Opinion
No. 53944-2-I
Filed: June 6, 2005
Appeal from Superior Court of King County. Docket No. 03-1-01057-6. Judgment or order under review. Date filed: 01/16/2004. Judge signing: Hon. Catherine D Shaffer.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, 1511 Third Avenue, Suite 701, Seattle, WA 98101.
Nancy P Collins, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Oliver Ross Davis, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3647.
Boyd Kroupa #269724 (Appearing Pro Se), Washington Corrections Center, PO Box 900, Shelton, WA 98584.
Counsel for Respondent(s), Alice Degen, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Remand for resentencing is appropriate where a judge rather than a jury makes the factual determination that a defendant was on community placement at the time of his present offense. The State charged Kroupa with one count of manufacturing methamphetamine and one count of unlawful possession of pseudoephedrine with intent to manufacture methamphetamine. A jury convicted him of both counts. At sentencing, the State asserted that Kroupa had an offender score of four, which included a point for being on community placement at the time of his current offenses. Kroupa did not dispute the offender score. The trial court imposed concurrent sentences at the bottom end of the resulting standard range for each of Kroupa's convictions. Kroupa appeals. One of the points in Kroupa's offender score resulted from the trial court finding that Kroupa was on community placement at the time of the current offense. Kroupa contends that whether he was on community placement is an issue for the jury, not a judge. This issue is controlled by State v. Jones, ___ Wn. App. ___, 107 P.3d 755 (2005), petition for review pending. Jones was published after the parties submitted their briefs to this court. Whether one convicted of a crime is on community placement at the time of the current offense is a factual determination that is not within the narrow 'prior conviction' exception articulated in Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531, 2536, 159 L. Ed. 2d 403 (2004). Jones, 107 P.3d at 759.
The State contends any error was harmless. However, such an error can never be harmless. State v. Hughes, ___ Wn.2d ___, 110 P.3d 192, 205 (2005). Furthermore, the State's proposal to empanel a jury on remand to decide the issue is not an option under the Supreme Court's decision in Hughes. Because Kroupa's offender score was improperly based on a judicial determination — rather than a jury finding — that Kroupa was on community placement at the time of his current offense, we vacate the sentence imposed by the trial court and remand for resentencing.
Kroupa also claims his offender score should be reduced because his current offenses encompassed the same criminal conduct. He contends the sentence was imposed without statutory authority, or alternatively that counsel was ineffective for failing to raise the issue.
At sentencing, the State presented the judgment and sentence:
Prosecution: Mr. Kroupa was found guilty at trial on September 10, 2003, of Count I manufacturing methamphetamine and Count II, which is possession of pseudophedrine with intent to manufacture. On Count I his offender score is a four, seriousness level is ten for a total standard sentence range of 72 to 96 months. Count II, also offender score of four, seriousness level of 8, standard sentence range is 41 to 54 months. Both counts have a maximum ten year and/or $25,000 fine.
The court: Let me stop you for a moment, Mr. Sergis. Mr. Weinberg, I assume also there's no dispute of the offender score.
Defense: That is correct, Your Honor.
Verbatim Report of Proceedings, 12/23/03 at 2.
It is apparent from the presentence report that the offender score presented by the State used each of the crimes in computing the standard range sentence for the other crime. This necessarily means the trial court did not find the two crimes to be the same criminal conduct because current offenses must be counted as if they were prior offenses unless the trial court enters a finding that they encompass the same criminal conduct. RCW 9.94A.589(1)(a).
Clerk's Papers at 71-72.
The State contends that Kroupa waived review of the same criminal conduct issue under State v. Nitsch, 100 Wn. App. 512, 524-25, 997 P.2d 1000 (2000), when he affirmatively agreed to the offender score used to calculate his sentence. Kroupa contends Nitsch does not apply because the two current offenses were the same criminal conduct as a matter of law. Where the alleged error in calculating an offender score is a legal error leading to an excessive sentence, it cannot be waived. State v. Goodwin, 146 Wn.2d 861, 874, 50 P.3d 618 (2002). Here, however, the issue of same criminal conduct involves factual determinations. The same criminal intent is not necessarily inherent in manufacturing, as compared to possessing with intent to manufacture. See State v. Burns, 114 Wn.2d 314, 319-20, 788 P.2d 531 (1990). Accordingly, we conclude Kroupa has waived review.
