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In re Postsentence Review of Hardy

Court of Appeals of Washington, Division 3

May 23, 2019

In the Matter of the Postsentence Review of LEANNE MARIE HARDY.

          Siddoway, J.

         The Department of Corrections (DOC) petitions pursuant to RCW 9.94A.585(7) for review of the drug offender sentencing alternative (DOSA) imposed on Leanne Marie Hardy as a result of her March 2018 conviction of three counts, two of which the DOC contends were DOSA-ineligible, having standard sentence ranges less than one year.

         The petition requires us to construe RCW 9.94A.660 and to re-examine an assumption made in this court's 2007 decision in State v. Smith, 142 Wn.App. 122, 173 P.3d 973. We reject Smith's assumption that an offense-based evaluation of DOSA eligibility being used by the DOC was correct. We construe eligibility for DOSA as offender-based, not offense-based, and identify how RCW 9.94A.660(1)(d) and (f) should be applied to the sentencing of multiple current offenses consistent with the purposes of those provisions.

         We conclude that Ms. Hardy's DOSA sentence is valid and deny the DOC's petition.

         FACTS AND PROCEDURAL BACKGROUND

         Leanne Hardy pleaded guilty to two counts of unlawful possession of a controlled substance (methamphetamine and heroin) and one count of bail jumping. She had an offender score of 5. We reproduce the "Sentencing Data" section of her judgment and sentence, which sets forth the standard range sentences for the three offenses under RCW 9.94A.510 and former RCW 9.94A.517 (2015).[1] Counts I and III are the controlled substance offenses and count II is the bail jumping count:

(Table Omitted)

Postsentence Pet., Ex. 1, at 2.

         The Douglas County Superior Court granted a residential DOSA, waiving imposition of a standard range sentence and requiring Ms. Hardy to serve 24 months in community custody, on the condition that she enter and remain in residential chemical dependency treatment certified under chapter 70.96A RCW for 3 to 6 months.

         Upon receiving Ms. Hardy's judgment and sentence, DOC personnel concluded that because counts I and III had a standard range of 6 to 12 months, they were not DOSA eligible. After unsuccessfully trying to resolve the issue at the trial court level, the DOC timely filed this petition in accordance with RCW 9.94A.585(7) and RAP 16.18. Since Ms. Hardy is indigent, we appointed counsel to represent her. RAP 16.18(c).

         ANALYSIS

         At issue is the purely legal issue of whether the sentencing court exceeded its statutory sentencing authority when it granted Ms. Hardy a DOSA sentence. RCW 9.94A.585(7) (limiting our review to "errors of law"). We review the issue de novo. State v. Murray, 118 Wn.App. 518, 521, 77 P.3d 1188 (2003). The parties' dispute implicates issues of statutory construction, which we also review de novo. In re Det. of Williams, 147 Wn.2d 476, 486, 55 P.3d 597 (2002).

         The parties' dispute also requires us to consider the application of this court's decision in Smith. In July 2006, when Beau Smith was being sentenced at the same hearing for offenses charged in two criminal cases, he asked the court to impose a DOSA in both. 142 Wn.App. at 125. The trial court asked defense counsel to find out how the DOC would treat Mr. Smith's sentences if the court sentenced him to 57 months' confinement in one case but granted a prison-based DOSA of 25 months/25months in the other, to run concurrently. Id. Counsel reported back that he was told

if the Court passes sentence as described, the [sic] Mr. Smith would serve the 57 months on the first case (minus good time), and the 25 month in-custody portion of the second case, concurrent, for a total in-custody period of 57 months minus good time. Upon release, Mr. Smith would serve the 25 month out-of-custody portion of the DOSA. In short, the 57 months in custody would not "eat up" the out of custody portion of the DOSA. The chemical dependency ...

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