Opinion Information Sheet

			

     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )       No. 66614-2-I
                                            )    
                      Appellant,            )       DIVISION ONE
                                            )    
              v.                            )       PUBLISHED OPINION    
                                            )    
ROBERT STUART WILLHOITE,                    )
                                            )
                             Respondent.            )      FILED: January 17, 2012

       Grosse, J.  --  When, as here, the facts are undisputed that the defendant did not 

have a relationship with any of the victims involved in the crime, the defendant is not 

eligible for a special  sex  offender  sentencing  alternative  (SSOSA) under the plain 

language of the statute that requires as a condition of eligibility the existence of a 

relationship with the victim. Accordingly, we reverse and remand for resentencing.

                                            FACTS

       Robert Willhoite pleaded guilty to one count of possession of depictions of a 

minor engaged in sexually explicit conduct and one count of dealing in such depictions. 

According to the affidavit of probable cause, federal agents identified Willhoite as a 

user of a website that was used to distribute child pornography.  Willhoite uploaded 

three images to the site depicting children aged two through seven years old engaged 

in sexual acts with adult males.  Police seized his computer pursuant to a search 

warrant and a search of the computer revealed several depictions of young children 

engaged in sexually explicit conduct.  Following the seizure of his computer, Willhoite 

met with a detective at the Sheriff's office and admitted that he had downloaded  

No. 66614-2-I / 2

hundreds of images of minors engaged in sexually explicit conduct.  

       The State charged Willhoite with one count of possession of depictions of a 

minor engaged in sexually explicit conduct and one count of dealing in such depictions.  

As part of the plea agreement, the State agreed to recommend 31 months' confinement 

on each count, the bottom of the standard ranged for the dealing charge.  Willhoite 

agreed that the court could consider at sentencing facts contained in the affidavit of 

probable cause.  

       Before sentencing, Willhoite obtained a sexual deviancy evaluation.  During this 

evaluation, he admitted that he viewed child pornography an average of four times 

weekly, concentrating mostly on females aged five through ten years old, and denied 

that he knew any of the children in the pictures he viewed.  The evaluator concluded 

that he was a reasonable candidate for community-based sexual deviancy treatment.  

       At sentencing, Willhoite asked the court to sentence him under the special sex 

offender sentencing alternative (SSOSA) that allows the court to impose a suspended 

sentence subject to     a number of conditions, including completion of appropriate 
treatment.1   The State opposed a SSOSA, contending that Willhoite was ineligible 

under the statute because he did not meet the requirement that he had a relationship 

with the victims.  The court noted that the Department of Corrections recommended a 

SSOSA and concluded that this statutory requirement did not apply in this case 

because there was no victim, as that term is defined in the statute, because there was 
no evidence in the record about the particular harm suffered by these victims.2             The 

1 RCW 9.94A.670(4), (5).  
2 The statute defines "victim"        as  "any person who has sustained emotional, 
psychological, physical or financial injury to person or property as a result of the crime 
                                              -2- 

No. 66614-2-I / 3

court then imposed a SSOSA sentence of 34 months for the possession charge and 41 months for 

the dealing charged, both of which were suspended on condition of 9 months' confinement and 

36 months' outpatient treatment.  The State appeals the sentence.

                                          ANALYSIS

       Willhoite contends that the State is barred from appealing his sentence because 

it was within the standard range and the State fails to allege any legal error that the trial 

court committed in its imposition.  Willhoite is correct that a standard range sentence is 
generally not appealable.3       But as he also acknowledges, appellate review of a 

sentence is available to the State to correct legal errors or abuses of discretion in 
determining which sentence applies.4            Additionally, a party may challenge the 

underlying facts and legal conclusions by which a court applies a particular sentencing 
provision.5  RAP 2.2(b)(6) also permits the State to appeal a criminal sentence that 

"includes provisions that are unauthorized by law," or "omits a provision that is required 

by law."  

       In State v. Williams, the court held that the State could appeal the trial court's 

determination of the defendant's eligibility for special sentencing under the drug 

offender sentencing alternative (DOSA) provisions of RCW 9.94A.660 because  the 

grounds for appeal were not challenges to a standard range sentence, but "challenges 
to claimed legal errors in determining which sentencing provision applies."6           Likewise 

charged." RCW 9.94A.670(1)(c).
3 RCW 9.94A.585; RAP 2.2(b)(6).  
4 State v. Kinneman, 155 Wn.2d 272, 283, 119 P.3d 350 (2005).  
5 Kinneman, 155 Wn.2d at 283; State v. Wood, 117 Wn. App. 207, 210, 70 P.3d 151 
(2003).  
6 149 Wn.2d 143, 144, 147, 65 P.3d 1214 (2003).
                                              -3- 

No. 66614-2-I / 4

here, the State does not challenge          the length of the standard range sentence, but 

challenges  the court's determination that the SSOSA sentencing provision applies, 

contending that the statutory criteria for eligibility for that sentence were not met.  Thus, 

the State's appeal of the SSOSA is properly before this court.   

       The eligibility requirements for a SSOSA are set forth in RCW 9.94A.670(2), 

which provides:

       (2) An offender is eligible for the special sex offender sentencing alternative if:

       (a) The offender has been convicted of a sex offense other than a violation of 
       RCW 9A.44.050 or a sex offense that is also a serious violent offense. If the 
       conviction results from a guilty plea, the offender must, as part of his or her plea 
       of guilty, voluntarily and affirmatively admit he or she committed all of the 
       elements of the crime to which the offender is pleading guilty. This alternative is 
       not available to offenders who plead guilty to the offense charged under North 
       Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1972) and State 
       v. Newton, 87 [Wn.2d] 363, 552 P.2d 682 (1976);

       (b) The offender has no prior convictions for a sex offense as defined in RCW 
       9.94A.030 or any other felony sex offenses in this or any other state;

       (c) The offender has no prior adult convictions for a violent offense that was 
       committed within five years of the date the current offense was committed;

       (d) The offense did not result in substantial bodily harm to the victim;

       (e) The offender had an established relationship with, or connection to, the victim 
       such that the sole connection with the victim was not the commission of the 
       crime; and

       (f) The offender's standard sentence range for the offense includes the 
       possibility of confinement for less than eleven years.[7]

Thus,  under the plain language of the          statute, to be eligible    for a SSOSA, the 

defendant  must have had an established relationship with the victim.  Here, it is 

undisputed that Willhoite did not have a relationship with any of the victims.  He was 

7 (Emphasis added.)
                                              -4- 

No. 66614-2-I / 5

therefore ineligible for a SSOSA.  

       Willhoite's argument that there was no evidence establishing a victim here does 

not change this result.  As set forth above, the statute is clear that eligibility depends on 

the listed conditions, including the existence of a victim who has a relationship with the 
offender.8 Thus, even if there were no victim as Willhoite contends, he would still fail to 

meet this condition and would remain ineligible under the plain language of the statute.  

       We reverse and remand for resentencing.

WE CONCUR:

8 "An offender is eligible for the special sex offender sentencing alternative if . . . ."  
RCW 9.94A.670(2) (emphasis added).
                                              -5-