Opinion
No. 64332-1-I.
November 8, 2010.
Appeal from a judgment of the Superior Court for King County, No. 08-1-13245-1, Harry J. McCarthy, J., entered October 2, 2009.
Affirmed in part and remanded by unpublished opinion per Ellington, J., concurred in by Leach, A.C.J., and Grosse, J.
Michael Taylor appeals his conviction for possession of a controlled substance. He argues ineffective assistance of counsel and seeks reversal of his conviction, further asserting that the evidence proves certain defenses by a preponderance of the evidence. Alternatively, he seeks remand for resentencing.
We affirm Taylor's conviction, but remand for sentencing within the guidelines.
FACTS
On October 23, 2008, Michael L. Taylor went to a Rite Aid pharmacy to pick up his prescription for 30 pills of Vicodin. The pharmacy staff mistakenly gave him another person's prescription for 120 pills of oxycodone. Within minutes of Taylor's departure, the mistake was discovered and a pharmacy technician called Taylor, explained the situation, and asked him to come back to the pharmacy to correct the error. Taylor said he would return right away, but he did not.
The following day, the managing pharmacist phoned Taylor twice, each time asking Taylor to return the pills to Rite Aid. When Taylor returned the prescription bottle later that day, the pharmacist found that 71 of the 120 pills were missing. When asked what happened to the missing pills, Taylor replied that he had given them away.
The State charged Taylor with unlawful possession of a controlled substance under RCW 69.50.4013, which states, "It is unlawful for any person to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription."
Taylor's attorney did not propose jury instructions for the defenses of valid prescription or unwitting possession. The jury found Taylor guilty, and the court imposed a sentence of 240 hours of community service and 12 months' community custody.
Taylor argues that his attorney's failure to propose jury instructions for the defenses of valid prescription or unwitting possession constituted ineffective assistance of counsel. He further argues that a preponderance of evidence established both of these defenses and that the charges against him should be dismissed. Taylor alternatively requests that his sentence be reversed because of a misapprehension of the sentencing guidelines by the court.
DISCUSSION Ineffective Assistance of Counsel and Sufficiency of the Evidence
To prevail on a claim of ineffective assistance, Taylor must show both deficient performance and resulting prejudice. The first element is met by showing counsel's performance was not reasonably effective under prevailing professional norms. The second element is met by showing a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ineffective assistance of counsel is a mixed question of law and fact which we review de novo.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996) (citing Strickland).
Strickland, 466 U.S. at 694.
State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987) (quoting Strickland, 466 U.S. at 694).
Strickland, 466 U.S. at 694.
Id. at 689-90.
We presume counsel was effective. This presumption is rebutted if there is no possible tactical explanation for counsel's performance.
Id. at 689; State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004).
Reichenbach, 153 Wn.2d at 130.
A defendant is entitled to a jury instruction supporting his theory of the case if there is substantial evidence in the record supporting it. Failure to request an instruction on a potential defense can constitute ineffective assistance of counsel. Taylor alleges his attorney's performance was deficient because she failed to propose jury instructions for the defenses of having a valid prescription and unwitting possession of a controlled substance. But Taylor was not entitled to either instruction.
State v Powell, 150 Wn. App. 139, 154, 206 P.3d 703 (2009). To constitute ineffective assistance of counsel, we must determine whether (1) the defendant was entitled to the instruction; (2) failure to offer the instruction was tactical; and (3) if the defendant was prejudiced by the failure to offer the instruction. Id. at 154-58.
Thomas, 109 Wn.2d at 229.
Under RCW 69.50.4013(1), a person in possession of a controlled substance for which he has a prescription is in lawful possession of that substance. The defendant bears the burden of proof by a preponderance of the evidence. It is undisputed that Taylor had possession of a drug for which he did not have a prescription. Taylor's argument that his attorney should have proposed an instruction to which he was not entitled is without merit.
State v. George, 146 Wn. App. 906, 915, 193 P.3d 693 (2008) (unwitting possession must be proved by a preponderance of the evidence); State v. Pierce, 134 Wn. App. 763, 774, 142 P.3d 610 (2006) (the defendant bears the burden of proving unwitting or lawful possession).
Unwitting possession is a well-established common-law defense to a charge of possession. Possession is unwitting if the person did not know the substance was in his or her possession or did not know the nature of the substance.
See George, 146 Wn. App. at 914-15; State v. Olinger, 130 Wn. App. 22, 26, 121 P.3d 724 (2005).
See 11 Washington Pattern Jury Instructions: Criminal 52.01 (3d ed. 2008).
The pharmacy mistakenly gave Taylor the wrong prescription. Thereafter, Rite Aid pharmacy staff spoke with Taylor at least three times, and on each occasion told him he had somebody else's prescription and that he must return it. He promised to do so, but did not return the prescription bottle until the next day, and returned only 49 of the 120 pills. The prescription bottle was clearly labeled. Taylor told the pharmacist he had given the other pills to family and friends.
On this evidence, Taylor could not show unwitting possession. The evidence did not support the instruction and counsel was not deficient in failing to propose it.
Sentencing
The court sentenced Taylor to perform community service during six months' community custody. Upon the representation of the deputy prosecutor that a sentence of 12 months' community custody was mandatory, the court imposed 12 months. However, the prosecutor was incorrect.
An offender's sentence is determined in accordance with the law in effect at the time of the offense. At the time of Taylor's crime, RCW 9.94A.545 authorized sentencing courts to impose a term of community custody of up to one year when a defendant was sentenced to less than one year of confinement for a felony violation of chapter 69.50 RCW. Taylor's sentence did not include confinement, so the court had discretion to impose community custody of less than one year. The State concedes that the court misapprehended its options.
RCW 9.94A.345; State v. Varga, 151 Wn.2d 179, 191, 86 P.3d 139 (2004).
When the court is mistaken about its discretion to impose a particular sentence, the remedy is to remand for reconsideration of that portion of the sentence.
In re Pers. Restraint of Mulholland, 161 Wn.2d 322, 333-34, 166 P.3d 677 (2007).
We affirm Taylor's conviction, but remand for the court to reconsider the term of community custody.
WE CONCUR: