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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON 77 c::
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STATE OF WASHINGTON,
No. 68062-5-1 CO
Respondent,
v. DIVISION ONE
CO
CO
ERIC VERNON CARMICHAEL, UNPUBLISHED OPINION
1—1
Appellant. FILED: May 13, 2013
Leach, C.J. — Eric Carmichael appeals his sentence for his conviction for
possession of stolen property, unlawful possession of a firearm, and violation of
the Uniform Controlled Substances Act, chapter 69.50 RCW. He challenges the
trial court's finding that he has the current or future ability to pay the imposed
mandatory legal financial obligations and the legality of his sentence. In a
statement of additional grounds, Carmichael claims that the court improperly
denied his motions to suppress evidence, denied him meaningful access to the
court, erroneously denied his requested jury instruction, improperly permitted the
prosecutor to disclose his prior crimes, erroneously admitted evidence, and
miscalculated his offender score. Because the record does not support the
ability to pay finding and the finding is unnecessary, we remand for the limited
purpose of striking the finding. Finding no merit in Carmichael's remaining
arguments, we otherwise affirm.
No. 68062-5-1/2
Background
On May 21, 2011, around 5:00 a.m., an off-duty Seattle Police officer
reported suspicious circumstances to the Renton Police. She had seen two
white males and a black male flee from a vehicle parked in a no-parking zone
into adjacent woods. One of the Renton officers looked into the vehicle and
observed an open glove box, items strewn about, the absence of a stereo, and
its wires hanging out. A police dispatch indicated that the vehicle was not
reported as stolen. The Renton officers found two of the men, including
Carmichael, in the woods and directed them to stop. Carmichael matched the
description of one of the individuals seen fleeing the vehicle. Although the
officers told Carmichael to keep his hands up, he repeatedly dropped them to his
side. One of the officers patted down Carmichael for weapons and found a
loaded handgun, pepper spray, a window punch, and a Leatherman tool in his
jacket pocket.
At a showup, the Seattle Police officer positively identified the men as
those she saw at the vehicle. The officers learned that Carmichael was a
convicted felon and that the vehicle was now reported as stolen. They arrested
Carmichael and searched him incident to arrest, finding methamphetamine and
suspected stolen items, including a check.
The State charged Carmichael with one count of possession of a stolen
vehicle, one count of unlawful possession of a firearm in the first degree, one
count of possession of stolen property in the first degree, and one count of
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No. 68062-5-1 / 3
violation of the Uniform Controlled Substances Act for possession of
methamphetamine. The court granted Carmichael's motion to represent himself
but also appointed standby counsel. At trial, the court denied Carmichael's
motions to suppress physical evidence under CrR 3.6 and his motion to dismiss
under CrR 8.3(b) for governmental misconduct. The State conceded that it
presented insufficient evidence of possession of a stolen vehicle, and a jury
convicted Carmichael on all other counts. The court imposed concurrent
sentences, totaling 116 months of confinement and 12 months of community
custody. Carmichael appeals.
Analysis
Carmichael contends that the record does not support the sentencing
court's boilerplate finding that he "has the present or likely future ability to pay the
financial obligations imposed." Carmichael does not challenge the financial
obligations that the court imposed—the victim's penalty assessment and the
DNA collection fee. He seeks only to strike the court's finding regarding his
ability to pay. Because this finding is unsupported by the record and
unnecessary, we grant his request.
The trial court is not required to enter findings regarding a defendant's
ability to pay before ordering the defendant to pay financial obligations.1 The
proper time for such findings "is the point of collection and when sanctions are
1 State v. Blank, 131 Wn.2d 230, 241-42, 930 P.2d 1213 (1997); State v.
Curry. 118 Wn.2d 911, 916, 829 P.2d 166(1992).
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No. 68062-5-1/4
sought for nonpayment."2 While sentencing courts must consider the
defendant's financial situation before imposing nonmandatory costs,3 this
consideration is not necessary at sentencing when, as here, the financial
obligations imposed are mandatory.4 In these circumstances, the challenged
finding is unnecessary and should be stricken from the judgment and sentence.
Carmichael also claims that his sentence exceeds the statutory maximum.
The court imposed standard range sentences of 116 months of confinement for
unlawful possession of a firearm in the first degree, 57 months of confinement for
possession of stolen property in the first degree, and 24 months of confinement
for violation of the Uniform Controlled Substances Act.
Carmichael contends that the court added the 12 months of community
custody to his sentence for unlawful possession of a firearm. He argues that
when combined with the 116 months of confinement that the court imposed on
this count, the total exceeds the statutory maximum term of 120 months.5
2 Blank, 131 Wn.2d at 241-42; State v. Crook, 146 Wn. App. 24, 27, 189
P.3d 811 (2008).
3 See RCW 10.01.160(3) ("The court shall not order a defendant to pay
costs unless the defendant is or will be able to pay them. In determining the
amount and method of payment of costs, the court shall take account of the
financial resources of the defendant and the nature of the burden that payment of
costs will impose."); State v. Baldwin, 63 Wn. App. 303, 308-12, 818 P.2d 1116
(1991), 837 P.2d 646 (1992); State v. Bertrand, 165 Wn. App. 393, 404, 267 P.3d
511 (2011). review denied. 175Wn.2d 1014, 276 P.3d 10(2012).
4 See, e.g.. State v. Thompson, 153 Wn. App. 325, 336-39, 223 P.3d 1165
(2009) (DNA fee is mandatory and imposed regardless of hardship); State v.
Williams. 65 Wn. App. 456, 460-61, 828 P.2d 1158 (1992) (victim penalty
assessment "is mandatory and requires no consideration of a defendant's ability
to pay" at sentencing).
5 RCW 9.41.040; RCW 9A.20.21.
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No. 68062-5-1 / 5
When the standard range term of confinement, in combination with the
term of community custody, exceeds the statutory maximum for the crime, RCW
9.94A.701(9) requires the sentencing court to reduce the community custody
term to bring the total term within the statutory maximum.6 Despite Carmichael's
assertion, the judgment and sentence shows that the court imposed community
custody for possessing methamphetamine, a controlled substance, in violation of
RCW 69.50.4013. The standard range sentence for that offense is 12+ to 24
months ofconfinement. The statutory maximum term is 60 months.7
Unlawful possession of a firearm in the first degree and possessing stolen
property in the first degree are not crimes against a person.8 And, unlike
violations of the Uniform Controlled Substances Act, they are not violations of
chapter 69.50 RCW or chapter 69.52 RCW.9 Further, the court explicitly rejected
the State's request for an exceptional sentence. Therefore, it is clear from the
record that the sentencing court imposed 12 months of community custody for
violation of the Uniform Controlled Substances Act. Because the maximum term
that Carmichael can serve on that count is 36 months and the total term does not
exceed the statutory maximum of 60 months, his sentence is lawful.
In a statement of additional grounds, Carmichael challenges the trial
court's denial of his motion to suppress the physical evidence that police officers
6 State v. Boyd, 174 Wn.2d 470, 472, 275 P.3d 321 (2012).
7 RCW 69.50.4013(2); RCW 9A.20.021(1)(c).
8SeeRCW9.94A.411.
9See RCW 9.41.040(1); RCW 9A.56.150.
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No. 68062-5-1/6
obtained when they searched him in the woods and incident to arrest. Because
Carmichael does not assign error to any of the trial court's findings of fact
entered after the suppression hearing, they are verities on appeal.10 Therefore,
'"our review in this case is limited to a de novo determination of whether the trial
court derived proper conclusions of law from those [unchallenged] findings.'"11
Under Terry v. Ohio,12 "*[p]olice may conduct an investigatory stop if the
officer has a reasonable and articulable suspicion that the individual is involved in
criminal activity.'"13 Police may also conduct a frisk of the person if the officer
has reasonable grounds to believe that the person is armed and presently
dangerous.14 We examine the totality of the circumstances to determine whether
a Terry stop and frisk was justified.15
An arrest is reasonable if it is based on probable cause.16 The arresting
officer must have "'knowledge of facts sufficient to cause a reasonable [officer] to
10 State v. Lew, 156 Wn.2d 709, 733, 132 P.3d 1076 (2006) (citing State
v. O'Neill. 148 Wn.2d 564, 571, 62 P.3d 489 (2003)).
11 State v. O'Cain, 108 Wn. App. 542, 548, 31 P.3d 733 (2001) (alteration
in original) (quoting State v. Armenta. 134 Wn.2d 1, 9, 948 P.2d 1280 (1997)).
12 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
13 State v. Lee. 147 Wn. App. 912, 916, 199 P.3d 445 (2008) (quoting
State v. Walker. 66 Wn. App. 622, 626, 834 P.2d 41 (1992)).
14 State v. Hudson. 124Wn.2d 107, 112, 874 P.2d 160(1994).
15 State v. Glover. 116 Wn.2d 509, 514, 806 P.2d 760 (1991).
16 State v. Moore. 161 Wn.2d 880, 885, 169 P.3d 469 (2007) (citing State
v. Potter. 156 Wn.2d 835, 840, 132 P.3d 1089 (2006)).
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No. 68062-5-1/7
believe that an offense has been committed' at the time of the arrest."17 An
officer may search an individual's person incident to a valid arrest.18
Here, the trial court concluded that the stop and pat-down search and the
search incident to arrest were lawful. Based upon the unchallenged findings of
fact, we affirm the trial court's denial of Carmichael's motion to suppress the
evidence.
Carmichael also claims that the trial court improperly denied him "non-
monitored and non-recorded phone calls and funds for essential supplies and
services from the Office of Public Defense," as well as "additional requests for
legal materials such as WPIC's [sic]."19 We reject these contentions.
The court determined that the jail was not monitoring his phone calls with
his investigator or standby counsel, that the jail "has legitimate security reasons"
for monitoring his phone calls with defense witnesses, and that he did not have a
privilege that applied to his witnesses. At a pretrial hearing, Carmichael agreed
that the court had addressed many of his requests for additional materials.
Because Carmichael does not explain why he needed additional supplies, he
fails to show that he was entitled to any additional funds.
17 Moore, 161 Wn.2d at 885 (alteration in original) (quoting Potter, 156
Wn.2d at 840).
18 State v. Jones, 146 Wn.2d 328, 335, 45 P.3d 1062 (2002) (citing State
v. Vrielinq. 144 Wn.2d 489, 492, 28 P.3d 762 (2001)).
1911 Washington Practice: Washington Pattern Jury Instructions:
Criminal (3d ed. 2008) (WPIC).
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No. 68062-5-1 / 8
Carmichael also fails to demonstrate that he was denied access to any
necessary services. He chose to represent himself. He agreed that he had
access to Westlaw while he was in jail, and he communicated frequently with the
Office of Public Defense and with his standby counsel. Because Carmichael had
adequate resources to enable him to defend himself sufficiently, we conclude
that he was not denied meaningful access to the court.20
Next, Carmichael claims that the court erred "in denying defendant's jury
instruction on knowingly and willingly, AKA 'unwitting possession."' To define the
knowledge element of unlawful possession of a firearm in the first degree,
Carmichael sought to use a definition from a 1968 version of Black's Law
Dictionary. Because Carmichael fails to show that his proposed instruction
states the applicable law correctly, we reject his claim.21
Carmichael also asserts that even though the court granted his motion in
limine to prohibit the prosecutor from impeaching him with certain prior
convictions, the prosecutor "attacked his character by disclosing his prior crimes
to the jury." The court rejected Carmichael's CrR 8.3(b) motion raising this issue.
20 See State v. Silva. 107 Wn. App. 605, 629-30, 27 P.3d 663 (2001)
("[W]e hold that unless otherwise ordered by the trial court, standby counsel is
not required to actually perform research and errands on behalf of pro se
defendants. Rather, their role is, as the term standby 'counsel' suggests, one of
alerting the accused to matters beneficial to him and providing the accused with
legal advice or representation upon request.").
21 See Joyce v. Dep't of Corr., 155 Wn.2d 306, 323, 119 P.3d 825(2005)
("'Jury instructions are sufficient if they allow the parties to argue their theories of
the case, do not mislead the jury and, when taken as a whole, properly inform the
jury of the law to be applied."' (quoting Hue v. Farmbov Spray Co.. 127 Wn.2d
67, 92, 896 P.2d 682 (1995))).
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No. 68062-5-1 / 9
The court can dismiss charges under CrR 8.3(b) if the defendant shows
both (1) arbitrary action or governmental misconduct and (2) prejudice.22 We
review a trial court's denial of an 8.3(b) motion for manifest abuse of discretion.23
A trial court abuses its discretion if its decision is '"manifestly unreasonable, or
exercised on untenable grounds, or for untenable reasons.'"24
The record shows that the prosecutor properly impeached Carmichael
with evidence of prior convictions for crimes involving dishonesty.25 The
prosecutor elicited this evidence from Carmichael on cross-examination and also
established the prior convictions by public record. Because Carmichael does not
show governmental misconduct, we need not reach the prejudice element.
Carmichael contends that the State violated ER 1002 and ER 1003 by
presenting a facsimile of a check that police obtained when they searched him
incident to arrest. Because Carmichael did not raise this objection when the
State introduced the check into evidence, his objection was untimely.26 As such,
we decline to address this issue.27
22 State v. Michielli. 132 Wn.2d 229, 239-40, 937 P.2d 587 (1997) (citing
State v Blackwell, 120 Wn.2d 822, 831, 845 P.2d 1017 (1993)).
23 State v. Moen. 150 Wn.2d 221, 226, 76 P.3d 721 (2003) (citing Michielli.
132Wn.2dat240).
24 In re Estate of Black. 153 Wn.2d 152, 172, 102 P.3d 796 (2004)
(internal quotation marks omitted) (quoting State v. Downing, 151 Wn.2d 265,
272, 87 P.3d 1169(2004)).
25 ER 609(a)(2).
26 See State v. O'Neill. 91 Wn. App. 978, 993, 967 P.2d 985 (1998) ("The
failure to make a timely objection to the admission of evidence at trial precludes
appellate review.").
27 RAP 2.5(a).
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No. 68062-5-1/10
Finally, Carmichael claims that the court miscalculated his offender score
because it should have counted three of his juvenile convictions as the same
criminal conduct. Prior crimes encompass the same criminal conduct and count
as one crime when they share the same criminal intent, time and place, and
victim.28 Asame criminal conduct finding is a discretionary determination.29
The court found that the certified copies of Carmichael's prior convictions
were valid and explained that Carmichael was "sentenced separately on them
and they have different cause numbers." Because Carmichael fails to
demonstrate that the court's reasoning is based on untenable grounds or
reasons, we uphold the court's offender score calculation.
Conclusion
The boilerplate language in Carmichael's judgment and sentence
regarding his ability to pay the imposed mandatory legal financial obligations was
not supported by the record and was unnecessary. Carmichael's sentence did
not exceed the statutory maximum, and the issues that he raises in his statement
28 State v. Tornqren, 147 Wn. App. 556, 564, 196 P.3d 742 (2008) (citing
RCW9.94A.589(1)(a)).
29 State v. Young. 97 Wn. App. 235, 243, 984 P.2d 1050 (1999); see State
v. Porter. 133 Wn.2d 177, 181, 942 P.2d 974 (1997) (appellate court reviews a
same criminal conduct determination for clear abuse of discretion or
misapplication of the law).
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No. 68062-5-1/11
of additional grounds lack merit. Therefore, we remand to the trial court to strike
the unnecessary finding about Carmichael's ability to pay and otherwise affirm.
S