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

                                                                                      pj         J~l v~J
STATE OF WASHINGTON,                             No. 75242-1-1                        C3         —^sC"-
                                                                                      cr>        —-4 "t~-
                                                                                      c~-        ^c
                    Respondent,                                                       cr.
                                                                                      r~          '^1
                                                                                       po          - -x.i-
                                                                                       en          %•-', -
          v.                                                                                       r D j

                                                                                        „*'-        Xi-."
                                                                                        -~^'        "-'"-
                                                                                                     '"-~*,
SCOTT WILLIAM JOHNSON,                           UNPUBLISHED OPINION                       —*-

                                                                                            »«



                                                                                            O
                                                                                            a
                    Appellant.                   FILED: July 25, 2016


      Verellen, C.J. — Where a defendant fails to show prejudice from trial counsel's

allegedly deficient performance, the defendant's claim of ineffective assistance of

counsel fails. Here, Scott Johnson did not make such a showing of prejudice. Further,

although the trial court erred in sentencing Johnson with an offender score of 10,

remand is not necessary because the record clearly indicates that the court would have

imposed the same sentence had it sentenced Johnson with a correct offender score of

nine. Accordingly, we affirm Johnson's conviction. We do not award costs on appeal.
                                          FACTS

       In March 2015, Longview police officers executed a search warrant at a

residence in Longview, Washington. The targets ofthe search were the residence itself
and Scott Johnson. The officers were looking for illegal narcotics, specifically heroin, in

the residence.
No. 75242-1-1/2


       No one answered the officers' knocks at the front door of the residence, so the

officers forced the door open and went inside. The officers secured two rooms inside

the house and detained the occupants of the rooms.

      The door to a third room was locked. The officers announced themselves and

forced the door open. Two females and Johnson were in the third room. When the

officers entered the room, they saw Johnson leaning down near a nightstand and

reaching towards the floor. Based on his training and experience, one of the officers,

Detective Seth Libbey, thought that Johnson was trying to hide something by stuffing it

down on the far side of the nightstand. The officers detained all three occupants of the

third room.

       After Detective Libbey read Johnson his Miranda rights,1 Johnson admitted that

the third room was his bedroom, but he denied possessing any narcotics. Detective

Libbey searched Johnson's bedroom and found a plastic bag on a nightstand containing

a substance later identified as methamphetamine. Detective Libbey found a purse on

the floor near the nightstand in the area Johnson was reaching towards when the

officers entered the bedroom.

       The purse Detective Libbey found belonged to Jacquelyn Croseman. When the

officers first entered the residence, they encountered Croseman in one of the first rooms

they walked through and handcuffed her. After the occupants of the house were

detained, Detective Libbey asked Croseman for consent to search her purse.

Croseman consented to the search and told Detective Libbey that he would not find




        Miranda v. Arizona. 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
No. 75242-1-1/3


anything in the purse. In the purse, Detective Libbey found aluminum foil containing a

substance later identified as heroin.

       The State charged Johnson with one count of possession of heroin and one

count of possession of methamphetamine. At trial, defense counsel asked Detective

Libbey if the purse found on the floor of Johnson's bedroom belonged to Croseman, and

Detective Libbey answered that it did. Defense counsel also asked Detective Libbey if

he knew whether anyone questioned Croseman about her purse. Detective Libbey

testified that he had spoken to Croseman about her purse and that Croseman told him

that the heroin found in her purse belonged to Johnson. On redirect examination by the

prosecutor, Detective Libbey testified that Croseman told him that, before the officers

arrived at the residence, she had been in Johnson's room and saw him with heroin. On

recross-examination, Detective Libbey reviewed his police report and testified that there

was nothing in his report about Croseman consenting to a search of her purse or about

any other statements Croseman made to him.

       The jury found Johnson guilty on both counts. Based on an offender score of 10,

the trial court sentenced Johnson to 18 months on each count, to be served

concurrently.

       Johnson timely appealed. His trial court filed a motion for an order of indigency

and the appointment of an attorney on appeal. The court granted the motion.

                                        ANALYSIS


                             Ineffective Assistance of Counsel

       Johnson claims he was denied effective assistance of counsel because his

counsel elicited testimony from Detective Libbey about Croseman's statements to him,
No. 75242-1-1/4


which in turn allowed the State to elicit further testimony from Croseman about her

statements. Johnson also argues his counsel was ineffective for failing to interview

Detective Libbey prior to cross-examination. He argues that his convictions must be

reversed because he was prejudiced by his counsel's deficient performance. We

disagree.

      A defendant's right to counsel includes the right to effective assistance of

counsel.2 A claim of ineffective assistance of counsel has two elements. Failure to

demonstrate either element is fatal to an ineffectiveness claim.3

       First, the defendant must show that defense counsel's performance was

deficient.4 To show deficient performance, the defendant must show that counsel's

performance fell below an objective standard of reasonableness.5 In reviewing claims

of ineffective assistance, we are "highly deferential to counsel's performance."6 We

engage in a strong presumption that counsel's representation was effective.7 When

defense counsel's performance can be said to be a legitimate trial strategy or tactics,

performance is not deficient.8

       Second, a defendant claiming ineffective assistance of counsel must show

prejudice. This requires a showing of a reasonable probability that, but for counsel's


