Opinion
No. 42322-3-I.
July 19, 1999.
Robert A. Weppner III, Attorney At Law, James R. Dixon, Nielsen Broman Assoc. Pllc, for appellant.
Norm Maleng, Prosecuting Attorney, and Kristin E. Sweeney, King Co Pros Aty, for respondent.
The State proved beyond a reasonable doubt that Maurice Jones facilitated the sale of cocaine to an undercover officer and knew the substance exchanged was cocaine. We hold the court's judgment and sentence imposing the statutory one-year term of community placement adequately set forth the mandatory term, although we suggest a different approach.
FACTS
For purposes of the published portion of our opinion, the relevant facts are that a jury convicted Jones of delivery of cocaine in a school bus zone. The court sentenced Jones within the standard range and imposed community placement, stating, "I will require that you have a period of community supervision — community placement" and set various conditions for completion of the placement term. Section 4.7 of Jones's judgment and sentence appears as follows:
COMMUNITY PLACEMENT, RCW 9.94A.120(9): Community Placement is ordered for any of the following eligible offenses: any "sex offense", any "serious violent offense", second degree assault, any offense with a deadly weapon finding, any CH. 69.50 or 69.52 RCW offense, for the maximum period of time authorized by law. All standard and mandatory statutory conditions of community placement are ordered.
Appendix H (for additional nonmandatory conditions) is attached and incorporated herein.
The box indicating incorporation of appendix H is checked on Jones's judgment and sentence. Appendix H, with the judge's signature affixed, includes the following in pertinent part:
Community Placement: Defendant additionally is sentenced on convictions herein, for . . . any felony offense under chapter 69.50 or 69.52 RCW, committed on or after July 1, 1988, to a one-year term of community placement.
Community placement is to begin either upon completion of the term of confinement or at such time as the defendant is transferred to community custody in lieu of early release.
DECISION
Jones's challenge to the court's imposition of community placement implicates two recent cases, State v. Broadaway and State v. Jones. In each case, the court found boilerplate language stating only that community placement was ordered for the period of time provided by law to be insufficient because it did not precisely set forth the mandatory terms.
133 Wn.2d 118, 942 P.2d 363 (1997).
93 Wn. App. 14, 968 P.2d 2 (1998).
Broadaway, 133 Wn.2d at 135; Jones, 93 Wn. App. at 18-19.
In Broadaway, the court sentenced defendant to a standard range sentence with a deadly weapon enhancement. The judgment and sentence included the following "boilerplate" language:
COMMUNITY PLACEMENT. RCW 9.94A.120. Community placement is ordered for a community placement eligible offense (e.g., . . . any crime against a person with a deadly weapon finding . . .), and standard mandatory conditions are ordered. Community placement is ordered for the period of time provided by law.
Broadaway, 133 Wn.2d at 122.
Nothing else in the judgment and sentence referred to community placement. At sentencing, the judge stated that "'[t]he statute requires two years of community placement so I'll impose that as a standard statutory condition.'"
Broadaway, 133 Wn.2d at 135.
Broadaway, 133 Wn.2d at 122.
The Supreme Court found that the court erred in imposing a two-year term where the statute mandated one year of community placement. More important to our discussion here, the Court found the judgment and sentence deficient because the judge did not expressly provide therein for the precise term of community placement, which is necessary to satisfy the statute and is important because it often "will assist a trial court in assessing the overall sentence" and "will also allow a defendant to appeal an erroneous sentence of community placement before serving the term of incarceration." For these reasons, the Court remanded the case for resentencing.
Broadaway, 133 Wn.2d at 135.
Broadaway, 133 Wn.2d at 135-36.
In Jones, the trial court imposed an exceptional sentence, and used the same appendix H involved here which, as applied, specified the community placement term as two years. We held that when read together, the appendix and boilerplate language in the judgment and sentence created an ambiguity by indicating that the term was either two years or, in the event of an exceptional sentence, up to the statutory maximum for the offense.
Jones, 93 Wn. App. at 16-17.
Jones, 93 Wn. App. at 18-19.
As the State points out, however, the circumstances of Broadaway are not present here because the precise term of community placement is clear from the specific language of the appendix. Further, Jones is distinguishable because the defendant in Jones received an exceptional sentence, whereas Maurice Jones received a sentence at the low end of the presumptive range. Absent exceptional circumstances, a trial court may not impose a term of community placement beyond the statutory limits described in appendix H. Therefore, appendix H made clear that the precise term of Maurice Jones's community placement was one year because he was sentenced within the standard range for a "felony offense under chapter 69.50." We thus see no need for remand for resentencing or clarification here.
State v. Raines, 83 Wn. App. 312, 316-17, 922 P.2d 100 (1996).
We express our concern, however, that a judgment and sentence must comply with the unambiguous message of Broadaway — that is, the judgment and sentence must set forth in plain terms the specific length of community placement. It should not be necessary to cross-reference from vague language in the judgment and sentence itself (e.g., "for the maximum period of time authorized by law") to an appendix containing the specific terms for the placement-eligible offenses, in order to determine the term of community placement. The judgment and sentence form should be drafted to avoid imprecise, boilerplate language, and should specify the actual term of community placement on its face in some unambiguous fashion. One solution would be to provide a single blank line upon which to specify the applicable placement term.
See Broadaway, 133 Wn.2d at 135 ("RCW 9.94A.120(9)(a) states that 'the court shall in addition to the other terms of the sentence, sentence the offender to a one-year term of community placement. . . .' Here, the sentence does not contain a provision for a one-year term of community placement imposed by the court as the statute requires. In addition to its statutory obligation the trial court should expressly provide in the sentence for the precise term of community placement[.]"
Affirmed. The remainder of this opinion has no precedential value. Therefore, it will be filed for public record in accordance with the rules governing unpublished opinions. RCW 2.06.040.
ADDITIONAL FACTS
FBI Special Agent Thomas Parr was serving as an undercover drug buyer in a "buy-bust" operation in Seattle. He wore a motorcycle jacket and boots, torn jeans and a black shirt. Jones and a woman companion were the first people Parr saw, so he told Jones he wanted a "two-o," street slang for $20 worth of unspecified narcotics. Jones confirmed the request and told Parr to follow him.
Parr stayed with Jones for the next 20 to 30 minutes, most of which were spent in a hunt for drugs. Along the way, Jones asked Parr for the money but the agent declined, explaining he feared Jones might steal it. Jones spoke with some people in a bus shelter, then crossed the street to a parking lot where he met another group. Jones' companion and Parr joined them.
Jones spoke with a woman in the group, who handed him what appeared to be a rock of cocaine. Parr gave Jones $20 prerecorded money and received the suspected drugs. Jones told him to give his female companion a "chip." Parr said he couldn't, that he needed the rock for himself. So he gave her $5 instead. He signaled he had completed a drug deal. Several officers rushed into the lot and secured the scene.
Two observation officers testified they saw Parr hand Jones money, who in turn gave it to the woman from whom he had obtained the rock. The money was found in the woman's possession. The rock contained cocaine.
Jones testified he and his girlfriend were in the area for drinks. Parr asked if he knew where to get a "two-o." Jones said he knew this meant Parr was looking for drugs. He kept walking and told his companion to come along. He did not speak with Parr. When a woman in the parking lot called him over, he did so. He did not know the woman. She asked him if he needed anything, which he took to mean drugs, and he told her no. He began to walk off, saw that his girlfriend was talking with Parr, and joined them. The woman from the parking lot was there, too.
That woman and Parr spoke, but Jones paid no attention. He saw the woman pull out what looked like one rock of cocaine, at which point he began to walk away. He had no drugs in his possession and had no plans to sell any. He never touched drugs or money during the incident. Jones was arrested and strip-searched at jail. No drugs or buy money were found in his possession.
A jury convicted Jones of delivery of cocaine in a school bus zone. As a first offender, Jones's sentencing range was 45 months to 51 months, including the 24-month bus zone enhancement. He requested an exceptional sentence of 12 months, claiming he had been found guilty of delivering only a small amount of drugs. He also asserted his involvement in the transaction was minimal, shown by evidence he did not seek out or offer to sell, received no money, profit or benefit from the transaction, did not have drugs on his person, and did not touch any of the money or drugs. Pro se, Jones submitted a one-page explanation of his argument, which counsel read into the record. Counsel acknowledged the trial court read the argument.
