                                                                                                 17:4
                                                                                  c•••         —1 CZ:
                                                                                  cr,
                                                                                  .4.—
                                                                                  ..,...
                                                                                               fli
                                                                                   CD                CD
                                                                                                     -11
                                                                                     —         -n. ._,ni
       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON                                       :,,,, r-
                                                                                                cn rs-
                                                                                                   ;c3
                                                                                                     1 ,
                                                                                     .7-7:
                                                                                           -     --,:: r-
STATE OF WASHINGTON,                     )
                                         )      No. 75639-7-1                         z-•
                     Respondent,         )
                                         )      DIVISION ONE
                v.                       )
                                         )
SHANNA MARIA WILLIAMS,                   )      UNPUBLISHED OPINION
                                         )
                     Appellant.          )      FILED: November 14, 2016
                                         )

      BECKER, J. — The trial court believed it was bound by an agreement

between the defendant and the drug court program to sentence the defendant to

the high end of the standard range when it terminated her from drug court,

despite the fact that there is no such agreement in the record. The trial court

failed to exercise its discretion. We reverse the sentence and remand for

resentencing.

      Appellant Shanna Williams pleaded guilty to residential burglary on

December 12, 2013. Her undisputed standard range sentence for this offense

was 63 to 84 months. Williams entered the Pierce County drug court program

and sentencing was continued while she was in this program.

      Williams failed to comply with certain conditions of the drug court program.

On January 12, 2015, the court terminated her from the drug court program and
No. 75639-7-1/2


sentenced her to 84 months, the maximum of the standard range. Williams

appeals the length of her sentence.

       Generally, a sentence within the standard sentence range for an offense is

not appealable. RCW 9.94A.585(1). We can, however, review a trial court's

decision to impose a standard range sentence where the court has refused to

exercise discretion at all. State v. McGill, 112 Wn. App. 95, 100,47 P.3d 173

(2002).

       Williams argues that the trial court failed to recognize that it had the

discretion to sentence her anywhere within the standard range. She contends

that the trial court erroneously believed that it lacked authority to impose anything

other than the high end of the standard range sentence. At sentencing, the State

said: "The State is asking for the 84 months, as the paperwork says, they shall

receive the high end of the standard range." Williams responded, "Your Honor,

Shanna knows that she agreed to the high end of her standard sentencing range;

that's part of the Drug Court contract." The court said, "Part of the understanding

and the agreement when you come into Drug Court is the high end of the

sentencing range. We've got to be consistent in regards to that. . . . I know I'm

sentencing your family as well because this is not an easy thing to do. I don't

take this lightly. I don't like doing this. But, I don't feel like, as I said, I had any

choice. So I'm gonna sentence you to 84 months. That's the agreement of the

Drug Court."

       Despite the apparent consensus of the parties and the court, however, the

record does not contain any evidence that Williams agreed to a high end


                                            2
No. 75639-7-1/3


standard range sentence as part of her drug court participation. Williams's guilty

plea states that if she "does not successfully complete drug court, State will ask

for standard range sentence." The "Post Disposition Drug Court Notice to

Defendant," signed the same day as the guilty plea, states, "You understand and

agree that if the Court terminates you from the Drug Court Program you will be

sentenced within the standard range."

      In short, the record makes clear that Williams's standard range sentence

is 63 to 84 months and that she could expect to be sentenced within that range if

she failed to complete the drug court program. But the record does not contain

any agreement that the court would, or had to, sentence her at the high end of

that range. The State fails to identify any such evidence in the record.

      The trial court believed there was a binding agreement by Williams that

she would accept a sentence at the high end of the standard sentence range if

she did not successfully complete the drug court program. The trial court did not

recognize that it had the discretion to sentence Williams anywhere within the

standard range and therefore did not exercise its discretion in determining the

appropriate standard range sentence for Williams. For this reason, we remand

for resentencing.

      Williams requests that this court exercise its discretion to decline to

impose appellate costs in this case. Because we remand for resentencing, no

appellate costs will be imposed against Williams. The State should be aware,

however, that when an appellant's opening brief requests that appellate costs not

be imposed, the request is not premature and the State should respond to the


                                         3
No. 75639-7-1/4


merits of this request in its brief rather than waiting until the cost bill stage of the

appeal. See e.d., State v. Sinclair, 192 Wn. App. 380, 367 P.3d 612, review

denied, 185 Wn.2d 1034 (2016).

       The sentence is reversed. Remanded for resentencing.




WE CONCUR:




                                            4
