State v. Ehlert, 101221 WACA, 37780-6-III
| Judge | WE CONCUR: Pennell, C.J. Siddoway, J. |
| Court | Washington Court of Appeals |
| Date | 12 October 2021 |
| Parties | STATE OF WASHINGTON, Respondent, v. KEVIN P. EHLERT, Appellant. |
| Docket Number | 37780-6-III |
LAWRENCE-BERREY, J.
Under RCW 9.94A.660(1), an offender is eligible for a drug offender sentencing alternative (DOS A) if they meet seven conditions. One condition requires the offender to not have "received" a DOSA more than once in the prior 10 years before the current offense. RCW 9.94A.660(1)(g).
Four years before Kevin Ehlert's current offense, a court imposed two DOSA sentences on separate days but ordered that they be served concurrently. The question presented is whether a person "receives" a DOSA at sentencing or whether a person "receives" a DOSA through a course of treatment and rehabilitation. We hold that a person "receives" a DOSA through a course of treatment and conclude that Ehlert's prior concurrent sentences do not render him ineligible for a DOSA. We remand for the trial court to decide whether to grant Ehlert a DOSA.
FACTS
Prior DOSA sentences
In 2016, Ehlert was terminated from drug court on several charges unrelated to the current offenses. The charges were tried in two bench trials. Both trials resulted in guilty verdicts. Separate DOSA sentences were entered within weeks of each other. The resulting sentences were expressly made to run concurrent with each other. Ehlert successfully completed his DOSA in early June 2020.
Current offenses
On June 17, 2020, police responded to a reported burglary at a Fred Meyer store in Spokane Valley, Washington. Surveillance footage showed a man driving a silver minivan pull up near the garden center, cut a padlock with bolt cutters, enter the gate, and remove several pieces of store merchandise. The store's loss prevention officer recognized Ehlert and his distinctively damaged silver minivan from previous investigations.
Police arrested Ehlert later that day while he was driving the minivan. The missing merchandise was not in the van. During a search incident to arrest, police discovered under one-half of a gram of methamphetamine in Ehlert's front pocket.
The State charged Ehlert by amended information with second degree burglary (count 1), third degree malicious mischief (count 2), second degree retail theft with special circumstances (count 3), and possession of a controlled substance (count 4). A jury found Ehlert guilty as charged.
Sentencing on current offenses
Ehlert requested a prison-based DOSA with all convictions running concurrent with one another. The State opposed the request, contending Ehlert was ineligible under the DOSA statute because he had two prior DOSA sentences. Ehlert responded that because the two DOSA sentences were the subject of only one course of treatment, they should count as only one DOSA sentence for eligibility purposes. The court remarked that a DOSA would be appropriate for Ehlert but concluded that the statute removed its discretion. The court accordingly imposed a standard range concurrent sentence.
Ehlert timely appealed.
ANALYSIS
DOSA ELIGIBILITY
Ehlert contends the sentencing court erred in interpreting RCW 9.94A.660 to preclude his eligibility for a prison-based DOSA sentence. We agree.
The DOSA statute authorizes a court to impose an alternative sentence, including substance abuse treatment and rehabilitation incentives, when this would be in the best interests of the defendant and the community. State v. Grayson, 154 Wn.2d 333, 343, 111 P.3d 1183 (2005). The DOSA program is part of the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, the purposes of which include protecting the public and offering offenders the opportunity to improve themselves. See RCW 9.94A.010. Under a DOSA sentence, the offender serves one-half of the standard range sentence in prison and the remaining one-half of the sentence in the community with supervised treatment. Grayson, 154 Wn.2d at 337-38. A DOSA sentence may be revoked for noncompliance. State v. Van Noy, 3 Wn.App. 2d 494, 498, 416 P.3d 751 (2018). Accordingly, DOSA participants have significant incentive to comply with conditions because failure to do so results in them serving the remainder of their sentence in prison. RCW 9.94A.660(2); Grayson, 154 Wn.2d at 337-38.
To be eligible for a DOSA sentence, offenders must meet seven conditions. See former RCW 9.94A.660(1)(a)-(g) (2019).1 The condition at issue requires "[t]he offender 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).
The meaning of a statute is a question of law that we review de novo. State v. Wooten, 178 Wn.2d 890, 895, 312 P.3d 41 (2013). When engaging in statutory interpretation, our goal is to ascertain the legislature's intent. State v. Yancey, 193 Wn.2d 26, 30, 434 P.3d 518 (2019). "The surest indication of legislative intent is the language enacted by the legislature, so if the meaning of a statute is plain on its face, we 'give effect to that plain meaning.'" State v. Ervin, 169 Wn.2d 815, 820, 239 P.3d 354 (2010) (internal quotation marks omitted) (quoting Dep 't of Ecology v. Campbell &...
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