Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                                                               FILED
                                                                           JAN 26, 2012
                                                                    In the Office of the Clerk of Court
                                                                  WA State Court of Appeals, Division III

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                                No.  29681-4-III
                                                )
                      Respondent,               )
                                                )   Division Three
              v.                                )
                                                )
TERRIL JAMES WALLACE,                           )   UNPUBLISHED OPINION
                                                )
                      Appellant.                )
                                                )

       Kulik, C.J.  --  Terril Wallace was arrested during a controlled drug buy conducted 

by the Quad Cities Drug Task Force.  After the buy was completed, L.H., a 17-year-old 

participant, told detectives that Mr. Wallace had injected her with methamphetamine.  

Mr. Wallace admitted to detectives that he injected L.H. with a syringe of 

methamphetamine. Mr. Wallace pleaded guilty to delivery of methamphetamine and to 

involving a minor in the delivery of methamphetamine.  The court denied Mr. Wallace's 

drug offender sentencing alternative (DOSA) request and sentenced him to the top of the 

range on both counts.  Mr. Wallace appeals the court's denial of his DOSA request.  We 

affirm the court's denial of a DOSA. 

No. 29681-4-III
State v. Wallace

                                            FACTS

       Mr. Wallace is an artist who has won statewide awards.  During his life, Mr. 

Wallace has been diagnosed with attention deficit hyperactivity disorder (ADHD), 

bipolar disorder, and post-traumatic stress disorder.  In 2009, Mr. Wallace was diagnosed 

with glaucoma.  

       On September 29, 2010, Mr. Wallace was arrested for his involvement in a 

controlled drug buy conducted by the Quad Cities Drug Task Force.  The confidential 

informant (CI) contacted H.H. about purchasing methamphetamine.  H.H. told the CI that 

she did not have any methamphetamine but that she would contact her 17-year-old sister, 

L.H.  H.H. informed the CI that L.H. was with Mr. Wallace, who was in possession of 

methamphetamine.  

       The CI contacted L.H. and together they arranged a time and place to meet Mr. 

Wallace.  Detectives watched the CI make contact with L.H. and Mr. Wallace.  In the 

debriefing, the detectives learned that Mr. Wallace had provided the methamphetamine 

and taken the money during the transaction.  Additionally, at some point, L.H. told 

detectives that Mr. Wallace had injected her with methamphetamine.  The detectives 

observed a needle mark near the underside of her elbow.  Mr. Wallace also admitted that 

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No. 29681-4-III
State v. Wallace

he injected L.H. in the crook of L.H.'s arm with a syringe of methamphetamine because 

he wanted her to have it done right.

       Mr. Wallace was charged with three felony counts: delivery of methamphetamine, 

involving a minor in the delivery of methamphetamine, and distribution of 

methamphetamine.  Mr. Wallace pleaded guilty to the first two counts and the State 

dismissed the third count pursuant to a plea agreement.  In the plea form, the State stated 

its opposition to Mr. Wallace's request for a DOSA.  The State recommended a sentence 

at the top of the range.  The court ordered a presentence examination by the Department 

of Corrections (DOC) to determine if Mr. Wallace was eligible for a DOSA.  

       At sentencing, the court considered whether Mr. Wallace was eligible for a DOSA 

and whether it was appropriate to grant the DOSA.  The parties stipulated that Mr. 

Wallace was eligible for a DOSA.  The court agreed.  But the court concluded that a 

DOSA was not appropriate here and sentenced Mr. Wallace to the top of the range on 

both counts. 

                                         ANALYSIS

       Review of a court's ruling on the imposition of a DOSA is not automatic because 

"'a standard range sentence, of which a DOSA is an alternate form, may not be 

appealed.'"  State v. White, 123 Wn. App. 106, 113, 97 P.3d 34 (2004) (quoting State v. 

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No. 29681-4-III
State v. Wallace

Smith, 118 Wn. App. 288, 292, 75 P.3d 986 (2003)).  However, "it is well established 

that appellate review is still available for the correction of legal errors or abuses of 

discretion in the determination of what sentence applies."  State Williams, 149 Wn.2d 

143, 147, 65 P.3d 1214 (2003).  Discretion is abused if a sentencing court's decision is 

"'manifestly unreasonable, or exercised on untenable grounds, or for untenable 

reasons.'"  State v. McCormick, 166 Wn.2d 689, 706, 213 P.3d 32 (2009) (quoting State 

ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)).

       Mr. Wallace contends that the court abused its discretion by denying his request 

for a DOSA.  Mr. Wallace argues that it was inappropriate for the court to consider his 

risk to the community.

       Under RCW 9.94A.660(3), a trial court can impose an exceptional sentence on an 

offender seeking a residential-based DOSA or a prison-based DOSA, as long as the 

offender is eligible and the alternative sentence is appropriate.  Here, the court found and 

the parties stipulated that Mr. Wallace was qualified for a DOSA.  Because Mr. Wallace 

was found eligible for a prison-based DOSA, the sentencing court  had the discretion to 

impose a DOSA sentence if it determined that a DOSA sentence was appropriate.  See

State v. Smith, 142 Wn. App. 122, 129, 173 P.3d 973 (2007).

       To support his argument that a DOSA was appropriate, Mr. Wallace points to 

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No. 29681-4-III
State v. Wallace

changes made in RCW 9.94A.660.  In former RCW 9.94A.660 (2008), a trial court could 

order the examination of an offender.  This examination would include an inquiry into 

whether the offender and the community would benefit from the DOSA sentence.  

Former RCW 9.94A.660(2)(d).  2009 amendments removed the DOC examination 

option for offenders seeking a prison-based DOSA.  See RCW 9.94A.660(5)(a); 

RCW 9.94A.662.  Mr. Wallace asserts that this change means that it is now inappropriate 

for a court to consider the risk to the community when considering a prison-based DOSA. 

       Mr. Wallace is incorrect regarding the court's option to request a DOC 

examination when considering a prison-based DOSA.  Eliminating the option to request a 

DOC examination cannot be interpreted as a directive limiting the court's discretion to 

consider the appropriateness of the consideration of a prison-based DOSA. 

       Mr. Wallace's argument concerning risk to the community ignores the purpose of 

the Sentencing Reform Act of 1981 (SRA), chapter 9.94A.RCW, and the practicalities of 

a DOSA.  Under the DOSA program, the prison-based offender receives substance abuse 

treatment in prison and serves in confinement only one-half the midpoint of a standard 

range sentence, or 12 months, whichever is greater.  RCW 9.94A.662(1)(a).  The SRA 

was enacted to, among other things, offer offenders an opportunity to improve themselves 

and reduce the risk that offenders will reoffend in the community.  RCW 9.94A.010(5), 

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No. 29681-4-III
State v. Wallace

(7).  Here, the court had the discretion to consider risk to the community along with other 

factors when considering the appropriateness of the DOSA.

       Mr. Wallace next contends the court abused its discretion by refusing to consider

the DOSA alternative for an entire class of offenders.  According to Mr. Wallace, the 

court did not consider whether a DOSA was proper for Mr. Wallace, but, instead, focused 

on the broader judicial policy as to whether a DOSA is appropriate when there is a 

conviction for involving a minor in the delivery of methamphetamine.  

       In State v. Grayson, the court concluded that the sentencing court abused its 

discretion by refusing to consider a DOSA for an entire class of offenders.  State v. 

Grayson, 154 Wn.2d 333, 342, 111 P.3d 1183 (2005).  In contrast, in State v. Gronnert, 

122 Wn. App. 214, 225-26, 93 P.3d 200 (2004), the court found no abuse of discretion 

where the court was opposed to the entire DOSA alternative but then specifically stated 

why a DOSA did not apply under the circumstances of that particular case.

       Here, the court did not abuse its discretion by refusing to impose a DOSA based 

solely on Mr. Wallace's conviction for involving a minor in a delivery.  The record 

demonstrates that the court thoughtfully considered Mr. Wallace's DOSA request before 

exercising its discretion and making its decision.  The court explained that "it's necessary 

in making the decision here, for [the court] to take a look at what did you do here that led 

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No. 29681-4-III
State v. Wallace

to this conviction."  Report of Proceedings (RP) at 30. The court noted that a charge 

involving a minor was a "particularly dangerous type of crime." RP at 33. But the record 

does not show that the court denied the DOSA based solely on the court's concern

regarding a minor in a delivery.  In fact, the court explained that in other cases involving 

a conviction for involving a minor in a delivery, perhaps a case where a mother involved 

her own child, the court might decide to grant a DOSA request. 

       Mr. Wallace next argues that the court did not limit its consideration to the 

particular circumstances of his case.  Mr. Wallace argues that the court's primary reason 

for denying the DOSA was the court's belief that a charge for distribution of 

methamphetamine to a minor is a "particularly dangerous type of crime" and that Mr. 

Wallace needed to be incarcerated "as a means of protecting the community."  RP at 33.  

A reading of the entire record shows that the court considered many facts specific to Mr. 

Wallace's DOSA request.

       During the sentencing hearing, the court heard from defense counsel, the 

prosecutor, Mr. Wallace, and Ms. Wallace.  The court thoroughly reviewed the letters 

supplied to the court by Mr. Wallace.  The court studied the applicable statute, the letters, 

the basis for the charges, and Mr. Wallace's art work.  

       After returning to the courtroom, the court read the statute and noted which types 

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No. 29681-4-III
State v. Wallace

of crimes precluded a DOSA and included that analysis "specifically in this particular 

case here."  RP at 30. The court noted that none of the letters vouching for Mr. Wallace 

mentioned the circumstances involving L.H.  The court questioned whether those 

vouching for Mr. Wallace would have written a letter had they known of those 

circumstances.  The court stressed Mr. Wallace's age, 44, and L.H.'s age, 17.  

       The court clearly recognized that Mr. Wallace had a problem that could lead to 

selling drugs or stealing to feed his habit.  The court stated that while Mr. Wallace was 

clearly addicted, and that may have had an effect on his other criminal activity, the court 

saw no correlation between the addiction and the involving a minor charge.  The court 

made particular mention of Mr. Wallace's glaucoma diagnosis and how this did not make 

sense as the cause of the addiction.  While the court indicated that involving a minor in a 

delivery was a particularly dangerous crime, the record shows that, overall, the court 

properly exercised its discretion in making its decision.

       In short, the record demonstrates that the court properly exercised its discretion in 

denying Mr. Wallace's request for a prison-based DOSA. Here, there was no categorical 

denial and no class of offenders was precluded.  The court considered the facts specific to 

this case. Moreover, even if we construe the court's statements as a comment on one 

group of offenders, there is sufficient analysis to show that the court exercised its 

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No. 29681-4-III
State v. Wallace

discretion when denying Mr. Wallace's request for a DOSA.  See Gronnert, 122 Wn. 

App. at 225-26.

       The court properly exercised its discretion in concluding that a DOSA was not 

appropriate here.  Accordingly, we affirm.

       A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to 

RCW 2.06.040.

                                            _________________________________
                                            Kulik, C.J.

WE CONCUR:

______________________________              _________________________________
Sweeney, J.                                 Brown, J.

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