Opinion
No. 24312-5-III.
January 9, 2007.
Appeal from a judgment of the Superior Court for Grant County, No. 04-1-00822-3, John M. Antosz, J., entered June 28, 2005.
Counsel for Appellant(s) Janet G. Gemberling, Gemberling Dooris PS, Po Box 20129, Spokane, WA, 99204-7129, Julia Anne Dooris, Gemberling Dooris Ladich, WA, 99204-7129.
Counsel for Respondent(s), John Dietrich Knodell III, Attorney at Law, Pros Atty Grant Co Crthse, Ephrata, WA, 98823-0037.
Kato, J., Kulik, J.
Affirmed in part and remanded by unpublished opinion per Schultheis, A.C.J., concurred in by Kato and Kulik, JJ.
After a bench trial, Jamaal Hawkins was found guilty of first degree unlawful possession of a firearm and of possessing cocaine. He argues on appeal that the trial court erred in finding that he had a prior serious offense supporting the firearm conviction, and in considering statements of a nontestifying witness. He also challenges his sentence and contends he had ineffective assistance of counsel. We conclude that attempted second degree assault is a serious offense supporting his conviction. We also find that the evidentiary issue was not preserved for appeal and that he had effective assistance of counsel. Consequently, we affirm the judgment. Because we find that the offender score is not sufficiently supported by the record, however, we remand for resentencing.
Facts
In mid-December 2004, Moses Lake Police Corporal Brian Jones stopped a car he observed speeding. Mr. Hawkins was the driver of the car. As Corporal Jones was checking Mr. Hawkins's driver's license, he noticed that Mr. Hawkins was reaching under the driver's seat and making other furtive movements. Mr. Hawkins refused to show his right hand, so Corporal Jones pulled him from the car, finding chunks of white powder in the driver's seat. These chunks field-tested positive for cocaine.
Corporal Jones arrested Mr. Hawkins, placed him in the patrol car, and advised him of his Miranda rights. Mr. Hawkins then stated that he was a five-time convicted felon. Officers found a bag of bullets behind the driver's seat of his car. They also found cocaine powder on Mr. Hawkins's clothes and on his seat after he was left alone in the patrol car for a short while. During the execution of a search warrant later, officers found a semiautomatic handgun in the car's trunk.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Mr. Hawkins was charged with first degree unlawful possession of a firearm (RCW 9.41.040(1)(a)) and possession of a controlled substance — cocaine (RCW 69.50.4013). At his bench trial in June 2005, Corporal Jones testified about a report by Robert Johnson, a forensic scientist at the State Patrol crime lab. According to Corporal Jones, the crime lab lifted a fingerprint from the handgun, compared it to Mr. Hawkins's fingerprints and the fingerprints of several other people associated with Mr. Hawkins, and did not find a match. Mr. Johnson did not testify. Later, Corporal Jones corrected himself and admitted that the report discussed a fingerprint lifted from another object found in the trunk, not from the handgun. No prints were obtained from the handgun. Witness Melissa Harden, who claimed she sold cocaine for Mr. Hawkins, testified that she sold him the handgun, which she had stolen from her father.
During the trial, the State presented judgments and sentences for two prior drug convictions and one prior second degree attempted assault conviction from Pierce County. Mr. Hawkins stipulated to the accuracy of this criminal history. The trial court concluded he was guilty of both charges and entered findings of fact and conclusions of law to support that judgment. With an offender score based on a total of five prior felonies, he received a standard range sentence.
Attempted Second Degree Assault is a "Serious Offense"
Mr. Hawkins first contends the evidence is insufficient to support his conviction for first degree unlawful possession of a firearm, RCW 9.41.040(1)(a). He argues that his prior conviction for attempted second degree assault is not a predicate "serious offense" for the purposes of RCW 9.41.040 as a matter of law. This issue requires interpretation of the unlawful possession of a firearm statute and definitions found in RCW 9.41.010. Accordingly, review is de novo. State v. Swecker, 154 Wn.2d 660, 665, 115 P.3d 297 (2005). Our objective in construing statutes is to determine the legislature's intent. State v. Jacobs, 154 Wn.2d 596, 600, 115 P.3d 281 (2005). The plain meaning of the language used in the statutes is considered an expression of that intent. Id.
RCW 9.41.040(1)(a) states in part that a person is guilty of first degree unlawful possession of a firearm if that person has a firearm in his or her possession and has been previously convicted of "any serious offense as defined in this chapter." A "serious offense" is defined in part as "any of the following felonies or a felony attempt to commit any of the following felonies, as now existing or hereafter amended: (a) Any crime of violence." RCW 9.41.010(12). Included in the statutory definition of a "crime of violence" is "[a]ny felony defined under any law as a class A felony or an attempt to commit a class A felony, criminal solicitation of or criminal conspiracy to commit a class A felony, . . . [and] assault in the second degree." RCW 9.41.010(11)(a). Second degree assault is a class B felony. RCW 9A.36.021(2)(a). Because the attempt to commit a second degree assault is not specifically listed as a crime of violence in RCW 9.41.010(11)(a), Mr. Hawkins contends the legislature did not intend to include attempted second degree assault as a serious offense. He fails to consider the context of the "crime of violence" definition in the entire scheme of the statute. Jacobs, 154 Wn.2d at 600-01.
