                                                                    This opinion was
                                                                    filed for record
      IN CLIMCN OrPICE                                            at3<lM)n
     !ooutr.anoE OF WASi^iGTON
I DATE            3 0 201.Q                                        Su^nL Carlson
                                                                  Supreme Court Clerk




            IN THE SUPREME COURT OF THE STATE OF WASHINGTON




STATE OF WASHINGTON,
                                                        No. 96434-3
                         Respondent,

       V.                                               En Banc


TJ.S.-M.,

                         Petitioner.                   Filed       MAY 3 0 2i1'9
                                                 J


       MADSEN,J.-—In this case, T.J.S.-M., a juvenile, challenges his suspended

manifest injustice disposition. The Court of Appeals dismissed his claim on ripeness

grounds. T.J.S.-M. contends his appeal is ripe for review. T.J.S.-M. also argues the trial

court applied the wrong standard of proof during the sentencing hearing and, accordingly,

improperly imposed a manifest injustice disposition.

      For the following reasons, we reverse the Court of Appeals' decision but affirm

T.J.S.-M.'s conviction and sentence.
No. 96434-3



                                           FACTS

       In February 2016, T.J.S.-M., on three separate occasions, embraced, groped, and
kissed three different high school classmates. In each of these instances, the victims

indicated they were not comfortable with T.J.S.-M.'s conduct and attempted to leave.
T.J.S.-M. detained each girl against her will before eventually releasing her.

       After the incidents were reported and investigated, the State charged T.J.S.-M. with
two counts of indecent liberties, two counts of unlawful imprisonment with sexual

motivation, and one count of fourth degree assault with sexual motivation. The case

proceeded to bench trial, where T.J.S.-M. was convicted of the two counts of unlawful

imprisonment with sexual motivation and one count of fourth degree assault without

sexual motivation.


       Since T.J.S.-M. had no prior criminal history, he requested the standard range of

0-30 days' confinement and 12 months' probation with conditions, including sex offender

counseling, with credit for 83 days served. The State recommended a manifest injustice

disposition of 36 weeks' confinement to be suspended by a special sex offender

disposition alternative(SSODA).

       The trial court adopted the State's recommendation. Applying a "clear and

convincing" standard, which it understood to be "just below beyond a reasonable doubt,"

2 Verbatim Report of Proceedings (Jan. 25, 2017)(VRP)at 353, the court found that

T.J.S.-M. had threatened serious bodily harm and sexual motivation was an aggravating

factor. It also found T.J.S.-M. had a high risk to reoffend due to the sexual nature of the

offense, posed a threat to community safety, and had intellectual limitations that could
                                             2
No. 96434-3



also show a high risk to reoffend. As mitigating factors, the court noted that T.J.S.-M.

had no prior criminal record and had some mental health issues.

       T.J.S.-M. appealed the manifest injustice disposition. The Court of Appeals

dismissed the appeal on ripeness grounds, holding that a manifest injustice disposition

suspended by a SSODA is not reviewable until the SSODA has been revoked and the

disposition imposed. See State v. T.J.S.-M., No. 35130-1-III(Wash. Ct. App. Sept. 20,

2018)(unpublished), https://www.courts.wa.gov/opinions/pdf/351301_unp.pdf. Between

the filing of T.J.S.-M.'s notice of appeal and the Court of Appeals' ruling, T.J.S.-M.

violated his SSODA conditions. His SSODA was revoked and his suspended disposition

was revoked; he was committed to confinement. Deck of Samuel J. Comi, Attach. F.

T.J.S.-M. sought review in this court.

