749132MAJ

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Supreme Court of the State of Washington

Opinion Information Sheet

Docket Number: 74913-2
Title of Case: State of Washington v. John Woods Grayson
File Date: 05/26/2005
Oral Argument Date: 10/26/2004


SOURCE OF APPEAL
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Appeal from Superior Court,
County
Honorable Michael F Moynihan


JUSTICES
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Authored by Tom Chambers
Concurring: Barbara A. Madsen
Charles W. Johnson
Gerry L Alexander
Richard B. Sanders
Dissenting: Faith Ireland
Bobbe J Bridge
Susan Owens
Mary Fairhurst


COUNSEL OF RECORD
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Counsel for Petitioner(s)
Jason Brett Saunders
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA 98101-3635

Counsel for Respondent(s)
Craig D. Chambers
Attorney at Law
Whatcom Co Prosecutor
311 Grand Ave Fl 5
Bellingham, WA 98225-4048

Melinda Beth Miller
Attorney at Law
PO Box 5842
Bellingham, WA 98227

Hilary A. Thomas
Whatcom County Prosecutors Office
311 Grand Ave Ste 201
Bellingham, WA 98225-4038

Kimberly Anne Thulin
Whatcom Cty Pros Atty's Office
311 Grand Ave Ste 201
Bellingham, WA 98225-4038

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON )
)
Respondent, ) No. 74913-2
)
v. ) En Banc
)
JOHN W. GRAYSON, )
)
Petitioner. ) Filed May 26, 2005
)

CHAMBERS, J -- We are asked to determine whether John Grayson received
sufficient consideration of his request for a Drug Offender Sentencing
Alternative (DOSA) as part of his sentence for delivery of crack cocaine.
Under the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, whether
to give a DOSA is a decision left to the discretion of the trial judge, and
our review of that exercise of discretion is limited. However, while the
SRA vests broad discretion in the hands of the trial judge, the trial judge
must still exercise this discretion in conformity with the law.
In this case, the trial judge failed to exercise any meaningful
discretion in deciding whether a DOSA sentence was appropriate for this
defendant. While we cannot say that denying Grayson a DOSA was an abuse of
discretion, we agree with Grayson that his request was entitled to actual
consideration and, based at least on the record before us, it appears to
have been categorically denied. Accordingly, we remand for a new
sentencing hearing.
FACTS
In July 2000, an undercover Drug Enforcement Administration agent
caught Grayson delivering 1.2 grams of cocaine to a confidential informant.
Grayson subsequently pleaded guilty to one count of delivering cocaine in
violation of former RCW 69.50.401(a)(1) (1998). He also separately pleaded
guilty to one count of possession of marijuana with intent to deliver.
Prior to sentencing, Grayson requested a DOSA. While the DOSA report
is not in the record, the parties appear to agree that he was screened and
found eligible. However, at sentencing, the prosecuting attorney argued
that Grayson was not a good candidate for a DOSA because he was a career
drug criminal with a long history of drug crimes and with additional
pending charges. The record supports the prosecutor's argument. Grayson's
extensive criminal history includes separate counts of possession with
intent to deliver in 1992, 1994, 1999, and 2002, as well as several
separate counts of possession in 1998 and 1999. When arrested on the
charges currently before us, Grayson was on conditional release after being
charged with delivering seven pounds of marijuana, worth about $12,000.
Also while on release, Grayson committed several other violations of his
conditions of release, including possession of an ounce of crack cocaine.
Grayson had an offender score of 10, based on an extensive criminal history
(or an offender score of 13 including pending charges). Grayson's
standard range sentence on the current charge was 108 to 144 months.
After reviewing this history and Grayson's eligibility screening, the
trial judge denied the motion for a DOSA. The judge did not dwell on the
facts of Grayson's case in his oral ruling. Instead, he stated simply:
The motion for a DOSA . . . is going to be denied. And my main reason for
denying {the DOSA} is because of the fact that the State no longer has
money available to treat people who go through a DOSA program.

So I think in this case if I granted him a DOSA it would be merely to
the effect of it cutting his sentence in half. I'm unwilling to do that
for this purpose alone. There's no money available. He's not going to get
any treatment; it's denied.
Report of Proceedings (RP) at 152-53 (emphasis added). Likely aware of the
potential issue currently on review, the prosecutor interjected:

If I could ask for the record and for your consideration there's other
important factors that could also serve to undercut the fact of the DOSA.
No. 1, Mr. Holleman would testify -

THE COURT: I'm not going to give a DOSA, so that's it.
RP at 152-53. The trial judge then gave Grayson a standard range sentence
of 138 months. During sentencing, Grayson did not protest the trial
court's conclusion that the DOSA program lacked funds or request an
evidentiary hearing. On review, he challenged for the first time the trial
court's alleged failure to exercise discretion and reliance on a belief the
DOSA program was underfunded. The Court of Appeals affirmed the sentence,
and we granted review. State v. Grayson, 152 Wn.2d 1011, 99 P.3d 896
(2004).
ANALYSIS
The DOSA program is an attempt to provide treatment for some offenders
judged likely to benefit from it. It authorizes trial judges to give
eligible nonviolent drug offenders a reduced sentence, treatment, and
increased supervision in an attempt to help them recover from their
addictions. See RCW 9.94A.660. Under a DOSA sentence, the defendant
serves only about one-half of a standard range sentence in prison and
receives substance abuse treatment while incarcerated. Afterward, he or
she is released into closely monitored community supervision and treatment
for the balance of the sentence. RCW 9.94A.660(2). The offender has
significant incentive to comply with the conditions of a DOSA, since
failure may result in serving the remainder of the sentence in prison. RCW
9.94A.660(2).
As a general rule, the trial judge's decision whether to grant a DOSA
is not reviewable. RCW 9.94A.585(1); State v. Bramme, 115 Wn. App. 844,
850, 64 P.3d 60 (2003). However, an offender may always challenge the
procedure by which a sentence was imposed. State v. Herzog, 112 Wn.2d 419,
423, 771 P.2d 739 (1989) (quoting State v. Ammons, 105 Wn.2d 175, 183, 713
P.2d 719, 718 P.2d 796 (1986)). Primarily, Grayson claims that the trial
court failed to exercise the discretion vested by statute by categorically
refusing to seriously consider whether a DOSA sentence was appropriate.1
While he does not squarely raise the issue, he alludes to the trial court's
reliance on facts outside of the record in rendering his decision. We will
turn briefly to that issue first.
What Facts May A Judge Consider at Sentencing?
It is clear that the trial court relied on extrajudicial information
at the sentencing hearing. Constitutional and statutory procedures protect
defendants from being sentenced on the basis of untested facts. See
generally Blakely v. Washington, U.S. , 124 S. Ct. 2531, 159 L. Ed. 2d
403 (2004); RCW 9.94A.530(2). Under the SRA, a trial judge may rely on
facts that are admitted, proved, or acknowledged to determine 'any
sentence,' including whether to sentence a defendant to a DOSA. RCW
9.94A.530(2). 'Acknowledged' facts include all those facts presented or
considered during sentencing that are not objected to by the parties. See
State v. Handley, 115 Wn.2d 275, 282-83, 796 P.2d 1266 (1990).
Under the SRA, where a defendant raises a timely and specific
objection to sentencing facts, the court must either not consider the fact
or hold an evidentiary hearing. RCW 9.94A.530(2) (requiring defendant to
object); see also State v. Mail, 121 Wn.2d 707, 712, 854 P.2d 1042 (1993).
Grayson did not object to the trial judge's statement concerning DOSA
funding. If he had, then he might have been entitled to a hearing.2
We note that the SRA does not require our judges to make decisions in a
factual vacuum. Our constitutional democracy is dependent upon an
independent and informed judiciary. Our judiciary benefits from and relies
upon judges who have studied and become learned in the law and whose
personal experiences have taught them a practical understanding of the
world we live in and how people live, work, and interact with the world
around them.
We do not believe the legislature intended that judges leave their
knowledge and understanding of the world behind and enter the courtroom
with blank minds. Judges are not expected to leave their common sense
