State Of Washington v. Scott William Johnson ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
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SCOTT WILLIAM JOHNSON, UNPUBLISHED OPINION —*-
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Appellant. FILED: July 25, 2016
Verellen, C.J. — Where a defendant fails to show prejudice from trial counsel's
allegedly deficient performance, the defendant's claim of ineffective assistance of
counsel fails. Here, Scott Johnson did not make such a showing of prejudice. Further,
although the trial court erred in sentencing Johnson with an offender score of 10,
remand is not necessary because the record clearly indicates that the court would have
imposed the same sentence had it sentenced Johnson with a correct offender score of
nine. Accordingly, we affirm Johnson's conviction. We do not award costs on appeal.
FACTS
In March 2015, Longview police officers executed a search warrant at a
residence in Longview, Washington. The targets ofthe search were the residence itself
and Scott Johnson. The officers were looking for illegal narcotics, specifically heroin, in
the residence.
No. 75242-1-1/2
No one answered the officers' knocks at the front door of the residence, so the
officers forced the door open and went inside. The officers secured two rooms inside
the house and detained the occupants of the rooms.
The door to a third room was locked. The officers announced themselves and
forced the door open. Two females and Johnson were in the third room. When the
officers entered the room, they saw Johnson leaning down near a nightstand and
reaching towards the floor. Based on his training and experience, one of the officers,
Detective Seth Libbey, thought that Johnson was trying to hide something by stuffing it
down on the far side of the nightstand. The officers detained all three occupants of the
third room.
After Detective Libbey read Johnson his Miranda rights,1 Johnson admitted that
the third room was his bedroom, but he denied possessing any narcotics. Detective
Libbey searched Johnson's bedroom and found a plastic bag on a nightstand containing
a substance later identified as methamphetamine. Detective Libbey found a purse on
the floor near the nightstand in the area Johnson was reaching towards when the
officers entered the bedroom.
The purse Detective Libbey found belonged to Jacquelyn Croseman. When the
officers first entered the residence, they encountered Croseman in one of the first rooms
they walked through and handcuffed her. After the occupants of the house were
detained, Detective Libbey asked Croseman for consent to search her purse.
Croseman consented to the search and told Detective Libbey that he would not find
Miranda v. Arizona. 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
No. 75242-1-1/3
anything in the purse. In the purse, Detective Libbey found aluminum foil containing a
substance later identified as heroin.
The State charged Johnson with one count of possession of heroin and one
count of possession of methamphetamine. At trial, defense counsel asked Detective
Libbey if the purse found on the floor of Johnson's bedroom belonged to Croseman, and
Detective Libbey answered that it did. Defense counsel also asked Detective Libbey if
he knew whether anyone questioned Croseman about her purse. Detective Libbey
testified that he had spoken to Croseman about her purse and that Croseman told him
that the heroin found in her purse belonged to Johnson. On redirect examination by the
prosecutor, Detective Libbey testified that Croseman told him that, before the officers
arrived at the residence, she had been in Johnson's room and saw him with heroin. On
recross-examination, Detective Libbey reviewed his police report and testified that there
was nothing in his report about Croseman consenting to a search of her purse or about
any other statements Croseman made to him.
The jury found Johnson guilty on both counts. Based on an offender score of 10,
the trial court sentenced Johnson to 18 months on each count, to be served
concurrently.
Johnson timely appealed. His trial court filed a motion for an order of indigency
and the appointment of an attorney on appeal. The court granted the motion.
ANALYSIS
Ineffective Assistance of Counsel
Johnson claims he was denied effective assistance of counsel because his
counsel elicited testimony from Detective Libbey about Croseman's statements to him,
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which in turn allowed the State to elicit further testimony from Croseman about her
statements. Johnson also argues his counsel was ineffective for failing to interview
Detective Libbey prior to cross-examination. He argues that his convictions must be
reversed because he was prejudiced by his counsel's deficient performance. We
disagree.
A defendant's right to counsel includes the right to effective assistance of
counsel.2 A claim of ineffective assistance of counsel has two elements. Failure to
demonstrate either element is fatal to an ineffectiveness claim.3
First, the defendant must show that defense counsel's performance was
deficient.4 To show deficient performance, the defendant must show that counsel's
performance fell below an objective standard of reasonableness.5 In reviewing claims
of ineffective assistance, we are "highly deferential to counsel's performance."6 We
engage in a strong presumption that counsel's representation was effective.7 When
defense counsel's performance can be said to be a legitimate trial strategy or tactics,
performance is not deficient.8
Second, a defendant claiming ineffective assistance of counsel must show
prejudice. This requires a showing of a reasonable probability that, but for counsel's
2 Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984); State v. Crawford. 159 Wash. 2d 86, 97, 147 P.3d 1288 (2006).
3 Strickland, 466 U.S. at 697; State v. Foster. 140 Wash. App. 266, 273, 166 P.3d
726 (2007).
4 Strickland. 466 U.S. at 687.
5 ]± at 688.
6 In re Pers. Restraint of Gomez. 180 Wash. 2d 337, 348, 325 P.3d 142 (2014).
7 State v.McFarland. 127 Wash. 2d 322, 335, 899 P.2d 1251 (1995).
8 State v. Grier. 171 Wash. 2d 17, 33, 246 P.3d 1260 (2011).
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error, the result of the proceeding would have been different.9 "A reasonable probability
is a probability sufficient to undermine confidence in the outcome."10
We find no evidence in the record as to whether Johnson's counsel did or did not
interview Detective Libbey prior to cross-examination. And, "there is no absolute
requirement that defense counsel interview witnesses before trial."11 The record does
not support Johnson's claim that his counsel's performance fell below an objective
standard of reasonableness.
Further, even if Johnson can satisfy the first element of a claim of ineffective
assistance of counsel, he cannot show he was prejudiced by his counsel's actions in
eliciting testimony about Croseman's statements to Detective Libbey. Two officers who
executed the search warrant testified that when they entered the third room, they saw
Johnson reaching down towards the floor where the purse was found, acting as if he
was trying to hide something by stuffing it down on the far side of the nightstand. The
jury was instructed on constructive possession. Even without evidence of Croseman's
statements to Detective Libbey, the jury could have found that Johnson was in
constructive possession of the heroin. We find no reasonable probability that the result
of the proceeding would have been different had defense counsel not questioned
Detective Libbey about Croseman's statements to him.
9 Strickland. 466 U.S. at 694.
10 \±
11 In re Pers. Restraint of Pirtle. 136 Wash. 2d 467, 488, 965 P.2d 593 (1998)
(holding that a claim of ineffective assistance of counsel was not shown by defense
counsel's failure to interview the four investigating police officers where counsel relied
on the police reports instead).
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Offender Score
Johnson argues that the trial court erred in sentencing him with an offender score
of 10 because his current offenses comprised the same criminal conduct. The State
concedes the error, but argues that the error is harmless. We agree with the State.
We review de novo a sentencing court's calculation of an offender score.12 As
the State concedes, the trial court erred in calculating Johnson's offender score
because it scored Johnson's current offenses against each other. "[Cjoncurrent counts
involving simultaneous simple possession of more than one controlled substance
encompass the same criminal conduct for sentencing purposes."13 Johnson should
have been sentenced with an offender score of 9.
A remand for the correction of Johnson's offender score is not, however,
necessary because "the record clearly indicates the sentencing court would have
imposed the same sentence anyway."14 The two offenses of which Johnson was
convicted have a seriousness level of I. The standard range sentence for a drug
offense with a seriousness level of I for a defendant with an offender score of "6 to 9 or
more" is "12+ to 24 months."15 Accordingly, the standard range is the same whether
Johnson was sentenced with an offender score of 9 or 10. In sentencing Johnson, the
court agreed with the State's recommendation of a sentence in the middle of the
standard range. The record clearly indicates that the court would have imposed the
same sentence had it sentenced Johnson with an offender score of 9 rather than 10.
12 State v. Tili. 148 Wash. 2d 350, 358, 60 P.3d 1192 (2003).
13 State v. Vike. 125 Wash. 2d 407, 412-13, 885 P.2d 824 (1994).
14 State v. Parker, 132 Wash. 2d 182, 189, 937 P.2d 575 (1997).
15RCW9.94A.517(1).
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Costs on Appeal
Johnson argues that if the State is the substantially prevailing party on appeal,
we should not impose costs against him because he is indigent. The State does not
request an award of costs in its brief.
Appellate courts may require an adult offender convicted of an offense to pay
appellate costs.16 The commissioner or clerk will award costs to the State ifthe State is
the substantially prevailing party on appeal, "unless the appellate court directs otherwise
in its decision terminating review."17
A determination of a criminal defendant's indigency is entrusted to the trial judge,
whose finding of indigency we respect unless we are shown good cause not to do so.18
Under the Rules of Appellate Procedure, where a party has been granted an order of
indigency, the party and the party's counsel must bring to the attention of the trial court
any significant improvement during review in the party's financial condition.19 We "will
give a party the benefits of an order of indigency throughout the review unless the trial
court finds the party's financial condition has improved to the extent that the party is no
longer indigent."20
In support of the motion for an order of indigency and appointment of an attorney
on appeal, Johnson's trial counsel stated that, to the best of his knowledge, Johnson's
financial situation was the same or worse than it was when the trial court originally
16 RCW 10.73.160(1).
17 RAP 14.2.
18 State v. Sinclair. 192 Wash. App. 380, 393, 367 P.3d 612 (2016).
19 RAP 15.2(f).
20 Id.
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found Johnson indigent. The court granted the motion, finding that Johnson is indigent
for purposes of appeal and is entitled to appointed counsel on appeal, a waiver of all
fees, and all other costs reasonably necessary to make the appeal. We presume that
Johnson remains indigent.21 Under these circumstances, we conclude that an award to
the State of appellate costs is not appropriate.
CONCLUSION
We affirm. We do not award costs on appeal.
WE CONCUR:
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21 Sinclair. 192 Wash. App. at 393; RAP 15.2(f).