IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
THE STATE OF WASHINGTON, ) No. 81296-3-I ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) HAROLD CHARLES BALLARD, ) ) Appellant. )
BOWMAN, J. — Harold Charles Ballard argues the court improperly
rejected the parties’ agreed recommendation for a drug offender sentencing
alternative (DOSA). Because the trial court properly exercised its discretion to
sentence Ballard to a standard-range sentence, the court did not err. But we
remand for the trial court to recalculate Ballard’s offender score and resentence
him considering our Supreme Court’s decision in State v. Blake, 197 Wn.2d 170,
481 P.3d 521 (2021).
FACTS
Police observed Ballard punch his girlfriend Mekisha McKenna outside a
motel room. McKenna fell backward into the room with Ballard on top of her.
McKenna yelled “ ‘No, stop.’ ” When police approached and detained Ballard, he
said, “ ‘No, Keisha . . . tell them it didn’t happen.’ ” McKenna replied, “ ‘You hit
me.’ ”
Citations and pin cites are based on the Westlaw online version of the cited material. No. 81296-3-I/2
The State charged Ballard with domestic violence felony violation of a no-
contact order, as well as second degree assault and tampering with a witness
with domestic violence designations. All three counts included the aggravating
factor that the domestic violence offenses were part of an ongoing pattern of
abuse. After plea negotiations, Ballard pleaded guilty to only third degree
domestic violence assault with no aggravating factor.
As part of the plea agreement, the parties jointly recommended a prison-
based DOSA. The parties argued the DOSA was appropriate because the
“incident was heavily affected by substance abuse.” Aside from DOSA
substance use disorder treatment, Ballard agreed to enter and complete a
separate domestic violence treatment program “such as Moral Reconation
Therapy [(MRT)] or Thinking for a Change.”
The trial court accepted Ballard’s plea but rejected the DOSA
recommendation. The court reasoned:
I really respect the plea bargaining in this case, but I will point out that the plea here was a big reduction from the original charges to begin with, and I just do not feel bound by the party’s [sic] agreement to impose a prison-based DOSA, nor do I believe it would serve community safety. Nor do I believe it’s a frugal or efficient use of state resources.
Instead, the court imposed a low-end standard-range sentence of 22 months
based on Ballard’s offender score of 6. Ballard appeals.
ANALYSIS
DOSA
Ballard claims the sentencing court “relied on untenable bases to
categorically reject the DOSA sentence.” We disagree.
2 No. 81296-3-I/3
The DOSA program authorizes trial judges to sentence eligible drug users
to reduced confinement time in exchange for their participation in substance use
disorder treatment and increased supervision to assist in recovery from addiction.
State v. Grayson, 154 Wn.2d 333, 337, 111 P.3d 1183 (2005); see RCW
9.94A.660. A defendant is not entitled to a DOSA but “is entitled to ask the trial
court to consider such a sentence and to have the alternative actually
considered.” Grayson, 154 Wn.2d at 342. Generally, a trial judge's decision
whether to grant a DOSA is not reviewable. State v. Lemke, 7 Wn. App. 2d 23,
27, 434 P.3d 551 (2018). But a defendant may seek appellate review “if the trial
court refused to exercise discretion at all or relied on an impermissible basis in
making the decision.” Lemke, 7 Wn. App. 2d at 27. When a defendant requests
a sentencing alternative authorized by statute, the court’s categorical failure to
consider the request is an abuse of discretion and reversible error. Grayson, 154
Wn.2d at 342.
Ballard challenges his sentence as a categorical denial of his request for a
DOSA on two grounds. First, Ballard argues that the trial court refused his
request for a DOSA because his offense did not involve drug use.1 In support of
his claim, he points to the court’s statement during sentencing that “there’s
nothing in this record that indicates that drugs had — or drug use or alcohol use,
or really any substance, had anything to do with this.” But Ballard takes the
court’s comment out of context. The trial court did not determine Ballard was
ineligible for a DOSA because the offense was not drug related. Instead, the
1 Conviction on a drug related offense is not required for DOSA eligibility. See RCW 9.94A.660(1).
3 No. 81296-3-I/4
court cited the lack of drug use as one factor it considered in an assessment of
whether Ballard would benefit from a DOSA sentence.
The court concluded Ballard would not benefit from a DOSA sentence
because substance use disorder treatment would not adequately address
Ballard’s domestic violence issues as evidenced by his significant history of
domestic violence related crimes. The trial court noted:
[T]here are a lot of people with substance abuse and alcohol issues who do not come before us ever for domestic violence issues. If Mr. Ballard has a drug issue, and I’m not arguing with you about that, it’s accompanying an ongoing domestic violence issue that has never been addressed.
After considering Ballard’s five prior domestic violence convictions and 10 no-
contact orders issued to protect six different women from him, the court
concluded that Ballard had received a significant reduction in his sentence as a
result of his plea bargain and a DOSA would not serve community safety or be
an efficient use of resources. This was not an abuse of discretion.
Second, Ballard contends the court “categorically denied the DOSA based
on matters outside the record and on ground that the contemplated legislatively-
authorized treatment program was useless.” He claims the trial court “deemed
the DOSA program unavailable for persons whose other class of offenses,
besides drug crimes, were domestic violence crimes, which the court believed
the Department of Corrections did not have programs to treat.”
Ballard compares his case to Grayson. In that case, the trial court refused
a DOSA because it believed the program was underfunded and a DOSA would
lead to a shortened sentence without treatment. Grayson, 154 Wn2d. at 337.
4 No. 81296-3-I/5
Our Supreme Court concluded it was reversible error for a trial court to
“categorically refuse[ ] to consider a statutorily authorized sentencing alternative.”
Grayson, 154 Wn.2d at 342. According to Ballard, the court sentencing him
relied on similarly flawed reasoning and “deemed the DOSA program impotent
despite the legislature’s establishment of this alternative sentencing scheme.”
We disagree.
Here, the trial court questioned the effectiveness of certain domestic
violence treatment programs proposed by the parties as a condition of sentence
separate from DOSA substance use disorder treatment. The court commented
that “MRT or Thinking for a Change is completely not evidence-based” and
“[t]here is absolutely no evidence that either one of those programs has any
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
THE STATE OF WASHINGTON, ) No. 81296-3-I ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) HAROLD CHARLES BALLARD, ) ) Appellant. )
BOWMAN, J. — Harold Charles Ballard argues the court improperly
rejected the parties’ agreed recommendation for a drug offender sentencing
alternative (DOSA). Because the trial court properly exercised its discretion to
sentence Ballard to a standard-range sentence, the court did not err. But we
remand for the trial court to recalculate Ballard’s offender score and resentence
him considering our Supreme Court’s decision in State v. Blake, 197 Wn.2d 170,
481 P.3d 521 (2021).
FACTS
Police observed Ballard punch his girlfriend Mekisha McKenna outside a
motel room. McKenna fell backward into the room with Ballard on top of her.
McKenna yelled “ ‘No, stop.’ ” When police approached and detained Ballard, he
said, “ ‘No, Keisha . . . tell them it didn’t happen.’ ” McKenna replied, “ ‘You hit
me.’ ”
Citations and pin cites are based on the Westlaw online version of the cited material. No. 81296-3-I/2
The State charged Ballard with domestic violence felony violation of a no-
contact order, as well as second degree assault and tampering with a witness
with domestic violence designations. All three counts included the aggravating
factor that the domestic violence offenses were part of an ongoing pattern of
abuse. After plea negotiations, Ballard pleaded guilty to only third degree
domestic violence assault with no aggravating factor.
As part of the plea agreement, the parties jointly recommended a prison-
based DOSA. The parties argued the DOSA was appropriate because the
“incident was heavily affected by substance abuse.” Aside from DOSA
substance use disorder treatment, Ballard agreed to enter and complete a
separate domestic violence treatment program “such as Moral Reconation
Therapy [(MRT)] or Thinking for a Change.”
The trial court accepted Ballard’s plea but rejected the DOSA
recommendation. The court reasoned:
I really respect the plea bargaining in this case, but I will point out that the plea here was a big reduction from the original charges to begin with, and I just do not feel bound by the party’s [sic] agreement to impose a prison-based DOSA, nor do I believe it would serve community safety. Nor do I believe it’s a frugal or efficient use of state resources.
Instead, the court imposed a low-end standard-range sentence of 22 months
based on Ballard’s offender score of 6. Ballard appeals.
ANALYSIS
DOSA
Ballard claims the sentencing court “relied on untenable bases to
categorically reject the DOSA sentence.” We disagree.
2 No. 81296-3-I/3
The DOSA program authorizes trial judges to sentence eligible drug users
to reduced confinement time in exchange for their participation in substance use
disorder treatment and increased supervision to assist in recovery from addiction.
State v. Grayson, 154 Wn.2d 333, 337, 111 P.3d 1183 (2005); see RCW
9.94A.660. A defendant is not entitled to a DOSA but “is entitled to ask the trial
court to consider such a sentence and to have the alternative actually
considered.” Grayson, 154 Wn.2d at 342. Generally, a trial judge's decision
whether to grant a DOSA is not reviewable. State v. Lemke, 7 Wn. App. 2d 23,
27, 434 P.3d 551 (2018). But a defendant may seek appellate review “if the trial
court refused to exercise discretion at all or relied on an impermissible basis in
making the decision.” Lemke, 7 Wn. App. 2d at 27. When a defendant requests
a sentencing alternative authorized by statute, the court’s categorical failure to
consider the request is an abuse of discretion and reversible error. Grayson, 154
Wn.2d at 342.
Ballard challenges his sentence as a categorical denial of his request for a
DOSA on two grounds. First, Ballard argues that the trial court refused his
request for a DOSA because his offense did not involve drug use.1 In support of
his claim, he points to the court’s statement during sentencing that “there’s
nothing in this record that indicates that drugs had — or drug use or alcohol use,
or really any substance, had anything to do with this.” But Ballard takes the
court’s comment out of context. The trial court did not determine Ballard was
ineligible for a DOSA because the offense was not drug related. Instead, the
1 Conviction on a drug related offense is not required for DOSA eligibility. See RCW 9.94A.660(1).
3 No. 81296-3-I/4
court cited the lack of drug use as one factor it considered in an assessment of
whether Ballard would benefit from a DOSA sentence.
The court concluded Ballard would not benefit from a DOSA sentence
because substance use disorder treatment would not adequately address
Ballard’s domestic violence issues as evidenced by his significant history of
domestic violence related crimes. The trial court noted:
[T]here are a lot of people with substance abuse and alcohol issues who do not come before us ever for domestic violence issues. If Mr. Ballard has a drug issue, and I’m not arguing with you about that, it’s accompanying an ongoing domestic violence issue that has never been addressed.
After considering Ballard’s five prior domestic violence convictions and 10 no-
contact orders issued to protect six different women from him, the court
concluded that Ballard had received a significant reduction in his sentence as a
result of his plea bargain and a DOSA would not serve community safety or be
an efficient use of resources. This was not an abuse of discretion.
Second, Ballard contends the court “categorically denied the DOSA based
on matters outside the record and on ground that the contemplated legislatively-
authorized treatment program was useless.” He claims the trial court “deemed
the DOSA program unavailable for persons whose other class of offenses,
besides drug crimes, were domestic violence crimes, which the court believed
the Department of Corrections did not have programs to treat.”
Ballard compares his case to Grayson. In that case, the trial court refused
a DOSA because it believed the program was underfunded and a DOSA would
lead to a shortened sentence without treatment. Grayson, 154 Wn2d. at 337.
4 No. 81296-3-I/5
Our Supreme Court concluded it was reversible error for a trial court to
“categorically refuse[ ] to consider a statutorily authorized sentencing alternative.”
Grayson, 154 Wn.2d at 342. According to Ballard, the court sentencing him
relied on similarly flawed reasoning and “deemed the DOSA program impotent
despite the legislature’s establishment of this alternative sentencing scheme.”
We disagree.
Here, the trial court questioned the effectiveness of certain domestic
violence treatment programs proposed by the parties as a condition of sentence
separate from DOSA substance use disorder treatment. The court commented
that “MRT or Thinking for a Change is completely not evidence-based” and
“[t]here is absolutely no evidence that either one of those programs has any
effect whatsoever on domestic violence offenders.” But unlike the trial court in
Grayson, the court’s critique was not of the usefulness of the DOSA program
itself, but whether the specific domestic violence programs recommended in
addition to the DOSA substance use disorder treatment would benefit Ballard
and the community. Nor did the court suggest it would not grant a DOSA
sentence for any defendant charged with domestic violence crimes. Indeed,
while the court expressed doubt about the programs recommended by the
parties, it also recognized that “[t]here is a lot of competent evidence out there
that an appropriate domestic violence batterer’s treatment program would have
an effect, but it doesn’t look as though Mr. Ballard’s attended one yet.”
The court did not categorically deny Ballard’s request for a DOSA
sentence. We affirm his standard-range sentence.
5 No. 81296-3-I/6
Offender Score Calculation
The trial court sentenced Ballard based on an offender score of 6. The
score included 1 point for felony drug possession in violation of the uniform
controlled substances act, chapter 69.50 RCW. After our Supreme Court held
the strict liability drug possession statute RCW 69.50.4013(1) unconstitutional
and void in Blake, Ballard moved to assign additional error to the calculation of
his offender score and resulting sentence. See Blake, 197 Wn.2d at 195. A
commissioner of this court granted the motion and the State responded. The
State concedes that because the Supreme Court denied its motion to reconsider
the retroactive effect of Blake, the court must resentence Ballard with a corrected
offender score.
We affirm the trial court’s standard-range sentence for third degree
domestic violence assault but remand for recalculation of Ballard’s offender score
and resentencing.
WE CONCUR: