No. 51311-7-IThe Court of Appeals of Washington, Division One.
Filed: December 8, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of Whatcom County. Docket No: 01-1-00275-1. Judgment or order under review. Date filed: 10/24/2002.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Jason Brett Saunders, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Counsel for Respondent(s), Craig D. Chambers, Attorney at Law, Whatcom Co. Prosecutor, 311, Grand Ave Fl 5, Bellingham, WA, 98225-4048.
Melinda Beth Miller, Attorney at Law, PO Box 5842, Bellingham, WA, 98227.
Kimberly Anne Thulin, Whatcom Cty Pros Atty’s Office, 311, Grand Ave Ste 201, Bellingham, WA, 98225-4038.
BAKER, J.
Because the sentencing court properly exercised discretion in denying John Grayson’s request for a drug offender sentencing alternative (DOSA) and because Second Substitute House Bill (S.S.H.B.) 2338 does not apply retroactively, we affirm.
I
On October 8, 2002, Grayson was found guilty of unlawful delivery of a controlled substance (cocaine) in Whatcom County Superior Court. At sentencing, Grayson requested a DOSA. The sentencing judge rejected the motion for a DOSA, imposed a standard range sentence, and explained his reasoning.
And my main reason for denying it is because of the fact that the State no longer has money available to treat people who go through a DOSA program. However, the State has said if I sentence a person to DOSA they’re going to cut the sentence in half and return him to the community, but there’s no money available to treat him at all.
So I think in this case if I granted him a DOSA it would be merely to the effect of it cutting his sentence in half. I’m unwilling to do that for this purpose alone. There’s no money available. He’s not going to get any treatment; it’s denied.
Grayson’s prior adult drug convictions counted three points each toward his offender score. Grayson timely appealed.
II
We review a sentencing court’s calculation of an offender score de novo.[1] In reviewing the sentence itself, we affirm a sentencing court’s decision unless we find a clear abuse of discretion or misapplication of the law.[2] Generally, a standard range sentence may not be appealed.[3] Review may be granted where the sentencing judge has refused to exercise discretion or has relied on an impermissible basis for refusing an exceptional sentence.[4] Grayson argues that the sentencing court refused to exercise discretion. A court refuses to exercise discretion by categorically refusing to impose an exceptional sentence.[5] A court also refuses to exercise discretion when the court mistakenly believes it does not have the authority to grant an exceptional sentence.[6] But a court that has considered the facts and concluded there is no legal or factual basis for an exceptional sentence has exercised discretion, and the defendant cannot appeal that ruling.[7]
Under the Sentencing Reform Act of 1981,[8] the sentencing court has the discretion to impose a DOSA if certain eligibility requirements are met, and if the court determines that the community and the defendant will benefit from the DOSA.[9]
The sentencing judge decided against imposing a DOSA because he did not believe in the effectiveness of the DOSA program, given the lack of funding. The judge found that a DOSA would not benefit either the community or the defendant. This is not a case of categorical denial or mistaken understanding about a lack of authority. It is certainly true that the statement of the sentencing judge comes uncomfortably close to being a categorical denial. Furthermore, the judge’s declaration at sentencing that no funding exists for the DOSA program is not supported by any evidence on the record. But the judge had no duty to provide support in the record establishing the truth of his belief that the program lacks funds. His belief serves as a legitimate basis for his decision that the program will not be effective as related to the defendant before the court. The sentencing judge considered the DOSA and denied it. This is an appropriate exercise of sentencing discretion.
Grayson next argues that the sentencing court should have applied retroactively an amendment passed by the Legislature that would have reduced his standard range. He further argues that his equal protection rights would be violated if the amendment is not applied retroactively. In March 2002, the Legislature passed Second Substitute House Bill (S.S.H.B.) 2338.[10] Inter alia, S.S.H.B. 2338 amended RCW 9.94A.525(12) to eliminate provisions specifying that prior adult drug convictions should be counted as three points towards an offender score.[11]
In State v. McCarthy,[12] this court rejected the same argument as the one presented by Grayson.[13] Under RCW 10.01.040 (also known as the `saving statute’), any amendment to a penal statute even a patently remedial one must apply prospectively unless the amendment has language indicating a contrary intent.[14] Nothing in S.S.H.B. 2338 `suggests the Legislature intended the statute to apply retroactively.’[15]
Grayson argues that the McCarthy holding is contrary to the law as found in three Washington State Supreme Court cases and therefore should be revisited. He suggests that the McCarthy court defied long-established precedent regarding remedial legislation. Specifically, Grayson relies on State v. Wiley,[16] State v. Heath,[17] and State v. Grant,[18] to argue that remedial statutes must apply retroactively. But Wiley and Heath do not address RCW 10.01.040. In Grant, the court applied a saving statute analysis and found that the Legislature intended the new legislation to affect pending litigation.[19] The three cases upon which Grayson relies are either inapposite as they do not address RCW 10.01.040, or demonstrate that RCW 10.01.040 is controlling even in the case of remedial amendments. Grayson has not demonstrated that the holding in McCarthy is incorrect. The amendment applies prospectively and the sentencing court did not err. Furthermore, applying the amendment prospectively does not violate equal protection rights.[20] Equal protection is generally not violated by applying new law prospectively.[21] Generally courts have applied the rational basis standard to challenges to new criminal sentencing laws and have had little trouble finding a rational basis for applying such laws only prospectively.[22]
The court in McCarthy noted that `the interests of finality and the principles underlying our saving statute, RCW 10.01.040, provide a rational basis for the prospective application of’ S.S.H.B. 2338.[23]
Because S.S.H.B. 2338 does not confer a special benefit to a minority, a heightened scrutiny does not apply.[24] S.H.H.B. 2338 is simply a change that applies equally to those who commit crimes after its effective date.[25] The sentencing court did not deprive Grayson of his equal protection rights.
AFFIRMED.
BAKER, KENNEDY and COX, JJ., concur.
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