FILED
JULY 2, 2019
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 36646-4-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
DAVID WILLIAM BROWN, )
)
Appellant. )
LAWRENCE-BERREY, C.J. — David Brown appeals his sentence after his
conviction for possession of a controlled substance, methamphetamine, with intent to
deliver. He argues he received ineffective assistance of counsel because his attorney
failed to request a drug offender sentencing alternative (DOSA). We determine that
Brown cannot establish a reasonable probability that the trial court would have granted a
DOSA and affirm.
No. 36646-4-III
State v. Brown
FACTS
Police served a search warrant at Brown’s residence for suspected drug activity.
Detective Kenny Lutz detained Brown and read him his Miranda1 rights. Brown waived
his rights and spoke with Detective Lutz. Brown confessed to Detective Lutz that he was
getting methamphetamine from a few people and only “middle-manning”—just dealing to
some of his friends to help them out. Report of Proceedings (RP) at 154. Brown told
Detective Lutz that the police would find scales and methamphetamine in “baggies” and
explained where those items were located in his home. Brown said most of his deals
were in smaller gram amounts. The search of Brown’s home revealed one baggie with
one gram of methamphetamine, less than one-tenth of one gram of methamphetamine on
a scale plate, and more than 20 small baggies, which did not contain methamphetamine.
Detective Lutz also executed a search warrant on Brown’s cell phone. Detective
Lutz uncovered many text messages to and from Brown that evidenced he was dealing
methamphetamine. There was a message about selling an “eight ball,” or 3.5 grams of
methamphetamine. RP at 165. There were messages from Brown about the price for two
ounces of methamphetamine. Detective Lutz testified that two ounces of
methamphetamine is much more than a “personal use” amount. RP at 170-71.
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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No. 36646-4-III
State v. Brown
Brown was charged with possession of a controlled substance, methamphetamine,
with intent to deliver, together with a school bus route stop enhancement. Brown
proceeded to trial, and a jury found him guilty.
The court subsequently sentenced Brown. The standard range was 36 to 44
months with the school bus route stop enhancement. The State recommended a sentence
of 40 months because of Brown’s history of dealing methamphetamine evidenced through
the text messages. The State acknowledged that Brown had no felony criminal history
and only a driving under the influence of intoxicating alcohol or drugs in Nevada in 2001.
Brown’s counsel asked for an exceptional downward departure from the sentencing
range because Brown was older, he had no prior felony criminal history, and he
cooperated fully with law enforcement, which in turn weighed heavily against him at trial.
The court sentenced Brown to 36 months, the low end of the standard range sentence.
Brown timely appealed to this court.
ANALYSIS
INEFFECTIVE ASSISTANCE OF COUNSEL
Brown contends he received ineffective assistance of counsel because his trial
counsel failed to request a DOSA sentence. We disagree.
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No. 36646-4-III
State v. Brown
To protect a defendant’s right to counsel, a defendant has the right to receive
effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984). An allegation of ineffective assistance of counsel is a
mixed question of law and fact that we review de novo. State v. Sutherby, 165 Wn.2d
870, 883, 204 P.3d 916 (2009) To determine whether counsel provided effective
assistance, we apply a two-pronged test: (1) whether counsel’s performance was deficient
and (2) whether that deficient performance prejudiced the defendant to an extent that
changed the result of the trial. Strickland, 466 U.S. at 687. We can address the second
prong initially “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack
of sufficient prejudice.” Id. at 697.
To show prejudice, the defendant must show that without the errors, there is a
“reasonable probability” that the result of the proceeding would have been different. Id.
at 694. A “reasonable probability” is a “probability sufficient to undermine confidence in
the outcome.” Id.
Even if Brown’s counsel requested a DOSA sentence, we are not convinced there
was a “reasonable probability” that the court would have granted his request. A trial
court has the discretion to grant a DOSA sentence if the defendant meets all of the
statutory criteria. RCW 9.94A.660. Under RCW 9.94A.660:
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No. 36646-4-III
State v. Brown
(1) An offender is eligible for the special drug offender sentencing
alternative if:
(a) The offender is convicted of a felony that is not a violent offense
or sex offense and the violation does not involve a sentence enhancement
under RCW 9.94A.533(3) or (4);
(b) The offender is convicted of a felony that is not a felony driving
while under the influence of intoxicating liquor or any drug under RCW
46.61.502(6) or felony physical control of a vehicle while under the
influence of intoxicating liquor or any drug under RCW 46.61.504(6);
(c) The offender has no current or prior convictions for a sex
offense at any time or violent offense within ten years before conviction of
the current offense, in this state, another state, or the United States;
(d) For a violation of the Uniform Controlled Substances Act under
chapter 69.50 RCW or a criminal solicitation to commit such a violation
under chapter 9A.28 RCW, the offense involved only a small quantity of
the particular controlled substance as determined by the judge upon
consideration of such factors as the weight, purity, packaging, sale price,
and street value of the controlled substance;
(e) The offender has not been found by the United States attorney
general to be subject to a deportation detainer or order and does not become
subject to a deportation order during the period of the sentence;
(f) The end of the standard sentence range for the current offense is
greater than one year; and
(g) The offender has not received a drug offender sentencing
alternative more than once in the prior ten years before the current offense.
Although Brown may have met most the criteria, he does not meet subsection
(1)(d). Brown argues that the only methamphetamine found in his home was one gram in
one baggie and less than one-tenth of one gram on a scale, which constitutes a small
amount. This may be true, but Brown was convicted for possession with intent to deliver,
not mere possession. There was substantial evidence that he engaged in many drug deals.
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No. 36646-4-III
State v. Brown
Detective Lutz uncovered messages that indicated Brown was selling as much as two
ounces of methamphetamine per transaction—much more than a “personal use” amount.
Therefore, Brown would not meet the criteria for a DOSA sentence because the offense
did not involve a small quantity. RCW 9.94A.660(1)(d). And a trial court has
discretion to grant a DOSA sentence only if the defendant meets all the criteria.
RCW 9.94A.660(1).
Moreover, the trial court seemed dissatisfied with Brown’s level of involvement,
personal knowledge, and sophistication of methamphetamine dealing.
You know, what struck me kind of just as dicta to the case and maybe part
of the sentencing is that you’re highly sophisticated in the language and the
art of methamphetamine dealing. From the testimony that I heard listening
to some of the different transactions that were occurring around you, with
you, talking about gas, talking about full tanks, talking about all sorts of—
and—and I think one of your comments to one of the people that was
looking for some dope is an eight—something about an eight ball is what I
remember and you said don’t talk any more like that to me. I mean so you
were very sophisticated in the evidence that I heard about the—the art of—
of methamphetamine dealing.
RP at 233-34. With this insight into the trial court’s considerations, we are not convinced
that even if requested, the trial court would have granted Brown’s DOSA request.
Because Brown cannot show with a reasonable probability that the trial court
would have granted his DOSA request if his counsel requested it, Brown cannot establish
that he received ineffective assistance of counsel.
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No. 36646-4-III
State v. Brown
Brown requests waiver of appellate costs if he does not prevail. The State has
agreed not to request appellate costs. None are imposed.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Lawrence-Berr~y, C.J. ~ c.. ~-
WE CONCUR:
Pennell, J.
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