                                         ANALYSIS


       Mootness


       As a preliminary matter, both parties agree that this case is moot since T.J.S.-M.

already served his sentence and we cannot provide relief for him on appeal. Generally,

we do not consider questions that are moot. State v. Hunley, 175 Wn.2d 901, 907, 287

P.3d 584(2012)(citing State v. Gentry, 125 Wn.2d 570, 616, 888 P.2d 1105 (1995)). A

case is moot if we can no longer provide effective relief on appeal. Id. The expiration of

a sentencing term technically renders a case moot. Id. (citing In re Pers. Restraint of

Mattson, 166 Wn.2d 730, 736, 214 P.3d 141 (2009)). Nevertheless, we may retain and

decide a case if it involves matters of continuing and substantial interest. Id. We consider

three factors when determining whether the issue presents a continuing and substantial
                                             3
No. 96434-3



public interest: "'[(1)] the public or private nature of the question presented,[(2)] the

desirability of an authoritative determination for the future guidance of public officers,

and [(3)] the likelihood of future recurrence of the question.'" Id. (alterations in original)

(internal quotation marks omitted)(quoting Mattson, 166 Wn.2d at 736).

        Here, the timing of appealing a suspended manifest injustice disposition is a matter

of public interest. It is not unique to T.J.S.-M., and whether a suspended disposition may

be challenged is irrefutably of substantial public interest. Next, the lower court relied on a

prior Court of Appeals case to dismiss T.J.S.-M.'s appeal on ripeness grounds. We have

not had the opportunity to decide this issue.^ Since we have not ruled on this issue, there

is a need for future guidance, meeting the second factor. Finally, this issue is likely to

recur because manifest injustice dispositions are prevalent in juvenile proceedings and

enhanced sentences are often challenged. Based on these eonsiderations, we proceed to

the merits of the case.


        Reviewabilitv of Suspended Manifest Injustice Dispositions

        The first issue is whether a suspended manifest injustice disposition is reviewable

prior to revocation of a SSODA. The Court of Appeals dismissed T.J.S.-M.'s appeal

based on RCW 13.40.162 and State v. J.B., 102 Wn. App. 583, 9 P.3d 890(2000). J.B.

involved a challenge to a suspended manifest injustice disposition. Relying on State v.

Langland, 42 Wn. App. 287, 711 P.2d 1039(1985)(suspended life sentence as cruel and

unusual punishment is not ripe for review until the sentence is actually imposed), the


'It appears that the parties in the case that the Court of Appeals relied on,State v. J.B., 102 Wn.
App. 583,9 P.3d 890(2000), did not seek review of that case in this court.
                                                 4
No. 96434-3



court in J.B. held that a suspended manifest injustice disposition is not ripe for review

because "the consequences of such rulings are merely potential, not actual." J.B., 102

Wn. App. at 585. The court stated that "the proper time to appeal a suspended manifest

injustice disposition is after that disposition is imposed following SSODA revocation."

Id. at 584.


       Relying on J.B., the State contends that the appeal should have been brought after

T.J.S.-M.'s "SSODA was revoked and the [suspended] JRA [(Juvenile Rehabilitation

Administration) sentence] imposed." Suppl. Br. of Resp't at 7. The State urges that since

T.J.S.-M. failed to wait until his suspended sentence was imposed, his sentence is not ripe

for review.


       Statutes Governing Manifest Injustice and SSODA Dispositions

       We first note that a manifest injustice disposition and a SSODA disposition are

governed by different statutes. Imposition of a manifest injustice sentence is governed by

ROW 13.40.160(2). Under that section, the court must enter its reasons for imposing a

manifest injustice sentence as indicated in option D of ROW 13.40.0357, and the sentence

imposed under option D "shall be comprised of confinement or community supervision,

or a combination thereof." RCW 13.40.160(2). "Community supervision" is defined in

part as "an individualized program comprised of. . . [rjesidential treatment, where

substance abuse, mental health, and/or co-occurring disorders have been identified in an

assessment by a qualified mental health professional." RCW 13.40.020(5)(e). If the court

"imposes a sentence of confinement exceeding thirty days, the court shall sentence the

juvenile to a maximum term." RCW 13.40.160(2). A court may suspend the execution of
                                              5
No. 96434-3



the manifest injustice disposition if imposed in conjunction with a SSODA disposition.
RCW 13.40.160(10).

