Opinion
No. 54556-6-I
Filed: May 23, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No:04-1-09643-6. Judgment or order under review. Date filed: 07/09/2004. Judge signing: Hon. Steven Scott.
Counsel for Appellant(s), Dana M. Lind, Nielsen Broman Koch PLLC, 1908 E Madison St, Seattle, WA 98122-2842.
Counsel for Respondent(s), Patrick Joseph Preston, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Michael Milam appeals the sentence imposed following his convictions for delivery and possession of cocaine. He contends RCW 43.43.754 and the portion of his sentence requiring him to provide a biological sample for DNA identification violate both his Fourth Amendment right against unreasonable searches, and his privacy rights under article I, section 7 of the Washington Constitution. These arguments are controlled by our decision in State v. Surge, No. 51954-9, 2004 WL 1551561 (Wash.Ct.App. July 12, 2004) (holding that Fourth Amendment argument is controlled by State v. Olivas, 122 Wn.2d 73, 856 P.2d 1076 (1993), and rejecting argument based on the Washington Constitution and State v. Lucas, 56 Wn. App. 236, 783 P.2d 121 (1989)). We adhere to that decision here.
Milam raises two additional grounds for review pro se. First, he contends in conclusory fashion that his trial counsel was ineffective. He claims she was unprepared for trial, alleging that she failed to interview witnesses or complete an omnibus checklist. The trial court rejected these arguments in post-trial motions below. Noting that defense counsel obtained an acquittal on one count and a conviction for a lesser included offense on another, the trial court concluded that `it would be impossible, frankly, for me to conclude that you had received ineffective assistance in this case.' We review an ineffective assistance ruling for abuse of discretion. Milam has not demonstrated an abuse of discretion. Milam next contends his offender score was four, not fifteen as calculated by the court. Citing former RCW 9.94A.360, he appears to argue that some of his prior convictions should have counted as one point because there were served concurrently. But former RCW 9.94A.360 has been superseded. Now, only prior convictions committed before 1986 are counted as one offense if served concurrently. RCW 9.94A.525(5)(a)(ii). The prior convictions Milam addresses in his concurrency argument were all committed after 1986. Under RCW 9.94A.525(5)(a)(i), those convictions must be counted separately unless they encompass the same criminal conduct. Milam does not challenge the trial court's determination under the latter statute.
See State v. Dawkins, 71 Wn. App. 902, 907, 863 P.2d 124 (1993).
Affirmed.
BAKER, ELLINGTON and BECKER, JJ.