                                                              '..";OURT OF (, , :ALS DIV
                                                                STATE OF WASHiliGION

                                                               2010 OCT -8 AH 8:51



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

STATE OF WASHINGTON,                      )      No. 76573-6-1
                                          )
                     Respondent,          )
                                          )
       v.                                 )
                                          )
TAYLOR CHURCH,                            )      PUBLISHED OPINION
                                          )
                     Appellant.           )      FILED: October 8, 2018
                                          )

       VERELLEN, J. —A court may impose sanctions when the recipient of a

residential drug offender sentencing alternative(DOSA)fails to comply with the

terms of her judgment and sentence. RCW 9.94A.664(4) allows imposition of total

confinement equal to one-half the midpoint of the standard range of the underlying

sentence. Because the provisions of RCW 9.94A.664(4) are inapplicable to an

offender who fails to report to residential treatment, they do not apply to Taylor

Church.

       Church also argues the State breached the plea agreement by

recommending a standard range sentence after she failed to report to treatment.

But she misconstrues the terms of the plea agreement.

      Therefore, we affirm.
No. 76573-6-1/2


                                       FACTS

       On September 15, 2016, Taylor Church pleaded guilty to first degree

residential burglary and solicitation to possess heroin. The trial court calculated an

offender score of 4, which carries a standard range sentence of 15 to 20 months.

In exchange for Church's guilty plea, the State agreed to recommend a residential

DOSA. On September 29, 2016, the court accepted the State's recommendation

and sentenced Church to three to six months of addiction treatment in a residential

facility followed by two years of community custody.

       Church failed to report to treatment. At a hearing on December 23, 2016,

she admitted violating her sentence. The State requested revocation of Church's

DOSA, but the court declined to do so and again ordered Church to report to a

residential treatment facility. By February 10, 2017, Church still had not reported

to treatment and again stipulated to violating her sentence. At a March 13, 2017,

revocation hearing, the State recommended a 16-month sentence within the

standard range, relying on RCW 9.94A.660(7)(c). Church argued that

RCW 9.94A.664(4)(c) limited the court to one-half the midpoint of the standard

range, or 8.75 months of total confinement. Specifically, Church contended the

rule of lenity must apply to resolve an irreconcilable conflict between sections .660

and .664. The court revoked Church's DOSA for willfully failing to report to

treatment as ordered and sentenced her to 15 months' incarceration pursuant to

RCW 9.94A.660(7)(c).

      Church appeals.




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No. 76573-6-1/3


                                     ANALYSIS

      "When a trial court exceeds its sentencing authority under the [Sentencing

Reform Act of 1981, chapter 9.94A RCW], it commits reversible error."1

Determining whether a trial court exceeds its authority under the Sentencing

Reform Act is an issue of law, which the court reviews de novo.2

       Issues of statutory interpretation are also legal questions subject to de novo

review.3 When engaging in statutory interpretation, a court's purpose is "to

determine and give effect to the intent of the legislature."4 Legislative intent is

derived, when possible, "solely from the plain language enacted by the legislature,

considering the text of the provision in question, the context of the statute in which

the provision is found, related provisions, and the statutory scheme as a whole."5

       RCW 9.94A.660 governs both prison-based and residential chemical

dependency treatment-based DOSAs. If an offender meets the requirements in

RCW 9.94A.660(1), then the court waives the standard range sentence and

"impose[s] 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."6 RCW 9.94A.660(7)(a) includes broad provisions for


       1 State v. Murray, 118 Wn. App. 518, 522, 77 P.3d 1188(2003).
      2 State v. Button, 184 Wn. App. 442, 446, 339 P.3d 182(2014).
      3 State v. Evans, 177 Wn.2d 186, 191, 298 P.3d 724 (2013).

      4    Id. at 192(quoting State v. Sweany, 174 Wn.2d 909, 914, 281 P.3d 305
(2012)).
      5    1d.
      6    RCW 9.94A.660(3).



                                          3
No. 76573-6-1/4


sanctions applicable "at any time" to "any offender sentenced under this section" if

they violate the conditions of their sentence or fail to make satisfactory progress in

treatment. Specifically, RCW 9.94A.660(7)(c) provides:

       The court may order the offender to serve a term of total confinement
       within the standard range of the offender's current offense at any
       time during the period of community custody if the offender violates
       the conditions or requirements of the sentence or if the offender is
       failing to make satisfactory progress in treatment.

