                                                                           FILED 

                                                                          May 1,2014 

                                                                 In the Office of the Clerk of Court 

                                                               W A State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                          )
                                              )         No. 31356-5-111
                       Respondent,            )
                                              )
       v.                                     )
                                              )
RONALD FRANK HENDER,                          )         PUBLISHED OPINION
                                              )
                       Appellant.             )

       FEARING, J. -    Ronald Hender pled guilty to two counts of delivery of

methamphetamine with a single school zone enhancement. On appeal, he argues the

sentencing court either failed to exercise or abused its discretion when it denied his

request for a drug offender sentencing alternative (DOSA), chapter 9.94A RCW. Hender

requests a new sentencing hearing. We affirm the trial court, since it exercised and did

not abuse its discretion. The trial court legitimately denied a DOSA sentence because

Hender refused to take responsibility for his criminal conduct.

                                          FACTS

       Between November 2011 and January 2012, a confidential informant purchased

methamphetamine from Ronald Hender on multiple occasions. Based on the controlled

buys, the State charged Hender with three counts of delivery of methamphetamine and an
No.3l356-5-I11
State v. Hender


enhancement for doing so within a school zone. Hender pled guilty to two counts.

       At sentencing, the State recommended the low-end of the standard 36 to 44

months range. Hender requested a DOSA sentence. In support of his request, Hender,

now age 57, stated he was a good candidate because of his age, his valuable skill set, and

the support of his "tight family." Report of Proceedings (RP) at 16. In addition he told

the court:

       I don't feel like methamphetamine's ever made me a criminal. I've never
       been out robbing people or doing anything and having it being illegal. And
       over the years it's turned my brain to poop and just caused a lot of trouble,
       you know. So it's all done. And just want to get it over with.

RP at 17. Hender's brother Steve also spoke in support of Hender's ability to "be 100 %

on recovery on this if given the last chance." RP at 19.

       The trial court sentenced Ronald Hender to 36 months and 1 day on the first count

and 12 months and 1 day on the second count, to be served concurrently. The court

refused a DOSA sentence on the ground that, contrary to Hender's remarks,

methamphetamine had made him a criminal. Hender not only took methamphetamine

but dealt the illicit drug.

       Ronald Hender demurred and claimed not to deal methamphetamine. He first

commented, "I wasn't dealing meth." RP at 20. When the trial court confronted him

with pleading guilty to delivery of methamphetamine, Hender deflected blame from

himself, "The city sent a guy out to get me, basically totally out of retirement, and offered



                                             2

No. 3 1356-5-II1
State v. Hender


me a lot of money. And, you know, I fell through the loop." RP at 20. The court

responded:

       And when you do that, and you try to share ... with other people, I don't
       care ifit was a controlled buy or not, that was the attempt, and that's awfuL
       So you need to take responsibility . You need to take accountability.

RP at 21.
                                  LAW AND ANALYSIS

       We address whether the sentencing court erred when imposing a standard sentence

instead of a DOSA. Ronald Hender argues that a court must grant a DOSA sentence to a

nonviolent drug offender ifhe meets the seven factors enumerated in RCW 9.94A.660(l).

He claims he met those eligibility requirements, and the trial court denied his request

without considering the requirements. Ronald Hender argues the trial court's ruling

constitutes a failure to exercise discretion, a form of error.

       RCW 9.94A.660, a section of the historic Sentencing Reform Act of 1981 (SRA),

allows alternative sentences for drug offenders. 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


                                               3

No. 31356-5-III
State v. Hender


        the current offense, in this state, another state, or the United States;
                Cd) For a violation of the Unifonn 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;
                (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) Ifthe 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.

(Emphasis added.) DOSA is one of several sentencing alternatives available under the

SRA.

       The State does not deny that Ronald Hender met the seven eligibility requirements

in 9.94A.660(1)(a)-(g). But eligibility does not automatically lead to a DOSA sentence.

Instead, under 9.94A.660(3), the sentencing court must still determine that "the

alternative sentence is appropriate." State v. Barton, 121 Wn. App. 792, 795, 90 P.3d



                                             4

No. 31356-5-111
State v. Hender


1138 (2004).

       The purpose ofRCW 9.94A.660, known as DOSA, is to provide meaningful

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

judge concludes it would be in the best interests ofthe individual and the community.

