State of Washington v. Jessica M. Swearingen

FILED
OCT. 2,2014
Lo 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. 32299-8-III
Respondent, )
)
v. )
)
JESSICA M. SWEARINGEN, ) UNPUBLISHED OPINION
)
Appellant. )
KORSMO, J. - Jessica Swearingen challenges the result of a stipulated facts
hearing and resulting judgment and sentence, raising evidentiary sufficiency and
sentencing issues. We affirm.
FACTS
A state trooper pulled Ms. Swearingen over for traffic violations and noted plastic
baggies protruding from a pouch on the floor of her car. A subsequent search following
her arrest uncovered a substantial amount of marijuana, methamphetamine, and other
controlled substances. She ultimately was charged with possession of cocaine, possession
of methamphetamine, possession of marijuana in excess of 40 grams, possession of a
controlled substance by an inmate, obstructing a law enforcement officer, and bail jumping.
No. 32299-8-III
State v. Swearingen
After a failed suppression hearing, Ms. Swearingen waived her right to a jury trial
and proceeded to a stipulated facts bench trial. The cocaine possession and possession by
an inmate charges were dismissed by the prosecutor. The court, after considering the
stipulation and attached police reports, found Ms. Swearingen guilty of the four
remaining charges. She faced a sentence range of 6-18 months under the drug sentencing
grid. The parties were jointly recommending 366 days in custody.
Defense counsel indicated that the defense was prepared for sentencing, but told
the court that Ms. Swearingen wanted the matter rescheduled in order to have time to get
her affairs in order. She then personally indicated that she did not want sentencing set
over, but she wanted more time to get her affairs in order before reporting to jail. The
court asked if there was anything else. The prosecutor asked that the court proceed to
sentencing. Ms. Swearingen attempted to say something, but counsel assured her, "It's
okay." Report of Proceedings at 24l. The court indicated that it would accept the
agreement of the parties. The transcript indicates that Ms. Swearingen asked her counsel,
"Can I talk?" and was told no.
The court then imposed the 366 day sentence jointly recommended by the parties.
The court imposed various legal financial obligations and expressly found that the
defendant had the future ability to pay. The court also imposed a 12 month term of
community custody that included a condition she have no contact with "known felons."
The defense did not object to the finding or to the community custody condition.
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No. 32299-8-111
State v. Swearingen
She then timely appealed from the sentence.
ANALYSIS
Ms. Swearingen argues that the evidence does not support the marijuana
conviction, that she was denied her right of allocution, and that the sentencing finding
and noted community custody condition are improper. We address each contention in
tum. l
Sufficiency a/the Evidence
Ms. Swearingen argues that the evidence does not support the determination that
she possessed more than 40 grams of marijuana because the findings do not mention an
amount. Her argument confuses the sufficiency of the evidence with the adequacy of the
findings.
Long settled standards govern review of evidentiary sufficiency challenges. Such
challenges are reviewed to see if there was evidence from which the trier of fact could
find each element of the offense proven beyond a reasonable doubt. State v. Green,
94 Wash. 2d 216, 221-22, 616 P.2d 628 (1980) (citing Jacksan v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). The reviewing court will consider the
evidence in a light most favorable to the prosecution. Jd.
I Ms. Swearingen filed a Statement of Additional Grounds taking issue with the
traffic stop and subsequent search of the car. However, her Statement provides no
reasoned argument describing any alleged errors in the issuance of the search warrant or
its execution. It is insufficient for this court's review. RAP 10.10(c).
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No. 32299-8-II1
State v. Swearingen
Applying that standard to the evidence presented in this case, there easily was
sufficient evidence to support the determination that Ms. Swearingen possessed more
than 40 grams of marijuana. The police reports were appended to the stipulated facts and
stated to be one of the bases for the decision. Clerk's Papers (CP) at 10. One page of the
evidence report lists the various marijuana containers and tallies the total marijuana as
163.1 grams. CP at 24. That evidence alone was sufficient to support the determination
that Ms. Swearingen possessed more than 40 grams of marijuana.
Perhaps realizing that the evidence supported the conviction, Ms. Swearingen
argues that none of the stipulatedjindings expressly stated the amount of the marijuana.
However, the adequacy of the findings is not a sufficiency of the evidence question.
There was ample evidence-i.e, sufficient evidence-that the defendant possessed more
than 40 grams of marijuana. Her express challenge in this appeal fails.
If she was presenting an actual challenge to the adequacy of the findings, we also
would reject the contention. Ms. Swearingen and her counsel expressly stipulated to the
findings and conclusions. Conclusion of Law 1 states that Ms. Swearingen possessed
more than 40 grams of marijuana. CP at 10. She thus could not show any prejudicial
error from the adequacy of the findings since she stipulated to the relevant conclusion of
law.
The evidence was sufficient to support the conviction for possession of more than
40 grams of marijuana. To the extent she is challenging the adequacy of the findings, she
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No. 32299-8-III
State v. Swearingen
cannot show prejudicial error given her stipulation to the conclusion of law that she
possessed more than 40 grams of marijuana.
Allocution
Ms. Swearingen argues that either the trial court denied her right of allocution or
her counsel provided ineffective assistance by preventing her from allocuting. There is
no factual basis for believing she was denied the right to allocute.
