State Of Washington v. Yenilen Guzman

Filed
Washington State
Court of Appeals
Division Two
November 13, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 51967-4-II
Respondent,
v.
YENILEN GUZMAN, UNPUBLISHED OPINION
Appellant.
MELNICK, J. — After Yenilen Guzman entered pleas of guilty to two counts of delivery of
methamphetamine, two counts of possession of a controlled substance, and one count of
conspiracy to deliver methamphetamine, the court imposed an exceptional sentence above the
standard range.
Guzman argues she received ineffective assistance of counsel because at sentencing her
attorney failed to argue that the conspiracy and delivery convictions constituted the same criminal
conduct. She also contends that the court improperly imposed two community custody conditions.
We affirm.
FACTS
The police became aware of Guzman as the employee and girlfriend of a suspected drug
dealer. After Guzman ended her association with that person, the police learned that she wanted
to establish her own drug dealing operation. Police then conducted three controlled buys from
Guzman that involved approximately 9.7 pounds of methamphetamine and 135 grams of heroin.
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The State charged Guzman with delivering methamphetamine between June 1 and June 15,
2017, delivering methamphetamine between June 18 and June 30, possession of heroin with intent
to deliver on July 12, possession of methamphetamine with intent to deliver on July 12, and
conspiracy to deliver methamphetamine between June 1 and June 30. The State also charged the
aggravating factor that the sale or transfer of the controlled substances occurred in quantities
substantially larger than for personal use, a major violation of the Uniform Controlled Substances
Act (UCSA) on all counts except the conspiracy. RCW 9.94A.535(3)(e)(ii).
Guzman pled guilty to all counts. The conspiracy count had a standard range of 0-12
months and each of the other counts had a standard range of 20-60 months.
At the sentencing hearing, Guzman testified that her relationship with the suspected drug
dealer led her to be “kidnapped twice, forced into prostitution, drugged, raped, and physically
abused by him.” Report of Proceedings (RP) (Feb. 26, 2018) at 108. After these incidents, she
“became an alcoholic and a cocaine addict, hoping to forget what [she] went through.” RP (Feb.
26, 2018) at 108. She said, “Sober, I would have looked for a job, but instead my choice of options
were prostitution or delivering drugs.” RP (Feb. 26, 2018) at 108.
The State presented evidence that a mid- to high-level drug deal in Kitsap County would
usually involve around a quarter pound of methamphetamine and one to two ounces of heroin.
Guzman sold unusually large quantities.
The State argued for a sentence above the standard range because of the significant effect
the extraordinary amount of drugs would have on the community. The State also noted that under
the federal system, the standard ranges for the same charges were 10 years to life. The State
calculated Guzman’s offender score as 3 and Guzman did not disagree. The State requested a 180-
month sentence.
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The court imposed an exceptional sentence of 120 months. In so doing, it considered
Guzman’s youth, her lack of criminal history, and her abuse at the hands of the suspected drug
dealer. It discussed how the circumstances of this case were “extraordinary which warrant an
extraordinary sentence,” because “[t]he quantities here are over the top,” and, if in federal court,
would be punishable by ten years to life. RP (Feb. 26, 2018) at 119. In “look[ing] at each case
individually . . . the punishment in this case needs to be substantial. It needs to be more than what
we normally see, . . . in light of the fact that it’s atypical” of what is usually seen in Kitsap County.
RP (Feb. 26, 2018) at 120. It stated that 120 months appropriately reflected the conduct and
“reflect[ed] whatever mitigating factors that may exist,” as well as appropriately punishes Guzman
while recognizing the situation in its entirety. RP (Feb. 26, 2018) at 121.
The court concluded that there were substantial and compelling reasons to impose an
exceptional sentence. It also imposed community custody conditions. As relevant to this case, it
ordered that Guzman “[c]omplete an evaluation for: substance abuse . . . and fully comply with all
treatment recommended by [community corrections officer] CCO and/or treatment provider.”
Clerk’s Papers (CP) at 39. It also prohibited Guzman from “[e]nter[ing] . . . [a] bar or place where
alcohol is the chief item of sale.” CP at 39.
Guzman appeals.
ANALYSIS
I. INEFFECTIVE ASSISTANCE OF COUNSEL
Guzman claims that she received ineffective assistance of counsel because her attorney
failed to argue that the June deliveries of methamphetamine and the conspiracy to deliver
methamphetamine constituted the same criminal conduct. Guzman argues that this failure
prejudiced her because her offender score would have been lower without the additional point for
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conspiracy. She argues that although the court imposed an exceptional sentence, it may have
exercised its discretion differently if it had known the standard range was lower. We conclude
that Guzman has failed to show prejudice; therefore, her ineffective assistance of counsel argument
fails.
The Sixth Amendment to the United States Constitution and article I, section 22 of the
Washington Constitution guarantee criminal defendants the right to effective assistance of counsel.
State v. Estes, 188 Wash. 2d 450, 457, 395 P.3d 1045 (2017). Defense counsel’s obligation to provide
effective assistance applies at sentencing. State v. Phuong, 174 Wash. App. 494, 547, 299 P.3d 37
(2013). We review ineffective assistance of counsel claims de novo. Estes, 188 Wash. 2d at 457.
To prevail on a claim of ineffective assistance of counsel, the defendant must show both
(1) that defense counsel's representation was deficient and (2) that the deficient representation
prejudiced the defendant. State v. Grier, 171 Wash. 2d 17, 32-33, 246 P.3d 1260 (2011). Prejudice
exists if there is a reasonable probability that, but for counsel’s deficient performance, the result
of the proceeding would have been different. Estes, 188 Wash. 2d at 458. It is not enough that
ineffective assistance conceivably impacted the case’s outcome; the defendant must affirmatively
show prejudice. Estes, 188 Wash. 2d at 458.
Failure to argue same criminal conduct at sentencing may constitute ineffective assistance
of counsel if the defendant can show that had the trial court accepted such an argument, the
sentence would have been different. State v. Beasley 126 Wash. App. 670, 686, 109 P.3d 849 (2005).
Guzman has failed to affirmatively show prejudice, i.e. that her sentence would have been
different.
If Guzman’s offender score on each offense had been 2, rather than 3, the standard sentence
range for those charges would have been lower. RCW 9.94A.517. However, despite the difference
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in the sentencing ranges based on using 2 and 3 offender points, Guzman has not sustained her
burden to show prejudice. The trial court did not follow the State’s recommendation of a 180-
month sentence, but it did impose an exceptional 120-month sentence because the crimes involved
a major violation of the UCSA. RCW 9.94A.535(3)(e)(ii).
Guzman has failed to show that the court would have given her a different sentence if her
standard range had been lower. In fact, Guzman only argues that with a different standard range,
the court “may have imposed” a different sentence.
On the other hand, even though Guzman has not met her burden of showing prejudice, in
imposing the exceptional sentence, the court’s comments demonstrate it likely would have given
Guzman the same sentence regardless of her offender score. The court noted the exceptionally
large quantity of drugs as the reason for an exceptional sentence, but did not mention the offender
score or sentence range. Additionally, the court mentioned that a federal sentence would have
been 10 years minimum. We also note that Guzman’s codefendant, sentenced at the same hearing,
received the same exceptional sentence imposed on Guzman. The codefendant had an offender
score of 2.
We conclude that Guzman has failed to show that her sentence would have been different;
therefore, Guzman has not shown prejudice. She did not receive ineffective assistance of counsel.
II. COMMUNITY CUSTODY CONDITIONS
Guzman argues that the trial court erred by imposing certain community custody conditions
that were not authorized by statute.
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A. Legal Principals
We review de novo whether the trial court had statutory authorization to impose a
community custody condition. State v. Armendariz, 160 Wash. 2d 106, 110, 156 P.3d 201 (2007).
If the trial court had statutory authorization, we review community custody conditions for an abuse
of discretion. State v. Nguyen, 191 Wash. 2d 671, 678, 425 P.3d 847 (2018). “A court does not abuse
its discretion if a ‘reasonable relationship’ between the crime of conviction and the community
custody condition exists.” Nguyen, 191 Wash. 2d at 684 (quoting State v. Irwin, 191 Wash. App. 644,
658-59, 364 P.3d 830 (2015)). As such, crime-related community custody “conditions are usually
upheld if reasonably crime related.” Nguyen, 191 Wash. 2d at 683.
