Opinion
No. 35542-6-II.
February 26, 2008.
Appeal from a judgment of the Superior Court for Thurston County, No. 04-1-01523-9, Wm. Thomas McPhee, J., entered November 8, 2006.
Affirmed in part and remanded by unpublished opinion per Penoyar, J., concurred in by Van Deren, A.C.J., and Bridgewater, J.
Calvin Duane Ott appeals his convictions of two counts of unlawful delivery of a controlled substance and two counts of unlawful possession of a controlled substance. A jury found that one of the delivery counts took place within 1,000 feet of a school bus route stop. On appeal, he challenges the sufficiency of the evidence as to this sentencing enhancement, claims that the two possession counts were the same criminal conduct, and claims that counsel's failure to argue same criminal conduct was ineffective assistance. We affirm but remand to correct an error on the face of Ott's judgment and sentence.
Violations of RCW 69.50.401(2)(b) (methamphetamine) and (2)(a) (cocaine).
Violations of RCW 69.50.401(2)(b) (methamphetamine) and (2)(a) (cocaine).
A violation of RCW 69.50.435.
Facts
On August 17, 2004, Lacey Police Detective David Miller conducted a controlled buy using Tami Page as the purchaser. Page purchased $60 worth of methamphetamine from Ott at a Shell gas station. Assisting police officers stopped Ott after he drove off, arrested him, and recovered the prerecorded buy money.
On March 23, 2005, Olympia Police Detective Sam Costello discovered evidence while investigating a burglary at Ott's residence suggesting that Ott was selling drugs. Charlene Glimpse then purchased $50 worth of cocaine from Ott at his home in a controlled buy that Detective Costello arranged. Detective Costello then obtained a search warrant and found drug paraphernalia in the house and two pill bottles in Ott's Mazda MPV. Later testing showed that one bottle contained 14.7 grams of methamphetamine and the other contained 5.6 grams of cocaine.
The State charged Ott by second amended information with two counts of unlawful delivery based on the controlled buys, two counts of unlawful possession with intent to deliver based on the drugs seized from his van, and one count of bail jumping. It also alleged that the first drug sale at the Shell gas station took place less than 1,000 feet from a school bus route stop. Ott denied selling drugs and denied owning the drugs found in the Mazda van.
Ron McCarty, the school bus transportation director, testified that the closest school bus stop to the Shell gas station was 4500 Martin Way. Detective Miller measured the distance between these two points at 565 feet.
The jury found Ott guilty of the two deliveries, including the bus route stop enhancement, guilty of the lesser included offenses of unlawful possession of a controlled substance, and not guilty of bail jumping. Using an agreed offender score of five, the court imposed a 46-month standard range sentence.
This was 22 months on the delivery counts plus a 24-month enhancement on count one. The court imposed 18-month sentences on the possession counts to run concurrently with the delivery counts. The court noted that the circumstances warranted a mid-range or higher sentence but opted to impose a low-end standard range on the deliveries because Ott was 81 years old and had medical conditions.
ANALYSIS
I. Sufficiency of the Evidence
Ott first claims that the evidence presented was insufficient to support the school bus route stop sentencing enhancement. RCW 69.50.435(c) requires an enhanced sentence when a drug transaction occurs "[w]ithin one thousand feet of a school bus route stop designated by the school district." Ott argues that the State failed to prove this enhancement in two ways: (1) McCarty never testified that the same school bus stop existed in 2004 and (2) he never testified that the school district designated the stop at 4500 Martin Way.
When facing a challenge to the sufficiency of the evidence, we ask whether, after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). Because credibility determinations are for the trier of fact and are not subject to review, State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990), we defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
The State responds that while McCarty did not specifically testify that the stop was designated, it was reasonable for the jury to infer that it was. We agree. McCarty testified that he was the director of bus transportation for the school district and that there was a bus route stop at 4500 Martin Way. From this, the jury could reasonably infer that the stop was designated.
The State does not respond, however, to Ott's claim that McCarty never testified that this bus route stop existed in 2004. But the evidence allows such an inference. Ott committed his offense in August 2004 and Detective Miller contacted McCarty in February 2005 about the bus route stop. It is reasonable to conclude that the stop existed during the 2004-05 school year when Detective Miller obtained this information, not just when McCarty testified in October 2005.
II. Sentencing
Next, Ott argues that the sentencing court used an incorrect offender score because the two possession counts, although involving different controlled substances, involved the same criminal conduct. See State v. Vike, 125 Wn.2d 407, 412-13, 885 P.2d 824 (1994) (simultaneous possession of two different controlled substances was same criminal conduct).
Whenever a court is imposing a sentence for two or more current offenses, the sentence range for each offense is calculated using the other current offenses as previous offenses, includable in the offender score, unless the court finds that the current offenses encompass the same criminal conduct. RCW 9.94A.589(1)(a). Offenses are "same criminal conduct" if they "require the same criminal intent, are committed at the same time and place, and involve the same victim." RCW 9.94A.589(1)(a). State v. Dunaway, 109 Wn.2d 207, 212-18, 743 P.2d 1237 (1987).
However the State argues and we agree that Ott waived this necessarily factual determination by not asking the sentencing court to exercise its discretion and treat these offenses as one. See In re Pers. Restraint Petition of Goodwin, 146 Wn.2d 861, 874-75, 50 P.3d 618 (2002) (citing State v. Majors, 94 Wn.2d 354, 358-59, 616 P.2d 1237 (1980); State v. Nitsch, 100 Wn. App. 512, 997 P.2d 1000 (2000)).
A defendant generally cannot waive a challenge to an incorrect offender score. Goodwin, 146 Wn.2d at 874. Exceptions to this rule exist, however, where the alleged error involves a stipulation to incorrect facts or a matter of trial court discretion. Goodwin, 146 Wn.2d at 874. The same criminal conduct doctrine involves both factual determinations and matters of trial court discretion. Goodwin, 146 Wn.2d at 875. Thus, a defendant may waive an alleged error regarding same criminal conduct if he fails to assert this argument at sentencing. See Goodwin, 146 Wn.2d at 875 (favorably citing Nitsch, 100 Wn. App. at 521). By stipulating to an offender score of five, and by failing to offer any evidence indicating that he raised the same criminal conduct issue at sentencing, Ott waived his right to argue the same criminal conduct rule. See Nitsch, 100 Wn. App. at 521-22; see also In re Pers. Restraint Petition of Connick, 144 Wn.2d 442, 464, 28 P.3d 729 (2001) (once a defendant agrees to an offender score that counts his prior offenses separately, he cannot subsequently challenge the sentencing court's failure to consider some of those prior offenses as the same criminal conduct).
III. Effective Assistance of Counsel
Ott argues in the alternative that, if he waived his right to claim same criminal conduct, trial counsel denied him his constitutional right to effective representation. Such a claim requires the appellant to show both objectively deficient performance and actual prejudice. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (adopting test from Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
Because Ott cannot show prejudice, his claim fails. Even assuming that Ott had an offender score of 4, his standard sentence range would not have changed. RCW 9.94A.517 sets out the sentencing ranges applicable here. Ott's most serious offense, unlawful delivery, was a level II offense, which, for an offender score of 3 to 5, had a standard sentencing range of 20+ to 60 months. Further, the sentencing court imposed 22 months, almost the lowest possible sentence in this range, before adding the 24-month enhancement. Even assuming a miscalculated offender score, there was no prejudice.
IV. Scrivener's Error
Finally, Ott claims that we need to remand to the sentencing court because his judgment and sentence lists counts III and IV as unlawful possession of a controlled substance with intent to deliver. This is incorrect, he argues, because the jury found him guilty of the lesser included offenses of unlawful possession of a controlled substance.
The State agrees that the judgment and sentence requires correction but argues that we need not remand for an actual resentencing as Ott will not receive a new sentence. We remand, directing the sentencing court to correct the error. State v. Moten, 95 Wn. App. 927, 929, 976 P.2d 1286 (1999).
V. Statement of Additional Grounds
In a Statement of Additional Grounds, Ott claims that he could not participate in the proceedings because he has a hearing deficiency and the court's accommodation was insufficient to allow him to meaningfully participate in his defense.
However the record does not support this claim. Throughout the record, the trial court asked Ott if he could hear the proceedings and each and every time Ott responded that he could. He never complained that he could not participate and he never told the court that the assisted listening device did not help. See Report of Proceedings (RP) (Oct. 10, 2006) at 13 ("THE COURT: Mr. Ott, have you been able to hear me as I have made this determination? THE DEFENDANT: Yes."); RP (Oct. 10, 2006) at 44 (court admonishing witness to speak louder and turning up microphone); RP (Oct. 11, 2006) at 197 (DEFENSE COUNSEL: "Can you hear me, Mr. Ott? THE DEFENDANT: "Yes." DEFENSE COUNSEL: "Okay, If I stand back here, can you hear me? THE DEFENDANT: "Yeah."); RP (Oct. 13, 2006) at 343 (THE COURT:
"Can you hear comfortably now?" THE DEFENDANT" "Yes.").
It is clear that all parties involved were aware of and concerned about Ott's ability to hear the proceedings. If Ott needed more accommodation, he had an obligation to inform the trial court.
Ott also argues that defense counsel did not adequately prepare for trial or manage his case. However the basis of his claims involve matters outside the appellate record and therefore we cannot consider them on appeal. See State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
We affirm but remand to correct the scrivener's error on the judgment and sentence. See Moten, 95 Wn. App. at 934-35; CrR 7.8(a).
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.
VAN DEREN, A.C.J. and BRIDGEWATER, J., concur.