                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                         November 10, 2015




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                            DIVISION II

 STATE OF WASHINGTON,                                               No. 45232-4-II
                                                           (Consolidated with Nos. 45262-6-II
                                Respondent,                         and 46284-2-II)

         v.                                                    UNPUBLISHED OPINION

 FRANK S. BELLUE,

                                Appellant.


 In re the Personal Restraint Petition of:                            No. 46284-2-II
 FRANK S. BELLUE,


                              Petitioner.




       BJORGEN, A.C.J. — Frank S. Bellue appeals his convictions for twenty-three counts of

second degree identity theft, two counts of forgery, three counts of unlawful possession of

payment instruments, one count of unlawful possession of instruments of financial fraud, one

count of second degree possession of stolen property, two counts of leading organized crime, and

one count of tampering with a witness. Bellue also appeals the jury’s special verdicts finding

that each of those crimes, save the witness tampering offense, constituted a major economic

offense. Bellue claims that (1) the State violated his right to privacy under article I, section 7 of
No. 45232-4-II (Cons. w/Nos. 45262-6-II
 and 46284-2-II)

the Washington State Constitution and his right to freedom from unreasonable search and seizure

under the Fourth Amendment to the United States Constitution by entering and searching his

hotel room and detaining him without a warrant, (2) his trial counsel rendered ineffective

assistance by failing to move to suppress the tainted evidence discovered through the unlawful

search and seizure, (3) insufficient evidence supported his convictions for leading organized

crime, identity theft, unlawful possession of payment instruments, and possession of stolen

property, (4) the trial court failed to enter written findings of fact and conclusions of law when

imposing the exceptional sentence, and (5) the trial court impermissibly imposed an exceptional

sentence based on accomplice liability. In his personal restraint petition (PRP) consolidated with

his direct appeal, Bellue repeats his claims of unlawful search and seizure and of ineffective

assistance of counsel.

       We hold that (1) Bellue’s claims of violation of privacy and unlawful search and seizure,

raised for the first time on appeal, do not involve a manifest constitutional error, and we do not

reach their merits under RAP 2.5, (2) Bellue’s ineffective assistance claim fails because he

cannot show prejudice, (3) the State introduced sufficient evidence for a reasonable fact finder to

find Bellue guilty of each and every offense beyond a reasonable doubt, (4) the trial court

entered the necessary findings of fact and conclusions of law to support the exceptional sentence,

(5) the trial court did not impose an exceptional sentence for any offense for which the jury could

have found Bellue guilty based on accomplice liability, and (6) Bellue fails to make the showing

necessary for relief by way of his PRP. Therefore, we affirm Bellue’s convictions and sentence

and deny his PRP.




                                                 2
No. 45232-4-II (Cons. w/Nos. 45262-6-II
 and 46284-2-II)

                                              FACTS

       On June 5, 2012, an acquaintance of Yolanda Carlson invited her to come to a motel

room the acquaintance had rented. Carlson, in turn, invited Bellue, Bellue’s son Frank Spencer

Bellue (Spencer),1 and Rochelle Moore to stay with her in the room.

       The next morning, Spencer and Moore left the room and went next door to a pharmacy.

They planned to “buy cigarettes and . . . various items in the store” using a stolen identity card

and check. V Verbatim Report of Proceedings (VRP) at 396-97. The pharmacy’s employees

recognized that the identification card did not match Moore, at which point Moore became

frightened and fled. The pharmacy’s employees then called 911 to report the incident, triggering

a police response.

       The first officer to arrive on scene, Samuel Lopez, found Spencer and Moore standing in

the motel’s parking lot, smoking cigarettes. When Lopez approached and ordered the two to

freeze, they fled toward the motel room where Bellue and Carlson waited. Lopez managed to

seize Moore before she reached the room. Spencer made it inside, but emerged approximately

20 to 30 seconds later and police promptly detained him.

