Opinion
No. 35761-5-II.
March 4, 2008.
Appeal from a judgment of the Superior Court for Thurston County, No. 06-1-01837-4, Richard A. Strophy, J., entered January 8, 2007.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Houghton, C.J., concurred in by Armstrong and Hunt, JJ.
Timothy Hoshall appeals his convictions of one count of unlawful possession of a controlled substance, psilocyn (count I), and one count of unlawful possession of a controlled substance, marijuana (count II). He argues that the trial court erred in denying his CrR 3.6 motion to suppress mushrooms seized from his person because the officers failed to obtain his voluntary consent when they asked him to empty his pockets after he previously consented to a premises search. He also argues that he received ineffective assistance of counsel at the CrR 3.6 motion. Finally, he assigns error to the trial court's reliance on the State's statement of his criminal history in calculating his offender score. We affirm Hoshall's conviction but vacate his sentence and remand for resentencing.
Hoshall also assigned error to the trial court's failure to enter findings of fact and conclusions of law following a bench trial. On January 18, 2008, the State filed findings of fact and conclusions of law with this court. An appellant bears the burden of proving prejudice resulting from late entry of written findings and conclusions. State v. Royal, 122 Wn.2d 413, 423, 858 P.2d 259 (1993). We will not infer prejudice from delayed entry of findings and conclusions. State v. Head, 136 Wn.2d 619, 625, 964 P.2d 1187 (1998). Because nothing shows prejudice to Hoshall, this argument fails.
Hoshall also assigns error to the trial court's findings of fact and conclusions of law entered after the CrR 3.6 hearing, claiming that the court failed to appreciate that he was subject to two separate searches. We review findings of fact for substantial evidence, and whether the findings support the conclusions of law. State v. Stevenson, 128 Wn. App. 179, 193, 114 P.3d 699 (2005). Sufficient evidence shows that the trial court concluded that he voluntarily consented to a search of his person. Although the trial court concluded that the officer's request that Hoshall empty his pockets "extend[ed] the search," its conclusion that he voluntarily consented to that search demonstrates that the court appreciated the two distinct searches. Clerk's Papers at 39.
Facts
On November 2, 2005, Deputy Tim Rudloff and Sergeant John Price went to the home of Hoshall and his parents to investigate an anonymous tip that illegal drug use was occurring at that residence. The officers wore plain clothes and drove an unmarked vehicle.
The officers knocked and spoke to Hoshall and his mother at the front door. The officers explained the anonymous tip and that they had come to investigate. Hoshall and his mother agreed to speak with the officers about the tip, and Hoshall denied having any illegal drugs or paraphernalia in his possession or within the home.
The officers asked Hoshall and his mother to consent to a premises search, read them their Ferrier warnings, and had them sign a written consent to search form. State v. Ferrier, 136 Wn.2d 103, 118, 960 P.2d 927 (1998) (holding that police must inform the person from whom consent is sought that they may refuse consent, revoke consent, and limit the scope of consent). The consent to search form stated that a person may (1) refuse a law enforcement officer's search of his or her property unless the officer has a valid search warrant, (2) limit the scope of the officer's search, and (3) withdraw or revoke that consent at any time.
Both Hoshall and his mother signed the consent form. Exercising his authority to limit the search, he asked the officers to not search his parents' bedroom because the tip implicated him, not his parents. The officers proceeded to search the premises except for his mother's bedroom.
Accompanied by Hoshall, Rudloff searched a garage-like room, where he found a tin containing what he be believed to be marijuana. Rudloff also found Zigzag smoking papers. Rudloff said to Hoshall that the drugs were inconsistent with Hoshall's earlier statement that he did not have any drugs or paraphernalia. Hoshall then admitted the drugs belonged to him but stated that was all he had.
The officers searched the rest of the house, the exterior of the home, and an RV parked on the premises. The search did not turn up any additional contraband. Before leaving the premises, Rudloff asked Hoshall if he minded emptying his pockets. Without making any verbal statement, Hoshall began to empty his pockets. In a cigarette pack that Hoshall removed from his pockets, Rudloff found illegal mushrooms.
The officers did not arrest Hoshall at that time, and there is no evidence that they read Hoshall his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The entire exchange took no more than 20 minutes. The State charged Hoshall with one count of unlawful possession of a controlled substance, psilocyn, and one count of unlawful possession of a controlled substance, marijuana.
During a pretrial CrR 3.6 hearing, Hoshall moved to exclude the mushrooms seized after he emptied his pockets. After hearing testimony from the officers, the trial court denied Hoshall's motion, finding that (1) he knew he had the right to terminate and limit the scope of a search and (2) the police did not coerce him into consenting to the search. The court concluded that Hoshall voluntarily consented to the search. Hoshall stipulated to a bench trial based on a reading of the record, and the trial court found him guilty as to both counts.
At sentencing, the trial court imposed a standard range sentence of three months on count I and 90 days with 89 suspended on count II. The trial court relied on the State's recitation of Hoshall's criminal history in determining the sentencing range. Hoshall did not acknowledge the alleged prior conviction. Hoshall appeals.
ANALYSIS Motion to Suppress
Hoshall first contends that the trial court erred in admitting the mushroom evidence. He asserts that the State failed to show that he gave valid consent to the search of his pockets.
When reviewing the denial of a motion to suppress, we determine whether substantial evidence supports the findings of fact and then whether the findings of fact support the conclusions of law. Stevenson, 128 Wn. App. at 193. We review conclusions of law de novo. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999).
Absent an established exception to the warrant requirement, warrantless searches are per se unreasonable. State v. Walker, 136 Wn.2d 678, 682, 965 P.2d 1079 (1998). Consent is a valid exception. Walker, 136 Wn.2d at 682. The State bears the burden of showing the defendant voluntarily consented to the search. Walker, 136 Wn.2d at 682. The State must show (1) the person voluntarily gave consent, (2) the person granting consent had authority to do so, and (3) the search did not exceed the scope of the consent. Walker, 136 Wn.2d at 682. Here, only the voluntariness of Hoshall's consent is at issue.
Whether consent is voluntarily given depends on the totality of the circumstances, including (1) whether the officers gave Miranda warnings prior to obtaining consent, (2) the degree of education and intelligence of the consenting person, and (3) whether the officers advised the consenting person of his right to refuse consent. State v. Reichenbach, 153 Wn.2d 126, 132, 101 P.3d 80 (2004). Knowledge of the right to refuse consent is relevant but not dispositive. Reichenbach, 153 Wn.2d at 132. Hoshall challenges the finding that he voluntarily consented, alleging that all three factors are lacking.
Although the evidence does not show that the officers read Hoshall his Miranda rights, Hoshall learned of his right to refuse consent to a search when he read and signed the consent to search form. Hoshall read this form no more than 20 minutes before Rudloff asked him to empty his pockets. As such, Hoshall knew of his right to refuse consent. Further, although the record does not address Hoshall's education and intelligence, he had sufficient intelligence to understand and invoke his right to limit the earlier search of his parents' residence.
Additionally, nothing shows that the officers coerced Hoshall into consenting. As the trial court found, the officers did not make any overt showing of force. First, Rudloff simply asked Hoshall if he would mind emptying his pockets. Rudloff did not demand Hoshall empty his pockets or make any threats. Second, there is no evidence that the officers' presence was threatening. The officers wore plain clothes, not uniforms, and drove an unmarked car. The entire exchange, including the premises search, took no more than 20 minutes. Hoshall's mother was also present during the entire search.
Finally, Hoshall actually consented to the search. When asked if he minded emptying his pockets, he began removing items from his pockets without objecting. Contrary to Hoshall's argument, his consent was voluntary even though he had already consented to a search that turned up drugs.
Given Hoshall's awareness of his right to refuse consent, his earlier exercise of his right to limit the officers' search, and the lack of coercion, the totality of the circumstances supports the trial court's conclusion that he voluntarily consented to a search of his pockets. Hoshall's argument fails.
Ineffective Assistance of Counsel
Hoshall next contends that he received ineffective assistance of counsel, claiming that his counsel's conduct fell below an objective standard of reasonableness when he failed to properly argue the CrR 3.6 suppression motion.
Both the federal and state constitutions guarantee effective assistance of counsel. U.S. Const. amend. VI; Wash. Const. art. I, § 22. To prove ineffective assistance of counsel, appellant must show counsel's deficient performance prejudiced him. In the Matter of the Pers. Restraint of Woods, 154 Wn.2d 400, 420, 114 P.3d 607 (2005). Counsel's performance is deficient when it falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997). Prejudice occurs when, but for the deficient performance, there is a reasonable probability that the outcome would have differed. In the Matter of the Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). We begin our analysis with a strong presumption of counsel's effectiveness. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
Hoshall asserts that his attorney should have argued that the officers subjected him to two separate searches — the premises search and the search of his pockets. He states that there are no tactical or strategic reasons for counsel's failure to raise this issue. We disagree.
We will not find ineffective assistance of counsel if counsel's actions go to the theory of the case or trial tactics. State v. Varga, 151 Wn.2d 179, 199, 86 P.3d 139 (2004). What theory to argue on a motion to exclude evidence goes to the heart of trial tactics. Further, Hoshall's counsel did attempt to argue that the officers subjected Hoshall to two separate searches. Hoshall's counsel asserted that Hoshall did not feel free to refuse consent to the search of his person since the officers had already found the marijuana. Hoshall's claim of ineffective assistance of counsel fails on the first prong, and we do not address the prejudice prong.
Calculation of Offender Score
Finally, Hoshall challenges the court's reliance on the State's statement of criminal history in determining his offender score, arguing that the State failed to prove his prior conviction. The State must prove by a preponderance of the evidence a defendant's criminal history for the purpose of calculating an offender score. State v. Mendoza, 139 Wn. App. 693, 702, 162 P.3d 439 (2007). The State's assertions as to a defendant's criminal history are insufficient to meet this burden, and a defendant's failure to object to such assertions does not relieve the State of its burden. Mendoza, 139 Wn. App. at 703, 704-08.
The State correctly concedes that as it failed to offer any proof as to Hoshall's prior conviction, he is entitled to a remand for resentencing. See Mendoza, 139 Wn. App. at 712-13 (remanding for resentencing, finding that the State failed to prove the defendant's criminal history by a preponderance of the evidence because the State failed to produce certified copies of any judgment or sentence showing the defendant's alleged criminal history).
The conviction is affirmed, the sentence vacated, and the case is remanded for resentencing.
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 pursuant to RCW 2.06.040, it is so ordered.
Armstrong, J., Hunt, J., concur