IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

 v.

JOSE RICO COLON,

 Appellant.

No. 85043-1-I

DIVISION ONE

UNPUBLISHED OPINION

MANN, J. — Jose Colon appeals his sentence for felony violation of a no-contact 

order. Colon argues that the sentencing court failed to follow the statutory procedure in 

denying his request for a mental health sentencing alternative (MHSA). We reverse and 

remand for consideration of Colon’s request for a MHSA within the framework required 

by the statute. 

I.

On April 14, 2021, Colon was arrested outside the apartment of his ex-wife and 

children. At the time, two no-contact orders were active and valid preventing Colon 

from contacting his ex-wife or coming within 1,000 feet of her home. Colon had recently 

been released from custody after serving a sentence for a prior no-contact order 
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violation. Colon was also under the conditions of a drug offender sentencing alternative 

(DOSA). 

The State charged Colon with felony violation of a no-contact order based on two 

prior convictions for violating an order. The State further alleged that Colon committed 

the crime against an intimate partner, making it a crime of domestic violence. A jury 

found Colon guilty as charged. 

Colon had an extensive history of domestic violence toward the victim—including 

three previous violations of no-contact orders, three harassment convictions, and one 

assault conviction. As a result, the State requested a sentence within the standard 

range, 60 months. Colon requested a MHSA or, in the alternative, an exceptional 

sentence downward of 45 months. 

The Department of Corrections (DOC) prepared a presentence investigation of 

Colon. The report showed that Colon had been diagnosed with complex posttraumatic 

stress disorder and borderline personality disorder. The victim told the DOC 

investigator that she did not believe a MHSA was appropriate for Colon because “he 

would only comply with programming when mandated by the court and would not 

genuinely accept responsibility for his behaviors.” The report concluded that Colon “has 

not been successful on community supervision for other sentencing alternatives and 

would require a very substantial change from his past demonstrated behavior for him to 

succeed on this sentencing alternative.” DOC recommended a sentence within the 

standard range but gave additional recommendations if Colon were sentenced to a

MHSA. 
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The sentencing court acknowledged that Colon was technically eligible for a 

MHSA. But the court denied Colon’s requests for a MHSA or an exceptional sentence 

downward.1 The court imposed the standard range sentence of 60 months. 

Colon appeals. 

II.

Colon argues that the sentencing court failed to meaningfully consider his 

request to be sentenced under the MHSA and rejected it based on a misinterpretation of 

the law. We agree. 

Generally, a sentence within the standard range may not be appealed. RCW 

9.94A.585(1). But “this rule does not preclude a defendant from challenging on appeal 

the underlying legal determinations by which the sentencing court reaches its decision.” 

State v. McFarland, 189 Wn.2d 47, 56, 399 P.3d 1106 (2017). “[W]here a defendant 

has requested a sentencing alternative authorized by statute, the categorical refusal to 

consider the sentence, or the refusal to consider it for a class of offenders, is effectively 

a failure to exercise discretion and is subject to reversal.” State v. Grayson, 154 Wn.2d 

333, 342, 111 P.3d 1183 (2005).

When a sentencing court is asked to make a discretionary sentencing decision, 

the court must meaningfully consider the request in accordance with the applicable law. 

Grayson, 154 Wn.2d at 342. A sentencing court errs when “it refuses categorically to 

impose an exceptional sentence below the standard range under any circumstances” or 

when it operates under the “mistaken belief that it did not have the discretion to impose 

 1 Colon has not appealed the sentencing court’s denial of an exceptional sentence downward.
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a mitigated exceptional sentence for which [a defendant] may have been eligible.” State 

v. Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997); In re Pers. Restraint 

of Mulholland, 161 Wn.2d 322, 333, 166 P.3d 677 (2007).

Under RCW 9.94A.695(1), a defendant is eligible for a MHSA if:

(a) The defendant is convicted of a felony that is not a serious violent 

offense or sex offense;

(b) The defendant is diagnosed with a serious mental illness recognized 

by the diagnostic manual in use by mental health professionals at the time 

of sentencing;

(c) The defendant and the community would benefit from supervision and 

treatment, as determined by the judge; and

(d) The defendant is willing to participate in the sentencing alternative. 

