Opinion
No. 37266-5-II.
December 30, 2008.
Appeal from a judgment of the Superior Court for Grays Harbor County, No. 07-1-00519-9, Gordon Godfrey, J., entered January 7, 2008.
Affirmed in part and remanded by unpublished opinion per Houghton, J., concurred in by Bridgewater and Armstrong, JJ.
UNPUBLISHED OPINION
After a trial on stipulated facts, the trial court found Harley Harmon guilty of unlawful possession of methamphetamine. He appeals, arguing that the trial court erred in (1) not suppressing his statements and evidence seized, (2) calculating his offender score, and (3) not determining if some of his prior convictions were parts of the same criminal conduct. Harmon also assigns error to the interpretation of certain facts in a statement of additional grounds (SAG). We affirm the trial court's denial of Harmon's motion to suppress. But we accept the State's concession of error in the calculation of Harmon's offender. Accordingly, we remand for resentencing.
The State filed a motion on the merits under RAP 18.14 but conceded error in the calculation of Harmon's offender score. A commissioner of this court referred Harmon's appeal to a panel of judges.
FACTS
On September 16, 2007, at around 1 a.m., Officer Jason Bodine of the McCleary Police Department was driving behind Harmon. Harmon pulled into the parking lot of Gordon's Select Market. Bodine followed Harmon into the parking lot because the Market had been closed since 9:00 p.m. and because the surrounding businesses had suffered a recent string of burglaries.
Harmon pulled into a parking stall in front of the store. Bodine parked 40 to 50 yards away. While Bodine ran the vehicle registration, Harmon exited the vehicle, walked over to some vending machines, and returned to the vehicle after a few seconds. He again exited the vehicle, this time walking to the front of the vehicle to work on something in the front of the car. After a few minutes, he returned to the driver's side of the vehicle and left the door open. Dispatch informed Bodine that the vehicle was registered to a man from Renton, Washington.
In his SAG, Harmon contends that Bodine knew who he was and could have recognized him while he was standing at the vending machines. But Bodine denied recognizing Harmon. And even if Bodine had recognized Harmon, it would be immaterial to the issues in this case.
In his SAG, Harmon states that his mother had bought the vehicle at an auto auction and had given him permission to drive it.
Bodine then parked behind Harmon's vehicle, blocking him in. Bodine contacted Harmon to see, "A, if he was having car problems or B, what he is doing in the parking lot." Report of Proceedings (Dec. 10, 2007) (RP) at 9. As he approached Harmon, Harmon appeared to be reaching for something in the passenger compartment. When Bodine asked Harmon if everything was all right, Harmon responded, "I am just cooling down." RP at 10. Harmon continued to fumble around in the car and looked nervous, so Bodine again asked if everything was okay. When Harmon did not acknowledge Bodine, he asked Harmon for his name, which Harmon provided.
In his SAG, Harmon states that he was referring to his car, not to himself.
When Bodine returned to his car to call in Harmon's name, Harmon got out of the vehicle, approached Bodine with his hands raised, and asked why Bodine was running his name. Harmon appeared agitated. Because he was alone in the dark, Bodine became concerned and instructed Harmon to "get away from [him], get back in [his] vehicle, sit down." RP at 12. Harmon complied and Bodine asked Harmon why he was so upset. Harmon explained that he was upset because he had a suspended license. Dispatch confirmed shortly thereafter that Harmon had a suspended license. Bodine then placed Harmon under arrest for driving with a suspended license and advised him of his constitutional rights. On Harmon's person, Bodine found a marijuana pipe and $633. In Harmon's vehicle, Bodine found one gram of methamphetamine, 5.1 grams of marijuana, and some smoking devices.
Officer Randy Bunch arrived at the scene shortly before Bodine placed Harmon under arrest. After verifying that Harmon had been informed of and had waived his constitutional rights, Bunch asked Harmon if he knew what the crystal substance found in the car was. Harmon identified it as methamphetamine.
The State charged Harmon with unlawful possession of methamphetamine. Harmon moved to suppress the evidence seized from his person and his vehicle, arguing that the seizure resulted from an unlawful warrantless search. He also moved to suppress the statement he made to Bunch.
At the suppression hearing, Bodine and Bunch testified as described above. Harmon argued Bodine seized him when he ordered Harmon to return to his vehicle. The State responded that Bodine properly contacted Harmon to determine if he was okay or lost and to determine what Harmon was doing in the parking lot. It also argued that Bodine could order Harmon into his car for officer safety and that Bodine did not seize Harmon because he did not take Harmon's identification. The trial court denied Harmon's motion to suppress, finding that Bodine did not seize Harmon by asking for his information and that once Harmon admitted that he had a suspended license, Harmon could detain him to determine the status of his driving rights.
The trial court's oral ruling and written conclusions differ here. In its oral ruling, the trial court stated that the dispatch report gave the officer the right to continue the police interaction. Where an oral decision conflicts with written findings, the written decision controls. State v. Bryant, 78 Wn. App. 805, 812-13, 901 P.2d 1046 (1995). It should be noted that under the written conclusions of law, the trial court improperly denied Harmon's motion to suppress based on a statement made after the events he claimed constituted a seizure. Harmon argues that he was seized when ordered to return to his vehicle, and he did not mention having a suspended license until after that order. The trial court could not justify Bodine's actions based on statements that Harmon made after the alleged seizure. But the parties did not notice this error, and we may affirm on any grounds supported by the record. State v. Costich, 152 Wn.2d 463, 477, 98 P.3d 795 (2004).
Harmon agreed to waive his right to a jury trial and to have the trial court decide the case based on a stipulated record. The trial court found Harmon guilty. Harmon and the State agreed to the following criminal history:
Crime Date of Crime Adult or Juvenile Unlawful possession of a 07-19-2002 A firearm Residential burglary 07-19-2002 A Second degree theft 04-25-2000 J Second degree vehicle 02-07-1999 J prowling Second degree vehicle 02-07-1999 J prowling Taking a motor vehicle 01-20-1999 J without permission Second degree burglary 01-15-1999 J Second degree vehicle 01-15-1999 J prowling Residential burglary 09-09-1998 J The State listed all Harmon's convictions as felonies. The State recommended that Harmon be sentenced to 366 days based on an offender score of 6. Harmon agreed that his standard range was "12 months + 1 day in prison to 24 months in prison based on [his] criminal history." Clerk's Papers at 27. The trial court accepted the State's calculations and sentenced Harmon to 13 months' incarceration. He appeals.ANALYSIS Seizure
First, Harmon argues that Bodine unlawfully seized him when Bodine ordered him to return to his car. The State responds that Bodine (1) lawfully approached Harmon and asked for his information, (2) ordered Harmon back to his vehicle for officer safety, and (3) had probable cause to arrest Harmon once he admitted that he had a suspended license.
We review the denial of a suppression motion to determine whether substantial evidence supports the trial court's findings of fact and whether those findings support the conclusions of law. State v. Hill, 123 Wn.2d 641, 644-45, 870 P.2d 313 (1994). Although we give great deference to the trial court's factual findings, we review whether those facts constituted a seizure de novo as a question of law. State v. Thorn, 129 Wn.2d 347, 351, 917 P.2d 108 (1996), overruled on other grounds, State v. O'Neill, 148 Wn.2d 564, 62 P.3d 489 (2003).
Bodine seized Harmon when he ordered him to return to his car. A person is seized when restrained by means of physical force or show of authority, his freedom is restrained, and a reasonable person would not have believed he is (1) free to leave, under all the circumstances, or (2) free to otherwise decline an officer's request and terminate the encounter. Thorn, 129 Wn.2d at 352. This determination is a purely objective one, looking at the actions of the law enforcement officer. O'Neill, 148 Wn.2d at 574. Harmon bears the burden of proving a seizure occurred. State v. Young, 135 Wn.2d 498, 509, 957 P.2d 681 (1998).
Bodine actually seized Harmon when he blocked in Harmon's vehicle with his patrol car. State v. Bennett, 62 Wn. App. 702, 709, 814 P.2d 1171 (1991) (1992). But Harmon does not argue that this is when he was seized.
Here, Bodine restrained Harmon through a show of force when he ordered Harmon to back away and return to his vehicle. A reasonable person in Harmon's position would not have felt free to leave.
But whether a seizure occurred and whether that seizure was legal are separate inquiries. O'Neill, 148 Wn.2d at 575-56; State v. Carney, 142 Wn. App. 197, 201, 174 P.3d 142 (2007), review denied, 164 Wn.2d 1009 (2008). If an officer's conduct or show of authority, objectively viewed, rises to the level of a seizure, that seizure is valid only where there are "'specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant'" detaining the individual. O'Neill, 148 Wn.2d at 576 (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)).
Harmon argues that his seizure was illegal because Bodine lacked a well-founded suspicion of criminal activity when he ordered him back into the vehicle. But Bodine acted out of safety concerns, not to effectuate a criminal investigation. An officer may seize a person if the officer has specific and articulable concerns for officer safety. See Terry, 392 U.S. at 21-24 (an officer may perform a protective frisk for weapons based on concerns for officer safety); State v. Mendez, 137 Wn.2d 208, 220, 970 P.2d 722 (1999) (an officer may seize a passenger in a motor vehicle based on concerns for officer safety); Carney, 142 Wn. App. at 203 (an officer may seize a witness without a warrant based on officer safety). Bodine did not order Harmon to return to the vehicle to enable him to conduct an investigation. Instead, Bodine acted out of concerns for his safety. Harmon approached him in a confrontational manner and appeared agitated. Bodine was alone in a dark parking lot with Harmon at that time. Bodine had a legitimate, specific and articulable concern for his safety.
