State Of Washington, V Sharon Elaine Carson

Filed
Washington State
Court of Appeals
Division Two
October 27, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 52812-6-II
Respondent,
v.
SHARON ELAINE CARSON,
Appellant.
No. 52689-1-II
In the Matter of the Personal Restraint of
SHARON ELAINE CARSON, UNPUBLISHED OPINION
Petitioner.
GLASGOW, J.—The Grays Harbor County Drug Task Force used a confidential informant
to complete three controlled buys of methamphetamine from Sharon Elaine Carson at her house.
Carson was convicted of three counts of delivering methamphetamine and one count of unlawful
use of a building for drug purposes. Carson appeals her sentence. She argues that the trial court
erred by imposing school bus stop sentence enhancements consecutively to each other without
adopting findings and conclusions necessary for an exceptional sentence. Carson also challenges
the imposition of the DNA collection fee.
We agree that the trial court erred by imposing the school bus stop sentence enhancements
consecutively to each other without identifying a basis for an exceptional sentence and without
entering findings of fact and conclusions of law. We vacate the consecutive imposition of the
No. 52812-6-II
school bus stop sentence enhancements and remand for the trial court to determine if an
exceptional sentence imposing the enhancements consecutively to each other is appropriate under
RCW 9.94A.535. We also remand for the trial court to reconsider the DNA collection fee.
Before trial, Carson filed a pro se personal restraint petition (PRP) that was later
consolidated with her direct appeal. The issues related to probable cause raised in Carson’s PRP
are moot, and we otherwise deny the PRP.
FACTS
Detectives Chris Rathbun, Richard Ramirez, and Joe Strong, who worked with the Grays
Harbor County Drug Task Force, orchestrated three controlled buys of methamphetamine from
Carson at her house in Aberdeen, Washington, using a confidential informant.
The detectives then obtained a warrant and searched Carson’s house. In Carson’s bedroom,
the detectives found an uncapped syringe containing a brown liquid they believed was heroin and
two pipes for smoking methamphetamine. The detectives photographed the syringe and its
contents. They then disposed of the syringe and the liquid because they did not know what it
contained and did not have a container for safely transporting a needle.
The State then requested and obtained a warrant for Carson’s arrest based on probable
cause established with the evidence they obtained from the controlled buys and the search of her
home. In a second amended information, Carson was charged with one count of possession of
heroin based on the evidence found in the search, and three counts of delivering methamphetamine
based on the three controlled buys. Carson pleaded not guilty.
Carson’s initial trial counsel moved to withdraw because counsel discovered that the
confidential informant in Carson’s case was also a client. The trial court granted the motion and
2
No. 52812-6-II
appointed new counsel. The State offered Carson a plea deal under which she would plead guilty
to two counts of delivering a controlled substance and the State would recommend a 14-month
sentence.
Carson did not take the plea offer. The State filed a third amended information, dropping
the possession of heroin charge, and adding one count of unlawful use of a building for drug
purposes. The State also added school bus stop sentence enhancements to each of the three counts
of delivery of methamphetamine.
Carson’s new trial counsel moved to withdraw three times before trial, claiming breakdown
of the attorney-client relationship. Carson expressed frustration with her attorney but told the trial
court she believed they were able to communicate adequately. The trial court denied each of
defense counsel’s motions, finding no cause for withdrawal.
A few days before trial, Carson filed a pro se personal restraint petition (PRP) in the
Washington Supreme Court. Carson sought pretrial release, arguing that her “speedy trial rights”
had been violated, evidence establishing probable cause to hold her in custody had been disposed
of, she was deprived of her right to a preliminary hearing to establish probable cause, she had not
received a CrR 3.5 hearing, her counsel was ineffective, and other constitutional violations
occurred. PRP at 3.
A jury trial began on November 27, 2018. The jury convicted Carson of all counts. The
jury found by special verdict that each of the three methamphetamine sales occurred within 1,000
feet of a school bus stop.
In its sentencing memorandum and at the sentencing hearing, the State recommended 60
months for each of the delivery of methamphetamine convictions (counts 1-3) and 18 months for
3
No. 52812-6-II
the unlawful use of a building for drug purposes conviction (count 4). The State argued that the
trial court had to impose each of the three 24-month school bus stop sentence enhancements
“consecutive to each other and to all other sentencing provisions, pursuant to RCW 9.94A.533(6).”
Clerk’s Papers at 209. In total, the State recommended a 132-month sentence.