       Spencer left the door open when he came out. Inside the small room, police could see

four people, among them Bellue and Carlson. The officers on scene began ordering each of the

room’s occupants out for questioning. As they did so, “they started noticing things out in the

open that [were] significant” to the investigation of the incident at the pharmacy. II VRP at 24.

These included “[r]ipped up checks, lots of them, drug paraphernalia, [and] syringes, that kind of




1
 Bellue and his son share the same first and last names. We refer to the defendant by his
surname and his son by his middle name for clarity. No disrespect is intended.


                                                  3
No. 45232-4-II (Cons. w/Nos. 45262-6-II
 and 46284-2-II)

thing.” II VRP at 24-27, 40. After getting all of the room’s occupants out, Lopez decided to

secure the room and wait for a search warrant so that police could seize the evidence inside.

        Officers detained Bellue and Carlson after they ordered them out of the room. A search

of Carlson’s backpack disclosed various pieces of identification, checks, and financial

documents belonging to other people. After obtaining a search warrant, detectives searched the

room. During the search, detectives seized the torn up checks Lopez had seen from the doorway

and a purse that contained “various IDs.” III VRP at 206. Under a mattress in the room, officers

found “a passport, a checkbook and some needles,” III VRP at 211, as well as four pieces of

identification belonging to four different women. A nightstand in the room contained “two glass

pipes commonly used for drugs.” III VRP at 212. Finally, police seized a printer in the room.

        The State charged Bellue under two different cause numbers, filing several amended

informations for each. Ultimately, the State charged Bellue with twenty-three counts of second

degree identity theft,2 two counts of forgery,3 three counts of unlawful possession of payment




2
  A person commits second degree identity theft by “knowingly obtain[ing], possess[ing],
us[ing], or transfer[ing] a means of identification or financial information of another person,
living or dead, with the intent to commit, or to aid or abet, any crime.” RCW 9.35.020(1), (3).
3
 A person commits forgery “with intent to injure or defraud[,] he or she falsely makes,
completes, or alters a written instrument or . . . possesses, utters, disposes of, or puts off as true a
written instrument which he or she knows to be forged.” RCW 9A.60.020(1)(a), (b).


                                                   4
No. 45232-4-II (Cons. w/Nos. 45262-6-II
 and 46284-2-II)

instruments,4 one count of unlawful possession of instruments of financial fraud,5 one count of

second degree possession of stolen property,6 and two counts of leading organized crime.7 After

Bellue’s call to Carlson, described below, the State added one count of witness tampering.8 The

State alleged two aggravators. First, for each offense it alleged that Bellue had committed

multiple current offenses and that his high offender score would result in some of the current




4
 A person commits unlawful possession of payment instruments if he or she
      possesses two or more checks or other payment instruments, alone or in
      combination . . . [i]n the name of the person or entity, or with the routing number
      or account number possesses two or more checks or other payment instruments,
      alone or in combination . . . [i]n the name of a person or entity, or with the routing
      number or account number of a person or entity, without the permission of the
      person or entity to possess such payment instrument, and with intent either to
      deprive the person of possession of such payment instrument or to commit theft,
      forgery, or identity theft; or . . . [i]n the name of a fictitious person or entity, or with
      a fictitious routing number or account number of a person or entity, with intent to
      use the payment instruments to commit theft, forgery, or identity theft.
RCW 9A.56.320(2)(a).
5
 A person commits unlawful possession of instruments of financial fraud by “possess[ing] a
check-making machine, equipment, or software, with [the] intent to use or distribute checks for
purposes of defrauding an account holder, business, financial institution, or any other person or
organization.” RCW 9A.56.320(5).
6
 “‘Possessing stolen property’ means knowingly to receive, retain, possess, conceal, or dispose
of stolen property knowing that it has been stolen and to withhold or appropriate the same to the
use of any person other than the true owner or person entitled thereto.” RCW 9A.56.140(1).

