State Sentencing Commission backs pre-plea alternative for first-time offender waivers, votes on eligibility rules

The State of Washington Sentencing Guideline Commission voted July 10 to recommend that the 1st Time Offender Waiver (FTOW) be modified as a pre-plea alternative that allows charges to be dismissed after successful completion, while also asking the legislature to clarify standards for successful completion and failure.

Vice Chair Ty Mentzer opened the meeting and led the commission through a structured review of options for FTOW, saying the group would capture where members supported different approaches so lawmakers could see both consensus and remaining disagreements. "I'm gonna make a motion to 1b as modified in the chat recommending that... FTOW be modified as a pre-plea alternative," Mentzer said before calling the motion and asking members to vote.

The commission’s staff framed the choice as two high-level models: a post-plea deferred sentence (where a guilty plea may be entered and later withdrawn if terms are met) and a pre-plea deferred-prosecution or diversion alternative (where no conviction is entered if the person completes the program). Doctor Kenell Pearson summarized a key legal difference: "On the 2nd option... there isn't a finding of guilt... it functions as a deferred prosecution," and under that model "the conviction never would have been filed," meaning the matter generally would not count in future criminal-history scoring.

Ramona Brandes and others urged the group to account for collateral consequences, especially immigration effects. "There may be different immigration consequences based on the way that we structure how a 1st time offender waiver dismissal operates," Brandes warned, calling for vetting with immigration experts. Other members proposed language that would protect against admission-of-guilt implications in collateral proceedings, suggesting the report describe FTOW as "akin to Title 10 deferred prosecution or treatment-court options ensuring no requirement for admission of guilt."

The commission adopted the modified 1b recommendation (the pre-plea alternative) by recorded vote. The body then took a separate recorded vote on 1a (the post-plea/deferred-sentence option); commissioners noted there was support for both approaches but clearer consensus for the pre-plea model. The chair instructed staff to include the text of both votes and to surface the discussion and caveats in the final report to lawmakers.

On eligibility, members debated three approaches: (2a) limit FTOW to people with no prior criminal history, (2b) allow only a person’s first felony (excluding felonies that are elevated by predicate misdemeanors), and (2c) a narrower list of excluded felonies (the compromise list the commission had discussed previously). Commissioners disagreed about specific predicate crimes — for example, whether unlawful-possession-of-firearm in the 2nd degree (UPF 2) should be excluded when the felony is based on a prior misdemeanor disqualification — and they took layered votes to show where consensus existed. The group ultimately recorded support for a version that excludes certain predicate-based felonies (including an explicit callout to exclude UPF 2 in the circumstances described).

Members also recommended that the legislature establish standards or a due-process model for determining "successful completion" or "failure" for FTOW, pointing to Title 10 and DOSA hearing processes as possible examples rather than prescribing specific statutory text. Doctor Kenell Pearson flagged an additional technical issue: how courts and agencies record deferred sentences and dismissals can distort administrative data used for research. "When we look back at court records, what we will likely see is dismissals or vacations, and we won't see prior convictions," he said, urging attention to data-capture practices before wide policy rollout.

Votes at a glance: the commission recorded strong support for the modified 1b (pre-plea alternative) recommendation; a separate vote on 1a (post-plea deferred sentence) showed less consensus (the recorded counts were summarized for the record; the final report will include the official counts and proxies as entered in commission minutes). The body also held layered votes on eligibility options 2a/2b/2c and agreed to include the approved direction and the vote tallies in the report to the legislature.

The commission closed with logistical items: the next meeting is scheduled for Aug. 14, and Judge Juan announced he is leaving the commission at the end of July. Staff will draft the report to reflect the commission's recommendations, the voting breakdowns, and the substantive concerns commissioners raised about collateral consequences, eligibility criteria, and data implications.