Without describing its recommendation as an exceptional sentence, the State argued that a
132-month total sentence was appropriate because Carson’s house had been the subject of
numerous complaints about criminal activity, and Carson made phone calls from jail instructing
family members to reveal the confidential informant’s identity.
Carson countered that mitigating factors applied, including that she was a 58-year-old
grandmother and family caretaker with health issues, she had no recent drug related convictions,
and she sold only small quantities of drugs. Carson argued that due to these mitigating factors, “an
exceptional sentence downward should apply to the school [bus stop] enhancement[s].” Verbatim
Report of Proceedings (Dec. 7, 2018) at 340-41.
Neither the State nor the defense mentioned an exceptional sentence upward. Contrary to
the State’s argument on appeal, both parties and the trial court appeared to assume that the school
bus stop sentence enhancements had to run consecutively to each other unless mitigating factors
applied. Although Carson’s trial counsel argued that the school bus stop enhancements should be
imposed concurrently rather than consecutively to each other, his reasoning was that mitigating
factors supported an exceptional sentence downward.
The trial court sentenced Carson to 48 months each on counts 1-3 and 18 months on count
4. The judgment and sentence indicates that the base sentences for counts 1-4 were to be served
concurrently. The trial court added 24-month school bus stop sentence enhancements to each of
4
No. 52812-6-II
the three delivery of methamphetamine counts, ordering that the enhancements were to be served
consecutively. The trial court did not specify in its oral ruling or in the judgment and sentence that
it was ordering the enhancements to be served consecutively to each other, but this was the effect
because the actual number of months of total confinement ordered in the judgment and sentence
was 120 months.
The trial court did not check the box in the judgment and sentence indicating it was
imposing an exceptional sentence, nor did it enter written findings of fact and conclusions of law
supporting an exceptional sentence.
No evidence was presented to the trial court about whether Carson had previously paid the
$100 DNA collection fee. The trial court waived some legal financial obligations due to Carson’s
indigency but imposed the DNA collection fee.
Carson appeals the imposition of the three school bus stop sentence enhancements
consecutively to each other and the imposition of the DNA collection fee. The Supreme Court
transferred Carson’s PRP to this court, and we consolidated the PRP with this direct appeal.
ANALYSIS
I. DIRECT APPEAL
A. School Bus Stop Sentence Enhancements
Carson argues that the trial court erred when it imposed the school bus stop sentence
enhancements consecutively to each other. Carson argues that under RCW 9.94A.533(6), RCW
9.94A.589(1)(a), and State v. Conover, 183 Wash. 2d 706, 708, 355 P.3d 1093 (2015), the trial court
could only have imposed the school bus stop sentence enhancements consecutively to each other
if it imposed an exceptional sentence under RCW 9.94A.535. Carson contends there is no evidence
5
No. 52812-6-II
the trial court ordered an exceptional sentence under RCW 9.94A.535, so it erred by running the
three school bus stop sentence enhancements consecutively to each other. We agree.
1. Exceptional sentence requirements
Under RCW 69.50.435(1)(c), a person who sells drugs within 1,000 feet of a school bus
stop may be subject to an additional penalty in addition to the sentence otherwise authorized by
chapter 69.50 RCW, the Uniform Controlled Substances Act. RCW 9.94A.533(6) requires that
school bus stop sentence enhancements run consecutively to “all other sentencing provisions,” but
the Washington Supreme Court has held that this statute does not require trial courts to impose
multiple school bus stop sentence enhancements consecutively to each other. In Conover, the court
held, “RCW 9.94A.533(6) does not require trial courts to run school bus route stop enhancements
on different counts consecutively to each other; instead . . . whether those enhancements are to run
concurrently or consecutively is . . . determined by resort to the rules in RCW 9.94A.589(1)(a).”
183 Wash. 2d at 708.
Under RCW 9.94A.589(1)(a), sentences for offenses other than serious violent offenses
“shall be served concurrently” and “[c]onsecutive sentences may only be imposed under the
exceptional sentence provisions of RCW 9.94A.535.” RCW 9.94A.535(2) provides an exclusive
list of aggravating circumstances that the trial court can find to support an exceptional sentence,
while RCW 9.94A.535(3) provides an exclusive list of factors that must be found by a jury to
support an exceptional sentence. “Whenever a sentence outside the standard sentence range is
imposed, the court shall set forth the reasons for its decision in written findings of fact and
conclusions of law.” RCW 9.94A.535; see also State v. Friedlund, 182 Wash. 2d 388, 393, 341 P.3d
6
No. 52812-6-II
280 (2015) (“the entry of written findings is essential when a court imposes an exceptional
sentence”).
“Sentencing errors resulting in unlawful sentences may be raised for the first time on
appeal.” State v. Dunleavy, 2 Wash. App. 2d 420, 432, 409 P.3d 1077 (2018). Appellate courts
“review de novo whether a trial court’s reasons for imposing an exceptional sentence meet the
requirements of the [Sentencing Reform Act of 1981, chapter 9.94A. RCW, (SRA)].” Friedlund,
182 Wash. 2d at 393-94 (applying de novo review to trial court’s failure to enter written findings of
fact and conclusions of law in support of an exceptional sentence).
Here, there is no dispute that although the jury found the crime was committed within 1,000
feet of a school bus stop, which supported the sentencing enhancement, the State did not charge
and the jury did not find any aggravating circumstance listed in RCW 9.94A.535(3) to support an
exceptional sentence. Nor did the trial court enter written findings of fact and conclusions of law
to support an exceptional sentence in this case. The trial court did not discuss sentencing Carson
to an exceptional sentence at the sentencing hearing. And the portion of the judgment and sentence
indicating the imposition of an exceptional sentence was blank.
The only discussion of departing from the standard range occurred when Carson’s counsel
argued that the school bus stop sentence enhancements should be sentenced concurrently rather
than consecutively to each other because mitigating factors supported a downward departure from
the standard range. The State discussed the jury’s special verdict finding that Carson sold
methamphetamine within 1,000 feet of a school bus stop at the sentencing hearing, but this special
verdict alone did not support the imposition of the enhancements consecutively to each other.
7
No. 52812-6-II
To the extent the State argues that the trial court’s sentence was proper because it satisfied
the three-pronged test for an exceptional sentence articulated in State v. Davis, we reject that
argument. 146 Wash. App. 714, 720, 192 P.3d 29 (2008). The Davis test does not apply here because
the trial court never indicated an intent to impose an exceptional sentence and made no findings
about how an exceptional sentence would be justified under RCW 9.94A.535.
Similarly, we reject the State’s argument that the trial court properly sentenced Carson to
consecutive school bus stop enhancements because the sentence serves the purposes of the SRA.
The sentence was higher than the standard range, and the SRA explicitly requires that “[w]henever
a sentence outside the standard sentence range is imposed, the court shall set forth the reasons for
its decision in written findings of fact and conclusions of law.” RCW 9.94A.535. The trial court’s
sentence thus did not meet the procedural requirements of the SRA nor did the trial court even
state a basis for an exceptional sentence under the statute. Friedlund, 182 Wash. 2d at 393.
We hold that under Conover and Friedlund, the trial court erred by imposing the three
school bus stop sentence enhancements in this case consecutively to each other without following
the exceptional sentence provisions of RCW 9.94A.535.
2. Remedy
In State v. Rasmussen, the trial court “imposed consecutive sentences but did not consider
whether aggravating circumstances warranted imposition of an exceptional sentence,” and this
court vacated and remanded for resentencing. 109 Wash. App. 279, 280, 34 P.3d 1235 (2001). In
that case, there was no evidence in the record indicating that the trial court had considered an
exceptional sentence. Id. at 280.
8
No. 52812-6-II
In Friedlund, the trial court failed to enter written findings of fact supporting an exceptional
sentence, but the trial court’s reasons for deviating from the standard range were clear from the
record. 182 Wash. 2d at 391, 395. The Supreme Court was not willing to excuse the absence of
written findings, but held that the remedy was limited to remanding for the trial court to enter
findings and conclusions, rather than remanding for resentencing. Id. at 395.
This case is like Rasmussen, not Friedlund. Unlike in Friedlund, the trial court in this case
did not mention circumstances justifying an exceptional sentence from the bench, nor did the trial
court appear to understand that it was imposing an exceptional sentence. The State neither charged
nor ever identified a statutory basis for an exceptional sentence under RCW 9.94A.535.
The record does not indicate that the trial court intended to impose an exceptional sentence,
nor is it at all clear that there is a basis for an exceptional sentence under RCW 9.94A.535(3). The
appropriate remedy is to remand for resentencing, as in Rasmussen, rather than simply to remand
for entry of written findings of fact and conclusions of law as in Friedlund.
B. DNA Collection Fee
Carson contends that the trial court erred under RCW 43.43.7541 by imposing the DNA
collection fee because she was indigent and her DNA had been collected for a prior felony. The
record is silent as to whether Carson’s DNA was previously collected but the criminal history in
her judgment and sentence lists a 1998 felony conviction. Remand is appropriate to allow the State
to present evidence that Carson’s DNA was not previously collected. The trial court should strike
the DNA collection fee unless the State meets its burden.
