IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, Respondent,

BINH THAI TRAN, Appellant. No. 73913-1-1 DIVISION ONE

jko UNPUBLISHED FILED: November 14. 2016
Cox, J. - Binh Thai Tran appeals his judgment and sentence, arguing that the trial court abused its discretion indenying his request for a Special Sex 

### Offender Sentencing Alternative (SSOSA) sentence. Because the record supports the trial court's decision that Tran was not amenable to treatment, we hold that the trial court did not abuse its discretion in denying Tran's SSOSA request. We affirm. 

### Tran pleaded guilty to one count ofindecent liberties with the victim, 

### J.V.T., by forcible compulsion. At the sentencing hearing, both parties advised the trial courtthat J.V.T. supported a SSOSA sentence. Norman Glassman, a 

### certified sex offendertreatment provider, conducted a sexual deviancy evaluation ofTran and recommended that the trial court grant Tran a SSOSA sentence. 

### However, the Department ofCorrections recommended that the court deny the request for a SSOSA sentence.No. 73913-1-1/2 

### At the sentencing hearing, the trial court considered the documentary evidence togetherwith a letter written to the court by Tran. Itdenied Tran's SSOSA request, determining that he was not amenable to treatment. The trial 

### court imposed an 82 month sentence, the "highend ofthe standard range." It also entered itsjudgment in accordance with its oral decision. Tran appeals. PRESERVATION OF ERROR The State argues that Tran failed to preserve the error he now claims on appeal. We disagree. Sentencing courts have considerable discretion underthe Sentencing 

### Reform Act1 (SRA) to determine if an offender is eligible for an alternative 

### sentence and whetherthe alternative is appropriate.2 

### Astandard range sentence is generally notappealable.3 But an offender 

### "may always challenge" the procedure thetrial court used to impose a sentence.4 Appellate review remains available to correct legal errors or abuses of discretion in sentence determinations.5



### 1Chapter 9.94A RCW. 2State v. Hender, 180 Wn. App. 895, 900-01, 324 P.3d 780 (2014). 

### 3RCW 9.94A.585(1); see also State v. Grayson, 154 Wn.2d 333, 338, 111 P.3d 1183(2005). 4 Grayson, 154 Wn.2d at 338. 5 State v. Kinneman. 155 Wn.2d 272, 283, 119 P.3d 350 (2005).No. 73913-1-1/3 Here, the issue at Tran's sentencing hearing was whetherthe trial court should grant Tran a SSOSA sentence under RCW 9.94A.670. Tran argues that the trial court made a legal error by failing to comply with RCW 9.94A.670(4). He claims the courtfailed to considerthe victim's opinion and failed to make findings 

### regarding her opinion underthis statute. Tran's argument is reviewable. AMENABILITY TO TREATMENT 

### Tran argues that the trial court failed to comply withthe SSOSA statute. We disagree. 

### Underthe SRA, a first-time sex offender may be eligible for a suspended 

### sentence underthe SSOSA provisions. SSOSA was created on the belief that 

### requiredparticipation in rehabilitation programs "'islikely to prove effectivein 

### preventing future criminality'" forcertain first-time sexualoffenders.6 We review for an abuse ofdiscretion a trial court's refusal to order treatment under SSOSA.7 

### RCW 9.94A.670(2) provides the six requirements for SSOSA eligibility. These are not in dispute here. 

### What is at issue are the provisions of RCW 9.94A.670(4). Specifically, the 

### question is whetherthetrial courtproperly consideredcertain factors stated in

6State v. Miller, 180 Wn. App. 413, 417, 325 P.3d 230 (2014) (internal 

### quotation marksomitted) (quoting State v. Goss, 56Wn. App. 541, 544, 784 P.2d 194(1990)), review denied. 181 Wn.2d 1022(2014), cert,denied, 135 S. Ct. 1555, 191 L.Ed. 2d 646 (2015). 7State v. Sims, 171 Wn.2d 436, 445, 256 P.3d 285 (2011).No. 73913-1-1/4 that section ofthe statute. The statute provides that afterthe court receives the required reports following examination ofthe defendant: [T]he court shall considerwhetherthe offender and the community will benefit from use ofthis alternative, consider whether the alternative is too lenient in light ofthe extent and circumstances of the offense,... consider whetherthe offenderis amenable to treatment, . . . and considerthe victim's opinion whetherthe offendershouldreceive a treatmentdisposition underthis section. The court shall give greatweightto the victim's opinion whether the offender should receive a treatmentdisposition under this section. Ifthe sentence imposed is contrary to the 

### victim's opinion, the court shall enterwritten findings stating its reasons for imposing the treatmentdisposition. The fact that the offender admits to his or her offense does not, by itself, 

### constitute amenability to treatment.^ State v. Oliva9 is instructive. There, the State entered into a plea 

### agreementwith Jose Oliva and agreed to recommend a SSOSA sentence if Oliva was amenable to treatment.10 Oliva met the SSOSA eligibilityrequirements 

### under RCW 9.94A.670(2), and the trial court had to determine whether Olivawas amenable to treatment.11 Itconcluded that Oliva was not so amenable.12 

### On appeal, Division Three of this court described some of the factors that 

### apply to determine whether one is amenable to treatment, stating: "That is,given hisbackground, history, social and economic circumstances, and psychological

8RCW 9.94A.670(4) (emphasis added). 

### 9 117 Wn. App. 773, 779, 73 P.3d 1016 (2003). 10 id, at 775. 11 id, at 779-80. 12Id. at 778.No. 73913-1-1/5 condition, could both he and the community benefitfrom community-based treatment under SSOSA."13 The question before Division Three of court was whetherthe record 

### supported the trialcourt's decision.14 The court affirmed the trialcourt's decision to deny a SSOSA sentence, concluding that the record "amply supported] the [trial] court's determination that SSOSA was inappropriate for Mr. Oliva, 

### regardless of what an evaluation mighthave found."15 Here, the trial court denied Tran's SSOSA request and stated its reasoning at the sentencing hearing. The trial court did not mention J.V.T.'s opinion on whetherTran should receive a treatment disposition. The trial court stated: Ihave done a number and granted a fair amount ofSSOSAs in my time when I am convinced that the defendant is amenable to 

### treatment, that they have approached the acts that gave rise to the criminal charge with honesty, with humility, with acceptance, 

### realizingthatthey have a problem, not knowingfully the extentof it butwilling to deal with it in a forthrightmanner. In reading all of the materials that I've read, Mr.Tran, you don't come in front ofme as 

### that type ofindividual.'161 The court referred to the "personality" portion ofGlassman's sexual 

### deviancy evaluation to support its determination. The court then stated that Tran committed "a horrific crime" and that it did not see "any willingness on [Tran's]

13 id at 780. 14 id, 15 id, 

### 16 See Report ofProceedings (July 30, 2015) at 12.No. 73913-1-1/6 

### behalfto accept responsibility forthis."17 The court further stated: "The profile that I'm being presented with is a gentleman ofarrogant sense of self-worth, a talentfor feigning dignity and confidence, indifference to the welfare ofothers, 

### and a deceptive social manner.. . . You are a predator."18 The court also referred to Tran's "excuse" and stated that Tran continued 

### abusing J.V.T. because she did not tell him to stop.19 The court then concluded by stating: "After due consideration, sir, Idon't believe that you are amenable to treatment."20 The trial court's determination was not an abuse ofdiscretion. Although Glassman recommended a SSOSA sentence, his sexual deviancy evaluation, especially the portion describing Tran's personality, supports the trial court's determination that Tran is not amenable to treatment. 

### Tran next argues that the trial courtfailed to comply withthe SSOSA statute because it did not enterfindings regarding the victim's supportforTran's SSOSA application. He specifically argues thatthe trial court must enterfindings when itdecides not to impose "a treatment disposition." This conflicts withthe statute's plain language.

