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State v. Osgood

The Court of Appeals of Washington, Division Two
Jul 2, 2008
145 Wn. App. 1031 (Wash. Ct. App. 2008)

Opinion

No. 36185-0-II.

July 2, 2008.

Appeal from a judgment of the Superior Court for Pierce County, No. 05-1-04598-3, Thomas Felnagle, J., entered April 6, 2007.


Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Van Deren, C.J., and Bridge-water, J.


Police investigated a tip that Bruce Osgood's dilapidated trailer emitted a strong smell of ammonia and was receiving many visitors. After receiving proper warnings, Osgood allowed police to search it. Inside, police found a methamphetamine laboratory, methamphetamine, and pseudoephedrine. Osgood missed his first trial date and the State filed an amended information charging Osgood with methamphetamine manufacture (count I), possession of pseudoephedrine with intent to manufacture methamphetamine (count II), and bail jumping (count III). The jury found Osgood guilty as charged and entered a special verdict that he had committed counts I and II within 1,000 feet of a school bus route stop. The sentencing court imposed 108 months of confinement.

State v. Ferrier, 136 Wn.2d 103, 960 P.2d 927 (1998).

Osgood appeals, arguing that (1) his convictions on counts I and II violated double jeopardy under the "same evidence" test and (2) the trial court abused its discretion when it declined to give him a Drug Offender Sentencing Alternative (DOSA), former RCW 9.94A.660 (2005). We affirm.

Analysis

Double Jeopardy

Osgood argues that the entry of convictions for both manufacture of methamphetamine and possession of pseudoephedrine with intent to manufacture violated double jeopardy. We disagree.

Where, as here, the defendant did not raise the issue at the trial court, he must prove a manifest error affecting a constitutional right. RAP 2.5(a)(3); State v. Bobic, 140 Wn.2d 250, 257, 996 P.2d 610 (2000) (citing State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995)). The constitutional prohibition on double jeopardy is a fundamental constitutional right. See In re Pers. Restraint of Grasso, 151 Wn.2d 1, 23, 84 P.3d 859 (2004) (Madsen, J., concurring); State v. Cole, 128 Wn.2d 262, 274, 906 P.2d 925 (1995), overruled on other grounds by In re Det. of Peterson, 145 Wn.2d 789, 799-800, 42 P.3d 952 (2002). The State may bring multiple charges arising from the same criminal conduct in a single proceeding. State v. Michielli, 132 Wn.2d 229, 238-39, 937 P.2d 587 (1997). But trial courts may not enter multiple convictions for the same offense without offending double jeopardy. State v. Vladovic, 99 Wn.2d 413, 422, 662 P.2d 853 (1983) (quoting Albernaz v. United States, 450 U.S. 333, 344, 101 S. Ct. 1137, 67 L. Ed. 2d 275 (1981)). At issue in any double jeopardy analysis is whether the legislature intended to impose multiple punishments for the same offense. In re Pers. Restraint of Orange, 152 Wn.2d 795, 815-16, 100 P.3d 291 (2004).

Courts may discern the legislature's purpose by applying the Blockburger test. State v. Freeman, 153 Wn.2d 765, 772, 108 P.3d 753 (2005) (citing Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932)). "If each crime contains an element that the other does not, we presume that the crimes are not the same offense for double jeopardy purposes." Freeman, 153 Wn.2d at 772 (citing State v. Calle, 125 Wn.2d 769, 777, 888 P.2d 155 (1995)). A defendant may rebut this presumption with other evidence of legislative intent. Freeman, 153 Wn.2d at 772 (citing Calle, 125 Wn.2d at 778).

Division One of this court applied the Blockburger test and held that convictions for manufacture of methamphetamine and possession of pseudoephedrine with intent to manufacture do not violate double jeopardy. State v. Gaworski, 138 Wn. App. 141, 146, 156 P.3d 288 (2007) (citing Blockburger, 284 U.S. 299). The court reasoned:

Possession of precursor ingredients is not a required element of manufacturing. A person who knowingly plays even a limited role in any of these processes manufactures methamphetamine, and a person can knowingly commit the crime of manufacturing a controlled substance without ever constructively possessing it. For example, fingerprints on four items in a "box lab" used only to manufacture methamphetamine were sufficient evidence to sustain a conviction of manufacturing. Conversely, a person may possess precursor ingredients with intent to manufacture methamphetamine without ever beginning the actual manufacturing process. The two crimes do not require proof of the same facts, and we presume the legislature intended separate punishments.

Gaworski, 138 Wn. App. at 147 (footnotes omitted). Because, as here, the defendant failed to present any evidence of contrary legislative intent, the court held that convictions for both crimes did not violate double jeopardy. Gaworski, 138 Wn. App. at 147. We agree.

We note that Osgood relies incorrectly on two cases. First, he cites United States v. Dixon, 509 U.S. 688, 113 S. Ct. 2849, 125 L. Ed. 2d 556 (1993). In Dixon, the question on review was "'[w]hether the Double Jeopardy Clause bars prosecution of a defendant on substantive criminal charges based upon the same conduct for which he previously has been held in criminal contempt of court.'" 509 U.S. at 694. The elements of both charges were identical in Dixon and, therefore, the subsequent prosecution was barred. 509 U.S. at 700. The elements are not identical here and, accordingly, Dixon does not apply.

Second, Osgood relies on State v. Reiff, 14 Wash. 664, 45 P. 318 (1896), Washington's "basically identical" incarnation of the Blockburger rule. State v. Gocken, 127 Wn.2d 95, 104, 896 P.2d 1267 (1995). Osgood argues that, to prove manufacturing, the State in fact presented evidence that he possessed pseudoephedrine and that pseudoephedrine is a necessary ingredient to manufacture methamphetamine in the red phosphorous method. But the question before us is not whether the State in fact used similar evidence, but whether "'the evidence required to support a conviction upon one [count] would have been sufficient to warrant a conviction upon the other.'" Reiff, 14 Wash. at 667 (emphasis added) (quoting Morey v. Commonwealth, 108 Mass. 433, 434 (1871)). To obtain a conviction for methamphetamine manufacture, the State was not required to present evidence of the two elements in the possession charge, that Osgood (1) possessed pseudoephedrine or (2) intended to manufacture methamphetamine. RCW 69.50.440(1). Osgood's argument is based on a misunderstanding of the double jeopardy test and accordingly fails.

Drug Offender Sentencing Alternative

Osgood argues that the trial court abused its discretion when it declined to impose a DOSA. We disagree.

Ordinarily, we may not review a standard range sentence, of which a DOSA is an alternate form. State v. Bramme, 115 Wn. App. 844, 850, 64 P.3d 60 (2003) (citing State v. Conners, 90 Wn. App. 48, 53, 950 P.2d 519, review denied, 136 Wn.2d 1004 (1998)). We may, however, review the denial of a DOSA for constitutional error, legal error, and abuse of discretion. State v. Williams, 149 Wn.2d 143, 146-47, 65 P.3d 1214 (2003). A sentencing judge is vested with broad discretion in deciding whether to give a DOSA and our review of the exercise of that discretion is limited. State v. Grayson, 154 Wn.2d 333, 335, 111 P.3d 1183 (2005).

Former RCW 9.94A.660(2) sets out the procedure for a sentencing judge to use in deciding whether a DOSA sentence is appropriate. It provides:

A motion for a sentence under this section may be made by the court, the offender, or the state. If the sentencing court determines that the offender is eligible for this alternative, the court may order an examination of the offender. The examination shall, at a minimum, address the following issues:

(a) Whether the offender suffers from drug addiction;

(b) Whether the addiction is such that there is a probability that criminal behavior will occur in the future;

(c) Whether effective treatment for the offender's addiction is available from a provider that has been licensed or certified by the division of alcohol and substance abuse of the department of social and health services; and

(d) Whether the offender and the community will benefit from the use of the alternative.

RCW 9.94A.660(2).

A trial court abuses its discretion when its decision is manifestly unreasonable or based upon untenable grounds or reasons. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998).

Here, the trial court held:

. . . One of the things the Court looks to in deciding whether or not to grant a DOSA or give some sort of sentencing relief to an individual is, have they demonstrated any insight, have they taken any responsibility, and have they shown any remorse. There's absolutely nothing in this record that suggests any of those things have taken place or to suggest that there ought to be some other reason to grant leniency or consideration to Mr. Osgood.

. . . .

So, having not been able to identify reasons to grant the DOSA and not finding a reason to go to the high end either, I am going to impose 108 months and the financial obligations and other conditions as suggested by the State.

13 Report of Proceedings at 19-20.

Osgood's sole argument is that the trial court abused its discretion because it did not consider on the record whether he met the eligibility requirements listed in former RCW 9.94A.660(1). But the trial court did not abuse its discretion simply because it concluded that it was not appropriate to give a DOSA when Osgood had failed to demonstrate any insight or take responsibility for his conduct and would not likely benefit from use of the alternative sentence, regardless of his potential eligibility.

Former RCW 9.94A.660(1) states:

An offender is eligible for the special drug offender sentencing alternative if:

(a) The offender is convicted of a felony that is not a violent offense or sex offense and the violation does not involve a sentence enhancement under RCW 9.94A.533(3) or (4);

(b) The offender has no current or prior convictions for a sex offense at any time or violent offense within ten years before conviction of the current offense, in this state, another state, or the United States;

(c) For a violation of the Uniform Controlled Substances Act under chapter 69.50 RCW or a criminal solicitation to commit such a violation under chapter 9A.28 RCW, the offense involved only a small quantity of the particular controlled substance as determined by the judge upon consideration of such factors as the weight, purity, packaging, sale price, and street value of the controlled substance;

(d) The offender has not been found by the United States attorney general to be subject to a deportation detainer or order and does not become subject to a deportation order during the period of the sentence;

(e) The standard sentence range for the current offense is greater than one year; and

(f) The offender has not received a drug offender sentencing alternative more than once in the prior ten years before the current offense.

This is not a situation in which the trial court "categorically refus[ed] to consider a DOSA sentence," which is an abuse of discretion because it violates a defendant's right to due process of law. Grayson, 154 Wn.2d at 341-42. In Grayson, the trial court declined to give a DOSA because it believed that the program had inadequate funding. 154 Wn.2d at 342. The trial court categorically refused to consider the facts specific to John Grayson's case or rule on his eligibility. Grayson, 154 Wn.2d at 336, 342. Our Supreme Court reversed on this ground. Grayson, 154 Wn.2d at 342. In contrast, here, the trial court elaborated that it would not give a DOSA because Osgood did not demonstrate insight, take responsibility, or have remorse and because nothing else in the record gave a reason for leniency. The trial court's stated reasons amply supported its decision to deny Osgood a DOSA.

We affirm.

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, J. and VAN DEREN, C.J., concur.


Summaries of

State v. Osgood

The Court of Appeals of Washington, Division Two
Jul 2, 2008
145 Wn. App. 1031 (Wash. Ct. App. 2008)
Case details for

State v. Osgood

Case Details

Full title:THE STATE OF WASHINGTON, Respondent, v. BRUCE WAYNE OSGOOD, Appellant

Court:The Court of Appeals of Washington, Division Two

Date published: Jul 2, 2008

Citations

145 Wn. App. 1031 (Wash. Ct. App. 2008)
145 Wash. App. 1031

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