Opinion
No. 33077-6-II.
May 8, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 03-1-04822-6, Katherine M. Stolz, J., entered March 25, 2005.
Affirmed by unpublished opinion per Penoyar, J., concurred in by Bridgewater and Armstrong, JJ.
Brian Phillip Hutton was arrested in his home on two misdemeanor warrants. After Hutton's arrest, the officers searched his house and found substantial evidence of methamphetamine manufacturing. Hutton argues that (1) his arrest was unconstitutional, (2) the search of his home was unconstitutional, (3) the trial court abused its discretion in denying his request for a drug offender sentencing alternative (DOSA) sentence, (4) the trial court erred in finding that Hutton signed a consent to search form, (5) the trial court abused its discretion by not allowing Hutton's handwriting expert to testify, and (6) the trial court erred in sentencing Hutton, as the jury verdict form did not specify which controlled substance he was manufacturing. All of Hutton's arguments lack merit, and we affirm.
On October 13, 2003, Shawn Walli, an employee of Kelly-Moore Paints, contacted Tacoma Police Officer Patrick Stephen to inform him that a man had just purchased a one-gallon can of Toluene. That man was later identified as Ronald Lee Legarreta, and he was driving a truck registered to Hutton.
Officer Stephen researched Hutton's criminal history and learned that he had two outstanding misdemeanor arrest warrants. He then contacted other officers to assist in Hutton's arrest.
When the officers arrived, Hutton answered his door and consented to the officers' entry. Upon entering, Officer Stephen informed Hutton of the outstanding warrants and arrested him. CP at 146; 1 RP (Feb. 7, 2005) at 19-20. Officer Stephen chose not to handcuff Hutton because he was "very cooperative;" the officers also detained, but did not handcuff, Legarreta. 1 Report of Proceeding (RP) at 20.
Officer Stephen informed Hutton that he suspected methamphetamine was being manufactured in the house and asked Hutton for consent to search the residence. Stephen also gave Hutton his Ferrier warnings, informing him that he did not have to consent to the search and could limit the scope of the search or revoke his consent at any time. Hutton orally consented to the search, and never limited the search or revoked his consent.
State v. Ferrier, 136 Wn.2d 103, 960 P.2d 927 (1998).
Officer Stephen's search revealed "substantial evidence of the manufacturing of methamphetamine, including a bi-layer liquid in the kitchen, used coffee filters smelling of ammonia, muriatic acid, rock salt, a garden sprayer, a propane tank, and methamphetamine." Clerk's Papers (CP) (Mar. 6, 2006) at 147.
On October 14, 2003, Hutton was charged with unlawful manufacturing of a controlled substance — methamphetamine in violation of former RCW 69.50.401(a)(1)(ii) (count V), unlawful possession of ammonia with intent to manufacture methamphetamine (count VI), unlawful storage of ammonia (count VII), and unlawful possession of a controlled substance (count VIII). CP at 1-2.
At a pre-trial hearing, Hutton argued that he did not sign the consent to search form. He offered a handwriting expert's testimony, who could not say conclusively that the signature was not his, but thought it was "probably not a genuine signature." 2 RP at 133. The court did not allow the expert's testimony at trial.
Hutton was found guilty of all charges and was sentenced on March 25, 2005. Hutton requested an exceptional sentence under DOSA, which the court denied, instead sentencing Hutton to the high end of the standard range (120 months). Hutton's timely appeal followed.
Hutton actually filed his opening brief before the trial court entered findings of fact and conclusions of law. The trial court entered its findings less than two months after the appeal was filed, and Hutton filed his supplemental brief six months afterward.
ANALYSIS
I. Legality of Arrest
Hutton argues that his arrest violated article 1, section 7 of the Washington Constitution and RCW 10.31.030. Specifically, he claims that the arresting officers did not comply with constitutional and statutory requirements by neglecting to inform Hutton that he would be shown a copy of the warrant and be allowed to post bail before he was asked for consent to search his residence. The State responds that Hutton waived his claim that the arrest warrants were not properly served by not raising the claim at trial.
RCW 10.31.030 sets out the procedure for an officer making an arrest when the warrant is not in his possession:
The officer making an arrest must inform the defendant that he acts under authority of a warrant, and must also show the warrant: PROVIDED, That if the officer does not have the warrant in his possession at the time of arrest he shall declare that the warrant does presently exist and will be shown to the defendant as soon as possible on arrival at the place of intended confinement: PROVIDED, FURTHER, That any officer making an arrest under this section shall, if the person arrested wishes to deposit bail, take such person directly and without delay before a judge or before an officer authorized to take the recognizance and justify and approve the bail, including the deposit of a sum of money equal to bail. Bail shall be the amount fixed by the warrant. Such judge or authorized officer shall hold bail for the legal authority within this state which issued such warrant if other than such arresting authority.
