                                                                         FILED
                                                                       MAY 24, 2018
                                                               In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                         )
                                             )         No. 35216-1-III
                     Appellant,              )
                                             )
       v.                                    )
                                             )
JAMES AUSTIN YANCEY,                         )         PUBLISHED OPINION
                                             )
                     Respondent.             )

       FEARING, J. — The State appeals from the sentencing court’s grant of James

Yancey’s request of a residential drug offender alternative sentence (DOSA). We

remand for further consideration by the sentencing court of the sentencing alternative.

                                         FACTS

       James Yancey sold suboxone strips, for which he held a prescription, to a

confidential informant. A day later, Yancey repeated his misconduct.
No. 35216-1-III
State v. Yancey


                                      PROCEDURE

       The State of Washington charged James Yancey with two counts of delivering a

controlled substance, each with a sentence enhancement of selling within one thousand

feet of a school bus stop. Yancey pled guilty to both counts and the enhancements.

       During the sentencing process, James Yancey sought a residential drug offender

sentencing alternative. The State registered its opposition and argued that Yancey lacked

eligibility for a residential DOSA due to a high standard range.

       RCW 9.94A.525(1) states that convictions entered or sentenced on the same date

as the conviction, for which the sentencing court computes the offender score, shall be

deemed “other current offenses” within the meaning of RCW 9.94A.589. Therefore,

Yancey accrued an offender score of only one despite pleading guilty to two counts. The

standard range for each charge was twelve to twenty months. The school zone

enhancement added twenty-four months to the range, raising the total standard range to

thirty-six to forty-four months. Under a Washington statute, an offender loses eligibility

for a residential DOSA if the midpoint of his standard range exceeds twenty-four months.

       James Yancey argued before the sentencing court that a judge may waive

imposition of school zone enhancements if the defendant is otherwise eligible for a

sentencing alternative. In a declaration submitted with the brief, defense counsel averred

that he had attended court sessions where prosecutors removed enhancements on drug

delivery cases involving methamphetamine so that the defendant might qualify for a

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No. 35216-1-III
State v. Yancey


residential DOSA. The State of Washington responded by arguing that Yancey lacked

eligibility for the sentencing alternative because the mid-point of Yancey’s standard

range exceeded twenty-four months. The trial court granted Yancey’s request for the

residential DOSA.

                                 LAW AND ANALYSIS

                                     DOSA Sentence

       The State of Washington appeals James Yancey’s residential DOSA sentence.

RCW 9.94A.660, a section of the historic Sentencing Reform Act of 1981, chapter 9.94A

RCW, allows alternative sentences for drug offenders. State v. Grayson, 154 Wn.2d 333,

337, 111 P.3d 1183 (2005). The statute reads, in part:

              (1) An offender is eligible for the special drug offender sentencing
       alternative if:
              (a) The offender is convicted of a felony that is not a violent offense
       or sex offense and the violation does not involve a sentence enhancement
       under RCW 9.94A.533(3) or (4);
              (b) The offender is convicted of a felony that is not a felony driving
       while under the influence of intoxicating liquor or any drug under RCW
       46.61.502(6) or felony physical control of a vehicle while under the
       influence of intoxicating liquor or any drug under RCW 46.61.504(6);
              (c) The offender has no current or prior convictions for a sex
       offense at any time or violent offense within ten years before conviction of
       the current offense, in this state, another state, or the United States;
              (d) For a violation of the Uniform Controlled Substances Act under
       chapter 69.50 RCW or a criminal solicitation to commit such a violation
       under chapter 9A.28 RCW, the offense involved only a small quantity of
       the particular controlled substance as determined by the judge upon
       consideration of such factors as the weight, purity, packaging, sale price,
       and street value of the controlled substance;


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No. 35216-1-III
State v. Yancey


              (e) The offender has not been found by the United States attorney
       general to be subject to a deportation detainer or order and does not become
       subject to a deportation order during the period of the sentence;
              (f) The end of the standard sentence range for the current offense is
       greater than one year; and
              (g) The offender has not received a drug offender sentencing
       alternative more than once in the prior ten years before the current offense.
              (2) A motion for a special drug offender sentencing alternative may
       be made by the court, the offender, or the state.
              (3) If the sentencing court determines that the offender is eligible for
       an alternative sentence under this section and that the alternative sentence
       is appropriate, the court shall waive imposition of a sentence within the
       standard sentence range and impose a sentence consisting of either a
       prison-based alternative under RCW 9.94A.662 or a residential chemical
       dependency treatment-based alternative under RCW 9.94A.664. The
       residential chemical dependency treatment-based alternative is only
       available if the midpoint of the standard range is twenty-four months or
       less.

