Opinion
No. 29950-0-II.
Filed: April 13, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Mason County. Docket No: 95-1-00365-6. Judgment or order under review. Date filed: 02/06/2003. Judge signing: Hon. James B II Sawyer.
Counsel for Appellant(s), Peter B. Tiller, Rock Pine, PO Box 58, Centralia, WA 98531-0058.
Counsel for Respondent(s), Monty Dale Cobb, Mason County Prosecutors Office, 521 N 4th Ave Ste a, PO Box 639, Shelton, WA 98584.
Terry L. Stephens appeals her standard range sentence for her 1995 delivery of a controlled substance. She argues that (1) she received ineffective assistance of counsel when her attorney failed to request drug court or a DOSA (Drug Offender Sentencing Alternative) at her sentencing hearing; (2) Mason County's lack of a drug court denied her equal protection of the law; and (3) the evidence is insufficient to support her underlying conviction. We disagree and affirm.
FACTS
Stephens was convicted by a jury on April 12, 1996 of one count of delivery of a controlled substance (Count I), with a school zone sentencing enhancement, and one count of delivery of a controlled substance to a minor (Count II), based on actions that occurred on October 12, 1995. She failed to appear for sentencing, was eventually arrested in California, and was sentenced in Mason County on October 11, 2001. She appealed.
We dismissed Count II and the school zone sentencing enhancement on appeal and remanded for resentencing. State v. Stephens, noted at 114 Wn. App. 1038, 2002 WL 31521488. At Stephens' resentencing, defense counsel argued that Stephens should receive a midrange sentence, with 19 months credit for time served. Defense counsel did not argue, and the trial court did not consider, Stephens' eligibility for drug court or for DOSA sentencing. On February 6, 2003, the trial court resentenced Stephens to 27 months confinement, the high end of the standard range for delivery of a controlled substance. Stephens appeals her resentence.
ANALYSIS I. Ineffective Assistance of Counsel
Stephens argues that she was denied effective assistance of counsel because her attorney did not request a drug offender sentencing alternative (DOSA) under RCW 2.28.170, the drug court statute. The State responds that (1) RCW 2.28.170 is not applicable to DOSA; and (2) Stephens did not receive ineffective assistance of counsel because DOSA was not available in 1995 when Stephens committed the crimes. We agree with the State that Stephens did not receive ineffective assistance of counsel at her 2003 resentencing.
At the outset, we note that drug court and DOSA are different, though related, processes established by different statutes at different times. Moreover, RCW 9.94A.345 provides that `Any sentence imposed under this chapter shall be determined in accordance with the law in effect when the current offense was committed.' RCW 9.94A.345. This statute applies to sentencing alternatives as well. RCW 9.94A.345 Intent 2000 c 26.
`RCW 9.94A.345 is also intended to clarify the applicability of statutes creating new sentencing alternatives or modifying the availability of existing alternatives.' RCW 9.94A.345 Intent 2000 c 26.
A. Drug Court (RCW 2.28.170, effective 1999)
The Legislature enacted RCW 2.28.170 in 1999. It authorizes counties to establish drug courts:
(1) Counties may establish and operate drug courts.
(2) For the purposes of this section, `drug court' means a court that has special calendars or dockets designed to achieve a reduction in recidivism and substance abuse among nonviolent, substance abusing offenders by increasing their likelihood for successful rehabilitation through early, continuous, and intense judicially supervised treatment; mandatory periodic drug testing; and the use of appropriate sanctions and other rehabilitation services.
RCW 2.28.170.
To the extent that Stephens' ineffective-assistance-of-counsel argument rests on counsel's failure to recommend drug court, her argument lacks merit. Stephens committed her crimes in 1995, at a time when drug courts did not exist as a sentencing option. Thus, even though Stephens was resentenced in 2003, she was not denied effective assistance of counsel when counsel failed to recommend an inapplicable sentencing option.
B. DOSA (Former RCW 9.94A.120(6)(1995))
To the extent that Stephens' ineffective-assistance-of-counsel argument rests on counsel's failure to recommend DOSA, her argument fails. First, contrary to the State's assertion, DOSA did exist in 1995 when Stephens committed her crime. State v. Kane, 101 Wn. App. 607, 609, 5 P.3d 741 (2000). Former RCW 9.94A.120(6) (1995), in effect at the time of Stephens' crime, authorized courts to impose substance abuse treatment and a reduced sentence for drug offenders that met statutorily-defined criteria. RCW 9.94A.120(6) was available as a sentencing alternative at the time Stephens committed her crimes.
RCW 9.94A.120(6) was recodified as RCW 9.94A.505 by Laws of 2001, ch. 10, sec. 6. RCW 9.94A.505 references RCW 9.94A.660, the current Drug Offender Sentencing Alternative statute.
Nonetheless, Stephens fails to establish ineffective assistance of counsel. To prove a claim of ineffective assistance, a defendant must show that counsel's performance was deficient and that the deficient performance prejudiced her defense. State v. Bowerman, 115 Wn.2d 794, 808, 802 P.2d 116 (1990) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Prejudice is established if there is a reasonable probability that, except for counsel's errors, the result of the proceeding would have been different. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Such is not the case here.
A trial court has discretion to grant a DOSA sentence if certain qualifications are met. RCW 9.94A.120(6). Even where those requirements are met, however, the decision to authorize a DOSA sentence rests solely in the trial court's discretion. See State v. Conners, 90 Wn. App. 48, 53, 950 P.2d 519, review denied, 136 Wn.2d 1004 (1998).
RCW 9.94A.120(6) states that a defendant is eligible for a DOSA sentence if
(i) The offender is convicted of the manufacture, delivery, or possession with intent to manufacture or deliver a controlled substance classified in Schedule I or II that is a narcotic drug or a felony that is, under chapter 9A.28 RCW or RCW 69.50.407, a criminal attempt, criminal solicitation, or criminal conspiracy to commit such crimes, and the violation does not involve a sentence enhancement under RCW 9.94A.310(3) or (4);
(ii) The offender has no prior convictions for a felony in this state, another state, or the United States; and
(iii) 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.
Stephens does not show that there was a reasonable probability that the trial court would have given her a DOSA sentence even if counsel had raised it; thus, she fails to establish prejudice. Her failure to show prejudice defeats her ineffective assistance of counsel argument. Petition of Riley, 122 Wn.2d 772, 780, 863 P.2d 554 (1993) (`If the prejudice prong is not proved by defendant, then the court need not proceed to an examination of the performance prong.').
II. Equal Protection
Stephens next argues that Mason County's failure to provide a drug court option violated her right to equal protection under the law. Br. of Appellant at 5. This argument also fails. We recently rejected this argument in State v. Little, 116 Wn. App. 346, 66 P.3d 1099, review denied, 150 Wn.2d 1019 (2003), which we decline to reconsider and to reverse here.
`Stephens' argument heading in Appellant's Brief at page 5 contends that Mason County's failure `to offer DOSA violates an applicant's right to equal protection.' The substance of her argument that follows in her brief, however, focuses on Mason County's lack of a drug court. Accordingly, we focus on the latter point.
Moreover, the record does not suggest that Mason County does not offer DOSA as a sentencing alternative for drug offenders convicted presently or in 1995 when she committed her crime.
III. Sufficiency of Evidence
In her Statement of Additional Grounds for Review, Stephens alleges:
I was found not guilty of 2 charges but yet I[']m told I[']m found guilty on one charge even though the detective stated that no I did not deliver drugs to him could you please consider all the facts including the transcripts and please take all the facts into consideration this is all I ask Thank you.
Stephens was initially convicted by a jury of two counts: Count I, delivery of a controlled substance, with a corresponding school zone sentencing enhancement; and Count II, involving a minor in drug dealing. On appeal of both convictions, we reversed and dismissed Count II, involving a minor in drug dealing, and the school zone sentencing enhancement of Count I, for lack of evidence. Stephens, 2002 WL 31521488, at 2-3. We otherwise affirmed Count I, delivery of a controlled substance. Stephens, 2002 WL 31521488 at 3.
Stephens now appears to challenge the sufficiency of evidence supporting the remaining count of delivery of a controlled substance. She argues that the detective testified that `no I did not deliver drugs to him.' Statement of Additional Grounds for Review.
The testimony at trial established that Stephens did not deliver drugs to the detective. Stephens, 2002 WL 31521488 at 1. Rather, she delivered drugs to her nephew, who then delivered the drugs to a confidential informant. Stephens, 2002 WL 31521488 at 1. The evidence thus established that Stephens directly participated in the crime of delivery of a controlled substance, even if she did not hand the drugs directly to the detective. Stephens, 2002 WL 31521488 at 3. Accordingly, her argument fails.
Affirmed.
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.
MORGAN, A.C.J., and HOUGHTON, J., concur.