7
 A person may lead organized crime by “[i]ntentionally organizing, managing, directing,
supervising, or financing any three or more persons with the intent to engage in a pattern of
criminal profiteering activity.” RCW 9A.82.060(1)(a).
8
 To commit witness tampering, a person must
      attempt[] to induce a witness or person he or she has reason to believe is about to
      be called as a witness in any official proceeding or a person whom he or she has
      reason to believe may have information relevant to a criminal investigation or the
      abuse or neglect of a minor child to . . . [t]estify falsely or, without right or privilege
      to do so, to withhold any testimony.
RCW 9A.72.120(1)(a).
                                                    5
No. 45232-4-II (Cons. w/Nos. 45262-6-II
 and 46284-2-II)

offenses going unpunished. RCW 9.94A.535(2)(c). As a second aggravator, it alleged that each

offense, other than witness tampering, was a major economic offense. RCW 9.94A.535(3)(d).

       While Bellue awaited trial, he attempted to some degree to encourage Carlson, who was

in jail, not to testify against him. In addition, based on the recording of a jail telephone call,

officers obtained a search warrant for Bellue’s car, which had been impounded. When they

searched the car’s trunk, they found 61 pieces of incriminating evidence, including numerous

social security and identification cards, stolen checks, check-making software, and computers.

       Testimony at Bellue’s trial showed that he would purchase stolen identification cards and

checks taken by car prowlers. Bellue would then use blank check paper and a computer with

check-making software to make forged checks associated with the stolen identity cards. Bellue

would give the stolen identity cards and the stolen or forged checks to Carlson and then he and

Carlson would go into various Tacoma area stores and purchase items, often prepaid debit or gift

cards, using the forged or stolen checks.9 Bellue, Spencer, Carlson, and Moore would then sell

the gift cards, netting approximately $200 on a good day from these sales.

       At the close of evidence, the trial court instructed the jury on principles of accomplice

liability and that it could find Bellue guilty as an accomplice for each offense, with the exception

of the two leading organized crime offenses. In closing argument, the prosecutor availed himself

of those instructions, telling the jury that, at the least, the State had proven beyond a reasonable

doubt that Bellue had acted as Carlson, Moore, and Spencer’s accomplice.

       The jury found Bellue guilty of all counts and found that each offense, save for the

witness tampering offense, was a major economic offense. At the sentencing hearing, the State


9
 The jury in Bellue’s trial saw video footage of several of these shopping trips. Bellue
accompanied Carlson on at least two of them, although he never approached the check-out
counter with her.
                                                   6
No. 45232-4-II (Cons. w/Nos. 45262-6-II
 and 46284-2-II)

conceded that the two counts of leading organized crime convictions were based on the same

criminal conduct, and the court vacated one of the two convictions. The trial court sentenced

Bellue to an exceptional sentence for the leading organized crime offenses. It only entered

written findings of fact and conclusions of law supporting the exceptional sentence after Bellue

filed his opening brief in this court.

        Bellue now appeals.

                                              ANALYSIS
                                         I. SEARCH AND SEIZURE

        Bellue first argues that police officers (1) unconstitutionally searched the room at the

motel without a search warrant,10 (2) unconstitutionally seized ripped up checks they found

during that search without a warrant, and (3) unconstitutionally detained him. Bellue contends

that the searches violated his right to privacy under article I, section 7 of the Washington State

Constitution and that his detention violated his right to privacy under article I, section 7 and his

right to freedom from unreasonable search and seizure under the Fourth Amendment to the

United States Constitution. The State argues that we should not reach the merits of Bellue’s

privacy and search and seizure claims because he failed to preserve them for review. We agree

with the State.

        One “may raise [a] manifest error affecting a constitutional right for the first time on

appeal.” State v. Lee, 162 Wn. App. 852, 857, 259 P.3d 294 (2011) (citing RAP 2.5(a)).

However, where a defendant fails to object to the admission of evidence at trial, the trial court

does not err by admitting that evidence and the claim is more “properly considered” as an


10
  Bellue’s first claim in his statement of additional grounds restates or paraphrases this claim.
As such we do not separately address it. State v. Johnston, 100 Wn. App. 126, 132, 996 P.2d
629 (2000).
                                                  7
No. 45232-4-II (Cons. w/Nos. 45262-6-II
 and 46284-2-II)

ineffective assistance of counsel claim. State v. Mierz, 72 Wn. App. 783, 789, 866 P.2d 65

(1994). Accordingly, a defendant who fails to move to suppress evidence waives any right to its

exclusion. Lee, 162 Wn. App. at 857 (quoting Mierz, 72 Wn. App. at 789). Bellue failed to

move to suppress any of the evidence below. Consequently, even if constitutionally based,

Bellue waived the claims he makes here on appeal, and we will not address them for the first

time on appeal.11 Lee, 162 Wn. App. at 857.

                            II. INEFFECTIVE ASSISTANCE OF COUNSEL

       Bellue next contends that his trial counsel rendered ineffective assistance by failing to

object to the admission of the evidence seized at the motel. We disagree.

       The state and federal constitutions guarantee criminal defendants the right to effective

assistance from counsel. State v. Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011), cert. denied,

135 S. Ct. 153 (2014). Prevailing on an ineffective assistance claim requires the defendant to

show both deficient performance and prejudice. Grier, 171 Wn.2d at 32-33 (quoting Strickland

v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).

       To show deficient performance, the defendant must show that his or her counsel’s

performance fell “below an objective standard of reasonableness.” Grier, 171 Wn.2d at 32-33



11
   Even if we assumed the trial court had erred, we could not review Bellue’s claims as raising a
manifest constitutional error under RAP 2.5(a)(3) without an adequate record. State v.
McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995). Here the record discloses that police
searched the room and seized evidence pursuant to a warrant. Because Bellue never challenged
the search, the warrant never entered the trial record and we do not know what information the
police used to obtain the warrant. Further, the trial court made no credibility findings about the
officers who supplied that information. Bellue’s failure to challenge the search thus prevented
the development of a record needed to evaluate his claims. With that, any error is not manifest
and we decline to address his claims on their merits under RAP 2.5(a). McFarland, 127 Wn.2d
at 333, 334 n.2. The record is also undeveloped as to when police detained Bellue and what they
knew at that point. Again, we do not reach his claims as they are not manifest. McFarland, 127
Wn.2d at 333, 334 n.2.
                                                 8
No. 45232-4-II (Cons. w/Nos. 45262-6-II
 and 46284-2-II)

(quoting Strickland, 466 U.S. at 688). Our review is deferential to trial counsel’s choices;

therefore, we strongly presume counsel performed reasonably. Grier, 171 Wn.2d at 33 (quoting

State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009)).

       To show prejudice, the defendant must “establish that ‘there is a reasonable probability

that, but for counsel’s deficient performance, the outcome of the proceedings would have been

different.’” Grier, 171 Wn.2d at 34 (quoting Kyllo, 166 Wn.2d at 862). Where the ineffective

assistance claim involves the failure to move to suppress evidence, the defendant must show that

the trial court probably would have granted the motion in order to show actual prejudice.

McFarland, 127 Wn.2d at 337 n.4. Bellue fails to show that the trial court would have

suppressed any evidence had his counsel actually moved to do so. From the open doorway,

where they had a right to be, officers saw torn checks and drug paraphernalia. Police then sought

and obtained a warrant to enter Bellue’s motel room and seize evidence there. Nothing in the

record before us on direct appeal taints that warrant. We therefore cannot say that if Bellue had

moved to suppress the State’s evidence, the trial court would have excluded it. Because Bellue

fails to show prejudice his ineffective assistance claim fails.12

                                III. SUFFICIENCY OF THE EVIDENCE

       Bellue next claims that the State failed to present sufficient evidence to support a number

of his convictions. We disagree.

       The due process clauses of the state and federal constitutions require the State to prove

every element of a crime beyond a reasonable doubt to convict a defendant. State v. O’Hara,

167 Wn.2d 91, 105, 217 P.3d 756 (2009). We review “whether the State has discharged that


12
   Bellue also claims his counsel was ineffective for failing to challenge his arrest, but includes
no argument apart from claimed flaws in the motel room search. Therefore, this claim must also
fail. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
                                                  9
No. 45232-4-II (Cons. w/Nos. 45262-6-II
 and 46284-2-II)

burden by determining whether, after viewing the evidence in the light most favorable to the

State any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Kintz,

169 Wn.2d 537, 551, 238 P.3d 470 (2010). Where the jury returns a general verdict of guilty for

a crime that the defendant may have committed by alternative means, we must review the record

to determine “whether ‘sufficient evidence supports each alternative means.’” State v. Sweany,

174 Wn.2d 909, 914, 281 P.3d 305 (2012) (quoting Kintz, 169 Wn.2d at 552). A defendant

challenging the sufficiency of the State’s evidence “‘admits the truth’” of that evidence “‘and all

inferences that reasonably can be drawn therefrom.’” Kintz, 169 Wn.2d at 551 (quoting State v.

Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)). Direct and circumstantial evidence “‘are

equally reliable’ in determining the sufficiency of the evidence.” Kintz, 169 Wn.2d at 551

(quoting State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004), aff’d, 166 Wn.2d 380

(2009)). We defer to the jury’s credibility determinations and resolution of conflicting

testimony. State v. McCreven, 170 Wn. App. 444, 477, 284 P.3d 138 (2012), review denied, 176

Wn.2d 1015 (2013).

A.      Leading Organized Crime

        Bellue first argues that the State presented insufficient evidence to convict him of leading

organized crime, because it is an alternative means crime and the State did not present evidence

of several of the means. He cites an opinion from Division One of our court, State v. Strohm, 75

Wn. App. 301, 879 P.2d 962 (1994), in support of his contention that leading organized crime is

an alternative means offense. The State disagrees, citing our division’s opinion in State v.

Lindsey, 177 Wn. App. 233, 311 P.3d 61 (2013), review denied, 180 Wn.2d 1022 (2014). The

State is correct.




                                                 10
No. 45232-4-II (Cons. w/Nos. 45262-6-II
 and 46284-2-II)

        1.      Alternative Means Crime

        The legislature may provide that a person can commit a crime by one of a number of

distinct alternative means; if it does so it creates an alternative means crime. Lindsey, 177 Wn.

App. at 240. Whether a particular statute creates an alternative means crime “is left to judicial

determination.” Lindsey, 177 Wn. App. at 240. This judicial determination is largely based on

the language and structure of the statutory provision. Lindsey, 177 Wn. App. at 240-42.

        RCW 9A.82.060(1)(a) provides that “[a] person commits the offense of leading

organized crime by . . . [i]ntentionally organizing, managing, directing, supervising, or financing

any three or more persons with the intent to engage in a pattern of criminal profiteering activity.”

In Strohm, Division One assumed, without analysis, that this provision created alternative means

of leading organized crime. 75 Wn. App. at 304-05. We disagree with that assumption and hold

that leading organized crime is not an alternative means crime for two reasons.

        First, the language used by the legislature to define the offense of leading organized

crime in RCW 9A.82.060(1)(a) suggests that it is not an alternative means crime. Organizing,

managing, directing, and supervising, at least, closely relate to each other. State v. Owens, 180

Wn.2d 90, 99, 323 P.3d 1030 (2014). Where the terms used to define a crime are closely related,

the legislature likely intended to set out “different ways of committing one act” rather than

“distinct acts” that constitute alternative means of committing a crime. Owens, 180 Wn.2d at 99.

Here, like Owens, terms such as “organizing” and “managing,” or “directing” and “supervising,”

are so close to the equivalent of each other they cannot be deemed alternative means.

        Second, RCW 9A.82.060(1)(a) is not divided into subparts. Where a criminal statute is

not structured into subsections, it is less likely that the legislature intended to create an




                                                   11
No. 45232-4-II (Cons. w/Nos. 45262-6-II
 and 46284-2-II)

alternative means crime. Lindsey, 177 Wn. App. at 241. For these reasons, we hold that leading

organized crime is not an alternative means crime.

