Washington Court Failed to Properly Consider MHSA in Sentencing Felony No-Contact Order Violation

In some circumstances, a Washington criminal defendant may be eligible for a sentencing alternative, including a parenting sentence alternative, a drug offender sentencing alternative (“DOSA”), or a mental health sentencing alternative (“MHSA”).  The defendant must meet certain conditions to qualify for these alternatives.  A defendant is only eligible for an MHSA if: their conviction is for a felony but is not a sex offense or a serious violent offense, they have a diagnosis for a serious mental illness recognized by the current mental health diagnostic manual, the judge determines the defendant and community would benefit from treatment and supervision, and the defendant is willing to participate.  RCW 9.94A.695(1). If the court determines that an MHSA is appropriate, it imposes a term of community custody within a range determined based on the length of the standard range sentence, but the court has discretion in determining the actual length of the community custody within the ranges.  RCW 9.94A.695(4).

A defendant recently challenged his sentence for felony violation of a no-contact order, arguing the court did not follow the proper procedure set forth in the statute when it denied his request for an MHSA.

According to the unpublished opinion of the appeals court, the defendant was arrested outside his ex-wife’s apartment in April, 2021.  Two active no-contact orders prohibited him from contacting her or being within 1,000 feet of her apartment.  He had served a sentence for a prior violation and recently been released.  He was also under the conditions of a DOSA.

He was charged with felony violation of a no-contact order because he had two prior convictions.  The state also alleged domestic violence.  The jury found him guilty.

According to the appeals court, the defendant had a history of three previous no-contact order violations, a conviction for assault, and three convictions for harassment.  The state sought a sentence in the standard range of 60 months.  The defendant requested an MHSA or alternatively an exceptional downward deviation from the standard range.

The Department of Corrections presentence investigation report showed the defendant had diagnoses of borderline personality disorder and complex posttraumatic stress disorder.  The victim told the investigator she did not think the defendant would genuinely accept responsibility for his actions and that she did not think an MHSA was appropriate.  The report concluded the defendant had not been successful in community supervision in the past and would need a substantial change from his previous behavior to succeed with a sentencing alternative.  The Department of Corrections recommended a standard range sentence, but also provided recommendations if the court did sentence him to an MHSA.

The trial court denied the defendant’s requests despite acknowledging he was eligible for an MHSA and sentenced him to 60 months.

The defendant appealed, arguing the court had not meaningfully considered his request for an MHSA and misinterpreted the law.

A standard range sentence generally may not be appealed, but a defendant may challenge the underlying legal determinations that led to the court’s decision.  A sentencing court must meaningfully consider a defendant’s request for a discretionary sentencing decision.

The sentencing court has discretion to decide whether to grant a defendant’s request for an MHSA.  The court must consider the available information, determine if the defendant is eligible, and whether community and the defendant will benefit from the MHSA.  The court must also consider the victim’s opinion.  RCW 9.94A.695(4).

The sentencing court stated that the MHSA would be an exceptional sentence.  The appeals court noted, however, that the sentencing court erred because an MHSA is not an exceptional sentence.  The sentencing court therefore did not have to make findings that an exceptional downward sentence was appropriate, but instead should have considered the factors set forth in RCW 9.94A.695(4).

The state argued any sentencing error was harmless.  Based on prior case law, the appeals court would not have to remand if it was confident the trial court would have imposed the same sentence if the error had not occurred.  The appeals court acknowledged there may be reasons to find an MHSA was not appropriate in this case, but the sentencing court had not identified them.  In fact, the sentencing court had concluded the defendant was “technically eligible” but did not state whether the defendant and the community would benefit from the MHSA.  The appeals court acknowledged that the sentencing court expressed concerns about the defendant’s behavior, but concluded it had not addressed the factors in RCW 9.94A.695(4).

The appeals court concluded the state had failed to meet the burden of showing the sentencing court complied with the statute.  The appeals court also determined remand was appropriate because it could not determine that the sentencing court would have imposed the same sentence if it had correctly considered an MHSA.  The appeals court reversed and remanded to the trial court to consider the MHSA request pursuant to RCW 9.94A.695.

If you have been charged with violation of a no contact order or a protection order, a knowledgeable Washington criminal defense attorney can review the facts of your case and advise you on whether you may be eligible for a sentencing alternative.  At Blair & Kim, PLLC, we have experience in civil protection orders, family law, and criminal defense.  Call our offices at (206) 622-6562 to set up a consultation.


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