State of Washington v. Terral Ray Anthony Lewis

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FILED
May 26, 2016
In the Office of the Clerk of Court
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l WA State Court of Appeals, Division Ill
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i IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
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STATE OF WASHINGTON,
Respondent,
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No. 33044-3-111
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! V. ) UNPUBLISHED OPINION
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I TERRAL RAY ANTHONY LEWIS,
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Appellant.
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PENNELL, J. -Terral Lewis appeals his conviction and sentence for two counts of
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I{ first degree robbery and one count of possession of methamphetamine. Save for the
gang-related community custody conditions, which the State concedes was imposed in
l error, we affirm.
FACTS
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Early in the morning on April 29, 2014, Mr. Lewis robbed a coffee shop in
Spokane. The shop employees believed Mr. Lewis had a gun in his sweatshirt pocket.
l Mr. Lewis took a roll of quarters and some change from the cash register, an employee's
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driver's license, and the coffee shop's iPod and scanner used for credit card payments.
When police apprehended Mr. Lewis a few blocks away from the coffee shop, they found
a bag of methamphetamine on his person.
At trial the State withdrew, without objection, its proposed instruction on the lesser
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included offense of second degree robbery. While deliberating, the jury asked the court
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No. 33044-3-III
State v. Lewis
whether it could render a verdict on two counts and remain undecided on one count.
After initially telling the jury to reread the final instruction, the trial court later proposed a
supplemental instruction. The jury found Mr. Lewis guilty of two counts of first degree
robbery and one count of possession of a controlled substance.
At sentencing, the court found Mr. Lewis's chemical dependency contributed to
his offense. Boilerplate language in the judgment and sentence shows the court ordered
Mr. Lewis to "not consume controlled substances except pursuant to lawfully issued
prescriptions" and to "not unlawfully possess controlled substances while on community
custody." Clerk's Papers (CP) at 111. The court noted this included marijuana as it is
illegal under federal law. Accordingly, a blanket requirement that Mr. Lewis not use or
possess marijuana or products containing tetrahydrocannabinol (THC) was included
among the conditions of his sentence. Additionally, the court ordered Mr. Lewis not to
associate with gang members, wear clothing indicative of gang lifestyle, or obtain tattoos
indicative of gang lifestyle. The court then imposed a $100 deoxyribonucleic acid (DNA)
collection fee as part of Mr. Lewis's legal financial obligations (LFOs). Mr. Lewis
appealed.
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No. 33044-3-III
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ANALYSIS
DNA Collection Challenges
Mr. Lewis challenges the imposition of a mandatory $100 DNA collection fee
under RCW 43.43.7541. No objection was raised in the trial court. On appeal, Mr. Lewis
makes two arguments. First, he asserts that imposition of the DNA fee without inquiry
into ability to pay violates his substantive due process rights. Second, he argues the
mandatory DNA fee violates his equal protection rights by requiring first-time felony
offenders to pay the fee once while requiring repeat felony offenders to pay the fee
l multiple times. A successful challenge under either of these claims would require
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reviewing facts outside the record. Generally, constitutional challenges to the imposition
of LFOs turns on a defendant's financial circumstances at the time of recoupment. See
State v. Blank, 131 Wn.2d 230,242, 90 P.2d 1213 (1997). Because recoupment has not
begun, we cannot yet assess those circumstances. Additionally, standing to make an
equal protection claim requires proof that an individual was negatively impacted by a
classification scheme. See State v. Handley, 115 Wash. 2d 275, 290-91, 796 P.2d 1266
(1990). No such proof is in the record. Accordingly, we decline to review Mr. Lewis's
arguments for the first time on direct appeal under RAP 2.5(a). State v. Stoddard, 192
Wash. App. 222, 226, 366 P.3d 474 (2016).
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No. 33044-3-111
State v. Lewis
Mr. Lewis also contends the trial court erred by ordering him to submit to a DNA
collection under RCW 43.43.754 when he has already done so previously. We find no
error. Mr. Lewis's judgment and sentence form specified a DNA sample need not be
collected if the Washington State Patrol was already in possession of a sample. This is
consistent with Washington law. See RCW 43.43.754(l)(a), (2). The trial court did not
breach the statute, particularly given that Mr. Lewis supplies no evidence for his
contention he already submitted to a DNA collection. See State v. Thornton, 188 Wn.
App. 371, 373-74, 353 P.3d 642 (2015).
Community Custody Conditions
Mr. Lewis challenges community custody conditions pertaining to marijuana and
gang activities. The claimed errors were not raised in the trial court. However, an
erroneously imposed or illegal sentence may be challenged for the first time on appeal.
State v. Bahl, 164 Wash. 2d 739, 744, 193 P.3d 678 (2008). Trial courts "may impose only
sentences that statutes authorize." State v. Albright, 144 Wash. App. 566, 568, 183 P.3d
1094 (2008). This court reviews a trial court's statutory authority to impose a particular
condition de novo but reviews a crime-related community custody condition for abuse of
discretion. State v. Armendariz, 160 Wash. 2d 106, 110, 156 P.3d 201 (2007).
Mr. Lewis makes two arguments regarding the marijuana conditions. First, he
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i contends the condition containing a blanket prohibition proscribing him from using or
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possessing marijuana and/or products containing THC exceeds the trial court's authority
because it does not contain the exception for prescription use. See RCW 9.94A.703(2)(c)
(stating the court shall order an offender to "[r]efrain from possessing or consuming
I controlled substances except pursuant to lawfully issued prescriptions ... "). Second, he
argues this absolute prohibition conflicts with the boilerplate language purporting to
recognize the prescription exception.