       RCW 9.94A.664 sets out specific provisions for residential DOSAs. There

is no period of total confinement. The residential DOSA offender is subject to

community custody for the greater of 24 months or one-half the midpoint of the

standard range "conditioned upon the offender entering and remaining in

residential chemical dependency treatment for ... between three and six

months."7 RCW 9.94A.664(4)(c) allows sanctions at a "progress hearing" or a

"treatment termination hearing," including "a term of total confinement equal to

one-half the midpoint of the standard sentence range, followed by a term of

community custody under RCW 9.94A.701."8

       The narrow issue here is whether Church qualifies for the more lenient

sanction allowed under RCW 9.94A.664(4)(c).

       RCW 9.94A.664(3)(b) requires the court to schedule both a "progress

hearing" and a "treatment termination hearing." The former must be held "during



      7 RCW 9.94A.664(1).

      8 RCW    9.94A.664(4)(c). RCW 9.94A.701(4) in turn provides that if an
offender is given a DOSA sentence,"the court shall impose community custody as
provided in RCW 9.94A.660."



                                          4
No. 76573-6-1/5


the period of residential chemical dependency treatment," and the latter must be

held "three months before the expiration of the term of community custody."9 The

offender's treatment provider must write and send a treatment plan to the court

"within thirty days of the offender's arrival to the residential chemical dependency

treatment program."19 "Upon receipt of the plan" from the treatment provider, "the

court shall schedule a progress hearing during the period of residential chemical

dependency treatment, and schedule a treatment termination hearing."11

       The court's authority to impose sanctions based on RCW 9.94A.664(4)(c)

requires satisfaction of the section's preconditions. These include the condition

that the offender report to the facility for residential treatment.12 Because Church

never reported for treatment, she could not be evaluated, the treatment provider

could not develop a treatment plan, and the court could not schedule a progress or

termination hearing.13 Therefore, Church's failure to report to treatment made the

sanctions provision of RCW 9.94A.664(4)(c) inapplicable to her.



      9 RCW     9.94A.664(3)(b).
       19   RCW 9.94A.664(3)(a)(emphasis added).
       11   RCW 9.94A.664(3)(b).
       12   RCW 9.94A.664(1),(3)(a).
       13 The trialcourt explained that, in King County, several hearings are
typically used to monitor the progress of residential DOSA offenders, not just a
single progress and a single termination hearing. For example, King County
superior courts often conduct an early review hearing to determine if the offender
has reported for treatment and subsequent review hearings to monitor progress.
Because of the statutory timing requirements, these review hearings are not
necessarily the "progress hearing" or "treatment termination hearing" contemplated
by the statute. In any event, the King County variations do not alter how we
construe the statute.



                                         5
No. 76573-6-1/6


       Furthermore, the purpose of the DOSA statutes 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 of the individual and the

community."14 The same interests are at issue when the trial court decides the

sanctions for noncompliance. Church's desired reading of RCW 9.94A.664(4)

would undermine these interests by creating a disincentive to comply with the

terms of a residential DOSA. Accepting Church's reading of the statutes,

offenders would be tempted to agree to a residential DOSA and then fail to report

in order to reduce a standard range sentence to half the midpoint of the standard

range. This would undermine the DOSA statutes' purpose.

       Because the plain language in RCW 9.94A.664 is unambiguous and

sufficient to resolve this issue, we do not need to consider the broader question of

the interplay between RCW 9.94A.660(7)(c), allowing incarceration for the

standard range, and RCW 9.94A.664(4)(c), allowing incarceration for one-half the

midpoint of the standard range when it is applicable.15 That question would be

best addressed on specific facts squarely presenting   it.16




       14   State v. Grayson, 154 Wn.2d 333, 343, 111 P.3d 1183(2005).
      15 See Evans, 177 Wn.2d at 192 ("Plain language that is not ambiguous
does not require construction.").
       16 We note the State's observation at oral argument that the two statutes
might be harmonized as allowing the trial court the option of selecting which of the
two total confinement sanctions best meets the interests of the offender and the
community upon revocation of a residential DOSA. This observation appears to fit
with the DOSA statutes' purpose as stated in Grayson, 154 Wn.2d at 343.



                                          6
No. 76573-6-1/7


        For the first time on appeal, Church argues the State breached the plea

agreement when it recommended a standard range sentence after she failed to

report to treatment.17

        When a plea agreement is unambiguous, as it is here, the court reviews the

agreement de novo.18

        "A plea agreement is a contract with constitutional implications."18 The

agreement is evaluated under basic contract principles.20 The agreement binds

the State and the defendant.21 Because of a plea agreement's constitutional

implications, "due process 'requires a prosecutor to adhere to the terms of the

agreement.'"22 The State is bound by the Constitution and the plea agreement's

terms to recommend its promised sentence.23

        At its most basic, Church's plea agreement bound the State to recommend

a residential DOSA in exchange for her pleading guilty to residential burglary and



       17 The breach of a plea agreement may be raised for the first time on
appeal as a manifest constitutional error. But to be considered "manifest," the
facts necessary to review the claimed error must be in the appellate record. State
v. Xaviar, 117 Wn. App. 196, 199,69 P.3d 901 (2003); State v. Williams, 103 Wn.
App. 231, 234, 11 P.3d 878(2000).
       18 State v. Ramos, 187 Wn.2d 420, 433, 387 P.3d 650, cert. denied, 138 S.
Ct. 467, 199 L. Ed. 2d 355 (2017).
       18 State v. Townsend,2 Wn. App. 2d 434, 438,409 P.3d 1094 (2018); see
State v. Sledge, 133 Wn.2d 828, 838-39, 947 P.2d 1199 (1997).
       20 State v. Mclnallv, 125 Wn. App. 854, 867, 106 P.3d 794 (2005).
        21 Sledge, 133 Wn.2d at 839 n.6.
        22 State v. MacDonald, 183 Wn.2d 1, 8, 346 P.3d 748(2015)(quoting id. at
839).
        23 Id.




                                          7
No. 76573-6-1/8



solicitation to possess heroin. The State made that recommendation at

sentencing. Church's contention is based on the State's conduct after she failed

to comply with the terms of her sentence.

       The contested provisions of the plea agreement are in the State's

residential DOSA recommendation form: "NONCOMPLIANCE with the

requirements of the DOSA sentence while in community custody will result in

imposition of sanctions, which may include a term of total confinement of up to

one-half the midpoint of the standard range."24

       Church's argument presumes that the State breached a promise to

recommend total confinement up to one-half the midpoint of the standard range.

But the State made no such promise. "'While the government must be held to the

promises it made, it will not be bound to those it did not make.'"25

       The "noncompliance" section of the plea agreement merely provides notice

that sanctions will result for noncompliance. It then identifies an example of one

sanction a court may impose. Church provides no authority that such a statement

of one possible sanction is the same as a promise by the State that it will forgo

recommending another available sanction. To the contrary, an equivocal




      24   Clerk's Papers at 39(boldface omitted, emphasis added).
      25 WAYNE R. LEFAVE, JEROLD H. ISRAEL, NANCY J. KING, AND ORIN S. KERR,
CRIMINAL PROCEDURE § 21.2(d) n.173(4th ed. 2015)(quoting United States v.
Fentress, 792 F.2d 461 (4th Cir. 1986)).



                                          8
No. 76573-6-1/9



statement about which sanction might be imposed in the future is, in this context,

no promise at al1.26

       Because the court did not err by declining to rely on RCW 9.94A.664(4) and

the State did not breach the plea agreement, we affirm.




WE CONCUR:



                                                'eecieek,
                                                        C




       26 See Washington Educ. Ass'n v. Washington Dep't of Ret. Sys., 181
Wn.2d 212, 225-27, 332 P.3d 428(2014)(concluding that no binding promise was
made when communications are "equivocal" and "too qualified"); accord United
States v. Battle, 467 F.2d 569, 570 (5th Cir. 1972)(information relayed by
prosecutor to defendant in plea bargaining "in equivocal terms such as `could' and
'perhaps" are not promises); United States v. Nuckols, 606 F.2d 566, 568 (5th Cir.
1979)(prosecutor "venturing a guess" as to length of sentence the appellant
"could expect" is not an enforceable promise).



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