RCW 9.41.010(12) specifically states that a serious offense is also a "felony attempt" to commit any crime of violence, which includes second degree assault. RCW 9.41.010(11)(a). The attempt to commit a class B felony, such as second degree assault, is a class C felony. RCW 9A.28.020(3)(c). Thus, under the clear terms of the statute, attempted second degree assault is a felony attempt to commit a crime of violence, and is a serious offense. RCW 9.41.010(11)(a), (12). As a serious offense, the prior conviction for attempted second degree assault supports Mr. Hawkins's conviction for first degree unlawful possession of a firearm. RCW 9.41.040(1)(a).
Statements of a Nontestifying Witness
At trial, the State offered into evidence the Washington State Patrol crime lab report prepared by Mr. Johnson, a forensic scientist. Mr. Hawkins did not object, and did not object to Corporal Jones's testimony regarding the results in that report. On appeal, Mr. Hawkins challenges the admission of that report as a violation of his Sixth Amendment confrontation rights.
The confrontation clause of the Sixth Amendment provides criminal defendants the right to confront the witnesses against them. U.S. Const. amend. VI; State v. Davis, 154 Wn.2d 291, 298, 111 P.3d 844 (2005), aff'd, 126 S. Ct. 2266 (2006). In Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the United States Supreme Court held that an out-of-court testimonial statement is inadmissible unless the witness is unavailable and the defendant has had an opportunity to cross-examine that witness. Davis, 154 Wn.2d at 298. The State does not dispute that the crime lab report is a testimonial statement, because the report was always intended for use at trial. Crawford, 541 U.S. at 51-52. But the State argues that this issue was not properly preserved for appeal.
Generally, this court will not address an issue raised for the first time on appeal unless the issue alleges a manifest error affecting a constitutional right. RAP 2.5(a); State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995). Mr. Hawkins alleges a violation of his constitutional right of confrontation. The question, then, is whether this alleged violation is manifest. To prove manifest error, Mr. Hawkins must show actual prejudice. Id. In other words, he must show that, but for the error, the outcome of his trial would have been different. Id. He does not make this showing here. Although he notes that Corporal Jones at first misrepresented the results of the crime lab report by stating that one fingerprint was lifted from the gun, this confusion was later dispelled by Corporal Jones's statement that the report indicated the only clear fingerprint was taken from another item. Most importantly, the report indicated that the fingerprint did not match Mr. Hawkins's fingerprints. Defense counsel's failure to object to the crime lab report was understandable because the report did not incriminate Mr. Hawkins.
Under these circumstances, any alleged error in admitting the crime lab report was not prejudicial and did not constitute a manifest constitutional error. Accordingly, this issue is not properly before this court on appeal. RAP 2.5(a); McFarland, 127 Wn.2d at 333.
The record does not indicate whether the crime lab report qualified for the exception to the hearsay rule provided in CrR 6.13(b), which allows admission of an official written report of an expert witness if the report is self-authenticating. See State v. Neal, 144 Wn.2d 600, 605-06, 30 P.3d 1255 (2001) (certified state toxicology report).
Sentencing Issues
Mr. Hawkins raises two issues regarding his sentence. He first contends the sentencing court abused its discretion in refusing to consider four letters written by his wife, his stepson, his pastor, and members of his church congregation. Second, he argues that the sentencing court based his offender score on unsupported evidence of his criminal history.
Mr. Hawkins received a sentence in the standard range, which usually may not be challenged on appeal. RCW 9.94A.585(1); State v. Mail, 121 Wn.2d 707, 710, 854 P.2d 1042 (1993). Although the amount of time imposed within a standard range will not be addressed, "appellate review is still available for the correction of legal errors or abuses of discretion in the determination of what sentence applies." State v. Williams, 149 Wn.2d 143, 147, 65 P.3d 1214 (2003). One such abuse of discretion is apparent when a sentencing court refuses to exercise its discretion because it erroneously believes it lacks authority to do so. State v. McGill, 112 Wn. App. 95, 100, 47 P.3d 173 (2002).
In this case, the sentencing court thought that it could not consider statements by anyone other than the individuals listed in RCW 9.94A.500(1), the statute prescribing sentencing hearing procedures:
The court shall consider the risk assessment report and presentence reports, if any, including any victim impact statement and criminal history, and allow arguments from the prosecutor, the defense counsel, the offender, the victim, the survivor of the victim, or a representative of the victim or survivor, and an investigative law enforcement officer as to the sentence to be imposed.
Letters expressing opinions of the defendant's character and amenability to rehabilitation are not arguments for a particular sentence and are not disallowed by RCW 9.94A.500.
