       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


STATE OF WASHINGTON,                                                            K          too
                                          )      No. 70365-0-1                  r          ~~* -' <
                     Respondent,
                                          )      DIVISION ONE                   ro
                                                                                V.O    ' i '-• •
             v.



RICKY L. FIEVEZ,                          )      UNPUBLISHED OPINION            .—     .     .   •    .




                                                                                C7>    r     •-'--'
                                                                                CD     .-:- :
                    Appellant.            )      FILED: July 29,   2013



       Becker, J. — Ricky Fievez appeals the court's refusal to continue the final

day of his trial to await execution of a material witness warrant. We accept the

State's concession of error and reverse the conviction for possession of

methamphetamine.

       On the afternoon of July 28, 2011, in Mason County, Washington, a

trooper with the Washington State Patrol stopped a vehicle driven by Fievez for

traveling over the posted speed limit. Fievez's speech and demeanor suggested

to the trooper that Fievez was under the influence of an intoxicant. The trooper

learned from dispatch that Fievez's driver license was suspended. The trooper

placed Fievez under arrest. Fievez consented to a warrantless search of his car.
Inside a suitcase in the car's interior, the trooper discovered a syringe containing

a liquid that tested positive for methamphetamine. Inside a purple bag in the
No. 70365-0-1



car's trunk, the trooper found drug paraphernalia and a crystalline substance that

also tested positive for methamphetamine.

       Fievez was charged with unlawful possession of a controlled substance

(methamphetamine), driving while under the influence, and driving while license

suspended or revoked in the third degree. A jury trial lasting four days was held

in November 2011. Three government witnesses testified for the State, including

the arresting trooper, the forensic scientist who identified the substances as

methamphetamine, and a records custodian for the Department of Licensing.

Fievez also took the stand. He testified that he had found the syringe in a park

and did not know what the liquid was inside of it, and that the purple bag in the

car's trunk belonged to his former girl friend Nina Lawrence. He claimed he had

been helping Lawrence on the day of his arrest by transporting some of her

possessions out of storage. He claimed ignorance of the purple bag's contents.

       Fievez wanted to introduce testimony by Nina Lawrence to confirm his

claim of ignorance as to the purple bag's contents. At a witness interview

attended by both defense counsel and the prosecutor, Lawrence had confirmed

Fievez's account, stating that the purple bag belonged to her and that Fievez had

not been aware of its contents. Lawrence was served with a subpoena, and

Fievez filed an affidavit of service with the court. The record reflects that


Lawrence was present in the courthouse for the first three days of trial, on

November 3, 4, and 8, 2011.

       When the court was ready for Lawrence's testimony on November 9,
No. 70365-0-1



however, she was no longer present and could not be located. The court entered

a finding that she was a material witness and issued a material witness warrant

for her arrest. Defense counsel later spoke to Lawrence by telephone and

arranged to meet her at the jail the following morning.

       Lawrence did not appear as agreed, however, and police had not

executed the warrant. Fievez requested that trial be continued until later in the

afternoon or until the next available court day. The court held a recess for

purposes of checking with court administration as to the afternoon calendar.

When the court reconvened, no more was said about Lawrence, and the defense

rested. The jury returned verdicts of guilty on each count as charged.


                            DENIAL OF CONTINUANCE

       On appeal, Fievez contends the court's failure to grant him a continuance

violated his right to a fair trial. The State concedes that the denial of a

continuance was error, that it deprived Fievez of his due process rights to

compulsory process and to present a defense, and that he is entitled to a new

trial on the charge of possession of methamphetamine.

       The decision to grant or deny a motion for a continuance rests within the

sound discretion of the trial court. State v. Kelly, 32 Wn. App. 112, 114, 645 P.2d

1146. review denied. 97 Wn.2d 1037 (1982). The decision is discretionary

because the court must consider various factors such as diligence, materiality,

due process, a need for an orderly procedure, and the possible impact on the

result of the trial. Kelly, 32 Wn. App. at 114. The decision to deny the defendant
No. 70365-0-1



a continuance may be disturbed on appeal upon a showing that the defendant

was prejudiced or that the result of the trial would likely have been different had

the motion been granted. Kelly, 32 Wn. App. at 114.

       Under certain circumstances, denial of a continuance may violate the

defendant's constitutional Sixth Amendment rights to a fair trial or to compulsory

process. These rights are applicable in state proceedings. Washington v.

Texas. 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967). "The

constitutional right of the accused to have compulsory process to obtain

witnesses in his defense is well established." Dickerson v. Alabama, 667 F.2d

1364, 1369 (11th Cir.) (citing Washington. 388 U.S. at 19), cert denied, 459 U.S.

878 (1982). While not every denial of a motion for continuance to obtain

witnesses violates the accused's right to compulsory process, a court may not

refuse to grant a reasonable continuance request where it has been shown that

the testimony would be relevant and material to the defense. Dickerson. 667

F.2d at 1370. Federal courts have identified several factors to be considered in

determining whether denying a motion for continuance deprives an accused of

his right to compulsory process:

       "The diligence of the defense in interviewing witnesses and
       procuring their presence, the probability of procuring their testimony
       within a reasonable time, the specificity with which the defense is
       able to describe their expected knowledge or testimony, the degree
       to which such testimony is expected to be favorable to the accused,
       and the unique or cumulative nature of the testimony."

