          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                        DIVISION ONE

THE STATE OF WASHINGTON,                          No. 71093-1-1


                          Respondent,
                                                                                       1


                 v.                               UNPUBLISHED OPINION
                                                                                                rH

RICHARD CARL ADORNETTO,                                                                <3       -,~i


                                                                                           ro

                         Appellant.               FILED: March 2, 2015

       Schindler, J. — Richard Carl Adornetto appeals the denial of his request for a

parenting sentencing alternative (PSA) under RCW 9.94A.655. Adornetto argues the

court refused to apply the alternative to an entire class of otherwise eligible offenders.

Viewing the court's ruling in context, we disagree, and affirm the court's determination

that a PSA was not appropriate.

       On August 8, 2012, Joseph Rinaldi returned to his home to find that a safe in his

basement had been forced open and 22 of his firearms stolen. During the investigation,

a police officer collected a sample of blood from the door leading to the room with the

safe. The DNA1 analysis matched the DNA of Richard Carl Adornetto. The State

charged Adornetto with residential burglary and three counts of theft of a firearm.




        Deoxyribonucleic acid.
No. 71093-1-1/2


       On July 24, 2013, Adornetto agreed to plead guilty as charged and the State

agreed to not file additional charges. Adornetto agreed to the criminal history listed in

the State's appendix to the plea agreement. The appendix identified an adult felony

residential burglary in 2009 and five adult misdemeanors in California between 2006

and 2008, including embezzlement, theft, and burglary. The plea agreement stated

Adornetto planned to request a PSA that allows an eligible offender to serve 12 months

of community custody rather than a prison term. The prosecutor stated the State would

oppose his request and recommend a standard range sentence of 36 months in prison.

Defense counsel requested the court schedule a sentencing date in September to allow

time for a social worker to arrange a PSA evaluation. The court scheduled the

sentencing hearing for September 27, 2013.

       Before the hearing on September 27, Adornetto filed a motion to continue and a

preliminary defense presentence report. In the motion, Adornetto explained that on

September 24, the Department of Corrections (DOC) admitted to an oversight in

scheduling the PSA assessment. According to Adornetto, DOC asked the defense to

obtain a continuance of the sentencing hearing to allow time to complete the

assessment. Adornetto also stated, "[T]o the extent the absence of a DOC assessment

is due to counsel's negligence, a continuance is necessary to avoid issues of ineffective

assistance of counsel."

       In the preliminary defense presentence report, Adornetto described his personal

history, including the impact of his father's incarceration on his childhood. Adornetto

said that he and his wife lived together with their four-year-old daughter and had stable
No. 71093-1-1/3


employment. Adornetto asked for a PSA to avoid inflicting "his own childhood

experiences" of "absent parents" on his daughter.

      In support of his request for a PSA, Adornetto attached a "psychosocial

assessment" prepared by social worker Rachel Dryden. Dryden reported meeting with

Adornetto several times, including one meeting where his wife was present. Dryden

described Adometto's social history and current family life and reported Adornetto

denied any substance abuse or mental health problems. Dryden attached a copy of a

slide presentation about the PSA program from a February 2012 legislative work group.

The slides describe two programs: (1) the PSA sentencing alternative program under

RCW 9.94A.655, and (2) DOC's community parenting alternative program under RCW

9.94A.6551 that provides for partial confinement for eligible offenders not sentenced

under the PSA. The slides include a list of eligibility requirements, a description of how

participants are monitored, and charts and graphs showing statistics and the number of

children impacted by both programs since the two statutes became effective in March

2010. One slide states that 44 children "were diverted from entering the foster care

system" based on participation in the two programs, but also indicates that foster care

was "never considered" for 108 other children.

      At the beginning of the sentencing hearing on September 27, the court stated

that it had reviewed Adometto's motion to continue, the certification of probable cause,

the State's presentence report, letters from the victim, and the defense preliminary

presentence report and attachments, including "the defense PowerPoint" slide

presentation. The court also stated it read the PSA statute, RCW 9.94A.655. With

regard to the delay in the DOC assessment, the courtfound "no neglect or
No. 71093-1-1/4


malfeasance ... on the part of defense here." The court denied Adometto's motion for

a continuance based on its determination that a PSA was not an appropriate sentence

in this case. The court ruled, in pertinent part:

       I'm going to deny the request for continuance. I do so because, having
       educated myself to the extent I think realistically possible on this
       sentencing alternative and understanding and I think well informed by
       materials that came in today from the defense PowerPoint I'm referring to,
       the Court does not see this as an appropriate resolution here given all of
       the different purposes of sentencing, and accountability being one of them
       and even-handed treatment being another. It appears to the Court that
       there may very well be appropriate cases for this kind of parenting
       sentencing alternative, and really the Court sees those - and I saw those
       in some of the PowerPoint demographic breakdown foster situation where
       the child would be in foster care but for the parents being spared a prison
       sentence or circumstances that would be really endangering to the child.
       And I don't mean to minimize any child having to be separated from any
       parent for a period of incarceration, but that's an unpleasant fact of life in
       this arena.
              But this isn't a situation where the Court would exercise its
       discretion to grant such a sentence.

       The court imposed a sentence of 31 months of confinement in prison, the low

end of the standard range and 5 months less than the State's recommendation,

because "the information that's been provided by the defense in this case is mitigating."

       On appeal, Adornetto challenges the court's decision to deny his request for a

PSA. Adornetto asserts that as in State v. Grayson. 154 Wn.2d 333, 111 P.3d 1183

(2005), the court abused its discretion by categorically refusing to consider a PSA

sentence based on an erroneous belief that the alternative is unavailable for any

offender whose child would not be at risk of foster care or other danger if the offender is

sentenced to prison.

      Adornetto takes the comments the court made about foster care, or

"endangering" circumstances, out of context. In context, we view the court's comments
No. 71093-1-1/5


about foster care and potential dangers to children of an imprisoned parent as an

acknowledgement that the court might find a PSA to be more appropriate in other

circumstances. The record shows the court properly exercised its discretion and did not

impermissibly deny Adometto's request.

      Generally, the decision of whether to grant a sentencing alternative is not

reviewable on appeal. Grayson, 154 Wn.2d at 338. "However, an offender may always

challenge the procedure by which a sentence was imposed." Grayson, 154 Wn.2d at

338. Review of such decisions is limited to circumstances where the court has

categorically refused to exercise its discretion or has relied on an impermissible basis

for refusing to impose an alternative. Grayson, 154 Wn.2d at 342; State v. Garcia-

Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997).

       In Grayson, the sentencing court denied a request for a drug offender sentencing

alternative (DOSA) "because of the fact that the State no longer has money available to

treat people who go through a DOSA program." Grayson, 154Wn.2d at 337.2 On
appeal, Grayson challenged the court's failure to seriously consider the alternative and

reliance on facts outside the record. Grayson, 154 Wn.2d at 338. The Supreme Court

noted that the judge did not articulate any other reason for denying the DOSA despite

the prosecutor's request for additional reasons. Gravson, 154 Wn.2d at 342.

Recognizing that "there were ample other grounds to find that Grayson was not a good

candidate for DOSA," the Supreme Court determined that the trial court erred by

categorically refusing to consider a statutorily authorized sentencing alternative for an

eligible offender. Gravson, 154 Wn.2d at 342.



        Emphasis omitted.
No. 71093-1-1/6


       RCW 9.94A.655 grants the court the discretion to waive a standard range

sentence and impose a PSA term of 12 months of community custody for an eligible

offender.3 An offender is eligible for a PSA if (1) the high end of the standard range

sentence for the current offense is more than 1 year, (2) the offender has no felony sex-

or violent-offense convictions, (3) the offender is not subject to deportation, and (4) the

offender has physical custody of a minor child. RCW 9.94A.655(1). The sentencing

court must also "consider the offender's criminal history when determining ifthe

alternative is appropriate." RCW 9.94A.655(4).

       But "eligibility does not automatically lead to" an alternative sentence because

the sentencing court must still determine "that the sentencing alternative is appropriate

and should be imposed." State v. Hender, 180 Wn. App. 895, 900, 324 P.3d 780

(2014); RCW 9.94A.655(4). "The legislature entrusted sentencing courts with

considerable discretion ... to determine . . . whether [an] alternative is appropriate."

Hender, 180 Wn. App. at 900-01.

       Here, the judge read the statute and reviewed the defense PowerPoint, both of

which include clear statements of PSA eligibility requirements. There is no dispute

Adornetto met the PSA eligibility requirements. There is also no dispute the State

opposed allowing him to participate in the PSA program despite his eligibility. The

record shows that unlike Gravson, the court's denial of the request for a PSA was

grounded in statutory considerations. The court expressly reviewed the information

submitted before sentencing, including Adometto's criminal history, as required by RCW

       3 RCW 9.94A.655(4) states, in pertinent part:
       Ifthe sentencing court determines that the offender is eligible for a sentencing alternative
       under this section and that the sentencing alternative is appropriate and should be
       imposed, the court shall waive imposition of a sentence within the standard sentence
       range and impose a sentence consisting of twelve months of community custody.
No. 71093-1-1/7


9.94A.655(4). The court specifically stated that a PSA was not "an appropriate

resolution here" based on "accountability" and "even-handed treatment." These are

proper concerns for a court considering a sentencing alternative. See, ejj. Hender, 180

Wn. App. at 900-02 (despite offender's eligibility for DOSA, court properly exercised

discretion by denying DOSA based on offender's lack of accountability and refusal to

take responsibility for his actions).

       We affirm.




                                                        i/f^QiLx-
WE CONCUR:
