Opinion
Nos. 33256-6-II; 33272-8-II.
December 12, 2006.
Appeals from a judgment of the Superior Court for Thurston County, No. 05-1-00180-5, Wm. Thomas McPhee, J., entered May 13, 2005.
Counsel for Appellant(s) Thomas Edward Doyle Attorney at Law, Hansville, WA.
Patricia Anne Pethick Attorney at Law, Tacoma, WA.
Counsel for Respondent(s) James C. Powers Thurston County Prosecuting Attorney Ofc, Olympia, WA.
Authored by C. C. Bridgewater Concurring: David H. Armstrong J. Robin Hunt.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Bridgewater, J., concurred in by Armstrong and Hunt, JJ.
Jesus Alegria-Perez and Teri Lynn Schooley appeal their convictions of (1) unlawful possession of methamphetamine with intent to deliver and (2) operating a drug house. We reverse Schooley's convictions and remand to the trial court for entry of an order of dismissal with prejudice. We affirm Perez's conviction of unlawful possession of methamphetamine with intent to deliver. Finding sufficient evidence to support Perez's conviction for operating a drug house, we reverse and remand for a new trial.
FACTS
At approximately 8:16 a.m. on January 25, 2005, the Thurston County Drug Task Force served a search warrant at an Olympia residence. Before reaching the front door, the officers used a patrol car loudspeaker to announce their presence. After waiting almost 25 seconds with no answer, the officers approached the front door and repeatedly knocked on the door. After waiting almost another 25 seconds with no answer, the officers then forced open the front door with a ramming device.
When the officers entered the residence, they observed Teri Lynn Schooley in the living room. She complied with an order to lie down on the floor, and the officers placed her in handcuffs. Next to Schooley, on the living room floor, the officers found a purse that contained: (1) Schooley's driver's license; (2) notes and records; (3) assorted pills; (4) a pager; (5) a butane lighter; and (6) a glass smoking device, commonly used to smoke controlled substances.
Meanwhile, Jesus Alegria Perez (aka Omar Castillo Perez) had fled the residence through a back door in a back bedroom. But an officer positioned behind the residence saw Perez, ordered him to the ground, and placed him in handcuffs. The officer noted that Perez looked as though "he had just woken up." Report of Proceedings (RP) (Apr. 26, 2005) at 175. Perez was not wearing any shirt or shoes, his hair was disheveled, and his sweat pants were "inside out." RP (Apr. 26, 2005) at 174.
Inside the back bedroom, the officers found a working cell phone, $1,527 in a pair of pants, miscellaneous records, and a Spanish bible. Inside the crawl space above the back bedroom, the officers found a paper bag, a plastic bag, and a digital scale. The paper bag contained eight various sized packages of a white, crystalline substance, which was later determined to be methamphetamine. The combined weight of these eight packages was approximately 27 ounces. The plastic bag also contained methamphetamine. The methamphetamine in this plastic bag weighed approximately six ounces.
In the kitchen, the officers found a TV monitor, which was wirelessly connected to a camera that was focused on the front of the residence. The monitor was displaying a picture of the front yard and the parking area. The officers also found a police scanner in a kitchen cupboard.
During their joint jury trial, Perez testified that: (1) he was not a U.S. citizen; (2) he picked brush during the day and slept at night in the residence's living room; (3) he was temporarily living at the residence for four weeks while saving money; and (4) a man named Jose Luis allowed him to stay at the residence without paying any rent.
Although Perez admitted that the money in a pair of pants, found in the bedroom, belonged to him, he testified that Luis "always slept in that room." RP (Apr. 27, 2005) at 311. Perez also claimed that he did not know that methamphetamine was hidden in the bedroom's crawl space. Finally, Perez testified that he fled the residence because he did not have any "identification" to be in the U.S. RP (Apr. 27, 2005) at 305-06.
Schooley did not testify during the trial. Perez initially claimed that Schooley arrived the day before to clean the residence. But he later acknowledged that she had not done any cleaning.
ANALYSIS I. Sufficiency of the Evidence — Count One
Both Perez and Schooley argue that insufficient evidence supported their convictions for one count of unlawful possession of methamphetamine with intent to deliver. We agree with Schooley, but disagree with Perez.
The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980). When the sufficiency of the evidence is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom. State v. Theroff, 25 Wn. App. 590, 593, 608 P.2d 1254, aff'd, 95 Wn.2d 385, 622 P.2d 1240 (1980).
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We must defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).
In order for the jury to convict both Perez and Schooley of unlawful possession of methamphetamine with intent to deliver, the jury needed to be convinced beyond a reasonable doubt: (1) that they possessed methamphetamine with the intent to deliver; or (2) that, with knowledge it would promote or facilitate the commission of the crime, they aided another person who possessed the methamphetamine with the intent to deliver. Former RCW 69.50.401(2)(b) (2004); RCW 9A.08.020(3).
Possession may be actual or constructive. State v. Echeverria, 85 Wn. App. 777, 783, 934 P.2d 1214 (1997). "Actual possession means that the goods are in the personal custody of the person charged with possession; whereas, constructive possession means that the goods are not in actual, physical possession, but that the person charged with possession has dominion and control over the goods." State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969). Exclusive dominion and control over the goods is not necessary, but mere proximity to the contraband is insufficient. State v. Jones, 146 Wn.2d 328, 333, 45 P.3d 1062 (2002); State v. Potts, 93 Wn. App. 82, 88, 969 P.2d 494 (1998); State v. Morgan, 78 Wn. App. 208, 212, 896 P.2d 731, review denied, 127 Wn.2d 1026 (1995). "No single factor, however, is dispositive in determining dominion and control. The totality of the circumstances must be considered." State v. Turner, 103 Wn. App. 515, 521, 13 P.3d 234 (2000) (citations omitted).
It is not a crime to have dominion and control over premises where unlawful drugs are found. State v. Olivarez, 63 Wn. App. 484, 486, 820 P.2d 66 (1991). "Instead, dominion and control over premises in which police discover drugs is but one factor in determining whether the defendant had dominion and control, i.e., constructive possession, over the drugs themselves." State v. Cantabrana, 83 Wn. App. 204, 208, 921 P.2d 572 (1996).
Contrary to what the appellants claim, a conviction may be properly based on a "pyramiding of inferences," as long as the inferences and underlying evidence are strong enough to permit a rational fact finder to find guilt beyond a reasonable doubt. State v. Bencivenga, 137 Wn.2d 703, 711, 974 P.2d 832 (1999). Whether the evidence is direct, circumstantial, or a combination of the two, the jury only needs to be convinced of the defendant's guilt beyond a reasonable doubt. Bencivenga, 137 Wn.2d at 711.
Consequently, the validity of their convictions rests on whether sufficient evidence supported the jury's finding, beyond a reasonable doubt, that Perez and Schooley unlawfully possessed methamphetamine with intent to deliver.
A. Schooley
Here, Schooley argues that the evidence did not support the jury's finding, beyond a reasonable doubt, that she had actual or constructive possession of the methamphetamine. And the State concedes that the evidence was insufficient. Nevertheless, the State argues that there was sufficient evidence for the jury to find that Schooley was Perez's accomplice in the commission of the crime of unlawful possession of methamphetamine with intent to deliver. We hold that the evidence is not sufficient to find Schooley was Perez's accomplice.
Under RCW 9A.08.020(3)(a), a person is not an accomplice unless she knowingly "solicits, commands, encourages, or requests such other person to commit it" or "aids or agrees to aid such other person in planning or committing it." "To be guilty as an accomplice, the defendant must do more than be present with knowledge of the criminal activity." State v. Collins, 76 Wn. App. 496, 502, 886 P.2d 243, review denied, 126 Wn.2d 1016 (1995). Physical presence and assent alone are insufficient to constitute aiding and abetting. In re Welfare of Wilson, 91 Wn.2d 487, 588 P.2d 1161 (1979).
In support of its argument, the State notes Schooley: (1) had arrived the day before to allegedly clean the residence; (2) had a butane lighter and a glass smoking device, commonly used to smoke controlled substances, in her purse; (3) was in the vicinity of the TV monitor, which was displaying a picture of the front yard and the parking area; and (4) failed to answer the front door when the officers announced their presence, allowing Perez "to get out the back of the residence before officers reached him." Br. of Resp't at 29. From this evidence, the State argues that the jury could have concluded "that Schooley was there to assist Perez in safeguarding the methamphetamine or was prepared to aid in other ways the possession of methamphetamine at the house with intent to deliver." Br. of Resp't at 30.
But Schooley's presence as a visitor in the residence and her possession of drug paraphernalia is not enough for the jury to find that she was Perez's accomplice in the commission of the crime of unlawful possession of methamphetamine with intent to deliver. And even assuming that Schooley knew of the criminal activity in the residence, the only evidence that she aided or agreed to aid Perez was her failure to answer the front door when the officers announced their presence. But the aid must be rendered with knowledge that it will promote or facilitate the criminal activity. State v. Luna, 71 Wn. App. 755, 760, 862 P.2d 620 (1993). Although the State argues that as a result of her actions, "Perez had time to get out the back of the residence before officers reached him," the State presented no evidence that Schooley knew her inaction would promote or facilitate the criminal activity. Br. of Resp't at 29. Thus, even viewing the evidence in the light most favorable to the State, her failure to answer the front door is not sufficient evidence of her intent either to associate herself with the criminal activity of unlawfully possessing methamphetamine with intent to deliver, to participate in the criminal activity, or to make the criminal activity succeed.
Therefore, we reverse her conviction under former RCW 69.50.401(2)(b) and RCW 9A.08.020(3) for insufficient evidence and remand for entry of an order of dismissal with prejudice. See State v. Dowling, 98 Wn.2d 542, 656 P.2d 497 (1983).
B. Perez
Perez argues that the evidence did not support the jury's finding, beyond a reasonable doubt, that he had constructive possession of the methamphetamine. Accordingly, Perez cites to Callahan, 77 Wn.2d 27; State v. Alvarez, 105 Wn. App. 215, 19 P.3d 485 (2001); and State v. Spruell, 57 Wn. App. 383, 788 P.2d 21 (1990), for the proposition that he did not have dominion and control over the methamphetamine. He is incorrect.
In Callahan, our Supreme Court concluded that the evidence was insufficient to establish a defendant's dominion and control over unlawful drugs even when: (1) two books, two guns, and a set of broken scales belonging to the defendant were found on a houseboat; (2) the defendant had been staying on the houseboat for two or three days, but was not a tenant, cotenant, or subtenant; (3) most of the drugs were found near the defendant; and (4) the defendant admitted that he handled the drugs earlier in the day. Callahan, 77 Wn.2d at 31.
Our Supreme Court noted, "The single fact that he had personal possessions, not of the clothing or personal toilet article type, on the premises is insufficient to support such a conclusion [that the defendant had dominion and control over the residence]." Callahan, 77 Wn.2d at 31 (emphasis added).
Our Supreme Court also noted that the owner of the unlawful drugs testified that he had sole control over the drugs and that he had not sold them or given them to the defendant. Callahan, 77 Wn.2d at 31.
In Alvarez, Division Three of this court held that the evidence was insufficient to establish a defendant's dominion and control over a gun in a bedroom, even when officers located the following evidence in the bedroom: (1) defendant's savings deposit books; (2) defendant's school text books; (3) defendant's pictures; and (4) newspaper articles featuring the defendant or people with whom he had a connection. Alvarez, 105 Wn. App. at 220, 223. Furthermore, there was no evidence, for instance, that the defendant either: (1) leased the apartment; (2) paid rent and resided there; (3) received mail there; or (4) gave out the address as his own. Alvarez, 105 Wn. App. at 221-23. Finally, the court noted that there was some evidence that the defendant resided elsewhere. Alvarez, 105 Wn. App. at 223.
In Spruell, Division One of this court held that the evidence was insufficient to establish a defendant's dominion and control over unlawful drugs when there was no evidence of: (1) why the defendant was in the house; (2) how long he had been there; (3) whether he had ever been there on days before his arrest; or (4) any activity by the defendant in the house. Spruell, 57 Wn. App. at 388. "So far as the record shows, he had no connection with the house or the cocaine, other than being present and having a fingerprint on a dish which appeared to have contained cocaine immediately prior to the forced entry of the police." Spruell, 57 Wn. App. at 388. The defendant was merely a visitor in the house. Spruell, 57 Wn. App. at 388.
Unlike Callahan, Alvarez, and Spruell, Perez admitted that he had been temporarily living at the residence for four weeks and that Jose Luis allowed him to stay at the residence without paying any rent. There was no evidence that Perez resided anywhere else. Thus, Perez was more than merely a visitor.
There was no testimony from any witnesses regarding the living arrangements of the residence.
