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SUSAN L. CARLSON

SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Petitioner,

V.

JAMBS AUSTIN YANCEY,

Respondent.

NO. 95992-7

EN BANC

Filed FEB 1 4 2019

GORDON McCLOUD, J.—James Austin Yancey, a military veteran with no

prior criminal history, was caught selling drugs within a school zone. Yancey

pleaded guilty and asked the trial court for a lenient sentence—either a first-time

offender waiver or a residential-based drug offender sentencing alternative (DOSA).

ROW 9.94 A.660. The State objected to the residential-based DOS A because the

relevant DOSA statute allows only aprwow-based—not a residential-hdiSQd—DOSA

for defendants with a standard range like the one Yancey had. ROW 9.94A.660(3).

Over the State's objection, the trial court imposed a residential-based DOSA, and

the Court of Appeals affirmed.
State V. Yancey (James Austin), No. 95992-7

We reverse and remand for a new sentencing hearing. Based on the plain

language of the DOS A statute, the trial court lacked discretion to sentence Yancey

to a residential-based DOSA.

Factual and Procedural Background

Yancey, a military veteran suffering from posttraumatic stress disorder, twice

sold his prescription Suboxone strips to a person who turned out to be a police

informant. Clerk's Papers (CP) at 1-3, 26. Suboxone contains buprenorphine, a

schedule III controlled substance. CP at 4-5. Both sales took place within 1,000

feet of a school bus stop. CP at 4-5, 74.

The State charged Yancey with two counts of delivering the drug and added

a sentence enhancement to each count for delivering within 1,000 feet of a school

bus stop. CP at 4-5. Prior to these charges, Yancey had no criminal record.' CP at

66. Given his offender score and the seriousness level of the crimes, Yancey faced

a standard sentence range of 12 to 20 months, plus a 24-month sentence

enhancement, for each count. See id. Accordingly, his total standard range was 36

to 44 months per count. Id.

The State initially offered a plea deal in which it would drop one count and

recommend a prison-based DOSA for the other. CP at 41. Under the proposed deal.

' He was caught selling cocaine prior to his military service, but the State dropped

the charge after Yancey himself worked as a police informant. CP at 39, 42-48.

2
State V. Yancey (James Austin), No. 95992-7

Yancey would have served 20 months in prison and an additional 20 months in

community custody. Id. Yancey twice counteroffered to plead guilty if the State

removed the school-zone enhancements so that he could serve a residential chemical

dependency treatment-based (residential-based), rather than a prison-based, DOSA.

CP at 26-27. The State refused both counteroffers. Id.

Yancey ultimately pleaded guilty to both counts and the corresponding

enhancements. CP at 9-19, 65. Yancey sought either a first-time offender waiver,

CP at 27, or a residential-based DOSA, CP at 34. The State opposed the first-time

offender waiver. CP at 37-40. The State also opposed the residential-based DOSA,

arguing that the DOSA statute bars this alternative sentence when the midpoint of

an offender's standard range exceeds 24 months—and Yancey's midpoint was 40

months. CP at 61-63 (citing RCW 9.94A.660(3)). Nevertheless, the trial court

sentenced Yancey to a residential-based DOSA. CP at 69.^

The State appealed, again arguing that the trial court lacked statutory

discretion to impose a residential-based DOSA. CP at 78. In a split decision, the

Court of Appeals held that the trial court may waive sentence enhancements to get

to a standard sentence range that is low enough to accommodate the residential-

^ The State—the party that filed the notice of appeal and the petition for review—

failed to provide the sentencing transcript as part of the record on review. It is therefore

impossible to know the trial court's reasoning or goals in sentencing Yancey to a

residential-based DOSA.
State V. Yancey (James Austin), No. 95992-7

based DOSA's sentence-length prerequisites. State v. Yancey, 3 Wn. App. 2d 735,

740, 418 P.3d 157 (2018) (interpreting State v. Mohamed, 187 Wn. App. 630, 350

P.3d 671 (2015)). In Yancey's case, waiving a school-zone enhancement would

reduce the midpoint of his standard range from 40 months to 16 months, making a

residential-based DOS A possible. Id. at 739-40. Lacking a sentencing transcript,

the Court of Appeals ultimately remanded "to the sentencing court to either confirm

or exercise waiver of the enhancements or to resentence Yancey if the court did not

intend to waive the enhancements." Id. at 741.

The dissent argued that courts may not waive the sentence enhancements and

impose a DOSA. Id!, at 742-47 (Korsmo, J., dissenting). The dissent would have

"remanded for the trial court to consider either a prison-based DOSA or a standard

range sentence." Id. at 747.

We granted review. State v. Yancey, 191 Wn.2d 1012 (2018), and now reverse.

Analysis

To resolve this case, we must interpret ROW 9.94A.660.^ We review the

meaning of a statute, a question of law, de novo. State v. Wooten, 178 Wn.2d 890,

^ The trial court must sentence under the statutes in effect at the time of the crimes.

