State v. ZieglerState v. Ziegler
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- Before:
- Alexander
The State of Washington appeals a judgment of the Lewis County Superior Court in which that court suspended a 27-month sentence it had imposed on Rhonda Ziegler for the crime of second degree rape of a child. The State contends that the sentencing court was without authority to suspend the sentence because Ziegler was not sexually deviant. We affirm.
Rhonda Ziegler was charged in Lewis County Superior Court with second degree rape of a child.
On August 31, 1989, the trial court sentenced Ziegler to 27 months in jail but it suspended the sentence pursuant to the provisions of
In entering its order, the sentencing court concluded that Ziegler had no prior criminal convictions, was amenable to treatment and that the community and Ziegler would "benefit from a sentence under
The State appealed the judgment, arguing that the sexual offender sentencing alternative should not have been utilized by the sentencing court because Ziegler was not a sexual deviant. It contended then, as it does now, that only persons who are "amenable to treatment" for sexual deviancy may benefit from a suspended sentence as an alternative to total confinement.
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The applicable statute is
When an offender is convicted of a sex offense other than a violation ofRCW 9A.44.040 orRCW 9A.44.050 and has no prior convictions for a sex offense or any other felony sexual offenses in this or any other state, the sentencing court, on its own motion or the motion of the state or the defendant, may order an examination to determine whether the defendant is amenable to treatment.
After receipt of the reports, the court shall then determine whether the offender and the community will benefit from use of this special sexual offender sentencing alternative. If the court determines that both the offender and the community will benefit from use of this provision, the court shall then impose a sentence within the sentence range and, if this sentence is less than six years of confinement, the court may suspend the execution of the sentence and place the offender on community supervision for up to two years. As a condition of the suspended sentence, the court may impose other sentence conditions including up to six months of confinement, not to exceed the sentence range of confinement for that offense, crime-related prohibitions, and requirements that the offender perform any one or more of the following:
(i) Devote time to a specific employment or occupation;
(ii) Undergo available outpatient sex offender treatment for up to two years, or inpatient sex offender treatment not to exceed the standard range of confinement for that offense. A community mental health center may not be used for such treatment unless it has an appropriate program designed for sex offender treatment;
(iii) Remain within prescribed geographical boundaries and notify the court or the community corrections officer prior to any change in the offender's address or employment;
(iv) Report as directed to the court and a community corrections officer;
(v) Pay a fine, accomplish some community service work, or any combination thereof; or
(vi) Make recoupment to the victim for the cost of any counseling required as a result of the offender's crime.
If the offender violates these sentence conditions the court may revoke the suspension and order execution of the sentence. All confinement time served during the period of community supervision shall be credited to the offender if the suspended sentence is revoked.
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In our opinion, the State's understanding of the meaning of the statute is not borne out by its plain language.
It is clear to us that Ziegler facially meets the criteria for the sentencing alternative that is provided for in
There is simply no statutory requirement that a defendant be found to be a sexual deviant before he or she may be given a suspended sentence under the sexual offender sentencing alternative. The State's argument that it is sensible to treat only sexual deviants may be a good policy argument, but the statute simply is not that limited. Indeed, treatment is not even mandatory under the statute. Treatment is merely listed as a condition of a suspended sentence which the sentencing court "may impose."
Even assuming, however, that sexual deviancy must be shown before the sexual offender sentencing alternative may be utilized, one could argue that Ziegler is a sexual deviant. As noted above, the term is not defined in the statute. Although the therapist, Ms. Hoy, reported that Ziegler did not reveal sexual deviancy during her examination, she did indicate that Ziegler currently had inappropriate thoughts and actions. Based on the facts surrounding the conviction and the therapist's description of Ziegler's *534 problems, the sentencing judge might well have concluded that Ziegler is sexually deviant. Ziegler clearly is a sexual offender and her behavior certainly deviated from the norm. It is, however, unnecessary for us to deal with that issue, which involves semantics more than law. The statute is unambiguous and it does not require a showing of sexual deviancy before the sentencing alternative can be imposed.
In the final analysis, whether to employ the sexual offender sentencing alternative is a discretionary decision to be made by the trial court.
State v. Hays,
Affirmed.
Petrich, A.C.J., and Morgan, J., concur.
Review denied at
Notes
Ziegler's boyfriend was also charged with second degree rape. The charge was reduced to third degree rape and he pleaded guilty. He was sentenced to serve 8 months in the county jail.
Although the parties did not address the question of the State's right to appeal the sentence, we feel constrained to point out that the State can only appeal a sentence outside the standard range.
Ziegler had been interviewed by Trudy Hoy, a counselor, before sentencing and the court had reviewed a copy of her report prior to the sentencing hearing.