                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                                         April 21, 2020
                                        DIVISION II
 STATE OF WASHINGTON,                                               No. 53470-3-II
                                                                   consolidated with
                               Respondent,                          No. 53480-1-II
                                                                    No. 53490-8-II
        v.

 MIRIAM ELIZABETH WHITMAN,                                   UNPUBLISHED OPINION

                               Appellant.


       GLASGOW, J.—Miriam Elizabeth Whitman appeals her sentence, arguing ineffective

assistance of counsel because her attorney misstated the law regarding eligibility for a Drug

Offender Sentencing Alternative (DOSA), RCW 9.94A.660. Specifically, defense counsel stated

that Whitman was not eligible for a DOSA and, therefore, counsel was not requesting one. The

State concedes counsel misstated the relevant eligibility standard during sentencing, and the trial

court did not consider a DOSA. We accept the State’s concession and remand for resentencing.

                                             FACTS

       In 2018, Whitman was terminated from drug court. As a result, the court entered findings

of fact and conclusions of law finding her guilty of one count of burglary in the second degree,

one count of theft in the third degree, and one count of bail jumping.

       At sentencing, defense counsel told the trial court that he was not asking the court to

consider a DOSA sentence because one was not legally possible. Defense counsel explained that

Whitman was being sentenced under three different cause numbers. Counsel apparently believed

that this precluded a DOSA sentence.

       Whitman appeals her sentence.
Nos. 53470-3-II, 53480-1-II, 53490-8-II


                                            ANALYSIS

       Whitman argues, and the State concedes, that defense counsel was ineffective because he

incorrectly interpreted RCW 9.94A.660(1)(g). We accept the State’s concession and remand for

resentencing to consider whether a DOSA sentence is appropriate.

       A criminal defendant has a constitutional right to be represented by counsel. U.S. CONST.,

amends. VI, XIV; WASH. CONST. art. I, §§ 3, 22. Counsel renders ineffective assistance when they

are deficient and that deficiency prejudices the defendant. Strickland v. Washington, 466 U.S. 668,

687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). If counsel erroneously represents to the court that

a sentencing alternative is not authorized, and the sentencing court does not consider the sentencing

alternative, then counsel’s performance may be deemed deficient. See State v. Adamy, 151 Wn.

App. 583, 588, 213 P.3d 627 (2009).

       A defendant is ineligible for a DOSA sentence if they have received more than one DOSA

sentence in the 10 years prior to the current offense. RCW 9.94A.660(1)(g). This limitation applies

only where the prior DOSA was imposed before the defendant committed the current offense.

State v. Van Noy, 3 Wn. App. 2d 494, 495, 503, 416 P.3d 751 (2018).

       Here, defense counsel told the trial court that he would normally request a prison-based

DOSA in these circumstances, but he was legally unable to because Whitman had been convicted

under three cause numbers, thus making any DOSA request one for more than three DOSA

sentences in a 10 year period. The State concedes that this was a misinterpretation of the statute.

       Though the trial court did not discuss a possibility or preference for imposing a DOSA, the

State concedes that the appropriate remedy is to remand for resentencing to consider a DOSA

sentence based on ineffective assistance of counsel.




                                                 2
Nos. 53470-3-II, 53480-1-II, 53490-8-II


                                          CONCLUSION

        Because defense counsel was deficient and the trial court did not consider the possibility

of a DOSA sentence, we accept the State’s concession and remand to the trial court to resentence

Whitman and consider whether a DOSA sentence is appropriate.

        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 2.06.040,

it is so ordered.



                                                    Glasgow, J.
 We concur:



 Maxa, C.J.




 Worswick, J.




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