The cases cited by Harmon do not support his argument that he was illegally seized. In those cases, the officer ordered the defendant to remain in place or go to a specific spot so that the officer could perform a warrant or identification check. State v. Martinez, 135 Wn. App. 174, 178, 143 P.3d 855 (2006) (seizure where officer ordered suspect to sit on a utility box while officer radioed dispatch to verify suspect's identity); State v. Crane, 105 Wn. App. 301, 310-11, 19 P.3d 1100 (2001), overruled on other grounds in O'Neill, 148 Wn.2d 564 (citing cases where officers ordered suspect to wait or remain in a specific spot while running warrant checks); State v. Ellwood, 52 Wn. App. 70, 71-72, 757 P.3d 547 (1988) (officer ordered suspects to "[w]ait right here" while he conducted a warrant check). In contrast, Bodine acted out of concern for his own safety. Further, Bodine had already started performing the check when Harmon confronted him. Bodine's directives, then, were not aimed at detaining Harmon but at ensuring his safety.
Harmon's reliance on State v. Rankin, 151 Wn.2d 689, 692-93, 703, 92 P.3d 202 (2004), and Mendez, 137 Wn.2d at 212-13, 223, is also misplaced because the defendants in those cases were passengers in a car stopped by police. Automobile passengers have greater privacy protection than do drivers. State v. Parker, 139 Wn.2d 486, 495-96, 987 P.2d 73 (1999). Harmon was not a passenger. Rankin and Mendez are not applicable. Further, even if Mendez did apply, that court foresaw the need for an officer to order a driver back into his or her car for safety reasons. 137 Wn.2d at 219-20.
In conclusion, Bodine seized Harmon when he ordered Harmon back into the vehicle. But Bodine lawfully seized Harmon because of his safety concerns. The trial court did not err in denying Harmon's motion to suppress the evidence seized from Harmon's person, the evidence seized from his vehicle, or the statements Harmon made to Bunch.
Sentencing
Harmon also argues that even if his prior adult felony convictions did not wash out, the trial court erred in calculating his offender score as 6. Harmon had two prior adult prior felony convictions, three juvenile nonviolent felony convictions and three juvenile gross misdemeanor convictions. To reach an offender score of 6, the State and the trial court must have added one-half point for each of the juvenile gross misdemeanor convictions. But for Harmon's crime, prior gross misdemeanor convictions should not be counted in the offender score. RCW 9.94A.525(7). Therefore, we remand Harmon's sentence for recalculation of his offender score.
See discussion of Harmon's wash out argument following in this opinion.
Second degree vehicle prowling is a gross misdemeanor, not a felony. RCW 9A.52.100(2).
Harmon further argues that the trial court erred in calculating his offender score because his two prior adult prior felony convictions, both for class C felonies, had washed out. The date of those felonies was July 19, 2002. Under RCW 9.94A.525(2)(c), "class C prior felony convictions other than sex offenses shall not be included in the offender score if, since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction . . . the offender had spent five consecutive years in the community without committing any crime that subsequently results in a conviction."
Harmon was convicted of unlawful possession of a firearm and of second degree theft. While the record does not indicate whether the unlawful possession of a firearm was a first or second degree offense, the conviction must be for second degree unlawful possession of a firearm because Harmon does not have a qualifying "serious offense," as defined in RCW 9.41.010(12), that would raise the offense to first degree unlawful possession of a firearm. RCW 9.41.040(1)(a), (2)(a).
Harmon committed his current crime on September 16, 2007, more than five years after he committed his prior class C felonies. Thus, those 71-72 prior felony convictions could have washed out. But the record is silent as to when he was released from confinement imposed for the felony convictions. The State concedes that the record is insufficient to determine whether Harmon's prior adult class C felony convictions had washed out under RCW 9.94A.525(2) and asks that we remand for a new sentencing hearing. We accept the State's concession and remand Harmon's sentence for a new sentencing hearing to address whether his prior adult felony convictions should be included in his offender score.
Harmon argues that on remand, the State, having failed to present evidence to show that his prior adult class C felonies should be counted in his offender score, is prohibited from submitting additional evidence. But the State is held to the existing record only if the defendant objected at sentencing and the disputed issues were fully argued at sentencing. In re Pers. Restraint of Cadwallader, 155 Wn.2d 867, 878, 123 P.3d 456 (2005). Harmon did not object to the inclusion of his prior adult class C felonies or argue at trial that they washed out. Accordingly, remand is appropriate to have the trial court determine whether he had five consecutive crime-free years following his release from confinement imposed for his 2002 convictions and, if appropriate, to recalculate his offender score.
Finally, Harmon argues that the trial court erred in failing to determine whether his prior adult felony convictions were parts of the same criminal conduct, under RCW 9.94A.589(1), because they were committed on the same day. The State responds that the trial court need not make a determination as to the same criminal conduct where, as here, Harmon acknowledges his prior convictions. He replies that he did not waive this issue because he stipulated to the existence of his prior convictions, not the calculation of his offender score. Given that we must remand Harmon's sentence for reasons described above, we need not resolve this issue. Harmon can argue this issue to the trial court on remand.
Bodine lawfully seized Harmon based on an articulable and specific concern for officer safety. The trial court erred in calculating Harmon's offender score when it treated his prior gross misdemeanors as felonies. Additionally, the record is insufficient to determine if his prior class C felonies washed out.
We affirm Harmon's conviction but remand for resentencing consistent with this opinion.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
BRIDGEWATER, J. and ARMSTRONG, J., concur.