Opinion
No. 34259-6-II.
August 7, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 04-1-02985-8, John A. McCarthy, J., entered December 2, 2005.
Affirmed by unpublished opinion per Van Deren, A.C.J., concurred in by Bridgewater and Quinn-Brintnall, JJ.
Jeffrey Eldon Gilbert appeals his conviction for unlawful manufacture of a controlled substance, methamphetamine. He contends that the prosecutor committed misconduct by misstating the law and by denigrating defense counsel. He also claims that the trial court erred by failing to properly consider imposing a Drug Offender Sentencing Alternative (DOSA). In addition, Gilbert alleges that hiscounsel provided ineffective assistance by (1) failing to request a cautionary accomplice jury instruction, (2) failing to object to the prosecutor's misstatement of the law and improper statements, and (3) failing to order a DOSA evaluation report before sentencing. Gilbert also alleges that the trial court violated the separation of powers doctrine by referring to the crime as a "serious crime," Br. of Appellant at 27, when the crime is not found under the statutory definition of a serious crime. Finally, Gilbert claims that cumulative error requires reversal. Finding no error, we affirm.
The DOSA statute in effect at the time provided:
An offender is eligible for special drug offender sentencing alternative if:
(a) The offender is convicted of a felony that is not a violent offense or sex offense and the violation does not involve a sentence enhancement under RCW 9.94A.533 (3) or (4);
(b) The offender has no current or prior convictions for a sex offense or violent offense in this state, another state, or the United States;
(c) For a violation of the Uniform Controlled Substances Act . . . 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; and
(d) The offender has not been found . . . to be subject to a deportation detainer or order.
Former RCW 9.94A.660(1) (2002).
FACTS
On August 31, 2003, Patricia Whetstine called 9-1-1 claiming that she mixed chemicals incorrectly while cooking methamphetamine and that the resulting fumes posed a danger to children living near her apartment building. Patricia told Pierce County Deputy, Anthony Messineo, that the apartment was safe because there was no anhydrous ammonia in the apartment. She told Messineo there was a methamphetamine laboratory in the southwest bedroom, where Gilbert and Wayne Williams stayed, that contained multiple items associated with the manufacture of methamphetamine. Messineo arrested Patricia for manufacturing methamphetamine and informed her of her Miranda rights.
Patricia Whetstine and Richard Whetstine, a married couple, both testified at trial. To avoid confusion, we refer to them by their first names. We do not intend any disrespect.
"The three-digit telephone number `9-1-1' has been designated as the `Universal Emergency Number,' for citizens throughout the United States to request emergency assistance. It is intended as a nationwide telephone number and gives the public fast and easy access to a Public Safety Answering Point (PSAP)." National Emergency Number Association, 9-1-1 Facts, //www.nena.org/(follow "9-1-1 Facts" hyperlink) (last visited July 24, 2007).
Messineo testified that the items included a glass Mason jar with a funnel on top containing brown liquid, a pressure cooker, two hydrochloric acid (HCL) generators, Coleman fuel, a glass Pyrex baking dish containing white powder, a jug of muriatic acid, unused coffee filters, three baggies containing white powder residue, and an electronic gram scale.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Detective Daryl Purviance, Pierce County Methamphetamine Laboratory Processing Team member, processed and photographed 151 items believed to be associated with the methamphetamine lab. The Washington State Crime Laboratory tested the liquids and powders that the officers recovered from the apartment and found red phosphorous, ephedrine, and pseudoephedrine, each of which is used in the manufacture of methamphetamine.
In addition to the items described by Messineo at trial, Purviance testified that he found numerous other items in the southwest bedroom, including: several one-pound propane cylinders, a fork with white residue, a small shot glass containing a clear liquid and various "flecks," a thermos full of liquid, a mason jar one-quarter full of a yellowish liquid, containers with brown sludge, a pitcher with white powder residue, a glass casserole dish with white powder, the majority of which had been removed with a credit card, another glass bowl with residue in it, containers that could have been used as a HCL generator, walkie-talkies, acetone, muriatic acid, drain opener containing sulfuric acid, hardware-grade solvent, antifreeze, venting apparatuses, drying and absorbent chemicals, a homemade methamphetamine pipe, empty Red Devil lye containers, partially stripped lithium batteries, pH indicator strips, and gloves.
Officers also recovered from the southwest bedroom, where most of the evidence was found: (1) a mason jar, containing brown liquid, with Gilbert's fingerprint on the outside and two funnels in the top, (2) a three-foot tall cardboard barrel containing brown powder later identified as Ma Huang, and (3) red powder consistent with red phosphorous on a magazine page. The State charged Gilbert as an accomplice to the unlawful manufacture of a controlled substance, methamphetamine, under former RCW 69.50.401(a)(1)(ii) (1998). The State listed Williams and Patricia as co-defendants.
Ma Huang is the Chinese name for ephedra, which is the plant that yields ephedra and pseudoephedrine.
Former 69.50.401(a)(1)(ii) (1998) provides in relevant part:
[I]t is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance.
(1) Any person who violates this subsection with respect to:. . . .
(ii) amphetamine or methamphetamine, is guilty of a crime and upon conviction may be imprisoned for not more than ten years.
Police dismissed the charges against Patricia. Patricia testified that she did not enter into any deals with the State to testify in this case.
Patricia told Messineo that she intentionally lied during her 9-1-1 call because she wanted a quick police response. She testified at trial that she was frustrated because Gilbert and Williams were living in her apartment, making it smell like chemicals, threatening her, and refusing to leave. Specifically, she stated "I went back to church and I decided to clean up my house, and that's just what I did." Report of Proceedings (RP) at 92.
The complete Report of Proceedings contains seven volumes. The first five volumes are records of the trial proceedings and are designated as RP. The last volume is a record of the sentencing hearing and is designated SRP.
Patricia testified that Gilbert: (1) slept "in the computer room," RP at 61, (2) had red phosphorous in the apartment, and told her that he was "going to go up in the hills and make some," RP at 118, (3) had ephedrine tablets at the apartment, and (4) boiled Ma Huang roots to extract "E" or ephedrine. Patricia also testified that before he moved in, Gilbert asked her to keep his "felony box" at the apartment. RP at 69. When she looked inside it, she found a `gas-type mask, aerator, tubing, different chemicals, jars, Pyrex, and coffee filters." RP at 68-69. She testified that every time she returned to the apartment from overnight trips, it smelled like chemicals. On one particular occasion, when Patricia came home and smelled strong chemicals, she asked Gilbert what was causing the smell and he replied that "he was washing his dope." RP at 71. She further testified that, on a different occasion, Gilbert worked with chemicals in her laundry room, causing the apartment to smell. Gilbert threatened Patricia and her ill husband, Richard, with physical violence if they did not acquiesce to Gilbert's activities. Gilbert only left the apartment after Patricia threatened him and called the police.
The Whetstine's had a two bedroom apartment. They slept in the main bedroom and Gilbert slept in the other bedroom, referred to alternatively as the "computer room," the "extra" bedroom, or the "southwest bedroom." RP at 61. Police recovered the majority of the manufacturing evidence, including the Mason jar with Gilbert's fingerprints and the barrel of Ma Huang, from the southwest bedroom.
Patricia testified that she and Richard were away from the apartment several nights a month for medical treatment and during those periods Gilbert and Williams were alone at the apartment.
Richard testified that he knew Gilbert from junior high school and had consented to allow Gilbert and Williams to stay at his apartment for a few days, but that they ended up staying for months. He saw Gilbert and Williams bring drug manufacturing items, such as solvents, tubes, jars, and "cans of stuff," to the apartment on several occasions. RP at 129. He also testified that he had seen Gilbert or Williams in the process of making methamphetamine. According to Richard, "[Gilbert] was always piddling around with it. . . . trying to extract stuff . . . like ephedra or whatever." RP at 131. He testified that when Gilbert attempted to heat some of the ingredients in the microwave and he told him to stop, Gilbert became angry. Richard was afraid to argue with Gilbert because he "was made to believe that . . . something would happen to [him]" if he got involved. RP at 132-33. He also testified that Gilbert slept in the "extra" bedroom. RP at 133.
Williams testified after entering into a plea agreement with the State in a previous case. He confirmed that Gilbert stayed in the computer room. He also testified that Patricia was very upset and frustrated about the drugs. "I mean, doing the manufacturing and all of that stuff." RP at 183. He described one of the "major times" that Gilbert's activities stressed and frustrated Patricia. RP at 178. He observed Gilbert in the kitchen trying to extract ephedrine from Ma Huang. Patricia came home that evening, saw Gilbert in the kitchen, and went into her bedroom. Once Gilbert went to bed, Williams informed Patricia that Gilbert had left the kitchen, and she asked Williams to clean up the kitchen. Williams threw away Gilbert's "cookie sheet and a little backpack with assorted stuff in it." RP at 181. He testified, however, that he had not seen Gilbert actually manufacturing methamphetamine.
Williams pleaded guilty to conspiracy to manufacture and possession of methamphetamine in March 2003. Gilbert was a named co-defendant in that case.
The jury found Gilbert guilty. The trial court imposed a mid-range sentence of 60 months confinement and denied Gilbert's DOSA request. Gilbert appeals.
ANALYSIS
I. Prosecutorial Misconduct
Gilbert claims that the prosecutor committed misconduct twice during trial. First, he claims the prosecutor "reliev[ed] himself of the full weight of his burden of proof by misstating the law on the crucial standard of reasonable doubt" when he used pictures of a skyline in his closing argument to illustrate that standard of proof. Br. of Appellant at 19. He also alleges that the prosecutor denigrated counsel and his role, by declaring that counsel's job was to "create reasonable doubt" and to "try to muddy the waters" during the prosecutor's rebuttal argument. Br. of Appellant at 22. Gilbert failed to object at trial to either instance of alleged misconduct.
To establish prosecutorial misconduct, the defendant must establish that the conduct complained of was both improper and prejudicial. State v. Stenson, 132 Wn.2d 668, 718, 940 P.2d 1239 (1997). "We review allegedly improper comments in the context of the entire argument, the issues in the case, the evidence addressed in the argument, and the instructions given." State v. Bryant, 89 Wn. App. 857, 873, 950 P.2d 1004 (1998). If the defendant proves that the conduct was improper, the misconduct does not constitute prejudicial error unless "there is a substantial likelihood that the misconduct affected the jury's verdict." Stenson, 132 Wn.2d at 719.
If, as in this case, the defendant fails to object, the misconduct is only reversible if the conduct was "so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury." Stenson, 132 Wn.2d at 719.
Attorneys must limit their closing legal arguments to the instructions given by the court. State v. Davenport, 100 Wn.2d 757, 760, 675 P.2d 1213 (1984). This is especially true for prosecutors because they have a duty to ensure that criminal defendants receive fair trials. State v. Reeder, 46 Wn.2d 888, 892, 285 P.2d 884 (1955).
Gilbert claims that the prosecutor informed the jury during rebuttal argument that the jury only needed 60 percent certainty to convict, which is much closer to a preponderance of the evidence standard. The prosecutor argued:
Reasonable doubt here is what your jury instructions tell you about it. If after such consideration you have an abiding belief in the truth of the charge, you are satisfied beyond a reasonable doubt. An abiding belief in the truth of the charge, that's a belief that's going to last. It's a belief that's going to stick with you. And if you do have that belief that the charge is true, you do not have a reasonable doubt.
The applicable jury instruction, instruction no. 2, CP at 9, states in part:
A reasonable doubt is one for which a reason exists and may arise from the evidence or lack of evidence. It is such a doubt as would exist in the mind of a reasonable person after fully, fairly and carefully considering all of the evidence or lack of evidence. If, after such consideration, you have an abiding belief in the truth of the charge, you are satisfied beyond a reasonable doubt.
Now, instead of talking about it anymore, because it is sort of a tough concept, I want to show you an example. Say you are looking at a picture of a skyline, and you need to decide whether that picture is taken from Fife, whether it's taken from Tacoma or whether it's taken from Seattle, and this is all you can see so far. And you are pretty sure that's Mount Rainier, but you don't have a lot of other information.
Now, of course, you have a reasonable doubt as to where that picture was taken from, which city. You absolutely have a reasonable doubt there.
Then you get a little more of the picture and you see some tall buildings. So at this point, well, you probably have a pretty good idea that it's not Fife. Fife doesn't have a lot of big buildings, so you can narrow it down to Tacoma or Seattle. But you still have a reasonable doubt as to what that picture is showing.
. . . .
Bring in another piece of the picture. When another piece of the picture becomes clear, you know beyond a reasonable doubt that that's taken from Seattle. You know that because you have evidence that it's from Seattle. And even though you can't see the entire thing, even though probably 40 percent of that picture is missing, you don't have a reasonable doubt as to where that picture is taken from. And when the rest of the picture comes in, of course, you know for sure you were from Seattle — or it's taken from Seattle.
And it's the same thing in this case. You don't have all the evidence you want. There are always going to be questions unanswered. There are going to be pieces of the puzzle missing, but you have enough evidence and you have enough pieces of the puzzle, far more than 60 percent you had in this picture, to know what was going on.
The evidence you do have is enough to give you an abiding belief in the truth of the charge.
RP at 500-01. Gilbert misconstrues the State's analogy. The State did not tell the jury that it needed only 60 percent certainty to convict Gilbert. Rather, the State merely presented a systematic analysis to show that at some point, as more facts were made available, jury members need no longer doubt which city is pictured. Because Gilbert did not object at trial and was unable to show that the conduct was flagrant and ill-intentioned or that the use of the analogy was improper, his first claim of prosecutorial misconduct fails. See Stenson, 132 Wn.2d at 719.
Gilbert also contends that the prosecutor committed misconduct by denigrating defense counsel during rebuttal argument when he said, "[defense counsel's] job in this case is to try to create reasonable doubt, to try to muddy the waters." RP at 494.
The State responds that the prosecutor was entitled to address defense counsel's statement during closing argument that "[t]he State's thrown some red herrings out there, but you don't have to chase after those red herrings." RP at 487-88. As the State points out, the court instructed the jury, in its written instructions, that the attorneys' remarks do not constitute evidence and to disregard any comment made by an attorney not supported by law or evidence. "A jury is presumed to follow the instructions of the court." State v. Southerland, 109 Wn.2d 389, 391, 745 P.2d 33 (1987).
Gilbert relies on State v. Reed, 102 Wn.2d 140, 684 P.2d 699 (1984), to support his argument that "[i]t is blatant misconduct for a prosecutor to impugn defense counsel's integrityor disparage the role of defense counsel in closing argument." Br. of Appellant at 22. But Reed is distinguishable because it involved an overzealous prosecutor who "called the [defendant] a liar no less than four times, . . . stated that the defense counsel did not have a case, . . . [stated] that the [defendant] was clearly a `murder two[,]' . . . [and] implied that the defense witnesses should not be believed because they were from out of town and drove fancy cars." 102 Wn.2d at 145-46.
Gilbert also relies on a non-binding case from the Second Circuit, United States v. Friedman, 909 F.2d 705 (2d Cir. 1990). In Friedman, the prosecutor stated "`[W]hile some people . . . go out and investigate drug dealers and prosecute drug dealers and try to see them brought to justice, there are others who defend them, try to get them off, perhaps even for high fees,' . . . undermin[ing] the presumption of innocence, the Government's obligation to prove guilt beyond a reasonable doubt, and the standards of propriety applicable to public prosecutors." Further, the prosecutor characterized defense counsel as a witness and made other statements such as "defense counsel `will make any argument he can to get that guy off.'" Friedman, 909 F.2d at 709 (citation omitted). In addition, defense counsel objected to some of the comments. Friedman, 909 F.2d at 708. In the Second Circuit, unlike the State of Washington, the court focuses on "the severity of the misconduct, the measures adopted to cure the misconduct, and the certainty of the conviction absent the misconduct," to determine whether the improper comments were prejudicial. Friedman, 909 F.2d at 709. Under this test and, given the severity of the comments, the court reversed. Friedman, 909 F.2d at 710.
Here, unlike Reed, the prosecutor did not accuse any person of lying, did not state that defense counsel lacked a valid case, did not categorize or stereotype the defendant, and did not make statements demeaning the credibility of any witness. Under these circumstances the prosecutor did not commit misconduct. Even if we were inclined to find that these statements were misconduct and, considering Gilbert did not object at trial, the conduct was not so flagrant and ill-intentioned that any resulting prejudice could not have been neutralized by an admonition to the jury. See Stenson, 132 Wn.2d at 719. Gilbert's second claim of prosecutorial misconduct fails.
This conclusion disposes of Gilbert's allegation of ineffective assistance of counsel for failure to object to the State's skyline analogy.
II. DOSA Sentence
Next, Gilbert contends that the trial court erred by categorically denying his request for a DOSA sentence. He bases his allegation on the trial court's use of the phrase "serious crime."