The decision of whether to grant a MHSA request is within the sentencing court’s 

discretion:

After consideration of all available information and determining whether 

the defendant is eligible, the court shall consider whether the defendant 

and the community will benefit from the use of this sentencing alternative. 

The court shall consider the victim’s opinion whether the defendant should 

receive a sentence under this section. If the sentencing court determines 

that a sentence under this section is appropriate, the court shall waive 

imposition of the sentence within the standard range.

RCW 9.94A.695(4). 

A sentencing court abuses its discretion if it applies an incorrect legal standard. 

State v. Adamy, 151 Wn. App. 583, 587, 213 P.3d 627 (2009). When declining to 

sentence Colon to a MHSA, the sentencing court explained:

Both of the alternatives that you are requesting, Mr. Colon, imposes a 

requirement on me to make an exceptional sentence. The mental health 

sentence alternative would be an exceptional sentence and a concurrent 

with your current sentence out of Pierce County would also require me to 
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make findings that an exceptional sentence is appropriate. That too would 

be an exceptional downward.

The sentencing court ruled:

I cannot in reviewing all of the evidence that was presented at trial and the 

memoranda that is presented to me today find that exceptional 

circumstances exist such that I could grant either the mental health 

sentencing alternative, although you are technically eligible, I cannot make 

the appropriate findings to find that an exceptional sentence downward 

would be appropriate.

The sentencing court erred. A MHSA is not an exceptional sentence. See State 

v. Mohamed, 187 Wn. App. 630, 647, 350 P.3d 671 (2015) (“An exceptional sentence is 

separate from the alternative sentencing provisions of a DOSA or PSA.”). The 

sentencing court was not required to make findings that an exceptional sentence 

downward was appropriate. Instead, the sentencing court needed to consider the 

statutory factors in RCW 9.94A.695(4), including whether the defendant and the 

community would benefit from the use of a MHSA. 

III.

The State argues that if the sentencing court erred, any error was harmless and 

remand for resentencing is unnecessary. We disagree.

Remand for resentencing is often necessary when a sentence stems from a 

sentencing court’s erroneous interpretation of or belief about the governing law. State 

v. McGill, 112 Wn. App. 95, 100, 47 P.3d 173 (2002). But this court need not remand 

for resentencing “when the reviewing court is confident that the trial court would impose 

the same sentence” without the error. McGill, 112 Wn. App. at 100. 

In Grayson, the sentencing court denied Grayson’s request for a DOSA “because 

of the fact that the State no longer has money available to treat people who go through 
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a DOSA program.” 154 Wn.2d at 337. On appeal, the Supreme Court emphasized that 

the sentencing court had articulated no other reason for denying the DOSA. Grayson, 

154 Wn.2d at 342. The Court held that the sentencing court abused its discretion even 

though “there were ample other grounds to find that Grayson was not a good candidate 

for DOSA.” Grayson, 154 Wn.2d at 342.

Similarly, here, while there may be grounds to find that Colon is not a good 

candidate for a MHSA, the sentencing court failed to articulate them. Instead, the 

sentencing court said that Colon was “technically eligible” without articulating how Colon 

and the community would or would not benefit from supervision. We agree with the 

State that the court was concerned with Colon’s conduct, explaining: 

And here as I look at all of the circumstances, the fact that the victim in 

almost all of your cases is [your ex-wife] . . . the evidence indicated that 

you were communicating with her in violation of those no-contact orders 

. . . You were released . . . to Skagit County with restrictions on leaving the 

county, and yet you came to Thurston County where there was a specific 

no-contact order which indicated you should not be within a thousand feet 

of the residence where you were, and your position today is that you 

maintain your innocence. That’s troubling to the court.

But the court failed to address the considerations required under RCW 9.94A.695(4). 

The State has not met its burden of showing that the sentencing court followed 

the statute. Thus, we cannot say that the sentencing court would have imposed the 

same sentence had it properly considered a MHSA, remand is proper. McGill, 112 Wn. 

App. at 100-01.

We reverse and remand for consideration of Colon’s request for a MHSA within 

the framework required by the statute. 
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WE CONCUR: