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Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

STATE OF WASHINGTON,                                             No. 42147-0-II

                             Respondent,

       v.

DONALD GEORGE BECKWITH,                                    UNPUBLISHED OPINION

                             Appellant.

       Johanson, J.  --  Donald Beckwith appeals the trial court's denial of a "Special Sex 

Offender Sentencing Alternative" (SSOSA), RCW 9.94A.670, on two counts of first degree child 

molestation.  Concluding that the trial court did not abuse its discretion in denying his request for 

a SSOSA, we affirm.1

                                            FACTS

       On September 20, 2010, the State charged Beckwith with five counts of first degree child 

molestation.  The victim was the nine-year-old daughter of a family friend.  On March 17, 2011, 

Beckwith pleaded guilty in exchange for the State recommending SSOSA and amending the 

information to charge two counts of first degree child molestation.  

       Beckwith was examined by two medical experts as well as the Department of Corrections

(DOC) to determine his suitability for SSOSA.  Beckwith first underwent a neuropsychological 

1 A commissioner of this court initially considered Beckwith's appeal as a motion on the merits 
under RAP 18.14 and then transferred it to a panel of judges. 

No. 42147-0-II

examination, conducted by Kenneth Muscatel, Ph.D., because he had a history of spinal meningitis

which led to neurological problems.  Dr. Muscatel's report noted that Beckwith appeared to 

exhibit symptoms consistent with mild traumatic  brain injury caused by his bout with spinal 

meningitis.  Particularly, Dr. Muscatel noted, "[Beckwith's] cognitive deficits, while not dramatic, 

likely are focused in the right hemisphere of the brain, as well as the frontal lobes.  A frontal lobe 

injury adversely affects emotional regulation, judgment and impulse control."    Clerk's Papers 

(CP) at 62.  The report concluded that Beckwith had "sufficiently intact cognitive skills to benefit 

from therapy, and should be able to learn new skills that would reduce his risk of reoffending."  

CP at 63.

       Joseph A. Jensen, Ph.D., also evaluated Beckwith for SSOSA eligibility.  Dr. Jensen 

concluded that Beckwith "presents as a marginal candidate for sexual deviance treatment 

primarily due to his uneven presentation in clinical interviews regarding his sexual offending 

history." CP at 161.  The report further noted that Beckwith's responses to Dr. Jensen's 

questions were evasive until he was told that he was risking his opportunity for a SSOSA 

recommendation.

       A DOC investigator wrote a presentence investigation (PSI) report following an interview 

with Beckwith.  Beckwith denied molesting the victim, maintaining that he was not guilty of the 

offenses.  When describing the offense, Beckwith said that he "was just goofing around" during 

the incident and that he only pleaded guilty upon the recommendation of his attorney.  CP at 132.  

The presentence report concluded that Beckwith was not a suitable candidate for SSOSA due to 

his minimization of the offense and his refusal to admit guilt.

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No. 42147-0-II

       Beckwith sent a letter to the sentencing court dated April 17, 2011.  The letter read:

              With respect to this Honorable Court, I would like to say I Donald 
       Beckwith [truly] apologize for any and all of my actions that has shame[d] this 
       Honorable Court as well as myself and my family.  I understand that whatever 
       punishment I [receive]  is entirely at your discretion but I am writing this 
       correspondence with the hopes that you will take this in[to] considerati[on] when 
       deciding your decision.  Your Honor I am not trying to down play my actions by 
       any means as you already know I plead guilty which I believe is the first step in 
       taking responsibility for my wro[ng] doing; I plead[ed] guilty on March 17, 2011 
       because I knew that it was the right thing to do and because I believed that with 
       proper help I could fix any problems that I may have that is why I beg upon this 
       court for mercy and to allow me to enter into the [SSOSA] program to help me fix 
       any problems I may have.  Your Honor I am a 64 year old elderly man and I know 
       me being elderly is no excuse but I beg of you to please take that into 
       consideration.  As I stated I believe I can be helped and that the [SSOSA] program 
       could be just the help I need to get my life back on track, as you may know this is 
       my very first felony and I can promise you this will be my las[t] felony.  My 
       parents are elderly and retired both are in their mid 80's please let me try to bring 
       some honor back to my family getting the help I need which will also help to 
       restore some hono[r] within myself. Please and Thank You.

CP at 64.

       At sentencing, the State and defense jointly recommended a SSOSA.  The victim's mother 

vehemently expressed her opposition to a SSOSA.  Her family was concerned with Beckwith's 

return to the victim's small community were the court to impose a SSOSA disposition.  The DOC

officer also noted that Beckwith was not forthcoming during the PSI process and that Beckwith 

believed that he would continue to have a relationship with the victim, her family, and the church 

they attended together.

       The trial court denied Beckwith's request for a SSOSA.  In doing so, the judge recalled an 

instance in his courtroom in which a 78-year-old woman was questioned during voir dire in 

another case:

              I think one of the stories that I will never forget was we had a trial with 
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No. 42147-0-II

       questioning jury members and we were doing that privately if they had been 
       involved in some type of sexual abuse in the past and we had a 78 year old woman 
       who was being questioned and she had been abused as a young child by one of her 
       relatives, sexually abused, and as she sat there and talked about it, there were tears 
       flowing down her eyes so at 78 years old it still had an impact on this lady so there 
       is no question that [the victim] is going to deal with this for the rest of her life.

Sentencing Hearing (SH) at 18-19.  Further, the court noted that it scrutinizes the presentence 

investigation report because "the Department has kind of an insight into these things because they 

have to deal with them quite often."  SH at 19.  The court explained that it was also heavily 

influenced by Beckwith's letter to the court, which made no mention of the impact of his actions 

on the victim or her family.  The court also considered Dr. Jensen's report, which expressed 

concern regarding Beckwith's minimization of his offense.  Concluding that Beckwith was not an 

appropriate candidate for a SSOSA, the court sentenced him to 84 months' confinement. 

                                          ANALYSIS

       Beckwith contends that the trial court abused its discretion by denying his request for a 

SSOSA because it placed undue weight on the opinion of the victim's mother.       Beckwith also 

argues the trial court should have given more deference to the expert reports           and the 

recommendation of the prosecuting attorney, and less deference to the DOC's PSI report.  Under 

SSOSA, certain first-time sex offenders may receive a suspended sentence if they meet the 

statutory requirements and comply with a treatment program as ordered by the court.  RCW 

9.94A.670(2), (5); State v. Montgomery, 105 Wn. App. 442, 444, 17 P.3d 1237, 22 P.3d 279

(2001). If the court finds an offender eligible for SSOSA, the court may order an examination to 

determine whether the offender is amenable to treatment.  RCW 9.94A.670(3).  In deciding 

whether to grant a SSOSA, the court considers (1) the SSOSA evaluator's report; (2) the risk the 

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No. 42147-0-II

offender would present to the community, to the victim, and to other persons of similar age and 

circumstances as the victim; (3) the victim's opinion; (4) whether the offender and the community 

will benefit from the program; (5) whether the alternative is too lenient in light of the extent and 

circumstances of the offense; (6) whether the offender has additional victims; and (7) whether the 

offender is amendable to treatment.  RCW 9.94A.670(3), (4).  Further, the trial court must give 

great weight to the opinion of a victim with respect to granting a SSOSA.  RCW 9.94A.670(4).

       We review the denial of a SSOSA for an abuse of discretion.  State v. Frazier, 84 Wn. 

App. 752, 753, 930 P.2d 345, review denied, 132 Wn.2d 1007 (1997).  A trial court abuses its 

discretion if its decision is manifestly unreasonable or based upon untenable grounds or for 

untenable reasons.  State v. Cunningham, 96 Wn.2d 31, 34, 633 P.2d 886 (1981).       "Even if an 

offender is eligible for SSOSA, the decision to grant it is discretionary on the part of the 

sentencing judge."  Montgomery, 105 Wn. App. at 444. The sentencing court need not provide a 

reason for its denial, nor is it bound by expert opinion.  State v. Hays, 55 Wn. App. 13, 15, 776 

P.2d 718 (1989); State v. Toomey, 38 Wn. App. 831, 837, 690 P.2d 1175 (1984), review denied, 

103 Wn.2d 1012, and cert. denied, 471 U.S. 1067 (1985).

       The trial court did not lack discretion to deny a SSOSA simply because the State and 

defense jointly recommended that disposition and the sexual deviancy evaluators found that 

Beckwith was a marginal candidate.  The court properly           considered  all the facts   and 

circumstances, including the PSI, the victim's family's opposition to SSOSA, and Beckwith's 

letter to the court.  See Frazier, 84 Wn. App. at  754.  It was also  not bound by the 

recommendations in Dr. Jensen or Dr. Muscatel's reports.  See Toomey, 38 Wn. App. at 837.

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No. 42147-0-II

       The record before the court at sentencing included the PSI, which stated that Beckwith 

intended to continue teaching children of the victim's age at Sunday school.  The report noted 

that this was "of great concern" to the corrections officer.  CP at 137.  The information in the PSI 

further suggested that Beckwith downplayed the events leading to his conviction.  This attitude 

was also evidenced in Beckwith's letter to the court, which neglected to mention the impact of his 

actions on the victim.  While his reply brief suggests that his medical conditions (post-spinal 

meningitis and diabetes) may interfere with his ability to express remorse, nothing in Dr. Jensen's 

or Dr. Muscatel's reports supports that suggestion.  Dr. Jensen's report concluded that Beckwith 

was a "marginal candidate for sexual deviance treatment," and noted that Beckwith was resistant 

to admit to the facts of his offense.  CP at 161.  Finally, the victim's family was adamant that 

Beckwith not receive a SSOSA.       These facts constitute reasonable grounds supporting the 

sentencing court's decision to deny Beckwith's request for a SSOSA.

       Beckwith further contends that the trial court improperly relied on its experience by noting 

the lifelong impact of childhood sexual abuse and by commenting that the DOC "has kind of an 

insight into [SSOSA recommendations] because they have to deal with them quite often."  SH at 

19.  Sentencing judges need not "make decisions in a factual vacuum."  State v. Grayson, 154 

Wn.2d 333, 339, 111 P.3d 1183 (2005).  Rather, judges are expected to bring their common 

sense to bear in making sentencing determinations.  Grayson, 154 Wn.2d at 339.  Here, the 

sentencing court properly considered the effect that childhood sexual abuse potentially has 

throughout a victim's lifetime.  The court further did not err in noting that the DOC has a unique 

amount of experience in evaluating offenders for SSOSA.

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No. 42147-0-II

       We affirm the trial court's decision not to sentence Beckwith under SSOSA.

       A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it 

is so ordered.

                                                                   Johanson, J.
We concur:

              Quinn-Brintnall, J.

              Worswick, A.C.J.

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