Qualifying for Residential-Based DOSA Sentencing in Washington

In a Washington criminal case, the court must generally impose a sentence within the standard sentence range.  RCW 9.94A.505.  In some circumstances, however, the court may deviate from the standard range.  These exceptions include exceptional sentences, first-time offender waivers, and Drug Offender Sentencing Alternative (DOSA). DOSA allows a reduced sentence, treatment, and increased supervision for certain non-violent drug offenders with a goal to help them recover from addiction.  The DOSA statute sets forth the criteria for qualifying for special sentencing and provides for both prison-based and residential chemical dependency treatment-based alternatives.  RCW 9.94A.660.  Under the statute, the residential chemical dependency treatment-based alternative is only available if the midpoint of the standard range is not greater than 24 months.

In a recent case, the state challenged the imposition of a residential-based DOSA sentence because the defendant’s standard range midpoint was greater than 24 months.  According to the opinion, the defendant twice sold his prescription Suboxone strips to a police informant within 1,000 feet of a school bus stop.  He was charged with two counts of delivering the drug, each with a sentence enhancement for delivering within 1,000 feet of a school bus stop.  The standard sentence range for the defendant, based on his offender score and the seriousness of the crime, was 12 to 20 months, plus a 24-month enhancement for each count.

The state offered a deal that would drop one count and recommend prison-based DOSA for the other.  This would have resulted in 20 months in prison and 20 months in community custody.  The state rejected the defendant’s counter offer to plead guilty if the state removed the school-zone enhancements so he could serve a residential-based DOSA rather than a prison-based DOSA.

The defendant pleaded guilty to both counts and the enhancements.  He sought a first-time offender waiver or a residential-based DOSA.  The state opposed both requests.  The state argued that the DOSA statute did not allow residential-based DOSA when the standard range is greater than 24 months.  The trial court, however, sentenced the defendant to a residential-based DOSA.

The state appealed and argued the court did not have the discretion to sentence the defendant to residential-based DOSA.  The Court of Appeals found that the trial court may waive sentence enhancements to get the standard range low enough to allow residential-based DOSA.  If the trial court had waived the school-zone enhancements, the midpoint of the defendant’s standard range would be 16 months, which would allow for a residential-based DOSA.  Because there was no sentencing transcript, the appeals court remanded to allow the sentencing court to confirm or exercise the waiver of the enhancements, or, alternatively, to resentence the defendant.  The dissenting opinion, however, argued that the court could not both waive the enhancement and impose the DOSA.  The Washington Supreme Court granted review.

The defendant argued that the statute gave the trial court broad discretion to change the standard sentence range.  He argued the trial court had “waive[d] imposition of a sentence within the standard sentence range” and imposed a sentence with a lower midpoint.  The Supreme Court noted this would allow the sentencing court to assign any midpoint it wanted to accommodate its own preference regarding DOSA.

The state argued the statute limited the trial court’s discretion in waiving the standard range.  The state argued that the court could waive imposition of a sentence within the standard range, but had to impose prison-based or residential based DOSA in accordance with the statute.  It also argued the court could impose only a prison-based DOSA if the midpoint of the standard range is greater than 24 months.

The Supreme Court agreed with the state.  The court noted that the statute provides instructions on what the trial court is to do if it waives imposition of a sentence within the standard range.  If the court waives the standard sentence, it is to impose a sentence of prison-based or residential-based DOSA pursuant to the respective statutes.  The court pointed out that those statutes provide detailed instructions on calculating the DOSAs.  The statute does not specifically allow the court to disregard any enhancements, and the Washington Supreme Court noted that the rules of statutory construction do not allow it to add words when the legislature did not include them.  All of the language in the statute, however, is to be given effect.  Here, the statute specifically states the court may only impose a residential-based DOSA if the midpoint of the standard range is not more than 24 months.

The Washington Supreme Court specifically held that the trial court may not waive sentence enhancements or parts of the base sentence to decrease the standard range to allow a residential-based DOSA sentence.  The court reversed the court of appeals and remanded for a full resentencing.  The Washington Supreme Court has clarified the extent of the trial court’s discretion in sentencing under DOSA.  While this decision limits a court’s discretion in imposing alternative sentencing, it does provide clarification and guidance to defendants seeking residential DOSA sentencing.

If you are facing criminal drug charges, an experienced Washington criminal defense attorney can fight for the best possible outcome for you.  Call Blair & Kim, PLLC at (206) 622-6562 to set up a consultation.

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