IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF W ASHINGTON, Respondent, ) No. 73430-0-1 ) (consolidated with No. 73431-8-1 ) and No. 73432-6-1)

\/. DIVISION ONE UNPUBLISHED OPINION 3C CHRISTOPHEERALLEN NAKAMURA, ~5- -11 T. Appellant. FILED: March 7, 2016 \

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### Trickey, J. —Christopher Nakamura appeals thetrial court's decision to eg gg»" impose a standard range sentence instead of a prison-based drug offender 

### sentencing alternative (DOSA). Nakamura claims that the court did not meaningfully consider his request for a DOSA. We affirm because the trial court didconsiderNakamura's requestand exercised itsdiscretionto impose a standard range sentence instead of a DOSA. FACTS 

### Christopher Nakamura was charged with possession of a controlled substance, possession of a controlled substance with intent to manufacture or 

### deliver, and possession of a stolen vehicle. He entered the Snohomish County 

### Superior Court adult drug treatment court(ADTC) program forall three crimes in February 2013. InJanuary2015,the court terminated himfromtheADTC program because of a failed urinary analysis (UA) that would have required "him to be in 

### drug court beyond the 24 month maximum."1 Thecaseproceeded to a benchtrial on agreed documentary evidence. The

Clerk's Papers (CP) at 38, 151, 241.No. 73430-0-1 / 2 

### court found Nakamura guilty on all three charges. The court agreed to delay sentencing so that the Department of Corrections (DOC) could evaluate Nakamura's eligibility for a DOSA. The DOC concluded that Nakamura was 

### eligible for a DOSA, but found that he was "a questionable candidate for a DOSA 

### sentence" and recommended a standard range sentence instead.2 Atsentencing, the State agreed withthe DOC's recommendation and urged the courtto impose a sentence at the high end ofthe standard range. Nakamura 

### argued that he would benefit from a DOSA and had eleven friends and family members testify on his behalf. 

### In its oral ruling, the court noted that, despite failing the UA, Nakamura maintained that he had not used any drugs. The court commented that it did not 

### think thattherewas a point to placing Nakamura in treatment, because Nakamura would not admit that he had been using. It denied Nakamura's request and sentenced him to a high end standard range foreach of his charges. Nakamura appeals. ANALYSIS 

### Nakamura argues that the trial court did not meaningfully consider his 

### requestfor a DOSA. We rejectthisargument because the record shows that the trial court didconsiderthe request butexercised its discretion to deny it. 

### Foreligible offenders, thecourtmay imposea DOSA instead of a standard range sentence. RCW9.94A.660. Fora prison-basedDOSA, theoffenderserves "one-half the midpoint of the standard range or twelve months, whichever is

2 CP at 316-17.No. 73430-0-1 / 3 greater" in a state facility and the other half in community custody, "which must include appropriate substance abuse treatment" in an approved program. RCW 9.94A.662(1)(a),(b). While incarcerated, the offender receives appropriate substance abuse treatment. RCW 9.94A.662(2). Ifthe offender willfullyviolates the conditions of his community custodyor is terminated from the program, he may be required to serve the rest of his sentence. RCW 9.94A.662(3). Generally, defendants may not seek review of a sentencing court's discretionary decision not to grant a DOSA. State v. Bramme, 115 Wn. App. 844, 850, 64 P.3d 60 (2003). But a defendant may appeal his sentence ifthe "court refuse[d] to exercise its discretion at all." State v. Smith, 118 Wn. App. 288, 292, 75 P.3d 986 (2003). Every eligible defendant is entitled to request a DOSA and 

### have the court actually consider that request. State v. Grayson. 154 Wn.2d 333, 342,111 P.3d 1183 (2005). Thefailure to considera DOSA "is effectively a failure to exercise discretion and is subjectto reversal." Gravson, 154 Wn.2d at 342. Here, the trial court meaningfully considered whetherto grant Nakamura's 

### request for a DOSA. The oral ruling shows that the trial court decided to deny Nakamura's request primarilybecause thejudge believed that, given Nakamura's denial of his recent drug use, he was not amenable to treatment: You don't need treatment because you claim you didn't use. So you 

### want to take up bed space in a therapeutic setting where you will maintain that you didn't use. How is that beneficial to any other 

### participants who readily admit that they did use? But you're there 

### saying you didn't use. It's hard for me to give you that opportunity, I can't do iU3] Accordingly, we affirmthe trial court's exercise ofdiscretion.
3Verbatim Report ofProceedings (April 17, 2015) at 22-23. 3No. 73430-0-1/4 Nakamura argues thatthe trial courtabused its discretion because it "relied solely on Mr. Nakamura's negative conduct" and "refused to consider Mr. 

### Nakamura's positive achievements after his termination from drug court."4 We have previously held that "[fjailure of a candidate to successfully complete drug
court ... is a tenable basis for the exercise of the court's discretion to decline to grant a DOSA." Smith. 118 Wn. App. at 292. The trial court properly considered Nakamura's performance in ADTC, instead of his efforts aftertermination. Further, there is no reason to believe that the court ignored Nakamura's
successes or "conflated the standards for termination from drug court with the 

### person's eligibilityfor a DOSA."5 The court heard testimony and read letters from many ofNakamura's friends and family explaining why they believed Nakamura could benefit from a DOSA. But the court also received the DOC's assessment 

### that, although Nakamura was eligible for a DOSA, itrecommended that the court impose a standard range sentence. Finally, the court drew on its ownexperiences with Nakamura in drug court. It decided not to grant Nakamura's request. This

was not error. Affirmed.

WE CONCUR:

4Br. ofAppellant at 5-6. 5Br. ofAppellant at 6. 

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