      "A disposition outside the standard range is appealable under RCW 13.40.230 by
the state or the respondent." RCW 13.40.160(2). If appealed, a manifest injustice
disposition must be supported by the record, those reasons must clearly and convincingly
support a disposition outside the standard range, and the sentence imposed must not be
clearly too excessive or too lenient. RCW 13.40.230(2). RCW 13.40.230(1) provides
that appeal of a manifest injustice sentence "shall be heard solely upon the record that was
before the disposition court. No written briefs may be required, and the appeal shall be
heard within thirty days following the date of sentencing and a decision rendered within
fifteen days following the argument."

       SSODA dispositions are governed by RCW 13.40.162(3). That statute provides
that when a juvenile offender is eligible for a SSODA,a court may order an examination
to determine eligibility for treatment. RCW 13.40.162(2). If the court determines
treatment is necessary after reviewing the examination report, it shall impose either a

standard range disposition or a manifest injustice disposition, if appropriate. RCW

 13.40.162(3). The court may also "suspend the execution ofthe disposition and place the

offender on community supervision for at least two years." Id. SSODA dispositions are

not appealable under RCW 13.40.230. RCW 13.40.162(10).

       The court in J.B. and the Court of Appeals here implicitly recognize that

 T.J.S.-M.'s suspended manifest injustice disposition is appealable. The disagreement is
No. 96434-3



when a challenge to the manifest injustice disposition is ripe when it is imposed in
conjunction with a SSODA disposition. The statutes answer this question.
      RCW 13.40.230 does not distinguish between the appeal of a manifest injustice

sentence that is suspended and one that is not. Instead, RCW 13.40.230 lays out an
accelerated appellate procedure that suggests thatjuvenile defendants should be able to
immediately challenge their manifest injustice dispositions due to the truncated timetable
juvenile sentences normally face. See RCW 13.40.230(1)("the appeal shall be heard
within thirty daysfollowing the date ofsentencing and a decision rendered within fifteen
days following the argument"(emphasis added)). RCW 13.40.160(2) describes a
manifest injustice sentence as "a disposition outside the standard range," and "[a]
disposition outside the standard range is appealable." Nothing in RCW 13.40.160
suggests a manifest injustice disposition may be appealed only when a suspension is
revoked. Indeed, a "disposition outside the standard range is appealable under RCW

13.40.230 by the state or the respondent." Id.(emphasis added). There is no limiting

language here.

       Reading these statutes together, it is clear that a SSODA sentence is not appealable

under RCW 13.40.162(10). It is equally clear that a manifest injustice disposition is

appealable under RCW 13.40.230 regardless of whether the execution ofthe disposition is
suspended,       RCW 13.40.160(10).

       As mentioned, the Court of Appeals here relied on J.B., which cited RCW

 13.40.162 as support for holding that appeal of a manifest injustice disposition was not

ripe until it is imposed. But, there is a difference between the imposition and the
                                              7
No. 96434-3



execution of a disposition. J.B. conflates these two distinct terms. A trial court''may

suspend the execution ofthe disposition'' when imposing a SSODA sentence. RCW

13.40.162(3)(emphasis added). However, the manifest injustiee disposition is actually

imposed at sentencing. Id. To the extent that J.B. suggests a manifest injustice

disposition may be appealed only after the revoeation of a SSODA, we disapprove it.

        Standard ofProof in Juvenile Sentencing Hearings

        When imposing T.J.S.-M.'s manifest injustice disposition, the trial court

determined the standard range was insufficient by clear and convineing evidenee. The

trial court noted that it believed the clear and convincing evidence standard to be "just

below beyond a reasonable doubt." 2 VRP at 353. T.J.S.-M. argues this was an improper

standard to apply.

        T.J.S.-M. asserts that the clear and convincing standard is the eivil counterpart to

beyond a reasonable doubt in the juvenile eontext, relying on In re Levias, 83 Wn.2d 253,

517 P.2d 588 (1973). Suppl. Br. of Appellant/Pet'r at 6. He argues that the eourt must

find beyond a reasonable doubt that he presents a clear danger to soeiety for a manifest

injustice disposition to be upheld. Id. (citing State v. Rhodes,92 Wn.2d 755, 600 P.2d

1264 (1979)). He also cites to a long line of cases that also hold similar propositions.^

        The State argues the line of cases that T.J.S-M. relies on are no longer sound

precedent. See Suppl. Br. of Resp't at 9-10. We agree.




^ See id. at 7-8.
No. 96434-3



       The proposition that T.J.S.-M. argues for—^that the clear and convincing standard

is equivalent to beyond a reasonable doubt—^has its genesis in In re Winship, 397 U.S.

358,90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). The issue in Winship was whether

juveniles are constitutionally entitled to proof beyond a reasonable doubt when they are

charged with criminal violations. Id. at 365. The defendant was sentenced in New York

Family Court to 18 months in training school, subject to annual extensions of commitment

until his 18th birthday. Id. at 360. The trial judge had relied on a state statute that

provided "'[a]ny determination at the conclusion of[an adjudieatory] hearing that a

[juvenile] did an act or acts must be based on a preponderance of the evidence.'" Id. The

Supreme Court held that the preponderance standard was insufficient to convict a juvenile

of a crime. It reasoned that '"[gjuilt in a criminal case must be proved beyond a

reasonable doubt'" as those rules were "'developed to safeguard men from dubious and

unjust convictions, with resulting forfeitures of life, liberty and property.'" Id. at 362

(alteration in original)(quoting Brinegar v. United States, 338 U.S. 160, 174, 69 S. Ct.

1302, 93 L. Ed. 1879 (1949)). Due process "protects the accused against conviction

except upon proof beyond a reasonable doubt of every fact necessary to constitute the

crime with which he is charged." Id. at 364. Even though juvenile proceedings generally

were civil in nature and part of the purpose ofthose proceedings were for rehabilitative

purposes,"civil labels and good intentions do not themselves obviate the need for

criminal due process safeguards in juvenile courts, for'[a] proceeding where the issue is

whether the child will be found to be delinquent and subjected to the loss of his liberty for

years is comparable in seriousness to a felony prosecution.'" Id. at 365-66 (internal
                                              9
No. 96434-3



quotation marks omitted)(quoting/n re Gault, 387 U.S. 1, 36, 87 S. Ct. 1428, 18 L. Ed.

2d 527(1967)).

       We followed the Winship Court's rationale in Levias in the context of indefinite

civil commitment proceedings. The issue there was whether the State needed to prove

dangerousness for indefinite civil commitment by a preponderance of the evidence or

beyond a reasonable doubt. Levias, 83 Wn.2d at 254-55. The trial court had instructed

the jury that the standard was clear, cogent, and convincing evidence. Id. at 254.

Relying on Winship, we noted that "due process requires proof beyond a reasonable doubt

in juvenile proceedings, since the child may be 'subjected to the loss of his liberty for

years.'" Id. at 255 (quoting Winship, 397 U.S. at 366). We thus held that the clear,

cogent, and convincing evidence "constitutes the civil counterpart ofthe criminal

reasonable doubt standard." Id. at 256. As a result, that standard "exacts the duty that

every element essential to proving committable mental illness be demonstrated to a degree

essentially corresponding to that necessary for commitment in criminal proceedings." Id.

       We reaffirmed the equivalency of the two standards in Rhodes. 92 Wn.2d 755.

