Opinion
No. 60102-4-I.
July 28, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-1-06578-2, Harry J. McCarthy, J., entered June 7, 2007.
Affirmed by unpublished per curiam opinion.
Very early on Christmas morning, Seattle police received reports from a Metro bus driver of possible drug sales occurring on Pike Street in downtown Seattle. The driver provided police with descriptions of a car, including a partial license plate number, and of a suspect whom he described as a black man in his 30s wearing a baseball cap.
Two Seattle police officers responded at 2:40 a.m. and found a car matching the description parked on the 400 block of Pike Street. A known drug offender, who had been arrested several times by one of the officers, was leaning into the window of the car. The officers arrested the man on an outstanding felony warrant. The man told the officers that the driver of the car, along with one other man, had been selling drugs out of the car. The officers then arrested the driver, Gregory Carter Sr. (Carter Sr.), whose pockets were overflowing with crumpled bills of various denominations. A female passenger in the car corroborated that Carter Sr. and his son had been selling drugs.
At that point, Gregory Carter Jr. (Carter) came around the corner from 5th Avenue. Based on the information given them by the witnesses, the officers arrested Carter. Carter, too, had a great deal of money on him — over $3600 in crumpled bills stuffed in various pockets. The police also found 7.1 grams of heroin and 6.3 grams of crack cocaine in Carter's sock. The cocaine was broken down into $10 and $20 chunks.
At trial, the arresting officer described the amount of drugs on Carter's person as being inconsistent with personal use, stating that Carter was in possession of "a lot of heroin."
Carter was convicted by a jury of two counts: count I, possession with intent to deliver cocaine, and count II, possession with intent to deliver heroin.
Prior to sentencing, Carter moved to dismiss one of the counts, arguing that conviction of both violated double jeopardy prohibitions. The State opposed the motion, arguing that the two convictions were separate and distinct crimes with different elements, but conceded that the two convictions should only constitute a single offense for sentencing purposes. The court agreed with the State and declined to dismiss one of the verdicts. We affirm.
Standard of Review
Whether a criminal defendant is placed in double jeopardy in a particular circumstance is a question of law that is reviewed de novo. Questions of statutory interpretation are reviewed de novo.
State v. Womac, 160 Wn.2d 643, 649, 160 P.3d 40 (2007); State v. Benn, 161 Wn.2d 256, 261-62, 165 P.3d 1232 (2007).
West Telepage, Inc. v. City of Tacoma, Dep't of Fin., 140 Wn.2d 599, 607, 998 P.2d 884 (2000).
Discussion
The double jeopardy clauses of the Fifth Amendment and art. I, § 9 of the Washington Constitution protect defendants against multiple punishments for the same offense. Carter argues that his two convictions for possessing a controlled substance with intent to deliver violate the prohibitions against double jeopardy.
State v. Bobic, 140 Wn.2d 250, 260, 996 P.2d 610 (2000).
The statute under which Carter was convicted, RCW 69.50.401, reads in relevant part:
(1) Except as authorized by this chapter, it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance.
(2) Any person who violates this section with respect to:
(a) A controlled substance classified in Schedule I or II which is a narcotic drug or flunitrazepam, including its salts, isomers, and salts of isomers, classified in Schedule IV, is guilty of a class B felony and upon conviction may be imprisoned for not more than ten years.
RCW 69.50.401(1), (2)(a).
Heroin is a schedule I narcotic, while cocaine is classified as a schedule II narcotic.
RCW 69.50.101(r)(1), .204(b)(13).
RCW 69.50.101(r)(5), (6), .206(b)(4).
Carter argues, in essence, that the statute focuses on the possessor's intent to sell controlled substances, not on the specific type of substance to be sold.
To determine if a defendant has been punished multiple times for the same offense, this court applies the "`same evidence'" test. Under the same evidence test, double jeopardy is violated if a defendant is convicted of offenses which are the same in law and in fact. Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses — or only one — is whether each provision requires proof of a fact which the other does not. A defendant's double jeopardy rights are violated if he or she is convicted of offenses that are identical both in fact and in law. If each offense, as charged, includes elements not included in the other, the offenses are different and multiple convictions can stand. Carter's convictions are not the same "in law" or "in fact."
State v. Calle, 125 Wn.2d 769, 777, 888 P.2d 155 (1995).
Calle, 125 Wn.2d at 777-78.
State v. Adel, 136 Wn.2d 629, 633, 965 P.2d 1072 (1998).
Calle, 125 Wn.2d at 777.
The State needed to prove that Carter possessed both cocaine and heroin to convict on both charges. Each conviction required proof of a different fact, namely, possession of the specific controlled substance specified in each charge. Thus, the convictions are not the same "in fact."
Nor are the convictions the same "in law." Our Supreme Court has held that the identity of the controlled substance is an element of the crime under RCW 69.50.401. The two convictions are not the same in law because each offense includes an element not included in the other. Count I required the State to prove Carter possessed cocaine, while count II required the State to prove he possessed heroin. Carter violated two distinct statutory provisions, namely, the schedules under which the drugs are classified.
State v. Goodman, 150 Wn.2d 774, 785-86, 83 P.3d 410 (2004).
The presumption accorded the same evidence test should be overcome only by clear evidence of contrary intent. This, Carter has not done.
Calle, 125 Wn.2d at 780.
Subsection 2(a) of the statute makes it a class B felony to possess with intent to deliver "[a] controlled substance." Carter argues that the word "a" is ambiguous because, according to the dictionary, "a" can mean "any" or "one." Therefore, he argues, the rule of lenity requires that the statute be construed in Carter's favor. Carter is straining to create ambiguity where there is none. Strained interpretations are to be avoided.
Webster's Third New International Dictionary 1 (1993).
In re Personal Restraint of Davis, 142 Wn.2d 165, 172, 12 P.3d 603 (2000).
Cerrillo v. Esparza, 158 Wn.2d 194, 203, 142 P.3d 155 (2006).
RCW 69.50.401, indeed the entire Uniform Controlled Substances Act, treats different controlled substances in different ways. Each controlled substance is listed under one of five different schedules, ranging from schedule I to schedule V. Substances are to be added, deleted, or rescheduled based upon such factors as the potential for abuse of each drug, the scientific evidence of the substance's pharmacological effects, the history and current pattern of abuse, the risk to public health, and other enumerated factors.
RCW 69.50.204 (Schedule I), .206 (Schedule II), .208 (Schedule III), .210 (Schedule IV), .212 (Schedule V).
We do not accept Carter's contention that RCW 69.50.401(2)(a) acts as a bar on the possession with intent to distribute "any" controlled substance in general. It penalizes possession of specific controlled substances according to their distribution within the various schedules.
Carter cites to State v. Rodriguez where the court held that under RCW 69.50.401(a), it is unlawful to possess with intent to deliver any controlled substance, and that for liability purposes it does not matter what the specific controlled substance is.
61 Wn. App. 812, 812 P.2d 868 (1991).
Rodriguez, 61 Wn. App. at 817.
Rodriguez is distinguishable. The issue in that case was whether conviction of two counts under RCW 69.50.401 constituted the same criminal conduct for sentencing purposes.
Rodriguez, 61 Wn. App. at 815.
Like Carter, Rodriguez was arrested for dealing drugs and found to have both cocaine and heroin in his sock. He was convicted of two counts of possession with intent to deliver, one for possession of cocaine and the other for possession of heroin. The State appealed the sentence imposed by the trial court, arguing that Rodriguez's offender score should have included a third point for current offenses.
Rodriguez, 61 Wn. App. at 814.
Rodriguez, 61 Wn. App. at 814.
Rodriguez, 61 Wn. App. at 814.
Division Two of this court affirmed, holding that for sentencing purposes the two counts involved the same intent and constituted the same criminal conduct within the meaning of RCW 9.94A.400(1)(a). Significantly, the court upheld the original convictions for both cocaine and heroin possession.
Rodriguez, 61 Wn. App. at 818.