The record does not reflect that Ms. Swearingen wanted to address the court
before sentence was imposed. The court heard her address whether to conduct a
sentencing hearing at that time. When the prosecutor agreed that the matter should
proceed to sentencing, she appeared to want to say more at about the same time the court
indicated it was accepting the agreement of the parties for 366 days incarceration. In
context, her desire to speak simply does not appear to be directed at the question of the
sentence to be imposed. The parties had already recommended, in writing, that the court
impose 366 days so that she could face an earlier release under department of corrections
policy.
It would be pure speculation to say that Ms. Swearingen wanted to exercise her
right of allocution. Accordingly, any claim that counsel perfonned ineffectively is
without factual basis. 2 If she is to present such a claim, she will have to proceed by way
There also would be no basis for finding prejudice from any alleged failure of
2
counsel since the court followed the sentence recommendation made by the defense.
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No. 32299-8-II1
State v. Swearingen
of a personal restraint petition in which she can make a record of her intentions. See, e.g.,
State v. Norman, 61 Wash. App. 16, 27-28,808 P.2d I1S9 (1991).
The claim that the trial court denied the right of allocution fails because the error
was not preserved. Allocution is a statutory, not constitutional, right. Accordingly, the
issue must be presented to the trial court in order to preserve a claim of error for appeal.
RAP 2.S(a); State v. Canfield, IS4 Wn.2d 698, 707,116 P.3d 391 (200S). Even the
limited constitutional due process right of allocution recognized in sentence revocation
proceedings must be asserted in order to be preserved. Canfield, IS4 Wn.2d at 707. Ms.
Swearingen did not assert a right to allocute at trial, nor did she object to any failure of
the court to inquire about her interest in allocuting. Thus, the claim that the trial court
denied Ms. Swearingen her right of allocution is not preserved for this appeal.
Both of her bases for claiming a right of allocution cannot be considered in this
action. They are not supported by the record and one of them was not preserved for
appellate review.
Legal Financial Obligation Finding
Ms. Swearingen also argues that the court erroneously found that she had the
future ability to pay her financial obligations . .This argument, also, was not preserved for
our review.
Ms. Swearingen did not object to the finding. All three divisions of this court
unanimously agree that these types of challenges cannot be presented for the first time on .
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No. 32299-8-III
State v. Swearingen
appeal. State v. Duncan, 180 Wash. App. 245, 327 P.3d 699 (2014); State v. Calvin,
176 Wash. App. 1, 316 P.3d 496, petition/or review filed, No. 89518-0 (Wash. Nov. 12,2013);
State v. Blazina, 174 Wash. App. 906, 911, 301 P.3d 492, review granted, 178 Wash. 2d 1010,
311 P.3d 27 (20l3). As noted in Duncan, there seldom is a reason for a defendant to desire
to convince a judge that she will never be able to afford to pay her obligations. 180 Wash. App.
at 250-51.
In accordance with the noted authorities, we decline to entertain Ms. Swearingen's
belated argument in this appeal.
"Known Felons" Restriction
The final issue presented is a contention that the community custody restriction on
Ms. Swearingen associating with "known felons" is unconstitutionally vague. We disagree
and affirm the condition.
Once again, Ms. Swearingen did not challenge this condition at sentencing. In this
instance, however, that fact is not a bar to our consideration of her claim. State v. Bahl,
164 Wash. 2d 739, 745, 193 P.3d 678 (2008) (vagueness challenge to condition that
defendant not possess "pornographic materials" permitted initially on appeal). When a
vagueness challenge presents solely a question of law and there is no need to develop the
facts, it can properly be considered initially on appeal. Id. at 746-52. That is the
situation here.
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No. 32299-8-II1
State v. Swearingen
The restriction that Ms. Swearingen not associate with "known felons" is not
vague. This court dealt with an analogous restriction in State v. Llamas- Villa,
67 Wash. App. 448, 836 P.2d 239 (1992). There the defendant was restricted from
associating with persons who used, possessed, or distributed controlled substances. Jd. at
454. He argued that the provision was vague because it did not limit his liability only to
situations involving people he knew were engaging in the prohibited activities. Jd. at 455.
This court disagreed, stating that if the defendant "is arrested for violating the condition,
he will have an opportunity to assert that he was not aware that the individuals with
whom he had associated were using, possessing, or dealing drugs." Jd. at 455-56. We
concluded that the condition was not vague. Jd. at 456.
The condition at issue here is even less subject to challenge than that in Llamas-
Villa. First, the condition contains the restriction, argued for by the defendant in Llamas-
Villa, that it applies only to persons known to the defendant to be felons. Second, as in
Llamas- Villa, the wording of the condition permits Ms. Swearingen to present evidence
that she did not know an associate was a felon should she be accused of violating the
condition. Similarly, the condition appears to put the burden on the Department of
Corrections to prove her knowledge of her associates' felon status. Since she is the one
who may not contact "known felons," the knowledge element in question is her
knowledge, not that of some unknown community corrections officer. Properly
considered, the condition is not vague.
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No. 32299-8-II1
State v. Swearingen
The court properly imposed the condition that Ms. Swearingen not associate with·
"known felons ."
The convictions are 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.
WE CONCUR:
~Wt5rC-e
Siddoway, C.1.
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