Opinion
No. 25731-2-III.
February 5, 2008.
Appeal from a judgment of the Superior Court for Grant County, No. 05-1-00589-3, Evan E. Sperline, J., entered November 28, 2006.
Affirmed in part and remanded by unpublished opinion per Kulik, J., concurred in by Sweeney, C.J., and Stephens, J. Pro Tem.
Cameron Howard appeals his convictions for possession of a controlled substance with intent to deliver methamphetamine in a public park, possession of 40 grams or less of marijuana, and possession of a controlled substance (hydrocodone). Mr. Howard contends the trial court erred by: (1) failing to suppress the evidence found in his vehicle during a search incident to his arrest, and (2) including Mr. Howard's prior convictions when calculating his offender score.
We hold that the search of Mr. Howard's vehicle was lawful despite Mr. Howard's attempt to close and lock his car door prior to his arrest. Thus, the court did not err by refusing to suppress the evidence found in the vehicle. We affirm the convictions. Because more than 10 years had elapsed from his previous conviction, we remand for reconsideration of Mr. Howard's sentence under former RCW 9.94A.660(1)(b) (2005) — the version of the drug offender sentencing alternative (DOSA) statute applicable at the time of Mr. Howard's sentencing.
FACTS
On August 9, 2005, at 2:40 a.m., Moses Lake Police Officer Greg Nevarez observed two vehicles parked side-by-side in the parking lot of a closed city park. As Officer Nevarez approached in his patrol car, one of the vehicles quickly drove off. Officer Nevarez found this suspicious and made contact with the driver of the remaining vehicle, a small pickup truck. The driver, and sole occupant of the truck, identified himself as Cameron D. Howard. The officer told Mr. Howard the park was closed and to leave. Officer Nevarez then left the park and unsuccessfully attempted to locate the other car.
Officer Nevarez ran a warrant check on Mr. Howard. Police dispatch advised the officer there was a warrant for Mr. Howard's arrest. Following protocol, Officer Nevarez had dispatch confirm that the warrant was still active and valid. Acting on this information, Officer Nevarez caught up to Mr. Howard's truck and initiated a stop. As Mr. Howard was pulling over, Officer Nevarez saw him reach underneath the front seat.
At the stop, Officer Nevarez told Mr. Howard that there was a warrant for his arrest and asked him to step out of the vehicle. Mr. Howard did not comply immediately, but instead reached over and locked the passenger door.
Mr. Howard told a slightly different version of the events. He stated that he immediately informed Officer Nevarez that there was an error because he had already taken care of the warrant.
As he got out of the truck, Mr. Howard rolled up the driver's window, locked the driver's door, and tried to close it. Officer Nevarez stopped him from closing the door by holding it with his hand. Mr. Howard told the officer he wanted to lock the vehicle. Officer Nevarez stated that he would lock the door after he searched the vehicle. Mr. Howard became more nervous. Officer Nevarez put Mr. Howard in hand restraints and moved him away from the interior of the truck. Mr. Howard told the officer that he knew his rights and that he did not want the officer to search the truck.
Subsequent to Mr. Howard's arrest, a pat-down search revealed a baggie of marijuana in his pants pocket and approximately $850, including seven $100 bills, in his wallet. Officer Nevarez proceeded to search Mr. Howard's vehicle incident to the arrest. A zippered fanny pack was found under the front seat. Officer Nevarez unzipped the pack and found four clear plastic baggies containing 16.5 grams of methamphetamine, a digital scale, four prescription pills later identified as hydrocodone, syringes, another baggie of marijuana, and packaging materials. During the search of the truck, Officer Nevarez heard Mr. Howard tell his girl friend on his cell phone: "yeah, they found it." Report of Proceedings (RP) (Feb. 8, 2006) at 91.
Mr. Howard was charged with possession with intent to manufacture or deliver a controlled substance — methamphetamine — in a protected zone, or in the alternative, possession of methamphetamine; possession of 40 grams or less of marijuana; and possession of a controlled substance — hydrocodone.