Yancey committed his crimes in April 2015. CP at 4-5. The current statutes, in relevant

part, remain the same as the former statutes that were in effect at the time of Yancey's

crimes.
State V. Yancey (James Austin), No. 95992-7

895, 312 P.3d 41 (2013) (citing Dep't of Ecology v. Campbell & Gwinn, LLC, 146

Wn.2d 1,9,43 P.3d 4 (2002)).

In interpreting a statute, we strive to "ascertain and carry out the legislature's

intent." State v. Bigsby, 189 Wn.2d 210, 216, 399 P.3d 540 (2017) (citing Campbell

& Gwinn, LLC, 146 Wn.2d at 9). If the legislature's intent is clear from the statute's

plain meaning, then we give effect to that plain meaning. Id. "Plain meaning is

'discerned from the ordinary meaning of the language at issue, the context of the

statute in which that provision is found, related provisions, and the statutory scheme

as a whole.'" State v. James-Buhl, 190 Wn.2d 470, 474, 415 P.3d 234 (2018)

(quoting State v. Engel, 166 Wn.2d 572, 578, 210 P.3d 1007 (2009)). "When

ascertaining the plain meaning of the statute, we 'must not add words where the

legislature has chosen not to include them,' and we must 'construe statutes such that

all of the language is given effect.'" Id. (quoting Rest. Dev., Inc. v. Cananwill, Inc.,

150 Wn.2d 674, 682, 80 P.3d 598 (2003)).

Generally, the trial court "shall impose a sentence . . . within the standard

sentence range." RCW 9.94A.505(2)(a)(i). But the court may deviate from the

standard range in statutorily specified circumstances. E.g., RCW 9.94A.535

(exceptional sentences), .650 (first-time offender waiver), .660 (DOSA). The DOSA

program allows the trial court "to give eligible nonviolent drug offenders a reduced

sentence, treatment, and increased supervision in an attempt to help them recover
State V. Yancey (James Austin), No. 95992-7

from their addictions." State v. Grayson, 154 Wn.2d 333, 337,111 P.3d 1183 (2005)

(citing RCW 9.94A.660). The trial court may impose a prison-based DOSA or, in

some circumstances, a residential-based DOSA. RCW 9.94A.660(3).

In this case, the parties dispute whether this is one of those circumstances that

allows for a residential-based DOSA. This dispute boils down to the correct

interpretation of the following statute, specifically the emphasized portions:

If the sentencing court determines that the offender is eligible for an

alternative sentence under this section and that the alternative sentence

is appropriate, the court shall waive imposition of a sentence within the

standard sentence range and impose a sentence consisting of either a

prison-based alternative under RCW 9.94A.662 or a residential

chemical dependency treatment-based alternative under RCW

9.94A.664. The residential chemical dependency treatment-based

alternative is only available if the midpoint of the standard range is

twenty-four months or less.

Id. (emphasis added).

Yancey argues that the first emphasized portion grants a trial court broad

discretion to alter a standard sentence range. Resp't's Suppl. Br. at 5-8. Based on

Yancey's reading, the trial court appropriately "waive[d] imposition of a sentence

within the standard sentence range" of 36 to 44 months—a range that, based on the

statute's last sentence, would have barred the trial court from imposing a residentialbased DOSA—and instead imposed a different sentence with a midpoint of 24

months or less. From this argument it follows that the trial court may choose any
State V. Yancey (James Austin), No. 95992-7

midpoint it wants in order to accommodate the court's personal preference for or

against a residential-based DOSA.

The State argues that the trial court's discretion to waive the standard range is

constrained by the remainder of the statute. Suppl. Br. of Pet'r at 7-8, 15-16. Based

on the State's reading, the trial court certainly can waive imposition of a sentence

within the standard range. But the court cannot then impose any sentence that it sees

fit. The court may impose only a prison-based or a residential-based DOSA—and

only a prison-based DOSA if the midpoint of the standard sentence range exceeds

24 months. ROW 9.94A.660(3).

The State is correct. Immediately after the statute instructs the court to "waive

imposition of a sentence within the standard sentence range," it expressly tells the

court what it is to do next: "impose a sentence consisting of either a prison-based

alternative under ROW 9.94A.662 or a residential chemical dependency treatmentbased alternative under ROW 9.94A.664." ROW 9.94A.660(3). And those crossreferenced statutes provide detailed instructions on how to calculate prison-based

and residential-based DOSAs. See ROW 9.94A.662, .664. Nowhere does the statute

permit the court to, for instance, "impose a sentence based on the underlying count,

absent any enhancements." We will not "'add words where the legislature has

chosen not to include them.'" James-Buhl, 190 Wn.2d at 474 (quoting Cananwill,

150 Wn.2d at 682). We will, however, "'construe statutes such that all of the
State V. Yancey (James Austin), No. 95992-7

language is given effect.'" Id. (quoting Cananwill, 150 Wn.2d at 682). And this

statute explicitly bars the court from imposing a residential-based DOSA if the

midpoint of the standard sentence range exceeds 24 months.

Yancey claims that Mohamed supports his argument. In that case, a jury

found Mohamed guilty of four counts of delivery of cocaine, three of which included

enhancements. Mohamed, 187 Wn. App. at 634-35. Based on the convictions,

Mohamed faced a standard sentence range of 20 to 60 months for each conviction

of cocaine delivery, plus three 24-month sentence enhancements. Id. at 635.

Accordingly, Mohamed's total standard range for each enhanced conviction was 44

to 84 months, with a midpoint of 64 months. See id. at 645."^ Mohamed asked the

trial court to impose a DOSA. Id. at 63 5. But the trial court believed the law required

Mohamed to serve the full 72 months of enhancements in prison, even if it imposed

a DOSA sentence. Id. at 635-36. This erroneous belief led the trial court to reject

Mohamed's DOSA request. Id. at 636.

The Court of Appeals in Mohamed explained that the trial court, under the

DOSA statute, may "waive imposition of a sentence within the standard sentence

^ The court in Mohamed did not express an opinion as to whether the three

enhancements had to run consecutively to each other or just consecutively to the underlying

conviction. 187 Wn. App. at 645. We subsequently resolved that issue, holding that

although enhancements must run consecutively to their underlying conviction, they need

not run consecutively across counts. State v. Conover, 183 Wn.2d 706, 717-19, 355 P.3d

1093 (2015).

8
State V. Yancey (James Austin), No. 95992-7

range." Id. at 638. And the standard sentence range includes "the base sentence

range plus enhancement of such range." Id. at 641; see also State v. Silva-Baltazar,

125 Wn.2d 472, 475, 886 P.2d 138 (1994) ("An enhancement increases the

presumptive or standard sentence."); In re Postsentencing Review of Gutierrez, 146

Wn. App. 151, 155, 188 P.3d 546 (2008) ("A sentence range increased by an

enhancement is still a standard range sentence."). It follows, the Mohamed court

concluded, that "a sentencing court may waive the enhancements as part of the

standard sentence range under a DOS A . . . ." 187 Wn. App. at 641. The court

remanded to the trial court for a new sentencing hearing, where "the court will have

the opportunity to consider the full range of sentencing options available to it." Id.

at 647.

The Mohamed court broadly framed the issue as "whether the trial court had

the authority to waive the 24-month school zone enhancements." Id. at 636 (citing

ROW 9.94A.533(6)). This framing led the Court of Appeals in this case to interpret

Mohamed as precedent for the notion that a trial court may waive a school-zone

enhancement, reducing the midpoint enough to accommodate a residential-based

DOSA. Yancey, 3 Wn. App. 2d at 739-40.

This interpretation is incorrect. The Mohamed court simply held that the trial

court may waive the standard sentence range—a range that includes any

enhancements—and impose a DOSA. 187 Wn. App. at 638-47. For example, the
State V. Yancey (James Austin), No. 95992-7

trial court in Yancey's case had discretion to waive the standard range of 36 to 44

months, a range that included the 24-month enhancement, and impose a prison-based

DOS A. A prison-based DOS A would have sent Yancey to prison for 20 months

followed by 20 months of community custody. See ROW 9.94A.662(1). He did not

have to serve the full 24-month enhancement in prison, contrary to what the trial

court in Mohamed believed. Instead, as the Court of Appeals in Mohamed noted,

that enhancement was subsumed into Yancey's standard range, which in turn may

be waived and replaced by a prison-based DOSA. Had the trial court in this case

imposed a prison-based DOSA, Yancey would have served fewer months in prison

(20 months) than the sentence enhancement itself called for (24 months). This is

what the Mohamed court meant when it discussed "waiving enhancements." 187

Wn. App. at 645.

In sum, we hold that the statute is clear: the trial court may not "waive"

sentence enhancements or portions of the base sentence to get to a range that is low

enough to accommodate the residential-based DOSA's sentence-length

prerequisites.^ We therefore reverse the Court of Appeals. We do not know the trial

court's reasons for imposing a residential-based DOSA as opposed to a prison-based

^ The State claims that Yancey's reading of the statute would permit the trial court

to impose an inappropriate hybrid sentence consisting of an exceptional sentence and a

DOSA. In dissent. Judge Korsmo made the same argument. Yancey, 3 Wn. App. 2d at

742-47 (Korsmo, J., dissenting). But the trial court in this case did not impose an

exceptional sentence, so we do not address that issue.

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State V. Yancey (James Austin), No. 95992-7

DOSA or a standard range sentence. Nor do we know its reasoning concerning

Yancey's request for a first-time offender waiver. We therefore remand for a full

resentencing.

Conclusion

The legislature's intent is clear from the plain meaning of the DOSA statute.

The trial court deviated from that plain meaning by imposing a residential-based

DOSA. Accordingly, we reverse the Court of Appeals and remand for a full, new

sentencing hearing.

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State V. Yancey (James Austin), No. 95992-7

WE CONCUR:

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