Opinion
Nos. 24977-8-III; 24978-6-III.
April 10, 2007.
Appeals from judgments of the Superior Court for Spokane County, Nos. 05-1-02088-2 and 05-1-03201-5, Salvatore F. Cozza, J., entered February 17, 2006.
Affirmed by unpublished opinion per Sweeney, C.J., concurred in by Kulik, J., and Kato, J. Pro Tem.
Police may not engage in what the courts call "outrageous police conduct" to induce criminal activity. The claim here is that because of the defendant's close relationship with a confidential informant, and the generosity of the informant, the police essentially overcame the defendant's will. And only then did the defendant facilitate a number of drug deals. We conclude that the defendant has not made out a case of outrageous police conduct nor has he shown he was entitled to an instruction on entrapment as a matter of law. And we affirm his convictions.
FACTS
Clinton (Neil) Hartman is an informant. He cooperated with police and bought methamphetamine in transactions facilitated by David Medchill. Police caught Mr. Hartman driving with a suspended license and later found methamphetamine in his car. He cooperated with the police to "work off" the criminal charges.
Mr. Hartman and Mr. Medchill were neighbors and friends. Mr. Hartman gave Mr. Medchill various gifts including several VCRs, an electric heater, a microwave oven, a camera, a recorder, a telephone, and a big-screen TV. Mr. Medchill lived with his girl friend, Virginia Rosslow. Ms. Rosslow's son and Mr. Hartman's child were close friends. This was an important friendship for Mr. Medchill and Ms. Rosslow.
Mr. Hartman asked Mr. Medchill if he knew anyone who sold methamphetamine. Mr. Medchill talked to his girl friend's sister and found a seller. Mr. Hartman, on behalf of and at the behest of police, bought methamphetamine six times from Mr. Medchill. Police paid Mr. Hartman $50 for each transaction. Each time Mr. Medchill took Mr. Hartman to meet with another person who actually provided the drugs on some occasions. Mr. Medchill was present at all six buys and assisted with the exchange of drugs and money. Mr. Hartman would then deliver the drugs to the police.
The State charged Mr. Medchill with six counts of delivery of a controlled substance. Mr. Medchill asked the court to instruct the jury on entrapment. The judge refused.
The jury found Mr. Medchill guilty of all six counts. Mr. Medchill requested a sentence below the standard range. The judge imposed standard range sentences of 36 months. The court ran the sentences concurrently.
DISCUSSION
Outrageous Police Behavior
Mr. Medchill argues primarily here on appeal that the conduct of the police was outrageous to the extent that it violated his constitutional right to due process of law. As far as he is concerned, the police instigated these crimes and paid for them. He argues that he would not have arranged for any of these drug sales without Mr. Hartman's previous kindness and persistent requests for drugs.
The State argues that these were garden variety controlled buys and that there is nothing outrageous about what police did here.
Whether the State has engaged in outrageous conduct is a question of law. State v. O'Neill, 91 Wn. App. 978, 990-91, 967 P.2d 985 (1998); State v. Lively, 130 Wn.2d 1, 19, 921 P.2d 1035 (1996). Our review is, then, de novo. O'Neill, 91 Wn. App. at 990-91. The test is whether the "conduct is sufficiently outrageous to bar prosecution [as] a matter of law." Id.; Lively, 130 Wn.2d at 19. Outrageous police conduct implicates concerns over constitutional due process, or more accurately, the denial of a defendant's right to due process of law. Lively, 130 Wn.2d at 18-19.
The courts have developed a number of factors to consider when deciding outrageous police conduct. Id. at 22. They include: (1) Did the police instigate a crime or infiltrate an ongoing criminal activity? (2) Was the defendant's reluctance to commit the crime overcome by promises, excessive profits, pleas of sympathy, or persistent solicitation? (3) Did the government control the illegal activity or just allow it to occur? (4) Were police motivated by a desire to create crime or protect the public? (5) Did the government conduct itself amount to criminal activity or conduct "`repugnant to a sense of justice?'" Id. (quoting People v. Isaacson, 44 N.Y.2d 511, 406 N.Y.S.2d 714, 378 N.E.2d 78, 83 (1978)).
Here, there was no showing that police instructed Mr. Hartman to give any gifts to Mr. Medchill. Mr. Medchill argues that he was not a drug dealer but was rather just a middleman. As the trial judge thoughtfully noted, the definition of delivery accommodates a middleman.
Mr. Medchill complains that the criminal activity here was prompted by Mr. Hartman's show of friendship, the relationship of the children, and Mr. Hartman's gifts. Again, police did not arrange for any of this. And the trial judge described this excuse as a rationalization that "contributes to the whole problem with drugs that we face in society." Report of Proceedings (RP) (Sentencing Hearing) at 22. We find no promises, excessive profits, pleas of sympathy, or excessive solicitation. The record supports a finding of a friendship that led to drug sales. We conclude there is no showing of outrageous police conduct.
The showing here is that police were investigating drug dealings in Spokane Valley. They were not creating crimes where none otherwise existed.
Entrapment Instruction
Mr. Medchill next assigns error to the court's refusal to instruct on entrapment.
Again, the court's refusal to instruct is a question of law we review de novo. State v. Walker, 136 Wn.2d 767, 772, 966 P.2d 883 (1998). Mr. Medchill was entitled to an entrapment instruction if he offered sufficient evidence to support the instruction. Lively, 130 Wn.2d at 17.
The essence of entrapment is a criminal design that starts in the mind of law enforcement. RCW 9A.16.070(1)(a). It requires that police lure or induce a suspect to engage in illegal activity that he had not otherwise intended to commit.
RCW 9A.16.070(1)(b). The primary focus is the predisposition of the defendant to commit the offense. Lively, 130 Wn.2d at 19. A showing that the defendant was merely given an opportunity to commit a crime is not enough. RCW 9A.16.070(2). Solicitation to commit a crime is not entrapment. State v. Swain, 10 Wn. App. 885, 889, 520 P.2d 950 (1974). Even if the criminal design originated in an officer's mind, a defendant may become a willing actor in a drug deal and, thus, defeat an entrapment defense. State v. Galisia, 63 Wn. App. 833, 838, 822 P.2d 303 (1992). This occurs when he or she continues participating in the developing transaction and willingly associates himself or herself with it. Id.
Here, the trial judge correctly explained that, "`a normal amount of persuasion to overcome'" and "`expected resistance'" to sell drugs "`does not constitute entrapment and will not justify an entrapment instruction.'" RP at 219 (quoting State v. Smith, 101 Wn.2d 36, 42-43, 677 P.2d 100 (1984)).
The trial judge also accurately stated that solicitation made "`in connection with an appeal to sympathy or to friendship' does not, by itself, constitute entrapment." RP at 219; Smith, 101 Wn.2d at 42-43 (quoting Swain, 10 Wn. App. at 889). Solicitation to commit a crime is not entrapment. Swain, 10 Wn. App. at 889. Here, Mr. Medchill continued to participate in the delivery of drugs and associated himself with these drug transactions. See Galisia, 63 Wn. App. at 838.
The trial court did not err by refusing to instruct on entrapment.
Exceptional Sentence Below the Standard Range
Mr. Medchill next argues that he should have received an exceptional downward sentence because of the way these crimes were set up.
First, a sentence within the standard range is not appealable. RCW 9.94A.585(1). This prohibition is not absolute, however. State v. Garcia-Martinez, 88 Wn. App. 322, 328-29, 944 P.2d 1104 (1997). We will review the sentencing judge's refusal to exercise discretion at all on the question of an exceptional sentence. We will also review a judge's refusal to impose a particular sentence if the reason advanced is not permitted by law. Id. at 330. But when "a trial court . . . has considered the facts and has concluded that there is no basis for an exceptional sentence [then it] has exercised its discretion, and the defendant may not appeal that ruling." Id. And that is the case here. The trial court considered the facts and concluded there was no basis for an exceptional sentence downward. RP (Sentencing Hearing) at 20-23.
The sentence here is not, then, appealable. Garcia-Martinez, 88 Wn. App. at 330. Moreover, no defendant is entitled to a downward departure as a matter of right. State v. Grayson, 154 Wn.2d 333, 342, 111 P.3d 1183 (2005).
Pro Se Issues
Mr. Medchill also raises a number of issues pro se.
1. Whether Mr. Medchill's right to equal protection was violated due to sentence disparity between him and others involved in the crimes.
Mr. Medchill contends that his right to equal protection was violated since a sentence disparity existed between him and the others involved in these crimes. Specifically, he argues there is no rational basis for the difference in sentencing between himself and Al Willner, a dealer. According to Mr. Medchill, Mr. Willner received 3 to 6 months in a community in-patient program while he received 36 months in prison.
He also contends that his case was identical to Ms. Rosslow, yet, their sentences were not. Therefore, the court violated his right to equal protection by refusing the downward exceptional sentence. Mr. Medchill's argument is without merit.
The right to equal protection guarantees that a person who is similarly situated with respect to the law receives like treatment. State v. Harner, 153 Wn.2d 228, 235, 103 P.3d 738 (2004). The fourteenth amendment to the United States Constitution states that "[n]o state shall . . . deny to any person within its jurisdiction the equal protection of the laws." However, there is "no constitutional right to sentencing guidelines." State v. Baldwin, 150 Wn.2d 448, 461, 78 P.3d 1005 (2003).
Mr. Medchill's equal protection claim fails.
Furthermore, this issue is not fully developed for appeal. We have no evidence in the record concerning the people Mr. Medchill mentions. We do not know their criminal history, ages, or specific crime charged. Not only does his equal protection claim fail, but there is little to no evidence for us to review.
2. Whether Mr. Medchill received ineffective assistance of counsel.
Mr. Medchill contends that his attorney failed to be adversarial. He failed to object during the entire trial. And defense counsel's cross-examination of Detective Larry Bowman did not include questions in the best interest of his defense. Mr. Hartman's testimony was inconsistent. Defense counsel failed to meaningfully question him.
Mr. Medchill also contends that counsel failed to advocate his cause. No motion was filed regarding a violation of equal protection and due process. His attorney did not move for a dismissal based on insufficiency of the evidence.
We review claims for ineffective assistance of counsel de novo.
State v. Shaver, 116 Wn. App. 375, 382, 65 P.3d 688 (2003). We begin with a strong presumption that defense counsel's performance was effective. Id. A defendant has the burden to overcome that presumption. State v. McFarland, 127 Wn.2d 322, 335, 337, 899 P.2d 1251 (1995).
A defendant must meet two elements to prove a claim for ineffective assistance of counsel. Id. at 334-35; State v. Stenson, 132 Wn.2d 668, 705-06, 940 P.2d 1239 (1997). First, he must show that "defense counsel's representation was deficient." McFarland, 127 Wn.2d at 334-35. In other words, "it fell below an objective standard of reasonableness based on consideration of all the circumstances."
Id.; Stenson, 132 Wn.2d at 705-06. This must be shown based upon the trial record. McFarland, 127 Wn.2d at 335.
The defendant must also show that he or she was prejudiced by the deficient representation. Id. at 334-35; Stenson, 132 Wn.2d at 705-06. The threshold is that "but for" the errors the outcome would have been different. Stenson, 132 Wn.2d at 705-06; State v. Varga, 151 Wn.2d 179, 198, 86 P.3d 139 (2004).
We engage in a strong presumption that counsel's representation was effective. State v. Sherwood, 71 Wn. App. 481, 483, 860 P.2d 407 (1993).
This presumption can be overcome by a clear showing of incompetence. Varga, 151 Wn.2d at 199. If the action complained about goes to the theory of the case or trial tactics, then ineffective assistance of counsel is not found. Id.
Mr. Medchill contends that his counsel's performance fell below an objective standard of reasonableness for various reasons. His attorney failed to be adversarial, failed to object during trial, and failed to question Detective Bowman and Mr. Hartman meaningfully. Mr. Medchill lists the general ways in which his counsel was deficient.
Mr. Medchill fails to explain how he was prejudiced and how "but for" the errors the outcome would have been different. Merely stating that the defendant would have been victorious had counsel satisfied generalized characteristics does not satisfy the two-part test. See McFarland, 127 Wn.2d at 334-35. The competency of counsel is not measured by the result. State v. White, 81 Wn.2d 223, 225, 500 P.2d 1242 (1972).
Mr. Medchill also contends that no motion was filed regarding a violation of equal protection and due process. His attorney did not move for a dismissal based on insufficiency of the evidence. Defense counsel's legitimate trial tactics or strategy cannot be a claim for ineffective assistance of counsel. Varga, 151 Wn.2d at 199. Mr. Medchill does not satisfy the two-part test needed to prove ineffective assistance of counsel. See McFarland, 127 Wn.2d at 334-35.
We affirm the convictions.
A majority of the panel has determined that 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.
WE CONCUR:
Kulik, J.
Kato, J. Pro Tem.