The trial court explained:
And, Mr. Jones, the appellate courts have rebuffed all of the attempts by the trial courts to use those arguments in this kind of a case or a similar case, and I would be holding out false hope to you were I to entertain this kind of argument.
. . . .
And I would say for the record that I find no basis for an exceptional sentence in this case. And if there were an appeal, why, the appellate judges could see that, and if they felt I was wrong about that, they could send it back here and make me redo it. But at this point I would not entertain an exceptional sentence request from either side.
The court also said, "[T]he appellate courts have closed all of the openings that trial courts have tried to make in this law. And the only thing left for me to do is to impose within the standard range, and I set this at the bottom of the standard range, 45 months."
ADDITIONAL DECISION Sufficiency of evidence proving knowledge
An essential element of delivery of a controlled substance is that the defendant knew the substance delivered was controlled. We must determine whether any rational juror, after viewing the evidence in a light most favorable to the State, could find this element beyond a reasonable doubt. All reasonable inferences are drawn in favor of the State and interpreted most strongly against the defendant, who, by challenging the sufficiency of the proof, admits the truth of the State's evidence.
State v. Boyer, 91 Wn.2d 342, 344, 588 P.2d 1151 (1979).
State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980).
State v. Ackerman, 90 Wn. App. 477, 487, 953 P.2d 816 (1998).
The evidence here conflicted as to the extent of Jones's participation in the transaction. The jury apparently chose to believe the State's witnesses over Jones. Credibility determinations are not subject to appellate review.
State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
Jones claims the State failed to prove he knew the substance exchanged was cocaine. After considering the evidence in the light most favorable to the State, we disagree. Jones knew what Parr meant by "two-o" and the woman in the lot's reference to needing anything. As soon as he clarified that Parr sought drugs, he told him to follow him. His conduct thereafter was consistent with other facilitators in many "buy-bust" cases reviewed by this court.
Also not uncommon is the fact Jones apparently did not know the seller, did not keep the buy money, did not possess drugs, and rapidly consummated the transfer from dealer to customer. In fact, Parr testified it is not unusual for a drug deal to happen quickly. Upon completion of the deal, Jones requested Parr give a "chip" from the rock to his female friend. It is true that unless Jones sampled some of the rock, he could not be sure it was really cocaine. But when considered in the light most favorable to the State, the evidence was sufficient to show Jones knew the substance he helped Parr obtain was cocaine.
Exceptional sentence
Jones asserts he can challenge Jones's standard range sentence because the trial court failed to follow required sentencing procedure by refusing to consider trial facts to determine whether Jones should have received an exceptional sentence.
A standard range sentence may not be appealed. The only exceptions are where appellant raises a constitutional issue or where the trial court fails to apply a specific procedure required by the Sentencing Reform Act (SRA). Because the only relevant mandatory procedures are those set forth by RCW 9.94A.110 and RCW 9.94A.370(2), they are the only statutory bases for an appeal here.
RCW 9.94A.210(1).
State v. Mail, 121 Wn.2d 707, 712, 854 P.2d 1042 (1993) (procedural); State v. McNeair, 88 Wn. App. 331, 336, 944 P.2d 1099 (1997) (constitutional).
Mail, 121 Wn.2d at 713.
In pertinent part, the former provision requires the court to consider the presentence reports, any victim impact statement, and criminal history, and to allow arguments from the prosecutor, defense counsel, offender, victim, survivor of the victim, a representative of the victim or survivor, and an investigative law enforcement officer. The court shall specify and make part of the record any convictions found to be part of the offender's criminal history.
The court here identified the mitigating factors upon which Jones relied, reviewed Jones's written argument, and heard counsel's argument. The court followed the required procedures here.
