FILED OCTOBER 12, 2021 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 DIVISION THREE
STATE OF WASHINGTON, ) No. 37780-6-III ) Respondent, ) ) v. ) PUBLISHED OPINION ) KEVIN P. EHLERT, ) ) Appellant. )
LAWRENCE-BERREY, J. — Under RCW 9.94A.660(1), an offender is eligible for a
drug offender sentencing alternative (DOSA) if they meet seven conditions. One
condition requires the offender to not have “received” a DOSA more than once in the
prior 10 years before the current offense. RCW 9.94A.660(1)(g).
Four years before Kevin Ehlert’s current offense, a court imposed two DOSA
sentences on separate days but ordered that they be served concurrently. The question
presented is whether a person “receives” a DOSA at sentencing or whether a person
“receives” a DOSA through a course of treatment and rehabilitation. We hold that a
person “receives” a DOSA through a course of treatment and conclude that Ehlert’s prior No. 37780-6-III State v. Ehlert
concurrent sentences do not render him ineligible for a DOSA. We remand for the trial
court to decide whether to grant Ehlert a DOSA.
FACTS
Prior DOSA sentences
In 2016, Ehlert was terminated from drug court on several charges unrelated to the
current offenses. The charges were tried in two bench trials. Both trials resulted in guilty
verdicts. Separate DOSA sentences were entered within weeks of each other. The
resulting sentences were expressly made to run concurrent with each other. Ehlert
successfully completed his DOSA in early June 2020.
Current offenses
On June 17, 2020, police responded to a reported burglary at a Fred Meyer store in
Spokane Valley, Washington. Surveillance footage showed a man driving a silver
minivan pull up near the garden center, cut a padlock with bolt cutters, enter the gate, and
remove several pieces of store merchandise. The store’s loss prevention officer
recognized Ehlert and his distinctively damaged silver minivan from previous
investigations.
Police arrested Ehlert later that day while he was driving the minivan. The missing
merchandise was not in the van. During a search incident to arrest, police discovered
2 No. 37780-6-III State v. Ehlert
under one-half of a gram of methamphetamine in Ehlert’s front pocket.
The State charged Ehlert by amended information with second degree burglary
(count 1), third degree malicious mischief (count 2), second degree retail theft with
special circumstances (count 3), and possession of a controlled substance (count 4).
A jury found Ehlert guilty as charged.
Sentencing on current offenses
Ehlert requested a prison-based DOSA with all convictions running concurrent
with one another. The State opposed the request, contending Ehlert was ineligible under
the DOSA statute because he had two prior DOSA sentences. Ehlert responded that
because the two DOSA sentences were the subject of only one course of treatment, they
should count as only one DOSA sentence for eligibility purposes. The court remarked
that a DOSA would be appropriate for Ehlert but concluded that the statute removed its
discretion. The court accordingly imposed a standard range concurrent sentence.
Ehlert timely appealed.
ANALYSIS
DOSA ELIGIBILITY
Ehlert contends the sentencing court erred in interpreting RCW 9.94A.660 to
preclude his eligibility for a prison-based DOSA sentence. We agree.
3 No. 37780-6-III State v. Ehlert
The DOSA statute authorizes a court to impose an alternative sentence, including
substance abuse treatment and rehabilitation incentives, when this would be in the best
interests of the defendant and the community. State v. Grayson, 154 Wn.2d 333, 343, 111
P.3d 1183 (2005). The DOSA program is part of the Sentencing Reform Act of 1981
(SRA), chapter 9.94A RCW, the purposes of which include protecting the public and
offering offenders the opportunity to improve themselves. See RCW 9.94A.010. Under a
DOSA sentence, the offender serves one-half of the standard range sentence in prison and
the remaining one-half of the sentence in the community with supervised treatment.
Grayson, 154 Wn.2d at 337-38. A DOSA sentence may be revoked for noncompliance.
State v. Van Noy, 3 Wn. App. 2d 494, 498, 416 P.3d 751 (2018). Accordingly, DOSA
participants have significant incentive to comply with conditions because failure to do so
results in them serving the remainder of their sentence in prison. RCW 9.94A.660(2);
Grayson, 154 Wn.2d at 337-38.
4 No. 37780-6-III State v. Ehlert
To be eligible for a DOSA sentence, offenders must meet seven conditions. See
former RCW 9.94A.660(1)(a)-(g) (2019).1 The condition at issue requires “[t]he offender
has not received a drug offender sentencing alternative more than once in the prior ten
years before the current offense.” RCW 9.94A.660(1)(g).
The meaning of a statute is a question of law that we review de novo. State v.
Wooten, 178 Wn.2d 890, 895, 312 P.3d 41 (2013). When engaging in statutory
interpretation, our goal is to ascertain the legislature’s intent. State v. Yancey, 193 Wn.2d
26, 30, 434 P.3d 518 (2019). “The surest indication of legislative intent is the language
enacted by the legislature, so if the meaning of a statute is plain on its face, we ‘give
effect to that plain meaning.’” State v. Ervin, 169 Wn.2d 815, 820, 239 P.3d 354 (2010)
1 (a) The offender is convicted of a felony that is not a violent offense or sex offense and the violation does not involve a sentence enhancement under RCW 9.94A.533(3) or (4); (b) The offender is convicted of a felony that is not a felony driving while under the influence . . . ; (c) The offender has no current or prior convictions for a sex offense . . . ; (d) For a violation of the Uniform Controlled Substances Act . . ., the offense involved only a small quantity of the particular controlled substance as determined by the judge . . . ; (e) The offender has not been found by the United States attorney general to be subject to a deportation detainer or order . . . ; .... (g) The offender has not received a drug offender sentencing alternative more than once in the prior ten years before the current offense.
5 No. 37780-6-III State v. Ehlert
(internal quotation marks omitted) (quoting Dep’t of Ecology v. Campbell & Gwinn, LLC,
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FILED OCTOBER 12, 2021 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 DIVISION THREE
STATE OF WASHINGTON, ) No. 37780-6-III ) Respondent, ) ) v. ) PUBLISHED OPINION ) KEVIN P. EHLERT, ) ) Appellant. )
LAWRENCE-BERREY, J. — Under RCW 9.94A.660(1), an offender is eligible for a
drug offender sentencing alternative (DOSA) if they meet seven conditions. One
condition requires the offender to not have “received” a DOSA more than once in the
prior 10 years before the current offense. RCW 9.94A.660(1)(g).
Four years before Kevin Ehlert’s current offense, a court imposed two DOSA
sentences on separate days but ordered that they be served concurrently. The question
presented is whether a person “receives” a DOSA at sentencing or whether a person
“receives” a DOSA through a course of treatment and rehabilitation. We hold that a
person “receives” a DOSA through a course of treatment and conclude that Ehlert’s prior No. 37780-6-III State v. Ehlert
concurrent sentences do not render him ineligible for a DOSA. We remand for the trial
court to decide whether to grant Ehlert a DOSA.
FACTS
Prior DOSA sentences
In 2016, Ehlert was terminated from drug court on several charges unrelated to the
current offenses. The charges were tried in two bench trials. Both trials resulted in guilty
verdicts. Separate DOSA sentences were entered within weeks of each other. The
resulting sentences were expressly made to run concurrent with each other. Ehlert
successfully completed his DOSA in early June 2020.
Current offenses
On June 17, 2020, police responded to a reported burglary at a Fred Meyer store in
Spokane Valley, Washington. Surveillance footage showed a man driving a silver
minivan pull up near the garden center, cut a padlock with bolt cutters, enter the gate, and
remove several pieces of store merchandise. The store’s loss prevention officer
recognized Ehlert and his distinctively damaged silver minivan from previous
investigations.
Police arrested Ehlert later that day while he was driving the minivan. The missing
merchandise was not in the van. During a search incident to arrest, police discovered
2 No. 37780-6-III State v. Ehlert
under one-half of a gram of methamphetamine in Ehlert’s front pocket.
The State charged Ehlert by amended information with second degree burglary
(count 1), third degree malicious mischief (count 2), second degree retail theft with
special circumstances (count 3), and possession of a controlled substance (count 4).
A jury found Ehlert guilty as charged.
Sentencing on current offenses
Ehlert requested a prison-based DOSA with all convictions running concurrent
with one another. The State opposed the request, contending Ehlert was ineligible under
the DOSA statute because he had two prior DOSA sentences. Ehlert responded that
because the two DOSA sentences were the subject of only one course of treatment, they
should count as only one DOSA sentence for eligibility purposes. The court remarked
that a DOSA would be appropriate for Ehlert but concluded that the statute removed its
discretion. The court accordingly imposed a standard range concurrent sentence.
Ehlert timely appealed.
ANALYSIS
DOSA ELIGIBILITY
Ehlert contends the sentencing court erred in interpreting RCW 9.94A.660 to
preclude his eligibility for a prison-based DOSA sentence. We agree.
3 No. 37780-6-III State v. Ehlert
The DOSA statute authorizes a court to impose an alternative sentence, including
substance abuse treatment and rehabilitation incentives, when this would be in the best
interests of the defendant and the community. State v. Grayson, 154 Wn.2d 333, 343, 111
P.3d 1183 (2005). The DOSA program is part of the Sentencing Reform Act of 1981
(SRA), chapter 9.94A RCW, the purposes of which include protecting the public and
offering offenders the opportunity to improve themselves. See RCW 9.94A.010. Under a
DOSA sentence, the offender serves one-half of the standard range sentence in prison and
the remaining one-half of the sentence in the community with supervised treatment.
Grayson, 154 Wn.2d at 337-38. A DOSA sentence may be revoked for noncompliance.
State v. Van Noy, 3 Wn. App. 2d 494, 498, 416 P.3d 751 (2018). Accordingly, DOSA
participants have significant incentive to comply with conditions because failure to do so
results in them serving the remainder of their sentence in prison. RCW 9.94A.660(2);
Grayson, 154 Wn.2d at 337-38.
4 No. 37780-6-III State v. Ehlert
To be eligible for a DOSA sentence, offenders must meet seven conditions. See
former RCW 9.94A.660(1)(a)-(g) (2019).1 The condition at issue requires “[t]he offender
has not received a drug offender sentencing alternative more than once in the prior ten
years before the current offense.” RCW 9.94A.660(1)(g).
The meaning of a statute is a question of law that we review de novo. State v.
Wooten, 178 Wn.2d 890, 895, 312 P.3d 41 (2013). When engaging in statutory
interpretation, our goal is to ascertain the legislature’s intent. State v. Yancey, 193 Wn.2d
26, 30, 434 P.3d 518 (2019). “The surest indication of legislative intent is the language
enacted by the legislature, so if the meaning of a statute is plain on its face, we ‘give
effect to that plain meaning.’” State v. Ervin, 169 Wn.2d 815, 820, 239 P.3d 354 (2010)
1 (a) The offender is convicted of a felony that is not a violent offense or sex offense and the violation does not involve a sentence enhancement under RCW 9.94A.533(3) or (4); (b) The offender is convicted of a felony that is not a felony driving while under the influence . . . ; (c) The offender has no current or prior convictions for a sex offense . . . ; (d) For a violation of the Uniform Controlled Substances Act . . ., the offense involved only a small quantity of the particular controlled substance as determined by the judge . . . ; (e) The offender has not been found by the United States attorney general to be subject to a deportation detainer or order . . . ; .... (g) The offender has not received a drug offender sentencing alternative more than once in the prior ten years before the current offense.
5 No. 37780-6-III State v. Ehlert
(internal quotation marks omitted) (quoting Dep’t of Ecology v. Campbell & Gwinn, LLC,
146 Wn.2d 1, 9, 43 P.3d 4 (2002)). Plain meaning may be discerned “by considering the
text of the provision in question, the context of the statute in which the provision is found,
related provisions, and the statutory scheme as a whole.” State v. Dennis, 191 Wn.2d
169, 172-73, 421 P.3d 944 (2018). If there is more than one reasonable interpretation of
the plain language, then the statute is ambiguous and we may turn to other interpretive
aids, including relevant case law. Id. at 173; Campbell & Gwinn, 146 Wn.2d at 12.
The parties focus on the meaning of “received” in RCW 9.94A.660(1)(g). The
term is not defined in the statute so we consider its common and ordinary meaning.
HomeStreet, Inc. v. Dep’t of Revenue, 166 Wn.2d 444, 451, 210 P.3d 297 (2009). We
may look to the dictionary to determine this meaning. Id. “Received” is defined as “to
take in or accept” and “to be the subject of : UNDERGO, EXPERIENCE.” MERRIAM-
WEBSTER’S DICTIONARY AND THESAURUS 670 (2007).
The plain language of the statute is susceptible to two reasonable interpretations.
One is the State’s interpretation: an offender receives—takes or accepts—a DOSA each
time they are given a DOSA sentence. That would disqualify Ehlert from a DOSA
because he received two DOSA sentences. The other is Ehlert’s interpretation: an
offender receives—undergoes or experiences—a DOSA each time they receive a course
6 No. 37780-6-III State v. Ehlert
of treatment. This would not disqualify Ehlert from a DOSA because his prior concurrent
DOSA sentences caused him to undergo or experience only one course of treatment. We
conclude the subsection is ambiguous, so we must go beyond the statute’s language to
determine the legislature’s intent.
Both Ehlert and the State direct us to the court’s analysis of the legislative intent in
Van Noy. There, the defendant committed several crimes in Pierce, King, and Snohomish
Counties. 3 Wn. App. 2d at 495. Prior to sentencing on the Snohomish County charge,
King County sentenced the defendant to a DOSA to be served concurrent with the Pierce
County DOSA. Id. at 496. The Snohomish County court determined that the prior
concurrent sentences disqualified the defendant from a DOSA sentence. Id. The
defendant appealed. Id. at 497.
The Van Noy court did not construe the word “received” in reaching its decision.
Rather, it construed the last four words in RCW 9.94A.660(1)(g)—“before the current
offense.” Id. at 498. The Van Noy court held that “before the current offense” means
before the offender committed the current offense. Id. at 500. The court concluded that
the defendant was eligible for a DOSA because he committed the current offense before
he received his two DOSA sentences. Id. at 503.
7 No. 37780-6-III State v. Ehlert
In reaching its conclusion, the Van Noy court discussed the legislative intent of
RCW 9.94A.660(1)(g):
In context, this condition . . . directs the sentencing court to consider . . . whether [the current offense] occurred despite prior DOSA sentences. . . . While a DOSA serves to provide meaningful substance abuse treatment and rehabilitation incentives, opportunities for rehabilitation are not unlimited. Grayson, 154 Wn.2d at 338, 343. . . . [T]he commission of a drug-related offense despite more than one DOSA . . . is evidence that a DOSA is not appropriate. The limitation on eligibility in RCW 9.94A.660(1)(g) addresses this scenario and makes such an offender ineligible.
Id. at 500 (emphasis added). Indeed, opportunities for treatment and rehabilitation are not
unlimited. The legislature limited these opportunities to not “more than once in the prior
ten years before the current offense.” RCW 9.94A.660(1)(g). Because two DOSA
sentences served concurrently provide an offender with only one opportunity for
treatment and rehabilitation, we hold that such sentences do not render an offender
ineligible under RCW 9.94A.660(1)(g) for a subsequent DOSA.
The State directs us to language in Van Noy that is contrary to our holding. In a
footnote, the Van Noy court said that the concurrent King County and Pierce County
sentences were not a single DOSA. Van Noy, 3 Wn. App. 2d at 497 n.2. This statement
is nonbinding dicta. The court decided the question before it on a different basis. Also,
the dicta is inconsistent with the above-quoted discussion in Van Noy, which confirms
8 No. 37780-6-111 State v. Ehlert
that the legislature intended to give an offender a second opportunity for treatment and
rehabilitation.
Ehlert received only one opportunity for treatment and rehabilitation.
Unfortunately, he reoffended soon after completing his concurrent DOSA sentences.
Nevertheless, the legislature intended that he have a second opportunity for treatment and
rehabilitation. Ehlert is eligible for a DOSA despite receiving one course of treatment in
two concurrent sentences. We remand for the trial court to exercise its discretion whether
to permit Ehlert a DOSA. 2
Remand for resentencing.
Lawrence-Berrey, J. \ j WE CONCUR:
Pennell, C.J.
2 In supplemental briefing, the parties agree that Ehlert's possession of a controlled substance conviction must be vacated pursuant to State v. Blake, 197 Wn.2d 170,481 P.3d 521 (2021). On remand, we direct the trial court to strike that conviction from Ehlert's felony judgment and sentence.