State v. Grayson, 154 Wn.2d 333, 343, 111 P.3d 1183 (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 their addictions. Grayson, 154 Wn.2d at 337. Under a

DOSA sentence, the defendant serves only about one-half of a standard range sentence in

prison and receives substance abuse treatment while incarcerated. Grayson, 154 Wn.2d

at 337-38. Afterward, he or she is released into closely monitored community

supervision and treatment for the balance of the sentence. RCW 9.94A.660(7)(c). The

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

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

9.94A.660(7)(c); Grayson, 154 Wn.2d at 338.

       As a general rule, the trial judge's decision whether to grant a DOSA sentence is

not reviewable. RCW 9.94A.585(1); Grayson, 154 Wn.2d at 338 (citing State v.

Bramme, 115 Wn. App. 844, 850, 64 P.3d 60 (2003)). The legislature entrusted

sentencing courts with considerable discretion under the SRA, including the discretion to

determine if the offender is eligible for an alternative sentence and, significantly, whether

                                              5

No. 31356-5-III
State v. Hender


the alternative is appropriate. State v. Pascal, 108 Wn.2d 125, 137, 736 P.2d 1065

(1987). However, an offender may always challenge the procedure by which a sentence

was imposed. State v. Herzog, 112 Wn.2d 419,423, 771 P.2d 739 (1989) (quoting State

v. Ammons, 105 Wn.2d 175, 182-83, 713 P.2d 719, 718 P.2d 796 (1986». While no

defendant is entitled to an exceptional sentence below the standard range, every

defendant is entitled to ask the trial court to consider such a sentence and to have the

alternative actually considered. Grayson, 154 Wn.2d at 342; State v. Garcia-Martinez,

88 Wn. App. 322, 330, 944 P.2d 1104 (1997) (emphasis added). A court that fails to

consider a requested alternative abuses its discretion. Grayson, 154 Wn.2d at 342.

       A seminal Washington DOSA decision is Grayson, 154 Wn.2d 333. John

Grayson was convicted of one count of delivery of cocaine and one count of possession

of marijuana. He requested a DOSA sentence. Although he was eligible under the seven

factors ofRCW 9.94A.660(1), the State argued against a DOSA sentence because of

Grayson's criminal history. The trial court denied the DOSA request, while stating its

"main reason" was the State's lack of funding for the DOSA program. Grayson, 154 Wn.

2d at 337. The trial court stated no other reason. An alert prosecutor suggested to the

trial court that other important factors rendered a DOSA sentence inappropriate. The trial

court interrupted the prosecutor in mid-sentence and commented, "I'm not going to give a

DOSA, so that's it." Grayson, 154 Wn.2d at 337.

       On appeal, John Grayson argued that the trial court failed to exercise its discretion

                                             6

No. 31356-5-III
State v. Hender


by categorically refusing to consider whether a DOSA sentence was appropriate. In a

five to four decision, the Supreme Court agreed. A lack of funding was not a fact in the

record and was not a legitimate reason for denying the alternative sentence. The trial

court rejected the prosecution's request that more reasons be placed on the record. The

Supreme Court remanded for a new hearing, despite recognizing ample other grounds

existed to find that Grayson was not a good candidate for a DOSA sentence. The court

recognized, however, that general information about a sentencing alternative, such as for

whom the program is intended, is the kind of information that helps a judge exercise

discretion. Grayson, 154 Wn.2d at 341. The dissenters noted that the trial court had

determined that a DOSA sentence would not benefit John Grayson or the community and

so the trial court had properly exercised its discretion.

       Contrary to the trial court in Grayson, our trial court exercised its discretion and

stated reasons on the record for denying a DOSA sentence. The trial court emphasized

Ronald Hender's lack of accountability and refusal to be responsible for his conduct.

Although many behavioral scientists disagree, many recognize that one who blames

others for his wrongs is detached from reality and this detachment interferes in one's

ability to benefit from treatment. If a user does not take responsibility for his behavior,

he is not likely to be receptive to change in the behavior. Alcohol and drug addiction are

common results of a blaming attitude. Thus, the trial court did not abuse its discretion

when concluding that a DOSA sentence does not fit the predisposition of Ronald Hender.

                                               7

     No. 31356-5-III
     State v. Hender


                                        CONCLUSION

           We affirm the trial court's refusal to grant a nOSA sentence.




                                                     Fearing, A.C.J. 

I
   WE CONCUR:




     Br~ 


I

I

I

1
                                              8



l

