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Methadone Treatment is Not Inconsistent with Washington’s Drug Offender Sentencing Alternative
The drug offender sentencing alternative (DOSA) of the Sentencing Reform Act may be utilized to afford offenders methadone treatment the Washington Court of Appeals held on June 9, 2008.
David Anderson pled guilty to reckless burning in the first degree and assault in the fourth degree. Anderson requested a DOSA, which provides a reduced sentence in custody, followed by closely monitored community supervision and treatment for the remainder of the sentence. The court denied Anderson a DOSA.
Anderson had been receiving methadone treatments before and during his incarceration pending sentencing. At sentence, the court expressed it belief that methadone treatment was inconsistent with the DOSA statute. It also expressed concern with a negative treatment evaluation Anderson had received. Accordingly, the court imposed a standard range sentence. Anderson appealed.
The Court of Appeals, while disagreeing with the lower court that methadone treatment is categorically inconsistent with the DOSA statute, affirmed the standard range sentence. The appellate court concluded that the trial court had properly exercised its discretion by determining that Anderson had not received effective treatment during pretrial confinement and was thus ineligible for a DOSA. See: Washington v. Anderson, Wa. Ct. of App., Div. One, No. 60018-4-I (June 8, 2008).
David Anderson pled guilty to reckless burning in the first degree and assault in the fourth degree. Anderson requested a DOSA, which provides a reduced sentence in custody, followed by closely monitored community supervision and treatment for the remainder of the sentence. The court denied Anderson a DOSA.
Anderson had been receiving methadone treatments before and during his incarceration pending sentencing. At sentence, the court expressed it belief that methadone treatment was inconsistent with the DOSA statute. It also expressed concern with a negative treatment evaluation Anderson had received. Accordingly, the court imposed a standard range sentence. Anderson appealed.
The Court of Appeals, while disagreeing with the lower court that methadone treatment is categorically inconsistent with the DOSA statute, affirmed the standard range sentence. The appellate court concluded that the trial court had properly exercised its discretion by determining that Anderson had not received effective treatment during pretrial confinement and was thus ineligible for a DOSA. See: Washington v. Anderson, Wa. Ct. of App., Div. One, No. 60018-4-I (June 8, 2008).
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Related legal case
Washington v. Anderson
| Year | 2008 |
|---|---|
| Cite | Wa. Ct. of App., Div. One, No. 60018-4-I (June 8, 2008) |
| Level | State Court of Appeals |
The State of Washington, Respondent, v. David Allen Anderson, Appellant.
No. 60018-4-I
COURT OF APPEALS OF WASHINGTON, DIVISION ONE
June 9, 2008, Filed
NOTICE: RULES OF THE WASHINGTON COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE WASHINGTON RULES OF COURT.
OPINION
¶1 Per Curiam ? A court's decision whether to sentence a defendant under the drug offender sentencing alternative (DOSA) of the Sentencing Reform Act, RCW 9.94A.660, generally is not reviewable. Here, the record indicates the court considered David Anderson's DOSA request and exercised its discretion in denying the alternative in favor of a standard range sentence. Though troubled by the court's remarks concerning methadone treatment for opiate dependence, we are satisfied the court did not categorically refuse Anderson's DOSA request on that basis. Our review being limited to that question, we [*2] affirm.
BACKGROUND
¶2 David Anderson was charged with arson in the first degree?domestic violence, and pleaded guilty to reckless burning in the first degree and assault in the fourth degree. Anderson, who received methadone treatment for opiate dependence before his arrest and during his incarceration in the King County jail, requested the court to impose a DOSA. The State supported the request. A presentence DOSA evaluation confirmed Anderson's eligibility and recommended he continue opiate maintenance treatment.
¶3 Had a DOSA been granted, Anderson would serve 12.75 months in custody. Ordinarily, this would necessitate his transfer to the Department of Corrections (DOC). But because DOC does not administer a methadone treatment program, Anderson and the State repeatedly continued his trial and sentencing dates so he would serve the entirety of his anticipated confinement in the King County jail. Upon sentencing, Anderson would then begin the community custody portion of his sentence.
¶4 One week before sentencing, the court notified the parties he did not believe in methadone as part of a ?clean and sober? treatment program and was not inclined to grant the DOSA, but would ?await the sentencing [*3] for further information.? Appellant's Br., App. D.