RCW 9.94A.370(2) prohibits a court from considering any information not admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at sentencing. Where the defendant disputes material facts, the court must either ignore the fact or conduct an evidentiary hearing. Facts that establish the elements of a more serious crime or additional crimes may not be used to depart from the standard range except upon stipulation or when specifically provided for in RCW 9.94A.390(2)(c), (d), (f), and (g).
Jones claims the trial court violated this principle, contending the court was required to consider facts proved at trial. To the contrary, RCW 9.94A.370(2) prohibits consideration of certain information and describes what the court may — not, must — rely on in addition to considering the information required by subsection .110. The court did not violate any mandatory sentencing procedures here. Jones may not, therefore, challenge his standard range sentence.
Mail, 121 Wn.2d at 711.
In any event, the court considered and rejected Jones's claims. The court found the proposed mitigating factors were unavailable to him in light of the case law. The court explained "the appellate courts have rebuffed all of the attempts by the trial courts to use those arguments in this kind of a case or a similar case[.]" (Emphasis added). This was correct.
An exceptional sentence is appropriate only when the facts of the crime distinguish it from other crimes in the same statutory category. An "extraordinarily small amount" of cocaine and a defendant's low level of involvement may support a downward departure from the standard range.
State v. Garcia-Martinez, 88 Wn. App. 322, 331 n. 5, 944 P.2d 1104 (1997), review denied, 136 Wn.2d 1002 (1998).
State v. Alexander, 125 Wn.2d 717, 723, 888 P.2d 1169 (1995).
Jones relies on Alexander to argue the court erred in concluding case law defeated his argument. That case is distinguishable. There the trial court imposed an exceptional sentence. The court entered unchallenged findings that defendant's role as facilitator in a cocaine transaction constituted only minimal involvement, and that the delivery involved only an "'extraordinarily small amount'" (.03 gram) of cocaine. As a result, the Supreme Court treated the findings as verities and did not reach the questions whether defendant's involvement as the facilitator was minimal or whether .03 gram is an "extraordinarily small" amount of cocaine.
Alexander, 125 Wn.2d at 723, 720.
Alexander, 125 Wn.2d at 723, 727 n. 18, 729 n. 21.
Here, in contrast, we must apply a clearly erroneous standard to determine whether the record provides factual support for the mitigating factors. At trial, a police officer with experience in 400-500 "buy-busts" testified one $20 rock usually contained .2 gram of cocaine. Parr testified the term "two-o" was common usage for $20 worth of narcotics, suggesting this amount was not unusually small. The forensic scientist did not testify as to the weight of the rock sold to Parr.
Alexander, 125 Wn.2d at 722-23; see State v. Evans, 80 Wn. App. 806, 813, 911 P.2d 1344 (1996) (distinguishing Alexander on ground findings were considered verities there).
At sentencing, Jones did not present evidence that the rock was an "extraordinarily small amount." Rather, he claimed only that it was a "single piece of rock." On appeal he refers to the amount as a "$20 bag of rock cocaine." There is thus no evidence that the amount of cocaine involved here was "extraordinarily small."
The same is true regarding low level of involvement. Although Jones's conduct was similar to defendant's in Alexander, it was also consistent with that of the typical facilitator in the many "buy-bust" cases reviewed by this court. Without Jones's assistance, Parr would not have obtained cocaine as conveniently as he did. Moreover, contrary to Jones's claim, the evidence showed he handled both the cocaine and money for a length of time sufficient to consummate the desired transfer. He also benefited from the transaction because Parr gave his companion $5 after the close of the deal.
See generally, Evans, 80 Wn. App. at 808-24 (In three consolidated cases with facts similar to Jones's here, this court held the evidence failed to support the sentencing courts' reliance on defendants' minor involvement to justify exceptional sentences.).
For these reasons, the trial court did not err in denying Jones's request for an exceptional sentence.
Pro se supplemental brief Jury of peers
Jones asserts he was deprived of his right to equal protection because of the manner in which the prosecutor exercised peremptory challenges in voir dire. It is the appellant's obligation to supply a record of sufficient completeness to permit review of an issue by this court. Because voir dire is not part of the record on appeal, Jones's argument is without factual support and, therefore, rejected.
RAP 9.5(a); State v. Garcia, 45 Wn. App. 132, 140, 724 P.2d 412 (1986).
