FILED
COURT OF
APPEALS
DIVISION II
2015 JUN – 4
Ail 8: 38
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON1 T
WASHINGTON
DIVISION II i3
STATE OF WASHINGTON, No. 46433 -1 - I1
Respondent,
v. UNPUBLISHED OPINION
ORLANDO C. ALEXANDER,
Appellant.
MAXA, 7. — Orlando Alexander appeals his conviction and sentence for unlawful delivery
of a controlled substance. He argues that the trial court erred in imposing his sentence by using an
offender score based on prior convictions when the State failed to prove the existence of those
prior convictions by a preponderance of the evidence. The State concedes that it failed to prove
Alexander' s prior convictions at sentencing. We accept the State' s concession.
Alexander also challenges his conviction in a statement of additional grounds ( SAG),
asserting that ( 1) he received ineffective assistance of counsel for several reasons, ( 2) he was
denied his Sixth Amendment right to confrontation when his attorney was not allowed to interview
a key witness or meaningfully cross -examine him, ( 3) the prosecutor failed to remove a witness
based on issues of credibility and violated Brady' when it did not disclose an alleged change in the
witness' s testimony, ( 4) the State failed to present sufficient evidence to charge him with unlawful
delivery of a controlled substance, and ( 5) the cumulative error doctrine entitles him to relief
because the combined effect of the alleged errors denied him a fair trial. We reject Alexander' s
SAG arguments.
1
Brady v. Maryland, 373 U. S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 ( 1963).
46433 -1 - I1
We affirm Alexander' s conviction, but vacate his sentence and remand for resentencing.
FACTS
On April 3, 2013 a Tacoma Police informant made a controlled purchase of crack
cocaine. To initiate the drug purchase, the informant contacted Michael Zollner. Zollner then
contacted Alexander, and they agreed to meet in Alexander' s car in front of a Tacoma
convenience store. Zollner entered Alexander' s car, and then exited the car and gave the
informant an item later determined by the police to be cocaine.
The State charged both Alexander and Zollner with one count of unlawful delivery of a
controlled substance. At trial, Zollner testified against Alexander stating how the transaction
occurred. The jury found Alexander guilty.
Before sentencing, the State filed a document summarizing the defendant' s criminal
history and offender score. At the sentencing hearing, the State referenced documents in support
of its offender score calculation, but there is no evidence that these documents were produced at
sentencing. The trial court calculated Alexander' s offender score at seven, and sentenced him to
the standard range of 90 months in prison.
Alexander appeals.
ANALYSIS
A. PROOF OF PRIOR CONVICTIONS
Alexander argues, and the State concedes, that his sentence should be vacated because
the State did not prove the existence of his prior convictions by a preponderance of the evidence.
We accept the State' s concession because the State failed to provide evidence supporting its
summary of Alexander' s criminal history.
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A trial court' s sentence following a conviction depends on a defendant' s offender score,
which is calculated based on the defendant' s current offenses and prior convictions. RCW
9. 94A. 525, . 530( 1). We review a sentencing court' s calculation of an offender score de novo.
State v. Bergstrom, 162 Wn.2d 87, 92, 169 P. 3d 816 ( 2007).
In order to establish a defendant' s criminal history for sentencing purposes, the State
must prove a defendant' s prior convictions by a preponderance of the evidence. RCW
9. 94A. 500( 1); State v. Hunley, 175 Wn.2d 901, 909 -10, 287 P. 3d 584 ( 2012). The best evidence
of a prior conviction is a certified copy of the judgment, but the State also may produce other
comparable documents or transcripts from prior hearings to prove prior convictions. Id. at 910.
In addition, the State can meet its burden if the defendant affirmatively acknowledges the
criminal history on the record. State v. Mendoza, 165 Wn.2d 913, 930, 205 P. 3d 113 ( 2009),
disapproved ofon other grounds by State v. Jones, 182 Wn.2d 1, 338 P. 3d 278 ( 2014). 2
However, the " mere failure to object to a prosecutor' s assertions of criminal history does not
constitute such an acknowledgement." Id. at 928.
Here, the State did not satisfy its burden of proving Alexander' s prior convictions by a
preponderance of the evidence. The State filed a sentencing memorandum and a proposed .
stipulation detailing Alexander' s criminal history and offender score. However, Alexander did
not sign the proposed stipulation. Moreover, the State failed to introduce any evidence
substantiating its list of Alexander' s reported prior felony and misdemeanor convictions or
document the existence and dates of these misdemeanors.
2 Jones disapproved of Mendoza to the extent that it could be read as reaffirming the " no second
chance" rule, which precluded the State from presenting additional evidence of a defendant' s
criminal history on remand. Jones, 182 Wn.2d at 7 n.3.
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Because the State did not provide evidence of Alexander' s criminal history, it did not
establish Alexander' s prior convictions by a preponderance of the evidence. Therefore, we
vacate Alexander' s sentence and remand for resentencing. At resentencing, the State will be able
to offer evidence proving Alexander' s prior convictions. RCW 9. 94A.530( 2).
