State Of Washington v. Shaitaya Mccool ( 2021 )

Filed
Washington State
Court of Appeals
Division Two
February 17, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 53937-3-II
Respondent,
v.
Consolidated
SHAITAYA MCCOOL,
Appellant.
STATE OF WASHINGTON, No. 53934-9-II
Respondent,
v.
SHAITAYA MCCOOL,
Appellant.
STATE OF WASHINGTON, No. 53944-6-II
Respondent,
v.
SHAITAYA MCCOOL,
Appellant.
STATE OF WASHINGTON, No. 53947-1-II
Respondent,
v.
SHAITAYA MCCOOL,
Appellant.
No. 53937-3
Cons. Nos. 53934-9; 53944-6; 53947-1; 53954-3-II
STATE OF WASHINGTON, No. 53954-3-II
Respondent,
v.
SHAITAYA MCCOOL, UNPUBLISHED OPINION
Appellant.
WORSWICK, J. — Shaitaya McCool appeals her standard range sentence for delivery of
heroin, possession of methamphetamine, possession of heroin, theft in the second degree,
identity theft in the second degree, vehicle prowl in the second degree, and possession of stolen
property in the second degree. She argues that the trial court erred by not granting her requests
for a Drug Offender Sentencing Alternative (DOSA). Specifically, McCool argues that the trial
court failed to fully and fairly consider McCool’s appropriateness for a prison-based DOSA and
that the trial court denied her request on untenable grounds for untenable reasons. She also
argues, and the State concedes, that the trial court should strike the interest accrual provision on
all legal financial obligations (LFOs) and a discretionary Department of Corrections (DOC)
community supervision fee. We affirm McCool’s standard range sentence, but remand to the
trial court to strike the community supervision fee and interest accrual provision.
FACTS
In July 2019, Shaitaya McCool pleaded guilty to one count of delivery of a controlled
substance—heroin, two counts of possession of a controlled substance—heroin, two counts of
possession of a controlled substance—methamphetamine, three counts of theft in the second
degree, four counts of identity theft in the second degree, one count of vehicle prowl in the
2
No. 53937-3
Cons. Nos. 53934-9; 53944-6; 53947-1; 53954-3-II
second degree—felony, and one count of possession of stolen property in the second degree.
McCool requested to be screened for DOSA eligibility. The trial court determined that McCool
was eligible for DOSA.
The DOC filed a Risk Assessment Report as part of the DOSA screening report that
listed McCool’s history of drug use and drug dependency. The report also listed McCool’s
criminal history, much of which was drug related, which dates back to 2010.
McCool was sentenced in August 2019. At sentencing, McCool’s DOC community
corrections officer filed a letter with the trial court detailing the officer’s experience with
McCool since her last release from prison in August 2018. The corrections officer explained that
McCool had eight DOC violations since her release, including failure to report, failure to follow
facility rules, consumption of controlled substances including methamphetamine and heroin,
associating with known felons, and traveling outside the state without permission. Attached to
the letter was a report from Clark County Jail listing McCool’s facility rule violations while in
custody awaiting sentencing, including possession of heroin paraphernalia.
At the August 2019 sentencing hearing, the State argued that DOSA was not appropriate,
despite McCool’s eligibility because her DOC violations and repeated drug infractions
demonstrate an unwillingness to change her behavior. Therefore, the State argued, McCool was
unlikely to comply with DOSA requirements. McCool argued that based on the Risk
Assessment Report she would benefit from DOSA.
3
No. 53937-3
Cons. Nos. 53934-9; 53944-6; 53947-1; 53954-3-II
The trial court acknowledged that McCool was statutorily eligible for DOSA, but stated it
had “a certain amount of discretion” to grant or deny a DOSA. Report of Proceedings (RP) at
42. The trial court denied the DOSA. The trial court explained:
[T]here are certain things that we look for, certain characteristics that are more
prone to make this program a success or less likely to make this program a success.
And I don’t have any doubt that the drug use here is a major concern. . . .
My concern is that it’s perhaps—perhaps too little too late vis a vis the
whole pattern and constellation of information that I have in front of me, including
the report here and the DOC statement.
Again . . . it’s one that doesn’t seem to fit and from my standpoint is a good
use of resources and risks to try to squeeze into this program given the history,
which we see a fairly consistent pattern of non-compliance, which is not a good
sign for chances of success.
So there may be resources there in prison. I’m sure there are. I hope you
take advantage of them, but I’m not going to grant the DOSA alternative.
RP at 42-43 (emphasis added).
The trial court sentenced McCool to a standard range sentence of 90 months of
confinement (with multiple sentences running concurrently) followed by 12 months of
community custody.
The trial court judge determined McCool was indigent and, in an oral ruling, stated, “I’ll
strike the legal financial obligations. Indigency seems to be established.” RP at 45. In the
written Felony Judgment and Sentence (FJS) forms, the trial court imposed the mandatory victim
assessment fee and waived other discretionary fees due to indigency. However, the trial court
imposed “supervision fees as determined by DOC” as part of McCool’s community custody.
Clerk’s Papers (CP) at 49, 90, 139, 206, 252 (boilerplate under section 4.2(B) of each FJS form).
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No. 53937-3
Cons. Nos. 53934-9; 53944-6; 53947-1; 53954-3-II
The FJS forms also stated, “The financial obligations imposed in this judgment shall bear interest
from the date of the judgment until payment in full, at the rate applicable to civil judgments.
RCW 10.82.090.” CP at 51, 92, 141, 208, 254.
McCool appeals her sentence.
ANALYSIS
I. DOSA
McCool argues that the trial court abused its discretion when it declined to impose a
DOSA and instead imposed a standard range sentence. We disagree.
A. Exercise of Discretion
As a general rule, a criminal defendant may not appeal the trial court’s decision to deny a
DOSA. State v. Hender, 180 Wn. App. 895, 900, 324 P.3d 780 (2014); RCW 9.94A.585(1).
However, a defendant may challenge the procedure by which the trial court imposed the
sentence. Hender, 180 Wn. App. at 901. Where a defendant is statutorily eligible for a DOSA,
the defendant is entitled to ask the trial court to consider the alternative and have that alternative
actually considered. State v. Grayson, 154 Wn.2d 333, 342, 111 P.3d 1183 (2005). A defendant
is statutorily eligible for a DOSA if they meet the seven factors listed in RCW 9.94A.660(1). A
trial court that “refuses categorically” to impose a DOSA, without considering it as an
alternative, abuses its discretion. Grayson, 154 Wn.2d at 342 (emphasis added) (quoting State v.
Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997)). However, a defendant may not
appeal when a trial court considers the facts and concludes there is no basis for a sentencing
alternative. Garcia-Martinez, 88 Wn. App. at 330.
5
No. 53937-3
Cons. Nos. 53934-9; 53944-6; 53947-1; 53954-3-II
In Grayson, the defendant was statutorily eligible for a DOSA and requested a DOSA.
154 Wn.2d at 336. The record there showed the defendant had a long history of drug crimes.
154 Wn.2d at 336. The trial court categorically denied a DOSA, refusing to review the
defendant’s record even when the State suggested the trial court review the record. Grayson,
154 Wn.2d at 337. Our Supreme Court reversed, held that the trial court abused its discretion,
and remanded to the trial court with instructions to review the record and determine whether the
defendant should be granted a DOSA. Grayson, 154 Wn.2d at 342-43.
Here, the trial court did not categorically refuse to consider the DOSA. First, the court
heard arguments from both parties. Second, the court based its decision on the record, including
the DOSA Risk Assessment Report and the letter from the DOC officer. Third, the court based
its decision on McCool’s history, concluding her “pattern of non-compliance . . . is not a good
sign for chances of success.” RP at 43. Because the trial court properly considered whether a
DOSA was appropriate without refusing categorically, it did not abuse its discretion.
B. Untenable Grounds
McCool also argues that the trial court based its decision on untenable grounds and
untenable reasons and thus abused its discretion. McCool argues that this is because the trial
court did not consider the benefit a DOSA might bring to McCool and the community. But this
is not the standard. The standard, as explained above, is whether the trial court considered the
facts and made a decision without refusing categorically to grant a DOSA. Grayson, 154 Wn.2d
at 342. Indeed, former RCW 9.94A.660(5)(a)(iv) 2016 mandates that the examination ordered
by the court to determine if an offender is eligible must consider these potential benefits. Here,
6
No. 53937-3
Cons. Nos. 53934-9; 53944-6; 53947-1; 53954-3-II
such an examination was conducted and supplied to the court in the DOC DOSA screening
report. Accordingly, we disagree and hold that the trial court did not abuse its discretion.
II. LEGAL FINANCIAL OBLIGATION AND INTEREST ACCRUAL
McCool argues, and the State concedes, that the trial court should strike the DOC
community supervision fee and an interest accrual provision on legal financial obligations. We
accept the State’s concession.
III. CONCLUSION
We hold that the trial court did not abuse its discretion when it denied McCool’s request
for a DOSA, and we accept the State’s concession on McCool’s LFOs. Accordingly, we affirm
McCool’s standard range sentence and remand to the trial court to strike the community
supervision fee and interest accrual provisions.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
____________________________
Worswick, J.
We concur:
_______________________________
Lee, C.J.
_______________________________
Glasgow, J.
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