Opinion
Nos. 33255-8-II; 35865-4-II.
October 23, 2007.
Appeals from a judgment of the Superior Court for Thurston County, No. 03-1-00568-5, Richard D. Hicks, J., entered May 18, 2005.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Houghton, C.J., concurred in by Bridgewater and Hunt, JJ.
Kevin Parker appeals his conviction and sentence for unlawful manufacture of methamphetamine, arguing trial court error. We affirm his conviction, but vacate his sentence and remand for resentencing.
In May 2005, Parker appealed his conviction. We stayed that appeal pending our Supreme Court's adjudication of State v. Cromwell, 157 Wn.2d 529, 140 P.3d 593 (2006). Parker then filed a second appeal challenging the trial court's denial of his motion to amend the judgment and sentence. We consolidated the two appeals and called for additional briefing. By separate order, we lift the stay and address the consolidated appeals.
FACTS
On March 4, 2003, Sergeant Gregory Elwin and other members of the Thurston County Sheriff Department's Special Enforcement Team responded to an anonymous tip at a local farm and feed store. Someone at the store informed the deputies that a customer had purchased substantial quantities of iodine, a component of methamphetamine manufacturing. The Sheriff's Department identified the purchaser as Deborah King.
The same day, Elwin questioned King about her purchase. She told him that she had purchased the iodine for an unnamed person in exchange for a bag of methamphetamine. Elwin reported that she knew that the unnamed person was planning to use the iodine for an illegitimate purpose.
Elwin recognized iodine as a precursor chemical used to manufacture methamphetamine. Based on this information and King's statements, he obtained and executed a search warrant for her residence and vehicle on March 4. During the search, she voluntarily revealed three bags of methamphetamine in distinctive Batman baggies, one-half ounce of marijuana, and other drug-related paraphernalia. She told Elwin that Parker gave her the methamphetamine in the baggies and that she had purchased the iodine for him.
King also reported that she had purchased iodine for Parker twice in the two weeks before she talked with Elwin. She claimed that Parker had asked her to make the second purchase while they were in "a homemade, makeshift structure, constructed at least in part by tarps," which she referred to as the "shop." Clerk's Papers at 26.
King did not recall when Parker gave her methamphetamine in exchange for her first iodine purchase, but she was certain that he gave her methamphetamine for the second purchase 24 to 48 hours after she had delivered the iodine. Her description of the timing and amount of iodine in her second purchase matched the information from the feed store tip. According to King's information, Parker gave her the methamphetamine for the second purchase four to five days before she spoke with Elwin and five to six days before Elwin sought warrant to search Parker's house.
On March 5, Elwin applied for a warrant to search Parker's residence. In his affidavit in support of the warrant, Elwin included King's statement that Parker had given her methamphetamine at least five times over the previous two years and that she had received and used methamphetamine at his residence. Elwin also included information about methamphetamine related items found at Parker's residence during the execution of a May 2002 search warrant (which did not result in criminal charges) and several anonymous tips that he had received indicating that there was ongoing criminal activity at Parker's residence. A superior court judge found probable cause and issued the warrant.
Officers executed the warrant the same day. At Parker's residence, Elwin noticed an odor that he associated with methamphetamine manufacture and discovered items commonly associated with methamphetamine manufacture in an outdoor area that resembled the shop that King had described. Sheriff's deputies seized these items, which included solvent containers, Red Devil lye, scales, discolored coffee or paper filters, a bottle with a hose coming out the top, and a bucket of a black substance emitting gas.
The State initially charged Parker with unlawful methamphetamine manufacture, RCW 69.50.401(1)(b). It later filed an amended information charging him with unlawful methamphetamine manufacture, former RCW 69.50.401(a)(1)(ii) (2002), the statute in effect when he committed the charged offense.
Pretrial, Parker moved to suppress all evidence seized during the search, arguing that Elwin's affidavit failed to establish probable cause because it lacked information about King's veracity and the basis of her knowledge. The trial court denied Parker's motion to suppress the evidence.
A jury heard the matter. It convicted Parker of one count of unlawful manufacture of methamphetamine.
At sentencing, the court determined that Parker's standard sentence range for a conviction under former RCW 69.50.401(a)(1)(ii) was 51 to 68 months. It sentenced him to 59 and one-half months of confinement and nine to 12 months of community custody. Parker appealed his conviction and sentence.
The trial court sentenced Parker using the sentencing guidelines under RCW 69.50.401(2)(b) and RCW 9.94A.517. But these statutes apply only to offenses occurring after July 1, 2004. The State charged Parker with committing unlawful manufacture of methamphetamine on March 5, 2003.
In November 2006, Parker moved to amend his judgment and sentence, arguing that the length of community custody imposed exceeded the statutory maximum allowed for his crime in violation of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). The trial court denied his motion. Parker filed an appeal of the trial court's denial of his motion to amend the judgment and sentence. We consolidated the appeals.
ANALYSIS Search Warrant
Parker first contends that the trial court erred in denying his motion to suppress evidence seized under the search warrant. He argues that the warrant's supporting affidavit did not establish sufficient probable cause.
We review an issuing magistrate's determination of probable cause for abuse of discretion. State v. Maddox, 152 Wn.2d 499, 509, 98 P.3d 1199 (2004). In doing so, we accord great deference to the magistrate's determination. Maddox, 152 Wn.2d at 509. An affidavit establishes probable cause if it sets forth sufficient facts to lead a reasonable person to believe that there is a probability that the defendant is involved in criminal activity and that evidence of that activity will likely be found at the place to be searched. Maddox, 152 Wn.2d at 509. The issuing magistrate's determination of probable cause should be a practical, commonsense decision based on all of the circumstances set forth in the affidavit and any reasonable inferences that can be drawn therefrom. Maddox, 152 Wn.2d at 509.
Where an informant's tip provides the basis for probable cause, we apply the two-pronged Aguilar-Spinelli test. State v. Jackson, 102 Wn.2d 432, 433, 688 P.2d 136 (1984); Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). Under Aguilar-Spinelli, a search warrant affidavit must establish the basis for the informant's knowledge and veracity. Jackson, 102 Wn.2d at 436-37. To demonstrate the basis of an informant's personal knowledge, the search warrant affidavit must set forth how the informant claims to have come by the information relied on. Jackson, 102 Wn.2d at 437.
Although the United States Supreme Court abandoned the Aguilar-Spinelli test and adopted a totality of the circumstances analysis in Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), Washington courts continue to adhere to the Aguilar-Spinelli test. Jackson, 102 Wn.2d at 443.
Parker asserts that Elwin failed to include information about King's basis of knowledge in his application and affidavit for the search warrant. We disagree.
The knowledge prong of Aguilar-Spinelli is satisfied where information shows that the informant has personally witnessed the facts asserted and passes on firsthand information. State v. Duncan, 81 Wn. App. 70, 76, 912 P.2d 1090, review denied, 130 Wn.2d 1001 (1996). A review of Elwin's affidavit demonstrates that King explained her personal observation of methamphetamine at Parker's residence. She also told Elwin that she had delivered the iodine to Parker's residence and that she had received methamphetamine from him and used it at his residence. Thus, the affidavit sufficiently established King's basis of knowledge to satisfy the knowledge prong of Aguilar-Spinelli.
Parker argues that King was unable to provide the methamphetamine's exact location on the property. But this lack of precise information does not undermine her basis of knowledge. See Maddox, 152 Wn.2d at 509-10 (holding that an affidavit supporting a search warrant established probable cause even though the informant did not claim to have seen methamphetamine on the premises, except for what he was purchasing). King admitted to delivering iodine to the property and to receiving and using methamphetamine on the property. Nothing required that she state precisely where on the property Parker stored methamphetamine.
Next, Parker asserts that the affidavit failed to establish King's credibility or reliability. Again, we disagree.
The following factors established King's credibility: (1) she was a named informant, State v. Estorga, 60 Wn. App. 298, 305, 803 P.2d 813 (1991); (2) she made statements against her penal interest, Jackson, 102 Wn.2d at 437; (3) she had incentive to be truthful because she was admitting to unlawful activity and risked increasingly unfavorable treatment by lying to police, Estorga, 60 Wn. App. at 304-05; and (4) sufficient independent corroborating evidence supported her information about Parker's criminal activity, State v. Murray, 110 Wn.2d 706, 712, 757 P.2d 487 (1988). Elwin thus provided sufficient information by which the issuing magistrate could have found King's veracity established for purposes of Aguilar-Spinelli.
Although Parker claims that King did nothing more than provide "innocuous details," Appellant's Br. (33255-8-II) at 13, the information provided at the farm and feed store and her description of the shop and methamphetamine activity involving Parker constituted corroborating evidence of Parker's criminal activity related to methamphetamine.
Additionally, Parker argues that the information used in the search warrant was stale. According to him, the evidence "does not support a commonsense determination that [he] was likely in continuing and contemporaneous possession of methamphetamine or drug manufacturing items described in the warrant." Appellant's Br. (33255-8-II) at 17.
"[I]nformation is not stale for purposes of probable cause if the facts and circumstances in the affidavit support a commonsense determination that there is continuing and contemporaneous possession of the property intended to be seized." Maddox, 152 Wn.2d at 506. We make this determination based on the totality of the circumstances. Maddox, 152 Wn.2d at 506.
Here, King admitted to purchasing methamphetamine from Parker at his residence five times over the previous two years and to using methamphetamine on the property on more than one occasion. King also stated that she delivered large quantities of iodine, a key ingredient in methamphetamine manufacture, to Parker at his residence on two occasions. One of these occasions was within a few days of the application for a search warrant. It was likely that such a large quantity of iodine would still be on the property several days after delivery.
The totality of the circumstances thus supported a commonsense inference that evidence of criminal activity involving methamphetamine could be located on Parker's property, and King's information was not stale. The trial court did not err in denying Parker's motion to suppress evidence.
Parker contends that he received ineffective assistance of counsel because counsel failed to object to improper sentencing or preserve the staleness issue. Because we have determined that King's information was not stale and because we vacate Parker's sentence and remand for resentencing, we do not further address his ineffective assistance of counsel arguments.
Sentence
In his first appeal, Parker challenges his conviction, arguing that the trial court violated his Sixth Amendment right under Blakely by failing to sentence him for a violation of former RCW 69.50.401(a)(1)(ii), the statute in effect at the time of the commission of his offense. At the same time, he argues that in order to sentence him under that statute, the jury was required to find him guilty of manufacturing methamphetamine base. But he asserts that because it cannot be determined that the jury did so here, the sentencing court invaded the province of the jury by imposing a sentence under former RCW 69.50.401(a)(1)(ii).
In his second appeal, Parker assigns error to the trial court's denial of his motion to amend the judgment and sentence. He asserts that the trial court exceeded the statutory sentencing maximum because the combined sentence of confinement and community custody it imposed exceeded the high end of the standard sentencing range for his crime. We address these arguments in turn.
Parker first claims that the trial court erroneously sentenced him under RCW 69.50.401(2)(b) and the related sentencing grid under former RCW 9.94A.517 because these statutes were not in effect on March 5, 2003, the time of his charged offense. The record shows that the State charged and convicted Parker of a violation of RCW 69.50.401(a)(1)(ii), which was in effect at the time of his offense. But he correctly claims that the trial court sentenced him under the guidelines of RCW 9.94A.517, which did not take effect until July 1, 2004.
Sentencing courts must look to the statute in effect at the time the defendant committed the current crimes when determining his sentence. State v. Varga, 151 Wn.2d 179, 191, 86 P.3d 139 (2004). The sentencing guidelines in effect at the time of Parker's offense were set forth at former RCW 9.94A.510 (2002). Therefore, the remedy is to vacate his sentence and remand for resentencing according to former RCW 9.94A.510, the sentencing grid applicable at the time of his offense.
In response to Parker's argument that his motion to modify the judgment and sentence was properly before the trial court because the judgment and sentence was invalid on its face, the State initially argued that his motion was time barred under RCW 10.73.090's one-year time limit on collateral attack. Later, the State filed an amended brief withdrawing this argument. RCW 10.73.090 does not bar his claim.
Parker also relies on our holding in State v. Morris, 123 Wn. App. 467, 98 P.3d 513 (2004), to argue that the term "methamphetamine" as used in former RCW 69.50.401(a)(1)(ii) does not include methamphetamine salts, isomers, and salts of its isomers. Our Supreme Court's opinion in State v. Cromwell, 157 Wn.2d 529, 140 P.3d 593 (2006), decided this issue contrary to Parker's assertion, and his argument fails.
Finally, Parker contends that his sentence violates Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). He asserts that because the combination of his confinement and community custody sentence exceeds the top of the standard sentencing range for his crime, Blakely applies. Again, we disagree.
Blakely does not apply to community custody because such custody results directly from the jury verdict and does not require any additional judicial fact finding. See former RCW 9.94A.715(1) (2002). The trial court did not err.
For the same reason, we do not address Parker's arguments regarding the prospect of conditional confinement being imposed for community custody violations.
Statement of Additional Grounds for Review, RAP 10.10
In his Statement of Additional Grounds (SAG), Parker raises an ineffective assistance claim, arguing that Elwin lied when he testified that he had never arrested or been involved with cases concerning Parker. In essence, Parker asserts that his counsel failed to impeach Elwin as a credible witness.
To demonstrate ineffective assistance of counsel, a defendant must show counsel's deficient performance resulting in prejudice. State v. Thomas, 109 Wn.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 Wn.2d 668, 705, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998).
Elwin testified that he issued citations to Parker several times but he did not recall ever arresting him. But even assuming, without deciding, that defense counsel's cross-examination lacked requisite vigor, Parker's argument fails. Our Supreme Court addressed a similar issue in In the Matter of the Pers. Restraint of Pirtle, 136 Wn.2d 467, 965 P.2d 593 (1998). In Pirtle, the defendant made a "failure to impeach" claim. 136 Wn.2d at 489. Pirtle argued that his counsel violated his Sixth Amendment right to adequate representation by failing to cross-examine witnesses adequately. Pirtle, 136 Wn.2d at 489. The Pirtle court determined that "even a lame cross-examination will seldom, if ever, amount to a Sixth Amendment violation." 136 Wn.2d at 489.
Accordingly, Parker's SAG argument fails.
Parker's SAG refers to two additional statements made by third parties, Kirstina Piponius-Dobson and Randy Carney. Piponius-Dobson claims that defense counsel did not conduct a proper re-direct examination, failing to give her an opportunity to explain her accurate memory with regard to dates discussed at trial and her motivation for testifying. We do not analyze this claim further because the record does not support it. State v. McFarland, 127 Wn.2d 322, 334-38, 899 P.2d 1251 (1995). Second, Parker's SAG includes a statement made by Carney, who was outside the Parker residence on the day of the execution of the search warrant. However, Parker's claims about Carney's statements do not adequately state an additional ground for review.
We affirm the conviction, but vacate the sentence and remand for resentencing.
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.
HUNT, J. and BRIDGEWATER, J., concur.