IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                    DIVISION ONE                       c-)
                                                 ,-- - ,
                                                                              c.---,
THE STATE OF WASHINGTON,                        )
                                                       No. 76258-3-1          , -.., 1.,..._
                                                )
                        Respondent,             )
                                                       DIVISION ONE                   awl
                                                                                      -- -7.
                                                )                         •;,
      v.                                        )                         --
                                                )      UNPUBLISHED OPINION -:
BREAUNA O. JONES,                                                           (.11
                                                )                             al
                                                )
                        Appellant.              )     FILED: January 22, 2018
                                                )
      APPELWICK, J. — Jones challenges the manifest injustice disposition

imposed by the juvenile court following her guilty plea to two counts of theft in

the third degree. The record supports the manifest injustice disposition and

length of the disposition. We affirm.

                                        FACTS

      On November 15, 2016, at age 17, Breauna Jones pleaded guilty to two

counts of theft in the third degree. The underlying charges were based on two

shoplifting incidents that took place at Safeway stores in 2016. After accepting

her plea, the court set over the disposition for one day in order to consider a

recommendation from Jones's juvenile probation counselor (JPC). Jones was

previously declared dependent under RCW 13.34.030(6) and when the court

released her pending disposition, it imposed conditions of release, including the

requirements that she abide by curfew and reside in the placement approved
No. 76258-3-1/2

However, by the next day, Jones had absconded from the Department's

approved placement.      The court issued a warrant and law enforcement

detained Jones a couple of weeks later.

      The State had initially agreed to recommend a standard range

disposition of local sanctions, consisting of 6 months of community supervision.

However, at the disposition hearing on December 13, 2016, the State argued

that it was not bound to recommend that disposition, because Jones violated

conditions of her release. The State sought a manifest injustice disposition of

27 to 36 weeks of secure detention at a Juvenile Rehabilitation Administration

(JRA) facility. The State's recommendation was based on Jones's "inability to

comply with community supervision terms,[and] her rather extreme needs that

have been untreated so far and cannot be treated in the community."

      The JPC recommended a 52 week term of detention at a JRA facility.

The JPC submitted a report to the court supporting its recommendation. The

JPC's report detailed Jones's personal and criminal history and her need for

treatment and intervention. The attachments to this report included numerous

court records, Department records, results of a 2015 global appraisal of

individual needs (GAIN) assessment, a 2015 mental health assessment, and

records related to her education and her 2015 admission to a drug treatment

program.

       Jones's counsel advocated for local sanctions of 12 months of

supervision, and 60 days of detention with a pass for inpatient substance abuse
No. 76258-3-1/3

treatment.   The defense pointed out that Jones's offenses were low-level

property crimes and that her conduct neither caused nor threatened serious

bodily injury. See RCW 13.40.150(h)(i) (mitigating factor). Jones's counsel

primarily    argued   that   incarcerating   juveniles   was     harmful    and

counterproductive.

      The juvenile court imposed a manifest injustice disposition, entered

findings of fact, and adopted the JPC's recitations in the probation report

regarding Jones's "family situation, educational situation, mental and physical

health issues, drug and alcohol issues, and performance while previously on

supervision and on conditions of release." The court found that Jones had 11

prior convictions, and in the span of 2 years, she had 19 warrants for violating

probation or conditions of supervision and 18 warrants resulting from running

away from prior placements. The court also found that Jones failed to appear

for mandatory court hearings resulting in bench warrants on 12 occasions in the

same 2 year span. This behavior made it "impossible" to provide Jones with the

services she needed in the community. Based on court records, the court also

found that Jones committed other criminal offenses that were uncharged, that

additional charges were dismissed through negotiations, and that she continued

to reoffend while cases were pending.

       The court determined that Jones had a "substantial" need for substance

abuse treatment, noting that she did not dispute her need for treatment, but

argued that she could successfully complete that treatment in the community.



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No. 76258-3-1/4

The court found that the standard range of local sanctions would not allow

sufficient time for Jones to complete the services she needed and that she

would not engage in those services outside of confinement.

       The court imposed a manifest injustice disposition of 42 to 52 weeks of

confinement at a JRA facility on the following bases:

              The respondent's significant substance abuse and welfare
       needs will require more treatment and counseling than can be
       accomplished with local sanctions. This is a basis to depart from
       the standard range.

              The respondent has significant criminal history, some of
       which is of a similar nature to this offense, and has continuing,
       uncharged and dismissed criminal conduct. The respondent
       continued to offend while cases were pending. The respondent
       also failed to comply with court orders. In light of these reasons,
       the standard range is too lenient.

       The court also stated that "[Other one of these conclusions regarding

aggravating circumstances is a substantial and compelling reason, standing

alone, sufficient to justify the length of the disposition imposed."

       Jones appeals.

                                   DISCUSSION

       A juvenile court may depart from a standard range disposition only if it

concludes, and enters reasons for its conclusion, that a standard range

disposition would effectuate a manifest injustice. RCW 13.40.160(2); State v.

Tai N., 127 Wn. App. 733, 741, 113 P.3d 19(2005); State v. J.N., 64 Wn. App.

112, 113-14, 823 P.2d 1128 (1992). A "manifest injustice" results if a standard

range disposition "would impose a serious, and clear danger to society in light




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No. 76258-3-1/5

of the purposes" of the Juvenile Justice Act of 1977 (JJA), chapter 13.40 RCW.

RCW 13.40.020(19). These purposes include protecting citizens from criminal

behavior, making the juvenile offender accountable for her behavior, providing

rehabilitation and reintegration of juvenile offenders, and providing necessary

treatment for juvenile offenders. RCW 13.40.010(2)(a), (c), (f), (g); State v.

K.E., 97 Wn. App. 273, 279, 982 P.2d 1212 (1999). 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).

  I.   Detention of Juveniles

       Jones contends that, as a matter of policy, incarcerating juveniles for

minor offenses is contrary to the purposes of the JJA. She relies on a series of

United States Supreme Court cases including Roper v. Simmons, 543 U.S. 551,

568, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005); Graham v. Florida, 560 U.S. 48,

76, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010); and Miller v. Alabama, 567 U.S.

460, 132 S. Ct. 2455, 183 L. Ed. 2d 407(2012). She also relies on a number of

statistical studies and scholarly articles calling into question the effectiveness of

incarcerating youthful offenders.

       Roper, Graham, and Miller involve the application of the Eighth

Amendment to the sentencing of juveniles as adults in the context of the death

penalty or life without parole sentences. These cases provide no support for



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No. 76258-3-1/6
the position that the detention of juveniles for any duration is unconstitutional or

otherwise impermissible. As the State points out, the purposes of the JJA

include the facilitation of treatment and accountability and secure detention is

one of the endorsed means toward achieving those ends. RCW 13.40.0357.

The ability of courts in juvenile proceedings to deviate from the recommended

standard range is not limited to particular crimes; juvenile courts have the

discretion to impose manifest injustice dispositions in any type of case in

recognition of the myriad of factors that may be relevant to the purposes of the

act.   As here, where the legislature has weighed the competing policy

considerations, we decline to substitute our judgment for its determination.

 II.   Aggravating Factors

       Jones next contends that the record does not support the court's reasons

for imposing a manifest injustice disposition. She claims that while the trial

court imposed detention primarily to provide access to treatment, its

determination that she would not be successful in community-based treatment

was unfounded. According to Jones, she was previously unable to engage in

treatment only because the Department did               not provide appropriate

"placements that addressed her underlying trauma."              Furthermore, she

contends that the nature of her criminal history did not warrant a manifest

injustice disposition, because her convictions involved minor offenses and she

had no prior felony convictions.




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No. 76258-3-1/7
       RCW 13.40.150(3)(h) provides a list of aggravating factors which the

juvenile court should consider to determine whether a manifest justice

disposition is justified.   Our courts have also consistently approved the

consideration of nonstatutory factors. See, e.g., State v. T.E.H., 91 Wn. App.

908, 917-18, 960 P.2d 441 (1998) (high risk that a juvenile will reoffend is a

valid ground for a manifest injustice disposition); State v. S.H., 75 Wn. App. 1,

11-12, 877 P.2d 205 (1994)(high risk to reoffend and the need for treatment

are valid grounds for a manifest injustice disposition), abrogated on other

grounds by State v. Sledge, 83 Wn. App. 639, 922 P.2d 832 (1996). Juvenile

courts may consider both statutory and nonstatutory factors. State v. J.V., 132

Wn. App. 533, 540-41, 132 P.3d 1116 (2006). In reviewing a manifest injustice

disposition, the appellate court determines whether (1) the record supports the

reasons given by the juvenile court to depart from the standard range,(2)those

reasons clearly and convincingly support the manifest injustice disposition, and

(3) the disposition imposed is neither clearly excessive nor too lenient. RCW

13.40.230(2); State v. Moro, 117 Wn. App. 913, 918-19, 73 P.3d 1029 (2003);

State v. Tai N., 127 Wn. App. at 743.

       The record here amply supports the juvenile court's determination that

Jones was in need of treatment and was not amenable to community-based

treatment. Jones does not dispute that she has untreated substance abuse and

mental health issues. And, as explained, responding to a need for treatment is

an appropriate basis for a manifest injustice disposition. State v. Duncan, 90



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No. 76258-3-1/8

Wn. App. 808, 812, 960 P.2d 941 (1998); S.H., 75 Wn. App. at 12; J.N., 64 Wn.

App. at 114-15.

      Jones had an extensive record of noncompliance with conditions of

supervised release and behavior that made it impossible for the Department to

provide community-based treatment.          She was admitted to an inpatient

treatment program in 2015, but refused to participate and left the facility after

two days. According to the record, on every occasion that she was released

from detention, Jones immediately ran away to live a transient lifestyle and

refused to live in any placement approved by the Department. Unless Jones

was in detention, her whereabouts were generally unknown and the

Department was unable to provide any services to her.            Jones's counsel

acknowledged that it was not a matter of the appropriateness of any particular

placement. Rather, Jones simply "doesn't like being around people," would not

voluntarily stay in any placement arranged by the Department, and will only stay

where she chooses.

       The seriousness of the juvenile's current offenses need not be a

determinative factor. In State v. Taylor, 42 Wn. App. 74, 75, 709 P.2d 1207

(1985), the juvenile was convicted of a property crime and faced a standard

range disposition of 30 days detention, but received a sentence of 65 weeks of

confinement. According to the court, the juvenile had

       a recent criminal history[;] he has a record of delinquency and
       incorrigibility; . . . he was on parole when he committed the instant
       offenses [second degree criminal trespass and vehicle prowling]
       and has violated conditions of parole and rules set by various


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No. 76258-3-1/9
      authority figures, including parents, schools, courts; . . . he has
      received leniency and other treatment and has not been receptive;
      he has not been made accountable for his actions; he has no
      regard for the property or safety of others; he has a drug and
      alcohol problem; he needs the structure, intensive treatment,
      training and supervision that only an institution can provide.
Id. at 77.

        These facts were sufficient to support the manifest injustice disposition

and a term of 65 weeks was not "clearly excessive." Id. at 77-78. Likewise

here, in addition to Jones's need for treatment, she had a substantial history of

repeated criminal conduct and noncompliance with court orders and conditions

of supervision. The juvenile court judge, who was well acquainted with Jones

and her history, reasonably found that further local sanctions would be futile.

        Jones's need for treatment in a secure a stable environment,

independently justified a manifest injustice disposition. This court may affirm a

manifest injustice disposition as long as one of the factors supported by the

record clearly and convincingly supports the disposition and the court can

determine that the juvenile court would have entered the same disposition

based on that valid aggravating factor.- K.E., 97 Wn. App. at 284; S.H. 75 Wn.

App. at 12; see State v. N.E., 70 Wn. App. 602, 607, 854 P.2d 672 (1993). In

this case, the court made an explicit finding that it would have imposed the

same disposition based on either one of the aggravating factors.

 III.   Impermissible Factors

        Jones claims that the court erred by relying on uncharged criminal

conduct, considering her economic and dependent status, and committing her
No. 76258-3-1/10
to a JRA facility simply to provide a "housing option."                 See RCW

13.40.150(4)(e) (court may not consider dependency status in considering

punishment); RCW 13.40.150(5)(a court may not commit a juvenile to a state

institution solely because of a lack of facilities in the community).

       The trial court found that according to court records, Jones committed

other criminal offenses that were either uncharged or dismissed in accordance

with global negotiations that did not affect her offender score.           RCW

13.40.150(1) mandates that a juvenile court consider the State's argument, all

predisposition reports, and "all relevant and material evidence." Nothing in the

statute prohibits consideration of criminal acts, including dismissed charges and

police contacts, that do not result in adjudications. See State v. Strong, 23 Wn.

App. 789, 791-92, 599 P.2d 20 (1979).

       There is nothing in the record to suggest that the juvenile court imposed

a manifest injustice disposition because of Jones's dependent status or

economic circumstances. Instead, the court found that Jones lacked stability in

the community and was not compliant with the Department's placements. The

record, including statements of Jones's family members, caseworkers, and

Jones herself, supports the court's finding. And, the finding, in turn, supports

the court's determination that Jones would not be amenable to treatment

outside of a secure and structured environment.

       In addition, the record does not indicate that the court imposed detention

because of a lack of treatment facilities or placement options in the community.



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No. 76258-3-1/1 1

Jones claims that the court characterized JRA detention as a "housing option."

But, in fact, she quotes the prosecutor's statement, who was making the point

that JRA detention would primarily serve the purpose of providing access to

needed treatment and services before Jones turned 18.

IV.   Length of Disposition

      Jones contends that her disposition is clearly excessive in comparison

with the average adult sentence for a property offense. She also maintains that

only a small percentage of juveniles are detained for the commission of low-

level offenses and points out that the prosecutor recommended a shorter term

of detention than the court imposed. Even if a manifest injustice disposition

was appropriate, Jones argues that the disposition was beyond what was

required to meet her treatment needs and was therefore, clearly excessive.

      A manifest injustice disposition is excessive when the disposition cannot

be justified by any reasonable view taken from the record. State v. E.J.H., 65

Wn. App. 771, 776, 830 P.2d 375 (1992). Once a manifest injustice disposition

is legally supported, the court reviews the length of disposition imposed for

manifest abuse of discretion. State v. M.L., 134 Wn.2d 657, 660, 952 P.2d 187

(1998).

      At the disposition hearing, the State explained that that the drug and

alcohol program available at a JRA facility generally requires 10 weeks. But,

youth who have been "historically resistant" to treatment often must repeat the

program. The State further explained that mental health programs generally



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No. 76258-3-1/12

run sequentially to the drug and alcohol programs. The JCP's recommendation

was based on estimates that Jones would require 24 weeks of substance abuse

treatment and support, 24 weeks of mental health treatment, and 24 weeks of

academic and vocational intervention. The manifest injustice disposition of 42-

52 weeks was neither clearly excessive nor unsubstantiated in light of these

estimates.

 V.    Breach of Plea Agreement

       Jones claims that, because the State failed to present evidence and

prove that she violated the terms of the plea agreement, the State was required

to adhere to its agreement to recommend probation.

      "Due process requires a prosecutor to adhere to the terms of the [plea]

agreement." State v. Sledge, 133 Wn.2d 828, 839, 947 P.2d 1199 (1997). "The

State fulfills its obligations if it acts in good faith and does not contravene the

defendant's reasonable expectations that arise from the agreement." State v.

Mclnallv, 125 Wn. App. 854, 861-62, 106 P.3d 794 (2005). A defendant who

fails to comply with the terms of a plea agreement, loses the right to enforce it.

Id. at 867.

       If there is a genuine factual dispute as to whether the agreement was

breached, remand for an evidentiary hearing is required. In re Pers. Restraint

of James, 96 Wn.2d 847, 850,640 P.2d 18 (1982). But, if no question exists as

to breach, we need not order an evidentiary hearing. See State v. Hall, 32 Wn.




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No. 76258-3-1/13

App. 108, 110, 645 P.2d 1143 (1982) (where defendant did not object to

sentence and admitted breach, remand was not necessary).

      The agreement between Jones and the State allowed the State to

increase its recommendation if she violated conditions of release. This is

exactly what happened. There was no dispute that Jones did not remain in her

approved placement, which was a condition of her release pending disposition.

The defense did not request an evidentiary hearing in its briefing or at the

hearing. Jones's counsel merely pointed out that she did not commit any new

crimes while released, which, from her perspective, was the most important

condition of release. In these circumstances, there is no need to remand for an

evidentiary hearing. Jones conceded that she did not stay in her approved

placement and based on the terms of the plea agreement, the State had the

discretion to increase the sentencing recommendation.

VI.   Statement of Additional Grounds

       In a statement of additional grounds, Jones argues that she "should have

[her] time dropped" because she was not prosecuted for another charge, a

violent offense involving a firearm. While not entirely clear, she appears to refer

to burglary and robbery offenses stemming from an incident that occurred

around the same time as the current offenses. When the JPC created his

report, these offenses had been referred to the prosecuting attorney's office.




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No. 76258-3-1/14

       The fact that a more serious charge was apparently dismissed does not

support any of the statutory mitigating factors. If anything, this fact weighs in

favor of, not against, the manifest injustice disposition imposed by the court.

       Jones also reiterates counsel's argument that the court imposed

detention due to a lack of placement options in the community. However, as

explained, the court's disposition was based on its assessment of Jones's

significant treatment needs and its determination that those needs could only be

addressed by a period of confinement in a JRA facility.

       We affirm.




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