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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION ONE

THE STATE OF WASHINGTON, ) No. 81296-3-I

)

 Respondent, )

)

 v. ) UNPUBLISHED OPINION

)

HAROLD CHARLES BALLARD, )

)

 Appellant. )

BOWMAN, J. — Harold Charles Ballard argues the court improperly 

rejected the parties’ agreed recommendation for a drug offender sentencing 

alternative (DOSA). Because the trial court properly exercised its discretion to 

sentence Ballard to a standard-range sentence, the court did not err. But we 

remand for the trial court to recalculate Ballard’s offender score and resentence 

him considering our Supreme Court’s decision in State v. Blake, 197 Wn.2d 170, 

481 P.3d 521 (2021).

FACTS

Police observed Ballard punch his girlfriend Mekisha McKenna outside a 

motel room. McKenna fell backward into the room with Ballard on top of her. 

McKenna yelled “ ‘No, stop.’ ” When police approached and detained Ballard, he 

said, “ ‘No, Keisha . . . tell them it didn’t happen.’ ” McKenna replied, “ ‘You hit 

me.’ ”
No. 81296-3-I/2

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The State charged Ballard with domestic violence felony violation of a nocontact order, as well as second degree assault and tampering with a witness

with domestic violence designations. All three counts included the aggravating 

factor that the domestic violence offenses were part of an ongoing pattern of 

abuse. After plea negotiations, Ballard pleaded guilty to only third degree 

domestic violence assault with no aggravating factor. 

As part of the plea agreement, the parties jointly recommended a prisonbased DOSA. The parties argued the DOSA was appropriate because the 

“incident was heavily affected by substance abuse.” Aside from DOSA 

substance use disorder treatment, Ballard agreed to enter and complete a 

separate domestic violence treatment program “such as Moral Reconation 

Therapy [(MRT)] or Thinking for a Change.” 

The trial court accepted Ballard’s plea but rejected the DOSA 

recommendation. The court reasoned:

I really respect the plea bargaining in this case, but I will point out 

that the plea here was a big reduction from the original charges to 

begin with, and I just do not feel bound by the party’s [sic]

agreement to impose a prison-based DOSA, nor do I believe it 

would serve community safety. Nor do I believe it’s a frugal or 

efficient use of state resources.

Instead, the court imposed a low-end standard-range sentence of 22 months

based on Ballard’s offender score of 6. Ballard appeals.

ANALYSIS

DOSA

Ballard claims the sentencing court “relied on untenable bases to 

categorically reject the DOSA sentence.” We disagree.
No. 81296-3-I/3

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The DOSA program authorizes trial judges to sentence eligible drug users 

to reduced confinement time in exchange for their participation in substance use 

disorder treatment and increased supervision to assist in recovery from addiction. 

State v. Grayson, 154 Wn.2d 333, 337, 111 P.3d 1183 (2005); see RCW 

9.94A.660. A defendant is not entitled to a DOSA but “is entitled to ask the trial 

court to consider such a sentence and to have the alternative actually 

considered.” Grayson, 154 Wn.2d at 342. Generally, a trial judge's decision 

whether to grant a DOSA is not reviewable. State v. Lemke, 7 Wn. App. 2d 23, 

27, 434 P.3d 551 (2018). But a defendant may seek appellate review “if the trial 

court refused to exercise discretion at all or relied on an impermissible basis in 

making the decision.” Lemke, 7 Wn. App. 2d at 27. When a defendant requests 

a sentencing alternative authorized by statute, the court’s categorical failure to 

consider the request is an abuse of discretion and reversible error. Grayson, 154 

Wn.2d at 342. 

Ballard challenges his sentence as a categorical denial of his request for a 

DOSA on two grounds. First, Ballard argues that the trial court refused his 

request for a DOSA because his offense did not involve drug use.1 In support of 

his claim, he points to the court’s statement during sentencing that “there’s 

nothing in this record that indicates that drugs had — or drug use or alcohol use, 

or really any substance, had anything to do with this.” But Ballard takes the 

court’s comment out of context. The trial court did not determine Ballard was

ineligible for a DOSA because the offense was not drug related. Instead, the 

 

1 Conviction on a drug related offense is not required for DOSA eligibility. See RCW 

9.94A.660(1). 
No. 81296-3-I/4

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court cited the lack of drug use as one factor it considered in an assessment of 

whether Ballard would benefit from a DOSA sentence. 