Under some circumstances, an appellant may raise the same criminal conduct issue for the first time on appeal in the context of ineffective assistance of counsel. State v. Saunders, 120 Wn. App. 800, 825, 86 P.3d 232 (2004). To establish ineffective assistance of counsel, Kroupa must show that his counsel's representation was deficient and that he was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Prejudice results where there is a reasonable probability that but for counsel's deficient performance the outcome would have differed. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Kroupa bears the burden of showing prejudice on the record developed in the trial court. McFarland, 127 Wn.2d at 337.
Same criminal conduct is defined as 'two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim.' RCW 9.94A.589(1)(a). If any one element is missing, multiple offenses cannot be said to encompass the same criminal conduct and they must be counted separately in calculating the offender score. State v. Lessley, 118 Wn.2d 773, 778, 827 P.2d 996 (1992). When considering whether multiple crimes encompass the same criminal intent, the standard is the extent to which the criminal intent, viewed objectively, changed from one crime to the next. State v. Vike, 125 Wn.2d 407, 411, 885 P.2d 824 (1994). The only dispute here is whether Kroupa possessed the same criminal intent when he committed both crimes.
The objective intents of manufacturing and possession of pseudoephedrine with intent to manufacture offenses are different. Possession with intent to manufacture requires the intent to use the pseudoephedrine to manufacture methamphetamine in the future. In contrast, the manufacturing charge requires no future intent because the crime was committed in the present or recent past. Accordingly, manufacturing and possession with intent to manufacture are not necessarily the same criminal conduct. See State v. Maxfield, 125 Wn.2d 378, 886 P.2d 123 (1994) (manufacturing marijuana involved past and present intent, but possession of packaged marijuana involved future intent); State v. Burns, 114 Wn.2d 314, 788 P.2d 531 (1990) (possession of a large quantity of drugs in defendant's van supported a finding that the defendant intended to sell drugs in the future and was distinct from defendant's intent to sell drugs in the present). While Kroupa's defense counsel could have argued same criminal conduct to the sentencing court, Kroupa has not shown a reasonable probability that the argument would have been successful. Accordingly, we conclude Kroupa has not demonstrated prejudice from counsel's failure to argue the issue. His ineffective assistance of counsel claim fails.
Kroupa contends and the State concedes that his judgment and sentence erroneously sets forth the incorrect statute violated in Count 2 of his conviction. On remand, the trial court should correct the scrivener's error in the judgment and sentence so as to accurately set forth the statute Kroupa violated — RCW 69.50.440. State v. Moten, 95 Wn. App. 927, 935, 976 P.2d 1286 (1999).
Kroupa submitted a statement of additional grounds for review under RAP 10.10. He claims the search warrant used to obtain the evidence against him was not supported by probable cause because it was based on information from an informant whose testimony was inconsistent, and who was not shown to be reliable. Kroupa argues the trial court improperly concluded otherwise and erred in denying a motion to suppress.
However, after a suppression hearing where no facts were in dispute, the trial court entered findings that substantiate the reliability of the informant, the upstairs landlord. The informant was known to police and he said several things in his conversation with detectives that were against his penal interest. Officers had the training and experience with respect to the methamphetamine manufacturing process to corroborate the informant's statements.
Finding of Fact 1, Clerk's Papers at 46.
Finding of Fact 6, Clerk's Papers at 46.
These findings adequately establish the reliability of the informant. See State v. Jackson, 102 Wn.2d 432, 436-37, 440, 688 P.2d 136 (1984). To the extent the findings are based on a determination that the informant's testimony was credible, we must defer to the trial court. State v. Hill, 123 Wn.2d 641, 646, 870 P.3d 313 (1994). Accordingly, we hold the search warrant was supported by probable cause and the court did not err in denying Kroupa's motion to suppress.
The sentence is vacated and the matter remanded for resentencing in light of State v. Jones.