Opinion
No. 40747-7-II.
Filed: January 4, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Lewis County, No. 09-1-00396-8, Richard L. Brosey, J., entered April 14, 2010.
Affirmed by unpublished opinion per Van Deren, J., concurred in by Penoyar, C.J., and Worswick, J.
The Lewis County Superior Court revoked Daryl Ball's drug offender sentencing alternative (DOSA) sentence and sentenced him to 20 months of confinement and 12 months of community custody. Ball appeals, arguing that, under former RCW 9.94A.660(5)(c)(ii)(C) (2009), the trial court could not impose a term of confinement longer than 18 months, the midpoint of his standard sentence range. Concluding that former RCW 9.94A.660(5)(c)(ii)(C) does not apply to Ball, and that former RCW 9.94A.660(7) does, we affirm.
Now codified as RCW 9.94A.664(4)(c).
A commissioner of this court initially considered Ball's appeal as a motion on the merits under RAP 18.14 and then transferred it to a panel of judges.
On July 27, 2009, after Ball entered a plea of guilty to unlawful possession of methamphetamine, the trial court imposed a DOSA sentence, under which he would participate in residential chemical dependency assessment and treatment for 3to 6 months and, upon completion of treatment, he would serve 24 months of community custody. The court scheduled a progress hearing for December 3, 2009. At the hearing, the trial court found that Ball had just completed residential treatment and was on schedule to begin community custody. But by February 10, 2010, Ball had tested positive for methamphetamine on two occasions and had aborted outpatient treatment. The State moved for an order revoking Ball's DOSA sentence and imposed a 20 month term of confinement. After a second hearing, the trial court revoked Ball's DOSA sentence and imposed the 20 month term of confinement the State had requested. Ball appeals.
Ball argues that the trial court employed the wrong statute when it imposed the 20 month term of confinement. He contends that because his standard sentence range was 12 to 24 months, the court was required to impose a term of confinement of 18 months, the midpoint of his standard sentence range, under former RCW 9.94A.660(5)(c)(ii)(C), which provided:
In his brief, Ball also argued that the trial court erred by refusing to give him credit against his term of confinement for the time he spent in residential chemical dependency treatment. But on July 28, 2010, after the brief was filed, the trial court entered an order amending Ball's judgment and sentence to give him credit for his time in residential chemical dependency treatment. Therefore, this issue is moot.
Before the progress hearing and treatment termination hearing, the treatment provider and the department shall submit written reports to the court and parties regarding the offender's compliance with treatment and monitoring requirements, and recommendations regarding termination from treatment. At the hearing, the court may. . . .[i]mpose a term of total confinement equal to one-half the midpoint of the standard sentence range, followed by a term of community custody under RCW 9.94A.715.
The State responds that the trial court correctly imposed the 20 month term of confinement under former RCW 9.94A.660(7)(a), which provided:
The court may bring any offender sentenced under this section back into court at any time on its own initiative to evaluate the offender's progress in treatment or to determine if any violations of the conditions of the sentence have occurred.
. . . .
(c) The court may order the offender to serve a term of total confinement within the standard range of the offender's current offense at any time during the period of community custody if the offender violates the conditions of the sentence or if the offender is failing to make satisfactory progress in treatment.
Ball replies that the trial court erred by not applying former RCW 9.94A.660(5)(c)(ii)(C) because (a) it is the more specific statute, Bowles v. Dep't of Ret. Sys., 121 Wn.2d 52, 78, 847 P.2d 440 (1993), and (b) the rule of lenity, State v. Lively, 130 Wn.2d 1, 14, 921 P.2d 1035 (1996), is applicable to him. But former RCW 9.94A.660(5)(c)(ii)(C) does not apply to Ball. The trial court did not revoke Ball's DOSA sentence after a "progress hearing" or a "termination treatment hearing," in which former RCW 9.94A.660(5)(c)(ii)(C) would have applied. It revoked Ball's DOSA sentence after it brought him back into court on the State's motion. Therefore, former RCW 9.94A.660(7) is the only applicable statute, and the trial court did not err in imposing Ball's 20 month term of confinement under that statute. We affirm.
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 pursuant to RCW 2.06.040, it is so ordered.
PENOYAR, CJ. and WORSWICK, J., concur.