Opinion
No. 29769-8-II.
Filed: March 9, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No. 02-1-02091-9. Judgment or order under review. Date filed: 12/04/2002.
Counsel for Appellant(s), Pattie Mhoon, Attorney at Law, 949 Market St. Ste 488, Tacoma, WA 98402-3600.
Counsel for Respondent(s), John Michael Sheeran, Attorney at Law, Pierce Cty Prosecutor S, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2102.
Charles Eric Cooney, also known as Brent Grigg, pled guilty to possessing pseudoephedrine with intent to manufacture methamphetamine and to second degree identity theft. He contends that the trial court was required to impose a DOSA sentence and that it erred by not doing that. We affirm.
On December 4, 2002, Cooney was charged with possessing pseudoephedrine with intent to manufacture methamphetamine and with second degree identity theft. The same day, he signed and submitted a written plea statement in which the State promised to recommend "DOSA (42 months) CTS 110 days" plus costs and fees; "[n]o use or possession of controlled substances[,] [n]o association with drug users or sellers" together with "4 months concurrent" for the identity theft count. Still the same day, Cooney pled guilty and was sentenced. During those proceedings, the court asked him:
Clerk's Papers (CP) at 12.
[Y]ou're facing apparently 36 to 48 months in custody, up to a maximum of 20 years and fine of $20,000.00, and that's on Count I. And, on Count II it's 4 to 12 months in custody and up to a maximum of 5 years and a $10,000.00 fine, do you u[n]derstand that?"
Report of Proceedings (RP) at 3.
Cooney responded that he did, and both parties made the recommendation set forth in the plea form.
The court declined to go along. It stated:
I've looked at your history, . . . and I don't think you're a good candidate for the DOSA program. I'm going to order 42 months on Count I and 4 months on Count II. You do have a problem with drugs, . . . and I would hope you take a serious look at it otherwise it will keep you imprisoned personally and physically for the rest of your life.
RP at 6.
On appeal, Cooney argues that the trial court was required to impose a DOSA sentence and that it erred by not doing so. This is true, he reasons, because he is precisely the "type of candidate for DOSA intended by the legislature[.]"
Br. of Appellant at 2 (some capitalization deleted).
We decline to disturb the sentence, which was within the standard range, because a standard range sentence is not appealable. Even if we were willing to treat the sentence as appealable, moreover, we would hold that the sentencing court did not err. It considered all the facts and circumstances, including Cooney's prior history and each party's recommendation, and it acted within the scope of its discretion.
State v. Conners, 90 Wn. App. 48, 53, 950 P.2d 519 (1998) ("[A] court's decision to impose a standard range sentence and not to apply DOSA is not reviewable.").
RCW 9.94A.660(2) ("If the standard sentence range is greater than one year and the sentencing court determines that the offender is eligible for this alternative and that the offender and the community will benefit from the use of the alternative, the judge may waive imposition of a sentence within the standard sentence range" and employ DOSA.) (emphasis added).
Affirmed.
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.
SEINFELD, J. and HUNT, C.J., concur.