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                                                                       COURT OF APPEALS
                                                                            DIVISITNI II

                                                                      2013 MAR -S   AN 9:25
    IN THE COURT OF APPEALS OF THE                            STATE
                                        DIVISION II                   BYM
                                                                             UTY

STATE OF WASHINGTON,                                                  No. 42704 4 II
                                                                                - -


                             Respondent,

       V.




DANNY L.RICHARDS,                                               UNPUBLISHED OPINION




       PENOYAR, J. — Danny      Richards appeals from the denial of his motion to modify his

sentence to a Drug Offender Sentencing Alternative (DOSA)sentence. We affirm.
                                             FACTS


       On February 28, 2011, Richards pleaded guilty to a felony violation of a domestic

violence court order. He requested a DOSA sentence, which the State opposed. The trial court

denied his request, noting the following concerns:

              THE COURT: Okay. You know, I'l tell you, Mr.Richards, I went round
                                                l
       and round in my head on this one. I looked at this because I saw that there was
       going to be a recommendation for the DOSA and I looked at your criminal history
       and you do have a drug addicted history. But the concern the Court had is, you
       had opportunities to do the drugalcohol evaluation and treatment in the past.
                                       /
               DANNY RICHARDS: I did go to intensive outpatient at Olympia Work
       Release. I was kicked out because I relapsed.
               THE COURT: I mean you have ano doubt you have a serious problem,
                                           —
       but you also have an issue with being able to follow through on court directives.
       The willful failure to return from work, prior warrants tell the Court that, and then
       this particular case is a failure to follow through with the no contact order. And in
       order to get a compliance with a DOSA there is a lot of obligations you have to
       follow through on and the Court's concerned in giving you that you are not going
       to follow through on them. That in combination the fact that it' not a drug case
                                                                      s
       is why the Court—nd this Court will indicate I won't go for the DOSA at this
                        a
       point. The Court has to sentence you under that for then 60 months.


1 A commissioner of this court initially considered Richards's appeal as a motion on the merits
under RAP 18. 4 and then transferred it to
            1                                a   panel   of judges.
42704 4 II
      - -




Report of Proceedings (RP)Mar. 14, 2011) at 11 12.
                          (                    -

          On August 22, 2011, Richards filed a motion to modify his sentence under CrR 7. . He
                                                                                        8

contended that he had new evidence that he had a "strong history of completing programs."

Clerk's   Papers   at 11.   He submitted documentation of having (1)completed his GED, ( )
                                                                                       2

completed community college courses and programs, and since being confined, had (3)attended

support groups, 4)
                ( provided volunteer services and (5)worked in the law library. He asked that
he be resentenced to a DOSA sentence. The court denied his motion, noting that:

                   I think that you show some characteristics [of completing programs] now
          but I can't go back and re visit [he sentence] based on what you are now doing.
                                      -     t
                   Alright, so, legally the Court — what you've provided isn't enough of a
          basis for the Court to go back and revisit your sentence,   alright. So, I have to
          deny your request.

RP (Sep. 12, 2011)at 22 23.
                        -

                                             ANALYSIS


          Richards argues that the trial court abused its discretion in denying his motion to modify
his sentence to a DOSA sentence. Under CrR 7. ( court can modify a sentence upon a
                                           b)(the
                                            2),
                                            8

showing of newly discovered evidence which by due diligence could not have been discovered
           "
in time to move for a new trial under [CrR] 7. ." " trial court may not modify a sentence
                                             5 A

merely because it appears, with hindsight, that the original sentence was inappropriate."State v. .

Dalseg,    132 Wn. App.     843, 861 62, 134 P. d 261 ( 2006). Richards does not show that the
                                     -        3


documentation he submitted meets the standard of CrR 7. ( completion of community
                                                     b)( His
                                                      2).
                                                      8

college coursework could have been provided with due diligence             at   his   sentencing. - His

subsequent participation in programs and activities while incarcerated do not constitute newly
discovered evidence because they do not demonstrate his ability to comply with court-
                                                                                    ordered


                                                   0)
42704 4 II
      - -




obligations when not incarcerated. Richards does not show that the court abused its discretion in

denying his request that he be resentenced to a DOSA sentence.

       Richards filed   a   statement of additional   grounds   that raised two   grounds. First, he

contends that the trial judge should have recused herself because she had been the prosecutor in a

case against him in 2002. But there is no evidence in the record that he ever requested that the

judge recuse herself. Second, he contends that he was wrongfully charged with a felony because

some of his prior convictions involved no-
                                         contact orders from 19 and 21 years ago. But he does
not demonstrate that he has had five consecutive crime free years since a release from total
                                                        -

confinement, so none of his prior convictions for violations of no-
                                                             .    contact orders wash out under

RCW 9. )(
    c).
    525( 4A. And contrary to his belief, there is no ten year statute of limitations on
       2
       9                                                 -

the use of prior convictions to enhance a violation of a domestic violence court order to a felony.
       We affirm the denial of Richard's motion to modify his sentence.

       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 in accordance with RCW
040,
2.6.it is so ordered.
 0




We concur:




        Quinn -
              Brintnall, J.




        Johanson, A. .
                  JC
                                                  3