Even if the trial court's refusal to read the letters was an abuse of discretion,
however, remand for resentencing on this basis is not required. Remand is not necessary if we are confident that the trial court would impose the same sentence if it considered the proper information. State v. Pryor, 115 Wn.2d 445, 456, 799 P.2d 244 (1990), overruled in part on other grounds by State v. Ritchie, 126 Wn.2d 388, 894 P.2d 1308 (1995). Although the trial court did not read the letters, it allowed defense counsel to summarize their content. And Mr. Hawkins did not argue for an exceptional sentence downward. The trial court imposed a sentence close to the low end of the standard range (60 months, with a standard range of 57 to 75 months). Under these circumstances, there is no indication that the trial court would impose a lower sentence if it read the letters on remand. Consequently, remand on this basis is not necessary.
Mr. Hawkins additionally contends his offender score is not supported by the evidence. At trial, he stipulated that he had three prior felony convictions in Pierce County: two drug convictions and the predicate conviction of attempted second degree assault. The criminal history used by the trial court in determining his offender score, however, included an additional Pierce County drug conviction and a Grant County conviction for possession of a controlled substance without a prescription. The record contains certified copies of the judgment and sentences on the four Pierce County convictions but nothing on the Grant County conviction.
For sentencing purposes, the State carries the burden of proving prior convictions by a preponderance of the evidence. RCW 9.94A.500(1); State v. Blunt, 118 Wn. App. 1, 7, 71 P.3d 657 (2003). To support the criminal history, the State must present evidence with at least minimum indicia of reliability. Blunt, 118 Wn. App. at 7-8 (quoting State v. Ford, 137 Wn.2d 472, 480-81, 973 P.2d 452 (1999)). If the defendant disputes the fact of a prior conviction, the trial court must either ignore that fact or hold an evidentiary hearing. Id. at 8. An evidentiary hearing is not required, however, if the defendant does not specifically object to the criminal history or request a hearing to challenge it. Id. Information regarding the criminal history is deemed acknowledged if not specifically challenged, and the sentencing court is entitled to rely on the acknowledged information. Ford, 137 Wn.2d at 482-83. But "[a]cknowledgment does not encompass bare assertions by the State unsupported by the evidence." Id. at 483.
Four of the five prior convictions used to compute Mr. Hawkins's offender score are supported by certified copies of court records. Accordingly, his acknowledgement of those convictions is supported by facts in the record. The one conviction in Grant County, however, is not supported by evidence of any kind. The trial court may have taken judicial notice of the Grant County conviction (ER 201(b)), but the record does not indicate that it did.
Without minimally reliable facts to support a prior conviction, a defendant's acknowledgment by failure to object is insufficient to prove the conviction by a preponderance of the evidence. Ford, 137 Wn.2d at 483; Blunt, 118 Wn. App. at 8 n. 10. Because the offender score is not sufficiently supported by the record, remand is necessary for resentencing. Ford, 137 Wn.2d at 485. Mr. Hawkins failed to put the sentencing court on notice that the State had not properly proved his criminal history. Consequently, the court on remand should hold an evidentiary hearing to allow the State to prove the existence of the Grant County conviction. Id.
Assistance of Counsel
Finally, Mr. Hawkins contends he had ineffective assistance of trial counsel because defense counsel did not argue that the trial court had discretion to consider the letters as character evidence at sentencing. To show ineffective assistance of counsel, he must demonstrate that trial counsel's representation fell below an objective standard of reasonableness and that this deficient performance prejudiced his defense. McFarland, 127 Wn.2d at 334-35. This court maintains a strong presumption that counsel's representation was effective. State v. Sherwood, 71 Wn. App. 481, 483, 860 P.2d 407 (1993). If counsel's conduct can be characterized as reasonable trial tactics, we will not find ineffective assistance of counsel. State v. Soonalole, 99 Wn. App. 207, 215-16, 992 P.2d 541 (2000). As a mixed question of fact and law, ineffective assistance of counsel is reviewed de novo. In re Pers. Restraint of Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001).
Mr. Hawkins argues that if the trial court had properly exercised its discretion and had read the letters of his good character, it might have imposed a lesser sentence. The record does not support this tenuous argument. As discussed above, although the trial court mistakenly believed RCW 9.94A.500(1) prevented it from considering additional information at sentencing, there is no indication that this error was prejudicial. Defense counsel summarized the content of the letters for the court and the trial court imposed a sentence on the lower end of the standard range. The decision not to challenge the trial court's interpretation of RCW 9.94A.500(1) and to instead summarize the letters was probably a trial tactic, and Mr. Hawkins does not demonstrate that it was an unreasonable tactic. Accordingly, he fails to rebut the presumption that trial counsel was effective. McFarland, 127 Wn.2d at 337; Sherwood, 71 Wn. App. 483.
Judgment affirmed; remanded for resentencing.
A majority of the panel has determined that 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.
Kato, J., Kulik, J., CONCUR.