RCW 9.94A.660 (emphasis added).

       RCW 9.94A.660, known as DOSA, provides meaningful treatment and

rehabilitation incentives for those convicted of drug crimes, when the trial judge

concludes that the sentence would serve the best interests of the individual and the

community. State v. Grayson, 154 Wn.2d at 343 (2005); State v. Waldenberg, 174 Wn.

App. 163, 166 n.2, 301 P.3d 41 (2013). It authorizes trial judges to give eligible

nonviolent drug offenders a reduced sentence, treatment, and increased supervision in an

attempt to help them recover from addictions. State v. Grayson, 154 Wn.2d at 337. The

offender has significant incentive to comply with the conditions of a DOSA sentence,




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No. 35216-1-III
State v. Yancey


since failure may result in serving the remainder of the sentence in prison. RCW

9.94A.660(2); State v. Grayson, 154 Wn.2d at 338.

       RCW 9.94A.660 allows the offender to serve the DOSA sentence either in prison

or in a residence. Nevertheless, the offender cannot serve his or her time in a residence if

the midpoint of the standard range exceeds two years. If we exclude James Yancey’s

sentence enhancements, the midpoint of his standard range is sixteen months. If we

include the sentence enhancements, the midpoint rises to forty months.

       The State impliedly concedes that James Yancey qualifies for a DOSA, but not for

a residential DOSA. The State, on appeal, contends the trial court lacked authority to

grant the residential DOSA because the court must include the sentence enhancements in

the calculation of the midpoint. In turn, Yancey argues that the trial court held authority

to waive the sentence enhancements in order to impose a residential DOSA.

       This court, in State v. Mohamed, 187 Wn. App. 630, 350 P.3d 671 (2015), adopted

James Yancey’s argument. A jury convicted Ali Mohamed of four counts of delivery of

a controlled substance. The jury also found the special allegation for three of the counts

that the crimes occurred within one thousand feet of a school. Based on the offender

score and seriousness level, both parties agreed Mohamed’s base standard range for the

delivery charges was twenty to sixty months. Both parties also agreed the twenty-four

months’ school zone enhancement applied to three of the four charges. Mohamed asked

the court to ignore a standard sentence and instead sentence him to a DOSA. The State

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No. 35216-1-III
State v. Yancey


argued the judge may waive the standard range part of the sentence, but that Mohamed

must be sentenced to at least seventy-two months’ confinement for the three school zone

enhancements. The sentencing court deemed it lacked authority to award a DOSA and

sentenced Mohamed to concurrent sentences of twenty months for the delivery charges

and seventy-two months for the three enhancements for a total sentence of ninety-two

months’ confinement.

       This court, in State v. Mohamed, held that the trial court mistakenly concluded that

it lacked authority to waive the school zone enhancement if it chose to impose a DOSA

and that the trial court erred when it failed to consider waiving the school zone

enhancements to impose a DOSA. We explained that RCW 9.94A.660 permits waiver of

a sentence within the standard sentence range. “Because standard sentence range means

the base sentence range plus enhancement of such range, a sentencing court may waive

the enhancements as part of the standard sentence range under a DOSA or [parenting

sentencing alternative].” State v. Mohamed, 187 Wn. App. at 641 (internal quotation

marks omitted) (emphasis added). Despite the fact that Mohamed’s midpoint range with

the sentence enhancements exceeded twenty-four months, the court remanded the case

for resentencing so the trial court could explore a DOSA. We discern no reason to reject

the ruling in State v. Mohamed.

       In James Yancey’s appeal, the State relies on In re Postsentencing Review of

Gutierrez, 146 Wn. App. 151, 188 P.3d 546 (2008) for support on how to accurately

                                             6
No. 35216-1-III
State v. Yancey


calculate James Yancey’s standard and midpoint range. We find this decision unhelpful

because our appeal does not ask how to calculate the standard range. Gutierrez does not

address waiving imposition of the enhancement to return the midpoint range to within the

twenty-four months’ restriction stated in the statute.

       Unfortunately, this reviewing court lacks a transcript of James Yancey’s

sentencing hearing. Therefore, we do not know if the trial court expressly waived the

requirements of the sentence enhancements in order to grant a DOSA. Therefore, we

remand to the sentencing court to either confirm or exercise waiver of the enhancements

or to resentence Yancey if the court did not intend to waive the enhancements.

                                      Scrivener Error

       Both parties concede the judgment and sentence contains an error as to the

seriousness levels for both convictions. James Yancey pled guilty to delivery of a

Schedule III non-narcotic controlled substance under RCW 69.50.401(2)(c). Thus, the

seriousness level for each count should be a II, not a I as indicated on the judgment and

sentence. RCW 9.94A.518. Despite this error, the sentencing court calculated the correct

standard range. Yancey asks this court to remand the judgment and sentence to the trial

court for correction of this slight mistake. We grant this request.




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No. 35216-1-111
State v. Yancey


                                    CONCLUSION

       We remand this appeal to the sentencing court to determine whether to expressly

waive sentence enhancements in order to impose a DOSA and to correct the seriousness

level of the convictions.



                                            Fearing, J.

I CONCUR:



Pennell, A.CJ.




                                           8
                                      No. 35216-1-III

       KORSMO, J. (dissenting)-State v. Mohamed, 187 Wn. App. 630, 350 P.3d 671

(2015), misreads the drug offender sentencing alternative (DOSA) statute and should not

be followed. Mohamed also conflicts with this court's decision in State v. Murray, 128

Wn. App. 718, 725-26, 116 P .3d 1072 (2005) and is inconsistent with other decisions.

The statute's grant of permissive authority to impose a DOSA sentence instead of a

standard range sentence is not a grant of authority to override the legislative eligibility

determination. The sentence imposed by the trial court should be reversed.

       Courts have no inherent sentencing authority, but can only exercise the authority

granted by the legislature. State v. Pillatos, 159 Wn.2d 459, 469, 150 P.3d 1130 (2007)

(no inherent authority for courts to adopt sentencing procedure necessary to comply with

United States Supreme Court mandate); State v. Ammons, 105 Wn.2d 175, 180, 713 P.2d

719, 718 P.2d 796 (1986) (legislature has plenary authority over setting punishments);

State v. LePitre, 54 Wash. 166, 169, 103 P. 27 (1909) (similar).

       Under our Sentencing Reform Act of 1981, chapter 9.94A RCW, a trial judge is

expected to impose a standard range sentence. RCW 9.94A.505(2)(a)(i). The standard

range sentence is computed by looking at the intersection of the seriousness level of the

offense and the defendant's offender score. RCW 9 .94A.510, .517. In cases where a
No. 35216-1-III
State v. Yancey-Dissent


sentencing enhancement was proved, the enhancement is added to the range specified by

the seriousness level, resulting in a new (enhanced) standard range. Mohammed, 187

Wn. App. at 638-45; In re Postsentencing Review of Gutierrez, 146 Wn. App. 151, 154-

55, 188 P.3d 546 (2008).

       Exemptions from the requirement that felony offenders be sentenced within a

standard range include persistent offenders, many sex offenders, exceptional sentences,

and alternative sentences. RCW 9.94A.505(2)(a)(ii)-(xi). The only mechanism for

altering a standard range sentence is the authority to declare an exceptional sentence

when "substantial and compelling reasons" justify doing so. RCW 9.94A.535. The

exceptional sentence authority cannot be used in conjunction with an alternative DOSA

sentence. State v. Onefrey, 119 Wn.2d 572, 576-77, 835 P.2d 213 (1992); Murray, 128

Wn. App. at 726; State v. Goss, 56 Wn. App. 541, 544, 784 P.2d 194 (1990). It likewise

cannot be used to make someone eligible for an alternative sentence, since the legislature

is the body with the power to determine eligibility. Onefrey, 119 .Wn.2d at 577.

       Alternative sentences typically follow the same requirements-the court must

determine eligibility for the alternative sentence, determine that the defendant is a fit

candidate for the alternative sentence, and determine whether or not to impose the

alternative sentence. E.g., RCW 9.94A.650 (first time offenders); RCW 9.94A.655

(custodial parents); RCW 9.94A.660 (drug offenders); RCW 9.94A.670 (sexual




                                              2
No. 35216-1-III
State v. Yancey-Dissent


offenders). The decision to impose an alternative sentence typically is reviewed for

abuse of discretion. E.g., Onefrey, 119 Wn.2d at 575.

       The DOSA sentence alternative follows this pattern. First, the trial court

determines whether the statutory eligibility factors (sentence length, type of crime) are

present and that disqualifying factors (previous serious offenses, prior DOSA sentences)

are not present. RCW 9.94A.660(1). Upon motion, the court then considers the

offender's fitness for the alternative sentence. RCW 9.94A.660(2), (4), (5)(a). The court

then determines whether to impose the alternative sentence. RCW 9.94A.660(3).

Whether the DOSA will be served in prison or the community is determined by the

midpoint of the offender's standard range. Id. (last sentence). A midpoint of 24 months

or less is served locally in residential treatment. RCW 9.94A.664. A midpoint of greater

than 24 months dictates that the sentence is served in prison. RCW 9 .94A.662. This

approach parallels the jail-prison dichotomy in standard range sentences. Terms of

greater than 12 months are served in prison, while terms less than that are served locally.

RCW 9.94A.190(1).

       Here, the trial court followed the statutory commands to a point, but then faltered.

It determined that Mr. Yancey's current offense was eligible for DOSA and had a

sufficiently long standard range to qualify for treatment. The court determined that Mr.

Yancey's prior offenses and immigration status did not disqualify him from

consideration. Thus, the court correctly determined Mr. Yancey was eligible for a DOSA

                                             3
No. 35216-1-III
State v. Yancey-Dissent


sentence. RCW 9.94A.660(1). The court then determined Mr. Yancey would be an

appropriate person for treatment under DOSA. RCW 9.94A.660(4), (5). The court then

exercised its discretion to impose a DOSA sentence. RCW 9.94A.660(3).

       So far, so good. However, the court then failed to follow the statute when it chose

to ignore the legislative determination that offenders with long standard range terms, such

as Mr. Yancey's, must serve their sentences in prison instead of in the local community:

"The residential chemical dependency treatment-based alternative is only available if the

midpoint of the standard range is twenty-four months or less." RCW 9.94A.660(3). At

this point the court apparently turned to Mohamed.

       The problem in Mohamed concerned the interplay of the DOSA statute and the

stacking of enhancements required by RCW 9.94A.533(6). 1 Mohamed involved four

sentences, three of which were partly concurrent and partly consecutive due to the

stacking of enhancements. 187 Wn. App. at 633-34. Application of an alternative

sentence such as DOSA in this context is problematic because eligibility for alternative

sentences typically is concerned primarily with the standard range for a particular offense,

while the total sentence range for all charges is dependent on other statutes governing the




       1
      Both the history and purpose of this provision were discussed in detail by
Mohamed, 187 Wn. App. at 642-43, and Gutierrez, 146 Wn. App. at 155-57.

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No. 35216-1-III
State v. Yancey-Dissent


ordering and enhancement. 2 No statutory instruction has been given for how, or even

whether, 3 consecutive sentencing impacts a decision to impose an alternative sentence.

       Instead, and without any discussion of legislative purpose, the Mohamed court

found in the first sentence of RCW 9.94A.660(3) an ability to alter the standard range in

order to make an offender fit within a residential DOSA rather than a prison DOSA. In

my opinion, this was error. The statute read:

       If the sentencing court determines that the offender is eligible for an
       alternative sentence under this section and that the alternative sentence is
       appropriate, the court shall waive imposition of a sentence within the
       standard sentence range and impose a sentence consisting of either a
       prison-based alternative under RCW 9.94A.662 or a residential chemical
       dependency treatment-based alternative under RCW 9.94A.664. The
       residential chemical dependency treatment-based alternative is only
       available if the midpoint of the standard range is twenty-four months or less.

RCW 9.94A.660(3), with emphasis supplied by Mohamed, 187 Wn. App. at 637-38.

Using this authority, the trial judge here altered the standard range in order to make Mr.

