STATE v. BARQUET, 50068-6-I (Wash.App. 12-29-2003)

STATE OF WASHINGTON, Respondent, v. MICHAEL ANTHONY BARQUET, Appellant.

No. 50068-6-IThe Court of Appeals of Washington, Division One.
Filed: December 29, 2003 UNPUBLISHED OPINION

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from Superior Court of King County. Docket No: 01-1-04544-6. Judgment or order under review. Date filed: 01/29/2002.

Counsel for Appellant(s), Michael Barquet (Appearing Pro Se), 7726 30th Ave S.W. Seattle, WA 98126.

A. Mark Vanderveen, Attorney at Law, 17544 Midvale Ave N Ste 200, Shoreline, WA 98133-4921.

Counsel for Respondent(s), John Bramwell Castleton Jr, King Co Courthouse, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.

PER CURIAM.

Michael A. Barquet, a disabled person, challenges his standard range Drug Offender Sentencing Alternative sentence as violative of the Americans With Disabilities Act, and also argues that the sentence constitutes cruel and unusual punishment under the Washington State Constitution. But Barquet specifically waived his right to appeal the standard range sentence, and does not challenge the jurisdiction of the court or the circumstances in which the plea was made. He received the benefit of his bargain. Accordingly we affirm.

FACTS
In May 2001, Barquet, along with two others, sold crack cocaine to an undercover Seattle police officer. Barquet and his codefendants were charged with one count of delivery of cocaine. Barquet negotiated a plea agreement and pleaded guilty as charged.

Barquet is disabled. He has been deaf since early childhood and does not speak, read, write, or even generally communicate by way of American Sign Language (ASL). To fully understand the proceedings, Barquet received the assistance of two simultaneous interpreters, one in ASL, one as a deaf relay interpreter. At the first of his sentencing hearings, Barquet presented a sentencing memorandum in which he acknowledged an offender score of `8′ and a standard range sentence of 87 to 116 months. He also noted he was eligible for a Drug Offender Sentencing Alternative (DOSA).[1] Although he had four prior felony convictions, Barquet was never sentenced to prison. He either served short periods of time in the King County jail or placed in the King County Work Release Program. Barquet sought a sentence below the standard range, seeking placement into an in-patient drug treatment program at the Pacific Crest Consortium, which specializes in drug treatment for the disabled. Barquet hoped to spend eight months to a year there, and requested that he serve any additional jail time in the King County Work Release Program.

The sentencing court considered, but denied, Barquet’s request for a sentence below the standard range. However, the court granted the motion for a DOSA sentence, but continued the sentencing hearing to seek additional information about how the Department of Corrections (DOC) would handle Barquet’s circumstances. At this later hearing, a person from the DOC was present to answer the trial court’s questions regarding the DOC’s ability to comply with the DOSA sentence given Barquet’s disabilities. At the hearing, the sentencing court sought suggestions from the parties about how the judgment and sentence would be framed in terms of drug treatment and what would happen if the defendant believed that the treatment and resources were not being received and whether or not those claims would need to be presented in a different proceeding. The court stated:

In other words, if I order the treatment, if the treatment’s not there, then would Mr. Barquet have to file an action for injunctive relief or otherwise that would pursue the claim that the Department has an obligation, both by statute and under the judgment and sentence, to actually provide the necessary resources. But that I was not inclined to get into those issues in this proceeding at this point.

After further questioning and discussion, the court sentenced Barquet to a standard range DOSA sentence of 50.75 months of total confinement and 50.75 months in community custody. The court incorporated the following language in the judgment and sentence:

The department of corrections shall provide the defendant with effective drug treatment, under this DOSA sentence, both during the total confinement phase and community custody phase, including but not limited to any necessary interpretation and educational services.

From this sentence, Barquet appeals. He argues that the sentence violates the American With Disabilities Act (ADA), 42 U.S.C.A. sec. 12101
et seq., and additionally claims that the sentence constitutes cruel and unusual punishment as prohibited under article I, section 14 of the Washington State Constitution.

