FILED COURT OF APPEALS DIV I - STATE OF WASHINGTON 201811AY -7 Of 8:35

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 75993-1-1 Respondent, DIVISION ONE V.

STEVEN VAN NOY, PUBLISHED OPINION

Appellant. FILED: May 7, 2018

SPEARMAN, J. — The Drug Offender Sentencing Alternative (DOSA), RCW 9.94A.660, authorizes a sentencing court to impose an alternative sentence

when certain statutory conditions are met. As relevant here, a person is eligible

for a DOSA sentence if "[Ole offender has not received a drug offender

sentencing alternative more than once in the prior ten years before the current

offense." ROW 9.94A.660(1)(g). We are asked to decide whether "before the

current offense" means "before commission of the current offense" or "before

sentencing on the current offense." The plain language of the statute indicates

that the former reading is correct.

Steven Van Noy was taken into custody after committing a series of

crimes in Pierce, King, and Snohomish Counties. He was sentenced separately

in each county. In Pierce and King Counties, Van Noy received DOSA No. 75993-1-1/2

sentences. When he was sentenced in Snohomish County, the court ruled that it

did not have discretion to consider a DOSA because of Van Noy's Pierce and

King County sentences. But because the Pierce and King County sentences

were imposed after Van Noy committed the Snohomish County offenses, they

did not render Van Noy ineligible for a DOSA sentence. We reverse and remand

for resentencing.

FACTS

Van Noy became addicted to opioids and methamphetamine in 2014. In

2015, he committed several criminal offenses in Pierce, King, and Snohomish

Counties.1 In July 2015, Van Noy pleaded guilty to residential burglary, second

degree identity theft, and unlawful possession of a firearm in Snohomish County.

He sought a DOSA and the court ordered a risk assessment and chemical

dependency evaluation. Van Noy did not participate in the assessments and he

failed to appear for sentencing. A warrant was issued for his arrest. Van Noy was

taken into custody in Pierce County at the end of 2015.

In March 2016, Van Noy was sentenced in Pierce County on three cases

involving forgery, identity theft, burglary, and possession with intent to deliver. He

received a prison-based DOSA sentence for these convictions. In June 2016,

Van Noy pleaded guilty to one count of second degree burglary in King County.

He was sentenced to a prison-based DOSA to run concurrently with the Pierce

1 Van Noy's Snohomish County offenses were committed on February 28, 2015. His King County offenses were committed on June 22, 2015. The record does not specify the dates of Van Noy's Pierce County offenses.

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County sentence. The judgment and sentence includes the following handwritten

finding:

The court finds that A is eligible for DOSA, because this DOSA was imposed after Pierce Co. causes (above), but before treatment has commenced. The court finds that this is not a separate DOSA for purposes of statutory provision against no more than 2 DOSA's per 10-yr. period.2

Clerk's Papers(CP) at 50.

Van Noy appeared for sentencing on his Snohomish County offenses in

October 2016. He requested a prison-based DOSA to run concurrently with the

Pierce and King County sentences. He argued that all of his offenses occurred

within a short period of time and were caused by his recent addiction to heroin

and methamphetamine.

The sentencing court ruled that Van Noy was statutorily ineligible for a

DOSA sentence. The court noted that, if the parties had agreed to sentence Van

Noy's Pierce, King, and Snohomish County offenses in the same court, he could

have received a DOSA for all of them. But the court ruled that, because Van Noy

had received DOSA sentences in Pierce County and King County in the previous

ten years, it did not have discretion to consider a DOSA. The court imposed a

non-DOSA sentence running concurrently with Van Noy's Pierce and King

County sentences.

2 The King County sentencing judge appeared to conclude that because Van Noy had not yet commenced substance abuse treatment, the King and Pierce County DOSA sentences were a single DOSA sentence, thus making Van Noy DOSA eligible in Snohomish County. This is incorrect. As we explain below, the statute provides that DOSA eligibility is determined by the number of DOSA sentences a person has received before commission of the current offense. Whether the offender has commenced treatment on a DOSA sentence is irrelevant to the issue of DOSA eligibility.

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DISCUSSION

Van Noy appeals his sentence, contending the trial court erred in ruling

that it did not have discretion to consider a DOSA. He asserts that the ruling rests

on an erroneous interpretation of the DOSA statute.

Statutory interpretation is a question of law that we review de novo. State

v. Ervin,

,

(2010)(citing In re Det. of Williams,

,

(2002)). Our primary objective in interpreting a

statute is to discern the intent of the legislature.

(citing State v. Jacobs,

,

(2005)). We begin with the statute's plain

meaning, as evident from the text of the statute, related provisions, and the

statutory scheme as a whole.