17 id, at 12-13. 18 id, at 13. 19 id, 20 Id.No. 73913-1-1/7 When interpreting statutes, we determine the legislative intentfrom the 

### statute's plain language and its contextin the statutory scheme.21 RCW 9.94A.670(4) requires that the trial court consider, and "give great 

### weight to the victim's opinion whetherthe offender should receive a treatment 

### disposition." Ifthe trial court imposes a sentence contrary to the victim's opinion, the trial court must "enterwritten findings stating its reasons for imposing the 

### treatment disposition."22 There simply was no imposition ofany treatment disposition in this case. Rather, the court determined Tran was not amenable to treatment. Thus, the 

### victim's opinion insupport oftreatment is irrelevant to the requirementfor 

### entering written findings. Tran misread the statute's plainlanguage in arguing otherwise. 

### Tran argues that the trial court's failure to make findings regarding J.V.T.'s opinionrenders it impossible to determine whetherthe trial courtfollowed the statute's directive. He cites State v. Fellers23 to supportthis argument. His reliance is misplaced. 

### For the reasonsjust discussed, there is no showing that the courtfailed to followthe statute's directive. In any event, Fellers is distinguishable.

21 State v. Conover, 183 Wn.2d 706, 711, 355 P.3d 1093(2015). 22 (Emphasis added.) 

### 23 37 Wn. App. 613, 683 P.2d 209 (1984).No. 73913-1-1/8 

### There, the statute at issue setforth required procedures forthe trial court 

### to follow for a dispositional hearing.24 It required that the trial court state its findings of fact and enter its decision on the record. The findings shall include "the evidence relied upon bythe court in reaching its decision."25 Another statute provided the factors that the trial court must consider inthe dispositional 

### hearing.26 On appeal, this court concluded that the trial court failed to follow the 

### statute's procedures.27 This courtfurther stated that the record was "devoid of findings or an oral decision from which we can determine whetherthe court properly reviewed the matters before it. Since the court did not setforth what it considered, it is impossible to ascertain whether itfollowed the [statute's] directives."28 Here, conversely, RCW 9.94A.670(4) did not require that the trial court make written findings about J.V.T's opinion. No treatment disposition was imposed. Thus, Tran mistakenly relies on Fellers. 

### Lastly, Tran argues that the trial courtfailed to considerJ.V.T.'s opinion 

### and failed to give itgreat weight. He bases this argument on the trialcourt's

24 id, at 616, 618. 25 id, at 616 (quoting RCW 13.40.130(4)). 26 id, at 618. 27 id, 28 Id. at 619.

8No. 73913-1-1/9 omission from its oral decision of a statement ofJ.V.T.'s opinion in its reasons for denying Tran's SSOSA request. For the reasons already discussed, consideration ofJ.V.T.'s opinion was not relevant because there was no imposition oftreatment. Thus, giving that opinion great weight was not necessary under the plain words ofthe statute. COSTS Although neither Tran northe State raises the issue ofappellate costs in their appellate briefs, we do so sua sponte. Under our recent opinion in State v. Sinclair, the issue ofappellate costs is 

### to be decided bythe panel that renders the decision.29 We do so here. Shortly afterthe trial court entered thejudgment and sentence, Tran filed a motion and declaration seeking review at public expense and appointment of 

### an attorney.30 The motion stated that the Snohomish County Officer of Public Defense determined Tran to be indigent.31 The trial court granted the motion, 

### appointing an appellate attorney under RAP 15.2.32

29 See 192 Wn. App. 380, 385-86, 367 P.3d 612, review denied, 185 Wn.2d 1034(2016). 30 Motion and Declaration for OrderAuthorizing the Defendant to Seek Review at Public Expense and Appointing an Attorney. 31 id, at 2. 

### 32 OrderAuthorizing the Defendantto Seek Review at Public Expense and Appointing an Attorney on Appeal.No. 73913-1-1/10 

### Under Sinclair, there is a presumption that indigency continues unless the 

### record shows otherwise.33 We have reviewed this record and see nothing to overcome this presumption. Accordingly, an award to the State for appellate costs is inappropriate under these circumstances. We affirmthejudgment and sentence, and deny costs to the State.

WE CONCUR:

^

33 Sinclair, 192 Wn. App. at 393.

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