¶5 Anderson's counsel submitted a presentence report describing Anderson's treatment, the widespread acceptance of methadone as an appropriate treatment for heroin addiction, and the likely impacts of an abrupt withdrawal from methadone. Anderson attached several articles documenting methadone's effectiveness in treatment and describing local and national policy initiatives to expand methadone programs.
¶6 At the sentencing hearing, Anderson's counsel explained that Anderson needed treatment for alcoholism as well as heroin addiction, and argued a DOSA was the best way to deliver appropriate treatment. Anderson had received no alcohol treatment while in custody, but received methadone at the King County jail and accessed mental health services during his incarceration. Anderson's counsel and social worker informed the court that methadone was not available in prison and that his transfer to the DOC would require a precipitous opiate withdrawal. Because Anderson has hepatitis C and a heart condition, social worker Kristin Shotwell worried this would endanger his health and recovery.
¶7 The judge stated his belief that methadone treatment is inconsistent [*4] with a DOSA and granted a continuance to hear testimony on the issue of a forced withdrawal at the DOC.
¶8 At the next hearing, Anderson presented evidence from Ron Jackson, executive director of Evergreen Treatment Services. Jackson testified that methadone treatment has undergone rigorous study and is considered ?the most evidence-based in all of addiction treatment.? Report of Proceedings (RP) (May 18, 2007) at 13. Jackson explained that indefinite methadone maintenance was one component of a treatment approach that should include psychosocial counseling, medical assistance, and close monitoring to detect and eliminate the use of alcohol and other substances. ?There is no evidence to support the effectiveness of medication alone ? for the treatment of any kind of addictive disorder.? Id. at 12.
¶9 Anderson also presented evidence that the gaps in his criminal history occurred while he was receiving methadone treatment or incarcerated, and argued the treatment effectively prevents his criminal activity.
¶10 The judge acknowledged that Anderson was eligible for a DOSA, but reiterated his belief that methadone treatment was inconsistent with that program. Nonetheless, the court had ?gone back [*5] and forth on this issue.? Id. at 30. The court referred to Anderson's DOSA evaluation, which indicated that Anderson lacked ?insight into his entitlement issues of having a methadone program and using alcohol? and needed counseling and monitoring. Id. The court denied the DOSA and imposed a standard range sentence.
¶11 Anderson appealed, and filed an emergency motion seeking accelerated review and a stay of his sentence and transfer to DOC. But Anderson had already been transferred and was receiving medical assistance for methadone withdrawal. A commissioner of this court found the situation troubling, ?[b]ut there is no showing of medical risk warranting the extraordinary step of issuing a stay to require a return to some other facility, especially when his current treatment program has been terminated and it is uncertain what practical benefit there might be.? Commissioner's Ruling (May 25, 2007) at 2.
¶12 Anderson has since been released and his appeal is technically moot. We consider the merits as a matter of substantial public interest. See Sorenson v. City of Bellingham, 80 Wn.2d 547, 558, 496 P.2d 512 (1972) (appellate courts may decide an appeal that has otherwise become moot when it [*6] involves matters of continuing and substantial public interest).
DISCUSSION
¶13 Whether to grant a DOSA rests in the sentencing court's discretion. State v. Smith, 142 Wn. App. 122, 129, 173 P.3d 973 (2007). ?Generally, a standard range sentence, of which a DOSA is an alternate form, may not be appealed.? State v. Smith, 118 Wn. App. 288, 292, 75 P.3d 986 (2003). But a party is not barred from challenging legal errors or abuses of discretion, including the court's refusal to exercise its discretion. Id.; State v. Gronnert, 122 Wn. App. 214, 225, 93 P.3d 200 (2004). A court refuses to exercise discretion when it categorically refuses to consider a sentencing alternative, or refuses to consider it for a class of offenders. State v. Grayson, 154 Wn.2d 333, 342, 111 P.3d 1183 (2005).
¶14 Anderson contends the court categorically refused to consider a DOSA for anyone receiving methadone treatment.
¶15 It is apparent the court was skeptical and considered methadone inconsistent with the DOSA program and with a clean and sober recovery from addiction. While this view appears outdated and is undermined by current research and policy, 1 the court's other comments indicate it did not refuse to consider a DOSA [*7] solely on this basis.
