                                                                           FILED
                                                                        SEPT 15, 2016
                                                                 In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III




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

STATE OF WASHINGTON,                          )
                                              )         No. 33096-6-111
                      Respondent,             )
                                              )
       V.                                     )
                                              )
JAVIER OROZCO,                                )         UNPUBLISHED OPINION
                                              )
                      Appellant.              )

       KORSMO, J. -Javier Orozco contends that his trial counsel performed

ineffectively and that the trial court sentenced him to an excessive term of community

custody. We disagree with both contentions and affirm the convictions for possession of

methamphetamine and felony driving under the influence of alcohol.

                                          FACTS

       Mr. Orozco was charged in Grant County Superior Court with the two noted

offenses arising from a traffic stop on January 19, 2014. The matter eventually

proceeded to jury trial.

       Prior to trial, the defense stipulated that Mr. Orozco had "criminal history

sufficient to satisfy the requirements ofRCW 46.6I.502(6)(a)," the prior offense element

that raises driving under the influence to a felony offense. Clerk's Papers (CP) at 210.
No. 33096-6-III
State v. Orozco


The stipulation was presented to the jury in the form of a jury instruction. Id. The

elements instruction given to the jury listed this element in the language of the

stipulation. CP at 212. However, although defense counsel attempted to have the trial

court bifurcate the jury's consideration of the elements of the offense, no effort was made

to seek a limiting instruction concerning the stipulation.

       The jury convicted Mr. Orozco as charged. The trial court calculated the offender

score as 9+ on the driving while under the influence count and imposed a sentence of 60

months. On the drug possession charge, the trial court sentenced Mr. Orozco to 12

months in prison, concurrent with the 60 month sentence, and 12 months of community

custody upon release from prison.

       Mr. Orozco timely appealed to this court. His counsel subsequently filed a motion

for relief from appellate costs in accordance with the general order of this court. As the

motion was received before the release of this opinion, the panel decided to address the

motion in this document.

                                        ANALYSIS

       Mr. Orozco presents two issues in this appeal. He first argues that his counsel

performed ineffectively by failing to seek a limiting instruction concerning the stipulation

to his criminal history. He also believes the trial court erred in imposing the term of

community custody. We address the issues in the order noted.




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No. 33096-6-III
State v. Orozco


       Ineffective Assistance Claim

       The standards of review governing a claim of ineffective assistance of counsel are

well understood. The Sixth Amendment guarantee of counsel requires more than the

mere presence of an attorney; counsel must perform to the standards of the profession.

Failure to live up to those standards will require a new trial when the client has been

prejudiced by counsel's failure. State v. McFarland, 127 Wn.2d 322, 334-335, 899 P.2d

1251 (1995). In evaluating ineffectiveness claims, courts must be highly deferential to

counsel's decisions. A strategic or tactical decision is not a basis for finding error.

Stricklandv. Washington, 466 U.S. 668, 689-691, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984). To prevail on a claim of ineffective assistance, the defendant must show both

that his counsel erred and the error was so significant, in light of the entire trial record,

that it deprived him of a fair trial. Id. at 690-692.

       Mr. Orozco is unable to satisfy either prong of the Strickland test. Because the

decision not to seek a limiting instruction is frequently a tactical one, the Washington

Supreme Court has declined to find that counsel erred by not seeking an instruction.

State v. Humphries, 181 Wn.2d 708,336 P.3d 1121 (2014), is on point. There, as here,

the defense stipulated to the defendant's past criminal history and did not seek a limiting

instruction. Noting that foregoing an instruction is frequently a tactical decision, the

court concluded the defendant had not overcome the presumption that the decision was a

tactical one. Id. at 720-721.

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No. 33096-6-III
State v. Orozco


         This case is in an even stronger position than that one. There the stipulation to the

prior conviction, an element of one offense, was potentially prejudicial to the other count,

an assault charge. Id. at 712, 719. Nonetheless, the court concluded there was no

showing to overcome the likelihood that counsel made a tactical decision. Id. at 720-721.

Here, the stipulation was in the same language as the element of the jury instruction on

the driving offense. Counsel understandably would not desire to further call the jury's

attention to his criminal history, particularly where it was clearly directed at the one

count.

         In light of Humphries, Mr. Orozco has not shown his counsel erred. He also fails

to establish prejudice. In this case, the stipulation kept from the jury the fact that Mr.

Orozco had at least four prior driving while under the influence convictions---the same

crime for which he was then before the jury. Again, counsel understandably would not

want to call the jury's attention to the stipulation. A limiting instruction telling the jury

that it could consider the stipulation only as to the driving offense would tend to suggest

to the jury that Mr. Orozco had prior driving offenses of some nature that they were not

being told about. Mr. Orozco simply cannot explain how this tactic prejudiced him in

any manner, let alone that it was such significant error that his trial was unfair.

         Mr. Orozco needed to show both error and resulting prejudice from his counsel's

alleged omission. He has done neither. Accordingly, the ineffective assistance claim is

without merit.

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No. 33096-6-III
State v. Orozco


       Community Custody

       Mr. Orozco next argues that the court erred by imposing the term of community

custody, contending that the court lacked authority to do so. He erroneously tacks the

term on to his driving sentence instead of on to his drug possession sentence. Properly

viewed, there was no error.

       The trial court cannot sentence an offender to a greater penalty than the statutory

maximum for the specific crime. RCW 9.94A.505(5). The maximum sentence period

includes both any term of incarceration as well as any term of community custody. In re

McWilliams, 182 Wn.2d 213, 216, 340 P.3d 223 (2014). Thus, a court errs when it

imposes a "combined term of confinement and community custody that exceeds the

statutory maximum." Id. When the court imposes a standard range sentence and term of

community custody that exceeds the statutory maximum, it must reduce the term of

community custody. RCW 9.94A.701(9).

      As with any case of statutory construction, this court reviews the interpretation of

the various provisions of the Sentencing Reform Act of 1981, ch. 9.94A RCW, de novo.

State v. Bradshaw, 152 Wn.2d 528, 531, 98 P.3d 1190 (2004); State v. Winborne, 167

Wn. App. 320, 326, 273 P.3d 454 (2012). A court begins by looking at the plain meaning

of the statute as expressed through the words themselves. Tesoro Ref & Mktg. Co. v.

Dep 't of Revenue, 164 Wn.2d 310, 317, 190 P.3d 28 (2008). If the statute's meaning is

plain on its face, the court applies the plain meaning. State v. Armendariz, 160 Wn.2d

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No. 33096-6-III
State v. Orozco


106, 110, 156 P.3d 201 (2007). Only if the language is ambiguous do we look to aids of

construction, such as legislative history. Id. at 110-111. A provision is ambiguous if it is

reasonably subject to multiple interpretations. State v. Engel, 166 Wn.2d 572,579,210

P .3d 1007 (2009).

       There is no such problem in this case; the statute could hardly be any plainer.

"The term of community custody specified by this section shall be reduced by the court

whenever an offender's standard range term of confinement in combination with the term

of community custody exceeds the statutory maximum for the crime as provided in RCW

9A.20.021." RCW 9.94A.701(9) (emphasis added). Because the legislature specifically

referred to "the crime," it was not intending this provision to address any combination of

sentences between crimes.

       The statutory maximum sentence for each offense is five years. RCW 9A.20.021;

RCW 46.61.502(6); RCW 69.50.4013(2). Here, the court imposed the community

custody term only on the drug possession offense, a crime for which Mr. Orozco was

sentenced to serve 12 months (plus one day) in prison. The combination of the prison

sentence and the community custody extends to only one day past two years, a period of

time well within the five year maximum sentence period available. Only if the prison

sentence for the driving while under the influence charge were combined with the

community custody term for the drug possession offense could there be any possible

violation of the statute. The trial court did not make that mistake in this instance.

                                              6
No. 33096-6-III
State v. Orozco


       RCW 9.94A.701(9) only prohibits combined terms for the same crime from

exceeding the statutory maximum term. That did not happen here. There was no error.

       Costs on Appeal

       Lastly, we consider Mr. Orozco's motion to waive appellate costs. All members

of the court agree to consider the motion since the briefs were filed prior to the adoption

of our new general order. However, a majority of the court has voted to deny the motion.

Since it has prevailed, the State may claim costs, if it desires, by the timely filing of a

cost bill. RAP 14.4. Nothing in our ruling prohibits Mr. Orozco from timely challenging

any inappropriate cost claims. RAP 14.5.

       Affirmed.

       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.




WE CONCUR:




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