          2.     Sufficiency of the Evidence

          With that, we turn to the sufficiency of the State’s evidence. The evidence at trial

indicated that Bellue bought stolen pieces of identification and checkbooks. Bellue would then

use the stolen identities to create forged checks using blank check paper, a computer, check-

printing software, and a printer. Carlson and Bellue would use the stolen identities and the stolen

or forged checks to buy things from various stores, including prepaid debit or gift cards. Bellue,

Spencer, Carlson, and Moore would then sell those gift cards. Moore estimated that the proceeds

from the scheme came to approximately $200 per day on a “good” day.

          The evidence shows that Bellue organized three or more persons, including Spencer,

Carlson, and Moore. The evidence also shows that Bellue bought the identification cards and

stolen checks, then forged or altered the checks, and sent Carlson to buy goods using the

identification cards and the fraudulent checks. Bellue, Spencer, Carlson, and Moore then sold or

traded the items. From that evidence, a rational finder of fact could have found Bellue guilty of

leading organized crime beyond a reasonable doubt.

          Bellue argues that insufficient evidence supports his conviction because Moore and

Carlson testified that, at times, they acted on their own initiative. Moore, however, explicitly set

out the structure of Bellue’s activities, and the jury could credit her testimony to find him guilty

of leading organized crime, even if she sometimes acted on her own. The jury did not credit

Carlson’s attempts to take the blame for Bellue, and we will not second guess that decision on

appeal.




                                                   12
No. 45232-4-II (Cons. w/Nos. 45262-6-II
 and 46284-2-II)

       Bellue also claims, without supporting argument, that no evidence shows he intended to

engage in a pattern of criminal profiteering. Bellue waived this claim by failing to present

reasoned argument to support it. Holland v. City of Tacoma, 90 Wn. App. 533, 538, 954 P.2d

290 (1998). The evidence was sufficient to convict Bellue of leading organized crime.

B.     The Possessory Offenses

       Bellue also argues that the State failed to prove he possessed stolen identity cards,

payment instruments, instruments of financial fraud, or stolen property.13 We disagree.

       Possession may be actual, meaning that the defendant has physical custody of the item, or

constructive, meaning that the defendant has dominion and control over the object or the place

where the object is found. State v. Staley, 123 Wn.2d 794, 798, 872 P.2d 502 (1994); State v.

Chavez, 138 Wn. App. 29, 34, 156 P.3d 246 (2007). Dominion and control need not be

exclusive. Chavez, 138 Wn. App. at 34. We examine the totality of the circumstances to

determine whether there is sufficient evidence for a finding of constructive possession. State v.

Partin, 88 Wn.2d 899, 906, 567 P.2d 1136 (1977), overruled on other grounds by State v. Lyons,

174 Wn.2d 354, 275 P.3d 314 (2012).

       Bellue constructively possessed the stolen identification cards, stolen checks, and forged

checks found at the motel. Police found him in close proximity to where they would later

discover the evidence. State v. Chouinard, 169 Wn. App. 895, 899, 282 P.3d 117 (2012), review

denied, 176 Wn.2d 1003 (2013). He could have, at the time of his arrest, readily reduced all of it

to his physical control. Chouinard, 169 Wn. App. at 899. Although Carlson was also in the

room, dominion and control need not be exclusive. Further, the evidence indicated that Bellue



13
  Bellue’s second statement of additional grounds claim restates or paraphrases this claim. We
therefore do not separately address it. Johnston, 100 Wn. App. at 132.
                                                13
No. 45232-4-II (Cons. w/Nos. 45262-6-II
 and 46284-2-II)

led the group who were staying in the motel. Given that evidence, a reasonable inference is that

Bellue had dominion and control over the incriminating evidence and was, therefore, in

constructive possession of it.

          Bellue also constructively possessed the evidence inside the trunk of his car. Police

learned that evidence might be inside the car after listening to Bellue’s calls from inside the jail.

