Opinion Information Sheet

			

 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                 )         No. 64058-5-I
                      Respondent,                )
                                                 )         DIVISION ONE
              v.                                 )
                                                 )         PUBLISHED OPINION
NICHOLAS LANDSIEDEL,                             )
                                                 )
                      Appellant.                           FILED: January 17, 2012
                                                 )

                                                 )

                                                 )

       Appelwick, J.  --  Landsiedel argues the trial court abused its discretion in 

concluding he was ineligible for a SSOSA.  He claims he is eligible for a SSOSA,

because his wife satisfied the statutory definition of "victim" when she suffered 

emotional or psychological harm as a result of his internet crimes against 

children.  But, such a statutory interpretation, while literally correct, would render 

other portions of the statute meaningless or superfluous. We affirm.

                                        FACTS
       In 2009, Nicholas Landsiedel was convicted of attempted rape of a child 

in the second degree and communication with a minor for immoral purposes.  In 

December 2007, he had arranged through a chat room to meet a person he 

believed to be a 13 year old female, in order to engage in sexual intercourse and 

"pretend" rape.  The other person in the chat room was actually a Seattle Police  

No. 64058-5-I/2

detective posing as a 13-year-old female.  Landsiedel took a substantial step 

towards the rape by appearing at the location where they had agreed to meet.  

       Before sentencing, Landsiedel submitted a presentence statement urging 

the court to apply a special sex offender sentencing alternative (SSOSA).  RCW 

9.94A.670.  He reiterated his SSOSA request at the sentencing hearing, arguing 

that the term "victim" as defined in the SSOSA statute included his friends and 

family who suffered as a result of his crime.  The State responded that it 

believed there was no actual victim in this case and that Landsiedel's reading of 

the SSOSA statute was contrary to the legislative intent of the statute.  The trial 

court concluded that it did not have discretion to impose a SSOSA, because 

Landsiedel was not eligible, and on July 6, 2009 it imposed a sentence within 

the standard range.  Landsiedel timely appealed on August 3, 2009.  

                                    DISCUSSION

   I.  SSOSA Statute

       Landsiedel argues that the trial court erred by concluding that he was not 

eligible for a SSOSA.  He claims that the trial court had the discretion to 

consider a SSOSA, and its failure to do so constituted an abuse of discretion.  

Where a defendant has requested a sentencing alternative authorized by 

statute, a trial court's failure to consider that alternative is effectively a failure to 

exercise discretion and is subject to reversal.  See State v. Grayson, 154 Wn.2d 

333, 342, 111 P.3d 1183 (2005).  However, whether Landsiedel was eligible for 

a SSOSA is a question of statutory interpretation, which we review de novo.  Dot 

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No. 64058-5-I/3

Foods, Inc. v. Dep't of Revenue, 166 Wn.2d 912, 919, 215 P.3d 185 (2009).

       The SSOSA statute provides:

              (2)  An offender is eligible for the [SSOSA] if:

              (a)  The offender has been convicted of a sex offense other 
       than a violation of RCW 9A.44.050 [rape in the second degree] or 
       a sex offense that is also a serious violent offense. . . .;

              (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.

RCW    9.94A.670 (emphasis added).  "'Victim'          means any person who has 

sustained emotional, psychological, physical, or financial injury to person or 

property as a result of the crime charged.          'Victim' also means a parent or 

guardian of a victim who is a minor child unless the parent or guardian is the 

perpetrator of the offense."       RCW    9.94A.670(1)(c).  Landsiedel meets the 

eligibility criteria under RCW 9.94A.670(2)(a), (b), (c), (d), and (f), and the state 

does not dispute this.  The only issue contested here on appeal is whether 

Landsiedel is eligible under subsection (2)(e).

       Statutory interpretation questions are questions of law that we review de 

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No. 64058-5-I/4

novo.  Dot Foods, 166 Wn.2d at 919.  The court's primary duty in interpreting the 

statute is to ascertain and carry out the legislature's intent.  Lake v. Woodcreek 

Homeowners Ass'n, 169 Wn.2d 516, 526, 243 P.3d 1283 (2010).  Statutory 

interpretation begins with the statute's plain meaning.  Id.           When the plain 

language is unambiguous, the legislative intent is apparent and we will not 

construe the statute otherwise.  State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318

(2003).  The plain meaning of a statute may be discerned from all that the 

legislature has said in the statute and related statutes which disclose legislative 

intent about the provision in question.  Id.  

       Here, Landsiedel argues that the statutory definition of victim is clear and 
unambiguous  and that we need not look beyond this plain definition.1                Any 

person who sustained an emotional or psychological injury to his or her person 

as a result of the charged crimes comes under the definition of victim, based on 

a plain meaning review of the statutory language at RCW 9.94A.670(1)(c).              He 

argues that his wife, Dziedra Landsiedel, is a victim.  Therefore, he did have an 

established relationship with the victim, apart from the crime, and satisfies 

subsection 2(e).  The State does not dispute that Landsiedel and his wife had an 

established relationship, nor does it dispute that she sustained some emotional 
or psychological injury as a result of the charged crimes.2

1 Neither party argues that the statute is ambiguous.  But, Landsiedel 
nevertheless points to the rule of lenity, in the event that we deem that there is 
ambiguity.  Under the rule of lenity, if a criminal statute is ambiguous and the 
legislative intent is insufficient to clarify it, the ambiguity must be resolve in favor 
of the defendant.  State v. Carter, 138 Wn. App. 350, 356-57, 157 P.3d 420 
(2007).
2 Although Landsiedel and his wife were not married at the time of the crimes, 

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       The State argues Landsiedel's interpretation would be directly contrary to 

the legislature's intent, in its 2004 amendments to the SSOSA statute, to restrict 

and limit SSOSA eligibility.  Laws of 2004, ch. 176, § 4 (amending former RCW 

9.94A.670 (2002)).  The SSOSA has existed since 1984.  It was recodified as an 

independent statute as of July 1, 2001.  Laws of 2000, ch. 28, §§ 5, 20, 46; State 
v. Osman, 157 Wn.2d 474, 481 n.6, 139 P.3d 334 (2006).3  Prior to the 2004 

amendments, the SSOSA statute contained the same three  limitations on a 

defendant's eligibility that are now found at RCW 9.94A.670(2)(a), (b), and (f): 

the current conviction must not have been for rape in the second degree or a sex 

offense that is also a serious violent offense; the offender could not have a prior 

conviction for a felony sex offense; and the current offense must be punishable 

by confinement of less than 11 years.  Former RCW 9.94A.670(2)(a), (b), and (c) 

(eff. July 1, 2001).  In 2004, the legislature added three provisions on a 

defendant's eligibility, now at RCW 9.94A.670(2)(c), (d), and (e):

              (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;

they were in the process of moving in together and they were married by the 
time of trial.  Dziedra Landsiedel's own brief testimony established her emotional 
or psychological injury as a result of her husband's crimes.  She stated she was 
"terrified" by his failure to meet her as scheduled on the day of the crime.  She 
also commented at sentencing about what she had gone through in standing by 
her husband through the aftermath of the crimes, and about the great impact she 
expected Landsiedel's sentence to have on her and her son going forward.  
3 Before 2001, the terms of a sentencing alternative for sex offenders were 
codified as part of the general sentencing statute.  Former RCW 
9.94A.120(8)(a)(ii) (2000); former RCW 9.94A.120(7)(a) (1984).
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No. 64058-5-I/6

              (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.

Laws of 2004, ch. 176, § 4 (emphasis added).          The new provisions are clearly 

greater limitations on eligibility. The State correctly argues the plain language 

shows that the legislature was intent on narrowing the statute and did so.

However, Landsiedel's argument is not really that new subsection (e) expanded 

eligibility for his wife, but merely that she satisfies its definition of victim, making 

him eligible.  The definition of victim has not been amended, and Landsiedel's 
wife met that definition both before and after the 2004 amendments.4                The 

eligibility argument he makes could have been advanced under either version of 

the statute.  The legislative intent in 2004 is not dispositive.

       SSOSA is a sentencing alternative.  The limitations make clear it was not 

intended to be available to everyone.  Yet, Landsiedel's literal application of the 

term "victim" in subsection (e) would allow SSOSA eligibility where anyone with 

whom the defendant has a prior relationship has suffered emotional or 

psychological injury as a result of the crime.    The State argues this would be an 

expansion of eligibility, certainly beyond what has been observed in practice.  

We agree.  Under Landsiedel's theory it is hard to conceive of any defendant 

who would not have a relationship with someone who could satisfy the literal 

definition of "victim," despite having no relationship with the person against 

whom the charged crime was actually perpetrated.  In essence, his interpretation 

4 Prior to the 2004 amendments, the definition was at former 9.94A.670(1)(b) 
(2001), rather than at RCW 9.94A.670(1)(c) where it is now.
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No. 64058-5-I/7

renders the limitation in subsection (e) meaningless, not a limitation at all.

Further, if the first sentence of the definition of "victim" means what Landsiedel 

contends, the second sentence of that definition would be superfluous.          Statutes 

should not be interpreted so as to render any portion meaningless, superfluous, 

or questionable.  State v. Winkle, 159 Wn. App. 323, 328, 245 P.3d 249 (2011). 

       We hold that Landsiedel's wife is not a victim of the crime for purposes of 

subsection (e) and, therefore, Landsiedel is not eligible for a SSOSA.

   II. Trial Court's Findings of Fact and Conclusions of Law

       The trial court conducted a CrR 3.5 hearing prior to trial to determine the 

admissibility of statements Landsiedel made to police before and after his arrest.  

Following the hearing, the court ruled orally on the CrR 3.5 motion to admit 

Landsiedel's statements, finding that all of the statements were admissible.  The 

prosecutor prepared proposed written findings of fact and conclusions of law on 

the CrR 3.5 motion in 2009 to reflect the court's oral ruling, but this written 

document was not presented to the trial court at that time.  Upon realizing that 

the findings of fact and conclusions of law were never entered, the prosecutor 

presented the written document to the trial court in March 2011.  The trial court 

entered the signed document on March 10, 2011.  

       The purpose of written findings and conclusions is to promote efficient 

and precise appellate review.  State v. Cannon, 130 Wn.2d 313, 329, 922 P.2d 

1293 (1996).  Written findings of fact and conclusions of law are mandatory.  

CrR 3.5; State v. Cunningham, 116 Wn. App. 219, 227, 65 P.3d 325 (2003).  

Landsiedel argues that the trial court's failure to timely enter written findings and 

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conclusions requires remand.  His argument is unpersuasive.  "Although the 

practice of submitting late findings and conclusions is disfavored, they may be 

'submitted and entered even while an appeal is pending' if the defendant is not 

prejudiced by the belated entry of findings."   Cannon, 130 Wn.2d at 329-30

(quoting State v. McGary, 37 Wn. App. 856, 861, 683 P.2d 1125 (1984).  The 

written findings and conclusions were actually prepared in 2009, long before 

Landsiedel filed his appeal.  And, they track the trial court's oral ruling faithfully.  

Thus, there is no evidence they were tailored or altered to address any 

arguments raised by Landsiedel in his appellate briefing.  Landsiedel was not 

prejudiced by the late submission and entry of the findings and conclusions.

       We affirm.

       WE CONCUR:

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