STATE v. GILES (2006)

PUBLISHED IN PART OPINION

¶ 1 Matthew L. Giles appeals his concurrent standard range sentences for methamphetamine and first degree unlawful firearm possession.   He argues that the trial court improperly increased his sentencing ranges based on a judicial finding that he was subject to community placement when he committed the crimes.

¶ 2 We hold that consistent with Division Three's decision in State v. Hunt, 128 Wash.App. 535, 541-43, 116 P.3d 450 (2005), the trial court did not violate Giles's right to a jury trial when it added a point to his offender score because of his community placement status.¹  Accordingly, we affirm Giles's sentences.

Facts

¶ 3 Although Giles waived his right to a jury trial on the underlying charges, he did not specifically waive a jury determination of factual findings for sentencing purposes.   At that bench trial, the trial court considered a certified copy of Giles's 1996 Mason County judgment and sentence for the crimes of first degree kidnapping and second degree assault.   This 1996 judgment included imposition of a term of community placement.

¶ 4 At sentencing, Giles's counsel agreed that the trial court should add one point to Giles's offender score because Giles was still serving his term of community placement when he committed the current crimes.   Still sitting without a jury, the trial court (1) checked the box on the judgment and sentence indicating that Giles had “committed a current offense while on community placement”;  (2) added one point to Giles's offender score for committing the current crimes while serving a term of community placement;  and (3) calculated Giles's offender score as “4,” with standard sentencing ranges of 36 to 48 months for the firearm conviction and six months and one day to 18 months for the drug conviction.²  Clerk's Papers (CP) at 8-9.   The trial court imposed concurrent sentences of 42 months and 18 months, respectively.

Giles appeals his sentences.

Analysis

¶ 5 Giles argues that the trial court improperly increased his standard sentencing ranges based on a judicial finding that he was subject to community placement at the time he committed the current crimes.³  He contends that (1) the trial court violated his Sixth Amendment right to jury trial by determining that he was serving a term of community placement at the time of the current crimes, without submitting this factual issue to a jury as required by Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004);  and (2) this improper judicial finding increased his offender score, which unconstitutionally increased his standard sentencing ranges, contrary to Blakely, State v. Hughes, 154 Wash.2d 118, 110 P.3d 192 (2005), and State v. Jones, 126 Wash.App. 136, 107 P.3d 755, review granted, No. 76900-1, 155 Wash.2d 1017, 124 P.3d 659 (Wash. Nov. 2, 2005).   Departing from our colleagues' holding in State v. Hochhalter, 131 Wash.App. 506, 518-24, 128 P.3d 104 (2006), we reject these arguments.

¶ 6 Standard sentence ranges are based on the seriousness level of the current offense and on the defendant's offender score.  RCW 9.94A.505(2)(a)(i), .510, .517, .520.   The sentencing court must determine the defendant's offender score based on RCW 9.94A.525 rules, which provide, in pertinent part, that the court must add a point to the score “[i]f the present conviction is for an offense committed while the offender was under community placement.”  RCW 9.94A.525(17).

¶ 7 We recently addressed this issue in Hochhalter, 131 Wash.App. at 518-24, 128 P.3d 104, in which two members of our court applied Blakely and adopted Division One's opinion in Jones.⁴  The Hochhalter majority held that (1) a defendant has a Sixth Amendment right to have a jury determine whether he was on community placement at the time of the current offense;  and (2) absent such a jury finding or a defendant's knowing, voluntary, and intelligent waiver of this right, the trial court cannot use community placement status to add a point to the defendant's offender score.⁵  Hochhalter, 131 Wash.App. at 522-24, 128 P.3d 104.

¶ 8 We respectfully disagree with our learned colleagues in Hochhalter and diverge from their holding here.   Instead, we follow Division Three's rationale in Hunt, 128 Wash.App. at 541-43, 116 P.3d 450, and adopt its holding that (1) Blakely “does not impact Washington's offender scoring system”;  (2) “[j]udicial fact-finding is permitted when establishing recommended standard range sentences,” 128 Wash.App. at 541, 116 P.3d 450;  and (3) Blakely's Sixth Amendment jury-trial right is implicated only when the trial court finds facts to impose an exceptional sentence higher than the standard range sentence.   See Hunt, 128 Wash.App. at 541-42, 116 P.3d 450.   The trial court merely determined Giles's standard sentencing range and did not impose an exceptional sentence, so its actions do not implicate Blakely.

¶ 9 As Division Three recognized in Hunt, Blakely's Sixth Amendment jury-trial right does not entitle a defendant to a jury determination of his prior conviction history.  Hunt, 128 Wash.App. at 542, 116 P.3d 450.   And “[b]ecause the fact of community placement arises out of a prior conviction, constitutional considerations under Blakely do not require that matter to be found by a jury beyond a reasonable doubt.”  Hunt, 128 Wash.App. at 542, 116 P.3d 450.   Here, as in Hunt,

[t]he issue is whether [the defendant's] offender score determination violates the Sixth Amendment jury requirements under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

A jury must determine beyond a reasonable doubt the existence of aggravating factors used to increase a sentence above the presumptive maximum set by the legislature.  Id. at 2536 (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000))).   The court defined “statutory maximum” as “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”  Blakely, 124 S.Ct. at 2537.

Hunt, 128 Wash.App. at 541, 116 P.3d 450 (first emphasis added).   We disagree with Hochhalter that reference to a slightly higher standard sentencing range by virtue of a higher offender score lifts the sentence out of the category of “ ‘the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.’   Blakely, 124 S.Ct. at 2537.”  Hunt, 128 Wash.App. at 541, 116 P.3d 450.

¶ 10 Here, as in Hunt, Giles

contends the court's community placement finding increased his offender score by one point, violating Blakely principles.   However, Blakely does not impact Washington's offender scoring system.   Judicial fact-finding is permitted when establishing recommended standard range sentences.   See RCW 9.94A.525;  see also RCW 9.94A.530 (the offender score and offender seriousness level determine the standard sentencing range).

We decline to follow the reasoning of Division One in State v. Jones, 126 Wash.App. 136, 107 P.3d 755 (2005) (finding the fact of community placement must be found by a jury under Blakely ).   The Blakely court specifically noted its decision did not implicate earlier decisions upholding judicial fact-finding to establish mandatory sentences.   See Blakely, 124 S.Ct. at 2538 (citing McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986)).

․

Because the fact of community placement arises out of a prior conviction, constitutional considerations under Blakely do not require that matter to be found by a jury beyond a reasonable doubt.   See Blakely, 124 S.Ct. at 2536.   The trial court's function in calculating an offender score is directed to determining a standard range sentence, not an exceptional sentence.   Here, for example, community supervision or community placement merely adds one point to [the defendant's] offender score, fixing his standard range sentence.   Therefore, the court in our context is sentencing within the statutory maximum sentence of the standard range, as recognized by our Supreme Court in State v. Hughes, 154 Wash.2d 118, 110 P.3d 192 (2005).

Hunt, 128 Wash.App. at 541-42, 116 P.3d 450.

¶ 11 Here, the trial court did not exceed the standard ranges in sentencing Giles;  on the contrary, it imposed concurrent standard-range sentences.⁶  Thus, Blakely neither required submission of this factual issue to a jury nor applied to the trial court's determination of Giles's standard-range sentencing.   See Hunt, 128 Wash.App. at 542, 116 P.3d 450.

¶ 12 We hold that (1) whether a defendant was on community placement for another crime when he committed the crime for which he is being sentenced is not an aggravating factor increasing the defendant's sentence beyond the standard sentencing range for the current crime;  (2) therefore, the additional offender point based on Giles's community placement status does not implicate Blakely or require a factual determination by a jury;  and (3) Giles's standard-range sentence did not violate any Blakely principles.   See Hunt, 128 Wash.App. at 542, 116 P.3d 450.

¶ 13 Accordingly, we depart from our colleagues' published opinion in Hochhalter, adopt Division Three's opinion in Hunt, and affirm Giles's sentence.

¶ 14 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.

¶ 15 Giles also appeals his convictions for methamphetamine and first degree unlawful firearm possession.   He argues that (1) the trial court improperly denied his motion to suppress and (2) he received ineffective assistance of counsel.   We hold that (1) in making a traffic stop involving an arrest, the officer acted reasonably to control the scene and to protect officer safety when he asked passenger Giles if he had a gun and then retrieved it when Giles responded, “Yes”;  and (2) Giles received effective assistance of counsel.   Accordingly, we affirm Giles's convictions.

FACTS RELATING TO NONPUBLISHED ISSUES

I. Traffic Stop and Seizure of Gun

¶ 16 The following Findings of Fact, which the trial court entered following a suppression hearing, accurately relate the relevant sequence of events:

I.

On May 20, 2004, at approximately 1:30 [a.m.], Officer Greg Crivello stopped a vehicle in the 1400 block of Olympic Highway South within the City of Shelton, Washington.   Officer Crivello had previously seen the car go to a known drug house;  the occupants got out and went into the home returning to the car approximately 5 minutes later.   While the individuals were in the house, Officer Crivello ran a registration check on the vehicle and learned that the registered owner, a male, had a suspended driver's license.   When the individuals returned, a male got into the driver's side of the vehicle.

Officer Crivello stopped the vehicle, identified the driver and confirmed that he was the registered owner of the vehicle and that his license was suspended.   Officer Crivello testified that it is always in the back of his mind that something more, such as a drug transaction, could have occurred, because if the occupants had been coming out of a drug house, he would have suspected there would be some evidence of drug trafficking.   The officer also testified that through his training, knowledge, and experience, that more than likely there would be something in that vehicle.

There were three passengers in the vehicle, including the defendant.   After Officer Crivello arrested the driver, he made contact with the defendant and asked him to exit the vehicle as he was going to search the car incident to the arrest of the driver and then impound it.   The defendant was not detained at the time that Officer Crivello made contact with him.

II.

In order to ensure his safety while he was searching the vehicle, Officer Crivello asked the defendant if he had any knives, guns or other objects that might hurt him.   Officer Crivello asked this question of the defendant one time.   The defendant told Officer Crivello that he had a gun.   When asked where the gun was, the defendant told Officer Crivello that it was in a holster under his arm.   Officer Crivello retrieved the gun.   The defendant also told Officer Crivello that he did not have a permit for the gun and that he was a convicted felon.[ 7]  At the time that the defendant told Officer Crivello that he had a gun, the officer does not remember if he had Mr. Giles handcuffed.   Giles testified he was already handcuffed when asked about the gun.   Once the gun was retrieved, Officer Crivello confirmed that the defendant was a convicted felon.   The defendant was placed under arrest and a second officer who had arrived by this time searched the defendant incident to his arrest for Unlawful Possession of a Firearm.   During the search of the defendant, Officer Goss-Ewald found a clear zip lock baggie with suspected methamphetamine in it.

CP at 23-25.

II. Procedure

¶ 17 The State charged Giles with first degree unlawful possession of a firearm and possession of methamphetamine.   Giles moved to suppress, arguing that, because he was a passenger, Officer Crivello had acted illegally in ordering him out of the car, questioning him, searching him, and seizing the gun and methamphetamine.   The superior court denied Giles's motion, ruling that (1) Officer Crivello's initial questioning of Giles and search for the gun were permissible to protect officer safety, and (2) the later search by the second officer was permissible incident to Giles's arrest for unlawful possession of the gun.

¶ 18 Giles waived his right to trial by jury and stipulated to certain facts that the court could consider at a bench trial.   As stipulated facts, the trial court considered the police reports, a lab report, and a certified copy of Giles's 1996 Mason County judgment and sentence for the crimes of first degree kidnapping and second degree assault.   The trial court found Giles guilty of both current charges.

ANALYSIS

III. Motion To Suppress

¶ 19 Giles argues that the trial court erred in denying his motion to suppress the gun and the methamphetamine because the officers seized them in violation of the Washington State Constitution.   We review this question of law de novo.  State v. Rankin, 151 Wash.2d 689, 694, 92 P.3d 202 (2004);  State v. Mendez, 137 Wash.2d 208, 214, 970 P.2d 722 (1999).

¶ 20 The Washington State Constitution generally prohibits police officers from searching or seizing anything without first obtaining a warrant;  such searches and seizures are inherently unreasonable, violating Article 1, Section 7 8 of the state constitution.   E.g., State v. Duncan, 146 Wash.2d 166, 171, 43 P.3d 513 (2002);  State v. Hendrickson, 129 Wash.2d 61, 70-71, 917 P.2d 563 (1996).   But there are a limited number of exceptions to the constitutional warrant requirement, which we are required to narrowly construe.   E.g., Duncan, 146 Wash.2d at 171-72, 43 P.3d 513;  Hendrickson, 129 Wash.2d at 70-71, 917 P.2d 563.

A. Traffic Stops and Passenger Rights

¶ 21 The Washington State Constitution provides vehicle passengers with an independent privacy interest.  State v. Jones, 146 Wash.2d 328, 336-37, 45 P.3d 1062 (2002);  State v. Parker, 139 Wash.2d 486, 496, 987 P.2d 73 (1999) (plurality opinion);  Mendez, 137 Wash.2d at 218-19, 970 P.2d 722;  State v. Byrd, 110 Wash.App. 259, 262, 39 P.3d 1010 (2002).   Thus an officer's stop of a car and its driver does not constitute a legal seizure of the passengers.  Mendez, 137 Wash.2d at 222, 970 P.2d 722.   But because the passenger often cannot simply walk away from the scene of the stop, a police officer seizes the passenger when the officer asks the passenger to identify him or herself.9  State v. Brown, 154 Wash.2d 787, 796, 117 P.3d 336 (2005);  Rankin, 151 Wash.2d at 695, 697, 699, 92 P.3d 202;  State v. Mote, 129 Wash.App. 276, 286, 120 P.3d 596 (2005).   Such a seizure is unconstitutional if the officer lacks an independent valid basis for it.   Rankin, 151 Wash.2d at 699-700, 92 P.3d 202.

¶ 22 Relying on Rankin, Giles contends that Officer Crivello illegally seized him by asking, after Giles had admitted possessing a concealed gun, whether he had a permit for it and whether he was a felon.   During oral argument to this court, Giles for the first time claimed that Officer Crivello's initial question about weapons constituted a seizure.   On these facts, we reject both contentions.

B. Traffic Stops-Control of Scene

¶ 23 Because traffic stops are inherently dangerous, the police have a legitimate need to control the scene of such stops to ensure officer safety.   Mendez, 137 Wash.2d at 219-20, 970 P.2d 722.   While interacting with the stopped driver, the officer may “take whatever steps necessary to control the scene.”  Mendez, 137 Wash.2d at 220, 970 P.2d 722.   The officer does not have automatic authority to order passengers either in or out of the stopped car, but he or she can issue directions to the passengers if there is an objective safety rationale for doing so.  Mendez, 137 Wash.2d at 220-21, 970 P.2d 722.   Such control of the passengers is constitutional even when the officer has stopped the driver for a mere infraction.   See Mendez, 137 Wash.2d at 211, 212, 220-21, 970 P.2d 722.

¶ 24 Determining whether the objective safety rationale exists depends on the totality of the circumstances;  the Mendez court identified several non-exclusive factors:

the number of officers, the number of vehicle occupants, the behavior of the occupants, the time of day, the location of the stop, traffic at the scene, affected citizens, or officer knowledge of the occupants.

137 Wash.2d at 221, 970 P.2d 722.  Mendez involved only an infraction stop;  the arrest of the driver is an additional highly significant safety or “scene control” factor.  State v. Horrace, 144 Wash.2d 386, 393, 28 P.3d 753 (2001);  State v. Reynolds, 144 Wash.2d 282, 288-90, 27 P.3d 200 (2001);  Parker, 139 Wash.2d at 502, 987 P.2d 73.   Controlling the location of passengers by directing them either to stay in or to get out of the stopped car is merely a “de minimis” seizure.  Reynolds, 144 Wash.2d at 287, 290, 27 P.3d 200;  Mendez, 137 Wash.2d at 220, 970 P.2d 722.

¶ 25 In this case, the circumstances justified Officer Crivello's control of Giles.   When Officer Crivello stopped the car, it was 1:30 in the morning.   Officer Crivello was initially alone, while the vehicle contained three persons.   And, most importantly here, because Officer Crivello had arrested the driver, he was preparing to search the interior of the driver's car.   This combination of circumstances clearly justified directing Giles, a passenger, to get out of the car so that Officer Crivello could control the scene to ensure his safety.

¶ 26 Further, given that he was preparing to search the car, Officer Crivello could control the scene by asking Giles if he possessed any weapons.   Officer Crivello testified about his reasons for asking this question:

Q. [State:] Why would you ask an individual like that if he had any knives, guns, rockets, anything that is going to hurt you?

A. [Officer Crivello:] Precisely because it could hurt me if I-if I just allow him to step out of the vehicle without at least asking that, I figure it is a greater threat to me and anybody that is around.   So for officer safety purposes I ask those questions.

Q. When you conduct a search of a vehicle, where is your attention directed?

A. Attention is directed to searching all the nooks and crannies, under the seats, those places within a vehicle.

Q. How easy is it to keep an eye on several individuals while you are trying to search a vehicle?

A. It's not easy to do at all.   It's a very dangerous situation, potentially.

Report of Proceedings at 27.   Under the Mendez rationale, if there, as here, is an objective safety rationale, the officer can issue reasonable directions to the passengers to control the scene and to ensure officer safety.   See Mendez, 137 Wash.2d at 220, 970 P.2d 722.

¶ 27 Under the facts presented here, we hold that Crivello's asking passenger Giles whether he was armed was not a full seizure but merely legitimate control of the scene of a traffic stop to ensure officer safety.

C. Safety Frisks of Passengers

¶ 28 During a valid traffic stop, if the officer develops a reasonable articulable suspicion that a passenger is armed, the officer may conduct a protective frisk of that passenger.  Horrace, 144 Wash.2d at 394-97, 28 P.3d 753.   When Giles told Officer Crivello that he had a gun concealed in a shoulder holster under his jacket, Officer Crivello had such a suspicion.   Officer Crivello's removal of only the weapon, without further searching, falls within the permissible scope of a protective frisk for weapons.   See State v. Hudson, 124 Wash.2d 107, 112-13, 874 P.2d 160 (1994).

D. Questions About the Gun

¶ 29 As noted, Giles contends that Officer Crivello seized him by questioning him about the gun and his criminal record without a valid independent investigative basis to do so.   But Officer Crivello had specific statutory authority to ask whether Giles had a permit for his obviously concealed gun.   In relevant part, RCW 9.41.050(1) provides:

(1) (a) Except in the person's place of abode or fixed place of business, a person shall not carry a pistol concealed on his or her person without a license to carry a concealed pistol.

(b) Every licensee shall have his or her concealed pistol license in his or her immediate possession at all times that he or she is required by this section to have a concealed pistol license and shall display the same upon demand to any police officer or to any other person when and if required by law to do so.

RCW 9.41.050.   Officer Crivello made the statutorily authorized “demand” to see Giles's permit.

¶ 30 And once Giles admitted that he had no such permit (in contrast to not having his permit on his person), Officer Crivello had a reasonable suspicion that Giles was committing a crime and, thus, had a basis to briefly detain him to investigate.   See RCW 9.41.810;  State v. Kennedy, 107 Wash.2d 1, 4, 6-7, 726 P.2d 445 (1986).   Even if the question about Giles's felony history constituted a seizure, which we do not here decide, Officer Crivello had a valid basis to conduct one.

¶ 31 The superior court properly denied the motion to suppress.

IV. Effective Assistance of Counsel

¶ 32 Giles also argues that his trial counsel rendered ineffective assistance for failing to seek suppression of the evidence based on his claim that Officer Crivello illegally seized him by asking for his concealed gun permit and asking whether he had felony convictions.   This argument fails.

¶ 33 As we explain above, Officer Crivello's questions did not constitute an illegal seizure.   Trial counsel's failure to raise a losing issue was not deficient;  nor did it prejudice Giles's case.   Thus, Giles has failed to establish ineffective assistance of counsel.   See State v. Bowerman, 115 Wash.2d 794, 808, 802 P.2d 116 (1990) (claim of ineffective assistance fails without a showing of both deficient performance and prejudice).

¶ 34 Affirmed.

FOOTNOTES

1.   In so holding, we respectfully depart from the recent decision of two of our colleagues in State v. Hochhalter, 131 Wash.App. 506, 518-24, 128 P.3d 104 (2006).

2.   Without the community placement point, Giles's offender score would have been “3,” with a standard sentencing range of 31 to 41 months for the firearm conviction and the same range for the drug conviction as with an offender score of “4.” See RCW 9.94A.510, .515, .517, .518, .525(7), .589(1)(a).

3.   Giles also raises a claim of ineffective assistance based on his lawyer's failure to raise this issue at sentencing, indicating that he does so only to allow him to raise the issue if we refuse to reach the merits for that reason.   Since we do reach the merits under RAP 2.5(a)(3), we reject the claim of ineffective assistance.

4.   The third panel member dissented on other grounds.

5.   We note that when the trial court sentenced Giles, it had no directive on this issue from either the appellate courts, which are currently split, or from the Supreme Court, in which this issue is now pending on review of Division One's decision in Jones, following February 7, 2006 oral arguments.   Division One's opinion in Jones was the basis, in part, for our colleagues' majority decision in Hochhalter.Because a majority of the court at Division Two disagrees with Hochhalter, we have decided to file our Giles opinion now in order to provide guidance to Division Two trial courts pending the Supreme Court's decision in Jones.

6.   We further note that even under the rationale in Hochhalter, Giles's sentence on the drug count would not violate the Sixth Amendment under Blakely.   Even after the trial court added a fourth point to Giles's offender score, his sentencing range remained the same for this count as if it had been based on an offender score of three;  thus, the additional point did not increase his sentence beyond the maximum permissible under the applicable statute:A three-step analysis will disclose whether Blakely's holding impacts a given sentence.   The first step is to identify the sentence that the trial judge actually imposed.   The second step is to ascertain the maximum sentence that the trial judge could have imposed based solely on the jury's findings and any scorable prior convictions (the maximum permissible sentence).   The third step is to compare the results of the first two.   If the actual sentence exceeds the maximum permissible sentence, it violates the Sixth Amendment.   If the actual sentence equals or is less than the maximum permissible sentence, it does not violate the Sixth Amendment.Hochhalter, 131 Wash.App. at 519, 128 P.3d 104 (emphasis added).Here, with an offender score of “4,” Giles's standard sentencing range for his drug conviction was six months and one day to 18 months.   Without the fourth, community-placement point, Giles's offender score of “3” would have yielded the same standard sentencing range, six months and one day to 18 months.   See RCW 9.94A.517, .518.   The trial court sentenced Giles on the drug conviction to 18 months, the top of the standard range, regardless of whether his offender score was “3” or “4.” Thus, even under Hochhalter, that sentence did not violate the Sixth Amendment.

7.   Giles assigns error to the second finding, but only because it failed to specify that Officer Crivello asked him questions that led to these two incriminating statements;  the State does not dispute these facts.   Respondent's brief at 5-6.   The trial court's findings are thus verities on appeal.   See State v. Hill, 123 Wash.2d 641, 644, 647, 870 P.2d 313 (1994).

8.   “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.”

9.   If asked of a pedestrian, such a question is usually not a seizure.   See, e.g., State v. Young, 135 Wash.2d 498, 511, 957 P.2d 681 (1998);  State v. Armenta, 134 Wash.2d 1, 11, 948 P.2d 1280 (1997).

HUNT, J.