IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) 

) 

Respondent, ) No. 96143-3 

) 

v. ) 

) En Banc

D.L., ) 

) Filed 

Petitioner. ) 

) 

OWENS, J. ― D.L., a 14-year-old boy, pleaded guilty to a single count of child 

molestation. The commissioner sentenced D.L. to an extended sentence known as a 

manifest injustice disposition. By pleading guilty, D.L. agreed that the court could 

use the probable cause affidavit to establish the facts that constituted D.L’s 

conviction. But when the court imposed the manifest injustice disposition, it relied on 

three facts that were not in the probable cause affidavit: (1) that D.L.’s victim had a 

cognitive disability, (2) that D.L. refused accountability, and (3) that D.L. would not 

cooperate with treatment. This case asks whether due process requires that the State 

: April 15, 2021

FILE 

IN CLERK’S OFFICE

SUPREME COURT, STATE OF WASHINGTON 

APRIL 15, 2021

THIS OPINION WAS FILED 

FOR RECORD AT 8 A.M. ON

APRIL 15, 2021

SUSAN L. CARLSON 

SUPREME COURT CLERK 
State v. D.L.

No. 96143-3 

2 

give a juvenile notice of these specific facts before pleading guilty if they will be used 

to justify a manifest injustice disposition.

Ultimately, due process requires that juveniles be treated in a manner that is 

fundamentally fair. As evidenced by our notice requirements in Washington case law 

and statutes, adequate notice of factual allegations ensures fairness by allowing

defendants to make timely, informed, and strategic decisions. Allowing introduction 

of facts after a plea to justify a longer sentence serves only to undermine the critical 

strategic decision to forgo trial.

Without adequate notice, juveniles and their attorneys cannot predict which

facts might be unearthed and weaponized to extend the juvenile’s sentence after the 

plea. This lack of notice leaves juveniles unable to adequately assess the risk of 

receiving a disposition outside of the standard range, which could mean confinement 

until age 21 in some cases. Further, it allows the State to essentially upgrade the 

charge after already having already locked the juvenile into a guilty plea. This lack of 

notice causes unfair surprise to young defendants and serves only to undermine 

juveniles’ and their families’ trust in our juvenile justice system. Our adult defendants 

in Washington are not treated so unfairly and neither should we so treat our juveniles. 

Therefore, we hold today that manifest injustice dispositions cannot be based

on facts that the juvenile did not have notice of at the time of plea. The State failed to 

give D.L. notice of several key facts that supported D.L.’s manifest injustice 
State v. D.L.

No. 96143-3 

3 

disposition. As a result, the manifest injustice disposition was improperly imposed. 

As D.L. has already served his sentence and this case is technically moot, we merely 

resolve this legal issue without modifying D.L.’s sentence.1 We reverse the Court of 

Appeals.

I. STATEMENT OF FACTS

In 2017, D.L., a 14-year-old boy, was charged with three counts of first degree 

rape and one count of attempted first degree rape of his 5-year-old half brother. At 

the time, D.L. had no prior criminal history. D.L. successfully negotiated a plea deal 

with the prosecutor, reducing the charges to a single count of first degree attempted 

child molestation. D.L. stipulated in his plea agreement that the trial court could use 

the probable cause statement to determine the facts that supported his conviction. 

For sentencing, the prosecutor and defense agreed to recommend a special sex 

offender disposition alternative (SSODA) if D.L. qualified; otherwise, the plea 

agreement stated that the prosecutor would recommend a sentence within the statutory 

range of 15 to 36 weeks. During the plea colloquy, the court informed D.L. that it

could impose a sentence outside of the standard range and commit D.L. to a facility 

until age 21. Sentencing was then scheduled to occur after D.L. completed the 

screening for the SSODA. 

1 State v. B.O.J., 194 Wn.2d 314, 331, 449 P.3d 1006 (2019). 
State v. D.L.

No. 96143-3 

4 

The screening process did not go well for D.L. D.L. missed treatment dates, 

refused to cooperate, and denied accountability. As a result, neither the State nor D.L. 

recommended the SSODA. In addition, D.L.’s probation officer filed a notice of 

intent to seek a manifest injustice disposition and filed a supporting memorandum

contrary to the prosecutor’s recommendation. The memorandum alleged, among 

other things, (1) that the victim was cognitively impaired from a lack of oxygen at 

birth, (2) that D.L. denied accountability, and (3) that D.L. refused to cooperate during

the SSODA screening process. None of these facts were contained in the probable 

cause statement. D.L.’s attorney filed a memorandum in response. 

At sentencing, two probation officers testified and D.L.’s attorney crossexamined them. The commissioner imposed a manifest injustice disposition and 

ordered D.L. to 40 weeks in a juvenile detention center—4 weeks beyond the standard 

range. The commissioner entered findings on the record that a manifest injustice 

disposition was necessary because (1) the victim was particularly vulnerable due to 

his age and developmental disability and (2) D.L. was likely to reoffend based on his 

postconviction denial of the acts and lack of cooperation during screening. D.L. 

appealed, and the Court of Appeals affirmed, although noting that this absence of 

notice draws strong concerns regarding “the appearance of fairness.” State v. Loomer, 

No. 77360-7-I, slip op. at 3 (Wash. Ct. App. Jun 25, 2018) (unpublished), 

http://www.courts.wa.gov/opinions/pdf/773607.pdf. We grant review as to whether 
State v. D.L.

No. 96143-3 

5 

D.L.’s due process right to notice was violated when he received a manifest injustice

disposition based on facts that he did not have notice of at the time of plea. 

II. ISSUE PRESENTED

Before entering a plea, are juveniles entitled to notice of all facts—existing at the 

time of plea—that will be used to support an extended sentence?

