### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 0 PO fifca STATE OF WASHINGTON, ) 0 —4C co P'

DO ) No.76633-3-1 cr rn Respondent, ) 1, 1 o t --, ca-r i -11 mon ) DIVISION ONE 1 La)I

— v. ) Irv] yr! To• St

a . ‘-' ) UNPUBLISHED OPINION x ;:r r DAVID WAYNE LEMKE, ) --so ) o clp— pa 21.< Appellant. ) FILED:December 3,2018 —
BEckER,J.—Appellant David Lemke seeks reversal ofthe standard range sentence thatwas imposed when he was terminated from drug court. He argues that the trial courtfailed to consider his eligibility for a residential DOSA (Drug Offender Sentencing Alternative). Because the record indicates that the judge's refusal to consider a DOSA was influenced by personal animus toward the defendant,we reverse and remand for resentencing before a differentjudge. On January 4,2017,the State filed an amended information charging Lemke with two counts of possession of methamphetamine and one count of shoplifting (retail theftwith special circumstances),stemming from arrests two months earlier. Lemke pleaded notguilty. He was admitted to Adult Drug Treatment Court that same day. He signed an agreement stating that if he was terminated from drug court,a judge,not a jury,would decide his guilt and the State would recommend a sentence of 24 months'incarceration and 12 months' community custody.No.76633-3-1/2

Lemke appeared for progress hearings. The record ofthese hearings shows the judge becoming increasingly pessimistic aboutthe chances of Lemke's success in drug court and increasingly disappointed with Lemke's lack of commitmentto the goal ofstaying clean and sober. During hearings to assess Lemke's progress,the court admonished him for missing treatment sessions and having "dirty" and diluted urinalysis results,among other problems. Lemke gave excuses the judge found unpersuasive. The judge sanctioned Lemke with brief jail stays and work crew and ordered him to attend daily treatment meetings. The judge warned Lemke that if he did not change his behavior,he would be terminated from drug court. During a hearing on February 24,2017,Lemke reported that he had a sore shoulder from being on work crew. The judge told him he could "stop with the shoulder bullshit now." Lemke admitted he had been drinking and said he needed anger management counseling. The judge said,"I think you're a fucking addictand maybe you need treatment. I don't think it's got nothing to do with anger management. You think I'll give you anger management and that's going to get you clean and sober?... Whatthe hell are you talking about?" The judge said,"You can't even give me a clean date you're so fucked up." On March 3, 2017,the judge discussed with Lemke the results oftwo "diluted" urinalysis results that indicated Lemke was masking his continuing drug
use. The judge said,"I'm starting to get a little bit pissed as I think about it more and more. I'd rather you just use rather than lie to me through masking."

2No. 76633-3-1/3 Later that month,Lemke missed a courtdate. The court issued a warrant for his arrest. Lemke tried to quash the warrant during a court hearing on March 15,2017. The judge asked Lemke if he was "on oxycodone." Lemke responded, "Yeah." The judge told Lemke that the warrantwould not be quashed and he would be taken into custody and "terminated from drug court." At another hearing two days later,the judge explained that he believed Lemke was lying about why he missed the courtdate. He said to Lemke,"You're a manipulator...

. And I am done with you? He ordered Lemke to return in a week for termination from drug court and sentencing. The judge noted thatthe charges against Lemke were two counts of possession of a controlled substance and shoplifting. "So not only is he an addict, he's also a liar and thief. Done? At the hearing a week later on March 24,2017,the judge articulated his
reasons for terminating Lemke from drug court: "Continued use,lying to the Court,inability to follow protocols? The judge then found Lemke guilty ofthe charged crimes. At this point,defense counsel interjected,"Before we proceed,the one thing thatwe ought to observe is that he is eligible for a residential DOSA." DOSA stands for Drug Offender Sentencing Alternative. A residential DOSA is a treatment-based alternative to a standard range sentence available to nonviolent drug offenders when deemed appropriate by the trial court. RCW 9.94A.660(3). The judge said,"I'm not giving him a residential DOSA." The judge imposed a standard range sentence of 24 months'confinement and 12 months'community custody. He remarked on Lemke's 30-year criminal

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history beginning at age 14. "You,sir, are just a criminal,that's all you are, you're just a criminal. Do you have issues? Yep,you do. Are you going to deal with them? No,you're not.... You,the odds say,are going to die in prison." Lemke appeals his sentence. Generally, a court's decision whether to grant a DOSA is not reviewable. State v. Grayson, 154 Wn.2d 333, 338, 111 P.3d 1183(2005). Exceptions are if the trial court refused to exercise discretion at all or relied on an impermissible basis in making the decision. State v. Garcia-Martinez, 88 Wn.App. 322, 330, 944 P.2d 1104(1997),review denied 136 Wn.2d 1002,966 P.2d 902(1998). "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 Wn.2d at 342. A trial court's failure to meaningfully consider a sentencing alternative is reversible error. Grayson 154 Wn.2d at 342. Lemke contends the judge denied his requestfor a DOSA without a meaningful inquiry, based in part on openly expressed personal animosity toward Lemke. The State responds that it is "clear that the court grounded its denial in
an assessment that Lemke was not amenable to treatment. Judges have a duty to conduct themselves with respectfor those they serve,including the litigants who come before them. "A judge who manifests bias or prejudice in a proceeding impairs the fairness ofthe proceeding and brings the judiciary into disrepute." Code of Judicial Conduct,Canon 2cmt. 1.

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Epithets and slurs are manifestations ofbias or prejudice. Code ofJudicial Conduct,Canon 2cmt 2. No judge wielding the power ofthe State in any courtroom has any good reason to call a litigant a "fucking addict"and lust a criminal." The judge's manifestation of personal animosity toward Lemke is not something we can write

1 offas a byproduct ofthe informal and confrontational culture ofdrug court. A "fair trial in a fair tribunal is a basic requirement ofdue process." In re Murchison, 349 U.S. 133, 136,75 S.Ct.623,99 L. Ed.942(1955). The sentence must be reversed. At resentencing,the courtwill follow State v. Ramirez, Wn.2d ,426 P.3d 714 (2018), in imposing legal financial obligations. In response to a supplemental assignment oferror and supplemental brieffiled by Lemke concerning Ramirez the State conceded that the $200 criminal filing fee,the $100 DNA fee,and the $900 drug courtfee should not be imposed. Reversed and remanded for resentencing before a different judge.

WE CONCUR: 

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