(citing Dep't of Ecology v. Campbell & Gwinn,

LLC,

,

(2002)). We give words their ordinary meaning

unless the legislature has indicated a contrary intent.

(citing Ravenscroft v.

Wash. Water Power Co.,

,

(1998)).

The DOSA statute, RCW 9.94A.660, is part of the Sentencing Reform Act

(SRA). It authorizes a trial court to impose an alternative sentence including

meaningful substance abuse treatment and rehabilitation incentives when this is

in the best interest of the offender and the community. State v. Grayson,

,

(2005). An offender who receives a DOSA

sentence serves about one-half of a standard range sentence in prison and

receives substance abuse treatment while incarcerated.

at 337-38 (citing

RCW 9.94A.660). For the balance of the sentence, the offender receives

supervised treatment in the community.

at 338 (citing RCW 9.94A.660(2)). A

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DOSA sentence may be revoked if the offender fails to comply with its conditions.

An offender must meet seven conditions to be eligible for a DOSA

sentence. RCW 9.94A.660(1). The condition at issue in this case limits eligibility

to offenders who have "not received a drug offender sentencing alternative more

than once in the prior ten years before the current offense." RCW

9.94A.660(1)(g)(emphasis added). The parties dispute whether "before the

current offense" means before the offender committed the current offense or

before sentencing on the current offense.

Van Noy contends "current offense" generally refers to the commission of

an offense. He asserts that, where the date of conviction or the date of

sentencing is at issue, the legislature expressly states "before conviction of the

current offense" or "before sentencing on the current offense." The State's

position is that the phrase "current offense" refers to the date of sentencing, not

the date of the offense.

We first look to the language of the statute. Because the SRA does not

define "offense," we use the ordinary meaning of the word. An offense is "an

infraction of law." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1566(2002).

Synonyms are "crime" and "misdemeanor."

An offense thus occurs when a

person commits an act that violates the law.

This meaning is clear in three of the eligibility conditions set out in RCW

9.94A.660(1), which require the court to consider the type or circumstances of

the crime for which the offender is being sentenced. A person is eligible if:

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(a) The offender is convicted of a felony that is not a violent offense or sex offense and the violation does not involve a sentence enhancement under RCW 9.94A.533(3) or (4);

(b)The offender is convicted of a felony that is not a felony driving while under the influence of intoxicating liquor or any drug under RCW 46.61.502(6) or felony physical control of a vehicle while under the influence of intoxicating liquor or any drug under RCW 46.61.504(6);

(d) For a violation of the Uniform Controlled Substances Act under chapter 69.50 RCW or a criminal solicitation to commit such a violation under chapter 9A.28 RCW,the_offense involved only a small quantity of the particular controlled substance as determined by the judge upon consideration of such factors as the weight, purity, packaging, sale price, and street value of the controlled substance; . . .

RCW 9.94A.660(1)(a)(b)(d). In each of these provisions, the SRA directs the

sentencing court to consider the nature of the act that violated the law. To do so,

the court must consider the commission of the offense.

The statute continues by setting out the condition at issue in this case,

under which an offender is eligible for a DOSA if he or she "has not received a

drug offender sentencing alternative more than once in the prior ten years before

the current offense." RCW 9.94A.660(1)(g). In context, this condition also directs

the sentencing court to consider the commission of the current offense to

determine whether it occurred despite prior DOSA sentences.

This reading is consistent with the statutory scheme as a whole. While

DOSA serves to provide meaningful substance abuse treatment and

rehabilitation incentives, opportunities for rehabilitation are not unlimited.

Grayson,

. An offender's inability or unwillingness to

comply with conditions imposed as part of a DOSA sentence is evidence that the No. 75993-1-1/7

alternative sentence is not in the best interest of the offender or the community. A

DOSA sentence may thus be revoked for noncompliance.

. Similarly,

the commission of a drug-related offense despite more than one DOSA sentence

in the prior ten years is evidence that DOSA is not appropriate. The limitation on

eligibility in ROW 9.94A.660(1)(g) addresses this scenario and makes such an

offender ineligible. We conclude that, in determining eligibility under ROW

9.94A.660(1)(g), the relevant date is when the offender committed the offense,

not when he was sentenced for it.

The State contends, however, that the SRA uses the phrase "current

offense" to refer to the date of sentencing. The State points to the offender score

statute, ROW 9.94A.525(1), which distinguishes between current and prior

offenses for sentencing purposes:

A prior conviction is a conviction which exists before the date of sentencing for the offense for which the offender score is being computed. Convictions entered or sentenced on the same date as the conviction for which the offender score is being computed shall be deemed "other current offenses" within the meaning of ROW 9.94A.589.

ROW 9.94A.525(1). Under this statute, all convictions entered or sentenced on

the same day are "'other current offenses!" The statute also references ROW

9.94A.589, under which "other current offenses" are treated as prior convictions

for purposes of calculating the offender score and generally run concurrently with

each other rather than consecutively. ROW 9.94A.589(1)(a).

Washington courts have addressed these statutes in challenges to

consecutive sentences. See In re Finstad,

,

7 No. 75993-1-1/8

(2013)(discussing RCW 9.94A.525(1) in a challenge to consecutive sentences);

State v. Rasmussen,

,

(2001)

(considering a challenge to consecutive sentences under former RCW 9.94A.400

(recodified as RCW 9.94A.589 by Laws of 2001, ch. 10 § 6)). The State relies on

these cases to assert that the phrase "current offense" necessarily refers to the

date of sentencing. Thus, according to the State, "ten years before the current

offense" in RCW 9.94A.660(1)(g) means "ten years before sentencing on the

current offense."

We reject this argument. The authority the State relies on considers the

phrase "current offense" in a different context. Whether Van Noy's Pierce, King,

and Snohomish County offenses were "other current offenses" for the purpose of

calculating the offender score or determining concurrent or consecutive terms is

not at issue.

Contrary to the State's assertion, the phrase "current offense" in the SRA

does not necessarily refer to the date of sentencing. Expressly or through

context, the SRA frequently requires the sentencing court to look to the

commission of the current offense. See, e.q., RCW 9.94A.345(the governing law

is that "in effect when the current offense was committed"); RCW 9.94A.535(3)(a)

(an aggravating factor exists where the court finds that "the defendant's conduct

during the commission of the current offense manifested deliberate cruelty");

RCW 9.94A.030(32)(for purposes of determining aggravating factor in a crime of

domestic violence, "[m]inor child" is one "who is under age eighteen at the time of

the offender's current offense"); RCW 9.94A.535(1)(j)(mitigating factor exists

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where "[t]he current offense involved domestic violence" and the defendant acted

in response to a pattern of abuse by the victim); RCW 9.94A.535(3)(m)

(aggravating factor where the current offense involved a high degree of

planning). RCW 9.94A.670(2)(c)(an offender is eligible for a Special Sex

Offender Sentencing Alternative if he has no prior convictions "for a violent

offense that was committed within five years of the date the current offense was

committed").

In contrast, where the relevance of the current offense is the date of

sentencing or the date of conviction, the SRA expressly instructs the sentencing

court to consider those dates.3 See, e.g., RCW 9.94A.660(1)(c)(no prior

convictions "within ten years before conviction of the current offense")(emphasis

added); RCW 9.94A.525(1)(prior conviction is one that exists "before the date of

sentencing" on the current offense)(emphasis added).

The DOSA statute itself contains two different uses of the phrase "current

offense." The condition of eligibility set out in RCW 9.94A.660(1)(c), like the

provision at issue in this case, ties eligibility to previous convictions. But the two

provisions use different language. Under .660(1)(c), an offender is ineligible if he

has any convictions for a violent offense "within ten years before conviction of the

current offense. . . ." Under RCW 9.94A.660(1)(g) an offender is ineligible if he

has received more than one DOSA sentence "in the prior ten years before the

current offense." The different language in .660(1)(c) and .660(1)(g) signals a

3 The parties point to no instance in which, absent express language, context requires the court to look to the date of sentencing or the date of conviction.

9 No. 75993-1-1/10

different legislative intent. State v. Conover,

,

(2015)(citing State v. Roberts,

,

(1991)).

The former provision sets out a period of time ending with conviction of the

current offense. The latter provision sets out a period of time ending with the

current offense.

The statute at issue in this case, RCW 9.94A.660(1)(g), does not

expressly direct the court to the current offense's date of sentencing or date of

conviction. The surrounding provisions and the statutory scheme as a whole

indicate that the sentencing court must consider the offense at the time it

occurred. By the plain language of the statute, we conclude that "ten years

before the current offense" means "ten years before the current offense was

committed."

The trial court erred in reading "the prior ten years before the current

offense" to mean "the prior ten years before the date of sentencing on the current

offense." Because Van Noy's Snohomish County offense occurred before he

received DOSA sentences in Pierce and King County, he was not ineligible under

RCW 9.94A.660(1)(g). We reverse Van Noy's sentence and remand for

resentencing.

Van Noy also asserts that the sentence imposed on count 2, Identity Theft

in the Second Degree, exceeds the statutory maximum. The State concedes the

error. The parties agree that the sentence must be amended to reduce the term

of community custody so that the total sentence on count 2 is within the statutory

maximum. We remand for amendment of Van Noy's sentence on count 2.

10 No. 75993-1-1/11

Reversed and remanded for resentencing.

WE CONCUR:

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