State Of Washington, V. Billy James Lindberg ( 2021 )

Filed
Washington State
Court of Appeals
Division Two
October 19, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 54674-4-II
Respondent,
v.
BILLY JAMES LINDBERG, UNPUBLISHED OPINION
Appellant.
VELJACIC, J. — A jury convicted Billy Lindberg of one count of unlawful possession of a
controlled substance—methamphetamine with intent to deliver, one count of unlawful possession
of a controlled substance—heroin, one count of criminal impersonation in the first degree, and two
counts of bailing jumping for failure to appear on February 22 and April 11. On appeal, Lindberg
argues this his unlawful possession of heroin is void under Blake,1 that his counsel was ineffective
for failing to timely move to suppress evidence resulting from an illegal search, and that his
February 22 bail jumping charge violates the double jeopardy provisions of the United States and
Washington Constitutions.
1
State v. Blake, 197 Wn.2d 170, 195, 481 P.3d 521 (2021).
54674-4-II
The State concedes that Lindberg’s unlawful possession of heroin is no longer valid and
that he was subjected to double jeopardy for his February 22 bail jumping conviction. The State
also argues that Lindberg cannot satisfy the elements of ineffective assistance of counsel because
he cannot prove prejudice.
We reverse and remand to the trial court to vacate Lindberg’s unlawful possession of heroin
and February 22 bail jumping convictions, and affirm his unlawful possession of
methamphetamine with intent to deliver conviction because Lindberg’s ineffective of assistance
of counsel claim fails. On remand, the trial court should resentence Lindberg if necessary to
correct his offender scores on his other counts.
FACTS
An officer viewed Lindberg idling in a parking lot at night, saw him drive off without his
lights on, and pulled him over. Lindberg provided a false name to the officer. After running
Lindberg’s car license plate, the officer discovered he had an outstanding warrant. A second
officer, who had previous contact with Lindberg, identified him as Lindberg. The officers arrested
him based on the warrant. The first officer looked into the car from a lawful vantage point outside
the vehicle and noticed foil with suspected heroin residue under the driver’s seat along with a
digital scale. The officer applied for and received a telephonic search warrant. The warrant
authorized the officer to search Lindberg’s vehicle and containers within the vehicle.
During the search of the car, the officer moved an electronic tablet to access items beneath
it. The screen turned on and the officer viewed a text message and recognized incriminating
language. The officer testified that he did not move the tablet with the intention of waking the
device and did not press any buttons on the device. The officer applied for and received an
additional warrant to search the tablet.
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The search of the vehicle and Lindberg’s person revealed empty baggies often used for
packaging narcotics for sale, a scale with a dark substance on it used for weighing narcotics for
sale, methamphetamine crystals in quantities greater than is usually associated with personal use,
cash, and gift cards that are often used as currency in drug deals.
The search of the tablet revealed text message exchanges detailing plans to possess and
deliver methamphetamine. The first text message said, “I have your half of W,” W referring to
“white,” a street term for methamphetamine. 2 Report of Proceedings (RP) at 410. The second
text message stated, “What up? I got that W. When are you picking that up[?]”. 2 RP at 410.
The final text message stated, “Do you want any of this W? If not let me know 'cuz I can move it.
No worries either way.” 2 RP at 410-11.
Prior to trial, Lindberg was required to appear in court on February 22 and April 11 but
failed to do so. The State charged Lindberg with one count of unlawful possession of a controlled
substance—methamphetamine with intent to deliver, one count of unlawful possession of a
controlled substance—heroin with intent to deliver, one count of criminal impersonation in the
first degree, one count of bailing jumping for failure to appear on February 22, and one count of
bail jumping for failure to appear on April 11.
On the morning of trial, Lindberg’s counsel requested a continuance and moved to suppress
evidence from the tablet. Lindberg’s counsel recognized that the motion to suppress was untimely,
but he explained that he had not previously understood the issues involved. The court denied the
motion to continue and declined to consider the motion to suppress.
The jury convicted Lindberg of one count of unlawful possession of methamphetamine
with intent to deliver, one count of the lesser charge of unlawful possession of heroin, one count
of criminal impersonation in the first degree, one count of bailing jumping for failure to appear on
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February 22, and one count of bail jumping for failure to appear on April 11. Lindberg appeals
his convictions for unlawful possession of heroin, unlawful possession of methamphetamine with
intent to deliver, and his bail jumping conviction from his February 22 failure to appear.
ANALYSIS
I. POSSESSION CONVICTION
In a recent decision, our Supreme Court held former RCW 69.50.4013 (2017)
unconstitutional and void because its lack of a mens rea requirement violated the due process
clauses of the Washington and United States Constitutions. State v. Blake, 197 Wn.2d 170, 195,
481 P.3d 521 (2021). The court vacated Blake’s conviction. Id. Any conviction based on that
statute is also invalid because a judgment and sentence is invalid on its face when a defendant is
convicted of a nonexistent crime. See In re Pers. Restraint of Hinton, 152 Wn.2d 853, 857, 100
P.3d 801 (2004).
In a supplemental brief, Lindberg argues that his unlawful possession of heroin charge is
invalid due to Blake. The State concedes this issue. Because Lindberg was convicted under former
RCW 69.50.4013(1) and Blake held that statute is void, we reverse and remand to the trial court
to vacate his conviction.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Lindberg argues that his counsel was ineffective for failing to timely move to suppress
evidence from his tablet and that such failure prejudiced him. We disagree.
