In the Matter of the Postsentence Review of LEANNE MARIE HARDY.
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.
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
conclude that Ms. Hardy's DOSA sentence is valid and deny
the DOC's petition.
AND PROCEDURAL BACKGROUND
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). Counts I and III are the
controlled substance offenses and count II is the bail
Postsentence Pet., Ex. 1, at 2.
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.
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
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).
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
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