There, we reviewed whether the imposition of a manifest injustice disposition in a

juvenile sentence is supported by clear and convincing evidence in the trial court's

findings. To begin, we held that "[t]he promulgation of standard disposition ranges for

juvenile offenders creates a constitutionally protected . .. interest." Id. at 758. We then

reiterated that "[t]he 'clear and convincing' standard is the civil counterpart to 'beyond a

reasonable doubt'" and the "phrase 'manifest injustice' represents a demanding standard."



                                             10
No. 96434-3



Id. at 760. "[T]o stand on review, the standard range for this offense and this defendant

must present, beyond a reasonable doubt, a clear danger to society." Id.

       That same year, the Supreme Court addressed the appropriate standard of proof in

civil commitment proceedings in Addington v. Texas, 441 U.S. 418,99 S. Ct. 1804,60 L.

Ed. 2d 323 (1979). Texas determined that preponderance of the evidence was the

appropriate standard for civil commitment proceedings. Id. at 422. The Court disagreed,

stating that "there is [a] possible risk that a factfmder might decide to commit an

individual based solely on a few isolated instances of unusual conduct." Id. at 427.

"[D]ue process requires the state to justify confinement by proof more substantial than a

mere preponderance of the evidence." Id. However, it also found the reasonable doubt

standard to be equally inappropriate because unlike criminal cases,"[t]he subtleties and

nuances of psychiatric diagnosis render certainties virtually beyond reach in most

situations." Id. at 430. Having such a high standard of proof would "undercut [the

state's] efforts to further the legitimate interests of both the state and the patient that are

served by civil commitments." Id. Thus, the court concluded the appropriate standard in

civil commitment proceedings is clear and convincing evidence.

       After that decision, we revisited Tevmi'in Dimner v. McLaughlin, ICQ Wn.2d 832,

616 P.2d 444(1984). Relying on the Court's holding in Addington, we held that clear and

convincing evidence is the standard of proof in civil commitment proceedings. Id. at 843.

We noted that in Levias we may have felt bound by the holding in Winship to determine

that proof beyond a reasonable doubt was necessary in civil commitment proceedings. Id.



                                               11
No. 96434-3



at 842-43. We then overruled Levias, holding that clear, cogent, and convincing evidence

is the proper standard of proof, as a standard distinct from beyond a reasonable doubt.
         Finally, in State v. Baldwin, 150 Wn.2d 448, 78 P.3d 1005 (2003), we overruled

Rhodes's, holding that dispositional standards create a constitutionally protected liberty

interest because, in part, "[t]he guidelines are intended only to structure discretionary

decisions affecting sentences; they do not specify that a particular sentence must be

imposed. Since nothing in these guideline statutes requires a certain outcome, the statutes

create no constitutionally protectable liberty interest." Id. at 461. Since the rationale for

equating the clear and convincing standard with proof beyond a reasonable doubt was

based on the liberty interest at stake, we recognized that our holding in Rhodes could not

stand.


         Because our case law holds that no constitutionally protectable liberty interest is

created by the juvenile dispositional guidelines, due process is not offended by applying

clear and convincing evidence in this context, which is not the equivalent to the beyond a

reasonable doubt standard.^

         Manifest Injustice Disposition Was Supported bv Clear and Convincing Evidence

         Finally, T.J.S.-M. contends the imposition of his manifest injustice disposition was

not supported by the evidence. He argues that the trial court's findings that his conduct

toward victims threatened serious bodily injury and that he was a high risk to reoffend



^ At oral argument, T.J.S.-M. raised issues regarding Blakely v. Washington, 542 U.S. 296, 124 S.
Ct. 2531, 159 L. Ed. 2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348,
147 L. Ed. 2d 435 (2000). Because T.J.S.-M. did not present sufficient argument, we decline to
address whether these cases apply to juvenile sentencing.
                                               12
No. 96434-3



were aggravating factors for purposes of his manifest injustice disposition do not meet the

requisite standard of proof.

       We first note that T.J.S.-M.'s argument regarding the imposition of the manifest

injustice disposition is premised on his view that "clear and convincing" evidence equates

to "beyond a reasonable doubt." T.J.S.-M. does not argue how he prevails if we

determine that clear and convincing evidence is an intermediary standard below beyond a

reasonable doubt, and he appears to concede this point."*

                                       CONCLUSION


       Manifest injustice dispositions suspended by a SSODA are reviewable when

imposed—juveniles need not wait for the disposition to be executed before challenging it.

We reverse the Court of Appeals' ruling to the contrary. Further, we hold that the clear

and convincing standard as an intermediary standard is sufficient to support a manifest

injustice disposition and affirm the trial court's ruling.




"* During oral arguments, T.J.S.-M. was asked whether he would prevail under an intermediary
clear and convincing standard. While he did not expressly concede this point, he acknowledged,
"It's more difficult." Wash. Supreme Court oral argument. State v. T.J.S.-M., No. 96434-3
(Mar. 14, 2019), at 15 min., 36 sec. through 16 min., 10 sec., video recording by TVW,
Washington State's Public Affairs Network, https://www.tvw.org/watch/?eventID=2019031096.
                                               13
No. 96434-3




WE CONCUR:




       /d/i^




               14
State V. T.J.S.-M.,^o. 96434-3
(Yu, J., concurring)




                                     No. 96434-3


       YU, J.(concurring) — I agree with the majority that we should address the

merits of this moot case, that a suspended manifest injustice disposition is ripe for

review at the time it is imposed, that the required evidentiary standard is clear and

convincing evidence, and that the evidence clearly and convincingly supported a

manifest injustice disposition in this case. However, I cannot agree with the

majority's broad and unnecessary assertion that a juvenile facing a manifest

injustice disposition has "no constitutionally protectable liberty interest" at stake.

Majority at 12. I therefore respectfully concur.

       Determining the required evidentiary standard for imposing a manifest

injustice disposition should be a simple task. By statute, a "court's finding of

manifest injustice shall be supported by clear and convincing evidence." RCW

13.40.160(2). Likewise, appellate courts must determine on review whether a trial

court's "reasons clearly and convincingly support the conclusion that a disposition

within the [standard] range would constitute a manifest injustice." RCW
State V.           No. 96434-3
(Yu, J., concurring)

13.40.230(2)(a). "Clear and convincing evidence" "is a quantum of proof that is

more than a preponderance of the evidence, but less than what is needed to

establish proof beyond a reasonable doubt." In re Estate ofBarnes, 185 Wn.2d 1,

10 n.5, 367 P.3d 580(2016)(quoting                   v. Mentor, 63 Wn.2d 150, 154, 385

P.2d 727(1963)). The statutory language thus could not be clearer: a manifest

injustice disposition must be supported by clear and convincing evidence, not by

proof beyond a reasonable doubt.

        Nevertheless, State v. Rhodes held that "in order to stand on review, the

standard range for this offense and this defendant must present, beyond a

reasonable doubt, a clear danger to society." 92 Wn.2d 755, 760, 600 P.2d 1264

(1979)(emphasis added). Rhodes took the view that in the juvenile context(based
on a questionable analogy to the civil commitment context),"clear and

convincing" and "beyond a reasonable doubt" actually mean the same thing. Id.

The "legal underpinnings" oiRhodes's view have "disappeared," and it should

now be disavowed.' W.G. Clark Constr. Co. v. Pac. Nw. Reg'I Council of
Carpenters, 180 Wn.2d 54, 66, 322 P.3d 1207(2014).


       'State V. Baldwin, 150 Wn.2d 448,459, 78 P.3d 1005 (2003), overruled Rhodes only on
the specific issue of whether "juvenile dispositional standards were subject to due process
protections against arbitrary enforcement, such as vagueness challenges." Baldwin did not hold
that a juvenile facing a manifest injustice disposition has no constitutionally protected liberty
interest at stake. Contra majority at 12. To the contrary, in this case, T.J.S.-M.'s manifest
injustice disposition included a total deprivation of physical liberty in the form of a 36-week
State V. T.JS.-M., No. 96434-3
(Yu, J., concurring)

        Rhodes equated "clear and convincing" with "beyond a reasonable doubt"

based on ha re Levias, 83 Wn.2d 253, 517 P.2d 588 (1973), and State v. McCarter,

91 Wn.2d 249, 588 P.2d 745 (1978). Those cases held that due process requires

proof beyond a reasonable doubt in civil commitment proceedings and therefore

assumed that when the legislature requires proof by clear, cogent, and convincing

evidence for civil commitment, it actually intends to require proof beyond a

reasonable doubt. McCarter, 91 Wn.2d at 257; Levias, 83 Wn.2d at 256 & n.2.

Again, the analogy between juvenile disposition proceedings and civil commitment

proceedings is questionable, but in any event, Levias and McCarter have been

definitively overruled. Dunner v. McLaughlin, 100 Wn.2d 832, 843, 676 P.2d 444

(1984). Both the federal and state constitutions require only "proof by clear,

cogent and convincing evidence," not proof beyond a reasonable doubt. Ld. (citing

Addington v. Texas, 441 U.S. 418, 99 S. Ct. 1804,60 L. Ed. 2d 323 (1979)).

       Rhodes thus based its holding on legal foundations that no longer exist. I

would disavow Rhodes and "assume that the legislature meant precisely what it

said and apply the statute as written." State v. Roggenkamp, 153 Wn.2d 614, 625,

106 P.3d 196 (2005). The statutes as written require proof by clear and convincing


commitment to the Juvenile Rehabilitation Administration. Clerk's Papers at 83. Physical
liberty is a constitutionally protected interest pursuant to the due process clause itself. See In re
Gault, 387 U.S. 1, 41, 87 S. Ct. 1428, 18 L. Ed. 2d 527(1967). It does not need to be "created"
by statute. Majority at 12.
State V.                96434-3
(Yu, J., concurring)

evidence, which, as the trial court coiTcctly noted, is "just below beyond a

reasonable doubt."^ 2 Verbatim Report ofProceedings (Jan. 25, 2017) at 353.

           I respectfully concur.




       ^ To the extent that T.J.S.-M. contends the statutory "clear and convincing" standard is
unconstitutional in light of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d
403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000), 1 agree that this issue was not sufficiently argued. Majority at 12 n.3.
State V. r.J.S'.-M, No. 96434-3
(Yu, J., concurring)
State V. T.J.S.-M.




                                           No. 96434-3


        Gonzalez, J.(dissenting)—T.J.S.-M. challenges his suspended manifest

injustice disposition. During the pendency of this appeal, T.J.S.-M. violated his

special sex offender disposition alternative(SSODA)conditions. Consequently,

his SSODA and suspended disposition were revoked, rendering this case moot.

Because the majority bypasses the issue of mootness and unnecessarily analyzes In

re Winship,^ I respectfully dissent.

       "A case is moot if a court can no longer provide effective relief." Orwick v.

City ofSeattle, 103 Wn.2d 249, 253, 692 P.2d 793 (1984)(citing State v. Turner,

98 Wn.2d 731, 733, 658 P.2d 658 (1983)). "It is a general rule that, where only

moot questions or abstract propositions are involved,. . . the appeal . . . should be

dismissed." Sorenson v. City ofBellingham, 80 Wn.2d 547, 558, 496 P.2d 512

(1972). A recognized exception to this general rule lies within the court's

discretion when "matters of continuing and substantial public interest are




 397 U.S. 358, 362, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970).
State V. r.J.S'.-M, No. 96434-3 (Gonzalez, J., dissenting)


