Opinion
No. 26071-2-III.
June 10, 2008.
Appeal from a judgment of the Superior Court for Franklin County, No. 06-1-50434-7, Vic L. VanderSchoor, J., entered April 17, 2007.
Dismissed by unpublished opinion per Korsmo, J., concurred in by Schultheis, C.J., and Kulik, J.
Appellant Ramon Flores Contreras pleaded guilty to two counts of delivery of a controlled substance — methamphetamine. The trial court denied his request for a drug offender sentencing alternative (DOSA) sentence under RCW 9.94A.660, stating that it was inappropriate for delivery cases. While this case was on appeal, Mr. Contreras was deported to Mexico. Because the pendency of a deportation order renders a person ineligible for a DOSA sentence, which was the only relief sought on this appeal, we dismiss the appeal as moot.
Mr. Contreras pleaded guilty to the two counts pursuant to a plea agreement that permitted him to seek a DOSA sentence. He was evaluated and found eligible. The evaluator concluded that Mr. Contreras had a drug addiction that would probably lead him to engage in future criminal behavior and that he and society both would benefit from drug treatment.
The trial court twice denied the appellant's request for a DOSA sentence, stating on the second occasion: "Delivery is just something that I don't think is appropriate for DOSA." The court imposed a standard range prison sentence of 12 months plus one day. Mr. Contreras then appealed to this court, arguing that the trial court erred in categorically rejecting DOSA sentences for anyone convicted of drug delivery.
Appellant's counsel notified this court that his client was taken into custody by the federal Immigration and Customs Enforcement (ICE) service. Subsequently, mail sent to the appellant at the address supplied by counsel was returned to this court. ICE officials then notified the court that Mr. Contreras had been deported to Mexico January 5, 2008.
As it existed at the time of sentencing, the eligibility requirements of RCW 9.94A.660 relevant to this case permitted the court to impose a DOSA sentence for violations of the Uniform Controlled Substances Act, chapter 69.50 RCW. Former RCW 9.94A.660(1)(c) (2006). In doing so, the court must look to various factors about the crime, including the amount and purity of the drug involved. Id. In addition, various other eligibility criteria are found in the statute. One such criterion is that the option is not available to those who are subject to deportation orders or become subject to them during the course of the sentence. See former RCW 9.94A.660(1)(d).
Effective July 1, 2007, this provision became RCW 9.94A.660(1)(d). See Laws of 2006, ch. 73, § 10.
Now codified as RCW 9.94A.660(1)(e).
The decision whether or not to impose a DOSA sentence is a matter left to the discretion of the trial judge and cannot be reviewed on appeal. State v. Grayson, 154 Wn.2d 333, 335, 338, 111 P.3d 1183 (2005). However, the process by which a sentence was imposed can be challenged even when the sentence itself cannot be. Id. at 338. Process-based challenges must point to a failure of the trial court to follow a specific process required by the Sentencing Reform Act. State v. Mail, 121 Wn.2d 707, 712, 854 P.2d 1042 (1993). The refusal to consider a statutorily authorized procedure is an abuse of discretion. State v. Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997), review denied, 136 Wn.2d 1002 (1998). If, as appellant claimed here, the trial court categorically denied consideration of DOSA sentences for a statutorily eligible class of offenders — those convicted of drug delivery — it would amount to an abuse of the trial court's discretion and entitle him to a new sentencing proceeding.
However, the sole relief sought by appellant in this court is a new sentencing hearing for consideration of a DOSA sentence. Because he is the subject of a deportation order, Mr. Contreras is no longer eligible for a DOSA sentence. Former RCW 9.94A.660(1)(d). Thus, this court could not grant him the only relief he seeks. "Where, as here, we can no longer provide appellants effective relief, the cases are moot." In re Detention of LaBelle, 107 Wn.2d 196, 200, 728 P.2d 138 (1986); accord In re Cross, 99 Wn.2d 373, 376-377, 662 P.2d 828 (1983). That is the situation here. This court cannot grant the requested relief. This action is moot.
The appeal is dismissed as moot. No costs will be awarded to either party.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SCHULTHEIS, C.J. and KULIK, J., concur.