STATE v. DALLUGE

UNPUBLISHED OPINION

KULIK, J.

In 1998, Amel Dalluge, age 17, was tried and convicted as an adult of two counts of third degree rape. On appeal, this court affirmed the convictions. In a personal restraint petition, Mr. Dalluge argued that the adult court lacked jurisdiction and that his appellate counsel was ineffective for failing to raise this challenge. The Supreme Court agreed, and remanded for a retroactive declination hearing. In re Pers. Restraint of Dalluge, 152 Wn.2d 772, 789-90, 100 P.3d 279 (2004). On remand, the superior court determined that seven of the eight Kent factors weighed in favor of declination. In his second appeal to this court, Mr. Dalluge asserts the court abused its discretion by failing to give proper consideration to four of the Kent factors. We disagree and affirm.

Kent v. United States, 383 U.S. 541, 566-67, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966).

FACTS

On August 21, 1997, 15-year-old H.B. attended an unsupervised party hosted by a high school classmate. Amel Dalluge, Tom Anstrom, and Martin Alvarez were also at the party. Mr. Dalluge and Mr. Alvarez knew H.B. Everyone at the party drank alcohol and smoked marijuana. Mr. Alvarez observed H.B. smoke marijuana and drink four or five shots of tequila and maybe two beers.

At some point, Mr. Alvarez noticed H.B. lying on the floor with bloodshot eyes and heaving as if she were going to vomit. He observed H.B. attempt, and fail, to stand up. H.B. was carried around the house by various young men. Eventually, H.B.'s clothes were torn and removed and her rear was slapped. Her underwear was pulled down to expose her vagina to a 10-year-old boy. Later, H.B.'s head fell against a dresser. During this time, H.B. was not able to stand or speak. She testified that, although she could hear everything, she could not do anything and felt helpless.

About 10:30 pm, the party host announced that he wanted H.B. out of the house. Mr. Anstrom and Mr. Alvarez dressed H.B. in another girl's shorts and carried her to Mr. Dalluge's car. Once in the car, Mr. Alvarez stated that he wanted to "take advantage of the situation" and have sex with H.B. Ex. 1, B at 229. Mr. Alvarez said that he did not know of a place to go. Mr. Dalluge responded that he knew of a place. H.B. heard Mr. Dalluge talk about taking her out to the country. She began to cry, but did not say anything because she was drunk and scared. H.B. vomited out the window.

Mr. Dalluge stopped the car on a gravel road surrounded by fields and darkness. Mr. Anstrom pulled H.B. from the car and led her to the trunk. H.B. was unable to walk on her own. She was propped against the trunk, falling face down on the car. Mr. Dalluge removed her shorts. After Mr. Alvarez tried unsuccessfully to penetrate H.B. from behind, all three young men placed her on her back on the gravel road.

Mr. Alvarez began vaginally raping H.B. She moaned and started to scream, but could not speak because Mr. Anstrom had his penis in her mouth. H.B. testified that she bit Mr. Anstrom. Mr. Anstrom then replaced Mr. Alvarez and began to vaginally rape H.B. While he was raping her, he asked Mr. Dalluge to assist him by raising H.B.'s leg. Mr. Dalluge lifted H.B.'s leg by the ankle to assist Mr. Anstrom. Mr. Dalluge then took Mr. Anstrom's place and vaginally raped H.B. Mr. Dalluge asked Mr. Anstrom if they should rape her again for a longer time. Mr. Alvarez said that they should leave. During the assault, H.B. did not move or speak, except to bite Mr. Anstrom's penis.

The three young men fastened H.B.'s shorts. She needed help to walk to, and enter, the car. The men dropped H.B. off at her street corner.

When H.B. arrived home, she had twigs and dirt in her hair and torn clothing. She was covered with bruises and scrapes, and she had scratches on her legs, hands, and arms. There was a large bruise on her hip and a bruise on her back. Gravel was embedded in the skin of her back and buttocks. H.B. was barefoot and wearing someone else's shorts and no underwear. She curled up in a ball and cried. H.B. was taken to a hospital. Medical professionals found abrasions to the small of the back, abrasions to the area between the anus and the vagina, and a skin tear on the opening of the vagina. H.B. smelled of alcohol one and one-half hours after the assault.

Procedural History. Mr. Dalluge was charged by amended information with one count of second degree rape or, in the alternative, with one count of third degree rape as a principal and one count of third degree rape by complicity. Mr. Dalluge was convicted, by a jury in adult criminal court, of two counts of third degree rape. Mr. Dalluge appealed his convictions and the State appealed his sentence. State v. Dalluge, noted at 98 Wn. App. 1016, 1999 WL 1079190, at *1. The Court of Appeals affirmed the convictions, but remanded for resentencing. Id.

In a personal restraint petition, Mr. Dalluge argued that his trial and appellate counsel were ineffective because they failed to challenge the jurisdiction of the adult court. Dalluge, 152 Wn.2d at 775. The Court of Appeals dismissed the petition. Id. at 777. The Supreme Court granted discretionary review. The court concluded that the adult court lacked jurisdiction and that Mr. Dalluge received ineffective assistance of appellate counsel. Id. at 788-89. The court remanded to superior court for a Dillenburg hearing to determine whether the juvenile court would have declined jurisdiction. Id. at 786-87. If the declination was found to be appropriate, the convictions would stand, but if not, Mr. Dalluge would receive a new trial. Id. at 787.

Dillenburg v. Maxwell, 70 Wn.2d 331, 355, 422 P.2d 783 (1967) (court must hold a retroactive declination hearing when a juvenile is tried in adult court without a declination hearing).

Dillenburg Hearing. Following the Supreme Court's decision, the court held a hearing to determine whether juvenile court jurisdiction over Mr. Dalluge's rape charges would have been declined. The court heard testimony from several witnesses.

Mr. Dalluge's parents divorced when he was 13 years old. Nine months later, in early 1994, he moved out of his mother's house to live with his father. In 1996, Mr. Dalluge's father sent him to live with his sisters in Ellensburg. The father provided $1,500 to support Mr. Dalluge and his sisters. Mr. Dalluge lived with friends for a period in 1996.

In August 1996, Mr. Dalluge committed three acts of second degree vehicle prowling, two acts of theft (second and third degree), and one act of third degree malicious mischief. He served 10 days' detention and his probation period ran from July 25, 1997, to November 25, 1997. As part of his probation, the court ordered Mr. Dalluge to live with his sisters in Ellensburg. Mr. Dalluge continued to rely on his father for support.

At some point, Mr. Dalluge returned to live with his father. When the rape allegation arose, Mr. Dalluge left his father's home because he "had warrants" and the apartment managers would not let him stay there. Report of Proceedings (RP) at 176. Mr. Dalluge did not turn himself in because he was afraid he would be beaten by one of the investigating officers. During this period, Mr. Dalluge stayed with friends and relied on whatever people would give him for food.

In September 1997, Mr. Dalluge's probation counselor, Eddie Gonzales, alleged that Mr. Dalluge violated his probation by not attending school and failing to stay in contact. A bench warrant was issued. In November, Mr. Dalluge committed one act of second degree burglary, one act of second degree theft, and three acts of second degree car prowling. Mr. Dalluge was arraigned on the rape charge on December 8, 1997.

Juvenile parole officer Janeil Kikuchi explained that the juvenile system had the following services available in 1998: sex offender treatment, substance abuse treatment, and job training. Sex offender treatment was voluntary and the offender must acknowledge his or her crime. Early release was used as an incentive to get offenders to go through treatment. Ms. Kikuchi testified that the ideal client would be 13 or 14 years of age because they are amendable to treatment. In her view, "[i]t's very difficult to supervise an independent 18, 19 year old, in sex offender supervision." RP at 71. And it is very difficult to supervise an adult who lives independently and is receiving sex offender treatment.

Community corrections officer Tim Logan testified that sex offender treatment in the adult system was available only at the Twin Rivers facility and that an offender must ask to be in the program. Mr. Logan explained that the Department of Corrections makes a discretionary decision as to whether someone is accepted into the program, and acceptance is on a very limited basis. Mr. Logan also testified that the adult system offered additional programs such as substance abuse treatment, victim awareness, anger management, and moral conation therapy. Mr. Dalluge testified that when he was confined to the adult system, there were long waiting lists for services.

The trial court concluded that the juvenile court would have declined jurisdiction. The court considered the eight Kent factors. The court found that seven factors favored declination: (1) the crime was serious and declination was needed to protect the community; (2) the offenses were committed in an aggressive, violent, premeditated, and willful manner; (3) the offense was against a person; (4) the charges had prosecutive merit; (5) Mr. Dalluge was mature; (6) Mr. Dalluge had seven prior convictions resulting from the activities of a single day; and (7) Mr. Dalluge's peripatetic lifestyle and family environment made rehabilitation unlikely. This appeal followed.

ANALYSIS

A case filed in juvenile court may be transferred for prosecution in the adult criminal system based on a finding that "declination would be in the best interest of the juvenile or the public." RCW 13.40.110(2).

When making a declination decision, the court conducting the Dillenburg hearing must consider the Kent factors. Kent v. United States, 383 U.S. 541, 566-67, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966). The decision to decline jurisdiction is reviewed for an abuse of discretion. State v. Stevenson, 55 Wn. App. 725, 735-36, 780 P.2d 873 (1989). Thus, we will reverse only if the court's decision is manifestly unreasonable or based on untenable grounds. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). We may examine the entire record, including the court's oral decision, to determine the sufficiency of the court's reasons for declination. State v. Holland, 98 Wn.2d 507, 518, 656 P.2d 1056 (1983). Issues of law are reviewed de novo. Hanson v. City of Snohomish, 121 Wn.2d 552, 556, 852 P.2d 295 (1993).

Not all eight Kent factors must be established to justify declination; but a court's failure to consider and balance all of the factors is an abuse of discretion. State v. Massey, 60 Wn. App. 131, 137, 803 P.2d 340 (1990). The court's exercise of discretion must be in keeping with the purposes of the Juvenile Justice Act of 1977, chapter 13.40 RCW, which are "`to provide for the handling of juvenile offenders through a separate and independent system providing both punishment and treatment.'" Holland, 98 Wn.2d at 516 (quoting State v. Foltz, 27 Wn. App. 554, 556-57, 619 P.2d 702 (1980)).

Findings of fact will not be disturbed if they are supported by substantial evidence. Stevenson, 55 Wn. App. at 736. Evidence is substantial if it is sufficient to persuade a fair-minded, rational person of the truth of the findings. State v. Meade, 129 Wn. App. 918, 922, 120 P.3d 975 (2005). Unchallenged findings are verities on appeal. State v. Halstien, 122 Wn.2d 109, 128, 857 P.2d 270 (1993).

When making a declination determination, the juvenile court must consider: (1) the seriousness of the alleged offense and whether the protection of the community requires declination; (2) whether the offense was committed in an aggressive, violent, premeditated, or willful manner; (3) whether the offense was against persons or only property; (4) the prosecutive merit of the complaint; (5) the desirability of trial and disposition of the entire case in one court where the defendant's alleged accomplices are adults; (6) the sophistication and maturity of the juvenile; (7) the juvenile's criminal history; and (8) the prospects for adequate protection of the public and rehabilitation of the juvenile through services available in the juvenile system. State v. Furman, 122 Wn.2d 440, 447, 858 P.2d 1092 (1993); Kent, 383 U.S. at 566-67.

Mr. Dalluge contends the court erred by ruling that the juvenile court would have declined jurisdiction. Mr. Dalluge also contends the court erred by finding that: (1) his offense required the protection of the community; (2) the offense was violent; (3) he was mature and sophisticated; and (4) there was little likelihood of rehabilitation in the juvenile system. Mr. Dalluge asserts that the court improperly balanced the Kent factors.

Protection of the Community. The first of the Kent factors requires the court to consider the seriousness of the offense and whether the protection of the community requires declination. Here, the court found that the crimes of conviction "were nonconsensual and serious offenses." Clerk's Papers (CP) at 211. The court also found that: "Considering the crime in isolation and not yet the [sic] considering the Defendant's personal circumstances, protection of the community from this type of offense requires declination." CP at 211.

Mr. Dalluge argues that this finding consists of boilerplate language that is insufficient to permit meaningful review. However, when boilerplate findings on Kent factors are inadequate, the reviewing court may look to the record as a whole to make its determination. State v. M.A., 106 Wn. App. 493, 498, (2001). In its oral ruling, the court determined that the protection of the community required declination if "you look at the crime." RP at 265. The court noted that there were acts of nonconsensual sex committed by older males with a 15-year-old girl. The crime took place at night on a gravel road. Based on these circumstances, the court concluded that this was a serious offense.

Under M.A., a reviewing court may look to the record as a whole. The reviewing court's inquiry is not limited to the court's findings. Examining the record here, the court did not abuse its discretion by concluding that "protection of the community from this type of offense requires declination." CP at 211.

Mr. Dalluge next argues that even if the court's finding on the first Kent factor was sufficient, the protection of the community did not require declination because if Mr. Dalluge had received a manifest injustice disposition in juvenile court, he would have been removed from society for as long a period as under his adult convictions. But here, Mr. Dalluge compares an exceptional juvenile sentence to a standard range adult sentence.

The trial court's finding on the first Kent factor is supported by substantial evidence.

Whether the Offense was Violent. The second Kent factor considers whether the alleged offense "was committed in an aggressive, violent, premeditated or willful manner." Furman, 122 Wn.2d at 447. Here, the trial court found:

2.2 The offenses were committed in an aggressive, violent, premeditated, and willful manner. While the jury did not find sufficient evidence of violence to support a conviction of forcible rape, there were elements of violence over and above mere statutory rape.

CP at 211.

To meet the second Kent factor, the facts must show a degree of aggression, violence, premeditation, or willfulness to a greater extent than that found in the offense. See M.A., 106 Wn. App. at 499-500.

In the amended information, Mr. Dalluge was charged with second degree rape under RCW 9A.44.050(1)(a), which requires a finding of forcible compulsion. "Forcible compulsion" is the force used or threatened to overcome resistance that is greater than that which is normally required to achieve penetration. State v. McKnight, 54 Wn. App. 521, 527-28, 774 P.2d 532 (1989). In the alternative, Mr. Dalluge was charged with second degree rape by incapability of consent due to physical or mental incapacitation. RCW 9A.44.050(1)(b). Also, in the alternative, Mr. Dalluge was charged with third degree rape under RCW 9A.44.060(1)(a), and third degree rape by complicity under RCW 9A.44.060(1)(a) and RCW 9A.08.020. Mr. Dalluge was convicted of the two counts of third degree rape.

Mr. Dalluge's premeditation is revealed by his response to Mr. Alvarez's remark that Mr. Alvarez did not know a place to go to "take advantage of the situation." Ex. 1, B at 229. Also, Mr. Dalluge chose the isolated area in the country and drove there. H.B.'s incapacitation was obvious. H.B. was unable to consent. She tried to scream and bit Mr. Anstrom's penis. Mr. Dalluge helped Mr. Anstrom rape H.B. by holding her leg up. Then Mr. Dalluge raped H.B. H.B.'s clothes were torn. She was covered in bruises, scratches, and scrapes. She had gravel embedded in the skin of her back and buttocks, abrasions on the area between her anus and the vagina, and a skin tear on her vaginal wall. H.B. was injured by intentional and willful acts. These injuries are not the result of mere penetration.

The trial court's finding on the second Kent factor was supported by substantial evidence.

Maturity and Sophistication. The sixth Kent factor is: "The sophistication and maturity of the juvenile as determined by consideration of his home, environmental situation, emotional attitude and pattern of living." Kent, 383 U.S. at 567.

The court found that:

2.6 In the two years preceding this crime, [Mr. Dalluge] lived with his mother, then with his father, and then with his sisters, and then with his father again after he committed a crime while living with his sisters in Ellensburg. In 1996, [Mr. Dalluge] frequently was not living at home and he was missing classes. He evaded arrest on his offense for three months, during which time he was living on his own and independently of anyone's rules.

CP at 211. The court also found that Mr. Dalluge was not following the rules in school or at home, and that he lived a peripatetic lifestyle. In its oral ruling, the court explained that Mr. Dalluge had "a sense of maturity in the negative or pejorative way, I recognize, but nonetheless a maturity beyond his years as far as following rules." RP at 269-70.

Mr. Dalluge argues that consideration of this Kent factor does not favor declination. He contends that his immaturity was evidenced by his response, at age 14, to a local newspaper article that criticized him for costing his school a wrestling title. The wrestling coach told the newspaper the high school lost the Dream Dual title because Mr. Dalluge was a quitter. The school had won the Dream Dual title for 15 consecutive years. This information was also broadcast on the radio. Richard Dalluge, Amel's Dalluge's father, stated that his son "didn't know how to handle it. . . . [H]e was going into depression, he didn't want to go to school, he didn't want to basically do anything." RP at 157.

Mr. Dalluge's reaction to the newspaper accounts and the radio broadcasts was not necessarily immature. These events would have been very difficult for an adult to handle. More importantly, other evidence in the record better describes Mr. Dalluge's maturity at the time of the assault, when he was 17, not 14.

Relying on M.A., Mr. Dalluge argues that prior juvenile diversions and probation violations do not compel a finding that he was emotionally mature. In M.A., the court found a trial court's finding of sophistication and maturity was not supported by substantial evidence despite M.A.'s physical maturity and suspensions from school. The court noted that there was no evidence that M.A. had lived on his own. M.A., 106 Wn. App. at 502. Mr. Dalluge maintains that he did not live on his own because he did not take on the responsibilities of being an adult. He asserts that he lived more like a child because he could not hold down a job and he depended on others for food and shelter.

The court's finding that the sixth Kent factor favored declination was supported by substantial evidence. Mr. Dalluge is of above average intelligence. Mr. Dalluge lived peripatetically and did not want to work. Rather than act like a child, Mr. Dalluge used his abilities to find people to support him. Mr. Dalluge did not go to school or work. He did not follow the rules of probation. He was driving, drinking, and committing more crimes. He used alcohol and marijuana and stayed out past curfew. Mr. Dalluge was his own boss, he rejected "parental controls and limits, and was essentially making decisions regarding his life that were not based on any input from parents or guardians." CP at 161. Mr. Dalluge was able to evade arrest for three months. He made pro se motions and, on one occasion, he refused to come to court from jail and waived his presence.

Likelihood of Rehabilitation. The eighth Kent factor considers the prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile by the use of procedures, services, and facilities available in the juvenile court. Furman, 122 Wn.2d at 447.

The court found Mr. Dalluge "lived a peripatetic lifestyle which decreased the likelihood of rehabilitation efforts once he could be released under the supervision of the Department of Corrections." CP at 211. The court also found that "[a]t the Defendant's age (17 years and 10 months at the time of the amended information), the Defendant's peripatetic lifestyle and family environment made rehabilitation unlikely." CP at 211. In its oral ruling the court noted that:

I just couldn't conclude that the age of 17 years and ten months, with the peripatetic environment and lifestyle, that reasonable rehabilitation was likely. I found that it was possible, but I just couldn't reach the fact that it was likely.

RP at 271.

Mr. Dalluge contends that his peripatetic lifestyle was not relevant because he would have been rehabilitated before he was released from incarceration. But there is no evidence to support this claim. Mr. Dalluge had multiple criminal offenses as a juvenile. While under the supervision of the juvenile court, Mr. Dalluge broke the rules of probation and his criminal behavior escalated.

Mr. Dalluge maintains that the juvenile department failed to offer him counseling. This position is not supported in the record. Ms. Kikuchi interviewed his counselors. In her report, she testified that Mr. Dalluge "had [the] opportunity to benefit from the counsel of juvenile justice professionals regarding his criminal conduct and chose to continue a pattern of disregard for both court and parental guidance." CP at 164. Ms. Kikuchi also noted that Mr. Dalluge had the opportunity to participate in mental health counseling. Significantly, Mr. Dalluge testified that he was best friends with his probation officer and that they met regularly.

At the time of the offense, Mr. Dalluge could have been considered for a special sex offender disposition alternative. If he were not placed in this program, he would have been placed in a juvenile institution for a period and then released into the community for a minimum of two years of sex offender parole. Ms. Kikuchi testified that the juvenile department prefers that the participants in sex offender treatment are young first-time offenders. She also testified that the factors that led her to recommend declination were Mr. Dalluge's age, his peripatetic lifestyle, his criminal history, and his resistance to authority.

Ms. Kikuchi testified that it would have been difficult to supervise an adult like Mr. Dalluge who lived independently and would be subject to sex offender treatment after release from juvenile confinement. Mr. Dalluge argues that this problem could have been resolved if the juvenile court had ordered him to live with a responsible adult as part of his supervision requirements. However, earlier the juvenile court had ordered Mr. Dalluge to live with a responsible adult, his sister, under a curfew. At the very least, he violated this order by leaving his sister's house after curfew and raping H.B.

Mr. Dalluge argues that declination was inappropriate because he had not exhausted the juvenile treatment resources. He maintains that he was never given the opportunity to succeed in the juvenile system and that he should have remained there until he had exhausted its resources.

The record does not reveal that there were more programs available to Mr. Dalluge in the juvenile system than in the adult system. At the Green Hill Training School, a juvenile detention center, Mr. Dalluge would have had access to chemical dependency, sex offender, and mental health treatment, unless he was placed in the intensive management unit. He refused chemical dependency and sex offender treatment in the adult system. He refused mental health treatment while under juvenile probation. Moral conation therapy, victim awareness, and anger management were available in the adult system.

The intensive management unit is a 23-hour per day program imposed for incidents.

Mr. Dalluge points out that the juvenile system would have required that he participate in sex offender and other treatment to gain early release. He asserts that the early release option was a substantial incentive to complete treatment. However, some early release incentive is offered in the adult system. See RCW 9.94A.728.

The court's finding that Mr. Dalluge's peripatetic lifestyle made rehabilitation unlikely is supported by substantial evidence.

In summary, we conclude that the trial court properly considered the Kent factors and substantial evidence supports the court's findings. Accordingly, we affirm.

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.

SCHULTHEIS and KORSMO, JJ., concur.