Mr. Howard made a motion to supress the evidence found in his vehicle, arguing that the search was invalid. At the CrR 3.6 hearing, the trial court found there were no disputed facts. The court concluded that the search of Mr. Howard's person and the vehicle were valid searches.
A jury convicted Mr. Howard of possession with intent to deliver methamphetamine, possession of marijuana, and possession of hydrocodone. At sentencing, the prosecutor stated that Mr. Howard's offender score of 6-to 9-plus produced a standard range of 60-plus to 120 months. Defense counsel agreed, and calculated Mr. Howard's offender score at 7.5. Because the jury returned a special verdict that the crime of possession with intent to deliver was committed in a public park, Mr. Howard was subject to a 24-month public place enhancement. The court sentenced him to 114 months' confinement.
Mr. Howard appeals the judgment and sentence.
ANALYSIS
Search of Vehicle. Mr. Howard contends the trial court erred by failing to suppress the evidence found in his vehicle during the search incident to his arrest.
This court reviews findings of fact on a motion to suppress under the substantial evidence standard. State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994). Substantial evidence exists if there is a sufficient quantity of evidence in the record to persuade a fair-minded, rational person of the truth of the finding. Id. at 644. In reviewing findings of fact entered following a motion to suppress, we will review only those facts to which error has been assigned. Id. at 647.
We review the trial court's conclusions of law de novo. State v. Johnson, 128 Wn.2d 431, 443, 909 P.2d 293 (1996). Conclusions of law entered by a trial court following a suppression hearing carry great significance for a reviewing court. State v. Collins, 121 Wn.2d 168, 174, 847 P.2d 919 (1993).
The Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution prohibit warrantless searches. U.S. Const. amend. IV; Const. art. I, § 7. A warrantless search is per se unreasonable unless the search is justified under one of the recognized exceptions to the warrant requirement. Johnson, 128 Wn.2d at 446-47. A search incident to a lawful custodial arrest is a well established exception to the warrant requirement. State v. Stroud, 106 Wn.2d 144, 152, 720 P.2d 436 (1986). Importantly, "[i]t is the fact of arrest itself that provides the `authority of law' to search, therefore making the search permissible under article I, section 7." State v. Parker, 139 Wn.2d 486, 496-97, 987 P.2d 73 (1999).
The Washington Supreme Court adopted a "bright-line" rule in Stroud for determining the proper scope of an automobile search performed after an arrest. State v. Perea, 85 Wn. App. 339, 343, 932 P.2d 1258 (1997). The court in Stroud held:
During the arrest process, including the time immediately subsequent to the suspect's being arrested, handcuffed, and placed in a patrol car, officers should be allowed to search the passenger compartment of a vehicle for weapons or destructible evidence. However, if the officers encounter a locked container or locked glove compartment, they may not unlock and search either container without obtaining a warrant.
Stroud, 106 Wn.2d at 152.
An important factor when applying the Stroud rule is whether the arrestee had "ready access to" or exercised "immediate control" of the passenger compartment at the time the officer initiated the arrest. State v. Johnston, 107 Wn. App. 280, 285-86, 28 P.3d 775 (2001). "If he could suddenly reach or lunge into the compartment for a weapon or evidence, the police may search the compartment incident to his arrest. If he could not do that, the police may not search the compartment incident to his arrest." Id. at 285.
The court in Johnston provided several examples demonstrating when an arrestee has ready access to a passenger compartment. Johnston, 107 Wn. App. at 286. In particular, the court cited three cases in which the occupant was arrested: (1) inside the passenger compartment; (2) in the swing of the passenger door; and (3) 10 to 12 feet from the vehicle with the door left ajar. Id. The court found "[a]t the moment of arrest in all three cases, the arrestee had ready access to, and thus was in `immediate control' of, the passenger compartment of his vehicle." Id.
New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981); Stroud, 106 Wn.2d 144; State v. Bradley, 105 Wn. App. 30, 18 P.3d 602 (2001).
Significantly, while the warrantless search incident to arrest exception is based upon the concern for officer safety and the need to prevent the destruction of evidence, the Stroud bright-line rule "applies even in situations devoid of risk to evidence or officers." Perea, 85 Wn. App. at 343-44; see State v. Fladebo, 113 Wn.2d 388, 396-97, 779 P.2d 707 (1989). "[T]he validity of a Stroud search does not depend on an arrestee being in the vehicle when police arrive or on the physical ability of an arrestee to reach into the vehicle." State v. Fore, 56 Wn. App. 339, 347, 783 P.2d 626 (1989).
Mr. Howard cites Perea as authority for the rule that the warrantless search of a vehicle is unlawful after an arrestee exits and locks the car and, therefore, does not have ready access to the passenger compartment. Perea held that a search of a vehicle, lawfully parked and locked at the time of the arrest, is not authorized by Stroud's bright-line rule. Perea, 85 Wn. App. at 345. However, Mr. Howard's reliance on Perea is misplaced.
In Perea, Mr. Perea parked in the front yard of his home before an officer pulled in behind him and activated his lights. Id. at 341. Mr. Perea took notice of the officer, but proceeded to step out of his vehicle and close the door, thereby locking the car. Id. When Mr. Perea continued to walk toward his house, ignoring commands to return to his vehicle, he was captured, placed under arrest, and handcuffed. Id. Subsequently, the police took Mr. Perea's car keys and used them to unlock and search his car. Id.
The court in Perea found that Mr. Perea's arrest was valid; but the court concluded that the search was unreasonable because Mr. Perea was not seized before he locked his car. Id. at 344. The court explained that under the Fourth Amendment, a "seizure" of a person does not occur "until the suspect submits to a show of authority or is physically touched by the officer." Id. Because Mr. Perea resisted the officer's commands, he was not seized until the officers contacted and handcuffed him. Id. The court found that prior to being seized, Mr. Perea's act of locking his car was lawful. Id. at 345.
Importantly, Perea clarified that "[t]his is not a case where the defendant locked his car after seizure. . . . Rather, this is a warrantless search of a lawfully parked and locked car, without probable cause." Id. The court expressly stated: "Had [Mr.] Perea remained in his car or beside his car, with the door open or unlocked, until he was arrested, Stroud's bright-line rule would have permitted a search of the passenger compartment of the vehicle." Id. at 344. The facts of Perea are distinguishable.
Here, Mr. Howard was in his vehicle at the time Officer Nevarez stopped him. The record shows that Mr. Howard was immediately advised by Officer Nevarez that there was a warrant for his arrest, and he was placed in hand restraints as he exited his truck. Mr. Howard had ready access to his vehicle's passenger compartment. As a result, the officer's search of Mr. Howard's truck was lawful. Stroud, 106 Wn.2d at 152; Johnston, 107 Wn. App. at 285. Mr. Howard's attempt to lock and close his car door was restricted by a valid seizure; thus, he was not free to lock the vehicle prior to his arrest. Upon his arrest, officers could validly conduct a search incident to the arrest. See Perea, 85 Wn. App. at 344; Fore, 56 Wn. App. at 347. Accordingly, the court did not err by refusing to suppress the evidence seized during the search of Mr. Howard's vehicle.
Offender Score. This court reviews offender score calculations de novo, as statutory interpretation is a question of law. In re Pers. Restraint of LaChapelle, 153 Wn.2d 1, 5, 100 P.3d 805 (2004). A sentencing court acts without statutory authority when it imposes a sentence based on a miscalculated offender score. State v. Roche, 75 Wn. App. 500, 513, 878 P.2d 497 (1994). An offender score miscalculation is a sentencing error that may be raised for the first time on appeal. State v. McDougall, 132 Wn. App. 609, 612, 132 P.3d 786 (2006).