The court concluded Ballard would not benefit from a DOSA sentence 

because substance use disorder treatment would not adequately address 

Ballard’s domestic violence issues as evidenced by his significant history of 

domestic violence related crimes. The trial court noted:

[T]here are a lot of people with substance abuse and alcohol issues 

who do not come before us ever for domestic violence issues. If 

Mr. Ballard has a drug issue, and I’m not arguing with you about 

that, it’s accompanying an ongoing domestic violence issue that 

has never been addressed. 

After considering Ballard’s five prior domestic violence convictions and 10 nocontact orders issued to protect six different women from him, the court 

concluded that Ballard had received a significant reduction in his sentence as a 

result of his plea bargain and a DOSA would not serve community safety or be 

an efficient use of resources. This was not an abuse of discretion. 

Second, Ballard contends the court “categorically denied the DOSA based 

on matters outside the record and on ground that the contemplated legislativelyauthorized treatment program was useless.” He claims the trial court “deemed 

the DOSA program unavailable for persons whose other class of offenses, 

besides drug crimes, were domestic violence crimes, which the court believed 

the Department of Corrections did not have programs to treat.” 

Ballard compares his case to Grayson. In that case, the trial court refused 

a DOSA because it believed the program was underfunded and a DOSA would 

lead to a shortened sentence without treatment. Grayson, 154 Wn2d. at 337. 
No. 81296-3-I/5

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Our Supreme Court concluded it was reversible error for a trial court to 

“categorically refuse[ ] to consider a statutorily authorized sentencing alternative.” 

Grayson, 154 Wn.2d at 342. According to Ballard, the court sentencing him 

relied on similarly flawed reasoning and “deemed the DOSA program impotent 

despite the legislature’s establishment of this alternative sentencing scheme.” 

We disagree.

Here, the trial court questioned the effectiveness of certain domestic 

violence treatment programs proposed by the parties as a condition of sentence 

separate from DOSA substance use disorder treatment. The court commented 

that “MRT or Thinking for a Change is completely not evidence-based” and 

“[t]here is absolutely no evidence that either one of those programs has any 

effect whatsoever on domestic violence offenders.” But unlike the trial court in 

Grayson, the court’s critique was not of the usefulness of the DOSA program

itself, but whether the specific domestic violence programs recommended in 

addition to the DOSA substance use disorder treatment would benefit Ballard

and the community. Nor did the court suggest it would not grant a DOSA 

sentence for any defendant charged with domestic violence crimes. Indeed, 

while the court expressed doubt about the programs recommended by the 

parties, it also recognized that “[t]here is a lot of competent evidence out there 

that an appropriate domestic violence batterer’s treatment program would have

an effect, but it doesn’t look as though Mr. Ballard’s attended one yet.”

The court did not categorically deny Ballard’s request for a DOSA 

sentence. We affirm his standard-range sentence. 
No. 81296-3-I/6

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Offender Score Calculation

The trial court sentenced Ballard based on an offender score of 6. The 

score included 1 point for felony drug possession in violation of the uniform 

controlled substances act, chapter 69.50 RCW. After our Supreme Court held 

the strict liability drug possession statute RCW 69.50.4013(1) unconstitutional 

and void in Blake, Ballard moved to assign additional error to the calculation of 

his offender score and resulting sentence. See Blake, 197 Wn.2d at 195. A 

commissioner of this court granted the motion and the State responded. The 

State concedes that because the Supreme Court denied its motion to reconsider 

the retroactive effect of Blake, the court must resentence Ballard with a corrected 

offender score. 

We affirm the trial court’s standard-range sentence for third degree 

domestic violence assault but remand for recalculation of Ballard’s offender score 

and resentencing. 

WE CONCUR: