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SUSAN L. CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
NO. 95992-7
Petitioner,
V.
EN BANC
JAMBS AUSTIN YANCEY,
Respondent. Filed FEB 1 4 2019
GORDON McCLOUD,J.—James Austin Yancey, a military veteran with no
prior criminal history, was caught selling drugs within a school zone. Yancey
pleaded guilty and asked the trial court for a lenient sentence—either a first-time
offender waiver or a residential-based drug offender sentencing alternative(DOSA).
ROW 9.94A.660. The State objected to the residential-based DOSA because the
relevant DOSA statute allows only aprwow-based—not a residential-hdiSQd—DOSA
for defendants with a standard range like the one Yancey had. ROW 9.94A.660(3).
Over the State's objection, the trial court imposed a residential-based DOSA, and
the Court of Appeals affirmed.
State V. Yancey (James Austin), No. 95992-7
We reverse and remand for a new sentencing hearing. Based on the plain
language of the DOSA statute, the trial court lacked discretion to sentence Yancey
to a residential-based DOSA.
Factual and Procedural Background
Yancey, a military veteran suffering from posttraumatic stress disorder, twice
sold his prescription Suboxone strips to a person who turned out to be a police
informant. Clerk's Papers (CP) at 1-3, 26. Suboxone contains buprenorphine, a
schedule III controlled substance. CP at 4-5. Both sales took place within 1,000
feet of a school bus stop. CP at 4-5, 74.
The State charged Yancey with two counts of delivering the drug and added
a sentence enhancement to each count for delivering within 1,000 feet of a school
bus stop. CP at 4-5. Prior to these charges, Yancey had no criminal record.' CP at
66. Given his offender score and the seriousness level of the crimes, Yancey faced
a standard sentence range of 12 to 20 months, plus a 24-month sentence
enhancement, for each count. See id. Accordingly, his total standard range was 36
to 44 months per count. Id.
The State initially offered a plea deal in which it would drop one count and
recommend a prison-based DOSA for the other. CP at 41. Under the proposed deal.
'He was caught selling cocaine prior to his military service, but the State dropped
the charge after Yancey himself worked as a police informant. CP at 39, 42-48.
2
State V. Yancey (James Austin), No. 95992-7
Yancey would have served 20 months in prison and an additional 20 months in
community custody. Id. Yancey twice counteroffered to plead guilty if the State
removed the school-zone enhancements so that he could serve a residential chemical
dependency treatment-based (residential-based), rather than a prison-based, DOSA.
CP at 26-27. The State refused both counteroffers. Id.
Yancey ultimately pleaded guilty to both counts and the corresponding
enhancements. CP at 9-19, 65. Yancey sought either a first-time offender waiver,
CP at 27, or a residential-based DOSA, CP at 34. The State opposed the first-time
offender waiver. CP at 37-40. The State also opposed the residential-based DOSA,
arguing that the DOSA statute bars this alternative sentence when the midpoint of
an offender's standard range exceeds 24 months—and Yancey's midpoint was 40
months. CP at 61-63 (citing RCW 9.94A.660(3)). Nevertheless, the trial court
sentenced Yancey to a residential-based DOSA. CP at 69.^
The State appealed, again arguing that the trial court lacked statutory
discretion to impose a residential-based DOSA. CP at 78. In a split decision, the
Court of Appeals held that the trial court may waive sentence enhancements to get
to a standard sentence range that is low enough to accommodate the residential-
^ The State—the party that filed the notice of appeal and the petition for review—
failed to provide the sentencing transcript as part of the record on review. It is therefore
impossible to know the trial court's reasoning or goals in sentencing Yancey to a
residential-based DOSA.
State V. Yancey (James Austin), No. 95992-7
based DOSA's sentence-length prerequisites. State v. Yancey, 3 Wn. App. 2d 735,
740, 418 P.3d 157 (2018)(interpreting State v. Mohamed, 187 Wn. App. 630, 350
P.3d 671 (2015)). In Yancey's case, waiving a school-zone enhancement would
reduce the midpoint of his standard range from 40 months to 16 months, making a
residential-based DOSA possible. Id. at 739-40. Lacking a sentencing transcript,
the Court of Appeals ultimately remanded "to the sentencing court to either confirm
or exercise waiver ofthe enhancements or to resentence Yancey if the court did not
intend to waive the enhancements." Id. at 741.
The dissent argued that courts may not waive the sentence enhancements and
impose a DOSA. Id!, at 742-47 (Korsmo, J., dissenting). The dissent would have
"remanded for the trial court to consider either a prison-based DOSA or a standard
range sentence." Id. at 747.
We granted review.State v. Yancey, 191 Wn.2d 1012(2018),and now reverse.
Analysis
To resolve this case, we must interpret ROW 9.94A.660.^ We review the
meaning of a statute, a question of law, de novo. State v. Wooten, 178 Wn.2d 890,
^ The trial court must sentence under the statutes in effect at the time of the crimes.
Yancey committed his crimes in April 2015. CP at 4-5. The current statutes, in relevant
part, remain the same as the former statutes that were in effect at the time of Yancey's
crimes.
State V. Yancey (James Austin), No. 95992-7
895, 312 P.3d 41 (2013)(citing Dep't ofEcology v. Campbell & Gwinn, LLC, 146
Wn.2d 1,9,43 P.3d 4(2002)).
In interpreting a statute, we strive to "ascertain and carry out the legislature's
intent." State v. Bigsby, 189 Wn.2d 210, 216,399 P.3d 540(2017)(citing Campbell
& Gwinn,LLC, 146 Wn.2d at 9). Ifthe legislature's intent is clear from the statute's
plain meaning, then we give effect to that plain meaning. Id. "Plain meaning is
'discerned from the ordinary meaning of the language at issue, the context of the
statute in which that provision is found, related provisions, and the statutory scheme
as a whole.'" State v. James-Buhl, 190 Wn.2d 470, 474, 415 P.3d 234 (2018)
(quoting State v. Engel, 166 Wn.2d 572, 578, 210 P.3d 1007 (2009)). "When
ascertaining the plain meaning of the statute, we 'must not add words where the
legislature has chosen not to include them,' and we must 'construe statutes such that
all ofthe language is given effect.'" Id. (quoting Rest. Dev., Inc. v. Cananwill, Inc.,
150 Wn.2d 674, 682, 80 P.3d 598 (2003)).
Generally, the trial court "shall impose a sentence . . . within the standard
sentence range." RCW 9.94A.505(2)(a)(i). But the court may deviate from the
standard range in statutorily specified circumstances. E.g., RCW 9.94A.535
(exceptional sentences),.650(first-time offender waiver),.660(DOSA). The DOSA
program allows the trial court "to give eligible nonviolent drug offenders a reduced
sentence, treatment, and increased supervision in an attempt to help them recover
State V. Yancey (James Austin), No. 95992-7
from their addictions." State v. Grayson, 154 Wn.2d 333,337,111 P.3d 1183(2005)
(citing RCW 9.94A.660). The trial court may impose a prison-based DOSA or, in
some circumstances, a residential-based DOSA. RCW 9.94A.660(3).
In this case, the parties dispute whether this is one ofthose circumstances that
allows for a residential-based DOSA. This dispute boils down to the correct
interpretation ofthe following statute, specifically the emphasized portions:
If the 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 ofa 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.
Id. (emphasis added).
Yancey argues that the first emphasized portion grants a trial court broad
discretion to alter a standard sentence range. Resp't's Suppl. Br. at 5-8. Based on
Yancey's reading, the trial court appropriately "waive[d] imposition of a sentence
within the standard sentence range" of 36 to 44 months—a range that, based on the
statute's last sentence, would have barred the trial court from imposing a residential-
based DOSA—and instead imposed a different sentence with a midpoint of 24
months or less. From this argument it follows that the trial court may choose any
State V. Yancey (James Austin), No. 95992-7
midpoint it wants in order to accommodate the court's personal preference for or
against a residential-based DOSA.
The State argues that the trial court's discretion to waive the standard range is
constrained by the remainder of the statute. Suppl. Br. ofPet'r at 7-8, 15-16. Based
on the State's reading, the trial court certainly can waive imposition of a sentence
within the standard range. But the court cannot then impose any sentence that it sees
fit. The court may impose only a prison-based or a residential-based DOSA—and
only a prison-based DOSA if the midpoint of the standard sentence range exceeds
24 months. ROW 9.94A.660(3).
The State is correct. Immediately after the statute instructs the court to "waive
imposition of a sentence within the standard sentence range," it expressly tells the
court what it is to do next: "impose a sentence consisting of either a prison-based
alternative under ROW 9.94A.662 or a residential chemical dependency treatment-
based alternative under ROW 9.94A.664." ROW 9.94A.660(3). And those cross-
referenced statutes provide detailed instructions on how to calculate prison-based
and residential-based DOSAs. See ROW 9.94A.662,.664. Nowhere does the statute
permit the court to, for instance,"impose a sentence based on the underlying count,
absent any enhancements." We will not "'add words where the legislature has
chosen not to include them.'" James-Buhl, 190 Wn.2d at 474 (quoting Cananwill,
150 Wn.2d at 682). We will, however, "'construe statutes such that all of the
State V. Yancey (James Austin), No. 95992-7
language is given effect.'" Id. (quoting Cananwill, 150 Wn.2d at 682). And this
statute explicitly bars the court from imposing a residential-based DOSA if the
midpoint of the standard sentence range exceeds 24 months.
Yancey claims that Mohamed supports his argument. In that case, a jury
found Mohamed guilty offour counts of delivery ofcocaine,three of which included
enhancements. Mohamed, 187 Wn. App. at 634-35. Based on the convictions,
Mohamed faced a standard sentence range of 20 to 60 months for each conviction
of cocaine delivery, plus three 24-month sentence enhancements. Id. at 635.
Accordingly, Mohamed's total standard range for each enhanced conviction was 44
to 84 months, with a midpoint of 64 months. See id. at 645."^ Mohamed asked the
trial court to impose a DOSA. Id. at 635. But the trial court believed the law required
Mohamed to serve the full 72 months of enhancements in prison, even if it imposed
a DOSA sentence. Id. at 635-36. This erroneous belief led the trial court to reject
Mohamed's DOSA request. Id. at 636.
The Court of Appeals in Mohamed explained that the trial court, under the
DOSA statute, may "waive imposition of a sentence within the standard sentence
^ The court in Mohamed did not express an opinion as to whether the three
enhancements had to run consecutively to each other orjust consecutively to the underlying
conviction. 187 Wn. App. at 645. We subsequently resolved that issue, holding that
although enhancements must run consecutively to their underlying conviction, they need
not run consecutively across counts. State v. Conover, 183 Wn.2d 706, 717-19, 355 P.3d
1093 (2015).
8
State V. Yancey (James Austin), No. 95992-7
range." Id. at 638. And the standard sentence range includes "the base sentence
range plus enhancement of such range." Id. at 641; see also State v. Silva-Baltazar,
125 Wn.2d 472, 475, 886 P.2d 138 (1994) ("An enhancement increases the
presumptive or standard sentence."); In re Postsentencing Review of Gutierrez, 146
Wn. App. 151, 155, 188 P.3d 546 (2008) ("A sentence range increased by an
enhancement is still a standard range sentence."). It follows, the Mohamed court
concluded, that "a sentencing court may waive the enhancements as part of the
standard sentence range under a DOSA . . . ." 187 Wn. App. at 641. The court
remanded to the trial court for a new sentencing hearing, where "the court will have
the opportunity to consider the full range of sentencing options available to it." Id.
at 647.
The Mohamed court broadly framed the issue as "whether the trial court had
the authority to waive the 24-month school zone enhancements." Id. at 636 (citing
ROW 9.94A.533(6)). This framing led the Court of Appeals in this case to interpret
Mohamed as precedent for the notion that a trial court may waive a school-zone
enhancement, reducing the midpoint enough to accommodate a residential-based
DOSA. Yancey, 3 Wn. App. 2d at 739-40.
This interpretation is incorrect. The Mohamed court simply held that the trial
court may waive the standard sentence range—a range that includes any
enhancements—and impose a DOSA. 187 Wn. App. at 638-47. For example, the
State V. Yancey (James Austin), No. 95992-7
trial court in Yancey's case had discretion to waive the standard range of 36 to 44
months,a range that included the 24-month enhancement,and impose a prison-based
DOSA. A prison-based DOSA would have sent Yancey to prison for 20 months
followed by 20 months ofcommunity custody. See ROW 9.94A.662(1). He did not
have to serve the full 24-month enhancement in prison, contrary to what the trial
court in Mohamed believed. Instead, as the Court of Appeals in Mohamed noted,
that enhancement was subsumed into Yancey's standard range, which in turn may
be waived and replaced by a prison-based DOSA. Had the trial court in this case
imposed a prison-based DOSA, Yancey would have served fewer months in prison
(20 months) than the sentence enhancement itself called for (24 months). This is
what the Mohamed court meant when it discussed "waiving enhancements." 187
Wn. App. at 645.
In sum, we hold that the statute is clear: the trial court may not "waive"
sentence enhancements or portions of the base sentence to get to a range that is low
enough to accommodate the residential-based DOSA's sentence-length
prerequisites.^ We therefore reverse the Court of Appeals. We do not know the trial
court's reasons for imposing a residential-based DOSA as opposed to a prison-based
^ The State claims that Yancey's reading of the statute would permit the trial court
to impose an inappropriate hybrid sentence consisting of an exceptional sentence and a
DOSA. In dissent. Judge Korsmo made the same argument. Yancey, 3 Wn. App. 2d at
742-47 (Korsmo, J., dissenting). But the trial court in this case did not impose an
exceptional sentence, so we do not address that issue.
10
State V. Yancey (James Austin), No. 95992-7
DOSA or a standard range sentence. Nor do we know its reasoning concerning
Yancey's request for a first-time offender waiver. We therefore remand for a full
resentencing.
Conclusion
The legislature's intent is clear from the plain meaning of the DOSA statute.
The trial court deviated from that plain meaning by imposing a residential-based
DOSA. Accordingly, we reverse the Court of Appeals and remand for a full, new
sentencing hearing.
11
State V. Yancey (James Austin), No. 95992-7
WE CONCUR:
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State v. Yancey
Combined Opinion