And he had many of his personal possessions, including clothing, in the residence. Within the back bedroom, the officers found $1,527 in a pair of pants belonging to Perez and a duffle bag with Perez's other belongings. As the State notes, "Perez had 1,527 dollars in his pants pocket, even though the only occupation he admitted to was picking brush." Br. of Resp't at 12. In explaining why he kept so much cash in his pants, Perez claimed that he had no other place to keep it. And Perez admitted, "That's where my clothes are. That's where I keep my duffle bag, where I keep my clothing. I was changing in that room, and I — I left the pants on the floor, the other pants." RP (Apr. 27, 2005) at 310. Yet Perez also claimed that Jose Luis "always slept in that room." RP (Apr. 27, 2005) at 311.
In other words, Perez had been active in the house, had been there on days before his arrest, and had a connection with at least the entire residence. His actions were consistent with being more than simply a visitor to the residence. And within this residence, the officers found: a digital scale; approximately two pounds of methamphetamine; a TV monitor, which was wirelessly connected to a camera that was focused on the front of the residence; and a police scanner.
Perez claimed that he fled the residence through a back door in the back bedroom because he did not have any "identification" to be in the U.S. RP (Apr. 27, 2005) at 305-06. Although he claimed that Jose Luis "always slept in that room," RP (Apr. 27, 2005) at 311, the arresting officer noted that Perez looked as though "he had just woken up" from sleeping in the back bedroom, where the methamphetamine was hidden within the crawl space. RP (Apr. 26, 2005) at 175.
Granted, mere presence and proximity to the methamphetamine are insufficient to establish Perez's constructive possession. Spruell, 57 Wn. App. at 389. But we do not need to import the specific factors of constructive possession enumerated in Callahan, Spruell, and Alvarez. See State v. Partin, 88 Wn.2d 899, 906, 567 P.2d 1136 (1977). Instead, we are mindful that "the cumulative effect of a number of factors may be a strong indication of constructive possession." Partin, 88 Wn.2d at 906. That is, we look at the totality of the situation to determine if there is substantial evidence tending to establish circumstances from which the jury could reasonably infer that Perez had dominion and control of the drugs, i.e., was in constructive possession of them. Partin, 88 Wn.2d at 906.
Here, there is substantial circumstantial evidence from which the jury could reasonably infer that Perez had dominion and control of the drugs in his residence.
II. Sufficiency of the Evidence — Count II
Both Perez and Schooley argue that the evidence was insufficient to support their convictions of operating a drug house. Because the State did not elect between the alternative means, and the general verdict does not reveal which means the jury used to convict the defendants, the State concedes that the evidence was insufficient to support a conviction on all statutory alternatives. But the State asks this court to remand for retrial on a single statutory alternative, whereupon the State would be limited to alleging that the defendants knowingly kept or maintained the residence for keeping a controlled substance on a continuing and recurring basis.
RCW 69.50.402(1)(f) provides:
(1) It is unlawful for any person:
. . . .
(f) Knowingly to keep or maintain any store, shop, warehouse, dwelling, building, vehicle, boat, aircraft, or other structure or place, which is resorted to by persons using controlled substances in violation of this chapter for the purpose of using these substances, or which is used for keeping or selling them in violation of this chapter.
(Emphasis added).
We have stated that the keeping or maintaining element of this statute "contemplates a continuing pattern of criminal behavior, beyond an isolated incident of possession or sale at a defendant's business. The statute was clearly designed to do more than punish mere possession." State v. Ceglowski, 103 Wn. App. 346, 352, 12 P.3d 160 (2000). To constitute the crime of operating a drug house there must be some evidence that: (1) the drug activity is of a continuing and recurring character; and (2) a substantial purpose of maintaining the premises is for the illegal drug activity. Ceglowski, 103 Wn. App. at 352-53.
The State concedes that the evidence was insufficient to show that the defendants kept or maintained the premises for using or selling methamphetamine on a continuing and recurring basis. Because the jury may have convicted the defendants under these unsupported means, we reverse the defendants' convictions. State v. Fernandez, 89 Wn. App. 292, 300, 948 P.2d 872 (1997).
But the State argues that the "existence of a special hiding place for the methamphetamine, the amount of the controlled substance present, and the elaborate security system at the house point to the continuing and recurring nature" of keeping a controlled substance at the residence. Br. of Resp't at 22.
Taking the evidence in the light most favorable to the State, the evidence does support the reasonable inference that Perez knowingly maintained the residence for the purpose of keeping a controlled substance on a continuing and recurring basis. After all, the residence contained: a TV monitor, which was wirelessly connected to a camera that was focused on the front of the residence; a police scanner; a digital scale; and plastic baggies. The methamphetamine hydrochloride that was recovered by the State, worth approximately $25,000, indicates that it was a storage facility. And the security system appears to be a protective one, supporting the inference that it was installed to protect something on more than just a "one-time" basis. Thus, we hold that there was sufficient evidence to support the alternative of keeping a controlled substance at the residence.
Therefore, although we must reverse Perez's conviction because of the insufficiency of two of the alternatives under RCW 69.50.402(1)(f), the State may retry him for the third alternative under RCW 69.50.402(1)(f) because the evidence is sufficient to support a conviction for keeping a controlled substance at the residence.
Nevertheless, this rationale does not apply to Schooley. Her presence as a one-time visitor is insufficient to support a reasonable inference that she, either as a principal or as an accomplice, maintained the residence for the purpose of keeping a controlled substance on a continuing and recurring basis. We must reverse her conviction and remand for entry of an order of dismissal with prejudice. See Dowling, 98 Wn.2d 542.
III. Sentencing
Both Perez and Schooley argue that the trial court erred in sentencing them under former RCW 69.50.401(2)(b). The State concedes that the trial court erred in its sentencing. With regard to Perez, we do not accept the State's concession. See State v. Knighten, 109 Wn.2d 896, 902, 748 P.2d 1118 (1988) (a party's concession is not binding on this court). With regard to Schooley, her sentence is vacated under our previous holding.
In the context of sentencing, illegal or erroneous sentences may be challenged for the first time on appeal. State v. Ford, 137 Wn.2d 472, 477, 973 P.2d 452 (1999).
Here, the State charged Perez with one count of unlawful possession of methamphetamine in violation of former RCW 69.50.401(2)(b). Former RCW 69.50.401 provided in relevant part:
(1) Except as authorized by this chapter, it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance.
(2) Any person who violates this section with respect to:
. . . .
(b) Amphetamine or methamphetamine, is guilty of a class B felony and upon conviction may be imprisoned for not more than ten years
. . . .
(c) Any other controlled substance classified in Schedule I, II, or III, is guilty of a class C felony punishable according to chapter 9A.20 RCW.
Perez argues that he was improperly charged under former RCW 69.50.401(2)(b) because he possessed the salt form of methamphetamine and that this particular subsection does not expressly include methamphetamine salt. Perez asserts that he should have been charged under the catch-all provision contained in former RCW 69.50.401(2)(c), which imposed a five-year maximum for all other Schedule II substances.
But in State v. Cromwell, 157 Wn.2d 529, 140 P.3d 593 (2006), our Supreme Court reviewed a former version of this statute and concluded that "`methamphetamine' is plainly synonymous with both the base and salt forms." Cromwell, 157 Wn.2d at 534. Thus, when the legislature used the term "methamphetamine" in former RCW 69.50.401, it intended to include all forms of the substance. See Cromwell, 157 Wn.2d at 536.
Former RCW 69.50.401 (2002) provided in relevant part:
(a) Except as authorized by this chapter, it 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: . . . .
Thus, the trial court did not err in sentencing Perez under former RCW 69.50.401(2)(c).
IV. Same or Criminal Conduct
Perez argues that the trial court erred in calculating his offender score when it determined that the current convictions did not encompass the same or similar criminal conduct. Because we remand the matter for retrial of Perez's conviction under RCW 69.50.402(1)(f), this argument is not ripe and we do not address it.
See generally State v. Haddock, 141 Wn.2d 103, 108-10, 3 P.3d 733 (2000).
V. Criminal History Offender Score A. Comparability Analysis
Perez argues that the trial court erred in calculating his offender score when it included two California convictions in his criminal history without first conducting an appropriate comparability analysis. Perez also claims that because his counsel allegedly objected to the inclusion of these convictions in his criminal history, the State should be precluded from including these convictions in his criminal history.
The State concedes that it failed to conduct the required comparability analysis. Nevertheless, the State argues that Perez's counsel failed to object to the inclusion of these convictions in his criminal history. Thus, the State argues that remand for an evidentiary hearing to allow the State to prove the classification of the disputed convictions is appropriate. We agree with the State.
When a defendant's criminal history includes out-of-state convictions, the Sentencing Reform Act (SRA) requires the State to classify these convictions "according to the comparable offense definitions and sentences provided by Washington law." Former RCW 9.94A.525(3)(2004); State v. Ford, 137 Wn.2d 472, 479, 973 P.2d 452 (1999). As our Supreme Court stated:
To properly classify an out-of-state conviction according to Washington law, the sentencing court must compare the elements of the out-of-state offense with the elements of potentially comparable Washington crimes. If the elements are not identical, or if the Washington statute defines the offense more narrowly than does the foreign statute, it may be necessary to look into the record of the out-of-state conviction to determine whether the defendant's conduct would have violated the comparable Washington offense.
Ford, 137 Wn.2d at 479 (citations omitted). The SRA expressly places the burden on the State to support the alleged criminal history. Ford, 137 Wn.2d at 480.
Where the State alleges prior out-of-state convictions, but fails to provide any supporting evidence, the sentencing court errs when it considers these unproven convictions. See State v. Lopez, 147 Wn.2d 515, 520, 55 P.3d 609 (2002). Nevertheless, the State is entitled to submit evidence of the defendant's prior out-of-state convictions on remand, but "a remand for an evidentiary hearing is appropriate only when the defendant has failed to specifically object to the State's evidence of the existence or classification of a prior conviction." Lopez, 147 Wn.2d at 520. Where the defendant raises a specific objection to the apparent defects and the disputed issues have been fully argued to the sentencing court, the proper remedy is to "hold the State to the existing record, excise the unlawful portion of the sentence, and remand for resentencing without allowing further evidence to be adduced." Ford, 137 Wn.2d at 485.
Here, the State concedes that it failed to prove Perez's criminal history with any supporting evidence. And, although Perez argues that his counsel disputed the issue, we have no evidence that his counsel specifically objected to the State's evidence of the existence or classification of the prior California convictions. In fact, as the State correctly notes, Perez's counsel simply stated:
He does have a couple of prior convictions — drug-related drug convictions in 2003 down in California. One is for an unspecified possession, and another is for something along the lines of possession with intent. I'm not aware of whether or not he took those to trial also or if he simply pled guilty to them. But I would ask the court to consider the fact that he's never going to be able to pay any substantial amount in fines other than what he can earn while he's in prison.
RP (May 13, 2005) at 513-14. And Perez's counsel later stated:
I need to clarify one thing [the prosecutor] stated. He just stated that Mr. Perez has two convictions for Possession with Intent to Deliver. I see "UPCS unspecified" on 12/7/03 and then "felony possession/purchase for sale, narcotic/controlled substances." It's kind of obscure. The second one seems to imply something more than mere possession, but the first one is simply possession, just to clarify that for the record.
RP at (May 13, 2005) at 521.
Based on the record before us, we remand for an evidentiary hearing in order to allow the State to prove the classification of the disputed convictions. Because of our holding for an evidentiary hearing, Perez's argument concerning his sentencing under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), is not ripe at this time.
The existence or classification of the disputed convictions may or may not implicate Perez's Blakely rights. But it is not an issue we need to address here. And because we reverse Perez's conviction under RCW 69.50.402(1)(f), we do not address the scrivener's error in his judgment and sentence.
Reversed and remanded as to Teri Lynn Schooley: (1) for vacation of her judgment and sentence; and (2) for entry of an order of dismissal with prejudice for the count of unlawful possession of methamphetamine with intent to deliver and the count of operating a drug house.
Reversed and remanded as to Jesus Alegria-Perez for retrial on the count of operating a drug house.
Affirmed as to Jesus Alegria-Perez for unlawful possession of methamphetamine with intent to deliver.
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.
(ii) amphetamine or methamphetamine, is guilty of a crime and upon conviction may be imprisoned for not more than ten years . . . .
(iii) any other controlled substance classified in Schedule I, II, or III, is guilty of a crime and upon conviction may be imprisoned for not more than five years.
Former RCW 69.50.401 (2004) did not intend to effectuate any substantive change to formerRCW 69.50.401 (2002). The legislature merely intended "to clarify and simplify the identification and referencing of crimes." See notes following RCW 2.48.180.
We concur:
Hunt, J.