Under RCW 43.43.7541, the DNA collection fee is not mandatory if the defendant’s DNA
has already been collected due to a prior conviction. See also State v. Ramirez, 191 Wash. 2d 732,
9
No. 52812-6-II
747, 426 P.3d 714 (2018). There is no requirement in RCW 43.43.7541 that the prior DNA
collection must only have occurred after a specific date. Moreover, under State v. Houck, if a
defendant has a prior felony conviction, there is a presumption that the State previously collected
the defendant’s DNA. 9 Wash. App. 2d 636, 651 n.4, 446 P.3d 646 (2019), review denied, 194 Wash. 2d
1024 (2020). The State has the burden of showing that the defendant’s DNA has not been
previously collected. Id.
Here, Carson had a 1998 felony conviction, and defendants convicted of felonies in 1998
were required to provide DNA samples. LAWS OF 1989, ch. 350, § 4; RCW 43.43.7541. The State
has not rebutted the presumption that Carson’s DNA was previously collected. Unless the State
can rebut this presumption on remand, the trial court’s imposition of the DNA collection fee was
improper. Houck, 9 Wash. App. 2d at 651 n.4.
II. PERSONAL RESTRAINT PETITION
Carson filed a pro se PRP dated November 25, 2018, while incarcerated pretrial. Carson’s
trial began on November 27, 2018. Carson sought to be “released from custody at Grays Harbor
County Jail pending trial.” PRP at 2. Carson indicated that she had been denied relief by the trial
court on November 8, 2018, when the trial court denied her request for pretrial release.
This court granted the State’s motion to consolidate this PRP with Carson’s direct appeal
and appellate defense counsel’s motion to represent Carson on this PRP. Counsel did not file
supplemental briefing regarding this PRP, nor did counsel otherwise mention Carson’s PRP
arguments in briefing. Neither Carson nor counsel moved to withdraw the PRP.
10
No. 52812-6-II
Although some of the issues in Carson’s pretrial PRP are now moot, other issues are
relevant to the validity of her conviction and can still be resolved by this court. We therefore
conclude that some issues are moot and otherwise deny the PRP.
A. Moot Issues
1. Preservation of evidence supporting probable cause declaration
Carson argues that the evidence of a syringe containing brown liquid, which was discussed
in the prosecutor’s declaration of probable cause supporting the first two informations and the
arrest warrant, was not tested or preserved. These issues are moot because the relief Carson sought
was to be released pretrial due to lack of probable cause and that relief can no longer be provided.
See State v. Gentry, 125 Wash. 2d 570, 616, 888 P.2d 1105 (1995). To the extent Carson argues the
detectives’ failure to preserve the syringe impacted her trial and conviction, this argument is also
moot because the possession of heroin charge was dropped before trial.
2. Failure to hold preliminary hearing to establish probable cause
Carson argues that she was denied a preliminary hearing to determine whether probable
cause existed to support the charges against her. She also appears to argue in the alternative that if
a preliminary hearing did occur, she was improperly denied the opportunity to review the evidence
against her and cross-examine witnesses at that hearing. These issues are also moot because Carson
has since been convicted at a jury trial by proof beyond a reasonable doubt, so there is no effective
relief this court could provide postconviction regarding this pretrial issue. See id.
11
No. 52812-6-II
B. Issues Reviewed on the Merits
1. PRP standards
To obtain relief, a personal restraint petitioner must establish that their restraint was the
product of either a constitutional error that caused “actual and substantial prejudice” or a
nonconstitutional fundamental defect that “‘inherently result[ed] in a complete miscarriage of
justice.’” In re Pers. Restraint of Swagerty, 186 Wash. 2d 801, 807, 383 P.3d 454 (2016) (quoting In
re Pers. Restraint of Cook, 114 Wash. 2d 802, 810-12, 792 P.2d 506 (1990)).
A petitioner must “state with particularity facts which, if proven, would entitle [them] to
relief” and identify the evidence supporting the factual allegations because “[b]ald assertions and
conclusory allegations will not support the holding of a hearing.” In re Pers. Restraint of Rice, 118
Wash. 2d 876, 886, 828 P.2d 1086 (1992); see also RAP 16.7(a)(2)(i). If the allegations are based on
matters outside the existing record, the petitioner must demonstrate competent, admissible
evidence to establish the facts entitling them to relief. Rice, 118 Wash. 2d at 886.
