                                                                      FILED
                                                                  NOVEMBER 14, 2019
                                                               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

THE STATE OF WASHINGTON,                     )
                                             )         No. 36618-9-III
                     Appellant,              )
                                             )
       v.                                    )
                                             )
SHYANNE N. COLVIN,                           )         UNPUBLISHED OPINION
                                             )
                     Respondent.             )

       SIDDOWAY, J. — The State of Washington appeals the residential drug offender

sentencing alternative (DOSA) sentence that Shyanne Colvin received for her conviction

upon plea of guilty to delivery of a controlled substance (methamphetamine) including a

special allegation that the offense occurred in a county jail. The State contends, and Ms.

Colvin concedes, that the trial court erred in giving her a residential DOSA sentence that

was accommodated by waiving a mandatory enhancement to reduce her standard

sentencing range. We remand for a new sentencing hearing.

                              FACTS AND PROCEDURE

       Ms. Colvin entered a guilty plea to a charge of delivery of a controlled substance

(methamphetamine) and a corresponding special allegation that she or an accomplice

committed the offense in a county jail and was subject to a mandatory 18-month sentence
No. 36618-9-III
State v. Colvin


enhancement pursuant to RCW 9.94A.533(5).1 Prior to this crime, Ms. Colvin had an

offender score of 1, based on a 2018 Idaho felony conviction for possession of a

controlled substance. Given her offender score and the seriousness level of her current

crime, Ms. Colvin faced a standard sentence range of 12+ to 20 months, plus an 18-

month sentence enhancement. Accordingly, her standard range was 30+ to 38 months.

By statute, the residential chemical dependency treatment-based DOSA is only available

if the midpoint of the standard range is 24 months or less. RCW 9.94A.660(3).

       In the plea agreement, the State agreed to recommend a low-end prison sentence

of 30 months and one day, followed by one year of supervision. Prior to sentencing, the

trial court determined it would consider imposing a residential DOSA sentence. On

January 29, 2019, the court entered an order for community residential DOSA screen and

pre-sentence examination.

       At the February 4, 2019 sentencing hearing, defense counsel advised the court that

Ms. Colvin was amenable to treatment. The court commented that it was glad Ms.

Colvin was taking a treatment option, at which point the deputy prosecutor clarified that

the State’s recommendation was a standard range prison sentence. The deputy prosecutor

acknowledged that this court’s decision in State v. Yancey, 3 Wn. App. 2d 735, 418 P.3d



       1
         Ms. Colvin has not appealed any aspect of her case. Hence, the facts leading to
her guilty plea and conviction with the enhancement are not critical to the issue raised in
this appeal and are not further discussed.

                                             2
No. 36618-9-III
State v. Colvin


157 (2018) (trial court had authority to waive sentence enhancements in order to grant a

residential DOSA sentence), would allow for a residential DOSA in Ms. Colvin’s case—

but with the caveat that Yancey was on appeal to the Washington Supreme Court. The

deputy prosecutor added that the State would not oppose a prison-based DOSA sentence.

      The trial court commented that Yancey was controlling law at present. It then

waived the 18-month county jail enhancement in order to meet the standard range

midpoint requirements of RCW 9.94A.660(3), and granted Ms. Colvin a residential

DOSA sentence. The court entered the judgment and sentence on February 4, 2019. Ten

days later, the Supreme Court reversed this court’s decision in Yancey. State v. Yancey,

193 Wn.2d 26, 34, 434 P.3d 518 (2019). The State promptly appealed Ms. Colvin’s

sentence.

                                      ANALYSIS

      In Yancey, the Supreme Court addressed the relevant provisions of RCW

9.94A.660(3), and held

      [T]he statute is clear: the trial court may not “waive” sentence enhancements or
      portions of the base range to get a new range that is low enough to accommodate
      the residential-based DOSA’s sentence length prerequisites.

State v. Yancey, 193 Wn.2d at 34. The Supreme Court remanded for a full, new

resentencing hearing. Id. at 34-35.




                                            3
No. 36618-9-III
State v. Colvin


           Based on the Supreme Court's decision in Yancey, the State contends the trial

court erred when it sentenced Ms. Colvin to a residential DOSA. Ms. Colvin concedes

that Yancey controls and requires a remand for resentencing. We agree.

           Ms. Calvin's standard range is 30+ to 38 months. The 34-month midpoint is

greater than the 24-month maximum midpoint to qualify for a residential DOSA under

RCW 9.94A.660(3). Accordingly, under Yancey, the trial court erred in waiving the 18-

month county jail enhancement to accommodate Ms. Calvin's residential DOSA

sentence.

           The sentence is reversed and the matter remanded for a full, new resentencing

hearing.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:




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