¶22 The majority purports to climb into the mind of the trial judge and then castigate him for thoughts and intentions he is perceived to have had. The record cannot sustain this mind-reading exercise, nor does our deference to the trial court's discretion warrant it. Succinctly put, I believe that the trial court properly *Page 344 exercised its discretion when it concluded that John Grayson and the community would not benefit from a drug offender sentencing alternative (DOSA), and I would affirm the Court of Appeals decision in this case.
¶23 The majority concludes that the trial court erred by categorically refusing to consider a DOSA. Majority at 342. But in ordering a DOSA eligibility screening for Grayson, the trial judge clearly indicated that he not only did not refuse to consider the alternative sentence but was willing to consider such an alternative if appropriate in the circumstances. Clerk's Papers (CP) at 15. More importantly, while systemic funding problems were the reason why the trial judge denied the DOSA in this case, they were not the sole reason. Verbatim Report of Proceedings (RP) at 152. The trial judge did not assert that he would deny DOSA in every case, but instead spoke to the specific impact of the program's ineffectiveness on this case. RP at 152 ("[I]n this case if I granted [Grayson] a DOSA it would be merely to the effect of it cutting his sentence in half."). Therefore, I cannot agree with the majority's conclusion that the trial judge categorically refused to exercise his discretion.
¶24 Moreover, it is clear that the trial judge acted within his discretion in denying the DOSA here. Once a defendant has been deemed eligible for DOSA, as Grayson was, the court must consider whether "the offender and the community will benefit from the use of the [sentencing] alternative." RCW 9.94A.660(2). The trial judge's evaluation of the practical effect of granting a DOSA in this case was relevant to the specific question presented by the DOSA statute. And nothing in the DOSA statute prevents the trial judge from taking the program's effectiveness into account. See RCW 9.94A.660; see also State v. Mail,121 Wn.2d 707, 711, 854 P.2d 1042 (1993). The trial judge was also aware that Grayson had a significant history of drug convictions, which included several counts of possession and possession with intent to deliver in 1992, 1994, 1998, 1999, and 2002. CP at 6. Most significantly, the trial judge was aware of other pending drug charges, one of which involved such a large *Page 345 quantity of marijuana that Grayson could not qualify for DOSA in that case. RP at 153-54 (charged with delivering seven pounds of marijuana, worth about $12,000). In addition, Grayson committed several other violations of his conditions of release, id., and, based on his criminal history and concurrent charges, his offender score in this case was 13. CP at 6.
¶25 The record does not sustain the majority's conclusion that the trial judge categorically refused to exercise his discretion. Instead the trial judge clearly answered the question posed by the DOSA statute: Would Grayson and the community benefit if the court were to grant him a DOSA sentence? The trial judge acted within his discretion when he concluded that the answer to this question was "no."
¶26 I dissent.
OWENS and FAIRHURST, JJ., and IRELAND, J. Pro Tem., concur with BRIDGE, J.