Opinion
No. 34177-8-II.
April 24, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 04-1-05364-3, Sergio Armijo, J., entered November 18, 2005.
Affirmed in part and remanded by unpublished opinion per Bridgewater, J., concurred in by Armstrong and Quinn-Brintnall, JJ.
Marvin Douglas McCormick appeals his conviction for unlawful possession of pseudoephedrine with intent to manufacture methamphetamine. We affirm but remand for the trial court to consider a drug offender sentencing alternative (DOSA) sentence.
On November 16, 2004, Pierce County Sheriff Deputy Shaffer arrested McCormick after observing him and a confederate, Tina Pekrovich, purchase pseudoephedrine at four different stores. The deputy found a large quantity of pseudoephedrine, a bag of ammonium sulfate, a receipt for a quart of muriatic acid in the car, and a spoon with methamphetamine residue on McCormick. In the car, which a third party owned, Deputy Shaffer found an ATT bill and other mail addressed to McCormick, as well as mail addressed to Pekrovich. McCormick told the deputy that he was purchasing pseudoephedrine for a friend who would make it into methamphetamine.
At sentencing, McCormick requested a DOSA. The State argued that McCormick was statutorily barred by a 2005 amendment to the sentencing statutes. This statute, which became effective in October 2005, applies only when the offender has not received a DOSA sentence "more than once" in the prior 10-year period before the current offence. RCW 9.94A.660(1)(f). Even though McCormick committed his crime before the effective date of that amendment, the trial court ruled, "He's gone through one [DOSA]. He doesn't qualify for a second one, not within ten years. That's the way I see it." RP (Nov. 18, 2005) at 10. The trial court then imposed a bottom-of-the-standard-range sentence.
I. Corpus Delicti
McCormick first contends that his trial counsel was constitutionally ineffective for failing to move to suppress his confession under the corpus delicti rule. To prevail, McCormick must show deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 674 (1984). If he fails to show either part of the test, the inquiry ends. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996). Because McCormick is contending that his counsel failed to make a motion, to prove prejudice, he must show that the trial court would have granted that motion. State v. McFarland, 127 Wn.2d 322, 337 n. 4, 899 P.2d 1251 (1995).
Here, there could be no prejudice because the trial court would not have suppressed the evidence. The case of State v. Brockob, 159 Wn.2d 311, 150 P.3d 59 (2006), is dispositive. Brockob, 159 Wn.2d at 326. In Brockob, the court held that where the State introduces evidence that a defendant possessed ephedrine, as well as coffee filters that might be used in the manufacturing process and was acting in concert with another person to acquire more than a legal quantity of ephedrine, there was sufficient evidence to satisfy the corpus delicti rule. Brockob, 159 Wn.2d at 330-31.
The relevant statute criminalizes possession of both pseudoephedrine and ephedrine with intent to manufacture methamphetamine. RCW 69.50.440(1).
Here, McCormick acted in concert with Pekrovich to acquire an illegal quantity of pseudoephedrine. Moreover, Deputy Shaffer found ammonium sulfate and a receipt for muriatic acid in the car with McCormick. These items are common components in the methamphetamine manufacturing process. Moreover, McCormick possessed a spoon with methamphetamine residue, establishing his own drug use. Combined with the large quantity of pseudoephedrine, these additional factors are sufficient to establish a prima facie inference that criminal activity was taking place. Thus, a trial court would have properly denied a corpus delicti motion.
The presence of mail addressed to McCormick in the car along with his actual possession is sufficient to establish a prima facia inference of constructive possession of the items in the trunk.
Because McCormick cannot establish that the trial court would have granted such a motion, he cannot establish sufficient prejudice to warrant reversal for ineffective assistance of counsel.
II. Sufficiency of the Evidence
McCormick next argues that the evidence was insufficient to prove that he knowingly played a role in the manufacturing process. The familiar tests we employ to measure sufficiency are found in State v. Green, 94 Wn.2d 216, 220-21, 616 P.2d 628 (1980), and State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004).