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A. Legal Principles
Defendants have a constitutional right to effective assistance of counsel. In re Pers.
Restraint of Khan, 184 Wn.2d 679, 688, 363 P.3d 577 (2015). We use the two-prong test from
Strickland,2 to evaluate whether a defendant’s counsel was effective. See State v. McFarland, 127
Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Under such test, a defendant must show (1) that
“‘counsel’s performance fell below an objective standard of reasonableness,’” and (2) that he was
prejudiced by such performance. Khan, 184 Wn.2d at 688 (quoting State v. A.N.J., 168 Wn.2d 91,
109, 225 P.3d 956 (2010)). The defendant must prove prejudice by demonstrating that within a
reasonable probability counsel’s errors resulted in a different outcome. Id.B. Lindberg’s Counsel Was Not Ineffective
Lindberg argues that he received ineffective assistance of counsel because his attorney
failed to bring a timely motion to suppress the evidence garnered from the search of his tablet. He
claims that the motion would have succeeded because the movement of the tablet was an illegal
search and seizure.
Under the first prong of Strickland, Lindberg must ordinarily show that his counsel’s
performance fell below an objective standard of reasonableness. See Khan, 184 Wn.2d at 688.
However, we need not explore counsel’s allegedly deficient performance because Lindberg cannot
show prejudice, and therefore his claim fails. See Khan, 184 Wn.2d at 688.
Under the prejudice prong of Strickland, Lindberg must demonstrate, within a reasonable
probability, that the outcome of the trial would have been different absent counsel’s errors. See
Khan, 184 Wn.2d at 688. To do this, Lindberg must persuade us that had the trial court not
admitted the seized text messages into evidence, the jury would not have convicted him. Id. In
2
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
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light of the substantial additional evidence of Lindberg’s guilt, apart from the seized text messages,
Lindberg fails to demonstrate that the outcome of his trial would have been different if the trial
court had suppressed the text messages. Officers found empty baggies often used for packaging
narcotics; a scale with a dark substance (like heroin) on it, which is of the type used for weighing
narcotics for sale; methamphetamine crystals in a quantity greater than is usually associated with
personal use; cash; and gift cards which are often used as currency in drug deals.
While the text messages provided additional evidence, the physical evidence and officer
testimony alone were sufficient to prove that Lindberg was selling methamphetamine. The first
text message said, “I have your half of W.” 2 RP at 410. The second text message stated, “What
up? I got that W. When are you picking that up[?]”. 2 RP at 410. The final text message stated,
“Do you want any of this W? If not let me know 'cuz I can move it. No worries either way.” 2
RP at 410-11. Such messages only corroborate the strong inference that Lindberg had the intent
to deliver methamphetamine, but they do not constitute the sole proof of Lindberg’s intent.
Lindberg fails to demonstrate that prejudice resulted from his counsel’s failure to timely
move to suppress the text messages found on his tablet because he has not shown that the outcome
of the trial would have been different absent their admission. Therefore, we conclude he has failed
to show that he received ineffective assistance of counsel. We affirm his conviction for unlawful
possession of methamphetamine with intent to deliver.
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III. DOUBLE JEOPARDY
Lindberg argues that he was convicted twice for failing to appear at the same hearing,
violating the double jeopardy clauses of the United States and Washington Constitutions. The
State concedes the issue. We agree that Lindberg’s second conviction for failing to appear on
February 22 violated the double jeopardy clauses of the Washington and United States
Constitutions.
We review double jeopardy claims de novo. State v. Villanueva-Gonzalez, 180 Wn.2d 975,
979-80, 329 P.3d 78 (2014). The United States and Washington Constitutions protect defendants
from double jeopardy. U.S. CONST. amend. 5; WASH. CONST. art. I, § 9. “The prohibition on
double jeopardy generally means that a person cannot be prosecuted for the same offense after
being acquitted, be prosecuted for the same offense after being convicted, or receive multiple
punishments for the same offense.” Villanueva-Gonzalez, 180 Wn.2d at 980. To analyze whether
a conviction violates double jeopardy, we must determine the unit of prosecution intended by the
legislature. State v. O’Brien, 164 Wn. App. 924, 928, 267 P.3d 422 (2011). When a defendant is
convicted under the same statute multiple times, each conviction must be from a unique “unit of
prosecution.” Id. Failure to appear for multiple court orders scheduled for the same day results in
one unit of prosecution. Id. at 929-30.
We conclude that Lindberg was convicted twice for the same February 22 failure to appear
and was therefore subject to double jeopardy. Though Lindberg was scheduled for two hearings
on February 22, one for cause number 17-1-00812-9, and another for 17-1-01745-4, this is
nonetheless one unit of prosecution. See Id. Accordingly, we reverse the conviction for bail
jumping arising out of this case.
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CONCLUSION
We reverse and remand to the trial court to vacate Lindberg’s unlawful possession of heroin
and February 22 bail jumping convictions, and affirm his conviction for possession of
methamphetamine with intent to deliver. On remand, the trial court should resentence Lindberg if
necessary to correct his offender scores on his other counts.
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.
Veljacic, J.
We concur:
Glasgow, A.C.J.
Cruser, J.
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