                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                       December 28, 2016




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                               No. 48134-1-II

                                Respondent,

        v.                                                    UNPUBLISHED OPINION

 MATTHEW L. WELLINGTON,

                                Appellant.

       BJORGEN, C.J. — Matthew Wellington appeals his sentence of 131 months to life. He

argues that the trial court abused its discretion by declining to impose a special sex offender

sentencing alternative (SSOSA). We hold that the trial court’s decision not to impose a SSOSA is

supported by the application of the proper legal standard to the facts of this case. Accordingly, we

affirm Wellington’s sentence.

                                              FACTS

       Matthew Wellington pled guilty to two counts of rape of a child in the first degree. At

sentencing, Wellington requested a SSOSA in lieu of a standard range sentence. The State and
No. 48134-1-II


the victim, JN-PS,1 through her mother opposed a SSOSA. The victim’s mother testified at

sentencing, discussing the effect that the incident had on her family and asking the judge not to

impose a SSOSA. The trial court declined to impose a SSOSA, based on the magnitude of the

harm inflicted upon the victim, the relative sophistication of Wellington’s preparation and

execution of his crimes, Wellington’s relatively high intelligence, and the fact that Wellington

had repeated sexual contact with the victim.

          The trial court explained:

                 As was set [sic] at the beginning, this is a life sentence for this child, quite
          honestly. The impact is huge.

                  It’s a life sentence for Mr. Wellington as well. I recognize that he is, by Mr.
          Comte’s evaluation, he would meet the amenability [sic] to a SSOSA disposition,
          but I compare this case to the case that I heard previously today with a teenager
          who’s involved in some minimal touching, no penetration, no level of
          sophistication, and I look at what Mr. Wellington did, which involves multiple acts
          that were increasing contact, ending up in actual what’s admitted to penile
          penetration; buying sex toys, using them on this six- or seven-year-old child. I’m
          sorry. I just don’t see him as an appropriate candidate for a SSOSA sentence.

                  I think if you look at this case, if an outsider looked at this, they would say
          what was the judge thinking, how would they give this man the ability to stay out
          in the community after doing multiple rapes upon a child he proclaims love for.
          [sic] That didn’t happen just on one occasion or a couple. It was a period of at least
          ten episodes that were I think outlined in the report, and they did involve a
          significant level of sophistication.

                  There is discussion in the victim’s statement about the security device being
          disabled or the internet not working, not being able to see what was going on in the
          home. The child reported being taken to a room when grandma was sleeping and
          the acts occurring [sic] during that time.

                   I think Mr. Wellington, he is tested out [sic] at a high [intelligence quotient],
          but if you look at his sexual history, there’s a long history of aberrant sexual
          activities, including viewing child pornography for a number of years, excessive
          masturbation, contact with animals, all of that occurring throughout a period of time
          prior to his entry into the military and some of the behavior in terms of the viewing



1
    We refer to the victim in this case by her initials to protect her privacy.
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No. 48134-1-II


       of pornography occurring [sic] up to I believe age 26, which was not that long ago
       for him. So it’s been something that has been a huge impact upon him.

               He doesn’t have a prior sex history. I think he does have the ability to
       change, but the bottom line is balancing the community safety issue, his potential
       risk to other young victims, his potential risk to other women he would come into
       contact with that have children of their own, which is a fairly common pattern that
       I have seen over the years. The fact that the victim strongly opposes this. [sic]

               I would point out the presentence writer did not have contact with the
       victim’s mother and that’s noted in the presentence investigation; that the phone
       they have been given [sic] they were not able to reach [the victim’s mother] during
       that time period, and so I am required to give considerable weight and consider the
       victim’s fear in this case. I think if you watched [the victim’s mother] as she stood
       up here, there was a physical manifestation of fear that is still there and trauma is
       still evident. I think under these circumstances, evaluating the risk to the
       community, whether this is too lenient a sentence to receive a SSOSA, I think that,
       coupled with the multiple acts of a sophisticated nature and the victim’s wishes,
       make him in my mind not an appropriate candidate for a SSOSA.

Report of Proceedings (RP) (Sept. 4, 2015) at 38-40.

       The court imposed a sentence of 131 months to life in addition to lifetime community

custody and forbad contact with the victim. Wellington appeals.

                                           ANALYSIS

A.     Standard of Review

       We review a trial court’s denial of treatment through a SSOSA for an abuse of discretion.

State v. Onefrey, 119 Wn.2d 572, 575, 835 P.2d 213 (1992). A trial court abuses its discretion if

its decision is manifestly unreasonable, or is exercised on untenable grounds or for untenable

reasons. State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003). A decision is based on

untenable grounds or made for untenable reasons if it rests on facts unsupported by the record or

was reached by applying the wrong legal standard. Id. A decision is manifestly unreasonable if

the court, despite applying the correct legal standard to the supported facts, reaches an outcome

that is outside the range of acceptable choices, such that no reasonable person could arrive at that



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No. 48134-1-II


outcome. Id. A court also abuses its discretion if it categorically refuses to impose a particular

sentence or if it denies a sentencing request on an impermissible basis. State v. Osman, 157

Wn.2d 474, 482, 139 P.3d 334 (2006).

B.     SSOSA

       Wellington argues that the trial court abused its discretion because it denied the SSOSA

based on “its apparent emotional response to the victim’s mother.” Br. of Appellant at 5. We

disagree.

       Trial courts must generally impose sentences within the standard range. Osman, 157

Wn.2d at 480. However, if an offender is eligible for and requests a SSOSA, the court must

decide whether that alternative is appropriate. Id. at 480-81 (interpreting former RCW

9.94A.120(8)(a) (2001))2. The decision to impose a SSOSA “is entirely within the trial court’s

discretion.” Onefrey, 119 Wn.2d at 575. In determining whether the SSOSA is appropriate, the

trial court must consider several factors, including:

       [W]hether the offender and the community will benefit from use of [SSOSA], . . .
       whether the [SSOSA] is too lenient in light of the extent and circumstances of the
       offense, . . . whether the offender has victims in addition to the victim of the offense,
       . . . whether the offender is amenable to treatment, . . . the risk the offender would
       present to the community, to the victim, or to persons of similar age and
       circumstances as the victim, and . . . the victim’s opinion whether the offender
       should receive a treatment disposition.

RCW 9.94A.670(4). A trial court must “give great weight to the victim’s opinion whether the

offender should receive a [SSOSA].” Id. We have held that the trial court may also consider

factors beyond those included in the SSOSA statute in determining whether a SSOSA is

appropriate. State v. Osman, 126 Wn. App. 575, 581, 108 P.3d 1287 (2005).




2
  Recodified as RCW 9.94A.505, LAWS OF 2001, ch. 10, § 6. The subsequent revision and
recodification has not altered the substantive analysis as described in Osman.
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No. 48134-1-II


       Wellington asserts that the trial court’s decision to not impose a SSOSA was based on

untenable grounds because a SSOSA was the “best chance of protection,” for the community,

given that the presentence investigation report (PSI)3 indicated he had a low reoffender risk and

the Department of Corrections did not oppose a SSOSA. Br. of Appellant at 5. Wellington

further suggests that the trial court abused its discretion by indulging in an emotional response to

the victim’s mother’s testimony, relying on the court’s statement: “[T]his is a life sentence for

this child, quite honestly. The impact is huge. It’s a life sentence for Mr. Wellington as well.”

RP (Sept. 4, 2015) at 38.

       We considered a similar argument in the unpublished case of State v. Beckwith, where the

defendant argued that the trial court abused its discretion in denying his SSOSA request by

placing undue weight on the opinion of the victim’s mother. No. 42147-0-II, 2012 WL 1203963,

at *2-3. Although the defendant presented other evidence suggesting that a SSOSA would have

been appropriate, we reasoned that “[t]he court properly considered all the facts and

circumstances, including the PSI, the victim’s family’s opposition to SSOSA, and [the

defendant’s] letter to the court.” Id. at *3. Additionally, the defendant in Beckwith argued that

the trial court erred by “noting the lifelong impact of childhood sexual abuse,” as part of its

sentencing determination.4 Id. We disagreed, explaining that “judges are expected to bring their



3
  Although the trial court ordered, and the trial court considered a presentence investigation
report, the report is not included in the clerk’s papers.
4
  At Beckwith’s sentencing, the trial court judge recalled an experience from another case:
        I think one of the stories that I will never forget was we had a trial with questioning
        jury members and we were doing that privately if they had been involved in some
        type of sexual abuse in the past and we had a 78 year old woman who was being
        questioned and she had been abused as a young child by one of her relatives,
        sexually abused, and as she sat there and talked about it, there were tears flowing
        down her eyes so at 78 years old it still had an impact on this lady so there is no
        question that [the victim] is going to deal with this for the rest of her life.
Beckwith, No. 42147-0-II, 2012 WL 1203963, at *2 (alteration in original).
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No. 48134-1-II


common sense to bear in making sentencing determinations,” and holding that “the sentencing

court properly considered the effect that childhood sexual abuse potentially has throughout a

victim’s lifetime.” Id. As in Beckwith, the trial court in this case properly considered the

testimony of the victim’s mother in its decision whether to impose a SSOSA and appropriately

noted the enduring harm the victim may struggle with as a result of Wellington’s acts.

       Apart from the victim’s mother’s testimony, the trial court identified several reasons why

it determined a SSOSA would be inappropriate, such as the severity of harm, the fact that

multiple incidents of sexual contact occurred, Wellington’s relatively high intelligence, and his

relatively sophisticated planning of his criminal acts. The trial court’s reasoning is consistent

with the SSOSA statutory directive to consider “whether the [SSOSA] is too lenient in light of

the extent and circumstances of the offense.” RCW 9.94A.670(4). Furthermore, the trial court

noted that Wellington had “a long history of aberrant sexual activities, including viewing child

pornography . . . [and] contact with animals,” and expressed concern about his risk of

reoffending. RP (Sept. 4, 2015) at 39-40. These observations are relevant to the SSOSA

consideration of “the risk the offender would present to the community, to the victim, or to

persons of similar age and circumstances as the victim.” RCW 9.94A.670(4). As such, the trial

court’s decision to not impose a SSOSA was based on the perceived leniency of the SSOSA

under the circumstances of this case and the defendant’s risk of reoffending, in addition to the

victim’s mother’s testimony.5




5
  “I think under these circumstances, evaluating the risk to the community, whether this is too
lenient a sentence to receive a SSOSA, I think that, coupled with the multiple acts of a
sophisticated nature and the victim’s wishes, make him in my mind not an appropriate candidate
for a SSOSA.” RP (Sept. 4, 2015) at 40.
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No. 48134-1-II


        Although it may be debatable whether a SSOSA would be the best sentencing option for

the community in the long term, the trial court made its decision using the correct legal standard

as applied to the facts of this case, and its determination was not so outside the range of

acceptable choices that no reasonable person could have made the same determination.

Therefore, we hold that the trial court did not abuse its discretion by declining to impose a

SSOSA in this case. We affirm.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.




                                                      BJORGEN, C.J.
 We concur:



 JOHANSON, J.




 MELNICK, J.




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