Opinion
Nos. 24901-4-II c/w 24902-2-II.
Filed: February 1, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Cowlitz County, No. 99-1-00422-9, Hon. Don L. McCulloch, July 27, 1999, Judgment or order under review.
Counsel for Appellant(s), Edwin N. Norton, Cowlitz Co Dep Pros Atty, 312 S.W. 1st Ave, Kelso, WA 98626-1739.
Counsel for Respondent(s), Dennis G. Owens, Attorney At Law, 3664 S.E. Van Water St, Portland, OR 97222-5542.
Harold M. Hickok, Attorney At Law, 10720 N.W. Lost Park Dr, Portland, OR 97229.
The State of Washington appeals exceptional sentences downward for Felix Garcia-Camargo and Elias Ayala-Castaneda following their convictions for multiple counts of delivery of a controlled substance. Garcia-Camargo cross-appeals, arguing that he did not receive effective assistance of counsel. We affirm the convictions but reverse and remand for resentencing because the court's reasons do not support a downward sentence.
A jury convicted Garcia-Camargo and Ayala-Castaneda (the defendants) of seven counts of violating the Uniform Controlled Substances Act. Count I occurred on April 8, 1999; count II on April 9; count III on April 22; count IV on April 27; and counts V, VI, and VII occurred on May 5. The State agreed that counts V, VI, and VII were the same criminal conduct.
At sentencing, the trial court deviated downward from the standard range of 108 to 120 months and imposed an exceptional sentence of 72 months. The trial court then entered the following findings of fact and conclusions of law in support of the exceptional sentences:
The trial court entered separate, yet identical, findings and conclusions for each defendant.
I. FINDINGS OF FACT
I. Typical user amounts of methamphetamine and cocaine are 1/16 ounce to 1/8 ounce amounts for sale in Cowlitz County. Amounts of heroin for use and street sale are smaller, typically 1/6 ounce to 1 gram amounts.
II. Defendant delivered one ounce of cocaine on April 9, 1999. Defendant delivered one ounce of methamphetamine on April 22, 1999. Defendant delivered one ounce of heroin on April 27, 1999. Defendant delivered 16 ounces of cocaine, 16 ounces of methamphetamine and ten ounces of heroin on May 5, 1999.
III. The price of the final delivery was [$]23,000. Detective . . . Elliston indicated that this quantity of drug broken up in quantities for street level sales would be worth between $50,000 and $80,000.
. . . .
IV. Defendant's offender score is '12.' Defendant has one current offense for which he receives no additional punishment.
V. Defendant's deliveries occurred over approximately a one-month period. Defendant was not arrested in that one-month period between deliveries.
VI. These were Defendant's first felony convictions, Defendant had no felony history.
II. CONCLUSIONS OF LAW
I. The deliveries of April 9, 1999, April 22, 1999, April 27, 1999, and May 5, 1999 were in quantities substantially larger than is typical for personal use in Cowlitz County.
II. Defendant has multiple current offenses. Defendant has a current delivery of controlled substance for which he receives no additional punishment. Under the analysis of State v. Ste[ph]ens, 116 Wn.2d 238, 803 P.2d 319 (1991)[,] defendant has a 'free' delivery. 'Public policy and the purposes of the SRA demand full punishment for each current offense.' State v. Reynolds, 80 Wn. App. 851, 912 P.2d 494 (1996).
When a defendant's offender score is combined with multiple current offenses so that a standard sentence would result in 'free' or unpunished crimes, an exceptional sentence is justified. Stephens, 116 Wn.2d at 243.
III. There was no time to rehabilitate between the first offenses and the additional offenses.
IV. The principle of rehabilitation is ignored in the multiplier for successive deliveries.
V. Defendant should be sentenced for what would be an exceptional upward sentence for two deliveries but a downward sentence as to all five deliveries.
Thus, the trial court indicated that it was imposing an exceptional upward sentence for two deliveries, but a downward sentence as to all five deliveries. Garcia-Camargo appealed the exceptional upward as to those two. However, because the offenses are not the same criminal conduct and the prosecutor has the ability to determine the number of offenses that constitute the offender score, the total sentence is considered when determining whether an exceptional sentence has been given. The counts are not piece-mealed. In this case the sentence is an exceptional downward sentence. See State v. Sanchez, 69 Wn. App. 255, 848 P.2d 208, review denied, 122 Wn.2d 1007 (1993). Because of our holding that there must be resentencing and the State concedes that it must be in the standard range, we need not discuss the issue of the upward exceptional sentence applied with regard to the two counts.
