IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

KEVIN P. EHLERT,

Appellant.

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No. 37780-6-III

PUBLISHED OPINION

LAWRENCE-BERREY, J. — Under RCW 9.94A.660(1), an offender is eligible for a 

drug offender sentencing alternative (DOSA) if they meet seven conditions. One 

condition requires the offender to not have “received” a DOSA more than once in the 

prior 10 years before the current offense. RCW 9.94A.660(1)(g). 

Four years before Kevin Ehlert’s current offense, a court imposed two DOSA 

sentences on separate days but ordered that they be served concurrently. The question 

presented is whether a person “receives” a DOSA at sentencing or whether a person 

“receives” a DOSA through a course of treatment and rehabilitation. We hold that a 

person “receives” a DOSA through a course of treatment and conclude that Ehlert’s prior 

FILED

OCTOBER 12, 2021

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 37780-6-III

State v. Ehlert

2

concurrent sentences do not render him ineligible for a DOSA. We remand for the trial 

court to decide whether to grant Ehlert a DOSA.

FACTS

Prior DOSA sentences

In 2016, Ehlert was terminated from drug court on several charges unrelated to the 

current offenses. The charges were tried in two bench trials. Both trials resulted in guilty 

verdicts. Separate DOSA sentences were entered within weeks of each other. The 

resulting sentences were expressly made to run concurrent with each other. Ehlert 

successfully completed his DOSA in early June 2020.

Current offenses

On June 17, 2020, police responded to a reported burglary at a Fred Meyer store in 

Spokane Valley, Washington. Surveillance footage showed a man driving a silver 

minivan pull up near the garden center, cut a padlock with bolt cutters, enter the gate, and 

remove several pieces of store merchandise. The store’s loss prevention officer 

recognized Ehlert and his distinctively damaged silver minivan from previous 

investigations. 

Police arrested Ehlert later that day while he was driving the minivan. The missing 

merchandise was not in the van. During a search incident to arrest, police discovered 
No. 37780-6-III

State v. Ehlert

3

under one-half of a gram of methamphetamine in Ehlert’s front pocket. 

The State charged Ehlert by amended information with second degree burglary 

(count 1), third degree malicious mischief (count 2), second degree retail theft with 

special circumstances (count 3), and possession of a controlled substance (count 4). 

A jury found Ehlert guilty as charged. 

Sentencing on current offenses

Ehlert requested a prison-based DOSA with all convictions running concurrent

with one another. The State opposed the request, contending Ehlert was ineligible under 

the DOSA statute because he had two prior DOSA sentences. Ehlert responded that 

because the two DOSA sentences were the subject of only one course of treatment, they 

should count as only one DOSA sentence for eligibility purposes. The court remarked 

that a DOSA would be appropriate for Ehlert but concluded that the statute removed its 

discretion. The court accordingly imposed a standard range concurrent sentence. 

Ehlert timely appealed. 

ANALYSIS

DOSA ELIGIBILITY 

Ehlert contends the sentencing court erred in interpreting RCW 9.94A.660 to 

preclude his eligibility for a prison-based DOSA sentence. We agree. 
No. 37780-6-III

State v. Ehlert

4

The DOSA statute authorizes a court to impose an alternative sentence, including 

substance abuse treatment and rehabilitation incentives, when this would be in the best 

interests of the defendant and the community. State v. Grayson, 154 Wn.2d 333, 343, 111 

P.3d 1183 (2005). The DOSA program is part of the Sentencing Reform Act of 1981 

(SRA), chapter 9.94A RCW, the purposes of which include protecting the public and 

offering offenders the opportunity to improve themselves. See RCW 9.94A.010. Under a 

DOSA sentence, the offender serves one-half of the standard range sentence in prison and 

the remaining one-half of the sentence in the community with supervised treatment. 

Grayson, 154 Wn.2d at 337-38. A DOSA sentence may be revoked for noncompliance. 

State v. Van Noy, 3 Wn. App. 2d 494, 498, 416 P.3d 751 (2018). Accordingly, DOSA 

participants have significant incentive to comply with conditions because failure to do so 

results in them serving the remainder of their sentence in prison. RCW 9.94A.660(2); 

Grayson, 154 Wn.2d at 337-38.
No. 37780-6-III

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To be eligible for a DOSA sentence, offenders must meet seven conditions. See

former RCW 9.94A.660(1)(a)-(g) (2019).

1

 The condition at issue requires “[t]he offender 

has not received a drug offender sentencing alternative more than once in the prior ten 

years before the current offense.” RCW 9.94A.660(1)(g). 

The meaning of a statute is a question of law that we review de novo. State v. 

Wooten, 178 Wn.2d 890, 895, 312 P.3d 41 (2013). When engaging in statutory 

interpretation, our goal is to ascertain the legislature’s intent. State v. Yancey, 193 Wn.2d 

26, 30, 434 P.3d 518 (2019). “The surest indication of legislative intent is the language 

enacted by the legislature, so if the meaning of a statute is plain on its face, we ‘give 

effect to that plain meaning.’” State v. Ervin, 169 Wn.2d 815, 820, 239 P.3d 354 (2010) 

 

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(a) The offender is convicted of a felony that is not a violent 

offense or sex offense and the violation does not involve a sentence

enhancement under RCW 9.94A.533(3) or (4);

(b) The offender is convicted of a felony that is not a felony driving 

while under the influence . . . ;

(c) The offender has no current or prior convictions for a sex 

offense . . . ;

(d) For a violation of the Uniform Controlled Substances Act . . .,

the offense involved only a small quantity of the particular controlled 

substance as determined by the judge . . . ;

(e) The offender has not been found by the United States attorney 

general to be subject to a deportation detainer or order . . . ;

. . . .

(g) The offender has not received a drug offender sentencing 

alternative more than once in the prior ten years before the current offense.
No. 37780-6-III

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(internal quotation marks omitted) (quoting Dep’t of Ecology v. Campbell & Gwinn, LLC, 

146 Wn.2d 1, 9, 43 P.3d 4 (2002)). Plain meaning may be discerned “by considering the 

text of the provision in question, the context of the statute in which the provision is found, 

related provisions, and the statutory scheme as a whole.” State v. Dennis, 191 Wn.2d 

169, 172-73, 421 P.3d 944 (2018). If there is more than one reasonable interpretation of 

the plain language, then the statute is ambiguous and we may turn to other interpretive 

aids, including relevant case law. Id. at 173; Campbell & Gwinn, 146 Wn.2d at 12. 

The parties focus on the meaning of “received” in RCW 9.94A.660(1)(g). The 

term is not defined in the statute so we consider its common and ordinary meaning. 

HomeStreet, Inc. v. Dep’t of Revenue, 166 Wn.2d 444, 451, 210 P.3d 297 (2009). We 

may look to the dictionary to determine this meaning. Id. “Received” is defined as “to 

take in or accept” and “to be the subject of : UNDERGO, EXPERIENCE.” MERRIAMWEBSTER’S DICTIONARY AND THESAURUS 670 (2007).

The plain language of the statute is susceptible to two reasonable interpretations. 

One is the State’s interpretation: an offender receives—takes or accepts—a DOSA each 

time they are given a DOSA sentence. That would disqualify Ehlert from a DOSA 

because he received two DOSA sentences. The other is Ehlert’s interpretation: an

offender receives—undergoes or experiences—a DOSA each time they receive a course 
No. 37780-6-III

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of treatment. This would not disqualify Ehlert from a DOSA because his prior concurrent 

DOSA sentences caused him to undergo or experience only one course of treatment. We 

conclude the subsection is ambiguous, so we must go beyond the statute’s language to 

determine the legislature’s intent.

Both Ehlert and the State direct us to the court’s analysis of the legislative intent in 

Van Noy. There, the defendant committed several crimes in Pierce, King, and Snohomish 

Counties. 3 Wn. App. 2d at 495. Prior to sentencing on the Snohomish County charge, 

King County sentenced the defendant to a DOSA to be served concurrent with the Pierce 

County DOSA. Id. at 496. The Snohomish County court determined that the prior 

concurrent sentences disqualified the defendant from a DOSA sentence. Id. The 

defendant appealed. Id. at 497.

The Van Noy court did not construe the word “received” in reaching its decision. 

Rather, it construed the last four words in RCW 9.94A.660(1)(g)—“before the current 

offense.” Id. at 498. The Van Noy court held that “before the current offense” means

before the offender committed the current offense. Id. at 500. The court concluded that 

the defendant was eligible for a DOSA because he committed the current offense before 

he received his two DOSA sentences. Id. at 503.
No. 37780-6-III

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In reaching its conclusion, the Van Noy court discussed the legislative intent of 

RCW 9.94A.660(1)(g):

In context, this condition . . . directs the sentencing court to consider . . . 

whether [the current offense] occurred despite prior DOSA sentences.

. . . While a DOSA serves to provide meaningful substance abuse 

treatment and rehabilitation incentives, opportunities for rehabilitation are 

not unlimited. Grayson, 154 Wn.2d at 338, 343. . . . [T]he commission

of a drug-related offense despite more than one DOSA . . . is evidence 

that a DOSA is not appropriate. The limitation on eligibility in 

RCW 9.94A.660(1)(g) addresses this scenario and makes such an offender 

ineligible.

Id. at 500 (emphasis added). Indeed, opportunities for treatment and rehabilitation are not 

unlimited. The legislature limited these opportunities to not “more than once in the prior 

ten years before the current offense.” RCW 9.94A.660(1)(g). Because two DOSA 

sentences served concurrently provide an offender with only one opportunity for 

treatment and rehabilitation, we hold that such sentences do not render an offender 

ineligible under RCW 9.94A.660(1)(g) for a subsequent DOSA.

The State directs us to language in Van Noy that is contrary to our holding. In a 

footnote, the Van Noy court said that the concurrent King County and Pierce County 

sentences were not a single DOSA. Van Noy, 3 Wn. App. 2d at 497 n.2. This statement 

is nonbinding dicta. The court decided the question before it on a different basis. Also, 

the dicta is inconsistent with the above-quoted discussion in Van Noy, which confirms 
No. 37780-6-111 

State v. Ehlert 

that the legislature intended to give an offender a second opportunity for treatment and 

rehabilitation. 

Ehlert received only one opportunity for treatment and rehabilitation. 

Unfortunately, he reoffended soon after completing his concurrent DOSA sentences. 

Nevertheless, the legislature intended that he have a second opportunity for treatment and 

rehabilitation. Ehlert is eligible for a DOSA despite receiving one course of treatment in 

two concurrent sentences. We remand for the trial court to exercise its discretion whether 

to permit Ehlert a DOSA. 2 

Remand for resentencing. 

Lawrence-Berrey, J. \ 

j 

WE CONCUR: 

Pennell, C.J. 

2 In supplemental briefing, the parties agree that Ehlert's possession of a 

controlled substance conviction must be vacated pursuant to State v. Blake, 197 Wn.2d 

170,481 P.3d 521 (2021). On remand, we direct the trial court to strike that conviction 

from Ehlert's felony judgment and sentence. 

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