Similarly, the court in State v. Garza-Villarreal upheld two convictions for possession with intent to deliver both heroin and cocaine when it held that for the purposes of calculating the defendant's offender score the two convictions arose from the same criminal conduct.
123 Wn.2d 42, 864 P.2d 1378 (1993).
Garza-Villarreal, 123 Wn.2d at 48-49.
The court in State v. Adel warned against the State attempting to segment a singular criminal act to form the basis for multiple convictions. Prosecutors should not be able to evade the bar on double jeopardy by arbitrarily dividing a single crime into a series of temporal or spatial units. The Adel court reversed the defendant's two convictions for simple possession of marijuana on double jeopardy grounds where marijuana was found in the defendant's car and in his store. The court noted that, under the State's theory, a defendant could be convicted of three counts of possession if the drug was found in the defendant's sock, pant pocket, and purse — with each "location" being a "separate" place. The court concluded that the possession statute does not authorize multiple convictions based upon a drug being stashed in multiple places within a defendant's actual or constructive possession.
136 Wn.2d 629, 640, 965 P.2d 1072 (1998).
Adel, 136 Wn.2d at 635 (quoting In re Snow, 120 U.S. 274, 282, 7 S. Ct. 556, 30 L. Ed. 658 (1887)).
Adel, 136 Wn.2d at 631.
Adel, 136 Wn.2d at 636.
Adel, 136 Wn.2d at 636.
In reaching its decision, the court engaged in a "unit of prosecution" analysis of cases where defendants were convicted of multiple counts of possession of the same drug. In State v. McFadden, the defendant was convicted where cocaine was found in his van and on his person in an apartment where he had gone to sell cocaine. The two convictions were premised on the showing that McFadden had two separate and distinct intents to deliver drugs in his possession — one intent to sell in the present to the occupants of the apartment and one intent to sell drugs in the future.
63 Wn. App. 441, 820 P.2d 53 (1991).
MaFadden, 63 Wn. App. at 443.
Adel, 136 Wn.2d at 638.
In State v. Lopez, however, double jeopardy barred two convictions where the defendant purchased cocaine during a controlled buy. The cocaine the defendant had just purchased was found on the floor of his car and additional cocaine, unrelated to the purchase, was found on his person. The court held that the evidence failed to establish more than one intent to deliver drugs.
79 Wn. App. 755, 904 P.2d 1179 (1995).
Adel, 136 Wn.2d at 638-39.
Adel, 136 Wn.2d at 639.
What distinguished the cases analyzed in Adel was the temporal and physical disposition of a single type of drug. But, that is not the case here. Unlike the defendants in Adel, McFadden, and Lopez, Carter was in possession of two distinct controlled substances, substances found in two distinct schedules under RCW 69.50.401. Therefore, his convictions did not violate the bar against double jeopardy.
Carter has filed a statement of additional grounds for review in which he argues ineffective assistance of counsel. The purpose of the requirement of effective assistance of counsel is to ensure a fair and impartial trial. To prevail on his claim of ineffective assistance of counsel, Carter must overcome the presumption of effective representation and demonstrate (1) that his lawyer's performance was so deficient that he was deprived of "counsel" for Sixth Amendment purposes and (2) that there is a reasonable probability that the deficient performance prejudiced his defense. Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. The Strickland test requires a showing that counsel's representation fell below an objective standard of reasonableness based on consideration of all of the circumstances. Scrutiny of counsel's performance is highly deferential, and we indulge in a strong presumption of reasonableness.
State v. Thomas, 109 Wn.2d 222, 225, 743 P.2d 816 (1987).
State v. Thiefault, 160 Wn.2d 409, 414, 158 P.3d 580 (2007) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
Strickland, 466 U.S. at 687.
Thomas, 109 Wn.2d at 226.
Thomas, 109 Wn.2d at 226.
As a threshold matter, Carter has not shown that his counsel's performance was so deficient that he was deprived of his Sixth Amendment rights. On the contrary, the record shows his counsel to have been tenacious in his defense. The evidentiary issues Carter now raises are not sufficient to overcome our presumption of effective representation, nor has he shown that his counsel's representation fell below an objective standard of reasonableness.
Affirmed.