No. 29847-3-II.The Court of Appeals of Washington, Division Two.
Filed: March 9, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 02-1-02788-3. Judgment or order under review. Date filed: 12/06/2002.
Counsel for Appellant(s), Pattie Mhoon, Attorney at Law, 949 Market St. Ste 488, Tacoma, WA 98402-3600.
Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Ofc, Rm 946, 930 Tacoma Ave S, Tacoma, WA 98402-2102.
ARMSTRONG, J.
Tony Junior Jackson appeals the standard range sentence imposed after he pleaded guilty to unlawful delivery of a controlled substance and unlawful possession of a controlled substance with intent to deliver. Jackson argues that the trial court improperly denied his request for a drug offender sentencing alternative (DOSA).[1] We affirm.
Facts
On August 13, 2002, Jackson pleaded guilty to unlawful delivery of a controlled substance and unlawful possession of a controlled substance with intent to deliver. When defense counsel announced his intent to seek a DOSA sentence, he added that Jackson knew that such a sentence was “very maybe.” Report of Proceedings (RP) 8/13/02 at 8. The trial court responded that “[i]t’s more than maybe. They don’t have the money to do what they say they’re going to do.” RP 8/13/02 at 8. The court then questioned Jackson to ensure that he realized that the court would not be bound by any party’s sentencing recommendation.
At the sentencing hearing, the State recommended a high-end standard range sentence of 102 months based on the 18-year-old Jackson’s refusal to take responsibility for his actions, his criminal history, and the amount of cocaine found in his possession. Jackson requested a DOSA sentence and filed a memorandum that included information about the Department of Corrections’ efforts to address concerns about the DOSA program. When the trial court asked defense counsel to explain why a DOSA sentence was appropriate, the following exchange occurred:
THE COURT: They don’t have any resources. They keep telling us they’re going to do these things, and you gave me that information. Hopefully, he can get, at Shelton, they’ll keep him at Shelton because of his age, and he’ll make an effort to get treatment.
[DEFENSE COUNSEL]: DOSA offenders get first crack at treatment, Judge. And the article I gave you, what it showed is that every month from June, July, and August the amount of — DOSA offender [sic] who gets sent back to prison increases and is increasing because they didn’t have the adequate protections before, and they do now. . . .
THE COURT: They don’t even have enough money to get — I ordered a presentence report. They won’t even get me a presentence report.
[DEFENSE COUNSEL]: That may be, Judge, but in this county, in Pierce County, they have CCO’s now who do nothing but supervise DOSA offenders. They have addressed these issues. . . .
I want you to go out on a limb. I want you to give a DOSA sentence to this kid because he’s so young. . . . And the question is are we going to have a little bit of faith and try and trust that the Department of Corrections can get their stuff together, and he, most importantly, he can put himself together? Or are we going to send a young man away for a very long time and his 20’s are shot and that’s just it, good-bye. . . . Please give him a DOSA.
. . .
THE COURT: I think I don’t have confidence in what they’re doing with the DOSA. And [defense counsel] has made a persuasive argument on your behalf because of your age and so on, but I do have to think about the other part of this situation, that is the public and responsibilities for the choices that you’ve made. And I have confidence that at Shelton, if you make the effort, you can get the help that you need and to change your lifestyle around and you know, practice sobriety. And so that’s what I’m going to do, but I’m not going to sentence you to the high end.
RP 8/13/02 at 10-13. Instead, the court imposed a low-end standard range sentence of 77 months. Jackson now appeals, arguing that the court erred in refusing to grant him a DOSA sentence.
Analysis
The Sentencing Reform Act of 1981 (SRA) gives sentencing courts discretion to impose a DOSA sentence if the offender meets certain eligibility requirements and if the court determines that the offender and the community will benefit from using the sentencing alternative. RCW 9.94A.660(2); see State v. Conners, 90 Wn. App. 48, 53, 950 P.2d 519
(1998). DOSA’s purpose is to provide drug offenders with a treatment-oriented alternative to a standard range sentence of confinement. State v. Kane, 101 Wn. App. 607, 609, 5 P.3d 741 (2000) (citing Laws of 1995, ch. 108)).
A court’s decision to impose a standard range sentence in lieu of DOSA is not reviewable. Conners, 90 Wn. App. at 53 (citing State v. J.W., 84 Wn. App. 808, 811-12, 929 P.2d 1197 (1997)). But appellate review is still available for the correction of legal errors or abuses of discretion in the determination of what sentence applies. State v. Williams, 149 Wn.2d 143, 147, 65 P.3d 1214 (2003).
Jackson argues that the DOSA program demonstrates the Legislature’s intent to provide treatment for drug offenders and that the trial court acted contrary to that intent by refusing to give him a DOSA sentence. The State responds that the Legislature did not intend for every drug offender to receive a DOSA sentence but gave trial courts discretion to make such a sentencing decision. Here, the trial court listened to defense counsel’s arguments and, instead of imposing a DOSA, imposed a low-end standard range sentence. The court did so because of its dissatisfaction with the DOSA program and because of its belief that neither Jackson nor the community would benefit from the imposition of a DOSA sentence. Under these circumstances, we find no abuse of discretion.
Affirmed.
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 pursuant to RCW 2.06.040, it is so ordered.
SEINFELD, J. and QUINN-BRINTNall, A.C.J., concur.
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