In this case, McCormick admitted to Deputy Shaffer that he was purchasing pseudoephedrine so that his acquaintance could make methamphetamine. This alone is sufficient for a jury to find intent. In addition, the large quantity of pseudoephedrine McCormick possessed, along with the ammonium sulfate and the receipt for muriatic acid, indicates that McCormick intended to use the pseudoephedrine to make methamphetamine. Moreover, acting in concert with another to purchase more than the legal limit of pseudoephedrine also indicates criminal intent. And finally, McCormick possessed a spoon with methamphetamine residue suggesting his own drug use and undermining any innocent explanation. From this, a reasonable juror could have inferred that McCormick was guilty of unlawful possession of pseudoephedrine with intent to manufacture methamphetamine. See Brockob, 159 Wn.2d at 336 (possession of three bottles of ephedrine and coffee filters, combined with acting in concert to purchase an illegal quantity of ephedrine is sufficient to support a conviction of possession with intent to manufacture). The evidence was sufficient to support a conviction.
III. Sentencing
McCormick next argues that the trial court abused its discretion in denying his request for a DOSA sentence. He asserts that the trial court incorrectly based its decision on a 2005 DOSA amendment. The State concedes error and asks us to remand for resentencing. We agree.
Generally, a trial court's decision to deny a DOSA sentence is not reviewable. State v. Grayson, 154 Wn.2d 333, 338, 111 P.3d 1183 (2005). Because a DOSA sentence falls within the standard sentence range set by the legislature in the sentencing statute, we presume that the trial court did not abuse its discretion. State v. Williams, 149 Wn.2d 143, 146-47, 65 P.3d 1214 (2003). But a party may challenge a trial court's legal error in determining which sentencing provision applies to a specific case. Williams, 149 Wn.2d at 147. A party may also challenge a trial court's failure to exercise any discretion where the trial court categorically denies a DOSA sentence. Grayson, 154 Wn.2d at 342.
At sentencing, the State argued that McCormick was statutorily ineligible for a DOSA because he had previously received a DOSA within 10 years of his current conviction. But the State relied on a version of the DOSA statute that did not become effective until October 1, 2005. RCW 9.94A.660(1)(f), Laws of 2005, ch. 460, § 1.
The trial court determined that, "He's gone through one [DOSA]. He doesn't qualify for a second one, not within ten years. That's the way I see it." RP at 10. The trial court applied the statutory rule.
On appeal, the State argues that under the amended provision of RCW 9.94A.660, a person is ineligible for a DOSA sentence if he has received a DOSA sentence within the last 10 years. Moreover, the State asserts that the effective date of the amendatory legislation was October 1, 2005, but that the legislature also specifically provided that the act "applies to sentences imposed on or after the effective date of this act." Laws of 2005, ch. 460, § 2. McCormick committed the offense before the effective date of the act, but was sentenced afterward on November 18, 2005.
RCW 9.94A.660(1) states that
An offender is eligible for the drug offender sentencing alternative if:
. . . .
(f) the offender has not received a drug offender sentencing alternative more than once in the prior ten years before the current offense.
RCW 9.94A.660(1)(f) (emphasis added). From a plain reading of the statute that to be ineligible for a DOSA, McCormick would have had to have more than one DOSA sentence in the last 10 years.
Before the statutory amendment, McCormick plainly would have been eligible to apply for DOSA because there was no limitation. The 2005 amendment indicates that it applies to any sentencing after the statute became effective. Both parties argue constitutional "ex post facto" applications. But we need not reach that issue here because even if the 2005 statutory amendment did apply to McCormick's sentence, he was eligible for a DOSA sentence. The trial court misinterpreted the amendment. An offender is eligible for a DOSA sentence, provided that he has only received no more than one other DOSA sentence in the prior 10-year period. See RCW 9.94A.660(1)(f). McCormick had received only one DOSA sentence in the prior 10-year period. Thus, he was eligible for consideration. We remand for resentencing for the trial court to consider DOSA under the applicable statutory provisions.
Affirmed but remanded for resentencing.
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.
Bridgewater, P.J.
We concur: Armstrong, J., Quinn-Brintnall, J.