Clerk's Papers (CP) at 83-84 (Ayala-Castaneda); CP 82-83 (Garcia-Camargo).
I. Standard of Review
Under the Sentencing Reform Act of 1981 (SRA), a trial court must impose a sentence within the standard range unless it finds 'substantial and compelling' reasons to justify a departure. RCW 9.94A.120(2); State v. Grewe, 117 Wn.2d 211, 214, 813 P.2d 1238 (1991). RCW 9.94A.390 (1998) provides an illustrative list of aggravating and mitigating factors that the court may consider in imposing an exceptional sentence. Appellate review of an exceptional sentence involves a three-prong analysis: (1) does the record support the trial court's reasons; (2) do the reasons justify an exceptional sentence as a matter of law; and (3) did the trial court abuse its discretion by imposing a sentence that is 'clearly too lenient'? RCW 9.94A.210(4).
The State agrees that the record supports the trial court's reasons for the sentence Therefore, the trial court's findings are verities on appeal. State v. Alexander, 125 Wn.2d 717, 723, 888 P.2d 1169 (1995). Additionally, the State does not argue that the sentence was too lenient. Whether the stated reasons justify an exceptional sentence as a matter of law is a legal inquiry. Grewe, 117 Wn.2d at 215. We apply a two-prong analysis: (1) The trial court may not base an exceptional sentence on factors the Legislature necessarily considered in establishing the standard sentence range; and (2) the asserted aggravating/mitigating factor 'must be sufficiently substantial and compelling to distinguish the crime in question from others in the same category.' Grewe, 117 Wn.2d at 215-16.
The purpose of the SRA:
[I]s to make the criminal justice system accountable to the public by developing a system for the sentencing of felony offenders which structures, but does not eliminate, discretionary decisions affecting sentences, and to: (1) Ensure that the punishment for a criminal offense is proportionate to the seriousness of the offense and the offender's criminal history; (2) Promote respect for the law by providing punishment which is just; (3) Be commensurate with the punishment imposed on others committing similar offenses; (4) Protect the public; (5) Offer the offender an opportunity to improve him or herself; (6) Make frugal use of the state's and local governments' resources.
RCW 9.94A.010 (1998).
II. Time for rehabilitation not sufficient
The trial court imposed an exceptional sentence after concluding that the defendants had no opportunity to rehabilitate themselves between the commission of their crimes and arrest because these were their first felony convictions. The State argues that the goal of rehabilitation is insufficient to support an exceptional sentence. The State is correct.
A trial court's 'determination that a standard range [sentence] would not advance rehabilitative goals . . . is not adequate to justify departure from the normal sentence range.' Likewise, the purposes of the SRA 'are not in and of themselves mitigating circumstances.' In short, the goal of rehabilitation cannot, alone, justify a departure from the sentencing guidelines.
State v. Gaines, 122 Wn.2d 502, 513, 859 P.2d 36 (1993); see also State v. Pascal, 108 Wn.2d 125, 137-38, 736 P.2d 1065 (1987) (a trial court's 'subjective determination' that a standard range sentence is 'unwise' or does 'not adequately advance the [SRA's] goals, is not a substantial and compelling reason justifying a departure.'); cf. State v. Allert, 117 Wn.2d 156, 169, 815 P.2d 752 (1991) ('The SRA was designed to provide proportionate punishment, protect the public and provide rehabilitation, and the presumptive ranges established for each crime represent the Legislature's judgment as to how best to accommodate those interests.') (emphasis omitted).
Alexander, 125 Wn.2d at 730 n. 22; see also State v. Estrella, 115 Wn.2d 350, 358, 798 P.2d 289 (1990) ('the SRA has a far lesser commitment to rehabilitation than did the previous indeterminate sentencing system').
Additionally, the lack of an opportunity for the defendants to rehabilitate themselves does not distinguish this case from other cases in the same category. After all, many first-time offenders who commit multiple felonies will not have had time to rehabilitate themselves between their crimes. Furthermore, that these were the defendants' first felony convictions cannot justify the downward departure.
See Grewe, 117 Wn.2d at 216 ('the asserted aggravating factor must be sufficiently substantial and compelling to distinguish the crime in question from others in the same category.').
See Alexander, 125 Wn.2d at 726 n. 16 (because a defendant's criminal history is used to compute the standard range, it has already been considered by the legislature and cannot constitute a substantial and compelling reason for departure (explaining Pascal, 108 Wn.2d 125)).
Similarly, although the SRA permits exceptional sentences for some first-time offenders, the defendants did not qualify because they were convicted of delivering controlled substances. Therefore, an exceptional sentenced based on the defendants being first-time offenders violates the intent of the SRA when it prohibits the first-time offender sentencing option in cases where the first crime is for delivery of controlled substances. Cf. State v. Ha'min, 132 Wn.2d 834, 845, 940 P.2d 633 (1997) (finding same where first crime is 'a violent one').
See RCW 9.94A.030(22) (1998) (definition of 'first-time offender' excludes persons convicted of violent offenses, sex offenses, and various drug offenses); RCW 9.94A.650(1)(b)-(d) (2000).
Moreover, the large quantities of controlled substances the defendants delivered disqualified them for the Drug Offender Sentencing Alternative (DOSA). Former RCW 9.94A.120(6)(a), in effect when the defendants were sentenced, provided:
An offender is eligible for the special drug offender sentencing alternative if: . . . (iii) The offense involved only a small quantity of the particular controlled substance as determined by the judge upon consideration of such factors as the weight, purity, packaging, sale price, and street value of the controlled substance.
RCW 9.94A.120(6)(a) (1998). Here, the defendants' final delivery of controlled substances consisted of 16 ounces of cocaine, 16 ounces of methamphetamine, and 10 ounces of heroin. The sale price of these drugs was $23,000 — the street value between $50,000 and $80,000. The trial court concluded as a matter of law that these quantities were substantially larger than what was typical for personal use. Consequently, the defendants were ineligible for a DOSA sentence.
Therefore, the lack of time for the defendants to rehabilitate themselves cannot, as a matter of law, justify the downward departure.
III. State v. Sanchez
The trial court also imposed an exceptional sentence after concluding that State v. Sanchez, 69 Wn. App. 255, applied. In Sanchez, we upheld a trial court's imposition of an exceptional sentence downward in a case involving multiple controlled drug buys. There, we held that although the prosecutor has discretion to charge and obtain convictions on multiple controlled buys, the sentencing court has power to determine whether the resulting standard range sentence is 'clearly excessive' as a result of the multiple offense policy in RCW 9.94A.400. When a standard range sentence is clearly excessive, the trial court may grant an exceptional downward sentence. Sanchez, 69 Wn. App. at 262.
In Sanchez, the sentencing court reasoned that an exceptional sentence downward was appropriate because the offenses involved small amounts of cocaine delivered to the same person over a short period of time, and because the police were in control of the number of offenses, in the sense that they were controlled buys. Sanchez, 69 Wn. App. at 260. In State v. Hortman, 76 Wn. App. 454, 886 P.2d 234 (1994), review denied, 126 Wn.2d 1025 (1995), Division One agreed with Sanchez, explaining that when a trial court is faced with current offenses based on multiple controlled buys, its role is to focus on the difference, if any, between the effects of the first controlled buy and the cumulative effects of subsequent controlled buys. Where that difference is nonexistent, trivial or trifling, there is a basis in the law for an exceptional sentence downward. Hortman, 76 Wn. App. at 461.
Here, the State argues that Sanchez does not apply because of the large quantities of drugs involved and points out that these quantities could have supported an exceptional sentence upward. In Sanchez, we noted that '[n]othing in our holding necessarily applies to drug transactions that are not police-initiated controlled buys, or that involve different sellers or purchasers, or that involve large quantities of drugs, or that have a law enforcement purpose other than to generate an increase in the offender's standard range.' Sanchez, 69 Wn. App. at 262-63 (emphasis added).
See RCW 9.94A.390(2)(e)(ii) (1998) (the 'sale or transfer of controlled substances in quantities substantially larger than for personal use' is an aggravating circumstance justifying an exceptional sentence upward); Report of Proceedings (RP) at 9 (trial court states that there are 'sufficient reasons' to impose an exceptional sentence upward).