“As a condition of community custody, a sentencing court may, in its discretion, impose
‘any crime-related prohibitions.’” Nguyen, 191 Wash. 2d at 683 (quoting RCW 9.94A.703(3)(f)).
“‘A [c]rime-related prohibition means an order of a court prohibiting conduct that directly relates
to the circumstances of the crime for which the offender has been convicted.’” Nguyen, 191 Wash. 2d
at 683 (internal quotation marks omitted) (quoting RCW 9.94A.030(10)). “The prohibited conduct
need not be identical to the crime of conviction, but there must be ‘some basis for the connection.’”
Nguyen, 191 Wash. 2d at 684 (quoting Irwin, 191 Wash. App. at 657). A sentencing judge's discretion
extends “to impos[ing] prohibitions that address the cause of the present crime or some factor of
the crime that might cause the convicted person to reoffend.” Nguyen, 191 Wash. 2d at 684.
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B. No Entry into Bars
Guzman argues that the community custody condition that she “[e]nter no bar or place
where alcohol is the chief item of sale” is not directly crime related and therefore is not expressly
authorized by statute. Br. for Appellant at 131.
In Nguyen, the defendant was prohibited from entering “sex-related businesses” after being
convicted of second degree child molestation. Nothing in the record indicated that presence in a
“sex-related business” played a role in her crimes. Nguyen, 191 Wash. 2d at 687. The court
determined that the trial court did not abuse its discretion because the condition “has more to do
with [the defendant’s] inability to control her urges and impulsivities than it does with the specific
facts of her crimes” and it was “imposed to prohibit conduct that might cause [her] to reoffend.”
Nguyen, 191 Wash. 2d at 687.
Here, although there is no indication in the record that Guzman’s presence in “bars or
places where alcohol is the chief item of sale” played a role in her crimes, Guzman admits to
becoming an alcoholic after being abused. She credits not being sober as the reason she chose to
begin delivering drugs rather than looking for another job. The prohibition reasonably relates to
the crimes. Therefore, we conclude that the trial court did not abuse its discretion in imposing the
condition.
C. Substance Abuse Evaluation
Guzman argues that the condition requiring her to complete a substance abuse evaluation
was not authorized by statute because the court did not make the required finding that a chemical
dependency contributed to the offense.
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Under RCW 9.94A.607(1), the court has discretion to order the offender to obtain chemical
dependency evaluation and treatment if it finds that the offender had a chemical dependency that
contributed to her offense. State v. Warnock, 174 Wash. App. 608, 612, 299 P.3d 1173 (2013).
Here, the court did not find that Guzman had “a chemical dependency that contributed to
[her] offense.” CP at 34. The court did not check the box for “Chemical Dependency” on the
judgment and sentence. Therefore it did not have authority under RCW 9.94A.607(1) to order the
community custody condition.
However, the court has discretion to require an offender to “[p]articipate in crime-related
treatment or counseling services” or “[p]articipate in rehabilitative programs or otherwise perform
affirmative conduct reasonably related to the circumstances of the offense, the offender’s risk of
reoffending, or the safety of the community.” RCW 9.94A.703(3)(c)-(d).
Conditions imposed as “rehabilitative programs” such as alcohol and chemical dependency
interventions “must be supported by evidence in the record or found by the trial court to be related
to the underlying offense.” State v. Munoz-Rivera, 190 Wash. App. 870, 892, 361 P.3d 182 (2015);
State v. Jones 118 Wash. App. 199, 208, 76 P.3d 258 (2003). In Munoz-Rivera and Jones the court
determined that imposing a “substance abuse” evaluation when the record indicated that only
alcohol contributed to the crime, was not “crime related.”
Here, as with the other challenged community custody condition, Guzman implies that she
would not have begun selling drugs at all if she had not become an alcoholic or cocaine addict.
Under Munoz-Rivera, a “substance abuse” evaluation is therefore appropriate because the record
indicates that that alcohol and other substances (cocaine) contributed to the crime. The court did
not abuse its discretion because a reasonable relationship exists between the crime and the
condition.
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We affirm.
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.
Melnick, J.
We concur:
Worswick, P.J.
Cruser, J.
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