IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

JENNIFER LYNN WARD,

Appellant.

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No. 38992-8-III

UNPUBLISHED OPINION

STAAB, J. — The trial court denied Jennifer Ward’s request for a drug offender 

sentencing alternative (DOSA) at resentencing following the revocation of her sentence 

under the mental health sentencing alternative (MHSA) for noncompliance. Ward 

appeals arguing that the court abused its discretion when it categorically denied her 

request for a DOSA. She also challenges the imposition of a victim penalty assessment 

(VPA). We affirm her sentence and remand to strike the VPA.

BACKGROUND

Jennifer Ward was charged by information with one count of possession of a 

stolen motor vehicle and one count of making or possessing motor vehicle theft tools. As 

a result of a plea agreement, Ward pleaded guilty to possession of a stolen motor vehicle. 

In exchange for her guilty plea, the State and Ward entered a joint recommendation for a 

FILED

SEPTEMBER 19, 2023

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 38992-8-III

State v. Ward 

2

MHSA. The State also recommended dismissal of her charge for making or possessing 

motor vehicle theft tools.

As a condition of her MHSA sentence, Ward was required to obtain a substance 

abuse disorder evaluation, mental health treatment, and comply with the terms of 

treatment. The trial court found that Ward was indigent and imposed the then mandatory 

$500 VPA. All other legal financial obligations were waived.

A few months later, the State filed a petition to modify or revoke Ward’s MHSA. 

The court received a supplemental notice of violation from the Department of Corrections 

(DOC) outlining Ward’s alleged violations. DOC asserted a “pattern of non-compliance 

with [Ward’s] conditions of supervision” and that Ward’s “non-compliant behavior 

shows no intent to follow through with any instructions the Court or [DOC] has given 

her.” Clerk’s Papers (CP) at 58. “[Ward] has not made any attempts to engage into 

treatment upon release despite multiple opportunities. Ms. Ward refuses to respond to 

any interventions that have been put in place for her to be successful in the community. 

Ms. Ward has showed no participation under this sentencing alternative.” CP at 59.

The court held a hearing to address the alleged violations. Ward was represented 

by counsel and stipulated to her violations. The court noted that Ward did well in 

inpatient treatment but immediately relapsed after being released into the community and 

refused to comply with DOC’s attempts to contact her or get her to engage in treatment. 
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State v. Ward 

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The court found that Ward willfully violated the terms of the MHSA and consequently 

revoked her MHSA.

After Ward’s MHSA was revoked, her attorney requested a DOSA instead, which 

was denied:

[WARD’S ATTORNEY]: My client asked me to request a residential 

DOSA if the Court sentenced her today. 

THE COURT: Denied.

[WARD’S ATTORNEY]: Oh, prison-based DOSA. 

THE COURT: Denied. Go ahead and have your seat. We’ll get our 

paperwork prepared.

Rep. of Proc. (RP) at 34. The court then imposed a 52 month sentence.

Ward timely appeals.

ANALYSIS

1. TRIAL COURT’S DENIAL OF DOSA

Ward contends that the court categorically denied her request for a DOSA, thereby 

abusing its discretion. The State argues that even if Ward was eligible for a DOSA, the 

sentencing court clearly denied her request based on her inability to comply with her 

MHSA sentence. We find no abuse of discretion. 

“The DOSA program is an attempt to provide treatment for some offenders 

judged likely to benefit from it.” State v. Grayson, 154 Wn.2d 333, 337, 111 P.3d 1183 
No. 38992-8-III

State v. Ward 

4

(2005). “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.” Id. (citing RCW 9.94A.660). After finding a defendant eligible for a 

DOSA sentence, the court must determine whether a DOSA sentence is appropriate. 

RCW 9.94A.660(3). 

A trial court’s decision whether to grant a DOSA is generally not reviewable. 

Grayson, 154 Wn.2d at 338 (citing RCW 9.94A.585(1); State v. Bramme, 115 Wn. App. 

844, 850, 64 P.3d 60 (2003)). However, a defendant may challenge the procedure 

through which a sentence was imposed. Id. (citing State v. Herzog, 112 Wn.2d 419, 423, 

771 P.2d 739 (1989)). A sentencing court abuses its discretion when it refuses 

categorically to impose a DOSA sentence under any circumstances, or refuses to consider 

the alternative sentence for a class of offenders. Id. at 342 (citing State v. GarciaMartinez, 88 Wn. App. 332, 330, 994 P.2d 1104 (1997)). 

The sentencing court’s denial of Ward’s request for a DOSA sentence was not a 

categorical denial. The court did not suggest that it was refusing to ever impose a DOSA 

or refusing to consider a DOSA for a class of offenders. Instead, the court’s denial was 

conclusory, not categorial. While we caution against such conclusory denials of a 

sentencing alternative, in this case, the reasons for the court’s denial were abundantly 

clear from the record. See State v. Pirtle, 127 Wn.2d 628, 650, 904 P.2d 245 (1995) 

(Despite court’s failure to explain its decision on the record, the decision to admit 
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State v. Ward 

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evidence was not an abuse of discretion because the reasoning was clear from the record). 

The court noted that once released, Ward made no attempts to contact DOC, respond to 

their communications, or participate in treatment. As the court explained in revoking her 

MHSA sentence, “patience is lost quite quickly when these services that are offered to 

you—including sober and clean housing—are essentially denied, ignored, you know, not 

taken advantage of.” RP at 33. The court concluded that the MHSA alternative sentence 

was a “bad fit.” RP at 34. 

Assuming Ward was eligible for a DOSA sentence, her absolute failure to 

participate in her MHSA sentence demonstrated that she was not amenable to treatment 

and not a good candidate for a treatment-based sentencing alternative. The court did not 

abuse its discretion by denying Ward’s request for a DOSA sentence. 

2. VICTIM PENALTY ASSESSMENT

Ward argues that the VPA imposed on her should be struck. She argues that 

amended RCW 7.68.035, which prohibits the VPA from being imposed on indigent 

defendants applies prospectively to Ward’s case. We agree. 

In April of this year, the legislature passed Engrossed Substitute H.B. 1169, 68th 

Leg., Reg. Sess. (Wash 2023), which amends RCW 7.68.035 to prohibit the imposition of 

the VPA on indigent defendants. RCW 7.68.035 (as amended); LAWS of 2023, ch. 449, § 

1, which took effect July 1, 2023 (“(4) The court shall not impose the penalty assessment 
No. 38992-8-III

State v. Ward 

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under this section if the court finds that the defendant, at the time of sentencing, is 

indigent as defined in RCW 10.01.160(3).”). Laws of 2023, ch. 449, § 1 states:

(5) Upon motion by a defendant, the court shall waive any crime 

victim penalty assessment imposed prior to the effective date of this section 

if: 

. . . .

(b) The person does not have the ability to pay the penalty 

assessment. A person does not have the ability to pay if the person is 

indigent as defined in RCW 10.01.160(3).

Generally, statutes apply prospectively from their effective date unless the 

legislature indicates it intends otherwise. State v. Humphrey, 139 Wn.2d 53, 55, 983 P.2d 

1118 (1999). However, a newly enacted statute generally applies to all cases pending on 

direct appeal that are not yet final. State v. Jefferson, 192 Wn.2d 225, 246, 429 P.3d 467 

(2018) (citing Landgraf v. USI Film Prods., 511 U.S. 244, 275, 114 S. Ct. 1483, 128 L. 

Ed. 2d 229 (1994); State v. Pillatos, 159 Wn.2d 459, 470, 150 P.3d 1130 (2007)). 

Here, the legislature likely intended this statutory amendment to apply 

retroactively, evidenced by the provision requiring previously imposed VPA fees on 

indigent defendants to be struck upon a defendant’s motion. Further, even if the 

legislature did not intend the statute to apply retroactively, Ward’s case is pending on 

direct appeal and not yet final. Thus, the newly enacted statute applies to her case and 

the VPA should be struck. 
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Because we are remanding to strike the VPA, it is unnecessary to address Ward’s 

alternative argument regarding the source of her income. 

We affirm the sentence and remand to strike the VPA.

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040.

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Staab, J.

WE CONCUR:

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Pennell, J.

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Cooney, J.