      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                                 No. 68121-4-1
                                                    (Consolidated with
                     Respondent,                      No. 68122-2-1)

             v.                                     DIVISION ONE

ROBERT LEE KING,                                     UNPUBLISHED


                     Appellant.                      FILED: June 10. 2013




       Cox, J. - Generally, a trial judge's decision whether to grant a DOSA is

not reviewable.1 Robert Lee King argues that the trial court abused its discretion
when it denied his request for a Drug Alternate Sentencing Alternative (DOSA)

on untenable grounds. Because the trial court did not categorically refuse to

consider King's request and based its denial of this request on tenable reasons, it

did not abuse its discretion.                                                       ^

       King also argues in his Statement of Additional Grounds for Review thafe         n-:~~




he was denied effective assistance of counsel as a result of his attorney's failure ^y:

to request a competency determination. But he fails to establish that his       ^       .^r

counsel's performance was deficient. Thus, we need not consider whether tKere            J

was any prejudice to the outcome of the trial. We affirm

       King was convicted of four counts of Violation of the Uniform Controlled

Substances Act (VUCSA) in two separate trials. At the sentencing hearing for all


       1 State v. Grayson. 154 Wn.2d 333, 338, 111 P.3d 1183 (2005) (citing
State v. Bramme. 115 Wn. App. 844, 850, 64 P.3d 60 (2003)).
No. 68121-4-1 (Consolidated with No. 68122-2-l)/2


four counts, where King was represented by stand-in counsel, the State

recommended a DOSA, pursuant to its plea agreement with King. The trial court

denied this request.

       King appeals.

                              DENIAL OF THE DOSA

       King argues that the trial court violated his constitutional rights and denied

his request for a DOSA on untenable grounds. We disagree.

       Generally, a trial judge's decision whether to grant a DOSA is not

reviewable.2 But "'every defendant is entitled to ask the trial court to consider
such a sentence and to have the alternative actually considered.'"3 If a court
categorically refuses to consider a statutorily authorized sentencing alternative

that has been requested by the defendant, it has effectively failed to exercise its

discretion.4 Additionally, a court errs if the defendant establishes a constitutional

violation in its denial of a DOSA.5




       2 Grayson. 154 Wn.2d at 338 (citing Bramme. 115 Wn. App. at 850).

       3State v. Jones. 171 Wn. App. 52, 55, 286 P.3d 83 (2012) (emphasis in
original) (quoting Grayson, 154 Wn.2d at 342).

       4 Id (quoting Grayson, 154 Wn.2d at 342).

       5 State v. Gronnert. 122 Wn. App. 214, 225, 93 P.3d 200 (2004) (citing
State v. Garcia-Martinez. 88 Wn. App. 322, 330, 944 P.2d 1104 (1997); State v.
Mail, 121 Wn.2d 707, 713, 854 P.2d 1042 (1993)).
No. 68121-4-1 (Consolidated with No. 68122-2-IJ/3


       Forexample, in State v. Grayson,6 the trial court abused its discretion
when its denial of Grayson's request for a DOSA was because "the State no

longer has money available to treat people who go through a DOSA program."7
       But, as State v. Jones demonstrates, where a trial court considers valid

factors in its denial of a DOSA, its sentencing decision is not an abuse of

discretion.8 In Jones, Division Two held that the trial court did not abuse its

discretion when denying Jones's request for a DOSA.

       [T]he record shows that the trial court considered several factors in
       deciding whether to grant Jones's request for a DOSA: Jones's
       criminal history, whether he would benefit from treatment, and
       whether a DOSA would serve him or the community. . . . Because
       the trial court did not refuse to consider [Jones] for a prison-based
       DOSA, it did not abuse its discretion.191

       Here, as in Jones, the trial court enunciated several reasons for denying

King's request for a DOSA. The trial court noted that King had "been in the

federal system or the State system" for years. The court also pointed to King's

mental health issues, noting that King reported he had received treatment in

federal prison, but it had not helped. Specifically, the court stated:

       You just—you don't—you said it yourself, you don't know anything
       else but how to deal drugs. So you can buy your weed so you can
       stay calm. And so there's nothing before this Court. I mean, I don't




       6154Wn.2d333, 111 P.3d 1183(2005).

       7Jd at 337 (emphasis in original).
       8 171 Wn. App. 52, 55, 286 P.3d 83 (2012).

