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                                                                                                        COURC1?i OF APPEALS
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                                                                                                       2015JUL _. 7 AN 8: 44

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      IN THE COURT OF APPEALS OF THE STATE OF WASH]

                                                      DIVISION II

 STATE OF WASHINGTON,                                                                   No. 45814 -4 -II


                                           Respondent,


            V.



 KENNETH RAYMOND FORGA,                                                          UNPUBLISHED OPINION




        LEE, J. — Kenneth Raymond Forga appeals the sentence he received for his convictions on


two counts of delivery of methamphetamine within 1, 000 feet of a school bus route stop, one count

of possession of methamphetamine with intent to deliver, and one count of unlawful possession of


morphine. In support of his appeal, Forga argues that he received ineffective assistance of counsel


when counsel did not investigate Forga' s eligibility for a drug offender sentencing alternative

DOSA) and did not ask the sentencing court to impose a DOSA.

        In       a   statement     of   additional   grounds       for   review (   SAG), Forga also argues that his


convictions          should   be   overturned   because: ( 1)       defense counsel was ineffective for failing to

interview Forga' s        witnesses, (    2) the State violated his Fourth Amendment rights by handcuffing

                                                              search warrant was executed, ( 3)        the search warrant
him   and   placing him in         a police car while   the



for Forga' s trailer was invalid because the warrant application misstated his middle name in the


caption, and ( 4)       insufficient    evidence existed      to   convict   Forga because ( a)   none of the   money from
No. 45814- 4- 11




the controlled buys was located, (b) the confidential informant admitted to using drugs in violation

of her agreement with the police, and ( c) the officers could not see the confidential informant at

all times.


         We hold that because Forga does not show prejudice, his ineffective assistance of counsel


claim fails. We also hold that the issues raised in his SAG have no merit. Accordingly, we affirm

Forga' s convictions.


                                                    FACTS


         Debbie Miesbauer contacted Cowlitz-Wahkiakum Narcotics Task Force Detective Phillip

Thoma, expressing    a   desire to be   a confidential   informant ( CI). Pursuant to her agreement with


Detective Thoma, Miesbauer would be paid $20 for every controlled buy and was to refrain from

using drugs.   Miesbauer admitted at trial that she had used methamphetamine during the time of

the agreement, but there was no argument made, nor evidence to suggest, that she was under the


influence during the controlled buys.

         Kenneth Forga was targeted by the task force as a potential dealer of methamphetamine.

Detective Thoma set up controlled buys with Miesbauer from Forga on June 28, 2013 and July 2,

2013.    On June 28, Detective Thoma searched Miesbauer for any drugs or money, noted she did

not appear   to be high,   gave   her $ 80   to buy methamphetamine, and watched her walk to Forga' s

trailer residence. Miesbauer returned with methamphetamine and stated she had purchased it from


Forga. On July 2, Detective Thoma again searched Miesbauer for money and drugs, but this time

gave    Miesbauer $ 50. Miesbauer again returned from Forga' s residence with methamphetamine,


and told Detective Thoma she had purchased it from Forga.




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No. 458144- 11



             After the second controlled buy, Detective Thoma wrote a search warrant application for

the   residence where         Miesbauer         purchased   the    methamphetamine.          In the caption of the warrant


application,         Detective Thoma wrote " Kenneth Michael Forga, Jr." as the resident of the trailer to


be    searched.         Verbatim Report           of   Proceedings ( VRP)       at   132.    In the body of the warrant

application,         Detective Thoma           wrote "   Kenneth R. Forga."          VRP    at   132.    Forga' s real name is


Kenneth Raymond Forga. At trial, Detective Thoma testified that the name " Michael" was a typo,

and the defendant, Kenneth R. Forga, was the subject of the search. VRP at 132.


             During the search of the trailer pursuant to the warrant, the police found two tablets of

hydrocodone,            several    small       plastic   baggies     with    methamphetamine            residue,    two baggies


containing 0.2 grams of methamphetamine; two morphine tablets, a spoon, a straw, several unused

baggies,       and a    digital   scale with methamphetamine residue on                it. The police also found a cigar


box containing several small baggies of methamphetamine, a food stamp card with Forga' s name

on    it,   and a    pay/ owe     sheet   listing   narcotics sales.       No money was found in the trailer, and the

money found on Forga did not match the money used in the controlled buys.

             While the      police were         searching the trailer,      a cell phone     on   the   coffee     table rang.   A


detective answered, and the caller asked if he could stop by. The caller indicated that he wanted a

 20," which the detective knew meant $20 worth of methamphetamine. VRP at 247. The detective


asked       if the   caller wanted " crystal" or " white,"          which are street names for methamphetamine, and


the   caller said      that is    what    he   wanted.   VRP   at   247.    When the caller arrived approximately five

minutes later, the caller was arrested.


             Forga was charged with two counts of delivery of methamphetamine within 1, 000 feet of

a school bus route stop, one count of possession of methamphetamine with intent to deliver, one



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No. 45814 -4 -II



count of unlawful possession of hydrocodone, and one count of unlawful possession of morphine.


A two day jury trial was held; Forga stipulated to the location of his trailer being within 1, 000 feet

of a school      bus     route   stop.    The jury returned guilty verdicts on all charges except the unlawful

possession of hydrocodone.


         At sentencing, the State asked for 108 months in custody and 12 months of community

custody based on Forga' s offender score of four, the enhancements, and the lack of accountability.

Forga had taken for his             conduct.         The defense asked for a total sentence of 68 months, citing

Forga' s advanced age, limited available good time credit due to the enhancements, minimal


criminal history, and minimal value of the drug transactions. Forga then addressed the sentencing

court   in   regard      to his sentencing: "       I don' t deal so I don' t know where the kindthey're trying to

put me    in   at   48   months.    That'    s   just   uncalled   for....    I just don' t think I' m— I          should be getting

any— any time."             VRP    at    329- 30.       The sentencing judge then              made   the   following   ruling, " Mr.


Forga, I     understand you         may     not agree with         the   findings   of   the   jury. But, after a jury trial, you

have been found guilty             and    it is based     on   that that I   am   sentencing      you   here today. In regard—


and what I listen to and try to look at is whether or not someone takes responsibility. And, I' m not

hearing      that."   VRP at 330.


          Forga was sentenced to 108 months in prison with 12 months community custody. Forga

appeals.



                                                               ANALYSIS


A.        INEFFECTIVE ASSISTANCE OF COUNSEL: FAILURE TO REQUEST A DOSA


             Forga    claims     his defense        counsel' s "   failure to investigate and request a DOSA denied

Forga his      constitutional right         to    effective representation, and           his   case must     be   remanded   for   re-
No. 45814 -4 -II




sentencing."       Br. of Appellant at 12. Forga argues that his defense counsel was aware that Forga


had a drug problem, and that he met all of the statutory eligibility requirements for a DOSA

consideration. Forga claims that he was prejudiced because if the trial court had imposed a DOSA,

he would have been sentenced to less time in confinement and could have received treatment while

in confinement.


             To establish ineffective assistance of counsel, a defendant must show both deficient

performance and resulting prejudice. State v. Grier, 171 Wn.2d 17, 33- 34, 246 P. 3d 1260 ( 2011);

State   v.   McFarland, 127 Wn.2d 322, 334- 35, 899 P. 2d 1251 ( 1995). Deficient performance occurs


when counsel' s performance falls below an objective standard of reasonableness. State v. Stenson,

132 Wn.2d 668, 705, 940 P. 2d 1239. ( 1997),                        cert.   denied, 523 U. S. 1008 ( 1998).         To show


prejudice, a defendant must demonstrate that there is a probability that, but for counsel' s deficient

performance, " the result of the            proceeding      would       have -been different." McFarland, 127 Wn.2d at


335.    If the defendant fails to satisfy                either   prong, the   court need not    inquire further.    State v.


Hendrickson, 129 Wn.2d 6.1, 78, 917 P. 2d 563 ( 1996).                       There is a strong presumption of effective

assistance, and the defendant bears the burden of demonstrating the. absence of a strategic reason

for the      challenged conduct.           State   v.   McNeal, 145 Wn.2d 352, 362, 37 P. 3d 280 ( 2002). " If the


facts necessary to adjudicate the claimed error are not in the record on appeal, no actual prejudice

is   shown and     the    error   is   not manifest."      McFarland, 127 Wn.2d at 333.


             A DOSA is intended to provide treatment to offenders judged likely to benefit from

treatment.       State    v.   Grayson, 154 Wn.2d 333, 337, 111 P. 3d 1183 ( 2005).                        A trial court has


discretion to      grant a     DOSA if the         offender meets all of       the statutory   criteria.   RCW 9. 94A.660.


The trial      court' s   decision      whether    to   grant a   DOSA generally is     not reviewable.       Grayson, 154




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No. 45814 -4 -II



Wn.2d    at   338.   But, an offender may challenge the procedure under which his sentence was

imposed. Grayson, 154 Wn.2d           at   338.   Here, Forga is not challenging the trial court' s failure to

impose a DOSA, but is instead arguing that his counsel was ineffective for not investigating

whether a DOSA was appropriate and for not requesting that the sentencing judge consider a

DOSA in his case. 1

         We assume, without deciding, that Forga would,likely have been eligible for a DOSA had

one been requested. Our inquiry thus turns to whether Forga' s defense counsel acted unreasonably

when he failed to investigate or recommend a DOSA. We hold Forga' s defense counsel was not


deficient because counsel requested a sentence that would have been less than the total length of a

sentence under a DOSA.


         When a DOSA is applied, the court sentences a defendant to confinement for one- half the


midpoint of the standard range and community custody for one- half the midpoint of the standard

range.   RCW 9. 94A.662( 1).    Here, Forga' s standard sentencing range, with the enhancements, was

68 to 108 months. Therefore, under a DOSA, Forga would have been sentenced to 44 months of


confinement and      44   months of   community custody, for        a   total   of   88   months.   Defense counsel


requested a total sentence of 68 months. Choosing to pursue a lesser total sentence cannot be said

to fall below    an objective standard of reasonableness.        Therefore, we hold that even if the record




1 While Forga claims trial counsel was ineffective for not investigating whether a DOSA sentence
was appropriate and for not requesting a DOSA sentence, the record is devoid of any evidence
showing that defense counsel did not investigate whether a DOSA sentence was appropriate for
Forga or that Forga even wanted a DOSA sentence.




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No. 45814 -4 -Il



shows Forga was eligible for a DOSA, his defense counsel was not deficient in failing to

investigate or request a DOSA.


         Even if we were to decide Forga' s defense counsel was deficient in failing to investigate

and request a        DOSA, Forga       cannot establish    he   was prejudiced        by     the   decision. Forga does not


argue that the sentencing court would have likely granted a DOSA had it been requested; he

contends      only that the     court would       have been   required       to   consider    the   option.   This argument,


while true, is insufficient to establish the prejudice necessary to prevail on a claim for ineffective

assistance of counsel.         See Grayson, 154 Wn.2d           at   342 ( holding,    " While      no defendant is entitled


to an exceptional sentence below the standard range, every defendant is entitled to ask the trial

court   to   consider such a sentence and           to have the alternative actually           considered.").    There is no


indication in the record that the trial court would have given Forga a DOSA sentence. In fact, the

record strongly indicates otherwise.

         The decision to authorize a DOSA sentence rests solely in the trial court' s discretion. State

v.   Hender,     180 Wn.        App.    895,      900, 324 P. 3d 780 ( 2014) (          holding " eligibility does not

automatically lead to      a    DOSA     sentence.     Instead,     under   RCW 9. 94A. 660( 3), the sentencing court


must still     determine that the ` alternative       sentence      is   appropriate."') (    quoting State v. Barton, 121

Wn.     App.   792, 795, 90 P. 3d 1138 ( 2004));          see also State v. Conners, 90 Wn. App. 48, 53, 950

P. 2d 519 ( 1998).      Forga does not show there was a reasonable probability that even if he had asked

for a DOSA sentence, the trial court would have granted Forga' s request.


             Forga   refused   to take responsibility      for his       conduct.     Forga told the trial judge at his


sentencing      hearing, " I   don' t deal   so   I don' t know     where    the kind— they're        trying to put me in for

48   months.     That' s just   uncalled   for." VRP at 329. And the trial judge based Forga' s sentence on




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No. 45814 -4 -II



that refusal to accept responsibility. In sentencing Forga to the State' s recommended 108 months

confinement and               12   months   community custody, the trial judge      admonished, "      what I listen to and


      to look          is   whether or not someone          takes responsibility. And, I'   m not   hearing that."   VRP at
try               at



330.    Thus, Forga cannot show there was a reasonable probability that the trial court would have

given him a DOSA even if counsel had raised it. Consequently, Forga fails to establish prejudice.

Forga' s failure to show prejudice defeats his ineffective assistance of counsel argument.

Hendrickson, 129 Wn.2d at 78.


B.           SAG IssvEs


             In his statement of additional grounds for review, Forga complains that ( 1) his counsel did

not    interview his          witnesses, (     2) he was placed in handcuffs in the police car while his. trailer was


searched, (       3) the warrant was invalid because it had the wrong name, and (4) insufficient evidence

supports his convictions because ( a) the money from the controlled buys was not found on him, '

 b) the Cl used drugs in violation of her agreement with the task force, and ( c) the police could not


see his motorhome during the controlled buys. We hold that Forga' s SAG claims have no merit.

             1.             Counsel' s Failure to Interview Forga' s Witnesses


             Forga argues that he received ineffective assistance of counsel because his trial counsel did

not    interview any           of   Forga' s   witnesses.    The record before us does not mention the existence of


any defense            witnesses.      Forga' s arguments on this point must rely on matters outside the record,

and we do not consider arguments relying on matters outside the record. McFarland, 127 Wn.2d

at    335.
No. 45814- 4- 11



           2.           Restraint during Execution of Search Warrant

           Forga argues that he was handcuffed and placed in a police car during the search of his

trailer.    Presumably, he claims that this was a violation of his Fourth Amendment rights against

unlawful search and seizure. Here, the record contains no information that Forga was handcuffed


or placed in a police car during the search. As the reviewing court, we do not consider arguments

that rely on matters outside the trial court record. McFdrland, 127 Wn.2d at 335.

           3.           Incorrect Middle Name on the Search Warrant Application


           Forga next argues that the search warrant executed on his trailer was invalid because the


caption of the warrant application misstated                 Forga' s   name as "   Kenneth Michael Forga, Jr.,"   when



Forga'     s real name       is Kenneth Raymond Forga, Jr. VRP               at   132. The record does not show that a


suppression motion on this issue was made in the trial court, thus Forga has not preserved this

issue for appeal.


           As a general rule, search and seizure issues must be raised below to be preserved for appeal.

See   e. g.     State   v.   Tarica, 59 Wn.     App.   368, 798 P.2d 296 ( 1990),         overruled on other grounds,




McFarland, .127 Wn.2d 322. However, search and seizure issues may be raised for the first time

on    appeal       where (     1)   a court issues a new, controlling opinion regarding a constitutional

interpretation          material    to the defendant'   s case, (     2) that interpretation overrules a constitutional


interpretation controlling             at   the time, ( 3)   the new interpretation applies retroactively to the

defendant' s case, and ( 4) the defendant' s trial was completed before the new case containing the

new    interpretation         was   filed. State v. Robinson, 171 Wn.2d 292, 307- 08, 253 P. 2d 84 ( 2011).


