Opinion
No. 37797-7-II.
September 15, 2009.
Appeal from the Superior Court, Clark County, No. 07-1-00915-9, Robert A. Lewis, J., entered May 29, 2008.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Houghton and Hunt, JJ.
A jury entered a verdict finding Charles R. Bilyeu guilty of second degree identity theft, forgery, and first degree criminal impersonation, contrary to former RCW 9.35.020(3) (2004), 9A.60.020(1)(a)-(b), and 9A.60.040(1)(a). Bilyeu appeals his conviction and sentence, arguing that the trial court improperly denied his constitutional right to self-representation. Bilyeu also argues that the trial court's refusal to redact references to specific charges on an exhibit, which Bilyeu concedes was otherwise admissible, denied him a fair trial and that the trial court erred at sentencing when it denied his request for a Drug Offender Sentencing Alternative (DOSA), former RCW 9.94A.660 (2006).
We hold that the trial court properly denied Bilyeu's request to proceed pro se, which the record shows was equivocal and untimely filed for the purpose of delaying trial; Bilyeu waived his right to appeal the trial court's denial of his request to redact and that the trial court properly exercised its discretion when it declined to consider Bilyeu's request for a DOSA sentence on nondrug related offenses. Accordingly, we affirm.
FACTS Background Facts
On February 22, 2007, Officer Timothy Wilson was patrolling a street in Battle Ground, Washington, when he saw a Ford pickup truck with California license plates. Wilson ran the truck's license plate, found the vehicle license was suspended, and performed a traffic stop. The driver of the truck could not produce a valid driver's license or any other form of identification, but identified himself as Roger G. Bilyeu. Wilson arrested the man for heroin possession and transported him first to the Battle Ground police station and then to the Clark County Jail. The driver, eventually identified as Charles R. Bilyeu, continued to assert that he was Roger G. Bilyeu, Bilyeu's brother, throughout his arrest, detention, arraignment, and at all court proceedings on his heroin possession charge.
Nancy Druckenmiller, an identification specialist at the Clark County Sheriff's Office, received information from the Washington State Patrol and the Federal Bureau of Investigation that the fingerprints on Bilyeu's 10-print booking card did not match with the name Roger G. Bilyeu, but instead belonged to Charles R. Bilyeu; she noted the discrepancy.
On March 14, 2007, Bilyeu pleaded guilty to heroin possession. At sentencing, Bilyeu expressly asserted that his name was Roger G. Bilyeu, and the trial court sentenced him to 45 days of incarceration based on his brother's offender score of zero; he signed his felony judgment and sentence form with the name Roger Bilyeu.
On May 24, 2007, the State charged Bilyeu with second degree identity theft, forgery, and first degree criminal impersonation for misrepresenting himself as his brother Roger in the above proceedings. On September 27, 2007, the State amended the information to allege aggravating factors based on Bilyeu's true offender score and seeking an exceptional sentence. Procedural Facts
Bilyeu waived speedy trial on September 27, 2007, December 13, 2007, and March 13, 2008. Trial was set to begin on May 14, 2008. On May 12, 2008 Bilyeu moved for a change of judge, his third; the case was originally assigned to Department 3, then to Department 5, and then with the May 12, 2008 motion it came before the Honorable Judge Robert Lewis.
Also on May 12, 2008, two days before trial, Bilyeu filed a motion requesting substitution of counsel. On May 13, 2008, the trial court held a hearing on the motion. The record reveals the following:
THE COURT: [T]here was a motion, apparently, to withdraw as counsel. Is that correct?
MR. VUKANOVICH: A motion — yeah, to substitute, to have — this is really Mr. Bilyeu wants me to be substituted out and a new attorney appointed.
THE COURT: And I'd note that in reviewing the file, that Mr. Bilyeu was originally assigned to Vancouver Defenders. They apparently had some sort of a conflict, so Mr. Rucker was appointed in July of `07; represented him until December of `07, at which time he moved to withdraw because of concerns between Mr. Bilyeu and Mr. Rucker. And at that time Mr. Vukanovich was appointed; has been counsel for some time now.
And what's the difficulty?
MR. BILYEU: We've gotten nowhere. [Defendant complains about representation regarding calculating his offender score and objecting to being in jail after having posted a bond but he does not ask to represent himself.]