involved." Id. {oiimg State ex rel. Yakima Amusement Co. v. Yakima County, 192

Wash. 179, 73 P.2d 759(1937), overruled on other grounds by Schneidmiller &

Faires v. Farr, 56 Wn.2d 891, 355 P.2d 824 (I960)). Both parties concede this

case is moot because T.J.S.-M. served his sentence and we cannot provide relief

for him on appeal. At oral argument, T.J.S.-M.'s counsel stated that he does not

see any potential consequences because this case "was just an appeal of his

sentence, it wasn't an appeal of the sufficiency of evidence," and because

"[T.J.S.-M.] was subsequently revoked based on a subsequent. . . adult sex

offense." Wash. Supreme Court oral argument. State v. T.J.S.-M., No. 96434-3

(Mar. 14, 2019), at 1 min., 15 sec. through 2 min., 17 sec., video recording

by TVW, Washington State's Public Affairs Network,

http://www.tvw.org/watch/?eventID=2019031096.

       A manifest injustice sentence is analogous to an exceptional sentence and

thus involves many of the same constitutional concerns as Apprendi and Blakely.

Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000);

Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

Both of these United States Supreme Court cases held that other than the fact of a

prior conviction, any fact that increases penalty for crime beyond the prescribed

statutory maximum must be submitted to jury and proved beyond reasonable

doubt. Apprendi, 530 U.S. at 477; see also Blakely, 542 U.S. at 301. The majority
State V. T.J.S.-M.,^o. 96434-3 (Gonzalez, J., dissenting)


appropriately declines to address whether Apprendi and Blakely apply in the

juvenile sentencing context because TJ.S.-M. did not present sufficient argument

on the issue. Majority at 12 n.3. Had T.J.S.-M. properly presented the argument, it

may well be that we would conclude Apprendi and Blakely require proof beyond a

reasonable doubt in the juvenile sentencing context. But without that discussion,

this case does not concern a matter of continuing and substantial public interest.

Thus, we should decline to consider whether due process was offended when the

trial court applied the clear and convincing standard.

         The majority analyzes the clear and convincing standard in terms ofIn re

Winship, 397 U.S. 358, 362, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). In Winship,

the United States Supreme Court held the preponderance of the evidence standard

was insufficient to convict a juvenile of a crime, reasoning that '"[gjuilt in a

criminal case must be proved beyond a reasonable doubt'" as those rules were

'"developed to safeguard men from dubious and unjust convictions, with resulting

forfeitures of life, liberty and property.'" 397 U.S. at 362 (alteration in original)

{quoting Brinegar V. United States, 338 U.S. 160, 174, 69 S. Ct. 1302, 93 L. Ed.

1879 (1949)); see also State v. Watkins, 191 Wn.2d 530, 537, 423 P.3d 830(2018)

("Juveniles charged with crimes have a right to procedural due process." (citing In

re Gault, 387 U.S. 1, 30-31, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967))). The

majority's only purpose is to arrive at the same standard of proof currently in
State V. T.JS.-M., No. 96434-3 (Gonzalez, J., dissenting)


place, clear and convincing evidence. While I recognize the majority does not

unsettle the standard of proof applied in this context, I fear its analysis will cause

confusion because it considers some, but not all, subsequent applications of

Winship. See, e.g., majority at 10-11 (discussing Winship's application in the civil

commitment context (citing In re Levias, 83 Wn.2d 253, 254-255, 517 P.2d 588

(1973), overruled by Dunner v. McLaughlin, 100 Wn.2d 832, 676 P.2d 444

(1984))).


       This is particularly true because Apprendi stems from Winship. 530 U.S. at

484("As we made clear in Winship, the 'reasonable doubt' requirement 'has [a]

vital role in our criminal procedure for cogent reasons.'" (alteration in original)

(quoting Winship, 397 U.S. at 363)). While in a future case we should address the

appropriate standard of proof in the juvenile context, a discussion of Winship in

this case will be misleading and not useful for future cases.


       1 respectfully dissent.
State V. T.J.S.-M., No. 96434-3 (Gonzalez, J., dissenting)
