint." RP at

19.

       Defense counsel also advocated for the parties' standard range recommendation,

pointing out that Mr. Shurtz's current conviction was for a nonviolent crime. She

observed that Mr. Shurtz could be enrolled in drug and alcohol treatment during a

standard range detention. She also told the court the family had not followed through

with family therapy in the past.

       The court heard last from Mr. Shurtz's father, who told the court:

              As bad as it sounds, I-I kind of lean towards agreeing with
       Juvenile's recommendation, so he can get the services we--We've done
       everything we can. Personal therapy, counseling, family therapy. I can't
       keep him in school, can't keep him at Skill Source. He won't do--service
       hours. He's not even nice at home. We give him the leeway, he can leave



                                            3
No. 34654-4-III
State v. Shurtz


       in the morning and comtr-eome back at--curfew. He does that, and it's a
       fight for an hour, just because he wants to fight with us.
               We have to keep our other children separated from him for their
       safety.
               So,-I-I-I agree with what-what [the juvenile department
       representative] has put together, just on the fact that that seems to be the
       only way to get his residential treatment that he needs, (inaudible) the time.
       When he comes home,---they say more therapy, more counseling; he won't
       go. He doesn't go. And I have to force him to take his med's.
               So,--he's getting too old to do that, too.

RP at 23-24.

       Having heard from everyone, the trial court stated that "based on the comments

that were provided by the father, and obviously the report by the juvenile department, I

am going to make a finding of manifest injustice." RP at 24. It imposed a 39 to 52 week

sentence with credit for 70 days served. The aggravating factors that it found supported

the manifest injustice sentence were that Mr. Shurtz had a recent criminal history or had

failed to comply with conditions of a recent disposition order, and the existence of

necessary treatment and a potential to reoffend ifhe did not receive that treatment.

      Mr. Shurtz appeals.

                                       ANALYSIS

      Mr. Shurtz argues that the trial court imposed a manifest injustice disposition that

was clearly excessive and based on factors already considered in the recommended

standard range disposition.




                                             4
No. 34654-4-111
State v. Shurtz


       Under RCW 13.40.160(2), if a juvenile "court concludes ... that disposition

within the standard range would effectuate a manifest injustice the court shall impose a

disposition outside the standard range." See State v. Duncan, 90 Wn. App. 808, 812, 960

P .2d 941 ( 1998). A "manifest injustice" is "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 this chapter." RCW 13.40.020(19). These purposes include

protecting the citizenry from criminal behavior, making the juvenile offender accountable

for his behavior, providing rehabilitation and reintegration of juvenile offenders,

providing necessary treatment for juvenile offenders, and encouraging the family to

actively participate in the juvenile justice process. RCW 13.40.010(2)(a), (c), (f), (g),

(m). In other words, "[t]he need for rehabilitation or treatment, the need to protect

society from dangerous offenders, and the previous failure of noncustodial treatment or

supervision are reasons that can support a sentence outside the standard range." State v.

Tauala, 54 Wn. App. 81, 86, 771 P.2d 1188 (1989).

       "To uphold a manifest injustice disposition, this court must find that ( 1) the

reasons supplied by the disposition court are supported by the record, (2) those reasons

clearly and convincingly support the conclusion that a disposition within the standard

range would constitute a manifest injustice, and (3) the sentence imposed was neither

clearly excessive nor clearly too lenient." State v. Moro, 117 Wn. App. 913, 918-19, 73

P.3d 1029 (2003) (citing RCW 13.40.230(2)).

                                              5
No. 34654-4-111
State v. Shurtz


       Reasons supplied. A juvenile court must consider whether mitigating or

aggravating factors exist and may consider statutory and nonstatutory factors. State v.

JV., 132 Wn. App. 533, 540-41, 132 P.3d 1116 (2006) (footnote omitted). The trial

court's findings of fact are reviewed under a clearly erroneous standard and we will

reverse only if the findings are not supported by substantial evidence. Moro, 117 Wn.

App. at 919. "Substantial evidence exists where there is a sufficient quantity of evidence

in the record to persuade a fair-minded, rational person of the truth of the finding." State

v. Hill, 123 Wn.2d 641,644,870 P.2d 313 (1994).

       The aggravating factors found by the court were, again, "[Mr. Shurtz] has a recent

criminal history or has failed to comply with conditions of a recent dispositional order or

diversion agreement" and "[n]ecessary treatment for [Mr. Shurtz] and his potential to

reoffend ifhe [did not] receive that treatment." Clerk's Papers at 33.

       Mr. Shurtz seemingly asserts that misdemeanors and nonviolent offenses do not

count as "recent criminal history" within the meaning of the statutory aggravating factor

provided by RCW 13.40.150(3)(i)(iv). But he provides neither authority nor persuasive

argument for ignoring the plainly general meaning of that expression. According to the

juvenile department's report, Mr. Shurtz's criminal history began in September 2014 and

includes crimes committed as recently as April 2016-a month before he committed the

crimes at issue in this appeal.




                                             6
No. 34654-4-111
State v. Shurtz


       Mr. Shurtz had 17 probation violations in the same time fr~me, spending 190 days

in detention in 2015. Violating the terms of probation qualifies as an aggravating factor

supporting a manifest injustice determination. See State v. Meade, 129 Wn. App. 918,

924, 120 P.3d 975 (2005).

       The department's predisposition diagnostic report characterized Mr. Shurtz as

"continu[ing] to rapidly recidivate criminally" and stated that the rate at which he

continued to criminally offend and violate court orders "continues to escalate." Ex. 1 at

12. Substantial evidence supports the trial court's finding that Mr. Shurtz had a recent

criminal history or had failed to comply with conditions of a recent dispositional order.

       As for necessary treatment, Mr. Shurtz argues, relying on a statement to the court

by Mr. Shurtz's father, that the court committed him to JRA solely because of a lack of

treatment facilities in Moses Lake. If that were the case, it would violate RCW

13.40.150(5). But the department offered a different treatment-based reason for

recommending a manifest injustice sentence: its report stated that Mr. Shurtz had a "need

for long-term therapeutic interventions only facilitated through the State of Washington."

Ex. I at 15 (emphasis added). It was recommending intensive mental health therapy

services and assessments, aggression replacement training, educational programming and

assessment, cognitive and dialectical behavioral therapy, functional family therapy, drug

and alcohol assessment and treatment, and vocational/occupational training and

programming. In response to the trial court's question at sentencing as to whether the

                                             7
No. 34654-4-III
State v. Shurtz


services could be completed in the standard range, the department representative

indicated they could not, particularly because the State generally provides the services

sequentially rather than simultaneously.

       Under RCW 13.40.010(2)(g), "[i]t is ... proper for a trial court to consider a

juvenile's need for treatment in considering a manifest injustice determination." JV,

132 Wn. App. at 541. If a juvenile is considered a high risk to reoffend, "an extended

period of structured residential care and specialized treatment may be appropriate." Id.

Substantial evidence supports the trial court's finding that Mr. Shurtz's need for

treatment and his potential to reoffend without it justified a manifest injustice sentence.

       Serious and clear danger. Mr. Shurtz argues that the juvenile court's findings do

not satisfy the requirement that the imposition of a standard range disposition would have

presented a clear danger to society. For a manifest injustice finding to withstand

appellate review, a standard range for the juvenile must present a serious and clear danger

to society beyond a reasonable doubt. RCW 13.40.020(19); State v. NE., 70 Wn. App.

602, 854 P .2d 672 ( 1993 ). A serious and clear danger to society can include danger to

the welfare ofthejuvenile and his future. State v. Rhodes, 92 Wn.2d 755,761,600 P.2d

1264 (1979), overruled on other grounds, State v. Baldwin, 150 Wn.2d 448, 78 P.3d 1005

(2003). Rapid and escalating recidivism presents a clear danger to society. In re Welfare

of Latson, 45 Wn. App. 716, 719, 726 P.2d 1042 (1986).




                                              8
No. 34654-4-III
State v. Shurtz


       Mr. Shurtz's recidivism and the escalating rate at which he was criminally

offending and violating court orders presented a serious and clear danger to society. And

his father described a particular clear and serious danger he presented within the Shurtz

household as he became increasingly out of his parents' control. The evidence is clear

and convincing.

       Not clearly excessive. Finally, Mr. Shurtz argues the juvenile court's imposed

disposition is clearly excessive because he could have received the recommended

treatment within a standard range sentence. The department represented otherwise,

however. And because Mr. Shurtz was given credit for time served and had already

completed 10 weeks of whatever disposition was imposed, the standard range sentence

recommended by the parties would have left only 5 to 26 weeks-insufficient time for

him to obtain the treatment he needed.

       "Once the court concludes that a disposition within the standard range would

effectuate a manifest injustice ... the court is vested with broad discretion in determining

[the length of] the disposition." J. V., 132 Wn. App. at 545. We will reverse a manifest

injustice sentence based on its length "only if the sentence imposed is so clearly

excessive as to constitute an abuse of discretion," and cannot be justified by any

reasonable view of the record. Tauala, 54 Wn. App. at 86; State v. P., 37 Wn. App. 773,

779, 686 P.2d 488 (1984). Given the amount of treatment being recommended, the




                                             9
No. 34654-4-111
State v. Shurtz


desirability of sequential scheduling, and the prospect of some setbacks, it cannot be said

that a 39 to 52 week commitment is excessive.

      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.


                                                    ZJ~t() %~~
                                                    ddoway, J.

WE CONCUR:




                                                  Pennell, J.




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