Report of Proceedings (RP) (May 13, 2008) at 3-4.
Bilyeu's defense counsel told the court that he had raised the issue of Bilyeu's bail before a different judge who noted Bilyeu had failed to appear at a readiness hearing. The following exchange then took place:
THE COURT: Okay. Are you prepared to proceed to trial?
[Defense counsel]: Yes, Your Honor.
MR. BILYEU: No, no, I — I don't even want him, Your Honor. I'll — I'll defend myself. I'll — I'll —
THE COURT: I think you tried to tell me that back —
MR. BILYEU: I'll — I'll —
THE COURT: — with Judge — with Mr. Rucker, too.
MR. BILYEU: I'll — I'll — I'll defend myself, Your Honor. I mean, he — he comes and tells me he's got 99.9 percent chance of losing. And who wants something like that? I mean, I got 99.9 percent chance of losing my own self. And — and he's a lawyer, and he tells me that? I mean, he should — he should say "78 percent," "50 percent," or something. I mean, 99.9 percent of losing? And then, today, I don't even know how many points I got. They give me a bill for 43 a month.
THE COURT: Well, your points don't have anything to do with the trial. The points are what happens if you —
MR. BILYEU: Hey, hey, hey —
THE COURT: — if you lose at the trial or plead guilty. If you win at the trial, then you don't have to worry about the points. Now why would you represent yourself if you just told me three minutes ago that you don't even know what you're charged with?
. . . .
THE COURT: Do you know what you're charged with?
MR. BILYEU: Well, really, I'd — I've just — it's that (inaudible) theft forgery, I guess. I — I — he — he's — they were — I don't know. But I'll — I — I'll —
THE COURT: Did you have anything you wanted to add, [Prosecutor]?
[Prosecutor]: Your Honor, just basically that, you know, he's — when we were here in — December 7th, in front of Judge Nichols, and he wanted to fire Mr. Rucker, Judge Nichols expressed on the record — and I've got a copy of it — his reluctance to even substitute counsel. He even said that — basically, Judge Nichols said that his concern was that Mr. Bilyeu was going to do this with another — with another attorney. And prophetically, here we are again: One day before trial, he's requesting another attorney.
Your Honor, the State would just — would just ask that we would — that he be — retain Mr. Vukanovich, to stay with the case, and that we proceed to trial tomorrow morning. The State's ready. We're ready for trial.
He's had Mr. Vukanovich since December 7th, 2007, and there's just — he indicates that he's been here all along. However, you know, in October of `07, he failed to appear for his supervised release hearing. We had to get a warrant. Then he failed last — failed to appear last week for readiness because he failed to appear for sentencing in Lewis County, and they picked him up and he had to serve sentencing. So he [failed to appear at] Lewis County; that's why he [failed to appear] here last week.
I think that it'd be — I've had many discussions about this case with Mr. Vukanovich. We've gone over and over and over this case, probably more than I've touched or discussed with any case in the last year with any attorney; and I think it's been adequately discussed, and the State's ready to go to trial tomorrow.
THE COURT: Was there anything else you wanted to add, Mr. Bilyeu?
MR. BILYEU: I just want to be voluntary. I don't want to have no more to do with this man. Because he hasn't —
THE COURT: All right. Well, people are —
MR. BILYEU: — he hasn't done nothing. Absolutely nothing. I mean, to get him to come and see me I — I have to almost call over and threaten him, Your Honor. I mean, I almost have to tell him that "I'm going to send somebody here to whup your ass if you don't come over and see me" before he even comes to see. . . . Well, I still — I still will represent myself. I don't want to have nothing to do with —
THE COURT: I understand that you've — I understand that you're asking to represent yourself. And normally, you have a constitutional right to do that. However, the Court has the right to refuse requests to change counsel, and to decide to go from court-appointed counsel to self-representation in those circumstances where it appears to me that it's a stall tactic. That appears to be what it is here. So I'll deny your request. We'll proceed to trial tomorrow.
RP (May 13, 2008) at 6-11. Bilyeu then asked to be allowed access to the law library so that he could file a motion. No further motion appears to have been filed.
A jury trial began on May 14, 2008. Before opening statements, the trial court heard Bilyeu's motion to exclude any references to his criminal history under ER 404(b). The State indicated that the only evidence it intended to offer regarding Bilyeu's prior criminal history was the guilty plea and judgment and sentence from his heroin conviction that he signed with his brother's name. The trial court ordered the removal of Roger G. Bilyeu's criminal history, which was attached to the judgment and sentence form. But the trial court denied Bilyeu's request to redact references to the crime of heroin possession,
THE COURT: Yeah. Well, it may be a difficult thing. I don't know what the redact — if you want to look at it — the redactions — a possibility of redaction [is] fine; unfortunately, the particular type of case has to be tried the way it is. If the allegations are that he made — conducted certain criminal acts in the course of a criminal proceeding, then the jury's going to know about the criminal proceeding. In some ways, it might be worse to have them speculate as to what the charge was.
So I'm not going to order any specific redactions. If you see a redaction that you'd like to make, if you can propose it; and I'll rule on that. But unfortunately, the jury's going to know that there's a criminal proceeding involved.
RP (May 14, 2008) at 17.
During direct examination of the first witness, Bilyeu attempted to object to the admission of evidence. The trial court informed Bilyeu that his counsel would make objections for him. Bilyeu once again tried to make an objection; the trial court excused the jury and then informed Bilyeu,
Now, Mr. Bilyeu, whether you represented yourself or you were represented by counsel — which, in this case, you're represented by counsel — this isn't some TV talk show where you just interrupt everybody and talk whenever you feel like it. If you'd like to continue to be in the courtroom during these proceedings, then you'll either communicate softly with your attorney, or during a break; or whenever I have the opportunity for you to speak, then you can speak; but you will not interrupt people or these proceedings. Do you understand that?
RP (May 14, 2008) at 45.
Bilyeu answered affirmatively but continued to argue his objection. Bilyeu then renewed his request to proceed pro se:
[Bilyeu]: . . . And I'll renew my motion to fire this attorney, and I'll do — I'll do this trial myself, because I can do a hell of a lot better than this man sitting right here, Your Honor. That's all.
THE COURT: Request to represent yourself is denied for the reasons it was previously denied. And further, your belief that you could do a lot better job for yourself is not based in fact. From what little I've seen, you'd do a much worse job.
But be that as it may, I'm denying it not because of whether you'd do a poor job or a good job, but because I've previously found that it's an attempt to stall the proceedings.
RP (May 14, 2008) at 46. Bilyeu did not personally object, or otherwise speak out of turn, throughout the remainder of the trial. The jury found Bilyeu guilty of second degree identity theft, forgery, and first degree criminal impersonation.
At sentencing, Bilyeu requested that the trial court consider him for DOSA. The trial court denied Bilyeu's request for a DOSA sentence stating,
I wouldn't consider DOSA a — I have to — as I understand it, I have to look at DOSA as relating to dealing with controlled substance-related offenses. So the controlled substance-related offenses I'd have to be worried about are the Identity Theft, the Forgery, and the Criminal Impersonation in the First Degree. Those all occurred at a time when he wasn't using controlled substances, because he was in custody. So I can't — I couldn't find that those were related to his use of or abuse of controlled substances, because I'd have to really stretch to do that.
The fact that, maybe, before and after those things, he used controlled substances, or that he has a drug problem, may be true; but identity theft, forgery, and criminal impersonation — he apparently did those without being under the influence of controlled substances.
RP (May 29, 2008) at 14.
Defense counsel then argued that Bilyeu might have been under the influence of controlled substances when he was arrested for possessing heroin and identified himself as Roger Bilyeu. The court responded that while Bilyeu might have been under the influence when he committed criminal impersonation, he was not under the influence when he committed the other offenses. The trial court refused Bilyeu's request for DOSA consideration, stating,
I'm denying the request to have the matter set over for pre-sentence report for DOSA; because I couldn't find that it qualifies for DOSA in any event. DOSA is for people who commit crimes under the influence of controlled substances or as a result of their drug problem.
RP (May 29, 2008) at 15.
The trial court imposed a standard range sentence of 50 months incarceration and 9 to 10 months community custody based on Bilyeu's offender score of 9 or more. Bilyeu timely appeals his conviction and sentence.
ANALYSIS
Right to Self-Representation
Bilyeu first challenges the trial court's refusal to allow him to represent himself pro se. Bilyeu argues that the trial court erred when it denied his request to proceed pro se, because there is no evidence in the record to support the trial court's finding that he asserted his right to self-representation for the purpose of delaying the trial. We disagree. The record clearly reveals that Bilyeu's self-representation request was an equivocal afterthought when it appeared his second or third motion for substitution of counsel was going to be denied. Because Bilyeu could not even tell the court the charges against him, his request that he be allowed to represent himself against those charges was also not made knowingly and intelligently. Moreover, in light of his repeated requests to substitute counsel on the eve of trial, substantial evidence supports the trial court's finding that Bilyeu asserted his untimely self-representation request for the improper purpose of delaying the trial.
The state and federal constitutions guarantee a criminal defendant the right to self-representation. U.S. Const. amends. VI, XIV; Wash. Const. art. I, § 22; Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). The right to self-representation "is afforded a defendant despite the fact that exercising the right will almost surely result in detriment to both the defendant and the administration of justice." State v. Vermillion, 112 Wn. App. 844, 850-51, 51 P.3d 188 (2002) (citing State v. Fritz, 21 Wn. App. 354, 359, 585 P.2d 173 (1978), review denied, 92 Wn.2d 1002 (1979)), review denied, 148 Wn.2d 1022 (2003). A defendant requesting self-representation does not need to demonstrate technical knowledge of the law and the rules of evidence. Faretta, 422 U.S. at 835. But the defendant's request must be unequivocal, knowingly and intelligently made, and must be timely. State v. Breedlove, 79 Wn. App. 101, 106, 900 P.2d 586 (1995). The defendant cannot exercise his right to self-representation for the purpose of delaying the trial or obstructing justice. Breedlove, 79 Wn. App. at 106.
Once a defendant makes an unequivocal request to proceed pro se, the trial court must determine whether the defendant's waiver of the right to counsel is valid, "preferably through a colloquy on the record assuring that the defendant understands the risks of self-representation." Vermillion, 112 Wn. App. at 851 (citing City of Bellevue v. Acrey, 103 Wn.2d 203, 211, 691 P.2d 957 (1984)). In making this determination, the trial court should apprise the defendant of the seriousness of the charge, the maximum potential penalty involved, and the existence of technical, procedural rules governing the presentation of the accused's defense. Vermillion, 112 Wn. App. at 851.
We indulge in every reasonable presumption against finding that a defendant has waived the right to counsel. State v. Chavis, 31 Wn. App. 784, 789, 644 P.2d 1202 (1982). The right to self-representation is either respected or denied; its deprivation cannot be harmless. Vermillion, 112 Wn. App. at 851 (citing McKaskle v. Wiggins, 465 U.S. 168, 177 n. 8, 104 S. Ct. 944, 79 L. Ed. 2d 122 (1984)).
We review a trial court's denial of a defendant's request to proceed pro se for abuse of discretion. Vermillion, 112 Wn. App. at 855. In the context of a criminal defendant's request to proceed pro se, the trial court's discretion lies along a continuum, corresponding to the timeliness of the request:
(a) if made well before the trial or hearing and unaccompanied by a motion for continuance, the right of self-representation exists as a matter of law; (b) if made as the trial or hearing is about to commence, or shortly before, the existence of the right depends on the facts of the particular case with a measure of discretion reposing in the trial court in the matter; and (c) if made during the trial or hearing, the right to proceed pro se rests largely in the informed discretion of the trial court.
Fritz, 21 Wn. App. at 361. Here, Bilyeu requested to proceed pro se on the eve of trial, thus the trial court had a measure of discretion in deciding whether to accept or deny his request based on the surrounding circumstances.
We have reviewed the record and agree with the trial court that Bilyeu's request was equivocal and at most was an expression of frustration with his attorney rather than a true desire for self-representation. See State v. Luvene, 127 Wn.2d 690, 698-99, 903 P.2d 960 (1995), and State v. Woods, 143 Wn.2d 561, 585-87, 23 P.3d 1046, cert. denied, 534 U.S. 964 (2001). In Luvene, the defendant opposed his counsel's request for a continuance and expressed his frustration, stating, "If I'm prepared to go for myself, then that's me." 127 Wn.2d at 698. Our Supreme Court found that the defendant's request was equivocal because he followed the above statement with "I'm not even prepared about that" and "[t]his is out of my league for doing that" and, thus, "[t]aken in the context of the record as a whole, these statements can be seen only as an expression of frustration by Mr. Luvene with the delay in going to trial and not as an unequivocal assertion of his right to self-representation." Luvene, 127 Wn.2d at 698-99.
Similarly, in Woods, our Supreme Court found that the defendant's statement, "I will be-I will be prepared to proceed with-with this matter here without counsel come October 21st," was merely an expression of the defendant's frustration with his counsel's request to continue the trial. 143 Wn.2d at 587. In reaching this decision, our Supreme Court noted that "telling a trial judge he `will be prepared to proceed without counsel' is qualitatively different than telling a judge that one wishes to proceed pro se." Woods, 143 Wn.2d at 588. Likewise here, when asked whether he was ready to proceed to trial Bilyeu stated, "No, no, I — I don't even want him, . . . I'll — I'll defend myself. I'll — I'll." RP (May 13, 2008) at 6.
Moreover, Bilyeu did not make a knowing and intelligent request to proceed pro se because there is nothing in the record showing Bilyeu's awareness of the risks of self-representation. Although the record is devoid of any evidence that Bilyeu made a knowing and intelligent request to proceed pro se, when the trial court began its colloquy by asking Bilyeu if he knew what he was charged with, Bilyeu did not know. Further colloquy would likewise have proved fruitless.
"[A] trial court must establish that a defendant, in choosing to proceed pro se, makes a knowing and intelligent waiver of the right to counsel." State v. DeWeese, 117 Wn.2d 369, 377, 816 P.2d 1 (1991) (citing State v. Bebb, 108 Wn.2d 515, 525, 740 P.2d 829 (1987)). Our Supreme Court has held that this requirement extends to a defendant's choice to represent himself rather than remain with current appointed counsel after the court has rejected an unjustified request for substitute counsel. DeWeese, 117 Wn.2d at 377. The preferred method for determining a criminal defendant's knowing waiver of the right to counsel is a colloquy on the record discussing the seriousness of the charge, the possible maximum penalty involved, and the existence of technical procedural rules governing the presentation of his defense. DeWeese, 117 Wn.2d at 378 (citing Acrey, 103 Wn.2d at 211).
Here, the trial court began the desired colloquy by asking Bilyeu if he knew what he was charged with. Bilyeu's response indicated that he did not know the charges and was confused about his offender score. The trial court asked Bilyeu if he had anything else to add and Bilyeu continued to express his frustrations with counsel. The trial court explained that his offender score inquiries were not relevant at this stage of the proceedings, and Bilyeu responded, "I still will represent myself." RP (May 13, 2008) at 11. The trial court then denied Bilyeu's request finding that after having reviewed the entire court file in the matter, it was clear that Bilyeu's request was disingenuous and a stall tactic. The record supports this finding.
The trial court's determination that Bilyeu's request to proceed pro se was for the purpose of delaying the trial is well supported by any evidence in the record. The State detailed the history of the case for the court including that in December on the eve of trial, Bilyeu had previously substituted his defense counsel and that the judge who granted the substitution did so reluctantly because of a concern that Bilyeu would again ask for new counsel on the eve of his next scheduled trial. Bilyeu's previous last minute substitution of counsel is a valid reason for the trial court to deny his second last minute request for another substitution of counsel and suggests that Bilyeu's motivation was to stall the trial.
Bilyeu's request to proceed pro se was equivocal, he did not make a knowing and intelligent waiver of his right to counsel, and there is ample evidence in the record indicating that he made the request for the purpose of delaying trial. The trial court's decision to deny Bilyeu's equivocal request for self-representation is well supported by this record.
Motion to Redact Criminal Charge
Next, Bilyeu argues that the trial court's denial of his motion to redact references to his heroin possession charge on his guilty plea and judgment and sentence form was irrelevant and unfairly prejudicial in violation of ER 402 and 403. Bilyeu concedes that these documents were admissible and necessary to the State's case, but argues that the trial court's refusal to redact references to his heroin possession conviction denied him a fair trial. We disagree.
We review a trial court's ruling on the admissibility of evidence for an abuse of discretion. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995). A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds or reasons. Powell, 126 Wn.2d at 258.
As an initial matter, Bilyeu did not preserve this issue for appeal. Here, before opening arguments, Bilyeu requested that the trial court redact references to his heroin possession conviction on his guilty plea and judgment and sentence form, which Bilyeu had signed with his brother's name. The trial court ordered the removal of Roger Bilyeu's criminal history, which was attached to the judgment and sentence form. But the trial court denied Bilyeu's request to redact references to his heroin possession conviction, stating that it would not "order any specific redactions." RP (May 14, 2008) at 17. The trial court indicated that its decision not to order any specific redactions was tentative subject to a presentation of this evidence at trial, stating, "a possibility of redaction [is] fine. . . . If you see a redaction that you'd like to make, if you can propose it[,] I'll rule on that." RP (May 14, 2008) at 17. Bilyeu did not make any further objections regarding references to his heroin possession charge and thus did not preserve this issue for appeal. See Powell, 126 Wn.2d at 257 (a defendant waives errors associated with a trial court's tentative evidentiary rulings unless he gives the trial court an opportunity to reconsider its ruling) (citing State v. Carlson, 61 Wn. App. 865, 875, 812 P.2d 536 (1991), review denied, 120 Wn.2d 1022 (1993)).
Even if Bilyeu properly preserved this issue for appeal, the trial court did not abuse its discretion when it denied his request to redact references to his heroin possession. While Bilyeu points out the prejudicial nature of a defendant's drug addiction, the trial court properly reasoned that it would be more prejudicial to allow the jury to speculate about the nature of Bilyeu's previous conviction. Accordingly, the trial court did not abuse its discretion when it denied Bilyeu's request to redact the name of his prior offense. Sentencing
Bilyeu argues that the trial court erred at sentencing when it denied his request for a DOSA sentence. We disagree.
The purpose of the DOSA program is "to provide treatment for some offenders judged likely to benefit from it." State v. Grayson, 154 Wn.2d 333, 337, 111 P.3d 1183 (2005). The DOSA statute, former RCW 9.94A.660, grants the trial court discretion to give eligible nonviolent drug offenders a reduced sentence, treatment, and increased supervision in an attempt to help them recover from their addictions. Generally, the trial court's decision whether to grant a DOSA is not reviewable because it constitutes a standard range sentence. RCW 9.94A.585(1); Grayson, 154 Wn.2d at 338. But an offender may always challenge the procedure by which a sentence was imposed. Grayson, 154 Wn.2d at 338.
Bilyeu argues that because former RCW 9.94A.660 does not explicitly require that an offender commit the current offense while under the influence of controlled substances, the trial court abused its discretion by denying Bilyeu's request for DOSA consideration on the untenable basis that he did not commit his offenses while under the influence of controlled substances.
Here, the trial court did not abuse its discretion in denying Bilyeu's request for a DOSA sentence. Although nothing in former RCW 9.94A.660 explicitly requires that an offender have committed his offense while under the influence of controlled substances to be eligible for DOSA, the trial court must decide "[w]hether the offender and the community will benefit from the use of the alternative." Former RCW 9.94A.660(2)(d); State v. White, 123 Wn. App. 106, 115, 97 P.3d 34 (2004); see also State v. Gronnert, 122 Wn. App. 214, 225, 93 P.2d 200 (2004). Here, in denying Bilyeu's request for a DOSA sentence, the trial court reasoned:
I'm denying the request to have the matter set over for pre-sentence report for DOSA; because I couldn't find that it qualifies for DOSA in any event. DOSA is for people who commit crimes under the influence of controlled substances or as a result of their drug problem.
RP (May 29, 2008) at 15 (emphasis added). The reasoning provided by the trial court is tenable. It may have concluded that because Bilyeu did not commit his offenses while under the influence of controlled substances, he would not benefit from DOSA. But the trial court clearly reasoned that Bilyeu committed two of the offenses in a premeditated fashion while incarcerated, indicating that a general desire to escape prolonged confinement, as opposed to drug dependence, contributed significantly to his criminal conduct.
The trial court's decision not to allow Bilyeu to represent himself was proper and it did not err by declining to redact information from the documentary evidence essential to prove the State's case. In addition, because the conditions under which Bilyeu committed these offenses do not suggest that his drug problems contributed to his committing the offenses, there is no showing that a DOSA would alter Bilyeu's criminal behavior and benefit the community. Accordingly, the trial court properly denied Bilyeu's request for a DOSA sentence. 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.
HOUGHTON, P.J. and HUNT, J., Concur.