Opinion
No. 21674-8-III.
Filed: February 10, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Benton County. Docket No: 02-1-00214-9. Judgment or order under review. Date filed: 11/27/2002.
Counsel for Appellant(s), Sharon Marie Brown, Attorney at Law, PO Box 4056, Pasco, WA 99302-4056.
Willie Edward Johnson (Appearing Pro Se), 994439, P.O. Box 900, Shelton, WA 98584.
Counsel for Respondent(s), Donna Patricia Mannion, Attorney at Law, 7320 W Quinault Ave, Kennewick, WA 99336-7665.
Willie Edward Johnson pleaded guilty to manufacturing methamphetamine and he asked to be sentenced under the Drug Offender Sentencing Alternative (DOSA). Voicing concerns with DOSA's administration and its efficiency, the court denied his request. Claiming the court's denial violated the separation of powers doctrine, Mr. Johnson appeals. We affirm.
On October 9, 2002, Mr. Johnson pleaded guilty to one count of manufacturing methamphetamine. In exchange for his plea, the State dropped delivery charges against him and charges against his wife as well. The State recommended a 57-month sentence, the low end of the standard range. Mr. Johnson requested a DOSA evaluation.
On November 27, 2002, Mr. Johnson appeared for sentencing. The State again recommended a 57-month sentence. The State argued this sentence was reasonable in light of the dropped charges and the concern that Mr. Johnson would not be held accountable in the DOSA program.
The defense countered that Mr. Johnson had no prior drug history and owned and operated a local mechanic shop. His counsel also acknowledged Mr. Johnson had a drug problem that began after the death of his daughter. But his client wanted to deal with his problem and wanted help. Mr. Johnson had been married for 16 years. His DOSA evaluation revealed he was amenable to treatment.
The court declined to impose DOSA:
I agree that in your case a DOSA sentence would be appropriate. However, the problem is, and the reason that I'm not going to grant a DOSA sentence, is that I am persuaded by all the information that I'm getting from people who, in fact, have been sentenced under a DOSA sentence and then have come back and I've had conversation with those about what went on or more specifically what didn't go on, what treatment they didn't get, and from talking to representatives of the Department of Corrections who have been candid enough to say we just — it's very hit or miss.
They're really not getting the treatment that they're supposed to be getting to the indications by the prosecuting attorney here and from other judges. I've been very concerned about this because the prosecutors will tell you that I've been one of the stronger proponents of DOSA often when they were not recommending it, but I can't in good faith impose a sentence when I'm persuaded that it's not going to be followed.
That's really unfortunate. It is, in part, unfortunately I think a consequence of very difficult budget times that we're having. I don't know what the other reasons are that the Department of Corrections is not following that legislative mandate, but I am persuaded that they are not, and to impose a sentence in which you don't get treatment would be both unfair to the people of this state and it would be just as unfair to you, Mr. Johnson, to hold out that promise to you and then that promise not be delivered to you.
You may have a high chance of success given your personal resources and your motivation and your desire and your history. It sounds like you may be a likely candidate, but again I'm persuaded that the success won't come through a DOSA because you won't get the help that you need. It just is not there, and that's very regrettable because I think the theory, the philosophy behind a DOSA, if it is adequately funded and if it is fully executed, fully carried out, can hold a lot of promise for people in your circumstances.
Report of Proceedings (November 27, 2002) at 9-11. The court then imposed a 57-month standard range sentence. This appeal follows.
Mr. Johnson challenges the court's refusal to grant DOSA. Generally, this is not a reviewable issue. State v. Bramme, 115 Wn. App. 844, 850, 64 P.3d 60 (2003). A defendant cannot appeal a standard range sentence, which DOSA is. But a defendant may appeal a standard range sentence if he alleges a constitutional violation. Id.
Mr. Johnson claims the court's refusal to impose DOSA was based upon its belief that the program was ineffective. He argues the court in effect repealed DOSA and thus violated the separation of powers doctrine.
The separation of powers doctrine is derived from the constitution's distribution of governmental authority into three branches. State v. Moreno, 147 Wn.2d 500, 505, 58 P.3d 265 (2002). Each branch of government can only exercise the powers it is given. One branch is not permitted to encroach upon the fundamental function of another. Id. While the legislature has the sole responsibility for setting penalties for crimes, it may give discretion to the court within a sentencing scheme. State v. Hunter, 102 Wn. App. 630, 636, 9 P.3d 872 (2000), review denied, 142 Wn.2d 1026 (2001). The legislature has given the court such discretion to impose DOSA. The court does not therefore violate the separation of powers doctrine simply because it exercises its discretion not to impose DOSA.
The court here thoroughly set out its reasons for not imposing DOSA. Because it based its decision on reasoned grounds, the court properly exercised the power given by the legislature. It did not violate the separation of powers doctrine.
Mr. Johnson also claims the court abused its discretion when it failed to consider all the factors required to impose DOSA. A court abuses its discretion if the decision is manifestly unreasonable or is based upon untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). A refusal to exercise discretion also constitutes an abuse of discretion. State v. Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104, review denied, 136 Wn.2d 1002 (1998).
RCW 9.94A.660 sets out the criteria for DOSA. RCW 9.94A.660(2) requires the court to consider whether the community and the offender would benefit from such a sentence. Mr. Johnson claims the court did not consider this factor. It did and determined that neither would benefit from DOSA. The court made the requisite considerations and imposed a sentence within its considered discretion.
Affirmed.
BROWN, C.J. and KURTZ, J., concur.