Yancey fit in a local treatment program instead of the state prison program.




       2
         When it addressed the issue in Gutierrez, this court faced only a single count
and, therefore, had a fairly straightforward issue in computing a single standard range.
146 Wn. App. at 153-57. Understandably, the State correctly argues Gutierrez as the
more appropriate case to apply here rather than Mohamed.
       3 Without briefing on legislative history, I would not want to express a firm

opinion on the topic, but it appears that a strong argument can be made that an alternative
sentence is not concerned with the order in which standard range sentences are to be
served. The trial court's choice to select an alternative sentence arguably renders the
ordering of standard range sentences irrelevant.

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No. 35216-1-111
State v. Yancey-Dissent


       The error is three-fold. First, nothing in the emphasized language above conveys

authority to alter a standard range sentence. Instead, it is the standard language used by

the legislature in .conveying the authority to trial judges to choose an alternative sentence

in lieu of a standard range sentence. See, e.g., RCW 9.94A.650(2) (first offenders: "may

waive the imposition of a sentence within the standard sentence range"); RCW

9.94A.655(4) (parenting alternative: "shall waive imposition of a sentence within the

standard sentence range"). 4

       Second, the interpretation of the emphasized language is inconsistent with both

parts of the remainder of the statute. The initial clause of the first sentence recognizes the

trial court's role in finding the offender eligible and fit for an alternative sentence under

the preceding provisions of the statute; it is incongruous and inconsistent to then read the

next clause as empowering the trial judge to ignore and alter the standards governing the

eligibility decision. It also is inconsistent to interpret the emphasized language as

Mohamed did because the remainder of the statute expressly tells the court how to apply

its decision to invoke the alternative sentence-it shall choose a local or a prison DOSA

based on the length of the midpoint of the standard range sentence. It does not say

"standard range as altered by the trial court" or otherwise suggest that the legislative



       4  For special sexual offenders sentenced under RCW 9.94A.670(4), the language is
a bit different, directing that the court "shall then impose" a sentence and granting
permissive authority to suspend some of the sentences.




                                                                                                 I
                                              6
No. 35216-1-III
State v. Yancey-Dissent


directive is somehow limited by a discretionary choice of the judge to alter the eligibility

standards.

       Finally, the Mohamed interpretation is erroneous because it reads in an exceptional

sentence authority that is inappropriate. First, our courts have long made clear that the

exceptional sentence authority applies only to standard range sentences and does not

apply to alternative sentences. Onefrey, 119 Wn.2d 572; Murray, 128 Wn. App. 718;

Goss, 56 Wn. App. 541. If the legislature was breaking with its longstanding approach, it

did so in an oblique manner and in a strange location. Second, allowing the trial judge to

change its eligibility criteria also would be a significant change for the legislature that has

consistently exercised its power to define crimes and punishments rather than delegate

that authority to the court. Third, if it intended to allow trial judges to change the

eligibility criteria, the legislature likely would have placed that authority in the eligibility

subsection in order to expressly acknowledge the possibility. It also could have greatly

simplified the language of the eligibility section, RCW 9.94A.660(1), if it intended its

criteria to be advisory rather than mandatory. Fourth, where the legislature has granted

courts power to alter the standard range by declaring an exceptional sentence, it has

expressly limited that authority to cases where compelling reasons exist. The DOSA

statute, as interpreted by Mohamed, sets forth no criteria on which its exceptional

sentence authority is to be exercised.




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No. 35216-1-III
State v. Yancey-Dissent


       For all of those reasons, the interpretation given by Mohamed should be rejected.

The governing case here is actually Murray. There, this court overturned a similar effort

by a trial judge to use the exceptional sentence authority to change the midpoint on which

a DOSA sentence was based. 128 Wn. App. at 721-22. This court expressly rejected the

effort, noting that an exceptional sentence was not available when imposing an

alternative DOSA sentence. Id. at 725-26. Such "hybrid" sentences simply were not

authorized. Id.

       Although it is distinguishable in the context of a single conviction, Mohamed also

was wrongly decided and should not be followed. The majority's decision effectively,

although silently, overrules Murray.

       The decision of the trial court should be reversed and the matter remanded for the

trial court to consider either a prison-based DOSA or a standard range sentence. Thus, I

respectfully dissent.




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