We will not review an alleged error not raised at trial unless it is a manifest error affecting a constitutional right. RAP 2.5(a)(3); State v. Scott, 110 Wn.2d 682, 687, 757 P.2d 492 (1988). "RAP 2.5(a)(3) is not intended to afford criminal defendants a means for obtaining new trials whenever they can identify some constitutional issue not raised before the trial court." State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995). An appellant must identify a constitutional error and show how, in the context of the trial, the alleged error actually affected the defendant's rights. McFarland, 127 Wn.2d at 333. "[I]t is this showing of actual prejudice that makes the error 'manifest,' allowing appellate review." McFarland, 127 Wn.2d at 333 (citing Scott, 110 Wn.2d at 688).
Here, Hutton asserts that his constitutional rights were violated in the arrest, but he has not established how the alleged error actually affected his trial. The record shows that Officer Stephen informed Hutton of the nature of his outstanding warrants, but it is silent as to whether the officer complied with other RCW 10.31.030 requirements. Had Hutton raised this issue, the evidence may or may not have shown that the statutory mandates were substantially followed. We cannot review this alleged error for the first time on appeal unless Hutton establishes actual prejudice, and he has failed to do so. II.
Substantial compliance with RCW 10.31.030 is all that is required for a valid arrest. State v. Simmons, 35 Wn. App 421, 423, 667 P.2d 133 (1983). Once a warrant has been properly issued, the primary purpose has been served. The rules surrounding execution of a valid warrant are ministerial. Simmons, 35 Wn. App. at 423-24. Exigent circumstances are not required to permit arrest pursuant to a valid warrant even though the warrant is not presently in the possession of the officer making the arrest. Simmons, 35 Wn. App. at 424.
Legality of Search
Hutton also claims that the search of his residence violated article 1, section 7 of the Washington Constitution. This claim is largely based on the contention that his arrest was unlawful. Because the legality of his arrest was not preserved for review, as discussed above, Hutton's sole remaining argument regarding the search is that Ferrier warnings were not properly given.
The State responds that the officers properly administered the Ferrier warnings, although the warnings were not required here. We agree.
Warrantless searches of constitutionally protected areas are presumed unreasonable absent proof that one of the well-established exceptions applies. State v. Ladson, 138 Wn.2d 343, 349, 979 P.2d 833 (1999). The State bears the burden of establishing an exception to the warrant requirement. State v. Potter, 156 Wn.2d 835, 840, 132 P.3d 1089 (2006). Consent is a recognized exception to the warrant requirement. State v. Cantrell, 124 Wn.2d 183, 187, 875 P.2d 1208 (1994). The voluntariness of consent is a question of fact. State v. Smith, 115 Wn.2d 775, 789, 801 P.2d 975 (1990).
Under Ferrier, when police conduct a "knock and talk" for the purpose of obtaining consent to search a home and thereby avoid the necessity of obtaining a warrant, they must, prior to entering the home, inform the person from whom consent is sought that he or she may lawfully refuse to consent to the search and that they can revoke, at any time, the consent that they give, and can limit the scope of the consent to certain areas of the home. State v. Ferrier, 136 Wn.2d 103, 118, 960 P.2d 927 (1998).
The State's argument that Ferrier does not apply here is persuasive. While Officer Stephen testified that this operation was a "knock and talk," he also knew that Hutton had outstanding warrants and intended to arrest him. 1 RP at 17. This was not a Ferrier "knock and talk" because the officers entered Hutton's residence to arrest him, not to search the premises. Officer Stephen did not have a search warrant, but he obtained Hutton's consent before searching the house. Hutton's consent obviated the need for a search warrant.
The vast weight of testimony, except for Hutton's, supports the trial court's findings of fact — namely, that Hutton knowingly and voluntarily consented to the search after being advised of the Ferrier warnings. Credibility determinations are for the trier of fact and are not subject to review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). Here, the trial court specifically determined that Hutton's testimony was not credible. Because substantial evidence supports the trial court's factual finding that Hutton consented to the search, we hold that the search of Hutton's residence was lawful and complied with all constitutional standards.
III. DOSA Sentence
The trial court denied Hutton's request for a DOSA sentence. Hutton argues that this decision was based on his previous conviction for manufacturing methamphetamine, and therefore the trial court refused to consider a DOSA sentence for a "class of offenders" and "failed to exercise its discretion." Appellant's Br. at 20. Hutton claims that the trial court categorically refused to consider a DOSA sentence, in violation of the Washington Supreme Court's ruling in State v. Grayson, 154 Wn.2d 333, 111 P.3d 1183 (2005).
