IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
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STATE OF WASHINGTON, ) No. 73333-8-I ~
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MARCO BAILON WENCES, ) UNPUBLISHED OPINION
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Appellant. ) FILED: July 25, 2016
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VERELLEN, C.J. — Marco Wences appeals his conviction for possession of
methamphetamine with intent to manufacture or deliver. He contends the court erred
in failing to suppress all of his statements to police and in imposing a firearm
enhancement as part of his sentence. Because Wences has not carried his burden
of demonstrating a basis to raise his new suppression argument for the first time on
appeal and because he may not benefit from prospective changes in the law
governing enhancements that occurred during a decade-long sentencing delay
caused by his flight, we affirm.
FACTS
Based on evidence obtained in a search of Wences’ car and a subsequent
interrogation, the State charged him with possession of methamphetamine with intent
to manufacture or deliver. The information alleged that Wences was armed with a
firearm when he committed the offense.
No. 73333-8-1/2
Prior to trial, Wences moved to suppress his statements to police. At the
suppression hearing, Officer Bruce Bosman testified that he obtained a warrant to
search Wences and his Toyota Corolla after a confidential informant indicated
Wences was selling methamphetamine.
On September 9, 2003, Officer Bosman spotted the Toyota and pulled it over.
He informed Wences, the driver, of the search warrant. He advised him of his rights
to remain silent and to an attorney and then commenced questioning. When Officer
Bosman asked if there was a gun in the car, Wences said there was, but claimed it
was not his.
After this initial questioning, Officer Bosman detained Wences in his patrol car
and searched the Toyota. He found methamphetamine, a firearm, and a substantial
amount of cash. Officer Bosman then arrested Wences and read him complete
Miranda1 warnings, including a warning that anything he said could be used against
him in court. Officer Bosman proceeded to ask Wences additional questions, and
Wences made additional incriminating statements.
In the suppression hearing, Wences testified that Officer Bosman gave him full
Miranda warnings, including a warning that anything he said could be used against
him in court, before each period of questioning. He claimed, however, that he
requested an attorney and did not answer any questions. Neither party mentioned
the then-recent decision in regarding improper two-step interrogations,2 nor did
Wences argue that Officer Bosman had used an improper two-step interrogation.
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1996).
2 Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601, 159 L. Ed. 2d 643 (2004).
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The court granted the motion to suppress in part, ruling that Wences’ “initial
statements . . . made prior to being advised of. . . full constitutional rights” were not
admissible.3 The court also ruled, however, that Wences’ subsequent statements
“made after advisement of constitutional rights” were voluntary and admissible.4 The
court expressly found Wences’ claim that he requested an attorney “not credible.”5
After trial, the court gave the jury a special verdict form asking whether
Wences was “armed with a deadly weapon at the time of commission of the crime.”6
The court instructed the jury that, for purposes of the special verdict, the State had to
prove “that the defendant was armed with a deadly weapon at the time of the
commission of the crime” and that “[a] pistol, revolver, or any other firearm is a deadly
weapon whether loaded or unloaded.7 The jury answered “yes” to the special verdict
question and convicted Wences as charged.
Wences did not appear for his initial sentencing in 2004 and was not
sentenced until 2015. The court imposed 100 months of confinement, including a 36-
month firearm enhancement.8 Wences appeals.
~ Clerk’s Papers at 54.
~ Id.
~ Id. at 53.
6 Id. at 30.
ki. at 50 (emphasis added).
8 ~ former RCW 9.94A.51 O(3)(b) (2001) (recodified as RCW 9.94A.533 by
LAWS OF 2002, ch. 290, § 11 (three-year firearm enhancement for class B felonies
and crimes with maximum sentence of 10 years)).
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No. 73333-8-1/4
DECISION
For the first time on appeal, Wences contends his post-Miranda statements
should have been suppressed as the product of an impermissible two-step
interrogation under Missouri v. Seibert.9 Under Seibert, courts must suppress post-
Miranda statements if police deliberately attempted to undermine Miranda warnings
by using a two-step process in which initial unwarned statements were used to obtain
post-warning statements.1° We do not reach Wences’ Seibert claim because he fails
to carry his burden of demonstrating a valid basis to raise it for the first time on
appeal.
“As a general rule, appellate courts will not consider issues raised for the first
time on appeal.”11 An appellant waives a suppression issue if he or she failed to
move for suppression on the same basis below.12 Wences concedes he did not
assert any argument under Seibert below. He argues, however, that the issue
involves manifest constitutional error that may be raised for the first time on appeal
under RAP 2.5(a)(3). We disagree.
To establish manifest constitutional error, a defendant must demonstrate
constitutional error and “show how the alleged error actually affected [his] rights at
~542 U.S. 600, 124 S. Ct. 2601, 159 L. Ed. 2d 643 (2004).
10 State v. Rhoden, 189 Wn. App. 193, 199-203, 256 P.3d 242 (2015).
11 State v. McFarland, 127 Wn.2d 322, 332—33, 899 P.2d 1251 (1995); RAP
2.5(a) (“The appellate court may refuse to review any claim of error which was not
raised in the trial court.”).
12 State v. Garbaccio, 151 Wn. App. 716, 731, 214 P.3d 168 (2009) (“Because
[the defendant’s] present contention was not raised in his suppression motion, and
because he did not seek a ruling on this issue from the trial court, we will not consider
it for the first time on appeal.”).
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trial.”13 “It is this showing of actual prejudice that makes the error ‘manifest,’ allowing
appellate review.”14 When a suppression issue is raised for the first time on appeal,
however, the record may be insufficient to show actual prejudice because neither the
defendant nor the State had the incentive or opportunity to develop the factual record
before the trial court.15
Here, the State contends Wences cannot establish manifest constitutional
error because his failure to raise his Seibert argument below leaves this court with an
insufficient record to determine whether the interrogating officer deliberately
employed an improper interrogation. The State notes that
[i]n deciding whether an improper two-part interrogation took place, the
court is to take into consideration subjective evidence, such as an
officer’s testimony. [State v.1 Hickman, 157 Wn. App. [767,] at 775[,]
238 P.3d 1240 (2010)]. Because the issue was not raised below, the
testimony of the officer as to his reason for giving the partial warnings is
not available. Furthermore, the defendant testified that he was advised
of more rights than the officer remembered giving him. The court did
not enter findings with regard to the defendant’s testimony. Had the
court been alerted to the issue at the trial level, it could and likely would
have entered findings specific to that issue.~16~
Wences chose not to respond to the State’s argument, resting instead on a
conclusory statement in his opening brief that “the record is adequate.”17 This is
insufficient.
13 State v. Kirkman, 159 Wn.2d 918, 926—27, 155 P.3d 125 (2007).
14 at 927 (citing McFarland, 127 Wn.2d at 333).
15 See McFarland, 127 Wn.2d at 333.
16 Br. of Resp’t at 9.
~7 Appellant’s Br. at 10.
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It is the appellant’s burden to establish the grounds for reviewing an issue for
the first time on appeal.18 Considering that the test for whether a two-step
interrogation occurred involves consideration of all objective and subjective evidence
bearing on the interrogating officer’s intent,19 and given the absence of any testimony
from the interrogating officer on that point, there is not an adequate record to analyze
Wences’ two-step interrogation theory. Wences fails to carry his burden of
demonstrating manifest constitutional error.2°
Citing State v. Williams—Walker,21 Wences next contends the court erred in
imposing a three-year firearm sentence enhancement because the jury’s special
verdict only found that he was armed with a “deadly weapon.” If the decision in
Williams-Walker and its predecessor, State v. Recuenco,22 applied to this case,
Wences’ argument would have merit. The courts in those cases held that a
sentencing court is authorized to impose only the specific enhancement found by the
