Opinion
No. 34657-5-II.
April 3, 2007.
Appeal from a judgment of the Superior Court for Thurston County, No. 05-1-01928-3, Chris Wickham, J., entered March 23, 2006.
Remanded by unpublished opinion per Hunt, J., concurred in by Houghton, C.J., and Bridgewater, J.
Jeffrey J. Hussey appeals his sentence for one count of unlawful possession of a controlled substance with intent to deliver (Count I) and two counts of second degree unlawful possession of a firearm (Counts II and III). He argues that: (1) the trial court erroneously counted both firearm counts as separate criminal conduct in calculating his offender score; (2) defense counsel's failure to object to the trial court's decision to score the firearm counts as separate criminal conduct constituted ineffective assistance of counsel; and (3) the trial court abused its discretion by denying his request for a drug offender sentencing alternative (DOSA). The State concedes that the trial court erred by scoring both firearm counts as separate criminal conduct.
RCW 9.94A.660.
Accepting the State's concession, we remand for resentencing.
FACTS
A police officer pulled over a vehicle that Jeffrey Hussey was driving for a traffic stop. Based upon an outstanding warrant, the officer placed Hussey under arrest, searched Hussey's person and vehicle incident to that arrest, and found: methamphetamine in an unlocked duffle bag behind the driver's seat, a pair of operational revolvers in a small metal combination safe in the back seat of the vehicle, and two other firearms.
The State charged Hussey with one count of unlawful possession of a controlled substance with intent to deliver (Count I), and two counts of unlawful possession of a firearm in the second degree (Counts II and III). A jury convicted Hussey on all three counts.
At sentencing, the trial court considered whether a DOSA was appropriate. The trial court noted that (1) "there was a significant amount of methamphetamine" found on Hussey; (2) Hussey was not "particularly high up in the distribution of controlled substance"; (3) DOSA should be "used sparingly for persons who choose to use distribution of controlled substances as a means of support because of the severe harm they present to other members of the community," Report of Proceedings (RP) (March 23, 2006) at 8; and (4) it was "unwilling to give special treatment under the Drug Offender Sentencing Alternative Statute"
because I don't regard Mr. Hussey as a significant player, if you will, in drug distribution, I think that the appropriate sentence for him is the mid point of the standard range. I will sentence him to 40 months on the delivery count and 20 months on each of the two firearms counts, and I will deny the request for DOSA.
RP (March 23, 2006) at 9.
Apparently without examining the applicable statutory criteria, the trial court scored Hussey's two counts of unlawful firearm possession as separate criminal conduct, rather than the "same criminal conduct," for purposes of RCW 9.94A.589(1). The trial court sentenced Hussey Page 3 to 20 months confinement for each of the two firearm counts.
We find nothing in the record to indicate that the parties and that the trial court considered the whether Hussey's two firearm convictions constituted the "same criminal conduct." Rather, Hussey appears to raise this issue for the first time on appeal.
We infer this conclusion from (1) the fact that the trial court considered a standard sentencing range of 17 to 22 months confinement for each of the two firearm counts; and (2) that this sentencing range indicates the court was using an offender score of 5 for each firearm count. If the trial court had scored the two firearm counts as the "same criminal conduct," the court would have used a lower standard sentencing range of 12 to 16 months, reflecting a lower offender score of 4. RCW 9.94A.510;
Hussey appeals.
ANALYSIS I. Separate or Same Criminal Conduct
Hussey argues that the trial court wrongly calculated his offender score, which resulted in an erroneously high standard range and sentence, because the court counted his two firearm convictions as separate, rather than the same, criminal conduct. RCW 9.94A.589(1)(a).
The State concedes this error.
A. Standard of Review
A sentencing court's calculation of a defendant's offender score is a question of law, which we review de novo. State v. Mitchell, 81 Wn. App. 387, 390, 914 P.2d 771, 772 (1996). We review for abuse of discretion a trial court's ruling on whether multiple crimes committed by a defendant constitute the "same criminal conduct" for sentencing purposes under RCW 9.94A.589(1)(a). A trial court abuses its discretion if it arbitrarily counts convictions separately without engaging in a "same criminal conduct" analysis. State v. Haddock, 141 Wn.2d 103, 110, 3 P.3d 733, 736 (2000). Here, it does not appear from the record that the trial court engaged in such analysis.
We consider Hussey's challenge to his offender score even though he raises it for the first time on appeal. See State v. Ford, 137 Wn.2d 472, 477, 973 P.2d 452, 454 (1999); State v. Roche, 75 Wn. App. 500, 513, 878 P.2d 497, 504 (1994).
B. RCW 9.94A.589(1)(a)
Under RCW 9.94A.589(1)(a), current offenses that are the "same criminal conduct" count as one point in a defendant's offender score calculation. RCW 9.94A.589(1)(a) defines "same criminal conduct" as (1) two or more crimes that require the same criminal intent, (2) are committed at the same time and place, and (3) involve the same victim. Accordingly, if two current offenses encompass the "same criminal conduct," then those current offenses together merit only one offender score point. State v. Haddock, 141 Wn.2d 103, 108, 3 P.3d 733, 735 (2000).