DISCUSSION
Barquet alleges the standard range sentence ordered by the court violates the ADA. We disagree. First, as a general rule, a defendant may not appeal a standard range sentence.[2] Here, Barquet improperly attempts to challenge a standard range sentence he negotiated and to which he agreed.[3] Second, Barquet fails to provide this court with a transcript of the initial sentencing hearing in which his request for an exceptional sentence was denied. An appellant has the burden of perfecting the record so that this court has all the relevant evidence necessary to review the claimed error.[4]

Third, even if this court was to review his challenge, Barquet fails to demonstrate that the ADA applies in the context of his sentencing.[5]
Although true that there may be some concern whether the DOC can meet Barquet’s needs, a direct challenge of the sentence before incarceration is premature.[6] As noted by the sentencing court, if, in time, Barquet believes the DOC violates the order of the judgment and sentence surrounding the ADA issues, he must file a civil claim, file for an injunction, or file a personal restraint petition.[7]

Next, Barquet claims the sentence constitutes cruel and unusual punishment as prohibited under the Washington State Constitution. This court will not reach the merits of Barquet’s argument because he waived his right to raise a nonjurisdictional challenge to his sentence by negotiating for and agreeing to plead guilty to a standard range sentence. He cannot now choose to argue that the sentence is unconstitutional as applied to him.[8] As with the facts in State v. Moten, Barquet specifically negotiated his standard range sentence as part of a plea agreement and waived his ability to challenge his sentence within the standard range. In his statement of defendant on plea of guilty, Barquet acknowledged the provision, `If the sentence is within the standard range, no one can appeal the sentence.’ Barquet received the benefit of his bargain and may not challenge his standard range sentence on appeal.[9]

The judgment and sentence of the trial court is affirmed.

GROSSE, APPELWICK and BECKER, JJ., concur.

[1] RCW 9.94A.660.

[2] See RCW 9.94A.585.

[3] A DOSA sentence is always within the standard range because it is always based on the midpoint of the standard range. See State v. Williams, 112 Wn. App. 171, 177, 48 P.3d 354 (2002), rev’d on other grounds, 149 Wn.2d 143, 65 P.3d 1214 (2003). Further, it is unclear if Barquet is arguing that the sentencing court erred in denying his request for an exceptional sentence, or whether he is challenging the DOSA. In his brief Barquet seeks a remand for a new sentencing hearing with directions that the trial court is permitted to consider an exceptional sentence. But the trial court already considered and rejected his request for an exceptional sentence. And in doing so, the trial court did not fail to exercise discretion or rely on an impermissible basis for refusing to impose an exceptional sentence. Thus review is unnecessary. See State v. Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104
(1997).

[4] RAP 9.2(b).

[5] The sentencing court took great precautions to ensure that the sentence included that Barquet’s disabilities would be met by the DOC, ordering that the DOC provide Barquet with meaningful and effective drug treatment under the DOSA sentence, both during the total confinement phase and the community custody phase, including, but not limited to, necessary interpretation and educational services.

[6] Contrary to his claim, Barquet is incorrect in stating that the DOC has gone on record at the sentencing hearing to say that it could not provide Barquet with the necessary treatment under his DOSA sentence. Although an individual from DOC indicated that he did not know how it would handle the order to provide the necessary interpretation and educational programs to enable Barquet’s effective participation in the DOSA program, he did not flatly deny that it could not be accomplished. In fact, he noted that he would need to get help from the Office of the Attorney General. Any claim of a violation of the ADA is premature, especially considering that Barquet is out on bail pending the outcome of this appeal.

[7] Barquet is correct that the ADA applies to state departments of corrections. Pennsylvania Dep’t of Corrections v. Yeskey, 524 U.S. 206, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998). But if Barquet believes the DOC has violated his rights under the ADA, he must file a civil claim or file for an injunction against the DOC.

[8] State v. Moten, 95 Wn. App. 927, 929, 976 P.2d 1286 (1999).

[9] Even if we chose to consider this issue,

[t]o be `cruel and unusual,’ punishment must be grossly disproportionate to the severity of the crime i.e., “clearly arbitrary and shocking to the sense of justice.”

In re Pers. Restr. of Haynes, 100 Wn. App. 366, 375, 996 P.2d 637
(2000) (citations omitted).

A review of the record reveals that Barquet does not meet the four-pronged test to determine whether the punishment is prohibitively cruel as set forth in State v. Fain, 94 Wn.2d 387, 397, 617 P.2d 720
(1980). The four factors include: (1) the nature of the offense; (2) the legislative purpose behind the statute; (3) the punishment the defendant would have received in other jurisdictions; and (4) the punishment given for other offenses in the same jurisdiction. Barquet does not sufficiently argue the factors and does not meet the test in any event.