18 State v. Grimes, 165 Wn. App. 172, 185-86, 267 P.3d 454 (2011).
19 State v. Hickman, 157 Wn. App. 767, 775, 238 P.3d 1240 (2010).
20 Although we do not reach the merits of Wences’ argument under Seibert, we
note that when, as here, post-warning statements follow statements made after
attempted but incomplete warnings, there is little reason to believe that police
deliberately tried to undermine Miranda. As one court noted in addressing facts
similar to those presented here, “Because giving any warnings undermines the
effectiveness of the ‘question first’ tactic, the fact that some warnings were given
strongly evidences that the tactic was not being used.” United States v. Street, 472
F.3d 1298, 1314 (11th Cir. 2006) (emphasis added); see also Hill v. Thaler, 484 Fed.
App’x. 888, 890 (5th Cir. 2012) (“any argument that the officer employed a deliberate
strategy is undermined by the fact that a partial reading of Miranda rights was
given.”); Fed. R. App. P. 32.1(a) (permitting citation to unpublished federal decisions
issued in 2007 or later). It is undisputed that Officer Bosman informed Wences of his
rights to remain silent and to an attorney before the initial questioning.
21167 Wn.2d 889, 897-98, 225 P.3d 913 (2010).
22 163 Wn.2d 428, 180 P.3d 1276 (2008).
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No. 73333-8-1/7
jury.23 Accordingly, a jury determination that the defendant was armed with a deadly
weapon does not authorize a court to impose a firearm enhancement, and imposition
of the latter is not subject to harmless error analysis.24 But Williams-Walker and
Recuenco are not retroactive and therefore do not apply to judgments and sentences
that were final when they were decided in 2008 and 2010.25 While Wences’
judgment and sentence was not final until 2015, it would have been final prior to both
Recuenco and Williams-Walker but for Wences’ flight and the consequent 11-year
delay of his sentencing. A defendant should not benefit from changes in the law that
apply to him solely because he absconded and delayed his sentencing.26
23 Williams-Walker, 167 Wn.2d at 898-99.
24 Id. at 898-901.
25 In re Pers. Restraint of Netherton, 177 Wn.2d 798, 802, 306 P.3d 918
(2013).
26 See State v. Moore, 63 Wn. App. 466, 470-71, 820 P.2d 59 (1991) (rejecting
defendant’s argument that all of his sentences should have run concurrently because
he absconded to avoid sentencing on some of the offenses and “[b]y doing so, he
prevented those sentences from being entered when they normally would have been.
To order the [sentences] to run concurrently. would in effect reward [the
. .
defendant]” for absconding); State v. Sills, 260 Or. App. 384, 388-94, 317 P.3d 307,
309-12 (2013) (“we find it significant that. one of defendant’s challenges to his
. .
conviction would be affected—indeed benefited—by case law that has developed
since he absconded. . Absent defendant’s flight from Oregon, he would have been
. .
sentenced in 2000, and any appeal relating to that judgment would have been
governed by the law as it existed at that time. In all likelihood, an appeal at that time
would have resulted in a different outcome on defendant’s first assignment of error.
Under those circumstances, we conclude that defendant’s lengthy escape from
justice significantly interfered with the appellate process and forfeits his appeal.”);
State v. Ristick, 204 Or. App. 626, 631, 131 P.3d 762 (2006) (dismissing appeal of
defendant who fled before sentencing because the challenge to his sentence rested
on a case decided during his flight and entertaining the argument “would allow
defendant to benefit from flouting the judicial process and leave others undeterred
from doing the same”).
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Because the jurys deadly weapon finding was sufficient to authorize Wences’
firearm enhancement under the laws in effect at the time of his conviction (prior to
Recuenco and Williams-Walker)27 and because Wences cannot benefit from
subsequent changes in the law, the court did not err in imposing the firearm
enhancement.
The conviction and sentence are affirmed.
WE CONCUR:
‘3-,
27 In re Pers. Restraint of Jackson, 175 Wn.2d 155, 163-64, 283 P.3d 1089
(2012).
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