Hussey contends that his two unlawful firearm possession convictions (Counts II and III) constitute the "same criminal conduct," because (1) the two crimes involved the same criminal intent in that both crimes involved the same type of act, namely possession of a gun; (2) both crimes involved the same victim, namely the general public; and (3) the two crimes occurred at the same time in that he possessed the two guns at the same time in the same safe that was located in the back seat of the car he was driving at the time of his arrest.
The State concedes that Hussey's two convictions for unlawful possession of a firearm in the second degree constituted the "same criminal conduct" under RCW 9.94A.589(1)(a). The State also agrees with Hussey that we should vacate the trial court's sentence and remand for a resentencing using the correct offender score. We accept the State's concession of error and hold that Hussey's two firearm possession convictions constituted the "same criminal conduct" and, therefore, the trial court erred in its calculation of Hussey's offender score. See State v. Haddock, 141 Wn.2d 103, 114, 115, 3 P.3d 733, 738 (2000).
II. EFFECTIVE ASSISTANCE OF COUNSEL
Our holding that the trial court incorrectly calculated Hussey's offender score is dispositive. Therefore, we need not address Hussey's related argument that defense counsel's failure to object to the trial court's offender score calculation, based on "separate criminal conduct," constituted ineffective assistance.
III. DOSA
Hussey argues that the trial court erred in denying his request for a DOSA because (1) it concluded "he wasn't bad enough, i.e., he wasn't, in the court's mind, particularly high up in the distribution of controlled substance(s), [but rather] was [, citing the court's language,] `a fairly low level dealer'," RP (March 23, 2006) 8-9; and (2) therefore he met the DOSA eligibility requirement that the offense involve only a small quantity of the controlled substance. RCW 9.94A.660(1)(c). This argument fails.
A. Standard of Review
We review a trial court's decision to grant or deny a defendant's DOSA request for abuse of discretion. State v. White, 123 Wn. App. 106, 113-14, 97 P.3d 34, 37 (2004). A trial court abuses its discretion when its decision is manifestly unreasonable or based upon untenable grounds or reasons. White, 123 Wn. App. at 114. We find no abuse of discretion here.
B. Eligibility Requirements
RCW 9.94A.660 authorizes a trial court to give certain eligible nonviolent drug offenders a reduced sentence, treatment, and increased supervision as a DOSA. A drug offender is eligible for DOSA if he meets the following requirements under RCW 9.94A.660 subsection (1): (a) he has been convicted of a felony that is not a violent or sex offense; (b) he has no current or prior conviction for a violent or sex offense; (c) if convicted of a drug offense, the offense involved only a small quantity of the controlled substance; (d) he has not been found to be subject to deportation detainer or order and will not be subject to such a detainer or order during the [sentence]; (e) the standard sentence range for the current offense is greater than one year; and (f) he has not received a DOSA more than once in the prior ten years.
But even if a defendant meets these DOSA eligibility requirements, the trial court must also make a discretionary determination about whether it should grant a DOSA to this defendant. RCW 9.94A.660 (4). If the trial court determines that a sentence under this section is appropriate, it may waive imposition of a sentence within the standard sentence range and impose a sentence comprising either a prison-based alternative . . . or a residential chemical-dependency treatment-based alternative. RCW 9.94A.660 (4).
Because the trial court noted that Hussey was "low in the drug distribution network," Hussey asserts that the trial court abused its discretion in denying him a DOSA because he met the statutory criteria. We disagree. First, we note that, especially in the DOSA context, we accord a high degree of deference to the sentencing court. Second, the record shows that the trial court considered the statutory criteria before denying Hussey a DOSA: The trial court (1) noted that it should use the DOSA sparingly, and (2) considered that Hussey possessed a significant amount of methamphetamine, even though he was not high up on the distribution chain. In doing so, the trial court clearly considered the DOSA.
For example, a trial court's statement that drug offender sentencing alternatives (DOSAs) were a "scam" and a "sham" did not necessarily indicate that the trial court abused its discretion in refusing to impose a DOSA. State v. Gronnert, 122 Wn. App. 214, 219, 93 P.3d 200, 202 (2004).
Moreover, contrary to Hussey's contention, the trial court did not focus on Hussey's role as "a low level dealer" until after it rejected his DOSA request. It is clear from the chronology of the trial court's comments on record that it had moved away from DOSA considerations and on to regular sentencing of Hussey when it noted that it did not regard Hussey "as a significant player . . . in drug distribution." The trial court then used this fact to give Hussey a middle-range sentence, rather than a harsher sentence at the high end of the standard range.
We hold, therefore, that Hussey has not shown that the trial court denied him a DOSA on untenable or manifestly unreasonable grounds; in other words, the trial court did not abuse its discretion in denying a DOSA and imposing a standard range sentence.
Accordingly, we vacate Hussey's sentence and remand for recalculation of his offender score and resentencing, consistent with this opinion.
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.
HOUGHTON, C.J., BRIDGEWATER, J. concur.