Dickerson, 667 F.2d at 1370, quoting Hicks v. Wainwriqht, 633 F.2d 1146, 1149

(5th Cir. 1981).
No. 70365-0-1



        In this case, each of these factors weighs in favor of the appellant. The

record indicates that defense counsel exercised due diligence in attempting to

procure the presence of Lawrence at trial. Lawrence was properly subpoenaed

and was present in the courthouse for the first three days of trial. After she failed

to appear on the final day of trial, her absence was noted. The defense

requested a material witness warrant, which the court granted. The record

reflects that defense counsel placed several telephone calls to verify her

whereabouts and ultimately informed the court that she was in Lilliwaup, a town

in Mason County about an hour's drive from the courthouse. Because Lawrence

was nearby and had expressed a willingness to appear for trial, it was probable

that her presence could have been procured within a reasonable time. The

testimony she planned to give as to her ownership of the purple bag and Fievez's

ignorance of its contents was specific, plainly favorable to Fievez's defense, and

not cumulative.


        The record reflects no effort by the State to enforce the material witness

warrant. In such a case, the witness's "absence can more easily be attributed to

the state's failure to enforce" the material witness warrant by arresting the

witness than to any lack of diligence by the defense. Dickerson, 667 F.2d at

1370.


        Under these circumstances, we accept the State's concession that the

court erred by not granting a continuance.

        We also agree that the error was prejudicial and Fievez is entitled to a
No. 70365-0-1



new trial on the charge. The jury heard evidence that the purple bag contained a

variety of residue-laden drug paraphernalia items, including spoons, a scale, and

a glass pipe, as well as a cache of crystalline methamphetamine. In closing, the

State argued the jury could find Fievez guilty of possession based on either the

syringe or the contents of the purple bag.

       The jury was specifically instructed that it must reach unanimous

agreement as to which of the items of methamphetamine—the contents of the

syringe or the purple bag—Fievez was guilty of possessing. Without Lawrence's

testimony to corroborate Fievez in his claim that he lacked knowledge of the

contents of the purple bag, one or more jurors might easily have agreed to

convict Fievez of possession based only on the contents of the purple bag.

Thus, the denial of a continuance to obtain Lawrence's testimony likely affected

the outcome of the trial.

       We perceive no grounds, in short, for rejecting the State's concession that

Fievez is entitled to a new trial on the charge of possession of

methamphetamine.


                     DRIVING WHILE LICENSE SUSPENDED

       Fievez argues he is also entitled to reversal of his conviction for driving

while his license was suspended. He contends the admission of evidence of his

driving record violated his constitutional right of confrontation.

       The State introduced into evidence a notice of suspension of Fievez's

driving privilege and an affidavit from a legal custodian of driving records stating
No. 70365-0-1



that the records indicated that Fievez's status on the day of the arrest was

suspended. Fievez contends these documents are testimonial and therefore

should have been excluded understate v. Jasper. 174 Wn.2d 96, 109-117, 271

P.3d 876 (2012). He contends the Jasper rationale also applies to testimony by

the arresting trooper that he learned of Fievez's suspended status by calling

dispatch.

       Fievez's confrontation rights were not violated. A records custodian of the

Department of Licensing was one of three government witnesses who testified at

trial. Fievez's counsel cross-examined her about the documents generated

pursuant to the suspension. Fievez was afforded an opportunity to confront the

witness against him as to the suspended license charge. Also, Fievez stipulated

to the admission of his driving record and the statement concerning the status of

his license. These circumstances distinguish Jasper.

       In the alternative, Fievez contends he was deprived of effective assistance

of counsel because his attorney did not challenge the evidence. In closing

argument, defense counsel conceded Fievez's guilt on the charge of driving with

a suspended license.

       Conceding guilt to the jury can be a sound trial tactic when the evidence of

guilt overwhelms. State v. Hermann, 138 Wn. App. 596, 605, 158 P.3d 96

(2007). Such an approach may help the defendant gain credibility with the jury

when a more serious charge is at stake. Hermann. 138 Wn. App. at 605. When

counsel's conduct can be characterized as legitimate trial strategy or tactics,
No. 70365-0-1



performance is not deficient. State v. Grier. 171 Wn.2d 17, 33, 246 P.3d 1260

(2011).

       Despite Fievez's claim of ignorance that his license was suspended, the

State's evidence that the license was, in fact, suspended was overwhelming.

Counsel's concession of this matter did not constitute deficient performance.

The judgment and sentence for driving while license suspended is affirmed.


                               OFFENDER SCORE

       Fievez contends his offender score was incorrectly calculated because the

trial court failed to address on the record whether the Arizona convictions in his

criminal history are comparable to Washington felonies. He is entitled to raise

this issue for the first time on appeal. State v. Ford, 137 Wn.2d 472, 973 P.2d

452 (1999). The State agrees that the court erred in failing to conduct a

comparability analysis on the record.

       As the State points out, the remedy is for the trial court on remand to hold

an evidentiary hearing, allow the State to present evidence of criminal history,

and resentence according to what is proved at that hearing.

       The judgment and sentence for possession of methamphetamine is

reversed, and the case remanded for further proceedings not inconsistent with

this opinion.




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WE CONCUR:




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