       9 Id. at 55-56.
No. 68121-4-1 (Consolidated with No. 68122-2-1)74


       have an evaluation that's been done that shows your ability to
       succeed with treatment.[10]

Given the information before it, the court found that imposing a DOSA was

"setting [King] up to fail. . . ."11 "You haven't been able to follow through on just
coming to court. What makes me think you are going to follow through on a

DOSA?"12 It concluded that the standard range sentence was more appropriate
for King and for the community:

       I will impose the 18 months and run it concurrently. But I think in
       the long run you are going to do less time on the bottom of the
       range than this midrange deal of a DOSA. I think a DOSA is doing
       you and our community a disservice.[13]
Thus, the trial court's denial of King's DOSA request was based on specific,

tenable grounds and was not an abuse of discretion.

       King argues that the trial court denied the DOSA on untenable grounds

because it considered his trial testimony as a basis for this denial. He relies on

State v. Montgomery.14 That reliance is misplaced.

       There, the trial court denied Montgomery's request for a special sexual

offender sentencing alternative (SSOSA).15 "The trial court's reason for denying



       10 Report of Proceedings (Nov. 30, 2011) at 14.
       11 Id. at 15.

       12 Id.

       13 Id.

       14 105 Wn. App. 442, 17 P.3d 1237 (2001).
       15 Id. at 443-44.
No. 68121-4-1 (Consolidated with No. 68122-2-1)75


SSOSA to Montgomery was that he caused his victim to go to trial."16 This
rationale, the Montgomery court held, was a violation of Montgomery's right as a

defendant "not [to] be subjected to more severe punishment for exercising his

constitutional right to stand trial."17 In so holding, this court noted that the trial
court only considered Montgomery's decision to proceed to trial.18 King argues
just as a defendant has a constitutional right to proceed to trial, he also has a

right to testify at trial.19 Thus, King argues, the trial court subjected him to more
severe punishment for exercising his constitutional right to testify.

       Here, the trial court cited several reasons for denying a DOSA for King, as

noted above. One of these was a consideration of King's trial testimony. Unlike

Montgomery, this was not any violation of King's constitutional right to testify at

trial. The court had other, independent reasons to support its decision, the

reference to trial testimony being only one. Because the trial court relied on

several factors in addition to King's testimony, its denial of the DOSA was not an

abuse of discretion.

       King also argues that the trial court denied his request for a DOSA on

untenable grounds because it did not have a treatment evaluation and because


       16 Id, at 446.
       17 jd (citing United States v. Carter, 804 F.2d 508 (9th Cir. 1986)).
       18 jd (emphasis added).
       19 Brief ofAppellant at 7-8; see Rock v. Arkansas, 483 U.S. 44, 49, 107 S.
Ct. 2704, 97 L. Ed. 2d 37 (1987) ("At this point in the development of our
adversary system, it cannot be doubted that a defendant in a criminal case has
the right to take the witness stand and to testify in his or her own defense.").
No. 68121-4-1 (Consolidated with No. 68122-2-1)76


his trial counsel was not present at his sentencing hearing. Neither argument is

meritorious.


       As noted above, the trial court did not deny the DOSA recommendation on

untenable grounds. It concluded that King's many years of incarceration,

together with his mental illness, his inability to report to court hearings, and his

trial testimony, demonstrated that he would not be a good DOSA candidate.

       It is true that the court did not order a presentence report or a treatment

evaluation prior to sentencing. But, as Division Three of this court recently held,

under RCW 9.94A.660, "a trial court need not order or consider any report in

deciding whether an offender is an appropriate candidate for an alternative

sentence."20 And any failure to expressly waive the need for such a report is
harmless, given that the court "was aware of the possibility of securing a report

but" did not order one.21

       Nor does the fact that King had stand-in counsel at sentencing mean that

the trial court's denial of the DOSA was on untenable grounds. Though King's

sentencing counsel was not familiar with King's trial testimony, the trial court did

not rely only on that testimony in denying the DOSA. Further, King's stand-in

counsel offered arguments why King's trial testimony should not be considered

and why King merited a DOSA.




       20 State v. Bribiesca Guerrero. 163 Wn. App. 773, 778, 261 P.3d 197
(2011). review denied, 173Wn.2d 1018(2012).

       21
            Id.
No. 68121-4-1 (Consolidated with No. 68122-2-1)77


          King argues that this case is akin to In re Personal Restraint of Morris.22 It
is not.