Forga has not cited the existence of such a case. Consequently, Forga' s claim fails.




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No. 45814 -4 -II



         4.           Sufficiency of the Evidence Claims

         Forga argues that there was insufficient evidence to convict him because ( a) money from

the   controlled      buys   was not    found   on   him, (b)   the CI admitted to using drugs during the time she

was cooperating with the police, and ( c) the officers could not have seen Forga' s trailer during the

controlled buys. We disagree.


         Where a criminal defendant challenges the sufficiency of the evidence in a criminal case,

we draw all reasonable inferences from the evidence in favor of the State and interpret them


strongly    against    the   defendant. State    v.   Ward, 148 Wn.2d 803, 815, 64 P. 3d 640 ( 2003). Evidence


is sufficient to support a conviction if, 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. Salinas,

119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992).                       Circumstantial and direct evidence are equally

reliable.     State   v.   Delmarter, 94 Wn. 2d 634, 638, 618 P. 2d 99 ( 1980). The trier of fact determines


credibility.       State    v.   Casbeer, 48 Wn.      App.   539, 542, 740 P. 2d 335 ( 1987), review denied, 109


Wn.2d 1008 ( 1987).


         To convict Forga of u
                             ' nlawful delivery of a controlled substance, the State had to prove

beyond      a   reasonable        doubt that Forga       knowingly     delivered     a   controlled    substance.     RCW


69. 50. 401( 1).      To convict Forga of unlawful possession of a controlled substance, the State had to


prove beyond a reasonable doubt that Forga possessed a controlled substance without a valid


prescription.         RCW 69. 50. 4013( 1).          To convict Forga of possession of methamphetamine with


intent to deliver, the State had to prove beyond a reasonable doubt that Forga possessed a


controlled      substance         and   intended to deliver that        controlled       substance    to   another.   RCW




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No. 45814 -4 -II



69. 50. 401( 1).     Viewing the evidence in the light most favorable to the State, the State met these

burdens.


         First, Forga argues that there is insufficient evidence to convict him because none of the


money    used      in the   controlled     buys    was    found    on    him.    However, the State presented testimony

from Miesbauer, Detectives Thoma and James Hanberry, Officer Brian Streissguth, and others, to

support its case against Forga. Miesbauer testified that Forga sold her methamphetamine on both


controlled buys, and at other times prior. Detectives Thoma and Hanberry and Officer Streissguth

all testified that the evidence they collected during the search of Forga' s trailer led them to

conclude    Forga     was    dealing      methamphetamine.               Consequently, Forga' s argument fails because

sufficient evidence was presented to allow a reasonable juror to find guilt beyond a reasonable

doubt. Salinas, 119 Wn.2d at 201.


         Next, Forga points out that Miesbauer admitted to using drugs during the time she was

working    with     the   police,   despite the     agreement she         had    with   the   police   to   not use   drugs. To the


extent Forga argues that Miesbauer' s drug use compromised her as a Cl or her testimony, Forga' s

argument      asks    us    to determine Miesbauer'           s    credibility    as    a witness.      We do not. review the


credibility    of witnesses.        See   e. g.   Casbeer, 48 Wn.         App.   at   542. Therefore, we hold that Forga' s


claim fails.


         Finally, Forga argues that the police could not have seen his motor home through their

binoculars because there             were     obstructions        in the way.         To the extent Forga argues that this


compromised any testimony they gave about what they saw, Forga' s argument asks us to comment

on   Detective      Hanberry' s      credibility     as   a witness.       Again, we do not review the credibility of

witnesses. See e. g. Casbeer, 48 Wn. App. at 542. Therefore, we hold that Forga' s. claim fails.



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No. 45814 -4 -II



        We affirm Forga' s convictions.


        A majority of the panel determining that this opinion will not be published in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




                                                                  Lee, J.
 We concur:




                        irswWoick, P. J.




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