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.J^^SXTK. 'jusricd Jy 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 relevantDOSA statute allows only aprwow-based—notaresidential-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 ofAppeals affirmed.State V. Yancey (JamesAustin),No.95992-7

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

A statute, the trial court lacked discretion to sentence Yancey to a residential-based DOSA. Factualand ProceduralBackground 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 ofa school bus stop. CP at 4-5,74. The State charged Yancey with two counts ofdelivering 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 ofthe 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 aprison-based DOSA for the other. CP at41. Under the proposed deal.

' He was caught selling cocaine prior to his military service, but the State dropped the charge after Yancey himselfworked as a police informant. CP at 39,42-48. 2State V. Yancey (JamesAustin),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 ifthe 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 ofAppeals 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 ofappeal and the petition for review— failed to provide the sentencing transcript as part ofthe 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 (JamesAustin),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 ofhis 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 ofAppeals ultimately remanded "to the sentencing courtto either confirm
or exercise waiver ofthe enhancements or to resentence Yancey ifthe 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. Wegranted review.Statev. 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 ofa statute, a question oflaw,de novo. State v. Wooten, 178 Wn.2d 890,

^ The trial court must sentence under the statutes in effect at the time ofthe 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 (JamesAustin),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 outthe legislature's 

### intent." State v. Bigsby, 189 Wn.2d 210,216,399P.3d 540(2017)(citing Campbell & Gwinn,LLC,146 Wn.2d at 9). Ifthe 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 ofthe language at issue, the context of the 

### statute in which thatprovision 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 notto include them,'and we must 'construe statutes such that all ofthe 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 offenderwaiver),.660(DOSA). TheDOSA program allows the trial court "to give eligible nonviolent drug offenders a reduced sentence, treatment, and increased supervision in an attempt to help them recoverState V. Yancey (JamesAustin),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 ofthose circumstances that allows for a residential-based DOSA. This dispute boils down to the correct interpretation ofthe 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 courtshallwaive imposition of a sentence within the standard sentence range and impose a sentence consisting ofeither 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 ifthe midpoint ofthe 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 ofa sentence within the standard sentence range" of36 to 44 months—a range that,based on the statute's last sentence,would have barred the trial courtfrom imposing aresidentialbased 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 anyState V. Yancey (JamesAustin),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 thatthe trial court's discretion to waive the standard range is constrained by the remainder ofthe statute. Suppl.Br.ofPet'r at 7-8, 15-16. Based 

### on the State's reading, the trial court certainly can waive imposition ofa sentence within the standard range. Butthe courtcannotthen 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 ifthe midpoint ofthe standard sentence range exceeds 24 months. ROW 9.94A.660(3). The State is correct. Immediately after the statute instructs the courtto "waive 

### imposition ofa sentence within the standard sentence range," it expressly tells the court what it is to do next: "impose a sentence consisting ofeither 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 cross

### referenced statutes provide detailed instructions on how to calculate prison-based and residential-based DOSAs. SeeROW 9.94A.662,.664. Nowhere doesthe 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 theState V. Yancey (JamesAustin),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 ofthe standard sentence range exceeds 24 months. Yancey claims that Mohamed supports his argument. In that case, a jury found Mohamed guilty offour counts ofdelivery ofcocaine,three ofwhich 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 of64 months. See id. at 645."^ Mohamed asked the trial courtto impose aDOSA.Id. at635. Butthe trial courtbelieved the law required Mohamed to serve the full 72months ofenhancements in prison,even ifit imposed
a DOSA sentence. Id. at 635-36. This erroneous beliefled 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 enhancementshad to run consecutively to each other orjustconsecutively 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). 8State V. Yancey (JamesAustin),No.95992-7

range." Id. at 638. And the standard sentence range includes "the base sentence range plus enhancement ofsuch 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 PostsentencingReview ofGutierrez, 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 ofsentencing 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 ofAppeals 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 thatthe 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,theState V. Yancey (JamesAustin),No.95992-7



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

### months,arange thatincluded the 24-month enhancement,and impose aprison-based DOS A. A prison-based DOS A would have sent Yancey to prison for 20 months followed by 20months ofcommunity custody. SeeROW 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 ofAppeals 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 ofthe base sentence to get to a range that is low enough to accommodate the residential-based DOSA's sentence-length 

### prerequisites.^ Wetherefore reverse the CourtofAppeals. We do notknow thetrial court's reasons for imposing aresidential-based DOSA as opposed to aprison-based 

### ^ The State claims that Yancey's reading ofthe 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. 10State V. Yancey (JamesAustin),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 ofthe DOSA statute. The trial court deviated from that plain meaning by imposing a residential-based DOSA. Accordingly, we reverse the Court ofAppeals and remand for a full, new sentencing hearing.

11State V. Yancey (JamesAustin),No.95992-7

WE CONCUR: 

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