          There, Morris brought a personal restraint petition alleging that he had

received ineffective assistance of counsel.23 Morris was represented by two
separate attorneys for two separate counts: second degree rape and second

degree assault.24 At sentencing for both counts, the attorney handling the rape
charge was not present.25 Division Three ofthis court held that although "not
entitled to a specific attorney for sentencing, [Morris was] entitled to one familiar

with his case."26 It then vacated the second degree rape conviction and
remanded for a new sentencing hearing.27 Here, unlike in Morris, King was
represented by an attorney for all charged counts. Consequently, in contrast to

Morris, King was able to present an argument for a DOSA to the trial court.

               STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW

          In his Statement of Additional Grounds for Review, King primarily argues

that he was denied effective assistance of counsel because his counsel did not

raise his competency during trial. We disagree.




          22 34 Wn. App. 23, 658 P.2d 1279 (1983).
          23 Jd at 24.

          24 Id,

          25 Id

          26 Id
          27 Id. at 24-25.
No. 68121-4-1 (Consolidated with No. 68122-2-1)78


      To prevail on a claim of ineffective assistance of counsel, a defendant

must show that his counsel's performance both fell below an objective standard

of reasonableness and that the deficient performance prejudiced his trial.28 To
establish prejudice, a defendant must show a reasonable probability that the

outcome of the trial would have been different absent counsel's deficient

performance.29 Failure on either prong of the test defeats a claim of ineffective
assistance of counsel.30 "When defense counsel knows or has reason to know of

a defendant's incompetency, tactics cannot excuse failure to raise competency at

any time 'so long as such incapacity continues.'"31
       Here, there is no evidence of deficient performance. There is nothing in

the record that indicates that King's counsel knew or had reason to know that

King was incompetent. Though defense counsel knew, at the very least, that

King was taking medication for mental illness, the evidence in the record

indicates that King understood the charges against him and was able to assist in

his own defense. His testimony at trial was coherent and articulate. He also

complained to the trial court about the strategic decisions that his counsel was

making, thus indicating that he could and did assist her in his own defense.



       28 Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251
(1995).

       29 State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987).

       30 Strickland. 466 U.S. at 697.

      31 In re Pers. Restraint of Fleming. 142 Wn.2d 853, 867, 16 P.3d 610
(2001) (quoting RCW 10.77.050).

                                         8
No. 68121-4-1 (Consolidated with No. 68122-2-l)/9


Because there was no deficient performance, we need not address the prejudice

prong of his claim.

       King's ineffective assistance of counsel claim fails.

       King also appears to argue that he was competent to stand trial. On this

limited record, he has failed to establish that claim.

       Due process prohibits "the conviction of a person who is not competent to

stand trial."32 Additionally, in Washington RCW 10.77.050 provides that "[n]o
incompetent person [shall] be tried, convicted, or sentenced for the commission

of an offense so long as such incapacity continues." "The two-part test for legal

competency for a criminal defendant in Washington is as follows: (1) whether the

defendant understands the nature of the charges; and (2) whether he is capable

of assisting in his defense."33
       Here, King testified at his trial and made several arguments to the court

regarding his case. He was able to coherently argue that his trial counsel was

not listening to his arguments, and was then later able to testify as to his version

of events regarding his VUCSA charges. Thus, he fails to overcome the




       32 Fleming. 142 Wn.2d at 861 (citing Drope v. Missouri. 420 U.S. 162, 171,
95 S. Ct. 896, 43 L Ed. 2d 103 (1975); Pate v. Robinson, 383 U.S. 375, 378, 86
S. Ct. 836, 15 L. Ed. 2d 815 (1966)).

       33 Id at 862 (citing State v. Hahn, 106 Wn.2d 885, 894, 726 P.2d 25
(1986); former RCW 10.77.010 (2010)).
No. 68121-4-1 (Consolidated with No. 68122-2-1)710


presumption of competency that applies.34 Consequently, he fails to establish
either of the two prongs to establish that he was not competent to stand trial.

       King also contends that his counsel did not seek a court order to help him

to obtain his medication, and thus he was unable to assist her in his own

defense. But King's counsel did raise King's difficulty in obtaining his medication

at trial. In response, the court agreed that it would "do an order." Thus, this

argument is not persuasive.

       We affirm the judgment and sentence.

                                                         ^b*, J7
WE CONCUR:




                                                       CI5i7s-t&-c —>




       34 See State v. Harris. 114 Wn.2d 419, 440, 789 P.2d 60 (1990) (noting
the process required to allow the defendant to "overcome the strong presumption
of sanity").



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