                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                          July 21, 2020
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
 STATE OF WASHINGTON,                                               No. 52713-8-II

                               Respondent,

        v.

 SEBASTIAN JOSEPH HALLER,                                    UNPUBLISHED OPINION

                               Appellant.

       WORSWICK, J. — Sebastian Haller appeals his standard range sentence arguing that the

sentencing court erred by not granting his request for a drug offender sentencing alternative

(DOSA). Specifically, Haller argues that the DOSA statute is unconstitutionally vague. Haller

raises several additional issues in a Statement of Additional Grounds (SAG) for Review. We

disagree with Haller’s arguments and affirm.

                                               FACTS

       A jury found Haller guilty of two counts of delivery of a controlled substance—heroin,

one count of possession of a controlled substance with intent to deliver—heroin, three counts of

possession of a controlled substance—(methamphetamine, oxycodone, methadone), and three

counts of tampering with a witness. Haller appealed his convictions and sentence, and Division

One of this court affirmed Haller’s convictions but remanded for resentencing.

       Despite this matter being remanded to the sentencing court on August 23, 2016, Haller

was not resentenced until November 14, 2018. At the resentencing hearing, Haller informed the

court that he was upset that it took two years to hold his resentencing hearing. Haller requested a
No. 52713-8-II


prison-based DOSA. The sentencing court declined Haller’s request for a DOSA, explaining,

“[G]iven the deliveries, given the criminal history here,1 there is punishment that is required for

that and that is what I’m going to order here.” Report of Proceedings (RP) (Nov. 14, 2018) at

10. The sentencing court resentenced Haller to 144 months of total confinement. The

sentencing court later amended the judgment and sentence to include 1,450 days of credit for

time served as of November 27, 2018.

         Haller appeals.

                                            ANALYSIS

                                       I. LEGAL PRINCIPLES

         A sentencing court’s decision to impose a standard range sentence, and not impose a

DOSA, is generally not reviewable. State v. Hender, 180 Wn. App. 895, 900-01, 324 P.3d 780

(2014). But a standard range sentence may be challenged on constitutional grounds. State v.

Watson, 120 Wn. App. 521, 531, 86 P.3d 158 (2004), aff’d 155 Wn.2d 574 (2005). “Any action

taken by the sentencing court that fails to meet constitutional due process requirements is

impermissible.” Watson, 120 Wn. App. at 533. It is the burden of the party challenging the

constitutionality of a statute to prove it is unconstitutional beyond a reasonable doubt. In re

Pers. Restraint of Troupe, 4 Wn. App. 2d 715, 721, 423 P.3d 878 (2018). We presume a statute

is constitutional. Troupe, 4 Wn. App. 2d at 721.

         Sentencing courts have considerable discretion under the Sentencing Reform Act of 1981

(SRA), including the discretion to determine whether an offender is eligible for an alternative

sentence and whether such an alternative is appropriate. Hender, 180 Wn. App. at 900-01. The


1
    Haller’s offender score was 19.


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No. 52713-8-II


DOSA statute authorizes sentencing courts to impose a reduced sentence with treatment and

increased supervision on eligible nonviolent drug offenders who may benefit from the help to

recover from their addictions. RCW 9.94A.660.

                                         II. VAGUENESS

       Haller argues that the DOSA statute, RCW 9.94A.660, is unconstitutionally vague. We

disagree.

       The due process vagueness doctrine requires that penal statutes be specific enough to

give citizens fair notice of what conduct it proscribes or requires. State v. Bahl, 164 Wn.2d 739,

752-, 193 P.3d 678 (2008). In addition, criminal statutes must “provide ascertainable standards

of guilt to protect against arbitrary arrest and prosecution.” State v. Baldwin, 150 Wn.2d 448,

458, 78 P.3d 1005 (2003). A statute that fails to meet these two requirements is

unconstitutionally vague. Bahl, 164 Wn.2d at 753.

       “The prohibition against vagueness applies both to statutes defining elements of crimes

and to ‘statutes fixing sentences.’” State v. Brush, 5 Wn. App. 2d 40, 57, 425 P.3d 545 (2018)

(quoting Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551, 2557, 192 L. Ed. 2d 569

(2015)). Statutes fixing sentences must “specify the range of available sentences” with sufficient

clarity. Beckles v. United States, ___ U.S. ___, 137 S. Ct. 886, 892, 197 L. Ed. 2d 145 (2017).

       In Baldwin, our Supreme Court considered a vagueness challenge to two provisions of

the SRA. 150 Wn.2d at 457. The Court noted that “[s]entencing guidelines do not inform the

public of the penalties attached to criminal conduct nor do they vary the statutory maximum and

minimum penalties assigned to illegal conduct by the legislature.” Baldwin, 150 Wn.2d at 459.

The Court held that therefore, “the due process considerations that underlie the void-for-



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vagueness doctrine have no application in the context of sentencing guidelines.” Baldwin, 150

Wn.2d at 459.

       Like the sentencing guidelines at issue in Baldwin, RCW 9.94A.660 does not fix the

penalty for the crimes charged. Rather, it sets the criteria for when a person is eligible for a

DOSA and permits the sentencing court to use its discretion in determining whether such an

alternative is appropriate. Under Baldwin, the vagueness doctrine does not apply to RCW

9.94A.660, and Haller’s argument fails.

                                     III. NO LIBERTY INTEREST

       Haller also argues that the DOSA statute creates a constitutionally protected liberty

interest and as a result sentencing courts must be required to state the basis for denying a DOSA

request. We disagree.

       Laws that govern particular decisions given particular facts can create a protected liberty

interest, but laws granting a significant degree of discretion cannot. See State v. Duncalf, 164

Wn. App. 900, 911n.2, 267 P.3d 414 (2011), aff’d 177 Wn.2d 289 (2013). Sentencing courts

have considerable discretion under the SRA, including the discretion to determine whether an

offender is eligible for an alternative sentence and whether such an alternative is appropriate.

Hender, 180 Wn. App. at 900-01. The only restriction on that discretion is the requirement to

articulate a substantial and compelling reason for imposing an exceptional sentence. Baldwin,

150 Wn.2d at 460.

       Sentencing guidelines, such as RCW 9.94A.660, “are intended only to structure

discretionary decisions affecting sentences; they do not specify that a particular sentence must be

imposed.” Baldwin, 150 Wn.2d at 461. Because RCW 9.94A.660 does not require a particular



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outcome, and instead leaves sentencing courts the discretion to determine whether a DOSA is

appropriate, we hold that it does not create a constitutionally protectable liberty interest.

       Moreover, the sentencing court properly exercised its discretion when it declined to

impose a DOSA. The sentencing court explained, “[G]iven the deliveries, given the criminal

history here, there is punishment that is required for that and that is what I’m going to order

here.” RP at (Nov. 14, 2018) at 10. An articulation of a valid reason for denying the requested

sentence is acceptable. See State v. Grayson, 154 Wn.2d 333, 342, 111 P.3d 1183 (2005).

Haller’s contention that due process required more is unavailing.

                            IV. STATEMENT OF ADDITIONAL GROUNDS

       Haller makes several additional claims in his SAG, all of which are either outside the

scope of this appeal or involve facts outside of the record on appeal, and therefore, we do not

address these issues.

       A SAG must adequately inform this court of the nature and occurrence of alleged errors.

State v. Calvin, 176 Wn. App. 1, 26, 316 P.3d 496 (2013). We do not review matters outside the

record on direct appeal. State v. McFarland, 127 Wn.2d 322, 338, 899 P.2d 1251 (1995). Issues

involving facts outside of the record are properly raised in a personal restraint petition (PRP),

rather than a SAG. Calvin, 176 Wn. App. at 26.

       “The general rule is that a defendant is prohibited from raising issues on a second appeal

that were or could have been raised on the first appeal.” State v. Mandanas, 163 Wn. App. 712,

716, 262 P.3d 522 (2011). Even issues of constitutional import often cannot be raised in a

second appeal. Mandanas, 163 Wn. App. at 717. “‘Even though an appeal raises issues of

constitutional import, at some point the appellate process must stop. Where, as in this case, the



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No. 52713-8-II


issues could have been raised on the first appeal, we hold they may not be raised in a second

appeal.’” Mandanas, 163 Wn. App. at 717 (quoting State v. Sauve, 100 Wn.2d 84, 87, 666 P.2d

894 (1983)).

       Haller contends that the State committed prosecutorial misconduct by purposefully

delaying resentencing in a ploy to delay Haller’s ability to file collateral attack. Haller’s

displeasure with the two year delay between our mandate in his first appeal and his resentencing

hearing was noted on the record at the resentencing hearing. But nothing in the record supports

Haller’s contention that the delay was the result of purposeful stalling by the State. Haller

references telephone conversations he and his family had with the prosecutor’s office, but there

is no record of any such conversations. Issues involving facts outside of the record on appeal are

more properly raised in a PRP. Calvin, 176 Wn. App. at 26.

       Haller also contends that the sentencing court miscalculated his credit for time served. At

a hearing on this issue, Haller agreed to the sentencing court’s calculation of 1,450 days credit

for time served starting on December 8, 2014. Haller now alleges that his DOC records show his

sentence start date as July 3, 2014. Generally, an appellant cannot raise an issue for the first time

on appeal. RAP 2.5(a). Not only has Haller failed to preserve this issue for appeal by agreeing

to the calculation at the resentencing hearing, but no DOC records are contained in the record on

appeal. Accordingly, we do not address this issue.

       Haller also claims that the sentencing court erred by not crediting him for good time

while incarcerated. But the SRA grants no authority to sentencing courts to award good time

credit. State v. Hale, 94 Wn. App. 46, 56, 971 P.2d 88 (1999). Under RCW 9.94A.729 and

RCW 9.92.151, only the correctional facility has the ability to grant good time.



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        Finally, Haller contends that he received ineffective assistance of counsel during his trial

because his defense counsel failed to object to trial being set beyond the time for trial and was

generally unavailable leading up to trial. Haller also claims that the State committed

prosecutorial misconduct by purposefully filing charges near the time of defense counsel’s

vacation. Both of these issues could have been raised in Haller’s first appeal, and we do not

address them. Mandanas, 163 Wn. App. at 717.

        We affirm.

        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.



                                                       _____________________________
                                                                 Worswick, J.


__________________________________
 Melnick, J.



__________________________________
 Sutton, A.C.J.




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