       2 Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984); State v. Crawford. 159 Wn.2d 86, 97, 147 P.3d 1288 (2006).
       3 Strickland, 466 U.S. at 697; State v. Foster. 140 Wn. App. 266, 273, 166 P.3d
726 (2007).
       4 Strickland. 466 U.S. at 687.
       5 ]± at 688.
       6 In re Pers. Restraint of Gomez. 180 Wn.2d 337, 348, 325 P.3d 142 (2014).
       7 State v.McFarland. 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
       8 State v. Grier. 171 Wn.2d 17, 33, 246 P.3d 1260 (2011).
No. 75242-1-1/5



error, the result of the proceeding would have been different.9 "A reasonable probability

is a probability sufficient to undermine confidence in the outcome."10

      We find no evidence in the record as to whether Johnson's counsel did or did not

interview Detective Libbey prior to cross-examination. And, "there is no absolute

requirement that defense counsel interview witnesses before trial."11 The record does

not support Johnson's claim that his counsel's performance fell below an objective

standard of reasonableness.

       Further, even if Johnson can satisfy the first element of a claim of ineffective

assistance of counsel, he cannot show he was prejudiced by his counsel's actions in

eliciting testimony about Croseman's statements to Detective Libbey. Two officers who

executed the search warrant testified that when they entered the third room, they saw

Johnson reaching down towards the floor where the purse was found, acting as if he

was trying to hide something by stuffing it down on the far side of the nightstand. The

jury was instructed on constructive possession. Even without evidence of Croseman's

statements to Detective Libbey, the jury could have found that Johnson was in

constructive possession of the heroin. We find no reasonable probability that the result

of the proceeding would have been different had defense counsel not questioned

Detective Libbey about Croseman's statements to him.




       9 Strickland. 466 U.S. at 694.
       10 \±
       11 In re Pers. Restraint of Pirtle. 136 Wn.2d 467, 488, 965 P.2d 593 (1998)
(holding that a claim of ineffective assistance of counsel was not shown by defense
counsel's failure to interview the four investigating police officers where counsel relied
on the police reports instead).
No. 75242-1-1/6


                                     Offender Score

      Johnson argues that the trial court erred in sentencing him with an offender score

of 10 because his current offenses comprised the same criminal conduct. The State

concedes the error, but argues that the error is harmless. We agree with the State.

      We review de novo a sentencing court's calculation of an offender score.12 As

the State concedes, the trial court erred in calculating Johnson's offender score

because it scored Johnson's current offenses against each other. "[Cjoncurrent counts

involving simultaneous simple possession of more than one controlled substance

encompass the same criminal conduct for sentencing purposes."13 Johnson should

have been sentenced with an offender score of 9.

      A remand for the correction of Johnson's offender score is not, however,

necessary because "the record clearly indicates the sentencing court would have

imposed the same sentence anyway."14 The two offenses of which Johnson was

convicted have a seriousness level of I. The standard range sentence for a drug

offense with a seriousness level of I for a defendant with an offender score of "6 to 9 or

more" is "12+ to 24 months."15 Accordingly, the standard range is the same whether

Johnson was sentenced with an offender score of 9 or 10. In sentencing Johnson, the

court agreed with the State's recommendation of a sentence in the middle of the

standard range. The record clearly indicates that the court would have imposed the

same sentence had it sentenced Johnson with an offender score of 9 rather than 10.



       12 State v. Tili. 148 Wn.2d 350, 358, 60 P.3d 1192 (2003).
       13 State v. Vike. 125 Wn.2d 407, 412-13, 885 P.2d 824 (1994).
       14 State v. Parker, 132 Wn.2d 182, 189, 937 P.2d 575 (1997).
       15RCW9.94A.517(1).
No. 75242-1-1/7


                                         Costs on Appeal

       Johnson argues that if the State is the substantially prevailing party on appeal,

we should not impose costs against him because he is indigent. The State does not

request an award of costs in its brief.

       Appellate courts may require an adult offender convicted of an offense to pay

appellate costs.16 The commissioner or clerk will award costs to the State ifthe State is

the substantially prevailing party on appeal, "unless the appellate court directs otherwise

in its decision terminating review."17

       A determination of a criminal defendant's indigency is entrusted to the trial judge,

whose finding of indigency we respect unless we are shown good cause not to do so.18

Under the Rules of Appellate Procedure, where a party has been granted an order of

indigency, the party and the party's counsel must bring to the attention of the trial court

any significant improvement during review in the party's financial condition.19 We "will

give a party the benefits of an order of indigency throughout the review unless the trial

court finds the party's financial condition has improved to the extent that the party is no

longer indigent."20

       In support of the motion for an order of indigency and appointment of an attorney

on appeal, Johnson's trial counsel stated that, to the best of his knowledge, Johnson's

financial situation was the same or worse than it was when the trial court originally



       16 RCW 10.73.160(1).
       17 RAP 14.2.

       18 State v. Sinclair. 192 Wn. App. 380, 393, 367 P.3d 612 (2016).
       19 RAP 15.2(f).
       20 Id.
No. 75242-1-1/8


found Johnson indigent. The court granted the motion, finding that Johnson is indigent

for purposes of appeal and is entitled to appointed counsel on appeal, a waiver of all

fees, and all other costs reasonably necessary to make the appeal. We presume that

Johnson remains indigent.21 Under these circumstances, we conclude that an award to

the State of appellate costs is not appropriate.

                                     CONCLUSION

       We affirm. We do not award costs on appeal.




WE CONCUR:




^$aaW)X^                                                  UrXJ-




       21 Sinclair. 192 Wn. App. at 393; RAP 15.2(f).
