                                                            FILED
                                                        NOVEMBER 15, 2016
                                                     In the Office of the Clerk of Court
                                                    WA State Court of Appeals, Division Ill




           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION THREE

STATE OF WASHINGTON,                         )         No. 33948-3-111
                                             )
                    Respondent,              )
                                             )
      V.                                     )         UNPUBLISHED OPINION
                                             )
RANDALL JAMES JERRED,                        )
                                             )
                    Appellant.               )

      PENNELL,   J. - Randall "Randy" Jerred appeals his conviction for delivery of a

controlled substance. We affirm his conviction, but remand for resentencing.

                                         FACTS

      The facts are well known to the parties and need not be recounted in detail. Mr.

Jerred was charged with several controlled substance offenses after selling

methamphetamine and heroin to an undercover informant. The sales took place at Mr.

Jerred's residence, which was located within 1,000 feet of several school bus stops.
No. 33948-3-III
State v. Jerred


       A jury convicted Mr. Jerred of six counts of possession of a controlled substance

with intent to deliver and entered special verdicts finding all six of the offenses had taken

place within 1,000 feet of a school bus stop. At sentencing, the trial court ordered the

school bus stop enhancements to run consecutively to Mr. Jerred's base sentence as well

as to each other. The total sentence was 234 months' confinement with 12 months of

community custody. The court waived a number of legal financial obligations (LFOs ),

but imposed a $6,000 drug enforcement fee. Mr. Jerred appeals.

                                        ANALYSIS

Jury Instructions

       Mr. Jerred argues the jury instructions were deficient because they either failed to

provide the elements of his charged offenses (which he claims was delivery of a

controlled substance) or they allowed the jury to convict based on an uncharged crime

(possession with intent to deliver controlled substances). The State asserts Mr. Jerred has

waived this argument because he did not object at trial, or request a bill of particulars to

clarify the information. We agree with the State.

       Contrary to Mr. Jerred's assertions, the information did not merely allege several

counts of delivery of a controlled substance. Instead, the information tracked the

language ofRCW 69.50.401, which sets forth various controlled substance offenses,



                                              2
No. 33948-3-III
State v. ]erred


including delivery and possession with intent to deliver. See State v. Garza-Villarreal,

123 Wn.2d 42, 48, 864 P.2d 1378 (1993) (delivery of a controlled substance and

possession of a controlled substance with intent to deliver are distinct crimes with distinct

elements). Because the counts in the information each alleged more than one offense,

they were duplicitous. See State v. Roberts, 142 Wn.2d 471,514, 14 P.3d 713 (2000).

But this was not a fatal error. Confusion caused by duplicity can be remedied through a

bill of particulars. However, once a case is on appeal and the applicable remedy is no

longer available, we will not entertain an unpreserved duplicity claim. See id. at 514-15.

Ineffective Assistance of Counsel

       To demonstrate ineffective assistance of counsel, a defendant must make two

showings: (1) that counsel's performance was deficient, and (2) that counsel's errors were

serious enough to prejudice the defendant. State v. Thomas, 109 Wn.2d 222, 225-26, 743

P.2d 816 (1987); Stricklandv. Washington, 466 U.S. 668,687, 104 S. Ct. 2052,

80 L. Ed. 2d 674 (1984). A claim of ineffective assistance can be raised for the first time

on appeal. State v. Ky/lo, 166 Wn.2d 856,862,215 P.3d 177 (2009). However, when

resolution of an ineffective assistance claim requires analyzing facts outside of the record,

the avenue for relief is a personal restraint petition, not an appeal. State v. McFarland,

127 Wn.2d 322,335,899 P.2d 1251 (1995).


                                              3
No. 33948-3-III
State v. Jerred


       Mr. Jerred claims his trial attorney was ineffective by failing to object to police

testimony regarding informant reliability and the meaning of a recorded conversation.

From the record at hand, we are unable to discern whether trial counsel's decision not to

object was strategic. But in any event, Mr. Jerred cannot show prejudice. The State's

evidence of guilt was overwhelming. Most significantly, Mr. Jerred admitted in his

testimony that he possessed the drugs at issue in the case and delivered them to the

informant when the informant came to his house. From his testimony, it appears Mr.

J erred believed he was innocent because he did not own the drugs and did not sell them to

the informant. This belief was mistaken. Mr. Jerred's attorney's failure to object to

police testimony did not impact the jury's verdict.

Sentencing Errors

       The parties agree that remand for resentencing is appropriate to address several

errors. They include:

          •   The imposition of consecutive sentences for school bus stop enhancements

              without an exceptional sentence determination under RCW

              9.94A.589(l)(a). State v. Conover, 183 Wn.2d 706, 708,719,355 P.3d

              1093 (2015).




                                              4
No. 33948-3-III
State v. Jerred


           •   Inclusion of prior convictions in Mr. Jerred's criminal history score that

               were neither admitted nor proven. State v. Hunley, 175 Wn.2d 901, 909-10,

               287 P.3d 584 (2012).

           •   Failure to conduct an individualized inquiry prior to imposing a drug fund

               contribution. RCW 10.01.160(3); State v. Blazina, 182 Wn.2d 827, 837-38,

               344 P.3d 680 (2015); State v. Hunter, 102 Wn. App. 630, 639, 9 P.3d 872

               (2000) (the statute requires "the amount of the contribution to be based on

               the costs of the investigation").

       In addition, the parties agree that the sentencing court should have included counts

one and two, counts three and four, and counts five and six as the same criminal conduct.

See Garza-Villarreal, 123 Wn.2d at 44-45. We concur with the aforementioned proposed

dispositions. Accordingly, Mr. Jerred's sentence is reversed and the matter is remanded

for resentencing.

       Mr. Jerred makes two additional claims of sentencing error, one pertaining to a

scrivener's error and the other pertaining to an excessive amount of community custody.

Because we are reversing Mr. Jerred's sentence and remanding for resentencing, we need

not address his claims at this juncture. Should similar errors arise on remand, they can be

addressed at that time.


                                               5
No. 33948-3-111
State v. Jerred


                    STATEMENT OF ADDITIONAL GROUNDS

       In his statement of additional grounds (SAG), Mr. Jerred claims that defense

counsel was ineffective for not: ( 1) calling all of the witnesses on a witness list he

provided to defense counsel, (2) discussing whether to stipulate to a second continuance

with the State, (3) discussing the amended information with him, (4) conducting a pretrial

investigation, and (5) objecting to an officer's testimony at trial, when Mr. Jerred claims

to have never met the officer.

       Mr. Jerred's complaints relate to facts and materials that exist outside the trial

record. Accordingly, they must be raised in a personal restraint petition, not an appeal.

McFarland, 127 Wn.2d at 335.

       Mr. Jerred also makes two other claims in his SAG. These two claims are difficult

to decipher, but Mr. Jerred does not appear to be presenting any legal issues for review.

Instead, he is expressing confusion over some of the events at trial, without explaining

what he would like this court to review. If a SAG argument does not inform the court of

the nature and occurrence of the alleged errors, review may be declined. State v.

Alvarado, 164 Wn.2d 556, 569, 192 P.3d 345 (2008); RAP 10.lO(c). We decline to

review the remaining arguments in Mr. Jerred's SAG.




                                              6
No. 33948-3-111
State v. Jerred


                                  APPELLATE COSTS

       In his opening brief, Mr. Jerred requests that this court not award appellate costs to

the State should the State prevail on this appeal. The State has not responded to this

request. In compliance with our general order, Mr. Jerred has filed an indigency report

stating he has no assets or income, but has substantial debts. A majority of judges on the

panel have voted to grant Mr. Jerred's request. Appellate costs will not be awarded.

                                     CONCLUSION

       Mr. Jerred's conviction is affirmed. His sentence is reversed and the matter is

remanded for resentencing.

      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.


                                          Pennell, J.
WE CONCUR:




 3
Feari~
                  ,~


                                             7