Request for new counsel/motion for continuance
After having been sent by the presiding judge to a trial courtroom, Jones renewed an earlier request for a continuance to afford him time to obtain new counsel. He claimed he needed a new attorney because assigned counsel was not providing adequate representation.
Counsel explained the matter had previously come up before presiding, where it was learned Jones planned to hire private counsel but could not afford to.
The court denied the request, noting the presiding judge considered and denied it, and stating the case was set for trial to commence. The court explained that if Jones had another attorney prepared for trial, he would permit withdrawal of current counsel and substitution of the new lawyer. The court said, "I have no choice. I've got to go ahead with the trial." The following day, Jones again asked for a continuance, but did not say why. He also requested all discovery so he could represent himself. His attorney explained he and Jones had reviewed the discovery several times. The court denied Jones's requests, explaining counsel was obligated to discuss everything necessary to present a defense, but not to provide him with copies of all materials. The court also noted counsel was very experienced.
The determination of whether a defendant's dissatisfaction with counsel warrants substitution rests in the sound discretion of the trial court. A court must thoroughly investigate the reasons for a defendant's request for new counsel. The defendant must show good cause; a general loss of confidence or trust alone is insufficient.
State v. Stark, 48 Wn. App. 245, 252, 738 P.2d 684 (1987).
State v. Lopez, 79 Wn. App. 755, 765-66, 904 P.2d 1179 (1995), disapproved of on other grounds, State v. Adel, 136 Wn.2d 629, 640, 965 P.2d 1072 (1998).
State v. Stenson, 132 Wn.2d 668, 734, 940 P.2d 1239 (1997), cert. denied, 118 S.Ct. 1193 (1998).
Attorney-client conflicts support the grant of a substitution motion only when they prevent presentation of an adequate defense. A trial court must consider the reasons given for the dissatisfaction, its own evaluation of counsel's performance, and the effect substitution would have on the schedule of proceedings.
Stenson, 132 Wn.2d at 734.
The court complied with these rules. Jones provided no explanation for why he was dissatisfied with counsel. He had presented the argument to the presiding judge, who rejected it. The court noted counsel was experienced and that substituting new counsel would disrupt the trial schedule. Counsel explained he had reviewed the discovery with Jones. Because the trial court did not abuse its discretion, we reject Jones's claims.
Unlawful seizure
Jones moved to suppress the cocaine and his statements because police detained him without articulating a reasonable suspicion he was engaged in criminal activity. He requested a hearing to present testimony and evidence.
The State argued there was no need for a hearing because it planned to offer no custodial statements and officers recovered no evidence from Jones. Jones contended he was entitled to a hearing because the State planned to introduce the cocaine and buy money, which passed through him. The court stated that if the State failed to prove the stop was legal, Jones could move for dismissal at the end of the State's case. The court also characterized Jones's request as one for discovery rather than suppression. No pretrial suppression took place.
On appeal, Jones argues he was entitled to a CrR 3.6 hearing to contest the seizure. Even if the trial court erred by denying his motion for a hearing, Jones fails to establish prejudice.
A person is "seized" under the fourth amendment only when detained by means of physical force or a show of authority. An officer does not necessarily seize a person by initiating a conversation or asking questions.
State v. Thorn, 129 Wn.2d 347, 351-52, 917 P.2d 108 (1996).
In this case, Parr walked up to Jones and informed him he was looking for drugs. This conduct falls far short of a seizure. Jones simply could have walked away but, according to Parr, responded by telling him to follow him. At no point thereafter, until after the completed transaction, did Parr or other officers use physical force or a show of authority to restrain Jones. Officers validly arrested Jones because they had probable cause to believe he had participated in a drug delivery.
We reject Jones's argument.
Entrapment
Jones maintains he was entrapped because an undercover officer initiated the matter with someone who was not predisposed to commit the offense. Entrapment is an affirmative defense that defendant must prove by a preponderance of the evidence. Jones did not request an entrapment instruction and even if he had, the evidence does not establish he was entrapped. To prove entrapment, Jones was obligated to show "[t]he criminal design originated in the mind of law enforcement officials" and he was influenced to commit a crime he "had not otherwise intended to commit." The defense is not shown where the law enforcement officer simply provided the opportunity to commit an offense.
State v. Lively, 130 Wn.2d 1, 13, 921, 921 P.2d 1035(1996); RCW 9A.16.070.
Neither a single request nor a normal amount of persuasion by an undercover officer is enough to constitute entrapment. Parr made only a single request for drugs and, without additional persuasion, Jones told the officer to follow him. Because this falls well short of entrapment, we reject his argument.
State v. Vinson, 74 Wn. App. 32, 37-38, 871 P.2d 1120 (1994).
Sufficiency of evidence showing delivery
Jones claims there was insufficient evidence to prove he delivered cocaine. But the woman in the lot handed Jones the rock of cocaine that he then transferred to Parr. Parr handed him $20, which Jones turned over to the woman. This constitutes delivery, defined as "the actual or constructive transfer from one person to another of a substance, whether or not there is an agency relationship." We reject Jones's claim.
Sufficiency of evidence proving school zone charge
Jones argues that because the transaction occurred at night when no school children or buses were present, the State failed to prove he delivered cocaine in a prohibited school bus zone. His contention is contrary to the relevant statute, RCW 69.50.435(b), which states it is not a defense that the defendant did not know the delivery occurred within a prohibited bus zone, and subsection (c), which provides absence of children under 18 is not a defense. His claim therefore lacks merit.
Ineffective assistance of counsel
Jones maintains he received ineffective representation. A criminal defendant has a constitutional right to effective assistance of counsel. To establish a violation of that right, the defendant must show both deficient performance and resulting prejudice. The first prong requires proof of errors so serious that the attorney failed to function as the "counsel" guaranteed by the sixth amendment. Prejudice is established where there is a reasonable probability that, but for counsel's unprofessional errors, the outcome of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L. Ed.2d 674 (1984).
State v. Mak, 105 Wn.2d 692, 731, 718 P.2d 407 (1986).
State v. Ray, 116 Wn.2d 531, 548, 806 P.2d 1220 (1991).
State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987).
Jones fails to offer any facts in support of his claim. Therefore, he fails to show either that counsel performed deficiently or that he was prejudiced as a result. His claim is rejected.
Sentencing
Jones contends he should have been sentenced as a first offender. He did not raise this argument at trial. Jones does not fall within the definition of a first offender, which specifically excludes offenders convicted of delivering cocaine.
RCW 9.94A.120(5).
He also alleges the court erred by not imposing an exceptional sentence because he committed the crime while under duress or coercion insufficient to constitute a complete defense but significantly affecting his conduct, and under inducement by others with no apparent predisposition to participate in the offense.
RCW 9.94A.390(1)(c); (d).
Jones did not advance these arguments at sentencing. Nor does the record support either mitigating factor. Jones did not act under duress or coercion; Parr simply told him he was looking for drugs. Moreover, even if this simple question constituted inducement, Jones's ready willingness to find cocaine for the officer suggests he was predisposed to commit the crime.
Cf., State v. Jeannotte, 133 Wn.2d 847, 857, 947 P.2d 1192 (1997) (defendant induced to commit offense where confidential informant, with significant incentives to help police find drug law violators, "hounded" defendant to sell him cocaine until defendant relented).
If every first-time "facilitator" caught in a typical "buy-bust" operation was entitled to an exceptional sentence, such sentences would no longer be "exceptional." Indeed, to qualify for an exceptional sentence, a defendant must show his conduct distinguishes his offense from those of others in the same category.
See State v. Way, 88 Wn. App. 830, 834-35, 946 P.2d 1209 (1997) (fact murder was committed in presence of others in public place fails to set it apart from many other murders committed with others nearby; approval of exceptional sentence would sanction departure from presumptive sentence in wide range of similar crimes), review denied, 135 Wn.2d 1002 (1998).
Because Jones did not qualify as a first offender and the factors in mitigation do not apply to his facts, his claims are rejected. For the aforesaid reasons, Jones's conviction and sentence are affirmed.
Affirmed.