III. ANALYSIS

A. The Fundamental Fairness Standard Governs Juvenile Constitutional

Rights

Whether juveniles have a constitutional right to notice of the specific facts

that support a manifest injustice disposition is an issue of state and federal 

constitutional law that we review de novo. State v. Bradshaw, 152 Wn.2d 528, 

531, 98 P.3d 1190 (2004) (citing City of Redmond v. Moore, 151 Wn.2d 664, 

668, 91 P.3d 875 (2004)). 

D.L. received a manifest injustice disposition that was four weeks longer than the 

standard range sentence for the crime. Manifest injustice dispositions allow a court to 

extend a juvenile’s sentence upward or downward from a standard range sentence. See

RCW 13.40.020(19). A manifest injustice disposition requires a finding “that [the 

standard range disposition] would either impose an excessive penalty on the juvenile or 

would impose a serious, and clear danger to society.” Id. The upward maximum of a 

manifest injustice disposition is confinement until age 21. RCW 13.40.300 (1). 
State v. D.L.

No. 96143-3 

6 

Juveniles are entitled to adequate notice “‘of the alleged misconduct with 

particularity’” that “must be given sufficiently in advance of scheduled court 

proceedings so that reasonable opportunity to prepare will be afforded.” In re Gault, 

387 U.S. 1, 33, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967) (quoting PRESIDENT’S COMM’N 

ON LAW ENF’T & ADMIN. OF JUSTICE, THE CHALLENGE OF CRIME IN A FREE SOCIETY 

87 (1967)). The question is whether this right extends to facts that will be used to 

support a manifest injustice disposition. Although Gault did not squarely address this

issue, this court and the United States Supreme Court have nonetheless relied on Gault 

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

to extend due process2 rights to juveniles in a variety of contexts. In extending such 

rights, we have asked whether the right at issue is one that ensures procedures are

“fundamentally fair”3 and adheres to notions of “fair play.” McKeiver v. Pennsylvania, 

403 U.S. 528, 543, 91 S. Ct. 1976, 29 L. Ed. 2d 647 (1971); Schall v. Martin, 467 U.S. 

253, 263, 104 S. Ct. 2403, 81 L. Ed. 2d 207 (1984); State v. Quiroz, 107 Wn.2d 791, 

798, 733 P.2d 963 (1987) (quoting Sheppard v. Rhay, 73 Wn.2d 734, 737, 440 P.2d 422

2 We distinguish D.L.’s case from State v. T.J.S.-M., 193 Wn.2d 450, 462, 441 P.3d 1181 (2019), 

as T.J.S.-M. examined whether there was a due process liberty interest in the sentencing scheme 

itself. Here, we examine what notice must be given before entry of a plea.

3 We decline to address the applicability of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 

2348, 147 L. Ed. 2d 435 (2000), to the juvenile context as we resolve this case on the issue of 

ensuring fundamental fairness.
State v. D.L.

No. 96143-3 

7 

(1968)). Accordingly, we must ask whether providing notice of facts used to support a 

manifest injustice disposition is required to ensure fundamental fairness.

B. Juveniles Are Deprived of Fundamental Fairness When a Court Imposes a

Manifest Injustice Disposition Based on Facts That the Juvenile Did Not

Have Notice of at the Time of Plea

The quintessential requirement of notice is that it must be given at a sufficiently

meaningful time so as not to prejudice the defendant. In all cases, the earlier the notice, 

the better for the defendant, as the defendant can use this time to prepare a strategy, find 

witnesses, and most effectively meet the charges. But even before these actions must be 

taken, the notice of the specific factual allegations allows the defendant to answer the 

threshold question of whether to plead guilty or proceed to trial. This proposition has 

been frequently articulated as requiring the opportunity to “‘mount an adequate 

defense.’” State v. Siers, 174 Wn.2d 269, 277, 274 P.3d 358 (2012) (quoting State v. 

Schaffer, 120 Wn.2d 616, 620, 845 P.2d 281 (1993)). While we have extensive law 

dictating what this requirement looks like for adults, we have yet to address juveniles’ 

right to notice of specific facts that could support a manifest injustice disposition. 

From our case law and statutes, we can see in the adult context that timely notice 

requirements protect the defendant’s ability to make strategic defensive decisions. First 

and foremost, we note that this case would not arise in the adult context because adults 

have the right to notice of all aggravating factors before they begin trial or enter a plea. 

RCW 9.94A.537(1). This notice protection ensures that prosecutors will not 
State v. D.L.

No. 96143-3 

8 

purposefully withhold new facts that would support an extended sentence, only to 

introduce them later at trial or sentencing after a defendant has already made the 

decision whether to plead. Another noteworthy benefit of notice is that prosecutors are 

typically prohibited from amending charges “‘unless the amendment is to a lesser degree 

of the same charge or a lesser included offense’” after the State rests its case. Schaffer, 

120 Wn.2d at 620 (quoting State v. Pelkey, 109 Wn.2d 484, 491, 745 P.2d 854 (1987)). 

In this context, amendments after the State rests its case are allowed only where they do

not mislead or surprise the defendant. Ultimately, such surprise tactics deprive

defendants of making a sufficiently informed decision whether to plead or continue to 

trial. 

Another example of our protection of the right to make an adequately informed 

decision to plead can be seen in State v. Recuenco, 163 Wn.2d 428, 180 P.3d 1276 

(2008). There, we prohibited the prosecutor from changing the sentencing enhancer at 

sentencing, although the facts proved at trial would have clearly supported a firearm

enhancement. Id. at 431-32, 441. In Recuenco, the prosecutor proved there was a gun, 

but because the prosecutor elected a deadly weapons enhancement, the prosecutor was 

unable to switch the enhancement to a firearm enhancement, which carried a longer 

sentence. Id. at 441. Again, Recuenco may have fundamentally altered his strategy had 

he known that the prosecution sought a firearm enhancement instead of a deadly 

weapons enhancement. The decision of what facts to contest might have been 
State v. D.L.

No. 96143-3 

9 

fundamentally motivated by the prosecutor’s charging decision—thus, allowing the 

prosecutor to change the charge would have undermined Recuenco’s tactical decisions 

and deprived him of the opportunity to mount an adequate defense.

All of these concerns of fairness that apply to adults apply equally to juveniles. 

Late notice prohibits juveniles from making informed strategic decisions and 

undermines those they have already made. If we find that such notice is required to 

protect an adult’s right to mount an adequate defense, it is troubling to think that

juveniles, lacking the experience, maturity, and knowledge of adults, should receive less 

notice. Bearing these considerations in mind, we must first determine whether a juvenile 

enjoys the same constitutional right to notice as an adult. We do so by asking whether 

depriving juveniles of such notice deprives them of “fundamental fairness.” McKeiver, 

403 U.S. at 543.

In addressing “fundamental fairness,” we focus on the point in time when D.L. 

entered his plea. When D.L. entered his plea, he did so based on a specific set of 

stipulated facts found in the probable cause statement. Neither D.L. nor his attorney 

would have been able to predict that the State would rely on the victim’s alleged 

cognitive impairment to justify a manifest injustice disposition.

If we allow prosecutors and probation officers to embark on an inquisition for 

damaging facts to support a manifest injustice disposition, it is clear that no juvenile’s

attorney would ever be able to assess the risk of receiving a manifest injustice 
State v. D.L.

No. 96143-3 

10 

disposition. Juveniles such as D.L. would be pleading blindly, not knowing which 

extrinsic facts might be unearthed that could justify confinement until age 21. We do 

not treat adults so harshly in Washington State and neither should we so harshly treat our

youth. Permitting this practice further serves to undermine the benefits of the plea 

bargaining process, which protects judicial and prosecutorial resources, ensures a 

predictable result, and emphasizes accountability. Accordingly, we hold that the court 

improperly considered the victim’s cognitive impairment when D.L. did not have notice 

that this fact might support a manifest injustice disposition.

We additionally hold that facts arising after the plea, like D.L.’s denial of 

responsibility and refusal of treatment, cannot be used to justify a manifest injustice 

disposition. As in Recuenco, the State here should similarly be bound to its election of 

charges. Had the State wanted to seek a greater confinement range, it could have 

charged D.L. differently. It chose not to. While upward manifest injustice dispositions 

may be imposed to protect the health and safety of the juvenile and the community, the 

most relevant factors in such a finding primarily relate to the circumstances surrounding 

the immediate crime as well as the juvenile’s dispositional history. See RCW 

13.40.150(3)(i). Certainly, facts arising after the plea may be relevant for dispositional 

purposes for determining a sentence within the standard range, but invocation of these 

facts without any notice to justify a longer sentence clearly runs afoul of the juvenile’s 
State v. D.L.

No. 96143-3 

11 

right to fundamental fairness. As such, the court also improperly relied on D.L.’s denial 

and lack of cooperation to justify the manifest injustice disposition. 

C. The Rehabilitative Purpose of the Act Does Not Outweigh Juveniles’ Due

Process Protections

The State puts forth several arguments that D.L. is not entitled to notice because

this notice undermines the rehabilitative nature of the Juvenile Justice Act of 1977, ch. 

13.40 RCW. We note, however, that the Juvenile Justice Act does not subordinate the 

due process rights of juveniles to rehabilitation. RCW 13.40.010(2)(e). Rather, due 

process and rehabilitation are equally important under the Juvenile Justice Act. Id. 

Bearing this in mind, the State claims that allowing notice of aggravating factors 

will lead to requiring additional disclosures in the information and warnings during the 

plea colloquy. But we have found notice of aggravating factors to be sufficient even 

without a formal colloquy or charging document, and we do not impose these formalities 

here. Siers, 174 Wn.2d at 277.

Additionally, the State asserts that adding this notice will unduly impair the 

juvenile justice system by imposing additional notice requirements. But this argument 

ignores the fact that juveniles already have the right to notice of facts that will support 

the conviction under Gault, and that many of these facts will be highly relevant in 

determining whether a manifest injustice disposition is appropriate. In re Gault, 387 

U.S. at 33. As the statute makes clear, the most relevant factors in finding a manifest 

injustice—the aggravating factors—are those listed in RCW 13.40.150(3)(i). Most, if 
State v. D.L.

No. 96143-3 

12 

not all of these factors, are tethered to the commission of the immediate crime. See id. 

As a result, many of the facts that would support a manifest injustice disposition can be 

found in the probable cause affidavit and police reports. The factual allegations

contained in these documents can be readily incorporated as the factual basis for the

juvenile’s plea. As a result, in most cases, complying with this notice requirement will 

have a negligible impact on the prosecutor.

Last, the State argues that notice rights should not be expanded because “the right 

to counsel is far more useful than an additional speculative warning during a plea 

colloquy[, as c]ounsel can explain what a manifest injustice disposition means and when 

a judge will likely impose one.” State of Wash. Suppl. Br. at 17. But the right to notice 

and counsel are not mutually exclusive. It is difficult, if not impossible, to weigh the 

risk of a manifest injustice disposition without knowing the specific facts4 that the State 

will rely on. While the right to counsel as established in Gault is an important one, it is 

largely meaningless if the juvenile is denied the guarantees of fundamental fairness. 

Accordingly, we hold in this particular case that the rehabilitative purpose of the 

Juvenile Justice Act does not supersede D.L.’s right to adequate notice.