FOOTNOTES
1 See, e.g., Laws of 2001, chapter 242, section 1, where the legislature found: ?[W]hile opiate substitution drugs used in the treatment of opiate dependency are addictive substances, ? they nevertheless have several legal, important, and justified uses. ? [O]ne of their appropriate uses is, in conjunction with other required therapeutic procedures, in the treatment of persons addicted to or habituated to opioids.?
¶16 When the court first informed the parties of its position on methadone treatment as part of a DOSA, it invited the parties to provide additional information before making a decision. The court then specifically requested medical testimony concerning the impact of a precipitous withdrawal from methadone. Anderson's expert witness, Ron Jackson, testified that methadone treatment was ineffective unless combined with psychosocial counseling.
¶17 The only treatment Anderson received during his incarceration was methadone, and this weighed heavily in the court's decision. 2 The DOSA statute contemplates that an offender will receive ?treatment services appropriate for the offender? during his or her confinement. RCW 9.94A.660(5)(a). The court refused to impose [*8] a DOSA, at least in part because Anderson had completed the confinement portion of the sentence without receiving treatment appropriate to address his addiction to alcohol and heroin.
FOOTNOTES
2 The court stated: ?I am concerned about both Mr. Anderson and the community, because to my knowledge he has received no treatment other than the drugs since he has been in here. We are going to send him out into the community with actually no treatment, in effect. So we send him out back into the community just like he got here. ? Usually when I do a DOSA and we talk about 12.75 months and half time of the incarceration, we are talking about he has received some drug and alcohol treatment. ? It certainly didn't happen in this case because he kept continuing his trial and the State was complicit in that.? RP (May 18, 2007) at 31-32.
¶18 In Gronnert, we upheld a court's refusal to grant a DOSA based on its belief that the program was a ?scam? and a ?sham.? Gronnert, 122 Wn. App. at 225-26. Because the court also commented that DOSA was an ineffective way to deal with drug offender behavior and provided little, if any, benefit beyond reducing a sentence, we determined the court had exercised its discretion. [*9] Id. at 226. The trial judge's decision not to grant a DOSA was thus an exercise of discretion and not reviewable. RCW 9.94A.585(1).
¶19 We are troubled by the court's position on methadone treatment, and we reject the notion that such treatment is inconsistent with the DOSA program. 3 But there is a distinction between refusal to exercise judicial discretion at all and the exercise of discretion based upon tenable factors that the court considers ahead of time. Smith, 118 Wn. App. at 293. Here, the court's concern that Anderson had not received treatment adequate to protect himself and the community indicates the court exercised its discretion to deny the DOSA. Our review being limited to that question, we affirm.
FOOTNOTES
3 The DOSA program represents an attempt to provide treatment for offenders judged likely to benefit from it. Grayson, 154 Wn.2d at 337. The program provides a reduced sentence in custody, followed by closely monitored community supervision and treatment for the balance of the sentence. RCW 9.94A.660(5)(a). The goal of the program is to maximize the potential for successful rehabilitation of those drug offenders to whom the statute applies. State v. McNeair 88 Wn. App. 331, 341, 944 P.2d 1099 (1997). [*10] For some offenders, methadone, as one component of a comprehensive course of treatment, may offer the best chance for rehabilitation. Nothing in the DOSA statute suggests methadone treatment is incompatible with the program.
No. 60018-4-I
COURT OF APPEALS OF WASHINGTON, DIVISION ONE
June 9, 2008, Filed
NOTICE: RULES OF THE WASHINGTON COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE WASHINGTON RULES OF COURT.
OPINION
¶1 Per Curiam ? A court's decision whether to sentence a defendant under the drug offender sentencing alternative (DOSA) of the Sentencing Reform Act, RCW 9.94A.660, generally is not reviewable. Here, the record indicates the court considered David Anderson's DOSA request and exercised its discretion in denying the alternative in favor of a standard range sentence. Though troubled by the court's remarks concerning methadone treatment for opiate dependence, we are satisfied the court did not categorically refuse Anderson's DOSA request on that basis. Our review being limited to that question, we [*2] affirm.
BACKGROUND
¶2 David Anderson was charged with arson in the first degree?domestic violence, and pleaded guilty to reckless burning in the first degree and assault in the fourth degree. Anderson, who received methadone treatment for opiate dependence before his arrest and during his incarceration in the King County jail, requested the court to impose a DOSA. The State supported the request. A presentence DOSA evaluation confirmed Anderson's eligibility and recommended he continue opiate maintenance treatment.
¶3 Had a DOSA been granted, Anderson would serve 12.75 months in custody. Ordinarily, this would necessitate his transfer to the Department of Corrections (DOC). But because DOC does not administer a methadone treatment program, Anderson and the State repeatedly continued his trial and sentencing dates so he would serve the entirety of his anticipated confinement in the King County jail. Upon sentencing, Anderson would then begin the community custody portion of his sentence.
¶4 One week before sentencing, the court notified the parties he did not believe in methadone as part of a ?clean and sober? treatment program and was not inclined to grant the DOSA, but would ?await the sentencing [*3] for further information.? Appellant's Br., App. D.
¶5 Anderson's counsel submitted a presentence report describing Anderson's treatment, the widespread acceptance of methadone as an appropriate treatment for heroin addiction, and the likely impacts of an abrupt withdrawal from methadone. Anderson attached several articles documenting methadone's effectiveness in treatment and describing local and national policy initiatives to expand methadone programs.
¶6 At the sentencing hearing, Anderson's counsel explained that Anderson needed treatment for alcoholism as well as heroin addiction, and argued a DOSA was the best way to deliver appropriate treatment. Anderson had received no alcohol treatment while in custody, but received methadone at the King County jail and accessed mental health services during his incarceration. Anderson's counsel and social worker informed the court that methadone was not available in prison and that his transfer to the DOC would require a precipitous opiate withdrawal. Because Anderson has hepatitis C and a heart condition, social worker Kristin Shotwell worried this would endanger his health and recovery.
¶7 The judge stated his belief that methadone treatment is inconsistent [*4] with a DOSA and granted a continuance to hear testimony on the issue of a forced withdrawal at the DOC.
¶8 At the next hearing, Anderson presented evidence from Ron Jackson, executive director of Evergreen Treatment Services. Jackson testified that methadone treatment has undergone rigorous study and is considered ?the most evidence-based in all of addiction treatment.? Report of Proceedings (RP) (May 18, 2007) at 13. Jackson explained that indefinite methadone maintenance was one component of a treatment approach that should include psychosocial counseling, medical assistance, and close monitoring to detect and eliminate the use of alcohol and other substances. ?There is no evidence to support the effectiveness of medication alone ? for the treatment of any kind of addictive disorder.? Id. at 12.
¶9 Anderson also presented evidence that the gaps in his criminal history occurred while he was receiving methadone treatment or incarcerated, and argued the treatment effectively prevents his criminal activity.
¶10 The judge acknowledged that Anderson was eligible for a DOSA, but reiterated his belief that methadone treatment was inconsistent with that program. Nonetheless, the court had ?gone back [*5] and forth on this issue.? Id. at 30. The court referred to Anderson's DOSA evaluation, which indicated that Anderson lacked ?insight into his entitlement issues of having a methadone program and using alcohol? and needed counseling and monitoring. Id. The court denied the DOSA and imposed a standard range sentence.
¶11 Anderson appealed, and filed an emergency motion seeking accelerated review and a stay of his sentence and transfer to DOC. But Anderson had already been transferred and was receiving medical assistance for methadone withdrawal. A commissioner of this court found the situation troubling, ?[b]ut there is no showing of medical risk warranting the extraordinary step of issuing a stay to require a return to some other facility, especially when his current treatment program has been terminated and it is uncertain what practical benefit there might be.? Commissioner's Ruling (May 25, 2007) at 2.
¶12 Anderson has since been released and his appeal is technically moot. We consider the merits as a matter of substantial public interest. See Sorenson v. City of Bellingham, 80 Wn.2d 547, 558, 496 P.2d 512 (1972) (appellate courts may decide an appeal that has otherwise become moot when it [*6] involves matters of continuing and substantial public interest).
DISCUSSION
¶13 Whether to grant a DOSA rests in the sentencing court's discretion. State v. Smith, 142 Wn. App. 122, 129, 173 P.3d 973 (2007). ?Generally, a standard range sentence, of which a DOSA is an alternate form, may not be appealed.? State v. Smith, 118 Wn. App. 288, 292, 75 P.3d 986 (2003). But a party is not barred from challenging legal errors or abuses of discretion, including the court's refusal to exercise its discretion. Id.; State v. Gronnert, 122 Wn. App. 214, 225, 93 P.3d 200 (2004). A court refuses to exercise discretion when it categorically refuses to consider a sentencing alternative, or refuses to consider it for a class of offenders. State v. Grayson, 154 Wn.2d 333, 342, 111 P.3d 1183 (2005).
¶14 Anderson contends the court categorically refused to consider a DOSA for anyone receiving methadone treatment.
¶15 It is apparent the court was skeptical and considered methadone inconsistent with the DOSA program and with a clean and sober recovery from addiction. While this view appears outdated and is undermined by current research and policy, 1 the court's other comments indicate it did not refuse to consider a DOSA [*7] solely on this basis.
FOOTNOTES
1 See, e.g., Laws of 2001, chapter 242, section 1, where the legislature found: ?[W]hile opiate substitution drugs used in the treatment of opiate dependency are addictive substances, ? they nevertheless have several legal, important, and justified uses. ? [O]ne of their appropriate uses is, in conjunction with other required therapeutic procedures, in the treatment of persons addicted to or habituated to opioids.?
¶16 When the court first informed the parties of its position on methadone treatment as part of a DOSA, it invited the parties to provide additional information before making a decision. The court then specifically requested medical testimony concerning the impact of a precipitous withdrawal from methadone. Anderson's expert witness, Ron Jackson, testified that methadone treatment was ineffective unless combined with psychosocial counseling.
¶17 The only treatment Anderson received during his incarceration was methadone, and this weighed heavily in the court's decision. 2 The DOSA statute contemplates that an offender will receive ?treatment services appropriate for the offender? during his or her confinement. RCW 9.94A.660(5)(a). The court refused to impose [*8] a DOSA, at least in part because Anderson had completed the confinement portion of the sentence without receiving treatment appropriate to address his addiction to alcohol and heroin.
FOOTNOTES
2 The court stated: ?I am concerned about both Mr. Anderson and the community, because to my knowledge he has received no treatment other than the drugs since he has been in here. We are going to send him out into the community with actually no treatment, in effect. So we send him out back into the community just like he got here. ? Usually when I do a DOSA and we talk about 12.75 months and half time of the incarceration, we are talking about he has received some drug and alcohol treatment. ? It certainly didn't happen in this case because he kept continuing his trial and the State was complicit in that.? RP (May 18, 2007) at 31-32.
¶18 In Gronnert, we upheld a court's refusal to grant a DOSA based on its belief that the program was a ?scam? and a ?sham.? Gronnert, 122 Wn. App. at 225-26. Because the court also commented that DOSA was an ineffective way to deal with drug offender behavior and provided little, if any, benefit beyond reducing a sentence, we determined the court had exercised its discretion. [*9] Id. at 226. The trial judge's decision not to grant a DOSA was thus an exercise of discretion and not reviewable. RCW 9.94A.585(1).
¶19 We are troubled by the court's position on methadone treatment, and we reject the notion that such treatment is inconsistent with the DOSA program. 3 But there is a distinction between refusal to exercise judicial discretion at all and the exercise of discretion based upon tenable factors that the court considers ahead of time. Smith, 118 Wn. App. at 293. Here, the court's concern that Anderson had not received treatment adequate to protect himself and the community indicates the court exercised its discretion to deny the DOSA. Our review being limited to that question, we affirm.
FOOTNOTES
3 The DOSA program represents an attempt to provide treatment for offenders judged likely to benefit from it. Grayson, 154 Wn.2d at 337. The program provides a reduced sentence in custody, followed by closely monitored community supervision and treatment for the balance of the sentence. RCW 9.94A.660(5)(a). The goal of the program is to maximize the potential for successful rehabilitation of those drug offenders to whom the statute applies. State v. McNeair 88 Wn. App. 331, 341, 944 P.2d 1099 (1997). [*10] For some offenders, methadone, as one component of a comprehensive course of treatment, may offer the best chance for rehabilitation. Nothing in the DOSA statute suggests methadone treatment is incompatible with the program.