State Of Washington, Respondent V. Christopher Allen Nakamura, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF W ASHINGTON,
Respondent,
) 	No. 73430-0-1
) 	(consolidated with No. 73431-8-1
) 	and No. 73432-6-1)
\ /. 	DIVISION ONE
UNPUBLISHED OPINION 	3C
CHRISTOPHEER ALLEN NAKAMURA, ~5-
-11 	T.
Appellant. 	FILED: March 7, 2016
\
• *
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Trickey, J. — Christopher Nakamura appeals the trial court's decision to 	eg 	gg»"
impose a 	standard 	range sentence instead 	of a 	prison-based 	drug 	offender
sentencing 	alternative 	(DOSA). 	Nakamura 	claims 	that 	the 	court 	did 	not
meaningfully consider his request for a DOSA. 	We affirm because the trial court
did consider Nakamura's request and exercised its discretion to impose a standard
range sentence instead of a DOSA.
FACTS
Christopher 	Nakamura was 	charged 	with 	possession 	of a 	controlled
substance, possession of a controlled substance with intent to manufacture or
deliver, and possession of a stolen vehicle. 	He entered the Snohomish County
Superior Court adult drug treatment court (ADTC) program for all three crimes in
February 2013. In January 2015, the court terminated him from the ADTC program
because of a failed urinary analysis (UA) that would have required "him to be in
drug court beyond the 24 month maximum."1
The case proceeded to a bench trial on agreed documentary evidence. The
Clerk's Papers (CP) at 38, 151, 241.

No. 73430-0-1 / 2
court found Nakamura guilty on all three charges. 	The court agreed to delay
sentencing 	so 	that 	the 	Department 	of 	Corrections 	(DOC) 	could 	evaluate
Nakamura's eligibility for a 	DOSA. 	The DOC concluded that Nakamura was
eligible for a DOSA, but found that he was "a questionable candidate for a DOSA
sentence" and recommended a standard range sentence instead.2
At sentencing, the State agreed with the DOC's recommendation and urged
the court to impose a sentence at the high end of the standard range. 	Nakamura
argued that he would benefit from a DOSA and had eleven friends and family
members testify on his behalf.
In its oral ruling, the court noted that, despite failing the UA, Nakamura
maintained that he had not used any drugs. 	The court commented that it did not
think that there was a point to placing Nakamura in treatment, because Nakamura
would 	not admit that he had been using. 	It denied 	Nakamura's request and
sentenced him to a high end standard range for each of his charges.
Nakamura appeals.
ANALYSIS
Nakamura argues that the trial court did not meaningfully consider his
request for a DOSA. 	We reject this argument because the record shows that the
trial court did consider the request but exercised its discretion to deny it.
For eligible offenders, the court may impose a DOSA instead of a standard
range sentence. 	RCW 9.94A.660. Fora prison-based DOSA, the offender serves
"one-half the midpoint of the standard 	range or twelve months, whichever is
2 CP at 316-17.

No. 73430-0-1 / 3
greater" in a state facility and the other half in community custody, "which must
include appropriate substance abuse treatment" in an approved program. 	RCW
9.94A.662(1)(a),(b). 	While 	incarcerated, 	the 	offender 	receives 	appropriate
substance abuse treatment. 	RCW 9.94A.662(2). 	If the offender willfully violates
the conditions of his community custody or is terminated from the program, he may
be required to serve the rest of his sentence. 	RCW 9.94A.662(3).
Generally, 	defendants 	may 	not 	seek 	review 	of 	a 	sentencing 	court's
discretionary decision not to grant a DOSA. State v. Bramme, 115 Wn. App. 844,
850, 64 P.3d 60 (2003). 	But a defendant may appeal his sentence if the "court
refuse[d] to exercise its discretion at all." State v. Smith, 118 Wn. App. 288, 292,
75 P.3d 986 (2003). 	Every eligible defendant is entitled to request a DOSA and
have the court actually consider that request. 	State v. Grayson. 154 Wn.2d 333,
342,111 P.3d 1183 (2005). The failure to consider a DOSA "is effectively a failure
to exercise discretion and is subject to reversal." Gravson, 154 Wn.2d at 342.
Here, the trial court meaningfully considered whether to grant Nakamura's
request for a DOSA. 	The oral ruling shows that the trial court decided to deny
Nakamura's request primarily because the judge believed that, given Nakamura's
denial of his recent drug use, he was not amenable to treatment:
You don't need treatment because you claim you didn't use. 	So you
want to take up bed space in a therapeutic setting where you will
maintain that you didn't use. 	How is that beneficial to any other
participants who readily admit that they did use? 	But you're there
saying you didn't use. 	It's hard for me to give you that opportunity, I
can't do iU3]
Accordingly, we affirm the trial court's exercise of discretion.
3 Verbatim Report of Proceedings (April 17, 2015) at 22-23.
3

No. 73430-0-1/4
Nakamura argues that the trial court abused its discretion because it "relied
solely 	on 	Mr. 	Nakamura's 	negative 	conduct" 	and 	"refused 	to 	consider 	Mr.
Nakamura's positive achievements after his termination from drug court."4 	We
have previously held that "[fjailure of a candidate to successfully complete drug
court ... is a tenable basis for the exercise of the court's discretion to decline to
grant a DOSA." Smith. 118 Wn. App. at 292. 	The trial court properly considered
Nakamura's performance in ADTC, instead of his efforts after termination.
Further, there is no reason to believe that the court ignored Nakamura's
successes or "conflated the standards for termination from drug court with the
person's eligibility for a DOSA."5 The court heard testimony and read letters from
many of Nakamura's friends and family explaining why they believed Nakamura
could benefit from a DOSA. 	But the court also received the DOC's assessment
that, although Nakamura was eligible for a DOSA, it recommended that the court
impose a standard range sentence. Finally, the court drew on its own experiences
with Nakamura in drug court. 	It decided not to grant Nakamura's request. 	This
was not error.
Affirmed.
WE CONCUR:
4 Br. of Appellant at 5-6.
5 Br. of Appellant at 6.
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