The facts here are similar to those in Sanchez in several respects. First, the defendants made each delivery to the same undercover officer. Second, the deliveries occurred over a relatively short period of time (28 days).
Finally, the police were in control of the number of offenses and the amount of each delivery in that they initiated each buy and requested the quantities delivered.
But the quantity and monetary value of the controlled substances in this case far exceed those in Sanchez and analogous cases. In addition, the significance of the $23,000 price for the final delivery is arguably understated in light of the drugs' much greater street value ($50,000 to $70,000). Furthermore, in Sanchez, the trial court entered written findings to support the exceptional sentence, including: 'The deliveries involved small amounts of cocaine[.]' Sanchez, 69 Wn. App. at 258. Here, the trial court made no such finding.
Here, the police made five controlled buys of various amounts of cocaine, methamphetamine, and heroin (each between $500 and $23,000) over a 28-day period.
Sanchez, 69 Wn. App. 255, 256-57 (three controlled buys of small amounts of cocaine (each between $80 to $150) over a nine-day period).
See State v. Bridges, 104 Wn. App. 98, 100, 15 P.3d 1047 (two controlled buys of small amounts of crack cocaine ($50 each) over a period of less than one week), review denied, 144 Wn.2d 1005 (2001); State v. Fitch, 78 Wn. App. 546, 549, 897 P.2d 424 (1995) (three controlled buys of small amounts of cocaine and marijuana (unspecified monetary value) over a period of less than one week); and Hortman, 76 Wn. App. at 454, 456 (three controlled buys of small amounts of rock cocaine (each apparently $20) over a sixteen-day period).
The State further argues that the differences between the first and subsequent deliveries were not nonexistent, trivial, or trifling. It claims that the large quantities requested for the final delivery could serve the law enforcement purpose of identifying a major drug trafficker.
In light of the quantity of controlled substances in the final delivery, the differences between the effects of the first delivery and the subsequent deliveries were not nonexistent, trivial, or trifling.
Therefore, there is no basis in the law for the downward departure.
IV. Ineffective Assistance of Counsel
Finally, Garcia-Camargo argues, pro se, that he was denied effective assistance of counsel because defense counsel (1) failed to timely move to sever; (2) failed to object to hearsay evidence; and (3) failed to point out the discrepancies in two witnesses' testimony.
To prevail on a claim of ineffective assistance of counsel, a defendant must show that his counsel's performance was deficient and that the deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh'g denied, 467 U.S. 1267 (1984); State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996). Where there is a reasonable probability that, but for counsel's performance, the result of the trial would have remained the same, there is no prejudice. Hendrickson, 129 Wn.2d at 78. If either prong of the test is not satisfied, the inquiry ends. Hendrickson, 129 Wn.2d at 78.
A. Motion to sever
Garcia-Camargo fails to support his allegation of ineffective assistance of counsel with any argument whatsoever. Even assuming that defense counsel's failure to timely move to sever was deficient, this court is left to guess as to how this prejudiced him. We will not consider an argument that is not developed in the briefs. State v. Dennison, 115 Wn.2d 609, 629, 801 P.2d 193 (1990); see also RAP 10.3(a)(5).
B. Hearsay
Defense counsel failed to object to hearsay testimony from the State's witnesses regarding various statements the defendants made. But Garcia-Camargo fails to provide any record citations for these allegations.
Therefore, we will not address this claim. RAP 10.3(a)(5).
C. Testimony
During trial, one officer testified that the license plate number on the defendants' car was WUB-399. RP at 91. Another officer testified that their license plate number was WBU-399. RP at 123. Defense counsel informed Garcia-Camargo that this discrepancy was trivial and declined to point it out to the jury.
A review of the record confirms that this discrepancy was trivial. The defendants' guilt did not turn on their license plate number. Failure to point this discrepancy out to the jury did not constitute deficient performance. See State v. Stevens, 69 Wn.2d 906, 908, 421 P.2d 360 (1966) ('An attorney has no duty to argue frivolous . . . matters before a court. His failure to do so does not give a client cause to charge failure of representation.') (citation ommitted). There was no deficient performance.
We affirm the convictions, but reverse and remand for resentencing.
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: SEINFELD, J., ARMSTRONG, C. J.