Generally, a trial court's decision to deny a DOSA is not reviewable. State v. Grayson, 154 Wn.2d 333, 338, 111 P.3d 1183 (2005). Because a sentence under DOSA falls within the standard sentence range set by the legislature in the sentencing statute, this court presumes that the trial court did not abuse its discretion. State v. Garcia-Martinez, 88 Wn. App. 322, 329, 944 P.2d 1104 (1997). No defendant is entitled to a DOSA, but every defendant is entitled to ask the trial court for meaningful consideration of the request. Grayson, 154 Wn.2d at 342. A party may challenge a trial court's failure to exercise any discretion where the trial court categorically denies a DOSA sentence. Grayson, 154 Wn.2d at 342. We review a trial court's denial of a DOSA request for abuse of discretion, which occurs when the trial court bases its decision on manifestly unreasonable or untenable grounds. State v. White, 123 Wn. App. 106, 114, 97 P.3d 34 (2004).
Gilbert misconstrues the trial court's reference to a serious crime. After ascertaining that this conviction did not preclude a DOSA sentence, the trial court questioned Gilbert about a charge of conspiracy to manufacture methamphetamine committed on March 4, 2003, fewer than six months before he committed the instant offense. Gilbert responded that the same group of friends was involved in both cases. The court then said:
You know, the State hasn't recommended the high-end sentence for you. They have kind of recommended a middle-end sentence. After trial on this case, and I heard the evidence and I saw the exhibits and I know what the jury considered and the evidence. Even though, as counsel points out, there was only one glass with your print on it, that is strong evidence that there was manufacturing going on at this particular location, and that you were involved in it, and that's a serious crime. This is a serious offense. I am going to sentence you to 60 months.
SRP at 9.
The record demonstrates that the trial court denied the DOSA request based on Gilbert's 2003 manufacturing charge and the evidence and testimony produced at trial. The trial court did not err in denying Gilbert's DOSA request.
Because we find that the trial court did not categorically deny Gilbert's DOSA request, it is not necessary to address Gilbert's separation of powers argument.
III. Effective Assistance of Counsel
Gilbert contends that his trial counsel provided ineffective assistance by failing to (1) request a cautionary co-defendant or accomplice jury instruction and (2) order a DOSA evaluation report before sentencing.
Effective assistance of counsel is guaranteed under the federal and state constitutions. To prove ineffective assistance, Gilbert must show that (1) counsel's performance was deficient and (2) that deficient performance prejudiced him. Stenson, 132 Wn.2d at 705.
In all criminal prosecutions, the accused shall enjoy the right to a public and speedy trial, by an impartial jury . . . to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
U.S. Const. amend. VI."In criminal prosecutions the accused shall have the right to appear and defend in person, or by counsel." Wash. Const. art. I, § 22.
Counsel's performance is deficient when it falls "below an objective standard of reasonableness based on the consideration of the circumstances." Stenson, 132 Wn.2d at 705. Prejudice occurs when, but for the deficient performance, there is a reasonable probability that the outcome would have differed. Stenson, 132 Wn.2d at 705-06.
We give great deference to trial counsel's performance and begin our analysis with a strong presumption that counsel was effective. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). We view challenged testimony against the evidence in the record, including whether the challenged evidence was central to the State's case. See State v. Hendrickson, 129 Wn.2d 61, 80, 917 P.2d 563 (1996); State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989). We are not required to address "both prongs of the test if the defendant makes an insufficient showing on one prong." State v. Fredrick, 45 Wn. App. 916, 923, 729 P.2d 56 (1986).
"If trial counsel's conduct can be characterized as legitimate trial strategy or tactics, it cannot serve as a basis for a claim that the defendant received ineffective assistance of counsel." State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002).
A. Cautionary Jury Instruction
Gilbert first contends that defense counsel provided ineffective assistance by failing to request Washington Pattern Jury Instruction (WPIC) 6.05, concerning accomplice testimony. Gilbert alleges that, if his counsel had proposed the instruction, it would have been reversible error for the trial court not to grant it.
The testimony of an accomplice, given on behalf of the plaintiff, should be subjected to careful examination in light of the other evidence in the case, and should be acted upon with great caution. You should not find the defendant guilty upon such testimony alone unless, after carefully considering the testimony you are satisfied beyond a reasonable doubt of its truth. 11 Washington Pattern Jury Instructions: Criminal 6.05 (2d ed. 1994).
But a cautionary accomplice testimony jury instruction is only required when the accomplice testimony is not "substantially corroborated" by other evidence. See State v. Harris, 102 Wn.2d 148, 155, 685 P.2d 584 (1984), overruled on other grounds by, State v. Brown, 111 Wn.2d 124, 157, 761 P.2d 588 (1988); State v. Mannhalt, 68 Wn. App. 757, 767-68, 845 P.2d 1023 (1992).
We hold: (1) it is always the better practice for a trial court to give the cautionary instruction whenever accomplice testimony is introduced; (2) failure to give this instruction is always reversible error when the prosecution relies solely on accomplice testimony; and (3) whether failure to give this instruction constitutes reversible error when the accomplice testimony is corroborated by independent evidence depends upon the extent of corroboration. If the accomplice testimony was substantially corroborated by testimonial, documentary or circumstantial evidence, the trial court did not commit reversible error by failing to give the instruction.
Harris, 102 Wn.2d at 155. Corroborating evidence is sufficient if it fairly connects the defendant with the crime and independent evidence is not needed to corroborate every part of the accomplice's testimony. See State v. Calhoun, 13 Wn. App. 644, 648, 536 P.2d 668 (1975).
Here, the State acknowledged and, Williams confirmed, that he was testifying as a part of a plea agreement. But, the trial testimony also included Patricia and Richard's testimony about Gilbert's activities involving methamphetamine production, substantially corroborating Williams's testimony. The jury also heard that the police recovered Gilbert's fingerprint on a Mason jar with two funnels in the top containing brown liquid and other substantial physical evidence of a methamphetamine lab in the southwest bedroom.
As such, the State did not rely solely on uncorroborated accomplice testimony and, thus, a cautionary instruction would have been appropriate but not mandatory. If Gilbert's counsel had proposed the instruction, the trial court's denial would not have constituted reversible error. Gilbert fails to show how counsel's failure to request a cautionary accomplice instruction prejudiced him. We are not required to "address both prongs of the test if the defendant makes an insufficient showing on one prong." Fredrick, 45 Wn. App. at 923. Accordingly, Gilbert's counsel did not provide ineffective assistance by failing to offer the instruction.
B. DOSA Evaluation before Sentencing
Gilbert argues that his counsel's failure to order a DOSA screening before sentencing constituted ineffective assistance. Specifically, he claims that his counsel was ineffective, based on the following interaction at sentencing:
Defense counsel: Your Honor, clearly my client has a substance abuse issue.
. . . .
My client does acknowledge that he does have a drug problem. As the Court can tell from his prior conviction, he has a conviction for conspiracy to manufacture methamphetamine. He's had drug issues for some time.
At this point, Your Honor, we are asking the Court for a DOSA sentence. I think that the Court can look at my client's past history to see that, to determine that he does have a drug substance abuse issue. I don't believe that my client would argue that he does [have] a substance abuse issue, and clearly, he does need treatment.
The likelihood of him re[-]offending would be significantly higher without any treatment.
SRP at 4-5.
Trial Court: Did you do a DOSA screening?
Defense counsel: Your Honor, unfortunately because of my trial schedule, that was just so slammed that I wasn't able to get that done. But I believe that given his prior criminal history, which is also another drug offense, that he does suffer from a substance abuse issue.
SRP at 6.
Gilbert acknowledges that the DOSA sentencing statute, former RCW 9.94A.660 (2002), did not require a pre-sentencing evaluation, but he argues that his counsel was required to provide at least minimal support for the requested DOSA sentence as a departure from the presumptive standard range.
Gilbert relies on Garcia-Martinez, 88 Wn. App. at 331, to support his theory that counsel must provide "adequate factual or legal basis" for a DOSA. Br. of Appellant at 31. But in Garcia-Martinez, Division I of this court did not establish additional requirements for counsel to request a DOSA sentence for their clients; rather, Garcia-Martinez was challenging the court's decision to give a DOSA sentence, not defense counsel's actions.
The language to which Gilbert refers simply states that a trial court need not grant a DOSA if there is not a "factual basis to justify imposing a sentence below the standard range." Garcia-Martinez, 88 Wn. App. at 330. Here, Gilbert's counsel pointed to his recent drug-related conviction, Gilbert's admission of a long term drug problem, and his likelihood of re-offense without treatment. If the trial court had imposed a DOSA sentence, this record would have provided sufficient factual basis to justify it. As such, Gilbert is unable to show that defense counsel's failure to order an evaluation before sentencing fell below an objective standard of reasonableness and, thus, this we hold that Gilbert received effective assistance of counsel.
IV. Cumulative Error
Finally, Gilbert contends that cumulative error requires reversal. Because we hold that the prosecutor did not commit misconduct, that Gilbert received effective assistance, and that the trial court did not err by denying his DOSA request, his cumulative error claim fails.
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.
BRIDGEWATER, J., QUINN-BRINTNALL, J., concur.