State of Washington v. Ronald Frank Hender ( 2014 )

FILED
May 1,2014
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 31356-5-111
Respondent, )
)
v. )
)
RONALD FRANK HENDER, ) PUBLISHED OPINION
)
Appellant. )
FEARING, J. - Ronald Hender pled guilty to two counts of delivery of
methamphetamine with a single school zone enhancement. On appeal, he argues the
sentencing court either failed to exercise or abused its discretion when it denied his
request for a drug offender sentencing alternative (DOSA), chapter 9.94A RCW. Hender
requests a new sentencing hearing. We affirm the trial court, since it exercised and did
not abuse its discretion. The trial court legitimately denied a DOSA sentence because
Hender refused to take responsibility for his criminal conduct.
FACTS
Between November 2011 and January 2012, a confidential informant purchased
methamphetamine from Ronald Hender on multiple occasions. Based on the controlled
buys, the State charged Hender with three counts of delivery of methamphetamine and an
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State v. Hender
enhancement for doing so within a school zone. Hender pled guilty to two counts.
At sentencing, the State recommended the low-end of the standard 36 to 44
months range. Hender requested a DOSA sentence. In support of his request, Hender,
now age 57, stated he was a good candidate because of his age, his valuable skill set, and
the support of his "tight family." Report of Proceedings (RP) at 16. In addition he told
the court:
I don't feel like methamphetamine's ever made me a criminal. I've never
been out robbing people or doing anything and having it being illegal. And
over the years it's turned my brain to poop and just caused a lot of trouble,
you know. So it's all done. And just want to get it over with.
RP at 17. Hender's brother Steve also spoke in support of Hender's ability to "be 100 %
on recovery on this if given the last chance." RP at 19.
The trial court sentenced Ronald Hender to 36 months and 1 day on the first count
and 12 months and 1 day on the second count, to be served concurrently. The court
refused a DOSA sentence on the ground that, contrary to Hender's remarks,
methamphetamine had made him a criminal. Hender not only took methamphetamine
but dealt the illicit drug.
Ronald Hender demurred and claimed not to deal methamphetamine. He first
commented, "I wasn't dealing meth." RP at 20. When the trial court confronted him
with pleading guilty to delivery of methamphetamine, Hender deflected blame from
himself, "The city sent a guy out to get me, basically totally out of retirement, and offered
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me a lot of money. And, you know, I fell through the loop." RP at 20. The court
responded:
And when you do that, and you try to share ... with other people, I don't
care ifit was a controlled buy or not, that was the attempt, and that's awfuL
So you need to take responsibility . You need to take accountability.
RP at 21.
LAW AND ANALYSIS
We address whether the sentencing court erred when imposing a standard sentence
instead of a DOSA. Ronald Hender argues that a court must grant a DOSA sentence to a
nonviolent drug offender ifhe meets the seven factors enumerated in RCW 9.94A.660(l).
He claims he met those eligibility requirements, and the trial court denied his request
without considering the requirements. Ronald Hender argues the trial court's ruling
constitutes a failure to exercise discretion, a form of error.
RCW 9.94A.660, a section of the historic Sentencing Reform Act of 1981 (SRA),
allows alternative sentences for drug offenders. The statute reads, in part:
(1) An offender is eligible for the special drug offender sentencing
alternative if:
(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);
(c) The offender has no current or prior convictions for a sex
offense at any time or violent offense within ten years before conviction of
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the current offense, in this state, another state, or the United States;
Cd) For a violation of the Unifonn 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;
(e) The offender has not been found by the United States attorney
general to be subject to a deportation detainer or order and does not
become subject to a deportation.order during the period of the sentence;
(f) The end of the standard sentence range for the current offense
is greater than one year; and
(g) The offender has not received a drug offender sentencing
alternative more than once in the prior ten years before the current
offense.
(2) A motion for a special drug offender sentencing alternative
may be made by the court, the offender, or the state.
(3) Ifthe sentencing court determines that the offender is eligible
for an alternative sentence under this section and that the alternative
sentence is appropriate, the court shall waive imposition of a sentence
within the standard sentence range and impose a sentence consisting of
either a prison-based alternative under RCW 9.94A.662 or a residential
chemical dependency treatment-based alternative under RCW 9.94A.664.
The residential chemical dependency treatment-based alternative is only
available if the midpoint of the standard range is twenty-four months or
less.
(Emphasis added.) DOSA is one of several sentencing alternatives available under the
SRA.
The State does not deny that Ronald Hender met the seven eligibility requirements
in 9.94A.660(1)(a)-(g). But eligibility does not automatically lead to a DOSA sentence.
Instead, under 9.94A.660(3), the sentencing court must still determine that "the
alternative sentence is appropriate." State v. Barton, 121 Wash. App. 792, 795, 90 P.3d
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1138 (2004).