Carlson testified, and Bellue admitted, that she and Bellue owned the car together. Again, the

evidence allowed the jury to reasonably infer that Bellue was in constructive possession of the

evidence found in the car’s trunk. See State v. Turner, 103 Wn. App. 515, 521-24, 13 P.3d 234

(2000).

          The jury could also readily find Bellue guilty of each of the possessory offenses as an

accomplice, even if it determined that he was not in constructive possession of any of the items

underlying the charges. As set out above, the evidence showed that Bellue would buy stolen

identity cards and checks, forge new checks or alter the stolen ones, and give them to Moore,

Spencer, and Carlson to purchase items. By giving them the materials used to unlawfully obtain

the property of others, Bellue, with knowledge that he was promoting or facilitating the

commission of a number of crimes, aided Moore and Carlson in the crimes of identity theft,

unlawful possession of payment instruments, and possession of stolen property. Accordingly,

there was sufficient evidence to show Bellue was their accomplice to each of the possessory

offenses. RCW 9A.08.020.

                                            IV. SENTENCING

          Bellue next argues that the trial court (1) failed to enter the findings required for the

imposition of an exceptional sentence and (2) improperly imposed an exceptional sentence for an




                                                    14
No. 45232-4-II (Cons. w/Nos. 45262-6-II
 and 46284-2-II)

offense on which the court instructed the jury that it could convict based on accomplice liability.

We disagree.

A.     Findings of Fact and Conclusions of Law

       Where the trial court imposes an exceptional sentence, it must “set forth the reasons for

its decision in written findings of fact and conclusions of law.” RCW 9.94A.535. RCW

9.94A.535’s “written findings provision requires exactly that—written findings.” State v.

Friedlund, 182 Wn.2d 388, 394, 341 P.3d 280 (2015) (emphasis omitted).

       The trial court entered written findings of fact and conclusions of law justifying Bellue’s

exceptional sentence after he filed his opening brief with this court. Generally we frown upon

the entry of belated findings, but will accept them unless the defendant can show prejudice from

their acceptance or tailoring of the findings to the issues on appeal, State v. Smith, 82 Wn. App.

153, 167, 916 P.2d 960 (1996), or that the findings change the judgment and sentence under

review. Friedlund, 182 Wn.2d at 395-96. Here, the trial court’s written findings and

conclusions track its oral ruling, meaning that Bellue cannot show prejudice or tailoring.

Further, as we explain below, the findings and conclusions do not change Bellue’s sentence and,

therefore, do not modify the judgment and sentence before us on review. We accept the findings

and conclusions and reject Bellue’s claim of error.

B.     Exceptional Sentence

       The Sentencing Reform Act of 1981, chapter 9.94A RCW, permits the trial court, under

certain circumstances, to depart from the standard sentencing range for an offense. RCW

9.94A.535. Among these circumstances, the trial court may impose an exceptional sentence if a

jury finds that the State has proven one of the aggravating circumstances codified in RCW

9.94A.535(3) beyond a reasonable doubt and the trial court determines that the “facts found are


                                                15
No. 45232-4-II (Cons. w/Nos. 45262-6-II
 and 46284-2-II)

substantial and compelling reasons justifying an exceptional sentence.” RCW 9.94A.537(6).

The jury found that Bellue committed major economic offenses, one of the aggravating

circumstances justifying an exceptional sentence under RCW 9.94A.535(3), and the trial court

made the necessary findings.

       We review the trial court’s imposition of an exceptional sentence

       us[ing] a three-pronged test: (1) Are the reasons supported by the record under the
       clearly erroneous standard of review? (2) Do those reasons justify a departure from
       the standard range as a matter of law? And (3) was the sentence imposed clearly
       too excessive or lenient under the abuse of discretion standard of review?

State v. Davis, 146 Wn. App. 714, 720, 192 P.3d 29 (2008).

       A trial court may generally not impose an exceptional sentence based on accomplice

liability. State v. Hayes, 177 Wn. App. 801, 807, 312 P.3d 784 (2013), aff’d, 182 Wn.2d 556

(2015). While this general rule gives way to specific provisions in the code that authorize an

exceptional sentence based on accomplice liability, see State v. Pineda-Pineda, 154 Wn. App.

653, 661-62, 226 P.3d 164 (2010), the code provision allowing the trial court to impose an

exceptional sentence for a major economic offense does not provide such authorization. Hayes,

177 Wn. App. at 810-11. Consequently, a trial court may not impose an exceptional sentence for

major economic offenses if it has instructed the jury that it may convict the defendant on the

underlying offense based on accomplice liability. Hayes, 177 Wn. App. at 810-11.

       The trial court did not impose an exceptional sentence for any offense for which it

instructed the jury on accomplice liability. The sentence ranges the trial court imposed for each

count make clear that it was imposing an exceptional sentence only on the leading organized

crime conviction. The trial court properly did not instruct the jury that it could convict Bellue of

leading organized crime as an accomplice. There was no error.



                                                 16
No. 45232-4-II (Cons. w/Nos. 45262-6-II
 and 46284-2-II)

                            V. PERSONAL RESTRAINT PETITION (PRP)

       A petitioner may challenge his or her detention by way of a PRP. In re Pers. Restraint of

Coats, 173 Wn.2d 123, 128-31, 267 P.3d 324 (2011). Bellue’s PRP alleges violations of his

right to privacy and ineffective assistance of counsel, which are claims of constitutional error

under article I, section 7 of the Washington Constitution and the Fourth Amendment of the

United State Constitution. To obtain relief for an alleged constitutional error through a PRP,

“the petitioner must demonstrate by a preponderance of the evidence that petitioner was actually

and substantially prejudiced by the error.” In re Pers. Restraint of Davis, 152 Wn.2d 647, 671-

72, 101 P.3d 1 (2004), cert. denied, 134 S. Ct. 62 (2013). The showing needed to demonstrate

actual and substantial prejudice in the context of an ineffective assistance claim is the same as

the showing needed to show prejudice under Strickland. In re Pers. Restraint of Crace, 174

Wn.2d 835, 846-47, 280 P.3d 1102 (2012), aff’d, 798 F.3d 840 (9th Cir. 2015).

       Bellue’s first PRP claim is that the State violated his article I, section 7 rights when it

searched the motel and seized both him and the evidence from the room. He offers evidence that

shows the police officers entered the room and seized the torn checks by bagging them before the

warrant was served. The police, however, only seized the evidence after they had obtained the

search warrant, and Bellue does not show that the warrant was obtained using any information

gained in an illegal search. For example, Bellue’s evidence corroborates Lopez’s trial testimony

that he saw the checks from outside the room, which is constitutionally permissible. See State v.

Gibson, 152 Wn. App. 945, 956, 219 P.3d 964 (2009). Because the warrant authorized police to

seize the checks, the law did not require their exclusion at trial. See State v. Gaines, 154 Wn.2d

711, 716-17, 116 P.3d 993 (2005). Bellue shows no error.




                                                 17
No. 45232-4-II (Cons. w/Nos. 45262-6-II
 and 46284-2-II)

        Bellue’s second PRP claim restates his ineffective assistance claim. As discussed above,

Bellue fails to show that the trial court would have granted a motion to suppress. Under Crace,

he has therefore failed to show actual and substantial prejudice. 174 Wn.2d at 847.

        Bellue’s third PRP claim contends that his attorney performed ineffectively by failing to

show him surveillance tapes from the motel, which he claims would show an illegal search.

Bellue fails to show that the tapes even exist, let alone that they show the police engaged in

illegal search. Bellue’s assertions about evidence that he has not seen is the type of “speculation

[or] conjecture” that cannot satisfy his burden of establishing an error and actual and substantial

prejudice. In re Pers. Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992). Each of

Bellue’s PRP claims fail.

                                          CONCLUSION

        We affirm Bellue’s convictions and resulting sentence and deny his 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.



                                                      BJORGEN, A.C.J.
 We concur:




 LEE, J.




 SUTTON, J.



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