STATE v. HUFF (2003)

PART PUBLISHED OPINION

Bernard Huff appeals his prison sentence for three counts of illegal sale of cocaine.   He argues that (1)  his sentence was based on an offender score that incorrectly included a washed-out Illinois conviction;  and (2) ineffective defense counsel failed to raise the “wash out” issue and to request an exceptional sentence downward.   He raises additional issues in his Statement of Additional Grounds for Review, including illegal seizure and insufficient evidence.

We hold that because the judgment and sentence does not show on its face that the Illinois conviction “washed out” under RCW 9.94A.360(2),¹ the trial court was entitled to rely on Huff's stipulation in computing his offender score and in sentencing Huff, and the trial court was not required to inquire further sua sponte. We affirm.

FACTS

I. Three Controlled Sales of Cocaine

On three separate occasions, Huff sold cocaine to a confidential informant under surveillance of law enforcement.   He sold approximately 3 grams for $200 on October 16, 2001;  1.6 grams for $200 on October 22, 2001;  and 5 grams for $400 on October 25, 2001.   The police did not arrest Huff until after the third transaction because they were attempting to gain information for a warrant to search Huff's residence.

Before each of the three controlled buys, police searched the informant and his vehicle and gave him pre-recorded “buy” money.   They fitted him with a wire for audio recording.   Police officers observed each of the three transactions.   The first buy was also video taped.

When the police ultimately arrested Huff, they found additional cocaine and the buy money in his possession.

II. Procedure

The State charged Huff with three counts of unlawful delivery of a controlled substance and one count of unlawful  possession of a controlled substance with intent to deliver.   When he failed to appear for his jury trial on January 22, 2002, the State amended the information to add one count of bail jumping.

Huff waived his right to a jury trial.   The trial court found him guilty on all counts and entered findings of fact and conclusions of law.

At his sentencing hearing, Huff initially challenged an Illinois conviction for manufacturing a controlled substance (marijuana) and demanded that the State meet its burden to prove the conviction by a preponderance of the evidence.   The trial court agreed and prepared to reschedule the sentencing hearing for later that week in order to allow the State time to obtain a certified copy of the Illinois judgment and sentence.   But Huff personally objected to waiting a few days for the Illinois judgment and sentence.   Instead, Huff advised the court that he wished to stipulate to the Illinois conviction so that he could be sentenced that day.

Huff, his counsel, and the prosecutor then signed a typed stipulation, which stated that (1) the Illinois crime occurred on February 17, 1989;  (2) it was equivalent to a class C felony in Washington and counted as three points toward his offender score;  (3) none of his prior convictions listed in the stipulation had “ ‘washed out’ under RCW 9.94A.360(2)”;  (4) the criminal history and “scoring” listed in the stipulation were “correct”;  and (5) his offender score was, therefore, also “correct.”   The stipulation did not provide the dates of Huff's conviction, sentence, incarceration, or release from confinement for the Illinois conviction or the length of his Illinois sentence.   The next conviction noted after the 1989 crime was Huff's sentence in December 1996 for unlawful possession of a controlled substance, also a class C felony.

Huff's offender score was 15 for the drug-related convictions and nine for the bail-jumping conviction.   The standard sentencing ranges were 108-144 months for the drug-related convictions and 51-60 months for the bail jumping.

 During the sentencing hearing, the State argued that the bail-jumping sentence should run consecutively to the drug offense sentences and that Huff should receive a high-end standard-range sentence.   Huff argued that the sentences should run concurrently because (1) “the officers appeared to deliberately stack the offenses to boost the offender score”;  and (2) if the police had arrested Huff after the first drug buy, his offender score would have been lower.   The State countered that no deliberate stacking had occurred and that the officers were merely trying to gather information for a search warrant.

The court sentenced Huff to 144 months on each of the drug counts and to 60 months on the bail-jumping count, all sentences to run concurrently, for a total of 144 months confinement.

ANALYSIS

I. Offender Score Calculation

In determining Huff's offender score and sentence, the trial court considered Huff's explicit stipulation that his conviction for a 1989 Illinois class C felony had not “washed out” under RCW 9.94A.360(2).  RCW 9.94A.360(2) was recodified in 2001 as RCW 9.94A.525(2).²  RCW 9.94A.525(2) provides in pertinent part:

Class C prior felony convictions other than sex offenses shall not be included in the offender score if, since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender had spent five consecutive years in the community without committing any crime that subsequently results in a conviction.

In spite of his stipulation, Huff now argues that we should remand to the trial court to inquire further about his  Illinois conviction because “the record is not entirely clear” whether he spent five crime-free years between release from his 1989 Illinois crime and commission of the Pierce County crime that resulted in a December 1996 sentence.   We disagree.

A. Appealability

We first address whether Huff can appeal his sentence despite his stipulation, failure to raise this claimed error below, and rejection of the trial court's proposal to postpone his sentencing for production of Huff's Illinois judgment and sentence.

In In re Personal Restraint of Goodwin, our Supreme Court held that a defendant cannot agree to a punishment that exceeds a sentencing court's statutory authority and, thus, cannot waive a challenge to such a sentence.   146 Wash.2d 861, 872, 50 P.3d 618 (2002).   The Court further held that a claimed error involving a stipulation to incorrect facts or a discretionary offender-score calculation is not subject to direct appeal.  Goodwin, 146 Wash.2d at 874, 50 P.3d 618.

Huff's claimed error involves an explicit stipulation to allegedly unknown facts about his Illinois conviction and, inferentially, whether he spent five crime-free years before his next conviction.   As Huff concedes, “[T]his record does not show precisely when he was sentenced on his 1989 Illinois conviction, or the length of the sentence and release from confinement (if any).”   Br. of App. at 10.   Thus, Huff's stipulation that none of his prior convictions washed out, coupled with his refusal to postpone the sentencing hearing to obtain documentation of his Illinois conviction, operated as the functional equivalent of an express stipulation that he did not spend five crime-free years in the community between release from his Illinois conviction and commission of his next class C felony.³  Huff's stipulation supplied the necessary “facts in the record” to support the  trial court's offender score calculation and sentencing.  State v. Ford, 137 Wash.2d 472, 482, 973 P.2d 452 (1999), review denied, 142 Wash.2d 1003, 11 P.3d 824 (2000).⁴

In refusing the trial court's proposal to postpone the sentencing to allow the State to obtain a copy of the Illinois judgment and sentence, Huff not only agreed to the accuracy of the facts recited and implied in the stipulation, but he also effectively fixed the record that he now claims is deficient.   The record before us does not contradict his stipulation:  No documents show the pertinent dates for his Illinois conviction or show that he did, in fact, spend five crime-free years after release from his Illinois confinement.   Neither the trial court nor we can, or should, presume from the mere sequence of stipulated dates that Huff's Illinois conviction washed out.

Huff (1) requested the stipulation in lieu of additional proof, after rebuffing the opportunity for additional documentation;  (2) was represented by counsel;  and (3) signed the detailed stipulation himself.   Under these circumstances, the trial court properly relied on the parties' stipulation.⁵  Thus, under Goodwin, Huff cannot appeal his  stipulated offender score and sentence directly.⁶  Accordingly, we affirm his sentence.

A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

II. Effective Assistance of Counsel

Huff argues that he was denied effective assistance of counsel at sentencing because his counsel failed to argue that his Illinois conviction “washed out” and to request an exceptional sentence downward.   Huff also argues, by way of a Statement of Additional Grounds for Review, that defense counsel was deficient both before and during trial.   The record does not support these assertions.

A claim of ineffective assistance of counsel requires a showing that (1) counsel's performance was deficient, and (2) the deficient performance prejudiced the defendant.  State v. Thomas, 109 Wash.2d 222, 225-26, 743 P.2d 816 (1987).   Deficient performance occurs when counsel's performance falls below an objective standard of reasonableness.  State v. Stenson, 132 Wash.2d 668, 705, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008, 118 S.Ct. 1193, 140 L.Ed.2d 323 (1998).   Prejudice occurs where, but for the deficient performance, the outcome would have differed.   In re the Personal Restraint of Pirtle, 136 Wash.2d 467, 487, 965 P.2d 593 (1998).

We begin our analysis with a strong presumption that counsel was effective.   Strickland v. Washington, 466 U.S. 668, 689-90, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);  State v. McFarland, 127 Wash.2d 322, 335, 899 P.2d 1251 (1995).

A. Failure To Raise “Wash Out” of Illinois Conviction

As we explain above, neither Huff's judgment and sentence nor any other part of the record show that his prior Illinois conviction washed out or that his offender score was incorrect.   In other words, Huff fails to show that his counsel made an error.

Moreover, defense counsel initially objected to the State's inclusion of Huff's Illinois conviction in calculating his offender score and demanded that the State prove the conviction by a preponderance of evidence.   In response, the trial court prepared to postpone Huff's sentencing until later in the week, at which time the State would produce a certified copy of the Illinois judgment and sentence.   But Huff overrode his attorney and the court when he insisted on being sentenced immediately and stipulated to the few known facts about the conviction, including that it had not washed out.

Contrary to Huff's contentions, the record shows effective, not deficient, representation by counsel with respect to the stipulation.7

B. Failure to Seek Exceptional Downward Sentence

Huff next argues that counsel should have requested an exceptional sentence downward because the amounts of cocaine he sold were relatively small and because he sold them over a short period of time to the same person.

Huff is correct that the trial court, in its discretion, could have considered whether his standard range sentence was “clearly excessive” and granted an exceptional sentence downward based on a “nonexistent, trivial or trifling” difference between the effect of the first controlled drug buy and the cumulative effect of subsequent small buys within a 10-day period.  State v. Sanchez, 69 Wash.App. 255, 261-62, 848 P.2d 208, review denied, 122 Wash.2d 1007, 859 P.2d 604 (1993);  RCW 9.94A.535(1)(g).

Nonetheless, defense counsel's failure to request a downward exceptional sentence on this ground does not establish counsel's ineffectiveness because Huff fails to show prejudice.   Nothing in the record supports Huff's contention that had defense counsel cited Sanchez, the court might have imposed an exceptional sentence downward.

On the contrary, defense counsel did request that the trial court impose a lighter sentence:  He argued that if the police had arrested Huff after the first drug sale, as they could have done, Huff's offender score would have been lower and, therefore, his standard sentencing range would have been lower.   Despite this argument, the trial court exercised its discretion by both refusing to use the low end of the standard sentencing range and electing instead to impose a sentence at the high end of the standard range.   Thus, the record clearly shows that the trial court was not at all inclined to give Huff a lighter sentence and defense counsel's request for an exceptional sentence downward would have been futile.

Huff has failed to satisfy the prejudice prong of the test for ineffective assistance of counsel.   There is nothing in the record to indicate that the trial court would have exercised its discretion to impose a sentence below the standard range had it been aware of its authority to do so.8

C. Failures Before and After Trial

Huff further argues that counsel rendered ineffective assistance by failing (1) to request CrR 3.5 and CrR 3.6 hearings to suppress audio and video taped information;  (2) to object to cross examination of the confidential informant;  (3) to investigate the crimes charged;  (4) to move to suppress evidence of police procedures;  (5) to inform the trial court that the informant and Huff were in the habit of buying and selling antiques;  (6) to impeach the confidential informant;  and (7) to request a new trial.   None of these claims support Huff's ineffective assistance argument.

First, Huff fails to establish that a CrR 3.5 hearing was warranted.   There is no indication in his brief, his Statement of Additional Grounds for Review, or in the record that the State offered his statements into evidence.   Thus, we cannot determine whether it was error not to request such a hearing.

Second, Huff argues that counsel should have requested a CrR 3.6 hearing.   Failure to conduct a pretrial suppression hearing does not necessarily show deficient representation.  State v. Klinger, 96 Wash.App. 619, 623, 980 P.2d 282 (1999).   The defendant has the burden of demonstrating that there was no legitimate strategic or tactical rationale for the attorney's failure to request such a hearing.  Klinger, 96 Wash.App. at 623, 980 P.2d 282.   But Huff fails to indicate what specific evidence should have been excluded or why.

Third, Huff argues that counsel was deficient in failing to object to cross examination.   In support of this argument, he cites the verbatim transcript at pages 315-316.   But these pages do not support his argument.   Moreover, Huff fails to indicate specifically the objection that counsel should have made or how such alleged failure prejudiced him.   And the record does not show that counsel's failure to object was not a legitimate trial strategy or tactic.   State v. Hendrickson, 129 Wash.2d 61, 77-78, 917 P.2d 563 (1996).

Fourth, Huff argues that counsel failed to investigate crimes charged properly.   Again, he fails to support this allegation with facts or to show how counsel's alleged failure to investigate prejudiced him.

Fifth, Huff argues that counsel failed to move to suppress evidence of police procedures.   But he does not indicate what procedures are relevant to his argument or how their admission into evidence prejudiced him.   If his focus is his warrantless-arrest argument in his Statement of Additional Grounds for Review, the law does not support his argument.  RCW 10.31.100 provides, “A police officer having probable cause to believe that a person has committed or is committing a felony shall have the authority to arrest the person without a warrant.”   Here, the police had probable cause to believe that Huff had committed a felony because on three separate occasions, they had arranged, tape-recorded, and observed Huff selling cocaine to a civilian operative, who had been searched before the buys and given pre-recorded buy money.   Therefore, police were authorized under RCW 10.31.100 to arrest Huff without a warrant, and defense counsel was not deficient in failing to raise this futile issue.

Sixth, Huff argues that counsel did not bring to the trial court's attention that he and the confidential informant were in the business of buying and selling antiques.   But Huff does not explain the relevance of this argument or how it would have influenced the outcome of his case.   Moreover, he indicates that the trial court was already aware of this fact through testimony.

Seventh, Huff argues that defense counsel failed to impeach the confidential informant.   But he fails to state grounds for such impeachment or how it would have influenced the trial outcome.

Lastly, Huff argues that counsel should have requested a new trial.   But he does not state on what grounds a new trial would have been warranted.

Huff has failed to demonstrate deficient performance by his defense counsel or prejudice flowing from such alleged deficiencies.   Accordingly, his ineffective assistance of counsel claim fails.

III. Sufficiency of Evidence

Huff argues that there was insufficient evidence to convict him because there was no proof that he sold drugs to the informant, and the police did not personally observe the sales.   Additionally, Huff argues that the informant owed him money for antiques and was setting him up to avoid paying him back.

Where a criminal defendant challenges the sufficiency of the evidence in a criminal case, we draw all reasonable inferences from the evidence in favor of the State and interpret them strongly against the defendant.  State v. Ward, 148 Wash.2d 803, 815, 64 P.3d 640 (2003).   Evidence is sufficient to support a conviction if, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt.  State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992).   Circumstantial and direct evidence are equally reliable.  State v. Delmarter, 94 Wash.2d 634, 638, 618 P.2d 99 (1980).   The trier of fact determines credibility.  State v. Casbeer, 48 Wash.App. 539, 542, 740 P.2d 335 (1987).

To convict Huff of unlawful delivery of a controlled substance, the State had to prove beyond a reasonable doubt that Huff knowingly delivered a controlled substance.  RCW 69.50.401(a).   Viewing the evidence in the light most favorable to the State, the State met this burden.   Police searched the informant before and after the controlled buys.   Huff met the informant at a pre-arranged place.   The informant paid Huff money in exchange for cocaine.   The police observed the transactions.   Before each transaction, the informant had recorded money and no drugs on his person;  after the transaction, the informant had drugs and Huff had the recorded money. All three transactions were audio taped, and the first transaction was also video taped.   The informant testified at trial about the transactions.   This evidence was sufficient for the trier of fact to find, beyond a reasonable doubt, that Huff delivered cocaine on the three charged occasions.

In his Statement of Additional Grounds for Review, Huff also argues that the evidence established his guilt of the lesser included offense, simple possession of a controlled substance, not unlawful delivery of a controlled substance.   Again, this argument fails.   There was sufficient evidence to find that Huff was guilty of unlawful delivery of a controlled substance.

IV. Prosecutorial Misconduct

Huff further contends that that the prosecutor engaged in misconduct as follows:  “The prosecutor in this case was so quick to judge the petitioner in this case, has introduced evidence that was insufficient, and in doing so created a miscarriage of justice.”   Statement of Additional Grounds for Review at 13.   This statement does not allege any prosecutorial misconduct.   As noted above, the evidence was sufficient to support the judgment.   Because Huff fails to allege specific instances of misconduct, his argument fails.

V. Additional Grounds

Huff also asserts that the trial court committed several reversible errors in (1) making inappropriate comments that indicated bias;  and in (2) allowing the prosecutor to prepare the findings of fact and conclusions of law.   Both arguments lack merit.

First, Huff fails to identify the allegedly inappropriate comments that the trial court made before and during trial.   Although RAP 10.10 does not require Huff to reference the record or to cite legal authority, it does require him to inform the court of the nature of the errors he asserts. 9  We will not search the record absent more specific direction.

Second, Huff contends that it was inappropriate for the trial court to allow the prosecutor to prepare the findings of fact and conclusions of law following the bench trial.   There is no authority to support such a proposition.   Moreover, the trial court read the findings and conclusions and adopted them as its own by interlineating edits and signing the document.   And Huff's attorney approved the document as to form.   There is no indication in the record that the findings of fact and conclusions of law were not the trial court's.   Nor does Huff assert that the document does not accurately reflect the court's ruling.

We find no error and affirm.

FOOTNOTES

1.   Recodified as RCW 9.94A.525(2) by Laws 2001, ch. 10, § 6.

2.   The substance of this statute did not change.   Huff argues that the pre-1995 statute applies, requiring that the defendant had spent five felony-free years, rather than conviction-free years, in the community.   The version of the applicable statute, however, is irrelevant to our analysis.

3.   This is not a case of inadvertent mutual mistake or miscalculation, as was the case in In re Personal Restraint of Call, 144 Wash.2d 315, 326-27, 28 P.3d 709 (2001).

4.   Although the Court does not address stipulations per se in Ford, it does note:Under the SRA, acknowledgment allows the judge to rely on unchallenged facts and information introduced for the purposes of sentencing.   See RCW 9.94A.370(2) (In determining any sentence, the trial court may rely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing.   Acknowledgment includes not objecting to information stated in the presentence reports.) (emphasis added).Ford, 137 Wash.2d at 482-83, 973 P.2d 452.Unlike Ford, Huff's case does not involve “bare assertions by the State unsupported by the evidence.”   137 Wash.2d at 483, 973 P.2d 452.   Here, Huff joined with the State in stipulating to the facts on which the sentencing court relied, thus taking them beyond bare assertions.   Moreover, as we have pointed out earlier, the State and sentencing court were prepared to provide more evidentiary support, which Huff opposed.

5.   In his Statement of Additional Ground for Review, Huff contends that the trial court erred in failing to hold a hearing to determine whether his Illinois conviction should count toward his offender score.   We have already noted that Huff not only failed to request such a hearing, but he also personally refused to postpone his sentencing so that the Illinois conviction could be further investigated and proved.

6.   Huff might seek relief in a personal restraint petition.   The court would then determine (1) whether to apply the invited error doctrine, (2) whether to consider additional evidence demonstrating the requisite crime-free years, and (3) dependent on those facts, whether his Illinois conviction washed out under RCW 9.94A.525(2) or former RCW9.94A.360(2).It appears on the record before us, however, that Huff invited the claimed error, which may preclude his ability to challenge his offender score in a personal restraint petition.   See Call, 144 Wash.2d at 328, 28 P.3d 709, in which the Supreme Court rejected the State's invited error argument and considered Call's petition, noting, “Because there was no apparent affirmative action by Respondent which contributed to the inadvertent error, we conclude he did not invite it.”  Call, 144 Wash.2d at 329, 28 P.3d 709.Here, in contrast, Huff's stipulation and rejection of the opportunity for presentation of a copy of his Illinois judgment and sentence appear to have been “affirmative actions” that contributed to the alleged offender-score error about which he now complains.   But this issue is not before us in this appeal.

FN7.  See State v. Hendrickson, 129 Wash.2d 61, 78, 917 P.2d 563 (1996) (ineffective assistance claim fails if either prong is not met)..  FN7.  See State v. Hendrickson, 129 Wash.2d 61, 78, 917 P.2d 563 (1996) (ineffective assistance claim fails if either prong is not met).

FN8.  This case is distinguishable from State v. McGill, 112 Wash.App. 95, 98-99, 47 P.3d 173 (2002), where the trial court indicated a desire to deviate from the standard sentence range but was unaware of its authority to do so.   Here, in contrast, the court expressed no desire whatsoever to deviate from the standard range.   Rather, the trial court was obviously inclined to impose the high end of the standard range.   Remand is not required where, as here, the reviewing court is convinced that the trial court would impose the same sentence after considering valid factors.   In re Personal Restraint of George, 52 Wash.App. 135, 148-49, 758 P.2d 13 (1988)..  FN8.  This case is distinguishable from State v. McGill, 112 Wash.App. 95, 98-99, 47 P.3d 173 (2002), where the trial court indicated a desire to deviate from the standard sentence range but was unaware of its authority to do so.   Here, in contrast, the court expressed no desire whatsoever to deviate from the standard range.   Rather, the trial court was obviously inclined to impose the high end of the standard range.   Remand is not required where, as here, the reviewing court is convinced that the trial court would impose the same sentence after considering valid factors.   In re Personal Restraint of George, 52 Wash.App. 135, 148-49, 758 P.2d 13 (1988).

FN9. RAP 10.10(c) provides:[T]he appellate court will not consider a defendant/appellant's statement of additional grounds for review if it does not inform the court of the nature and occurrence of alleged errors ․ the appellate court is not obligated to search the record in support of claims made in a defendant/appellant's statement of additional grounds for review..  FN9. RAP 10.10(c) provides:[T]he appellate court will not consider a defendant/appellant's statement of additional grounds for review if it does not inform the court of the nature and occurrence of alleged errors ․ the appellate court is not obligated to search the record in support of claims made in a defendant/appellant's statement of additional grounds for review.

HUNT, C.J.