The State responds that the trial court did consider a DOSA sentence, but refused to grant such a sentence based on the record and the defendant's criminal history. The State further argues that the trial court's decision was not reviewable.
While no defendant is entitled to an exceptional sentence below the standard range, every defendant is entitled to ask the trial court to consider such a sentence and to have the alternative actually considered. Grayson, 154 Wn.2d at 342 (citing State v. Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997)). Where a defendant has requested a sentencing alternative authorized by statute, the categorical refusal to consider the sentence, or the refusal to consider it for a class of offenders, is effectively a failure to exercise discretion and is subject to reversal. Grayson, 154 Wn.2d at 342. However, a court's decision, after consideration, not to apply DOSA and impose a standard sentence range is not reviewable. State v. Conners, 90 Wn. App. 48, 53, 950 P.2d 519 (1998).
The record below indicates that the trial court did consider an exceptional sentence, but then rejected the request because of Hutton's past and current criminal activity. The court stated:
Well, this is a manufacturing case. And, I don't think that a DOSA is appropriate here. He did have an attempted manufacturing conviction from 1999. While he was on pre-trial release in this case he was arrested and driving when in possession of methamphetamine.
6 RP at 794.
Here, the trial court considered and rejected a DOSA sentence. Under Conners, that decision is not reviewable. We therefore affirm the sentence.
Hutton's reliance on Grayson is misplaced. The trial court in that case did not consider a DOSA sentence because he believed the program was under funded — even when prompted by prosecutors for another reason, he did not give any. Grayson, 154 Wn.2d at 342-43. Here, the court both considered the exceptional sentence and gave reasons for its denial.
IV. Signature on Consent to Search Form/Testimony of Handwriting Expert
Hutton argues that the trial court abused its discretion "when it found that the signature on the Consent to Search form was Mr. Hutton's." Appellant's Supp. Br. at 3. Hutton also argues that the trial court abused its discretion when it did not allow Hutton's handwriting expert to testify regarding the signature on the consent to search form. Because we find that the search was lawful and that a Ferrier warning was not required, both issues are moot.
V. Sentencing
Finally, Hutton argues that because the jury verdict form did not state which controlled substance Hutton was manufacturing, the court was limited to sentencing Hutton to five years or less under "RCW 69.50.401(iii)." Appellant's Supp. Br. at 12.
There is no RCW 69.50.401(iii). The quote Hutton offers appears to derive from RCW 69.50.401(2), as enacted in 2003, which states that a person convicted of manufacturing a controlled substance that is not a narcotic or amphetamine is guilty of a class C felony, punishable by up to five years imprisonment. RCW 69.50.401(2)(c) (2003); RCW 9A.20.021(1)(c) (2003). A person convicted of manufacturing methamphetamine, on the other hand, may be imprisoned for up to ten years. RCW 69.50.401(2)(b) (2003).
In this case, Verdict Form A stated: "We, the jury, find the defendant Guilty . . . of the crime of UNLAWFUL MANUFACTURING OF A CONTROLLED SUBSTANCE as charged in Count V." CP (Jun. 2, 2005) at 103.
In comparison, the to-convict instruction stated:
To convict the defendant of the crime of manufacture of a controlled substance, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 13th day of October, 2003, the defendant manufactured a controlled substance; and
(2) That the defendant knew that the substance manufactured was a controlled substance, Methamphetamine;
(3) That the acts occurred in the State of Washington. If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
CP (Aug. 1, 2006) at 171; Instr. 18.
Because the jury instructions properly stated that the jury had to find that Hutton was manufacturing methamphetamine in order to convict, any error was harmless. In this context, an error is harmless when it appears beyond a reasonable doubt that the alleged error did not contribute to the verdict. See State v. Jennings, 111 Wn. App. 54, 64, 44 P.3d 1 (2002). Here, there is no factual question as to what substance the jury had to find that Hutton manufactured. Accordingly, it appears beyond a reasonable doubt that the omission of a specified controlled substance in the verdict form did not contribute to the verdict.
Hutton relied on our decision in Evans to support this argument, but that decision was recently overruled by the Washington Supreme Court. State v. Evans, 129 Wn. App. 211, 118 P.3d 419 (2005), overruled by 159 Wn.2d 402 (2007). We affirm.
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 pursuant to RCW 2.06.040, it is so ordered.
We concur:
BRIDGEWATER, P.J.
ARMSTRONG, J.