behind. Nor do we believe the legislature expected judges to hold
hearings on whether fire is hot or water is wet. We prize judges for their
knowledge, most of which is obtained outside of the courtroom. Within the
statutory and constitutional guidelines, judges may exercise their
discretion to give a fair and just sentence.
These statutory guidelines do not require judges to hold hearings on
the laws of the universe, but only on adjudicative facts. 'Adjudicative
facts are usually those facts that are in issue in a particular case.'
Korematsu v. United States, 584 F. Supp. 1406, 1414 (N.D. 1984). In a
criminal case, adjudicative facts generally relate to the facts of the
crime and the defendant, but could also include social science and other
research that directly affects the litigants before the court and are
properly placed in contest by the parties.But '{l}egislative facts are
'established truths, facts or pronouncements that do not change from case
to case but {are applied} universally, while adjudicative facts are those
developed in a particular case.' . . . {H}istorical facts, commercial
practices and social standards are frequently noticed in the form of
legislative facts.' Korematsu, 584 F. Supp. at 1414 (quoting United States
v. Gould, 536 F.2d 216, 220 (8th Cir. 1976)); see also John Monahan &
Laurens Walker, Social Authority: Obtaining, Evaluating, and Establishing
Social Science in Law, 134 U. Pa. L. Rev. 477, 482-84 (1986). A trial
judge may properly take judicial notice of such facts. See also ER 201.
The purpose of RCW 9.94A.530(2) is to prevent ex parte contact with the
judge, sua sponte investigation and research of a judge, and sentencing
based on speculative facts. Underlying this statutory procedure is the
principle of due process. The court should only consider adjudicative
evidence that the parties in an adversarial context have 'the opportunity
to scrutinize, test, contradict, discredit, and correct.' George D. Marlow,
From Black Robes to White Lab Coats: The Ethical Implications of a Judge's
Sua Sponte, Ex Parte Acquisition of Social and Other Scientific Evidence
During the Decision-Making Process, 72 St. John's L. Rev. 291, 319 (1998)
(citing E.I. du Pont de Nemours & Co. v. Collins, 432 U.S. 46, 57, 97 S.
Ct. 2229, 53 L. Ed. 2d 100 (1977)); see also David Boerner, Sentencing in
Washington, A Legal Analysis of the Sentencing Reform Act of 1981 sec. 6.25
(1985) (discussing when a trial judge abuses discretion under the SRA by
relying on improper information).General information about a sentencing
alternative such as how, why, and for whom the program is designed is
properly classified as legislative. It is the kind of information that
helps a judge decide questions of law and policy and exercise discretion.
Generally, a trial court may rely on this kind of information without
holding a sentencing hearing. However, a specific fact about a sentencing
alternative program, the truth or falsity of which may determine whether a
defendant will receive the alternative sentence, may be adjudicative. When
a judge determines that a program such as DOSA is unavailable to a
defendant because the program is underfunded, the fact may become
adjudicative if the truth or falsity affects the party before the court.
Under such circumstances, a litigant may be entitled to a hearing on the
issue.
The SRA also provides for the proper treatment of disputed adjudicative
facts: 'Where the defendant disputes material facts, the court must either
not consider the fact or grant an evidentiary hearing on the point.' RCW
9.94A.530(2). Here Grayson failed to request a hearing on the issue of
whether or not there was adequate funding for DOSA. We recognize that
Grayson did not have much time to formulate an objection. There may be a
case where the failure to immediately object might not be fatal to a
challenge to the sentence. This may be such a case because when the
prosecutor suggested enriching the record with specific reasons that
Grayson was not a suitable candidate for a DOSA, the judge vigorously
interrupted mid-sentence with the statement, 'I'm not going to give a DOSA,
so that's it.' RP at 153. Under these circumstances, a party may be
relieved of the duty to object. But since we resolve this case on other
grounds, we need not decide whether this would be such a case. The best
practice is to promptly object. See Mail, 121 Wn.2d at 712.
Categorical Decisions and Sentence Alternatives
Next, we consider whether, as Grayson contends, the trial judge abused his
discretion by categorically refusing to consider a DOSA sentence. Again,
while trial judges have considerable discretion under the SRA, they are
still required to act within its strictures and principles of due process
of law. Mail, 121 Wn.2d at 712. While no defendant is entitled to an
exceptional sentence below the standard range, every defendant is entitled
to ask the trial court to consider such a sentence and to have the
alternative actually considered. State v. Garcia-Martinez, 88 Wn. App.
322, 330, 944 P.2d 1104 (1997). A trial court abuses discretion when 'it
refuses categorically to impose an exceptional sentence below the standard
range under any circumstances.' Id. at 330. The failure to consider an
exceptional sentence is reversible error. Id. Similarly, where 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. Cf. Garcia-Martinez, 88 Wn. App. at 330.
Although the trial judge declined to give a DOSA 'mainly' because he
believed there was inadequate funding to support the program, we recognize
that the judge did not state that this was his 'sole' reason. But he did
not articulate any other reasons for denying the DOSA, and he specifically
rejected the prosecution's suggestion that more reasons be placed on the
record. Further, it is clear that the judge's belief that the DOSA program
was underfunded was the primary reason the DOSA was denied. Considering all
of the circumstances, the trial court categorically refused to consider a
statutorily authorized sentencing alternative, and that is reversible
error.
We recognize that there were ample other grounds to find that Grayson was
not a good candidate for DOSA. Grayson was facing significant time (108 to
144 months) for this crime and still was scheduled to face at least another
100 months for a pending marijuana delivery charge - a charge involving a
quantity of drugs so substantial as to make him ineligible for DOSA.
Grayson had an extensive and exclusively drug-based criminal history. He
continued to commit drug offenses even while on conditional release from
other drug offenses. While we reverse the sentence on procedural grounds,
we leave it in the able hands of the trial judge on remand to consider
whether Grayson is a suitable candidate.
CONCLUSION
We reverse on the limited grounds that the trial judge did not appear to
meaningfully consider whether a sentencing alternative was appropriate.
But we do not fault the judge at all for having background knowledge about
DOSA. If judges are to consider meaningful alternatives to prison
sentences, they should be knowledgeable about the programs, their
effectiveness, and whether the offender is a good candidate for the
program. Again, the purpose of DOSA is to provide meaningful treatment and
rehabilitation incentives for those convicted of drug crimes, when the
trial judge concludes it would be in the best interests of the individual
and the community. See RCW 9.94A.660. But trial judges do not rule in a
vacuum, and we do not require trial courts to ignore funding realities.
Cf. Hillis v. Dep't of Ecology, 131 Wn.2d 373, 389, 932 P.2d 139 (1997)
(court will not order expenditures to meet statutory requirements
legislature has chosen not to fund).
Accordingly, we vacate Grayson's sentence and remand for further
proceedings consistent with this opinion.

WE CONCUR:

1 Grayson also raises two additional arguments. First he argues that the
trial judge's decision violates separation of powers because the trial
judge effectively made a sentencing policy decision. We decline to reach
this argument since it was raised for the first time in a supplemental
brief, and the State did not have a sufficient chance to respond to it.
Second, Grayson argues that a 2003 SRA amendment should be applied
retroactively to the calculation of his sentence. The amendment reduced
the offender score for adult drug crimes from 3 points to 1 point and would
have significantly lowered Grayson's offender score. Because Grayson
substantially (and properly) concedes in his supplemental brief that his
challenge is foreclosed by State v. Ross, 152 Wn.2d 220, 95 P.3d 1225
(2004), we also decline to reach this issue.
2 Since the question before us is whether Grayson is entitled to a
different type of sentence, rather than a sentence greater than the
standard range, this case gives us no occasion to consider the potential
impact of Blakely on the proper procedures used at sentencing. Cf.
Blakely, 124 S. Ct. at 2536-37.
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