The purpose ofRCW 9.94A.660, known as DOSA, is to provide meaningful
treatment and rehabilitation incentives for those convicted of drug crimes, when the trial
judge concludes it would be in the best interests ofthe individual and the community.
State v. Grayson, 154 Wash. 2d 333, 343, 111 P.3d 1183 (2005); State v. Waldenberg, 174
Wash. App. 163, 166 n.2, 301 P.3d 41 (2013). It authorizes trial judges to give eligible
nonviolent drug offenders a reduced sentence, treatment, and increased supervision in an
attempt to help them recover from their addictions. Grayson, 154 Wash. 2d at 337. Under a
DOSA sentence, the defendant serves only about one-half of a standard range sentence in
prison and receives substance abuse treatment while incarcerated. Grayson, 154 Wash. 2d
at 337-38. Afterward, he or she is released into closely monitored community
supervision and treatment for the balance of the sentence. RCW 9.94A.660(7)(c). The
offender has significant incentive to comply with the conditions of a DOSA sentence,
since failure may result in serving the remainder of the sentence in prison. RCW
9.94A.660(7)(c); Grayson, 154 Wash. 2d at 338.
As a general rule, the trial judge's decision whether to grant a DOSA sentence is
not reviewable. RCW 9.94A.585(1); Grayson, 154 Wash. 2d at 338 (citing State v.
Bramme, 115 Wash. App. 844, 850, 64 P.3d 60 (2003)). The legislature entrusted
sentencing courts with considerable discretion under the SRA, including the discretion to
determine if the offender is eligible for an alternative sentence and, significantly, whether
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State v. Hender
the alternative is appropriate. State v. Pascal, 108 Wash. 2d 125, 137, 736 P.2d 1065
(1987). However, an offender may always challenge the procedure by which a sentence
was imposed. State v. Herzog, 112 Wn.2d 419,423, 771 P.2d 739 (1989) (quoting State
v. Ammons, 105 Wash. 2d 175, 182-83, 713 P.2d 719, 718 P.2d 796 (1986». While no
defendant is entitled to an exceptional sentence below the standard range, every
defendant is entitled to ask the trial court to consider such a sentence and to have the
alternative actually considered. Grayson, 154 Wash. 2d at 342; State v. Garcia-Martinez,
88 Wash. App. 322, 330, 944 P.2d 1104 (1997) (emphasis added). A court that fails to
consider a requested alternative abuses its discretion. Grayson, 154 Wash. 2d at 342.
A seminal Washington DOSA decision is Grayson, 154 Wash. 2d 333. John
Grayson was convicted of one count of delivery of cocaine and one count of possession
of marijuana. He requested a DOSA sentence. Although he was eligible under the seven
factors ofRCW 9.94A.660(1), the State argued against a DOSA sentence because of
Grayson's criminal history. The trial court denied the DOSA request, while stating its
"main reason" was the State's lack of funding for the DOSA program. Grayson, 154 Wash.
2d at 337. The trial court stated no other reason. An alert prosecutor suggested to the
trial court that other important factors rendered a DOSA sentence inappropriate. The trial
court interrupted the prosecutor in mid-sentence and commented, "I'm not going to give a
DOSA, so that's it." Grayson, 154 Wash. 2d at 337.
On appeal, John Grayson argued that the trial court failed to exercise its discretion
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by categorically refusing to consider whether a DOSA sentence was appropriate. In a
five to four decision, the Supreme Court agreed. A lack of funding was not a fact in the
record and was not a legitimate reason for denying the alternative sentence. The trial
court rejected the prosecution's request that more reasons be placed on the record. The
Supreme Court remanded for a new hearing, despite recognizing ample other grounds
existed to find that Grayson was not a good candidate for a DOSA sentence. The court
recognized, however, that general information about a sentencing alternative, such as for
whom the program is intended, is the kind of information that helps a judge exercise
discretion. Grayson, 154 Wash. 2d at 341. The dissenters noted that the trial court had
determined that a DOSA sentence would not benefit John Grayson or the community and
so the trial court had properly exercised its discretion.
Contrary to the trial court in Grayson, our trial court exercised its discretion and
stated reasons on the record for denying a DOSA sentence. The trial court emphasized
Ronald Hender's lack of accountability and refusal to be responsible for his conduct.
Although many behavioral scientists disagree, many recognize that one who blames
others for his wrongs is detached from reality and this detachment interferes in one's
ability to benefit from treatment. If a user does not take responsibility for his behavior,
he is not likely to be receptive to change in the behavior. Alcohol and drug addiction are
common results of a blaming attitude. Thus, the trial court did not abuse its discretion
when concluding that a DOSA sentence does not fit the predisposition of Ronald Hender.
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CONCLUSION
We affirm the trial court's refusal to grant a nOSA sentence.
Fearing, A.C.J.
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WE CONCUR:
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