At sentencing, the State bears the burden of proving, by a preponderance of the evidence, the existence of prior convictions used in determining an offender score. In re Pers. Restraint of Cadwallader, 155 Wn.2d 867, 876, 123 P.3d 456 (2005); RCW 9.94A.500(1).
Mr. Howard challenges his offender score on the basis that the State failed to introduce any evidence to establish his prior convictions. Mr. Howard's argument is without merit.
At sentencing, the record shows that defense counsel stated: "I calculated [Mr. Howard's offender score as] 7.5, I believe. So I think that's correct." RP at 442. Under an offender score of 6 to 9 — or more — the trial court determined that the standard sentencing range totaled 60-plus to 120 months. Defense counsel agreed to the sentencing range.
Defense counsel also acknowledged the existence of Mr. Howard's criminal history. Mr. Howard's defense counsel conceded that "[m]y client's had a long history . . . of drug related problems, drug possession, those types of charges." RP at 443. The trial court discussed Mr. Howard's prior convictions — conspiracy to commit first degree robbery and first degree unlawful possession of a firearm — in the context of Mr. Howard's eligibility for a DOSA sentence. Defense counsel made no objection. In fact, he specifically acknowledged Mr. Howard's conviction for conspiracy to commit first degree robbery before the court quickly proceeded to another issue.
Most importantly, Mr. Howard also affirmatively acknowledged his prior convictions. At sentencing, Mr. Howard told the judge "the last approximate felonies on my record are drug charges." RP at 446.
A court may properly rely on an acknowledgement of prior convictions without the need for further proof. Cadwallader, 155 Wn.2d at 873-74; In re Pers. Restraint of Connick, 144 Wn.2d 442, 464, 28 P.3d 729 (2001). Consequently, the trial court did not err by including those prior convictions in calculating Mr. Howard's offender score.
Moreover, by agreeing to his offender score, Mr. Howard waived his right to appeal that score. See State v. Hickman, 116 Wn. App. 902, 904, 68 P.3d 1156 (2003). Here, the alleged error "involves an agreement to facts, later disputed" and not a legal error. Consequently, Mr. Howard waived his challenge to his offender score. In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 874, 50 P.3d 618 (2002).
STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW
In his statement of additional grounds for review, Mr. Howard contends: (1) the initial warrant was not based upon probable cause and, therefore, the search incident to arrest was invalid; (2) the court erred by failing to suppress the evidence obtained in the search incident to arrest because Officer Nevarez was an infractions officer and, therefore, lacked the qualifications and training necessary to handle evidence related to a crime; and (3) the court erred at sentencing by not following the proper procedures and failing to apply the proper statutes — RCW 9.94A.660 and .680.
Here, the record does not contain the necessary facts to address the merits of Mr. Howard's challenge that the search incident to arrest was invalid. Accordingly, this court cannot conclude Mr. Howard was arrested on an invalid warrant.
Mr. Howard fails to make any showing of manifest constitutional error or actual prejudice related to his second ground for review. Additionally, his arguments are without merit.
In Mr. Howard's third ground for review, he contends that the court erred by failing to correctly determine his eligibility for a DOSA. Mr. Howard argues that the court's refusal to impose a DOSA was based on its erroneous belief that he had committed a violent offense within 10 years before conviction of the current offense.
Ordinarily, "a standard range sentence, of which a DOSA is an alternate form, may not be appealed." State v. Smith, 118 Wn. App. 288, 292, 75 P.3d 986 (2003). A DOSA ruling is reviewed for abuse of discretion. State v. White, 123 Wn. App. 106, 114, 97 P.3d 34 (2004) (quoting State v. Williams, 149 Wn.2d 143, 147, 65 P.3d 1214 (2003)). The trial judge is vested with broad discretion in deciding whether to give a DOSA and review of that exercise of discretion is limited. State v. Grayson, 154 Wn.2d 333, 335, 111 P.3d 1183 (2005). A trial court abuses its discretion when its decision is manifestly unreasonable or based upon untenable grounds or reasons. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997).
