Opinion
No. 64136-1-I.
Filed: September 27, 2010. UNPUBLISHED OPINION.
Appeal from a judgment of the Superior Court for King County, No. 09-1-02828-8, Bruce E. Heller, J., entered September 8, 2009.
Affirmed by unpublished opinion per Appelwick, J., concurred in by Becker and Cox, JJ.
Alseth pleaded guilty to five felony counts of theft of a motor vehicle, one count of possession of a stolen vehicle, as well as two misdemeanor counts. At sentencing, he requested a DOSA under RCW 9.94A.660. The trial court denied his request, noting that Alseth was not a good candidate for a DOSA sentence in light of the insufficient evidence of his drug addiction. The court also noted Alseth's considerable criminal history and expressed its intention to apply the high end of the sentencing range. The record shows that the trial court did not categorically deny Alseth's request for a DOSA, but gave reasonable consideration to the particular circumstances and facts of his case. Accordingly, the trial court did not abuse its discretion, and we affirm the standard range sentence imposed.
FACTS
On August 12, 2009 William Alseth pleaded guilty to one count of criminal trespass in the first degree, one count of making or having vehicle theft tools, one count of possession of a stolen vehicle, and five counts of theft of a motor vehicle. Based on his offender score of 23, Alseth's standard sentence range was 43 to 57 months, and the State recommended that he receive a top of the range sentence. Alseth asserted that he had a drug addiction, and requested a prison-based drug offender sentencing alternative (DOSA) pursuant to RCW 9.94A.660. A DOSA would reduce his confinement to one half of the midpoint of his sentencing range, plus a like period of community custody. RCW 9.94A.662. The State opposed the motion. The trial court declined to grant Alseth a DOSA, imposing a sentence of 57 months for the felonies. Alseth timely appealed.
DISCUSSION
Alseth contends that he meets all of the eligibility requirements for a DOSA. As a general rule, the trial judge's decision of whether to grant a DOSA is not reviewable. State v. Grayson, 154 Wn.2d 333, 338, 111 P.3d 1183 (2005). However, an offender may always challenge the procedure by which a sentence was imposed. Id. An offender may challenge a legal error in eligibility for a sentencing alternative. State v. Watson, 120 Wn. App 521, 529, 86 P.3d 158 (2004), aff'd, 155 Wn.2d 574, 122 P.3d 903 (2005). And, he may challenge a sentence for an abuse of discretion. It is an abuse of discretion for a trial court to categorically refuse to seriously consider whether a DOSA sentence was appropriate. Grayson, 154 Wn.2d at 342. A trial court abuses its discretion only if its decision is manifestly unreasonable or based on untenable grounds or untenable reasons. See, e.g., State v. Riley, 121 Wn.2d 22, 37, 846 P.2d 1365 (1993).
An offender is eligible for a DOSA if:
(a) The offender is convicted of a felony that is not a violent offense or sex offense and the violation does not involve a sentence enhancement under RCW 9.94A.533 (3) or (4);
(b) The offender is convicted of a felony that is not a felony driving while under the influence of intoxicating liquor or any drug under RCW 46.61.502(6) or felony physical control of a vehicle while under the influence of intoxicating liquor or any drug under RCW 46.61.504(6);
(c) The offender has no current or prior convictions for a sex offense at any time or violent offense within ten years before conviction of the current offense, in this state, another state, or the United States;
(d) For a violation of the Uniform Controlled Substances Act under chapter 69.50 RCW or a criminal solicitation to commit such a violation under chapter 9A.28 RCW, the offense involved only a small quantity of the particular controlled substance as determined by the judge upon consideration of such factors as the weight, purity, packaging, sale price, and street value of the controlled substance;
(e) The offender has not been found by the United States attorney general to be subject to a deportation detainer or order and does not become subject to a deportation order during the period of the sentence;
(f) The end of the standard sentence range for the current offense is greater than one year; and
(g) The offender has not received a drug offender sentencing alternative more than once in the prior ten years before the current offense.
RCW 9.94A.660(1).
The State does not dispute Alseth's eligibility, but instead points out that such eligibility is only a prerequisite to the trial court then exercising its discretion on whether to grant a DOSA. Grayson, 154 Wn.2d at 335; RCW 9.94A.660 provides that even after a finding of eligibility, the court still must determine whether a DOSA is "appropriate":
(2) A motion for a special drug offender sentencing alternative may be made by the court, the offender, or the state.
(3) If the sentencing court determines that the offender is eligible for an alternative sentence under this section and that the alternative sentence is appropriate, the court shall waive imposition of a sentence within the standard sentence range and impose a sentence consisting of either a prison-based alternative under
RCW 9.94A.662 or a residential chemical dependency treatment-based alternative under RCW 9.94A.664. RCW 9.94A.660 (emphasis added). Accordingly, upon Alseth's motion for a DOSA, the trial court was required to make its discretionary determination of whether such a sentencing alternative was appropriate in light of his particular circumstances.
At sentencing on September 4, 2009, the State made certain erroneous assertions about the conditions necessary for a prison based DOSA to be appropriate. For example, the State mistakenly claimed that "the Court has to find that the defendant and the community would benefit from the imposition of a DOSA. In other words, there would be some reduction in crime because of the granting of the DOSA." In fact, due to a 2009 amendment to RCW 9.94A.660, this requirement now only applies to candidates for a residential chemical dependency treatment based alternative. Laws of 2009, ch. 389, § 2. Alseth does not qualify for such an alternative, because the midpoint of his sentence range is greater than 24 months he is only eligible for the prison based alternative and the community benefit language does not apply in that context. RCW 9.94A.660(3), (5)(iv). Similarly, the State mistakenly asserted that Alseth had no prior drug convictions, and implied that an offender's lack of such convictions was evidence that they did not truly suffer from a drug addiction. In fact, Alseth did have a controlled substance violation on his record from 1999 for possession of drug paraphernalia. And, while prior drug convictions may be useful evidence in a trial court's determination of the appropriateness of a DOSA, such prior convictions are not required under the statute. See RCW 9.94A.660(1).
Alseth points to these errors by the State in support of his central contention that the trial court used the wrong legal standard and abused its discretion in denying him a DOSA. However, the trial court did not rely on the State's errors or improperly apply RCW 9.94A.660 in this case — the State's errors were not the trial court's errors. Indeed, the trial court promptly questioned the State's assertions about the requirements for a DOSA, pointed out Alseth's prior drug conviction that the State had overlooked, and ultimately conducted its own proper and particularized analysis of whether a DOSA was appropriate for this specific defendant. When the trial court ultimately concluded that a DOSA was not appropriate for Alseth, it did so carefully and reasonably, relying on the correct standard under RCW 9.94A.660 and properly applying its discretion:
This court generally is very receptive to a DOSA recommendation, because the Court believes that unless the underlying problem is addressed, giving somebody jail time and just letting him cycle through ultimately isn't in society's best interest. However, in this case, the Court concludes that there is simply not enough evidence of a significant drug problem for the Court to believe that a DOSA really is the appropriate sentence in this case. I have no doubt that Mr. Alseth may have been involved with meth, at least at some point. He has some prior convictions for that, but I do agree with [the] State that we are basically talking about self-reporting, and I generally require something more substantial. I need to see that somebody isn't just asking for a DOSA because it may result in less incarceration. . . . I can certainly understand why Mr. Alseth would like a DOSA, but given the significant criminal history that he has, and given the very sparse evidence, except checking some boxes on an evaluation, the Court is not going to impose a DOSA.
The record does not reflect the trial court's categorical refusal to consider Alseth's DOSA request, nor does it reflect a manifestly unreasonable sentencing decision. Accordingly, we hold that the trial court did not abuse its discretion by refusing to grant the DOSA.
In his statement of additional grounds, Alseth contends that he complied with RCW 9.94A.525(2)(c) and that his prior felonies should therefore not have been included in his offender score. But, the record shows that Alseth, who asserts he was released from custody in 2003, committed criminal trespass in 2007. He was then convicted of that crime. Alseth therefore did not have "five consecutive years in the community without committing any crime that subsequently result[ed] in a conviction." RCW 9.94A.525(2)(c). He did not comply with RCW 9.94A.525(2)(c).
Second, Alseth contends that his current charges encompassed the same criminal conduct and should have been treated as one single crime for the purposes of sentencing. Multiple crimes constitute the "same criminal conduct" if they "require the same criminal intent, are committed at the same time and place, and involve the same victim." RCW 9.94A.589(1)(a). If different crimes involved different victims, a court must treat the crimes as separate in calculating the offender score. State v. Vermillion, 66 Wn. App 332, 343, 832 P.2d 95 (1992). Here, each of the offenses that counted toward his offender score occurred at a different time and place and involved a different victim. Accordingly, they were not part of the same criminal conduct, and Alseth is not entitled to relief.
We affirm Alseth's sentence.
WE CONCUR: