Opinion
No. 52149-7-I
Filed: November 8, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 02-1-08268-4. Judgment or order under review. Date filed: 03/28/2003. Judge signing: Hon. Richard a Jones.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Thomas Michael Kummerow, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), E Bradford Bales, King Co Pros Aty Ofc, 516 3rd Ave, Seattle, WA 98104-2390.
Dawit Bekele appeals the judgment and sentence entered following his plea of guilty to one count of possession of cocaine with intent to deliver. Bekele contends that the sentencing court erred in including previously "washed out" juvenile offenses in calculating his offender score and in so doing denied him due process by giving retroactive application to the 2002 amendments to RCW 9.94A.525 and 9.94A.030. Bekele also contends that the court erred in requiring him to provide a biological sample for DNA identification. These contentions are controlled by the decisions in State v. Varga, 151 Wn.2d 179, 86 P.3d 139 (2004), and State v. Surge, Wn. App., 94 P.3d 345 (2004). We also reject the arguments raised in Bekele's pro se statement of additional grounds for review.
Bekele was originally charged with one count of possession of cocaine with intent to deliver committed on October 15, 2002. The State later amended the information to charge a second count of possession of phencyclidine (PCP). Defense counsel pursued several pretrial issues, including an alleged unlawful interception of a private conversation and a CrR 3.6 motion to suppress. The trial court rejected the challenges. Bekele changed his plea to guilty of the cocaine charge, and the State dismissed the PCP charge.
Bekele, defense counsel, and the prosecutor agreed that the standard range was 57 to 75 months based on an offender score of 6 and recommended a sentence of 57 months. In reaching an offender score of 6, the trial court included Bekele's 11 prior juvenile offenses, which were committed prior to age 15 and prior to 1997.
Several family members appeared at sentencing. One individual argued that the prosecutor and defense counsel improperly threatened Bekele and coerced him into pleading guilty and asserted that the court must withdraw the plea. Another requested leniency in sentencing, noting Bekele' family support and his assistance to family members. The trial court also reviewed letters written in support of Bekele.
The trial court sentenced Bekele to 57 months and ordered him to provide a DNA sample.
Offender Score
The court in Varga held that the 2002 amendments to RCW 9.94A.525 and 9.94A.030 "properly and unambiguously require that sentencing courts include defendants' previously `washed out' prior convictions when calculating defendants' offender scores at sentencing for crimes committed on or after the amendments' effective date [June 13, 2002]." Varga, 151 Wn.2d at 183. Bekele's offense was committed after the effective date; his prior juvenile offenses were properly included in calculating his offender score.
DNA Sample
In Surge, this court rejected the argument that RCW 43.43.754 and the portion of the defendant's sentence requiring him to provide a biological sample for DNA identification violate a defendant's Fourth Amendment right against unreasonable searches. The court held that State v. Olivas, 122 Wn.2d 73, 856 P.2d 1076 (1993) is controlling and binding on this court. Bekele's challenge on this basis fails.
Statement of Additional Grounds for Review
In his statement, Bekele refers to a letter from a Department of Developmental Disabilities (DDD) caseworker. The letter indicates that Bekele has a history of head injury and some limits in his mental functioning. Bekele also asserts he was denied due process, apparently questioning the prosecutor's actions and challenging the assistance of his counsel. It is unclear whether the letter from DDD was before the trial court, but in any event the sentence of 57 months was agreed to by all parties and was within the standard range. As the court noted at sentencing, Bekele did not file a motion to withdraw his guilty plea. See CrR 4.2(f), CrR 7.8.
In addition to Bekele's statement of additional grounds for review, a family member has also filed a letter with some supporting materials. The letter refers to a post-judgment hearing in the trial court. It appears that Bekele may have filed a motion to modify his judgment and sentence and that the motion remains pending. Those materials raise matters outside the record and must be raised in an appeal from any post-judgment orders that may be entered or a properly supported personal restraint petition.
Affirmed.
GROSSE, J., COX, C.J. and ELLINGTON, A.C.J.