4 Requiring notice of the specific facts that could support a manifest injustice disposition ensures 

that the notice provided to the juvenile is meaningful. A juvenile does not have adequate notice 

of a manifest injustice disposition simply because it is authorized by statute. We overrule State 

v. Moro, 117 Wn. App. 913, 923, 73 P.3d 1029 (2003), and State v. J.V., 132 Wn. App. 533, 539,

132 P.3d 1116 (2006), to the extent that they are inconsistent with today’s opinion.
State v. D.L.

No. 96143-3 

13 

D. Where the Court Imposes a Manifest Injustice Disposition Based on Improper

Factors, the Court Must Remand for Resentencing

D.L. has since completed his manifest injustice disposition, and this case is

technically moot. Accordingly, this court must decide the issue in the case without any 

further action. See State v. B.O.J., 194 Wn.2d 314, 331, 449 P.3d 1006 (2019). 

Notably, the court imposed the manifest injustice based on factors that were not

independently sufficient to justify the disposition. Clerk’s Papers at 209. Thus, if this 

case were not moot, this court would “remand to the trial court for a new disposition 

hearing[, and o]n remand, the trial court would remain free to impose a manifest 

injustice based on appropriate factors.” B.O.J., 194 Wn.2d at 331.

IV. CONCLUSION

Due process requires that juveniles receive notice, before pleading guilty, of any 

facts existing prior to plea that will be used to support a manifest injustice disposition. 

This ensures that juveniles are not subject to unfair surprise at sentencing by introducing 

new facts and ensures juveniles can make an adequately informed choice to plead guilty, 

just as adults do. Because D.L. has completed his sentence and this case is technically 

moot, this court merely decides the case without further action. We reverse. 
State v. D.L.

No. 96143-3 

14 

WE CONCUR: 
State v. D.L., No. 96143-3 (González, C.J., concurring) 

1 

No. 96143-3 

GONZÁLEZ, C.J. (concurring) – I concur with the lead opinion. A juvenile 

charged with an offense is entitled to a fundamentally fair process. It is not 

fundamentally fair to let children plead guilty without warning them of facts that 

could be used to impose a long sentence through a manifest injustice disposition. 

Like an exceptional sentence for an adult, a manifest injustice disposition

imposes an additional sentence beyond the standard sentencing range for a 

juvenile. Both the federal and our state constitutions require adequate notice of 

facts that might subject a person to an exceptional sentence. Apprendi v. New 

Jersey, 530 U.S. 466, 476, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) (the 

Fourteenth and Sixth Amendments to the United States Constitution command that 

any fact that “ʻincreases the maximum penalty for a crime must be charged in an 

indictment, submitted to a jury, and proven beyond a reasonable doubtʼ” (quoting 

Jones v. United States, 526 U.S. 227, 243 n.6, 119 S. Ct. 1215, 143 L. Ed. 2d 311 

(1999)); Blakely v. Washington, 542 U.S. 296, 305, 124 S. Ct. 2531, 159 L. Ed. 2d 

403 (2004) (the lack of facts to support the exceptional sentence “did not comply 

with the Sixth Amendment”); State v. Siers, 174 Wn.2d 269, 277, 274 P.3d 358 

(2012) (“article I, section 22 of Washington’s constitution” requires prior notice of 
State v. D.L., No. 96143-3 (González, C.J., concurring) 

2 

aggravating circumstances). Juveniles deserve these same protections. In re 

Gault, 387 U.S. 1, 27-28, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967) (“it would be 

extraordinary if our Constitution did not require the procedural regularity and the 

exercise of care implied in the phrase ‘due process’”). 

I write separately to reemphasize this court’s commitment to eliminating 

systemic race-based injustice and inequities from our legal system. Amici amply 

demonstrate that racial bias influences the decision to impose a manifest injustice 

sentence. Br. of Fred T. Korematsu Ctr. for Law & Equality et al. as Amici Curiae 

in Supp. of Pet’r (Br. of Amici Curiae Korematsu Ctr. et al.) at 18-19; see also Br. 

of Amici Curiae Am. Civil Liberties Union of Wash. & King County Dep’t of Pub. 

Def. at 3-4 (citing OFFICE OF JUVENILE JUSTICE & DELINQUENCY PREVENTION, 

OJJDP FY 2019 TITLE II RACIAL AND ETHNIC DISPARITIES ACTION PLAN, 

https://www.ojjdp.ojp.gov/sites/g/files/xyckuh176/files/media/document/WAFY18-DMC-PLAN%20508.pdf [https://perma.cc/UL7U-T9WQ].1

 The fact that 

1 Amici call to our attention a considerable body of evidence that shows the juvenile criminal 

system disproportionately affects children of color. See Br. of Amici Curiae Am. Civil Liberties

Union of Wash. & King County Dep’t of Pub. Def. at 4-7 (citing DEP’T OF SOC. & HEALTH

SERVS., WASHINGTON STATE PARTNERSHIP ON JUVENILE JUSTICE 2017 ANNUAL REPORT TO THE

GOVERNOR AND STATE LEGISLATURE (2017), https://www.dcyf.wa.gov/sites/default/files/pdf/JJAnnnualReport2017.pdf [https://perma.cc/T7UL-5Y78] (showing that children of color are more 

likely to face harsher punishment in juvenile court); Ashley Nellis et al., Reducing Racial 

Disparity in the Criminal Justice System: A Manual for Practitioners and Policymakers, THE

SENT’G PROJECT (2018), https://www.sentencingproject.org/wp-content/ 

uploads/2016/01/Reducing-Racial-Disparity-in-the-CriminalJustice-System-A-Manual-for-Practitioners-and-Policymakers.pdf [https://perma.cc/R4JQ27AX] (study showing that probation officers viewed children differently depending on their 

race)). 
State v. D.L., No. 96143-3 (González, C.J., concurring) 

3 

children of color systematically receive disproportionately high sentences violates 

the promise of due process and equal protection of the law. Unfortunately, 

research shows that judges rely on recommendations from probation officers that 

consistently and effectively impose higher sentences on children of color. Br. of 

Amici Curiae Korematsu Ctr. et al. at 18-19 (citing Chris Guthrie et al., Inside the 

Judicial Mind, 86 CORNELL L. REV. 777 (2001) (reporting on five empirical studies 

of judges’ biases and finding that judges are affected by the same biases and 

cognitive illusions as lay people); George S. Bridges & Sara Steen, Racial 

Disparities in Official Assessments of Juvenile Offenders: Attributional Stereotypes 

as Mediating Mechanisms, 63 AM. SOC. REV. 554, 567 (1998) (study finding that 

race of the defendant influences juvenile probation officer 

recommendations)). Requiring notice of aggravating factors will give juveniles a 

more meaningful opportunity to defend against outcomes that might in fact be 

based on racial bias. Given what we know about disproportionate outcomes for 

people of color in our legal system, we must take steps to ensure that all juveniles 

have meaningful notice and opportunity to defend against allegations that expose 

them to a higher sentence. See, e.g., State v. Gregory, 192 Wn.2d 1, 18, 427 P.3d 

621 (2018) (plurality opinion) (“Where new, objective information is presented for 

our consideration, we must account for it.”). 

With these observations, I concur.
State v. D.L., No. 96143-3 (González, C.J., concurring) 

4
State v. D.L., No. 96143-3 (Stephens, J., concurring)

1 

No. 96143-3 

STEPHENS, J. (concurring)—Fourteen year old D.L. pleaded guilty to one 

count of first degree attempted child molestation. After D.L. failed to qualify for a 

special sex offender disposition alternative (SSODA) offered as part of his plea deal, 

the juvenile court imposed a manifest injustice disposition based on D.L.’s actions

during the SSODA screening process and on the fact that D.L.’s victim was 

particularly vulnerable. 

Today’s lead opinion reverses D.L.’s manifest injustice disposition because 

D.L. did not receive notice of all facts supporting the disposition before pleading

guilty. The lead opinion concludes that due process requires juvenile offenders 

receive preplea notice of facts the juvenile court relies on when imposing a manifest 

injustice disposition above the standard range. Lead opinion at 2. I agree with the 

lead opinion that fundamental fairness requires juvenile offenders be notified of facts 
State v. D.L., No. 96143-3 (Stephens, J., concurring)

2 

that exist at the time of their plea that could support a manifest injustice sentence so 

they can make an informed strategic decision about whether to plead guilty. But I 

disagree that due process precludes the court from considering circumstances that 

arise after the plea but before disposition. The lead opinion’s holding creates an 

impossible requirement, premised on the erroneous view that sentencing under the 

juvenile justice system parallels the adult system. It effectively strips juvenile courts 

of the discretion granted to them by the Juvenile Justice Act of 1977 (JJA), ch. 13.40 

RCW, to consider juvenile offenders’ post-plea actions and appropriately assess 

individual risk factors at disposition hearings. As explained in my opinion in State 

v. M.S., No. 96894-2 (Wash. Apr. 15, 2021) (Stephens, J., concurring in part,

dissenting in part), the lead opinion’s flawed analysis will make the flexible juvenile 

justice system operate more like the rigidly punitive adult criminal justice system, 

resulting in more juvenile offenders being charged with new crimes, serving more 

time in confinement, and being burdened with longer criminal histories. Because 

the juvenile justice system disproportionately affects children of color, the lead 

opinion’s decision will only exacerbate the racial inequities that infects our legal 

system. 

I would hold that notice is sufficient when juvenile offenders are advised, 

before pleading guilty, that juvenile courts may consider their postplea actions at 

their disposition hearings and that those actions could support manifest injustice 
State v. D.L., No. 96143-3 (Stephens, J., concurring)

3 

dispositions. Juvenile offenders should be warned that what they say and do during 

a SSODA screening, a deferred disposition, or other disposition alternatives may be 

considered by the juvenile court in support of a manifest injustice disposition at a 

future disposition hearing. Providing such notice addresses the lead opinion’s 

concern that juvenile offenders be able to make informed strategic decisions about 

whether to plead guilty. It does not, however, unduly limit the discretion of juvenile 

courts to do individual justice, nor require the impossible—preplea notice of 

postplea facts. Because D.L. did not receive constitutionally adequate notice here, I 

agree that his manifest injustice disposition must be reversed. 

RELEVANT FACTS

D.L. pleaded guilty to a count of first degree attempted child molestation. As

part of D.L.’s plea deal, the State agreed to recommend a SSODA instead of a term 

in juvenile confinement, assuming D.L. qualified through the SSODA screening 

process. If D.L. did not qualify for SSODA, the State agreed to recommend a 

disposition within the standard range of 15 to 36 weeks in juvenile confinement. 

D.L. agreed that the State’s probable cause statement could serve as the factual basis

for his conviction. That statement mentioned the age of D.L.’s minor victim, but did 

not mention that the victim is cognitively delayed.
State v. D.L., No. 96143-3 (Stephens, J., concurring)

4 

Before accepting D.L.’s plea, the juvenile court engaged D.L. in a colloquy to 

ensure he understood the benefits and consequences of pleading guilty. The juvenile 

court confirmed D.L. understood the rights he was giving up, the SSODA screening 

process, and the standard range for his offense. The juvenile court also made clear 

that it did not have to accept the recommendation in D.L.’s plea deal and that it could 

send D.L. to juvenile confinement in lieu of SSODA, even if D.L. qualified. 

But the juvenile court never directly told D.L. it could impose a manifest 

injustice disposition longer than the standard range of 15 to 36 weeks in juvenile 

detention. The juvenile court’s only reference to dispositions outside the standard 

range was in the context of what D.L. would be able to appeal:

THE COURT: Okay. And do you understand that you cannot 

appeal any sentence I impose within the standard range?

[D.L.]: Yes.

THE COURT: Okay. The only thing you could appeal would 

be a sentence outside the range, but otherwise, whatever I end up 

ordering to here you are stuck with; do you understand that?

[D.L.]: Yes. 

6 Verbatim Report of Proceedings (VRP) at 129-30. Similarly, the only 

mention of a manifest injustice disposition in D.L.’s signed plea deal was in the 

section describing D.L.’s limited right to appeal:

8. RIGHT TO APPEAL SENTENCE: I understand, that the judge must

impose a sentence within the standard range, unless the judge finds by

clear and convincing evidence that the standard range sentence would
State v. D.L., No. 96143-3 (Stephens, J., concurring)

5 

amount to a manifest injustice. If the judge goes outside the standard 

range, either the state or I can appeal that sentence. If the sentence is 

within the standard range, no one can appeal the sentence.

Clerk’s Papers at 108. 

The record does not indicate that D.L. was ever told what could lead the 

juvenile court to impose a manifest injustice disposition, much less that his actions 

during the SSODA screening process could be grounds for a manifest injustice 

disposition. To the contrary, the juvenile court and the State made comments 

suggesting that D.L. should expect a standard range period of confinement if he was 

unable to complete SSODA: 

THE COURT: Okay. The other part of this you need to 

understand is that if you are allowed to do a [S]SODA, and you 

don’t finish the [S]SODA, if you get revoked/removed from that 

[S]SODA, then you would almost automatically go to the

institution for this standard range of 15 to 36 weeks.

6 VRP at 135. 

MS. STONE: And then I just—I know that [D.L.] realizes this,

and I know that this was conveyed to him, but the State’s expectation 

is if things don’t work out, and he does not qualify or if he does 

eventually get revoked [from SSODA,] that it would be an agreed 

recommendation that he go for that standard range. . . . [T]he State 

wouldn’t be arguing for anything outside of that range.”

Id. at 147. 

D.L. did not cooperate with the SSODA screening process. He repeatedly

missed treatment dates and refused to accept accountability for his criminal actions. 
State v. D.L., No. 96143-3 (Stephens, J., concurring)

6 

Consequently, D.L.’s probation officer filed a report with the juvenile court 

recommending D.L. receive a manifest injustice disposition. 

At D.L.’s disposition hearing, the juvenile court found that a manifest 

injustice disposition was necessary because (1) D.L.’s victim was particularly 

vulnerable because the victim is cognitively delayed and (2) D.L.’s actions during 

the SSODA screening process showed D.L. posed a serious risk to reoffend. The 

juvenile court immediately remanded D.L. into juvenile confinement to serve a 

manifest injustice disposition of 36 to 40 weeks. 

D.L. timely appealed, and the Court of Appeals affirmed. State v. Loomer,

No. 77360-7-I, slip op. at 3 (Wash. Ct. App. June 25, 2018) (unpublished), 

http://www.courts.wa.gov/opinions/pdf/773607.pdf. We granted discretionary 

review to decide whether the juvenile court’s imposition of the manifest injustice 

disposition based on facts not contained in the probable cause statement violated 

D.L.’s due process rights.

ANALYSIS

This case asks us to decide whether due process requires juvenile offenders 

be given notice of the specific facts that support aggravating factors for a manifest 

injustice disposition before they enter a plea. The lead opinion concludes that 

notions of fundamental fairness require such notice. I agree in part.
State v. D.L., No. 96143-3 (Stephens, J., concurring)

7 

Specifically, I concur in the lead opinion’s holding that juvenile offenders 

must be given notice, before pleading guilty, of any facts existing prior to plea that 

could be used to support a manifest injustice disposition. Requiring preplea notice 

of facts “tethered to the commission of the immediate crime” makes sense because

“many of the facts that would support a manifest injustice disposition can be 

[included] in the probable cause affidavit and police reports” that provide the factual 

basis for a plea deal. Lead opinion at 12. This requirement is also consistent with 

the United States Supreme Court’s command that juveniles must be notified of the 

charges against them “at the earliest practicable time” so that they have a meaningful 

opportunity to prepare and present a defense to contest the charges against them. In 

re Gault, 387 U.S. 1, 33, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967). I agree that 

fundamental fairness requires juvenile offenders be notified of any existing fact that 

could support a manifest injustice disposition before they enter a plea. Because D.L. 

was not informed before pleading guilty that his victim’s cognitive delays could 

result in a manifest injustice disposition, the juvenile court should not have 

considered that fact at D.L.’s disposition hearing.

Unfortunately, the lead opinion goes on to stretch that practicable notice 

requirement into an impossibility. In a single paragraph near the end of its analysis, 

the lead opinion “hold[s] that facts arising after the plea, like D.L.’s . . . refusal of 

treatment, cannot be used to justify a manifest injustice disposition.” Lead opinion
State v. D.L., No. 96143-3 (Stephens, J., concurring)

8 

at 10. The consequence is clear: because juvenile offenders can never be given 

preplea notice of their postplea actions, juvenile courts can never consider those 

postplea actions when deciding whether to impose a manifest injustice disposition. 

The lead opinion suggests three justifications for so limiting juvenile court’s 

discretion, but none withstand scrutiny. 

First, the lead opinion claims the State should “be bound to its election of 

charges” and should have “charged D.L. differently” if it “wanted to seek a greater 

confinement range.” Id. But the State never tried to change the charge against D.L. 

and never sought a greater confinement range. It was D.L.’s probation officers—

not the attorney representing the State—who recommended the juvenile court 

impose a manifest injustice disposition. In fact, at D.L.’s disposition hearing, the 

State stood by the terms of the plea deal:

MS. STONE: I don’t have anything to present, but I think as 

Your Honor has mentioned before, I think it’s wise for the State to 

remind the Court that I had negotiated a certain amount of weeks in the 

standard range with Ms. Jones and her client. This was an offer that was 

extended while we were in the midst of trial, and the motivation of the 

State—I was hopeful that [D.L.] would qualify for the [S]SODA 

program because I think that that would have been the best case 

scenario for him, being able to get that treatment and have the State pay 

for it and get him the help that he needs. And I remember conveying 

that to Ms. Jones, and I hope that she conveyed that to [D.L.]. But now 

that we’re at where we’re at, we’re looking at the plea agreement that 

we came to if it was found that he was not eligible or if he was revoked, 

which is the 15 to 36 weeks.
State v. D.L., No. 96143-3 (Stephens, J., concurring)

9 

10 VRP at 236. The lead opinion’s suggestion that the State unfairly sought a higher 

confinement range is unfounded.

Second, the lead opinion states without elaboration that “the most relevant 

factors” to juvenile courts’ consideration of manifest injustice dispositions 

“primarily relate to the circumstances surrounding the immediate crime as well as 

the juvenile’s dispositional history.” Lead opinion at 10 (citing RCW 

13.40.150(3)(i)). But nothing in the JJA restricts the juvenile courts’ consideration 

to those factors. To the contrary, the JJA explicitly authorizes juvenile courts to 

consider “all relevant and material evidence.” RCW 13.40.150(1) (emphasis added). 

That is why this court unanimously held juvenile courts can consider nonstatutory 

factors in deciding whether to impose manifest injustice dispositions. State v. M.S., 

No. 96894-2, slip op. at 21 (“The court may consider all material and probative 

evidence in entering a disposition. The limit on what a court may consider as an 

aggravating factor is that the factor must relate to the juvenile posing a ‘serious, and 

clear danger to society.’” (citation omitted) (citing RCW 13.40.150(1) and quoting 

RCW 13.40.020(19))). The lead opinion’s contrary claim is inconsistent with the 

plain language of the JJA and untenable in light of our decision in M.S. 

Finally, the lead opinion argues that “facts arising after the plea may be 

relevant for dispositional purposes for determining a sentence within the standard 

range,” but that “invocation of these facts without any notice to justify a longer 
State v. D.L., No. 96143-3 (Stephens, J., concurring)

10 

sentence clearly runs afoul of the juvenile’s right to fundamental fairness.” Lead 

opinion at 10. This argument is apparently based on the lead opinion’s mistaken 

assumption that manifest injustice dispositions in the juvenile justice context are 

analogous to exceptional sentences based on aggravating circumstances in the adult 

criminal context. “However, a juvenile tried in juvenile court is not being tried in 

an adult criminal court and the analogy to adult criminal courts is not appropriate.” 

State v. S.J.C., 183 Wn.2d 408, 418, 352 P.3d 749 (2015) (rejecting application of 

the constitutional right to open courts to juvenile justice proceedings). 

Instead, we must carefully consider which of the specific “procedural rules 

[that] have been fashioned from the generality of due process” in the adult criminal 

context are necessary to protect the fundamental fairness of juvenile justice 

proceedings. Gault, 387 U.S. at 21. To do so, we must “ascertain the precise impact 

of the due process requirement upon such proceedings” and inquire whether it is 

necessary to guarantee fundamental fairness. Id. at 13-14. That inquiry requires us 

to compare the juvenile and adult justice systems to determine whether the 

procedural rule in question will serve the same purpose.

The procedural rule at issue here is the requirement anchored in Apprendi v. 

New Jersey1 that adult offenders be given “‘sufficient notice from the State to 

1 530 U.S. 466, 494, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
State v. D.L., No. 96143-3 (Stephens, J., concurring)

11 

prepare a defense against the aggravating circumstances that the State will seek to 

prove in order to support an exceptional sentence.’” State v. Siers, 174 Wn.2d 269, 

278, 274 P.3d 358 (2012) (quoting State v. Powell, 167 Wn.2d 672, 682, 223 P.3d 

493 (2009) (plurality opinion); Siers overruled Powell in part). The lead opinion

declines to analyze Apprendi, claiming it does not need to do so “as [it] resolve[s] 

this case on the issue of ensuring fundamental fairness.” Lead opinion at 6 n.3. I 

am unconvinced that Apprendi can be so easily set aside. In order to resolve a case 

on fundamental fairness grounds, we must grapple with the due process requirement 

in question and analyze how it will affect juvenile justice proceedings. Gault, 387 

U.S. at 13-14, 21. Had the lead opinion engaged in this analysis, it would have 

discovered that the constitutional concerns requiring notice of aggravating factors to 

support adult exceptional sentences do not apply with equal force in the juvenile 

context. 

Apprendi holds that due process protections attach to “any fact that increases 

the penalty for a crime beyond the prescribed statutory maximum,” except for the 

fact of a prior conviction. 530 U.S. at 490. In determining whether full due process 

rights attach to specific facts, “the relevant inquiry is one not of form, but of effect— 

does the required finding expose the defendant to a greater punishment than that 

authorized by the [offender’s] guilty [plea]?” Id. at 494. 
State v. D.L., No. 96143-3 (Stephens, J., concurring)

12 

In the adult criminal context, the finding of specific aggravating facts exposes 

adult offenders to higher categories of punishment than they would otherwise be 

eligible to receive. RCW 9.94A.535. Therefore, due process requires adult 

offenders receive notice of those specific facts before they enter a plea. Apprendi, 

530 U.S. at 490 (due process protections attach to “any fact that increases the penalty 

for a crime beyond the prescribed statutory maximum,” other than the fact of a prior 

conviction). 

But in the juvenile context, manifest injustice dispositions are not contingent

on the finding of specific aggravating facts. Unlike adult exceptional sentences, 

juvenile manifest injustice dispositions are possible in every case. See RCW 

13.40.0357, .020(19). Therefore, the finding of specific aggravating facts does not 

expose juvenile offenders to a higher range of punishment in the same way they do 

in the adult context. Another difference is that the finding of specific aggravating 

facts is necessary to expose adult offenders to exceptional sentences, while juvenile 

courts can impose manifest injustice dispositions without finding any specific 

aggravating facts at all. Compare RCW 9.94A.535(3) (“the following circumstances 

are an exclusive list of factorsthat can support a sentence above the standard range”),

with RCW 13.40.0357, and RCW 13.40.020(19) (allowing juvenile courts to impose 

manifest injustice dispositions whenever they find that a standard range disposition 

“would impose a serious, and clear danger to society”). 
State v. D.L., No. 96143-3 (Stephens, J., concurring)

13 

Because no specific set of facts expose juvenile defenders to greater 

punishments than they could receive in any disposition hearing, the due process 

concerns associated with specific aggravating facts in the adult context do not apply

with equal force in the juvenile context. Nor do we serve the interests of juvenile 

justice by importing them here, especially because of the harsh consequences for 

juvenile offenders that will necessarily follow. See M.S., No. 96894-2, slip op. at 22

(Stephens, J., concurring in part, dissenting in part) (“[T]oday’s decision leaves the 

State with only one option to hold juvenile offenders . . . responsible for postplea 

criminal [activity]: file new criminal charges against them.” (citing majority at 16)). 

I would therefore preserve juvenile courts’ long-standing discretion to consider 

juvenile offenders’ postplea actions when deciding whether to impose a manifest 

injustice disposition, so long as juvenile offenders are given meaningful notice of 

that discretion before entering a plea. 

In sum, I believe fundamental fairness requires that juvenile offenders be 

notified before entering their plea (1) of any specific existing facts that could support 

a manifest injustice disposition and (2) that their actions after entering a plea could 

support a manifest injustice disposition. Distinguishing between existing and future 

facts in this manner addresses the lead opinion’s concern that juvenile offenders be 
State v. D.L., No. 96143-3 (Stephens, J., concurring)

14 

able to make informed strategic decisions about whether to plead guilty without 

unduly limiting the discretion granted to juvenile courts by the JJA. 

Under this standard, I agree the juvenile court’s imposition of a manifest 

injustice disposition was fundamentally unfair to D.L. He was not provided any 

notice before his plea that the particular vulnerability of his victim could be 

considered to support a manifest injustice disposition. And, unlike the juvenile 

offender in M.S., D.L. was never given sufficient notice that his actions after entering 

his plea—including his level of cooperation with the SSODA screening process—

could be used to support a manifest injustice disposition. In M.S., the juvenile court 

repeatedly and explicitly told the offender that he could be subject to a manifest 

injustice disposition if he violated the terms of his plea deal. But here, the juvenile 

court glossed over the possibility that it could impose a manifest injustice 

disposition. The words “manifest injustice” do not appear even once in the verbatim 

report of proceedings for D.L.’s plea hearing. 6 VRP at 122-50. The juvenile court 

certainly never explained that D.L.’s failure to successfully complete the SSODA 

screening process could be grounds for a manifest injustice disposition. Instead, the 

juvenile court and the State made comments at D.L.’s plea hearing that suggested 

D.L. could expect a disposition within the standard range if SSODA fell through.

See id. at 135, 147.
State v. D.L., No. 96143-3 (Stephens, J., concurring)

15 

It is obviously impossible to give juvenile offenders notice of facts that have 

not yet occurred at the time they enter a plea. Due process requires only that notice 

be given “at the earliest practicable time.” Gault, 387 U.S. at 33. But juvenile 

offenders can and should be told that juvenile courts can consider their postplea 

actions, including during a SSODA screening process, when deciding whether to 

impose a manifest injustice disposition. I would hold such notice is sufficient to 

satisfy the requirements of fundamental fairness. But because D.L. did not receive 

constitutionally sufficient notice here, I concur in the result reached by the lead 

opinion. 

CONCLUSION

By treating juvenile manifest injustice dispositions like adult exceptional

sentences, the lead opinion undermines the flexibility and discretion that has long 

been the hallmark of our juvenile justice system. This court recently observed that 

“‘[i]f the formalities of the criminal adjudicative process are to be superimposed 

upon the juvenile court system, there is little need for its separate existence.’” 

State v. S.J.C., 183 Wn.2d at 418 (quoting McKeiver v. Pennsylvania, 403 U.S. 

528, 551, 91 S. Ct. 1976, 29 L. Ed. 2d 647 (1971)). No one is well served by a 

juvenile justice system that behaves more like the rigid and punitive adult criminal 

justice system, least of all juvenile offenders. I would preserve the discretion 
State v. D.L., No. 96143-3 (Stephens, J., concurring)

16 

granted to juvenile courts by the JJA and recognize that meaningful notice of facts 

that may support a manifest injustice disposition must be given at the earliest

practicable time. Because D.L. did not receive adequate notice here, I respectfully 

concur in the result to vacate his manifest injustice disposition.