But appellate review is still available for the correction of legal errors or abuses of discretion in the determination of what sentence applies. Williams, 149 Wn.2d at 147. Further, where a court refuses to exercise its discretion, the sentence may be appealed. State v. Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997).
RCW 9.94A.660(1) allows a sentencing court to impose a DOSA if the court determines that the offender is eligible for this alternative. The DOSA statute in effect at the time of Mr. Howard's offenses provided in part that an offender is eligible for the special DOSA sentence if:
(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. Former RCW 9.94A.660(1) (2002). Significantly, this statute was amended effective
October 1, 2005. The amendments added the underlined language, which is central to Mr. Howard's argument:
(b) The offender has no current or prior convictions for a sex offense at any time or violent offense within ten years before conviction of the current offense, in this state, another state, or the United States.
Laws of 2005, ch. 460, §§ 1, 2, 3.
Here, the act amending the DOSA statute expressly applies to sentences imposed on or after the effective date of October 1, 2005. Laws of 2005, ch. 460, §§ 2, 3. Mr. Howard committed the crimes on August 9, 2005. He was found guilty by a jury trial on February 9, 2006, and sentenced on November 28, 2006. Under the foregoing authority, former RCW 9.94A.660(1)(b) (2005), as amended, was the applicable law.
We note former RCW 9.94A.660(1)(b) (2005) has been redesignated as (c) per the Laws of 2006, ch. 73, § 10.
Prior to sentencing, defense counsel requested a DOSA and stated the reasons why such a sentencing alternative would be beneficial to Mr. Howard. After reviewing his criminal history and discussing Mr. Howard's conviction for conspiracy to commit first degree robbery, the trial judge determined that Mr. Howard was ineligible for a DOSA. The discussion was as follows:
THE COURT: I ask for counsel's indulgence, I need just a moment to determine whether or not the defendant is eligible to be considered for a DOSA sentence. One of the qualifiers is that the defendant does not have a history that includes either a sex offense or a violent offense. The defendant doesn't have any history of a sex offense, but does have conspiracy to robbery one and unlawful possession of a firearm one. I want to determine whether or not either of those is classified as a violent offense.
MR. SCOTT [Deputy Prosecuting Attorney]: The firearm is not, Judge, I'm — I'm pretty confident. It only disqualifies — it would only be a disqualifier if it was an enhancement on this case, which it's not. I think the robbery probably is.
MR. PHELPS [Counsel for Mr. Howard]: Well, my thought there, your Honor, would be not if it's a conspiracy and not an actual robbery conviction. THE COURT: Well, that's what I wanted to check out.
MR. PHELPS: And that was a juvenile offense, I believe, your Honor. He was 14 years old, but he was probably automatically declined.
THE COURT: It shows as an adult conviction.
MR. PHELPS: Right.
THE COURT: Is robbery one a class A felony? MR. SCOTT: Yes.
. . . .
THE COURT: Okay. Violent offense is defined in the statute as any felony defined under any law as a class A felony or an attempt to commit a class A felony, and then the next is criminal solicitation of or criminal conspiracy to commit a class A felony.
MR. SCOTT: All right.
THE COURT: So I think under the — under the statute, Mr. Howard would not be eligible for consideration for a DOSA sentence.
RP at 444-45 (emphasis added).
Here, the felony judgment and sentence contains Mr. Howard's criminal history. This record shows that the sentencing date for the robbery conviction was October 7, 1992. Mr. Howard was convicted of the current charges on February 9, 2006, and sentenced on November 28, 2006. More than 10 years elapsed between the convictions. Accordingly, the trial court should have found that under former RCW 9.94A.660(1)(b) (2005), Mr. Howard "has no current or prior convictions for a sex offense at any time or violent offense within ten years before conviction of the current offense." The trial court erred by determining that Mr. Howard was ineligible and by denying his request for a DOSA sentence on the basis of his criminal history.
We affirm the convictions and remand for reconsideration of Mr. Howard's sentence.
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.
Sweeney, C.J. Stephens, J. Pro Tem, concur: