                                                         STATE Cl- v.*^..^-
                                                         20m JAH 21 M*09




             IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                              No. 69256-9-1

                             Respondent,          DIVISION ONE

                  v.

                                                  UNPUBLISHED OPINION
MAXFIELD P. DARE,

                             Appellant.           FILED: January 27, 2014

          Schindler, J. — Maxfield P. Dare claims the court abused its discretion in

denying his request for a "Drug Offender Sentencing Alternative" (DOSA) by failing to

take into consideration the benefit to Dare and the community or the legislative intent to

expand the eligibility for a DOSA. We reject Dare's argument as without merit, and

affirm.

                                           FACTS

          The facts are undisputed. On March 14, 2012, the State charged Maxfield P.

Dare with possession of a stolen vehicle, Count I, and trafficking in stolen property in

the first degree, Count II, King County Case Number 12-1-01536-4 SEA. The

certification for probable cause states that on the evening of March 6, 2012, an off-duty

police officer witnessed an individual, later identified as Dare, sitting in a 2011 Audi A4

that belonged to Charles Koehn. Koehn and his spouse Yoo Jung Chong had reported
No. 69256-9-1/2


a burglary at their home and the theft of the 2011 Audi earlier that day. The certification

also states that Patricia King reported a burglary at her home between the hours of

11:45 p.m. on February 27 and 4:30 a.m. on February 28, 2012. The stolen items

included a cell phone and Nook tablet. On February 28, Dare sold King's cell phone

and Nook tablet at a pawn shop.

       On March 14, the State filed separate charges against Dare for robbery in the

second degree, King County Case Number 12-C-01541-1 SEA. According to the

certification, Dare and his friends Tamir Thomas and Brady Bracken assaulted and

robbed three college students in the University District. Dare, Thomas, and Bracken

confronted the students and stole two cell phones, a debit card, and cash. During the

course of the robbery, Thomas struck one of the victims in the face.

       On March 27, the State filed an amended information in King County Case

Number 12-1-01536-4 SEA, charging Dare with three counts of residential burglary:

Count III as to King, Count IV as to Koehn and Chong, and Count V as to Anthony and

Rebecca Dubin. The State also alleged as an aggravating circumstance under RCW

9.94A.535(3)(u) that the victims were at home during the three burglaries.

       The certification for probable cause states that on March 6, 2012, Dare broke into

the home of Anthony and Rebecca Dubin at approximately 2:52 a.m. while the Dubins

and their three children were asleep. The Dubins woke up after hearing someone say,

" '[L]et's go.'" The Dubins checked the house and found the back door open. Dare

stole a digital camera, a cell phone, and a Target gift card. At the time of his arrest,

Dare had the Dubins' Target gift card in his possession.
No. 69256-9-1/3


       The Seattle Police Department continued to investigate and on May 17, the State

filed an amended information adding another count of residential burglary, two counts of

theft of a motor vehicle, and one count of trafficking in stolen property in the first degree

under King County Case Number 12-C-01536-4 SEA. The State also alleged that the

victim was present in his home during the residential burglary. The certification for

probable cause states that on February 27, 2012, Dare broke into the home of David

Furhman while he and his family were asleep and stole debit and credit cards, $30 in

cash, skis, and their 2005 Honda Pilot.

       On June 18, Dare entered into a plea agreement with the State. Dare agreed to

real facts as set forth in the certifications for probable cause. In King County Case

Number 12-C-01536-4 SEA, Dare agreed to plead to one count of possession of a

stolen vehicle, two counts of trafficking in stolen property in the first degree, four counts

of residential burglary, and two counts of theft of a motor vehicle. Dare also agreed to

plead to the aggravating circumstances under RCW 9.94A.535(3)(u), admitting that

victims were at home during all four residential burglaries.

       The State agreed to amend the charges in King County Case Number 12-C-

01541-1 SEA from robbery in the second degree to one count of theft in the first degree

and one count of assault in the fourth degree. The State also agreed to not charge

Dare with other crimes that occurred between February 6 and March 6, 2012, including

six nighttime residential burglaries, five auto thefts, and a car prowl, on the condition
that Dare agreed to pay restitution and abide by a no-contact order with the victims.
       In the plea agreement, the State conceded that Dare was eligible for a DOSA but
did not agree to recommend a DOSA. The plea agreement states that the State would
No. 69256-9-1/4


seek an exceptional sentence of 132 months: 84 months for each of the four counts of

residential burglary to run concurrently and a consecutive sentence of 48 months for the

"victim present aggravator."

       Before sentencing, the State filed a brief in support of the request for an

exceptional sentence. In support of the exceptional sentence, the State cited the

aggravating circumstance under RCW 9.94A.535(3)(u) that allows a court to impose a

sentence above the standard range if the defendant commits a burglary while the victim

is present in the residence.1 The State also argued that because Dare committed
multiple current offenses and his high offender score would result in some of his current

offenses going unpunished, the court could impose an exceptional sentence under

RCW 9.94A.535(2)(c).2 The State noted Dare had 15 juvenile adjudications that
included eight residential burglaries, at least five of which occurred at night in occupied

residences.

       The State attached a transcript from the disposition hearing in juvenile court.

The juvenile court judge specifically addressed the harm to the victims from the

residential burglaries: "[E]veryone in the world needs to have a place, and it usually is


       1RCW 9.94A.535(3)(u) states, in pertinent part:
             (3) Aggravating Circumstances - Considered by a Jury - Imposed by the Court
               Except for circumstances listed in subsection (2) of this section, the following
       circumstances are an exclusive list of factors that can support a sentence above the
       standard range....

                (u) The current offense is a burglary and the victim of the burglary was present
       in the building or residence when the crime was committed.
       2RCW 9.94A.535(2)(c) states, in pertinent part:
               (2) Aggravating Circumstances - Considered and Imposed by the Court
               The trial court may impose an aggravated exceptional sentence withouta finding
       of fact by a jury under the following circumstances:

               (c) The defendant has committed multiple current offenses and the defendant's
       high offenderscore results in some of the current offenses going unpunished.
No. 69256-9-1/5


their home, where they know they can go and be safe.... [T]hat is something that you

have taken away from certain people." Dare assured the juvenile court judge that he

was "eager to change" after his release. The State pointed out that the current

residential burglaries took place approximately five months after Dare was released

from a juvenile rehabilitation facility (JRA).

       Dare filed a pre-sentence report asking the court to impose a DOSA. In support

of his request, Dare provided an "Alcohol and Drug Evaluation" conducted by the

treatment director at Sunrise Centers. The evaluation states, "[l]t appears that there is

Sufficient Evidence of Poly-Substance Dependence."3 Dare also provided the results of
the drug tests performed on March 10, 2012 by King County Jail Health Services

showing that he tested positive for marijuana, cocaine, and benzodiazepine.

       At the sentencing hearing, victims of the charged and uncharged residential

burglaries addressed the court. The State also read into the record letters provided by

other victims, including Koehn and Chong, describing the impact of the residential

burglaries and expressing support for an exceptional sentence. Seattle Police Detective

Kate Hernan, the lead detective in the juvenile cases, and Seattle Police Detective

George Davisson, the lead detective in the current cases, also addressed the court.

Detective Davisson stated that despite numerous opportunities and warnings, Dare's

criminal behavior only "escalated."

       Dare's father, Michael Dare, spoke at length on Dare's behalf. Michael Dare

described Dare's difficult upbringing, struggle with drugs and alcohol, and success while




         (Emphasis omitted.)
No. 69256-9-1/6


under supervision at JRA. Dare also described to the court the impact drugs and

alcohol had on his behavior, and apologized to the victims.

       The court denied Dare's request for a DOSA and imposed an exceptional

sentence of 120 months. In rejecting the request for a DOSA, the court ruled, in

pertinent part:

              Well, let me just say to all the people interested in this case, these
       sentences are always difficult for the Court, I accept, and, in fact, I'm
       persuaded that [Dare] has a significant drug problem, that chemical
       dependency evaluation that defense provided said he was withdrawing
       from benzodiazepines when he was booked into the jail. And I've been a
       drug court judge, I know that addicts have difficulty succeeding and
       sometimes they fail multiple times before they succeed, I am also a big
       believer in the DOSA alternative because, for one thing, DOSA gives you
       supervision upon release, which the State's recommendation doesn't.
       And so I've seriously considered the DOSA here, but I just cannot impose
       the DOSA, I just can't.
              And I think there comes a point where I have to weight [sic] the
       benefit to the individual in giving [Dare] a chance to receive the treatment
       he so obviously needs versus the protection of the public.
              And what concerns me here is not just that he reoffended so
       quickly after release from JRA, but that it was multiple offenses, and that's
       the significant factor for me. Just looking at the dates, there being multiple
       offenses being committed just so close in time, and so I just cannot justify,
       in the interest of the public, a DOSA sentence.

                                           ANALYSIS

       Dare challenges the trial court's decision to deny his request for a DOSA.4 Dare
claims the trial court abused its discretion by failing to fully and fairly consider the

benefit of a DOSA to Dare and the community, and by failing to take into consideration

the intent of the legislature to expand the eligibility requirements for a DOSA.




       4 Daredoes not challenge the exceptional sentence
                                                6
No. 69256-9-1/7


      RCW 9.94A.660(3) grants the court the discretion to waive a standard-range

sentence and impose an alternative sentence for an eligible offender.5 The sentencing
court's decision of whether to grant a DOSA is not reviewable on appeal. State v.

Grayson, 154 Wn.2d 333, 338, 111 P.3d 1183 (2005). Review of such a decision is

limited to circumstances where the court has categorically refused to exercise its

discretion to impose a DOSA, or has relied on an impermissible basis for refusing to

impose a DOSA. Grayson, 154 Wn. 2d at 342; State v. Garcia-Martinez, 88 Wn. App.

322, 330, 944 P.2d 1104 (1997).

      The purpose of a DOSA is to provide treatment and rehabilitation when the court

determines it is in the best interest of the individual and the community. Grayson, 154

Wn.2d at 343. Where a court has considered the facts and has concluded that there is

no basis for a DOSA, it has exercised discretion and a defendant may not appeal such

a ruling. Garcia-Martinez. 88 Wn. App. at 330.

       The record does not support Dare's argument that the court abused its discretion

by failing to fully and fairly consider the benefit of a DOSA to him and to the community.

While the court agreed that Dare "has a significant drug problem" and "seriously

considered" imposing a DOSA sentence, the court determined the community would not

benefit from the imposition of a DOSA sentence. In rejecting the request for a DOSA,

the court carefully and deliberately weighed Dare's criminal history, the benefits of




       5 RCW 9.94A.660(3) states, in pertinent part:
       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 ofeither a prison-based alternative ... or a residential chemical dependency
       treatment-based alternative.
No. 69256-9-1/8


treatment for Dare, and whether a DOSA would serve the interests of the community.

The court ruled, in pertinent part:

       [T]here comes a point where I have to weight [sic] the benefit to the
       individual in giving [Dare] a chance to receive the treatment he so
       obviously needs versus the protection of the public.
               And what concerns me here is not just that he reoffended so
       quickly after release from JRA, but that it was multiple offenses, and that's
       the significant factor for me. Just looking at the dates, there being multiple
       offenses being committed just so close in time, and so I just cannot justify,
       in the interest of the public, a DOSA sentence.

The court did not abuse its discretion in concluding that the risk Dare posed to the

community outweighed the benefit of a DOSA sentence for Dare.

       Dare also claims the court did not take into consideration the legislature's

decision to expand the eligibility for a DOSA, and a court cannot consider the timing or

number of offenses for a DOSA. Neither legislative history nor case law supports

Dare's argument.

       Dare contends the court erred in denying the DOSA by relying on recidivism and

his multiple offenses. In support, Dare points to the DOSA legislative history stating that

a goal of the 1999 amendment expanding DOSA eligibility for nonviolent crimes was to

reduce recidivism. See S.B. Rep. on Engrossed Second Substitute H.B. 1006, 56th

Leg., Reg. Sess. (Wash. 1999). But the Senate Bill Report also expressly reiterates the

discretion of the court to impose a DOSA based on the circumstances of the crime and

the benefit to the offender and the community: "Where chemical dependency

contributed to an offense, the court may order rehabilitative treatment or other

affirmative conduct reasonably related to the circumstances of the crime and reasonably

necessary or beneficial to the offenderor community in rehabilitating the offender." S.B.



                                              8
No. 69256-9-1/9


Rep. on Engrossed Second Substitute H.B. 1006, at 2.6 Further, a court is entitled to

rely on the offender's criminal history in determining whether an alternative sentence

would benefit the offender and the community. State v. Jones. 171 Wn. App. 52, 55-56,

286P.3d83(2012).

      Here, the court did not abuse its discretion by taking into account Dare's criminal

history and determining that a DOSA would not benefit the community.

       We affirm.




                                                       {AAWrflcu
WE CONCUR:




        (Emphasis added.)