We disagree with Mr. Lewis's contentions. Marijuana qualifies as a controlled
substance. See 21 U.S.C. § 812; RCW 69.50.lOl(e). While state law allows for use of
controlled substances by individuals under community custody pursuant to a prescription,
see RCW 9.94A.703(2)(c), this provision does not help Mr. Lewis because one can never
obtain a prescription for marijuana use. See RCW 69.50.308. Even in the context of
medical marijuana, the user obtains an "authorization," not a prescription, from a health
care provider. RCW 69.51A.030(2)(a). Given these circumstances, the restriction on
II marijuana use was proper, and the language used in the judgment and sentence form was
l not contradictory.
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Mr. Lewis fares much better in his challenge to the gang-related community
custody conditions. The State properly concedes these conditions should be stricken as
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' they are not crime-related. See RCW 9.94A.030(10) (defining "crime-related
Ij prohibition" as "an order of a court prohibiting conduct that directly relates to the
I circumstances of the crime for which the offender has been convicted ... "). On remand,
the trial court is instructed to strike the gang-related community custody conditions from
Mr. Lewis's judgment and sentence form.
Ineffective Assistance of Counsel
In his statement of additional grounds for review, Mr. Lewis makes three claims
that he was denied effective assistance of counsel: (1) counsel was deficient in not calling
certain witnesses, (2) counsel failed to object to the credibility of a witness, and (3)
counsel erred by not objecting when the State opted not to instruct on second degree
\ robbery.
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lI When reviewing a claim of ineffective assistance of counsel on direct appeal, we
are limited to the trial record. State v. McFarland, 127 Wn.2d 322,335, 899 P.2d 1251
I (1995). There is a strong presumption that trial counsel's representation was effective.
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! Id. To show ineffective assistance, Mr. Lewis must show: (1) defense counsel's
! representation was deficient, i.e., it fell below an objective standard of reasonableness
under the circumstances, and (2) the deficient representation prejudiced him, i.e., a
reasonable probability exists the outcome would have been different without the deficient
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representation. Id. at 334-35. Failure to meet either prong of this test is dispositive of an
ineffective assistance claim. State v. Berg, 147 Wash. App. 923, 937, 198 P.3d 529 (2008).
First, Mr. Lewis argues defense counsel did not call certain witnesses. The
1 testimony of Mr. Lewis's proposed witnesses is not in the record. Thus, we cannot
j resolve Mr. Lewis's claims on direct appeal.
!; Second, Mr. Lewis contends defense counsel did not object to the credibility of a
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I witness. The witness he refers to is one of the two coffee shop employees present during
the robbery. But defense counsel did raise the issue of the employee's credibility. On
cross-examination, defense counsel asked the employee about statements she made to a
I responding officer. When the officer testified, defense counsel again highlighted the
inconsistencies in the employee's testimony. Defense counsel's performance was not
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deficient.
Finally, Mr. Lewis argues defense counsel's performance was deficient because he
failed to object when the State opted not to instruct on second degree robbery. A person
is guilty of second degree robbery if they commit robbery; the crime is elevated to first
degree robbery if the person is armed with or displays what appears to be a deadly
weapon. RCW 9A.56.210(1), .200(1)(a). While second degree robbery is a lesser
included offense of first degree robbery, the instruction is proper only if it is supported by
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the record. State v. Wheeler, 22 Wash. App. 792, 797, 593 P.2d 550 (1979). A jury may
disbelieve any portion of any witness's testimony-thus finding the robber was
unarmed-but some evidence must be affirmatively presented to establish only "unarmed
robbery." Id. Here, all of the witnesses agreed Mr. Lewis appeared to be armed when he
committed the robbery. At trial, Mr. Lewis's theory was not that he committed only
unarmed robbery but that he did not commit robbery at all. He presented no evidence
showing only a second degree robbery occurred. In failing to object, defense counsel's
performance was not deficient.
Supplemental Jury Instruction
In addition to his ineffective assistance of counsel claims, Mr. Lewis's statement
of additional grounds also claims the trial court issued an erroneous instruction after the
jury asked whether it could remain undecided on one of the pending counts. "[A] trial
judge has discretion whether to give further instructions to the jury after deliberations
have started." State v. Ransom, 56 Wash. App. 712, 714, 785 P.2d 469 (1990). But
"supplemental instructions should not go beyond matters that either had been, or could
have been, argued to the jury." Id. This court reviews whether a supplemental instruction
is proper for abuse of discretion. State v. Becklin, 163 Wn.2d 519,529, 182 P.3d 944
(2008).
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The supplemental instruction here was proper. When the jury asked the court if it
could remain undecided on one count, the trial court initially instructed the jury to refer to
instruction 17. This instruction discussed the deliberation process and how to fill out the
verdict forms. The following day, the trial court found a supplemental instruction that
squarely addressed the jury's question. It stated: "A separate crime is charged in each
count. You must decide each count separately. Your verdict on one count should not
control your verdict on any other count." CP at 71. This instruction was purely
procedural and did not go beyond matters that had been or could have been argued to the
Jury. Thus, we find no error.
Based on the foregoing, we affirm Mr. Lewis's conviction but remand to the trial
court to strike the gang-related conditions of community custody.
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.
Pennell, J.
WE CONCUR:
Lawrence-Berrey, A.CJ.
{t/dbw ~,~
oway,J.
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