Opinion
No. 63833-5-I.
October 19, 2009.
Appeal from the Superior Court, Pacific County, No. 07-1-00255-1, Michael J. Sullivan, J., entered June 27, 2008.
Affirmed by unpublished opinion per Cox, J., concurred in by Becker and Ellington, JJ.
Joshua Shadday appeals his judgment and sentence, claiming that a school bus stop sentencing enhancement was imposed in violation of his right to fair notice of prohibited conduct. He also argues that the State committed prosecutorial misconduct during closing argument by vouching for a witness. In the alternative, Shadday argues that his counsel was ineffective in failing to object to the State's remarks. The State cross-appeals, arguing that the trial court erred by including the school bus stop sentencing enhancement in its calculation of the standard range for Shadday's DOSA sentence.
We hold that Shadday has failed in his burden to prove beyond a reasonable doubt that the sentencing enhancement statute is unconstitutional as applied to him. There was no misconduct by the State and no ineffective assistance by defense counsel. The trial court correctly sentenced Shadday under RCW 9.94A.533(6). We affirm.
Franklin Warner agreed to act as a confidential informant for the Pacific County Sherriff's Office. Warner, working with Deputy James Bergstrom, participated in three "controlled buys" in which he purchased methamphetamine from Shadday.
Each of the controlled buys occurred inside Shadday's residence at 126 East Spruce Street in Ilwaco. A school bus stop is located across the street from, and within 1,000 feet of, Shadday's residence.
In 2007, police searched Shadday's residence pursuant to two search warrants and arrested him. Police found several plastic baggies in Shadday's coat pocket that contained a white crystalline substance, which was later identified as methamphetamine.
The State charged Shadday with three counts of delivery of a controlled substance (counts I-III) and one count of possession of a controlled substance (count IV). A jury convicted him as charged. The jury also found by special verdict that counts I-III each took place within 1,000 feet of a designated school bus route stop.
Shadday appeals. The State cross-appeals the trial court's sentence calculation.
DUE PROCESS
Shadday argues that the statute increasing punishment for proximity to a designated school bus stop, RCW 69.50.435, is unconstitutionally vague as applied to him. We disagree.
A vagueness challenge to a statute that does not involve First Amendment rights is to be evaluated by examining the statute as applied under the particular facts of the case. The fundamental principle underlying the vagueness doctrine is that the Fourteenth Amendment requires that citizens be afforded fair warning of proscribed conduct. A statute is presumed to be constitutional, and the person challenging a statute on vagueness grounds has the heavy burden of proving vagueness beyond a reasonable doubt. The challenger must show, beyond a reasonable doubt, that either (1) the statute does not define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is proscribed, or (2) the statute does not provide ascertainable standards of guilt to protect against arbitrary enforcement.
State v. Coria, 120 Wn.2d 156, 163, 839 P.2d 890 (1992) (citing City of Spokane v. Douglass, 115 Wn.2d 171, 181-82, 795 P.2d 693 (1990)).
Id. (citing Douglass, 115 Wn.2d at 178).
Id.
Id.
In State v. Coria, our supreme court rejected the contention that RCW 69.50.435 was unconstitutionally vague based upon the defendants' claim that they did not subjectively know they were dealing drugs within 1,000 feet of a school bus stop. The court held, "[t]he statute does not forbid conduct in terms so vague that persons of common intelligence must guess at its meaning and differ as to its application. Nor does it create a risk of arbitrary enforcement by the use of inherently subjective terms or by inviting an inordinate amount of police discretion." The court also rejected the defendants' contention that prior notice was lacking because the bus stop in question was not marked or signed and was used only intermittently by school children. Though the location of the school bus stop was not marked, information regarding the locations of bus stops was available through such objective means as observing the gathering of school children waiting for their school buses or by contacting local schools or the director of transportation for the school district. The court stated:
120 Wn.2d 156, 839 P.2d 890 (1992).
Id. at 166.
Id. at 164.
Id. at 167.
Id.
It may be unrealistic, of course, to expect drug dealers to take these steps, but that is irrelevant to the question whether the statute is unconstitutionally vague. The defendants' failure to have been aware of the law and to have taken action to protect themselves against the enhanced penalty for their criminal conduct is no basis for declaring the statute unconstitutionally vague.
Id.
The supreme court considered a similar question in State v. Becker. There, the defendants argued that the State violated their rights to due process because the special verdict that gave rise to their sentence enhancements was based upon their proximity to a "school," the location of which could not be determined by any readily understandable or ascertainable means. The court agreed, recognizing that the Youth Education Program, located on the third floor of a building in downtown Seattle, had no physical signs that would indicate the school's presence to a person of reasonable intelligence. Additionally, the State produced no evidence that a person calling the Seattle School District would be informed that a school was located in the building, and the program was not listed as a school in the records of the Office of the Superintendent of Public Instruction (OSPI).
132 Wn.2d 54, 935 P.2d 1321 (1997).
Id. at 60-61.
Id. at 62-63.
Id. at 63.
At Shadday's trial, Pacific County Sherriff's Deputy James Bergstrom testified that he contacted the Ocean Beach School District and received the locations of the school bus stops near the locations of the controlled buys. He determined that a school bus stop was directly across the street from where Shadday lived. Later, while doing surveillance, the deputy observed a school bus drop a student off across the street from Shadday's residence. The distance from the fence line at Shadday's property to where the child got off the bus was fifty-three feet.
Id. at 58.
Id. at 59.
Id.
Id. at 60-61.
Ben Mount, Transportation Supervisor at the Ocean Beach School District, testified that at the time of Shadday's crimes there was a school bus stop at 126 East Spruce Street. Mount also testified that anyone who wanted a record of the school bus stop information for the school district could obtain this information from him or from OSPI.
This case is controlled by the facts in Coria, not Becker. As in Coria, objective means were available for Shadday to determine the location of the school bus stop. First and foremost, he could have observed school children waiting for or being dropped off by their school buses at 126 East Spruce Street, across the street from where he lived. Deputy Bergstrom testified that he did so. There is nothing in the record to indicate that Shadday could not also have done so. Second, he could have learned what bus stops were designated by the district by contacting the school district's director of transportation or OSPI. His failure to inform himself of this readily available information does not make the statute that he challenges unconstitutionally vague as applied to him.
Shadday argues that school bus stop information was not readily ascertainable because the location of school bus stops is designated by their longitude and latitude, "necessitating special equipment and training in order to ascertain where the stops are located." In light of the undisputed fact that children used a school bus stop across the street from his house, this argument makes no difference to the outcome in this case.
Brief of Appellant at 11.
Shadday fails in his burden to show beyond a reasonable doubt that the statute is vague as applied to him.
PROSECUTORIAL MISCONDUCT
Shadday argues that the State committed misconduct during closing arguments by vouching for the credibility of a crucial witness. We disagree.
A defendant claiming prosecutorial misconduct bears the burden of establishing that the prosecutor's conduct was both improper and prejudicial.
State v. Korum, 157 Wn.2d 614, 650, 141 P.3d 13 (2006).
It is misconduct for a prosecutor to state a personal belief as to the credibility of a witness. Prejudicial error will not be found unless it is "`clear and unmistakable'" that counsel is expressing a personal opinion and not arguing an inference from the evidence. Failure to object to a prosecutor's improper remark constitutes waiver unless the remark is deemed to be so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury.
State v. Warren, 165 Wn.2d 17, 30, 195 P.3d 940 (2008) (citing State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995)), cert. denied, 129 S. Ct. 2007 (2009).
Brett, 126 Wn.2d at 175 (quoting State v. Sargent, 40 Wn. App. 340, 344, 698 P.2d 598 (1985)).
Id.
Here, on direct examination, Deputy Bergstrom testified that Warner, the confidential informant, had entered into a contract with law enforcement "and had made several narcotics purchases for me which led to arrests and convictions." Defense counsel also elicited testimony from Deputy Bergstrom and Warner about Warner's prior work with law enforcement. In response, on redirect examination, the prosecutor clarified the extent of Warner's work with law enforcement. Warner testified that he had been in contact with Deputy Bergstrom for 11 months, had participated in 14 controlled buys, and had testified once in a different proceeding.
In closing argument, defense counsel argued that Warner was not credible. The prosecutor stated during rebuttal that Warner "has led" the police on four previous investigations "that have led to arrests and convictions." He then argued, "There must be a reason that they keep going back to him." Shadday did not object to these arguments.
First, Shadday's failure to object to the alleged vouching means that there was no preservation of the alleged error. In the context of the evidence and defense counsel's closing argument, Shadday has not shown that the prosecutor's comments were so flagrant and ill-intentioned that an instruction to the jury could not have cured any prejudice.
Second, in any event, this argument does not set forth a statement of personal belief, as was the case in State v. Sargent. There, the prosecutor stated, " I believe Jerry Lee Brown. I believe him. . . ." Here, in contrast, the prosecutor was drawing a permissible inference from the evidence as to why the jury should believe one witness whose credibility had been called into question by the defense. Shadday has not met his burden to establish prosecutorial misconduct.
40 Wn. App. 340, 698 P.2d 598 (1985).
Id. at 343 (emphasis added).
INEFFECTIVE ASSISTANCE OF COUNSEL
Shadday argues in the alternative that he was denied effective assistance of counsel because his trial counsel failed to object to the prosecutor's improper remarks. We disagree.
To prevail on a claim of ineffective assistance of counsel, a defendant must show that his counsel's performance fell below an objective standard of reasonableness and that the deficient performance prejudiced his trial.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
The reasonableness inquiry presumes effective representation and requires the defendant to show the absence of legitimate strategic or tactical reasons for the challenged conduct. To show prejudice, the defendant must show that but for the deficient performance, there is a reasonable probability that the verdict would have been different. If one of the two prongs of the test for ineffective assistance is absent, we need not inquire further.
McFarland, 127 Wn.2d at 336.
Matter of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998).
Strickland, 466 U.S. at 697; State v. Foster, 140 Wn. App. 266, 273, 166 P.3d 726, review denied, 162 Wn.2d 1007 (2007).
The decision of when or whether to object is a classic example of trial tactics and only in "egregious circumstances, on testimony central to the State's case, will the failure to object constitute incompetence of counsel justifying reversal."
State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989).
Here, as discussed above, there was no vouching. Thus, defense counsel had no basis for any objection to the remarks. Counsel's decision not to object was not objectively unreasonable. Because Shadday fails in his burden to prove the first prong of the governing test, we need not reach the second prong. There was no ineffective assistance of counsel.
DOSA ENHANCEMENT
On cross-appeal, the State argues that the trial court erred by adding the 24-month school bus stop enhancement to Shadday's base standard range sentence rather than running it consecutively to the base sentence. We disagree.
Our fundamental objective in reading a statute is to ascertain and carry out the legislature's intent. If a statute's meaning is plain on its face, then we must give effect to that plain meaning. Under the plain meaning rule, such meaning is derived from all that the legislature has said in the statute and related statutes that disclose legislative intent about the provision in question. A court should not adopt an interpretation that renders any portion meaningless. Strained meanings and absurd results should be avoided. The meaning of a statute is a question of law that we review de novo.
Dep't of Ecology v. Campbell Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002).
Id.
Id. at 11-12.
State v. Keller, 143 Wn.2d 267, 277, 19 P.3d 1030 (2001).
State v. Neher, 112 Wn.2d 347, 351, 771 P.2d 330 (1989).
Okeson v. City of Seattle, 150 Wn.2d 540, 548-49, 78 P.3d 1279 (2003).
The drug offender sentencing alternative statute (DOSA) in effect at the times of commission of Shadday's crimes required a trial court to impose a sentence at the midpoint of the sentencing range and divide that time evenly between incarceration and community custody. Former RCW 9.94A.660(5), applicable to this case, states in relevant part:
Former RCW 9.94A.660(4), (5), which became effective by 2006 amendments of the statute. Under RCW 9.94A.345, sentences imposed under the Sentencing Reform Act of 1981, chapter 9.94A RCW (SRA), "shall be determined in accordance with the law in effect when the current offense was committed." Here, we cite to the versions of the statutory provisions in effect in October and November 2007, the times of Shadday's crimes. Clerk's Papers at 30-32.
The prison-based alternative shall include:
(a) A period of total confinement in a state facility for one-half of the midpoint of the standard sentence range or twelve months, whichever is greater. . . .
(b) The remainder of the midpoint of the standard range as a term of community custody. . . .
Former RCW 9.94A.660(5).
As amended in 2007, and in effect at the time of Shadday's crimes, former RCW 9.94A.533(6) imposed a 24-month enhancement when a defendant committed a drug crime within 1,000 feet of a school bus route stop, violating RCW 69.50.435. Specifically, former RCW 9.94A.533(6) provided:
An additional twenty-four months shall be added to the standard sentence range for any ranked offense involving a violation of chapter 69.50 RCW if the offense was also a violation of RCW 69.50.435 or 9.94A.605. All enhancements under this subsection shall run consecutively to all other sentencing provisions, for all offenses sentenced under this chapter.
(Emphasis added.)
In 2008, Division Three of this court addressed the interaction between DOSA sentences and the school bus route stop enhancement in Gutierrez v. Department of Corrections. There, Gutierrez pleaded guilty to delivery of a controlled substance and also stipulated to the accompanying enhancement that the offense occurred within 1,000 feet of a school bus route. The enhancement added 24 months to a sentence range that otherwise would have been 12 to 20 months. The parties agreed to a DOSA sentence, which the trial court accepted. The trial court recognized a new range of 36 to 44 months at sentencing. The court imposed a midrange sentence of 40 months and suspended half of that time, effectively requiring Gutierrez to serve 20 months in prison and 20 on community custody.
146 Wn. App. 151, 188 P.3d 546 (2008).
Id. at 152-53.
Id. at 153.
Id.
Id.
Id.
The Department of Corrections challenged the computation of Gutierrez's DOSA sentence. DOC argued that the statutory scheme required Gutierrez to serve the entire 24-month enhancement in total confinement and that the DOSA portion of his sentence should be based on a 16-month sentence — the midpoint of the original 12-to 20-month range. Division Three disagreed, concluding that the trial court did not err in its calculation of Gutierrez's sentence.
Id.
Id. at 154.
Id. at 154-57.
In reaching this conclusion, the court reviewed the language of both statutes at issue. First, it rejected DOC's argument that the phrase "standard sentence range" as it appears in former subsection 533 is a separate sentencing provision from the base "standard range" and that only the latter is considered when determining a DOSA sentence. Considering both the SRA's definition of "standard sentence range" and related case law, the court observed, "Uniformly, the enhanced range is considered a standard range term and a departure from that range is an exceptional sentence." The court then reasoned that the trial court's approach was consistent with the command of the first sentence of RCW 9.94A.533(6), which states the enhancement shall be " added to the range rather than treated as a separate sentencing provision." "Courts have routinely interpreted this command, as in the case of other enhancements, as increasing each end of the initial base range by the length specified for the enhancement."
Id. at 154-55.
Id. at 154-55 (citing State v. Silva-Baltazar, 125 Wn.2d 472, 475, 886 P.2d 138 (1994)).
Id. at 155.
Id. (emphasis in original).
Id. (citing In re Post Sentencing Review of Charles, 135 Wn.2d 239, 254, 955 P.2d 798 (1998)).
Here, Shadday was convicted of three counts of delivery of methamphetamine (counts I-III) and one count of possession of methamphetamine (count IV). The jury found by special verdict that the three delivery counts were committed within 1,000 feet of a school bus stop. The court calculated the standard range for counts I, II, and III at 20 to 60 months, to run concurrently. In addition, each count carried a 24-month enhancement for the school bus stop violation, to run consecutively. The court imposed a DOSA sentence under RCW 9.94A.660. It ordered Shadday to serve 56 months in total confinement for counts I-III, to be served concurrently, and 56 months on community custody.
The State challenges this sentence, arguing that under DOSA, "one-half of the midpoint of the standard sentence range" does not mean "one-half of the midpoint of the standard range as increased by any enhancements." Rather, the State maintains that enhancements under RCW 9.94A.533(6) must be added after the sentencing court has followed the requirements of DOSA. For the following reasons, we reject the State's arguments.
Brief of Respondent at 16.
Id. at 16-17.
The State's contention conflicts with the plain language of the first sentence of the former statute and Gutierrez. Former RCW 9.94A.533(6) provides that an additional 24 months "shall be added to the standard sentence range " for drug violations committed within 1,000 feet of a school bus route stop. Former RCW 9.94A.660(5) provides that the prison-based alternative under DOSA will include a period in total confinement "for one-half of the midpoint of the standard sentence range or twelve months, whichever is greater." The SRA defines "standard sentence range" as "the sentencing court's discretionary range in imposing a nonappealable sentence." As recognized in Gutierrez, "the enhanced range is considered a standard range term." Given the legislature's consistent use of the phrase "standard sentence range" in both provisions, it is clear that the "standard sentence range" for purposes of calculating a DOSA sentence includes any enhancements "to the standard sentence range" made under RCW 9.94A.533(6).
(Emphasis added); RCW 69.50.435.
(Emphasis added.)
Former RCW 9.94A.030(44) (2006).
Gutierrez, 146 Wn. App. at 155.
The State focuses on the second sentence of former RCW 9.94A.533(6), which states, "All enhancements under this subsection shall run consecutively to all other sentencing provisions." The State argues that this provision requires a sentencing court to first calculate a sentence following the requirements of DOSA and then add the 24-month enhancement(s) to the DOSA prison term. Such a reading directly conflicts with the plain language of the first sentence of the enhancement, rendering it meaningless. That reading also violates a cardinal principle of construction, to discern legislative intent first from all of the words of the statute. We decline to violate that principle.
Brief of Respondent at 16-17.
Campbell Gwinn, 146 Wn.2d at 10-12.
The better view was expressed by Division Three in Gutierrez, which addressed the second sentence of RCW 9.94A.533(6) on which the State principally relies here. The court recognized that the legislature added the second sentence in 2006 with the acknowledged purpose of overturning the supreme court's decision in State v. Jacobs. There, the supreme court concluded that it was unclear if the former version of RCW 9.94A.533(6) required multiple drug zone enhancements to be served concurrently or consecutively. Applying the rule of lenity, the supreme court directed the trial court to add only 24 months to the defendant's base range on resentencing.
154 Wn.2d 596, 115 P.3d 281 (2005); Gutierrez, 146 Wn. App. at 155-56 (citing Final B. Rep. on Engrossed Second Substitute S.B. 6239, 59th Leg., Reg. Sess., at 4 (Wash. 2006); Engrossed Second Substitute S.B. 6239, at 6-7, 59th Leg., Reg. Sess. (Wash. 2006); H.B. Rep. on Second Substitute H.B. 6239, 59th Leg., Reg. Sess., at 7, 13-14 (Wash. 2006); House Criminal Justice Corrections Comm., H.B. Analysis on Engrossed Second Substitute S.B. 6239, at 6-7, 59th Leg., Reg. Sess. (Wash. 2006)).
Gutierrez, 146 Wn. App. at 156.
Id. (citing Jacobs, 154 Wn.2d at 602-04).
Based on this history, the court in Gutierrez observed:
The addition of the stacking provision in the 2006 legislation to change the Jacobs result did not change the command of the first sentence of subsection 533(6) that enhancements are to be added to the base range. The amendment permitted multiple enhancements and directed that they run consecutively. It did not change the way that enhanced sentences are calculated.
Id.
We agree with the Gutierrez decision in that it properly harmonizes the two sentences of the statute before us. There is also an additional reason why we conclude that the analysis in Gutierrez is correct.
The language in former subsection 533(6) is different from that used in the firearm and deadly weapon enhancement statues. "`[W]here the legislature uses certain statutory language in one instance and different language in another, there is a difference in legislative intent.'"
In re Det. of Swanson, 115 Wn.2d 21, 27, 804 P.2d 1 (1990) (quoting United Parcel Serv., Inc. v. Dep't of Revenue, 102 Wn.2d 355, 362, 687 P.2d 186 (1984)).
Former RCW 9.94A.533(3)(e) provides,
Notwithstanding any other provision of law, all firearm enhancements under this section are mandatory, shall be served in total confinement, and shall run consecutively to all other sentencing provisions, including other firearm or deadly weapon enhancements, for all offenses sentenced under this chapter. . . .
(Emphasis added.)
Former RCW 9.94A.533(4)(e) provides,
Notwithstanding any other provision of law, all deadly weapon enhancements under this section are mandatory, shall be served in total confinement, and shall run consecutively to all other sentencing provisions, including other firearm or deadly weapon enhancements, for all offenses sentenced under this chapter. . . .
(Emphasis added.)
The school bus stop enhancement does not contain a similar requirement that the enhancement be served "in total confinement." Yet the effect of accepting the State's argument in this case would be to require that Shadday serve his time in total confinement rather than one-half in total confinement and one-half in community custody. Such a result would be clearly contrary to the legislature's intent, as expressed in the statute. Accordingly, we reject the State's argument. The trial court correctly applied the statute in sentencing Shadday.
We affirm the judgment and sentence.
WE CONCUR.