B. SAG ASSERTIONS
Alexander makes a number of claims in his SAG. We hold that these claims have no
merit.
1. Ineffective Assistance of Counsel
Alexander asserts that he received ineffective assistance of counsel because his attorney
a) failed to collect evidence of reports and police statements, ( b) failed to conduct a reasonable
pretrial investigation, ( c) made statements to Alexander prompting him to file a letter of
grievance with the Department of Assigned Counsel, ( d) failed to investigate the criminal history
of Zollner, a witness for the State, ( e) had a conflict of interest, ( f) failed to impeach Zollner, and
g) failed to make timely motions at trial. We hold that these claims rely on facts outside the
record or that have no merit.
a. Legal Principles
We review claims of ineffective assistance of counsel de novo. State v. Sutherby, 165
Wn. 2d 870, 883, 204 P. 3d 916 ( 2009). To prevail on an ineffective assistance of counsel claim,
the defendant must show both that ( 1) defense counsel' s representation was deficient, and ( 2) the
deficient representation prejudiced the defendant. State v. Grier, 171 Wn.2d 17, 32 -33, 246 P. 3d
1260 ( 2011). Representation is deficient if, after considering all the circumstances, it falls below
an objective standard of reasonableness. Id. at 33. Prejudice exists if there is a reasonable
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probability that except for counsel' s errors, the result of the proceeding would have been
different. Id. at 34
We presume that counsel' s representation was effective, and to demonstrate deficient
performance the defendant must show that, based on the record, there are no legitimate strategic
or tactical reasons for the challenged conduct. State v. Emery, 174 Wn.2d 741, 755, 278 P. 3d
653 ( 2012). The law affords trial counsel wide latitude in the choice of tactics. In re Pers.
Restraint ofStenson, 142 Wn. 2d 710, 736, 16 P. 3d 1 ( 2001). Legitimate trial strategy cannot
serve as the basis for a claim of ineffective assistance of counsel. State v. Lord, 117 Wn.2d 829,
883, 822 P. 2d 177 ( 1991).
b. Matters Relying on Facts Outside the Record
Alexander' s first five claims regarding ineffective assistance of counsel all depend on
matters outside the record. Alexander alleges that his attorney failed to collect evidence
regarding police statements and reports. He asserts that his attorney failed to conduct a pretrial
investigation, but does not identify of what. He claims his defense counsel made statements to
Alexander prompting him to write a grievance letter to the Department of Assigned Counsel.
Alexander claims his attorney failed to investigate Zollner' s criminal history. And he argues that
his defense counsel' s " interests were on others rather than [ Alexander]," and his attorney had a
conflict of interest at a pretrial hearing that prohibited them from communicating. SAG at 2.
There is nothing in the record to support these claims. As a result, we cannot consider
them in this direct appeal. State v. Alvarado, 164 Wn.2d 556, 569, 192 P. 3d 345 ( 2008). They
are more properly raised in a personal restraint petition. Id.
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c. Failure to Impeach
Alexander argues that he received ineffective assistance when his defense counsel failed
to impeach Zoliner, who testified against Alexander. However, the record demonstrates that
counsel for Alexander cross -examined Zollner at trial and impeached his character with evidence
of Zollner' s 2010 conviction for " making a false statement to law enforcement." Report of
Proceedings at 165. In addition, Alexander' s attorney elicited testimony from Zollner that he
lied to police and was cooperating with law enforcement by agreeing to testify. Therefore, we
hold that this claim has no merit.
d. Failure to Make Timely Motions
Alexander argues that his defense counsel was ineffective by failing to file timely
motions. He does not argue that his attorney should have filed different motions, but seems to
argue that his attorney' s performance was lackluster when compared to his co- defendant' s
attorney.
The record demonstrates that Alexander' s attorney filed two motions his behalf, one for a
medical continuance and one for Alexander' s release on an appeal bond at sentencing.
Alexander argues that his counsel' s actions constitute objectively deficient performance, but he
does not explain or provide supporting evidence from the record. Therefore, he fails to establish
deficient performance.
2. Right to Confrontation
Alexander argues that he was denied his right to confront witnesses who testified against
him when his attorney was not allowed to interview Zollner or conduct a " meaningful cross -
examination" of Zollner. SAG at 3. We disagree.
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Under the Sixth Amendment to the United States Constitution, criminal defendants have
the right to confront or cross -examine those who offer testimony against them. State v. Jasper,
174 Wn.2d 96, 109, 271 P. 3d 876 ( 2012). The right to confrontation means that the defendant
must have the opportunity to confront those who bear testimony. Id. The primary and most
important component of the confrontation clause is the right to conduct a meaningful cross -
examination of adverse witnesses. State v. Darden, 145 Wn.2d 612, 620, 41 P. 3d 1189 ( 2002).
Confrontation' s " purpose is to test the perception, memory, and credibility of witnesses," and it
therefore helps assure the accuracy of the fact finding process. Id. We review an alleged
confrontation clause violation de novo. Jasper, 174 Wn.2d at 108.
The record contradicts. Alexander' s claim that he was denied the right to confront Zollner.
It shows that Alexander' s defense counsel interviewed Zollner before he testified. Moreover,
Alexander' s attorney was able to cross -examine Zollner at trial, questioning him about his 2010
conviction for making a false statement to law enforcement. Zollner also testified during defense
cross -examination that he lied to police and was cooperating with law enforcement by agreeing
to testify. Based on these facts, Alexander fails to show that he was deprived of his right to
confront or cross -examine Zollner.
3. Prosecutorial Misconduct
Alexander asserts that the prosecutor committed misconduct by failing to remove a
witness based on issues of credibility and by failing to disclose an alleged change in Zollner' s
testimony. We disagree.
The State has a duty to disclose material evidence favorable to the defendant. See Brady
v. Maryland, 373 U. S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 ( 1963). Brady states that the
suppression of evidence favorable to an accused violates due process " where the evidence is
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material either to guilt or to punishment, irrespective of the good faith or bad faith" of the State.
Id.
The State has a duty to learn of any favorable evidence " known to the others acting on
the government' s behalf in the case, including the police." Kyles v. Whitley, 514 U. S. 419, 437,
115 S. Ct. 1555, 131 L. Ed. 2d 490 ( 1995). But Brady does not obligate the State to
communicate preliminary or speculative information. United States v. Diaz, 922 F. 2d 998, 1006
2d Cir. 1990). And there is no Brady violation if the defendant, using reasonable diligence,
could have obtained the evidence. State v. Thomas, 150 Wn.2d 821, 851, 83 P. 3d 970 ( 2004).
To establish a Brady violation, a defendant must demonstrate the existence of each of
three necessary elements: ( 1) the State must have suppressed the evidence, either willfully or
inadvertently; ( 2) the evidence at issue must be favorable to the accused, either because it is
exculpatory, or because it is impeaching; and ( 3) prejudice must have ensued such that there is a
reasonable probability that the result of the proceeding would have differed had the State
disclosed the evidence to trial counsel. State v. Mullen, 171 Wn.2d 881, 895, 897, 259 P. 3d 158
2011).
Even assuming Alexander established the evidence was suppressed and that this evidence
should have been disclosed because it could have impeached Zollner' s testimony, Alexander has
not shown that his case was prejudiced by the State failing to inform him of the change in
Zollner' s testimony. Alexander argues that Zollner' s statements " completely change[ d]" at trial
and that his " testimony through states [ sic] questions elicit[ed] co- defendant `Z' to admit to
1] ying before but not now.' " SAG at 5. Alexander does not argue that the State suppressed
this evidence, willfully or inadvertently, stating only that trial testimony " was not the proper
venue for the accused to discover the testimony change." SAG at 5. The record shows that
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Alexander' s defense attorney elicited testimony highlighting that Zollner had lied initially to the
police and later told the truth. Therefore, Alexander' s claim for prosecutorial misconduct fails.
5. Sufficiency of the Evidence
Alexander argues that the State failed to present sufficient evidence to convict him with
unlawful delivery of a controlled substance. We disagree.
The test for determining sufficiency of the evidence is whether, after viewing the
evidence in the light most favorable to the State, any rational trier of fact could have found the
defendant guilty beyond a reasonable doubt. State v. Homan, 181 Wn.2d 102, 105, 330 P. 3d 182
2014). All reasonable inferences from the evidence must be drawn in favor of the State and
interpreted most strongly against the defendant. Id. The reviewing court defers to the trier of
fact on issues of conflicting testimony, credibility of witnesses, and persuasiveness of the
evidence. State v. Andy, 182 Wn.2d 294, 303, 340 P. 3d 840 ( 2014).
Taken in the light most favorable to the State, the evidence in this case supports
Alexander' s conviction for unlawful delivery of a controlled substance. The evidence shows that
Zollner was contacted by the police informant in order to purchase drugs. At trial, Zollner
testified that he had called Alexander to arrange the cocaine purchase, which he acquired from
Alexander and delivered to the informant. Zollner testified that he gave permission to police
officers to search and use his cellular phone; the officers dialed the most recent outgoing call
connecting them. to Alexander' s phone. Officers involved in the operation also testified that they
had observed Zollner' s movements and confirmed that Zollner' s last call was to Alexander' s
phone.
Based on the evidence presented, a rational trier of fact could have found Alexander
guilty of unlawful delivery beyond a reasonable doubt. Therefore, we find that the State
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presented sufficient evidence for a jury to reasonably convict Alexander of the unlawful delivery
of a controlled substance.
6. Cumulative Error
Alexander contends that the cumulative error doctrine entitles him to relief because the
combined effect of the alleged errors denied him a fair trial. Under the cumulative error
doctrine, the court may reverse a defendant' s conviction when the combined effect of trial errors
effectively denies the defendant his or her right to a fair trial, even if each error alone would be
harmless. State v. Weber, 159 Wn.2d 252, 279, 149 P. 3d 646 ( 2006). But because Alexander
has failed to show any prejudicial errors affecting his conviction, we reject this assertion.
We affirm Alexander' s conviction, but vacate his 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 in accordance with RCW 2. 06. 040,
it is so ordered.
We concur:
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