Opinion
No. 55868-4-I.
May 22, 2006.
Appeal from a judgment of the Superior Court for King County, No. 04-1-14158-0, Sharon S. Armstrong, J., entered February 28, 2005.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
David Bruce Koch, Nielson Broman Koch PLLC, 1908 E Madison St, Seattle, WA 98122-2842.
Counsel for Respondent(s), Deborah A. Dwyer, King Co Pros Ofc/Appellate Unit, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Affirmed in part and remanded by unpublished per curiam opinion.
Contrary to the contentions in Jaquel Williams' Statement of Additional Grounds for Review, the evidence was sufficient to establish that he possessed cocaine, the deputy prosecutor did not commit misconduct, the State did not violate any duty to disclose evidence, and Williams was not denied effective assistance of counsel. But the sentencing court miscalculated Williams' offender score for felony violation of a court order. Accordingly, we affirm Williams' convictions for violation of a court order and possession of cocaine, and remand solely for resentencing on the charge of violating a court order.
Jaquel Williams was charged with one count of domestic violence felony violation of a court order and one count of possession of cocaine following an altercation with his former girlfriend. At trial, Seattle Police Officers Ronald Campbell and Scott Elliott testified that they were on routine patrol during the early morning hours of November 26, 2004. The officers had just parked their car near 12th and Madison Street when they heard a woman scream nearby and noticed a man and woman who appeared to be arguing. The officers saw the man, later identified as appellant Williams, pick up a woman, later identified as Sirithia Binns, shake her back and forth, and then "throw" her a short distance. The officers could not see how the woman landed because their view was blocked by the corner of a building.
The officers immediately contacted the woman, who was very upset and crying and told the officers, "He took my keys." As the officers approached, Williams immediately started walking away. After talking briefly with Binns, the officers followed Williams and stopped him a short distance away. As the officers got out of their patrol car, Williams bent down behind the rear corner of a parked car. Although the officers could not see Williams' hands, he appeared to be moving them behind the car. After arresting Williams, the officers returned to the area behind the car and found a plastic baggie containing cocaine.
Binns testified that she and Williams had had an "off and on" relationship for nearly six years and that the couple had two children. She acknowledged that even though Williams was the subject of a no contact order, she and Williams had spent the previous day — Thanksgiving Day — together. In the evening, the two went to a local club, where both had consumed several drinks. As the two left the club, Binns and Williams got into an argument, and Williams choked her until she "[felt] like I was going to die." The next thing Binns remembered was standing in the middle of the street with Williams. Williams was holding her from behind "up in the air, and all of a sudden he just let me go and he walked off." Binns did not remember being thrown down or falling. Binns acknowledged she did not tell the truth when she gave a statement to police several days later because she did not want to get Williams in trouble.
Williams testified in his own defense. He acknowledged he had violated the no contact order by spending Thanksgiving Day with Binns and going with her to the club. He claimed that Binns had started arguing with him because he had not supported her during an incident at the club and that they had then left in her car. A short distance away, Binns stopped the car in the middle of the street and got out. When Williams followed, Binns continued yelling at him and started "flailing her arms."
At this point, Williams noticed the police car parked nearby and decided he should leave because of the no contact order. He flatly denied choking or otherwise assaulting Binns.
The jury found Williams guilty as charged, and he was sentenced to concurrent standard-range terms.
DECISION
On appeal, Williams contends the sentencing court violated his Sixth Amendment and due process rights under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), when it added one point to his offender scores because he committed the current offenses while on community custody. Although the additional point did not affect the standard range for Williams' possession conviction, the standard range for violation of a court order increased from 41-54 months to 51-68 months. Consistent with both parties' recommendations, the court imposed a low-end term of 51 months.
In State v. Jones, 126 Wn. App. 136, 144, 107 P.3d 755, review granted, 155 Wn.2d 1017 (2005), we held that whether the defendant was on community custody at the time of the current offense "is a factual determination subject to the Sixth Amendment requirement that a jury make the determination beyond a reasonable doubt." Because the community custody determination increased not only Williams' offender score, but the standard range as well, the judicial finding had the effect of increasing the statutory maximum sentence, in violation of Blakely. See Jones, 126 Wn. App. at 140.
The State argues that Jones does not apply in this case because the 51-month term imposed also falls within the standard range calculated without the community custody point. But this contention is inconsistent with the analysis in Jones, which identified the increase in "the applicable standard range" as the relevant factor for determining the statutory maximum. Jones, 126 Wn. App. at 140.
The State also contends the alleged error in this case is not "manifest" because there is "no possibility" that Williams was not still on community custody when he committed the current offenses. Consequently, the State maintains that Williams cannot raise the error for the first time on appeal. See RAP 2.5(a). But this contention is essentially a claim that the error is harmless. Under Washington law, a Blakely violation is not harmless, and Williams is entitled to be resentenced. See State v. Hughes, 154 Wn.2d 118, 156, 110 P.3d 192 (2005).
Williams has filed a Statement of Additional Grounds for Review as permitted by RAP 10.10. He first contends the evidence was insufficient to establish that he possessed the cocaine found after his arrest. The jury in this case was instructed that actual possession "occurs when the item is in the actual physical custody of the person charged with possession." Instruction No. 14; see WPIC 50.03.
The State's evidence established that Williams attempted to leave immediately upon seeing the police officers. When stopped a short distance away, Williams first bent down behind a parked car and made movements that indicated he was doing something with his hands. After arresting Williams, the officers found a plastic baggie of cocaine near the spot where he had been bending down. Both officers testified that they saw no one else in the area. Viewed in the light most favorable to the State, the foregoing circumstances were sufficient to permit the trier of fact to find beyond a reasonable doubt that Williams had actual physical custody of the cocaine and not merely a momentary passing control. See State v. Staley, 123 Wn.2d 794, 798, 872 P.2d 502 (1994). Williams points to the fact that the officers were unable to see his hands behind the car and suggests there was evidence that another person was in the area. He also argues that the State failed to test the plastic baggie for fingerprints. But these circumstances affect the weight to be accorded the State's evidence; they do not undermine the sufficiency of the evidence to support Williams' conviction. This court cannot review credibility determinations on appeal. See State v. Lubers, 81 Wn. App. 614, 619, 915 P.2d 1157 (1996).
Williams next contends the deputy prosecutor committed reversible misconduct by communicating his personal opinion and vouching for the credibility of the State's witnesses. But a review of the record shows that each of the challenged comments fell within the wide latitude afforded the deputy prosecutor to draw and express reasonable inferences from the evidence. See State v. Brown, 132 Wn.2d 529, 566, 940 P.2d 546 (1997). The fact that Williams would draw different inferences from the same evidence does not mean the deputy prosecutor committed misconduct.
Williams next challenges the State's failure to test the plastic baggie for fingerprints. But Williams has not identified any authority suggesting the State had an obligation to conduct such a test. Williams also appears to suggest that a fingerprint test would have been favorable to his defense. But such a claim rests on matters outside the record and therefore cannot be considered on appeal. See State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
Williams next contends he was denied effective assistance of counsel. He asserts, among other things, that counsel employed an inept investigator, failed to object to the deputy prosecutor's leading questions, and failed to cross-examine Binns effectively. In order to establish ineffective assistance of counsel, Williams must demonstrate both (1) that his attorney's representation fell below an objective standard of reasonableness, and (2) resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. McFarland, 127 Wn.2d at 334-35; Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
The crux of Williams' arguments appears to be that defense counsel did not challenge Binns' credibility sufficiently to ensure a defense verdict. But a review of the record demonstrates that counsel fully and effectively cross-examined Binns about the apparent discrepancies in her testimony and her prior inconsistent statements. The fact that the jury apparently found Binns' trial testimony credible does not support an inference that defense counsel's performance was deficient.
Finally, Williams contends that his offender score was miscalculated because the sentencing court erred either in determining that prior convictions did not constitute the "same criminal conduct" or in failing to exercise its discretion to make such a determination. See RCW 9.94A.525(5)(a)(i); State v. Lara, 66 Wn. App. 927, 834 P.2d 70 (1992). But Williams has not identified or even alleged any facts in the record that would support his claim of error. Accordingly, his allegations are too conclusory to permit appellate review. See State v. Marintorres, 93 Wn. App. 442, 452, 969 P.2d 501 (1999); RAP 10.10(c).
Williams' convictions are affirmed. We remand only for resentencing on the charge of felony violation of a court order.
COX, DWYER and BECKER, JJ.