2. Time for trial issues
Carson argues that her “speedy trial rights” were violated because she was not brought to
trial for 84 days and she never waived this right. PRP at 3. Carson also appears to argue that the
trial court erred by not reporting her untimely trial to the Administrative Office of the Courts under
CrR 3.3(a)(6).
Under CrR 3.3(b), a defendant who is in jail must be brought to trial within 60 days of
arraignment. Under CrR 3.3(c)(2)(vii), disqualification of counsel restarts the clock for calculating
the 60-day period. CrR 3.3(a)(6) instructs the trial court to report untimely trials to the
Administrative Office of the Courts.
12
No. 52812-6-II
Carson was brought to trial within the time for trial provided in CrR 3.3(b)-(c). Carson was
arraigned on September 10, 2018. On October 1, 2018, Carson’s initial trial counsel withdrew
because counsel was disqualified due to a conflict of interest. Counsel’s disqualification created a
new commencement date for the CrR 3.3 60-day rule. CrR 3.3(c)(2)(vii). Carson’s trial began
fewer than 60 days later on November 27, 2018. Because Carson’s trial was not untimely, there
was also no reporting error under CrR 3.3(a)(6).We hold that Carson has not made a prima facie
showing of error with regard to this claim.
3. Failure to hold a CrR 3.5 hearing
Carson argues that she requested but never received a CrR 3.5 hearing. CrR 3.5(a) requires
that “[w]hen a statement of the accused is to be offered in evidence,” a hearing must be held to
“determin[e] whether the statement is admissible.” Here, the State offered testimony from the
detectives about statements that Carson made to them. It appears from the detectives’ testimony
that they talked to Carson at her home and at the jail, and there is testimony that she was advised
of her Miranda1 rights only before the conversation at the jail. Ramirez testified that Carson denied
that she sold drugs but pointed out where her bedroom was located, which was where the detectives
found methamphetamine pipes and the syringe. Later, Rathbun testified that Carson denied selling
drugs but said that someone else who stayed at her home sold drugs.
Even if we were to find that admission of these statements was error, an issue we need not
decide, Carson would need to show that actual and substantial prejudice arose from the alleged
error to prevail on this claim. Carson has not offered competent and admissible evidence to show
that the admission of any statements she made to the detectives prejudiced her. The State’s
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
13
No. 52812-6-II
evidence about her sales of methamphetamine to the confidential informant, including unrebutted
testimony from the informant and multiple law enforcement witnesses, was overwhelming and this
evidence did not involve evidence found in Carson’s bedroom. The possession of heroin charge
was dropped prior to trial. Thus, Carson fails to show actual and substantial prejudice with regard
to this claim.
4. Ineffective assistance of counsel
Carson appears to argue that she received ineffective assistance of counsel because her trial
counsel sought to withdraw, tried to pressure her into pleading guilty, left her to defend herself,
and “poor representation by counsel has [risen] to the level of a constitutional violation.” PRP at
12.
Carson has offered no more than these bald assertions of ineffective assistance. See Rice,
118 Wash. 2d at 886; RAP 16.7(a)(2)(i). She has not provided evidence or demonstrated that
particular facts exist sufficient to establish that her counsel’s representation fell below an objective
standard of reasonableness, and she has not offered evidence establishing that her counsel’s
performance prejudiced her. We hold that Carson has not made a sufficient showing of deficient
performance or actual and substantial prejudice with regard to her trial counsel’s preparation for
trial.
5. Other constitutional issues
Carson appears to argue that her Sixth Amendment rights under the United States
Constitution were violated by the trial court, the prosecuting attorney, her defense counsel, and the
drug task force officers who investigated her. A mere assertion of error in a PRP, without more,
will not support relief. Rice, 118 Wash. 2d at 886. Because Carson does not support this argument
14
No. 52812-6-II
with particular evidence supporting her allegations, we hold that she has not made the necessary
showing of error. We conclude that none of the remaining issues raised in Carson’s PRP warrants
relief.
CONCLUSION
We vacate the imposition of the three school bus stop sentence enhancements to the extent
the trial court imposed them consecutively to each other. We remand for resentencing in
accordance with RCW 9.94A.589 and RCW 9.94A.535 and for reconsideration of the DNA
collection fee. The probable cause issues raised in Carson’s PRP are moot and we otherwise deny
the PRP.
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.
Glasgow, J.
We concur:
Lee, C.J.
Maxa, J.
15