      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                          DIVISION ONE
                                                                                                         C-
STATE OF WASHINGTON,                                                      )       No. 73333-8-I          ~
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                                     Respondent                           )                              ~
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MARCO BAILON WENCES,                                                      )       UNPUBLISHED OPINION
                                                                          )
                                     Appellant.                           )       FILED: July 25, 2016
___________________________________________________________________________)




            VERELLEN, C.J.              —      Marco Wences appeals his conviction for possession of

methamphetamine with intent to manufacture or deliver. He contends the court erred

in failing to suppress all of his statements to police and in imposing a firearm

enhancement as part of his sentence. Because Wences has not carried his burden

of demonstrating a basis to raise his new suppression argument for the first time on

appeal and because he may not benefit from prospective changes in the law

governing enhancements that occurred during a decade-long sentencing delay

caused by his flight, we affirm.

                                                                              FACTS

             Based on evidence obtained in a search of Wences’ car and a subsequent

interrogation, the State charged him with possession of methamphetamine with intent

to manufacture or deliver. The information alleged that Wences was armed with a

firearm when he committed the offense.
No. 73333-8-1/2


       Prior to trial, Wences moved to suppress his statements to police. At the

suppression hearing, Officer Bruce Bosman testified that he obtained a warrant to

search Wences and his Toyota Corolla after a confidential informant indicated

Wences was selling methamphetamine.

       On September 9, 2003, Officer Bosman spotted the Toyota and pulled it over.

He informed Wences, the driver, of the search warrant. He advised him of his rights

to remain silent and to an attorney and then commenced questioning. When Officer

Bosman asked if there was a gun in the car, Wences said there was, but claimed it

was not his.

      After this initial questioning, Officer Bosman detained Wences in his patrol car

and searched the Toyota. He found methamphetamine, a firearm, and a substantial

amount of cash. Officer Bosman then arrested Wences and read him complete

Miranda1 warnings, including a warning that anything he said could be used against

him in court. Officer Bosman proceeded to ask Wences additional questions, and

Wences made additional incriminating statements.

       In the suppression hearing, Wences testified that Officer Bosman gave him full

Miranda warnings, including a warning that anything he said could be used against

him in court, before each period of questioning. He claimed, however, that he

requested an attorney and did not answer any questions. Neither party mentioned

the then-recent decision in regarding improper two-step interrogations,2 nor did

Wences argue that Officer Bosman had used an improper two-step interrogation.

       1   Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1996).
       2   Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601, 159 L. Ed. 2d 643 (2004).



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       The court granted the motion to suppress in part, ruling that Wences’ “initial

statements     .   .   .   made prior to being advised of.   .   .   full constitutional rights” were not

admissible.3 The court also ruled, however, that Wences’ subsequent statements

“made after advisement of constitutional rights” were voluntary and admissible.4 The

court expressly found Wences’ claim that he requested an attorney “not credible.”5

       After trial, the court gave the jury a special verdict form asking whether

Wences was “armed with a deadly weapon at the time of commission of the crime.”6

The court instructed the jury that, for purposes of the special verdict, the State had to

prove “that the defendant was armed with a deadly weapon at the time of the

commission of the crime” and that “[a] pistol, revolver, or any other firearm is a deadly

weapon whether loaded or unloaded.7 The jury answered “yes” to the special verdict

question and convicted Wences as charged.

       Wences did not appear for his initial sentencing in 2004 and was not

sentenced until 2015. The court imposed 100 months of confinement, including a 36-

month firearm enhancement.8 Wences appeals.




       ~ Clerk’s Papers at 54.
       ~ Id.
       ~ Id. at 53.
       6   Id. at 30.
         ki. at 50 (emphasis added).
       8 ~ former RCW 9.94A.51 O(3)(b) (2001) (recodified as RCW 9.94A.533 by

LAWS OF 2002, ch. 290, § 11 (three-year firearm enhancement for class B felonies
and crimes with maximum sentence of 10 years)).


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No. 73333-8-1/4


                                        DECISION

       For the first time on appeal, Wences contends his post-Miranda statements

should have been suppressed as the product of an impermissible two-step

interrogation under Missouri v. Seibert.9 Under Seibert, courts must suppress post-

Miranda statements if police deliberately attempted to undermine Miranda warnings

by using a two-step process in which initial unwarned statements were used to obtain

post-warning statements.1° We do not reach Wences’ Seibert claim because he fails

to carry his burden of demonstrating a valid basis to raise it for the first time on

appeal.

       “As a general rule, appellate courts will not consider issues raised for the first

time on appeal.”11 An appellant waives a suppression issue if he or she failed to

move for suppression on the same basis below.12 Wences concedes he did not

assert any argument under Seibert below. He argues, however, that the issue

involves manifest constitutional error that may be raised for the first time on appeal

under RAP 2.5(a)(3). We disagree.

       To establish manifest constitutional error, a defendant must demonstrate

constitutional error and “show how the alleged error actually affected [his] rights at


       ~542 U.S. 600, 124 S. Ct. 2601, 159 L. Ed. 2d 643 (2004).
       10 State v. Rhoden, 189 Wn. App. 193, 199-203, 256 P.3d 242 (2015).

       11   State v. McFarland, 127 Wn.2d 322, 332—33, 899 P.2d 1251 (1995); RAP
2.5(a) (“The appellate court may refuse to review any claim of error which was not
raised in the trial court.”).
         12 State v. Garbaccio, 151 Wn. App. 716, 731, 214 P.3d 168 (2009) (“Because

[the defendant’s] present contention was not raised in his suppression motion, and
because he did not seek a ruling on this issue from the trial court, we will not consider
it for the first time on appeal.”).


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No. 73333-8-1/5


trial.”13 “It is this showing of actual prejudice that makes the error ‘manifest,’ allowing

appellate review.”14 When a suppression issue is raised for the first time on appeal,

however, the record may be insufficient to show actual prejudice because neither the

defendant nor the State had the incentive or opportunity to develop the factual record

before the trial court.15

       Here, the State contends Wences cannot establish manifest constitutional

error because his failure to raise his Seibert argument below leaves this court with an

insufficient record to determine whether the interrogating officer deliberately

employed an improper interrogation. The State notes that

       [i]n deciding whether an improper two-part interrogation took place, the
       court is to take into consideration subjective evidence, such as an
       officer’s testimony. [State v.1 Hickman, 157 Wn. App. [767,] at 775[,]
       238 P.3d 1240 (2010)]. Because the issue was not raised below, the
       testimony of the officer as to his reason for giving the partial warnings is
       not available. Furthermore, the defendant testified that he was advised
       of more rights than the officer remembered giving him. The court did
       not enter findings with regard to the defendant’s testimony. Had the
       court been alerted to the issue at the trial level, it could and likely would
       have entered findings specific to that issue.~16~

Wences chose not to respond to the State’s argument, resting instead on a

conclusory statement in his opening brief that “the record is adequate.”17 This is

insufficient.




        13   State v. Kirkman, 159 Wn.2d 918, 926—27, 155 P.3d 125 (2007).
        14      at 927 (citing McFarland, 127 Wn.2d at 333).
        15   See McFarland, 127 Wn.2d at 333.
        16   Br. of Resp’t at 9.
        ~7   Appellant’s Br. at 10.


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       It is the appellant’s burden to establish the grounds for reviewing an issue for

the first time on appeal.18 Considering that the test for whether a two-step

interrogation occurred involves consideration of all objective and subjective evidence

bearing on the interrogating officer’s intent,19 and given the absence of any testimony

from the interrogating officer on that point, there is not an adequate record to analyze

Wences’ two-step interrogation theory. Wences fails to carry his burden of

demonstrating manifest constitutional error.2°

       Citing State v. Williams—Walker,21 Wences next contends the court erred in

imposing a three-year firearm sentence enhancement because the jury’s special

verdict only found that he was armed with a “deadly weapon.” If the decision in

Williams-Walker and its predecessor, State v. Recuenco,22 applied to this case,

Wences’ argument would have merit. The courts in those cases held that a

sentencing court is authorized to impose only the specific enhancement found by the

       18   State v. Grimes, 165 Wn. App. 172, 185-86, 267 P.3d 454 (2011).
       19   State v. Hickman, 157 Wn. App. 767, 775, 238 P.3d 1240 (2010).
       20 Although we do not reach the merits of Wences’ argument under Seibert, we
note that when, as here, post-warning statements follow statements made after
attempted but incomplete warnings, there is little reason to believe that police
deliberately tried to undermine Miranda. As one court noted in addressing facts
similar to those presented here, “Because giving any warnings undermines the
effectiveness of the ‘question first’ tactic, the fact that some warnings were given
strongly evidences that the tactic was not being used.” United States v. Street, 472
F.3d 1298, 1314 (11th Cir. 2006) (emphasis added); see also Hill v. Thaler, 484 Fed.
App’x. 888, 890 (5th Cir. 2012) (“any argument that the officer employed a deliberate
strategy is undermined by the fact that a partial reading of Miranda rights was
given.”); Fed. R. App. P. 32.1(a) (permitting citation to unpublished federal decisions
issued in 2007 or later). It is undisputed that Officer Bosman informed Wences of his
rights to remain silent and to an attorney before the initial questioning.
        21167 Wn.2d 889, 897-98, 225 P.3d 913 (2010).
        22 163 Wn.2d 428, 180 P.3d 1276 (2008).




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No. 73333-8-1/7


jury.23 Accordingly, a jury determination that the defendant was armed with a deadly

weapon does not authorize a court to impose a firearm enhancement, and imposition

of the latter is not subject to harmless error analysis.24 But Williams-Walker and

Recuenco are not retroactive and therefore do not apply to judgments and sentences

that were final when they were decided in 2008 and 2010.25 While Wences’

judgment and sentence was not final until 2015, it would have been final prior to both

Recuenco and Williams-Walker but for Wences’ flight and the consequent 11-year

delay of his sentencing. A defendant should not benefit from changes in the law that

apply to him solely because he absconded and delayed his sentencing.26




       23   Williams-Walker, 167 Wn.2d at 898-99.
       24   Id. at 898-901.
       25   In re Pers. Restraint of Netherton, 177 Wn.2d 798, 802, 306 P.3d 918
(2013).
       26 See State v. Moore, 63 Wn. App. 466, 470-71, 820 P.2d 59 (1991) (rejecting
defendant’s argument that all of his sentences should have run concurrently because
 he absconded to avoid sentencing on some of the offenses and “[b]y doing so, he
prevented those sentences from being entered when they normally would have been.
     To order the [sentences] to run concurrently. would in effect reward [the
                                                    .   .


defendant]” for absconding); State v. Sills, 260 Or. App. 384, 388-94, 317 P.3d 307,
309-12 (2013) (“we find it significant that. one of defendant’s challenges to his
                                            .   .


conviction would be affected—indeed benefited—by case law that has developed
since he absconded.      .   Absent defendant’s flight from Oregon, he would have been
                             .   .


sentenced in 2000, and any appeal relating to that judgment would have been
governed by the law as it existed at that time. In all likelihood, an appeal at that time
would have resulted in a different outcome on defendant’s first assignment of error.
   Under those circumstances, we conclude that defendant’s lengthy escape from
justice significantly interfered with the appellate process and forfeits his appeal.”);
State v. Ristick, 204 Or. App. 626, 631, 131 P.3d 762 (2006) (dismissing appeal of
defendant who fled before sentencing because the challenge to his sentence rested
on a case decided during his flight and entertaining the argument “would allow
defendant to benefit from flouting the judicial process and leave others undeterred
from doing the same”).


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No. 73333-8-1/8


       Because the jurys deadly weapon finding was sufficient to authorize Wences’

firearm enhancement under the laws in effect at the time of his conviction (prior to

Recuenco and Williams-Walker)27 and because Wences cannot benefit from

subsequent changes in the law, the court did not err in imposing the firearm

enhancement.

       The conviction and sentence are affirmed.




WE CONCUR:


                                                                      ‘3-,




       27   In re Pers. Restraint of Jackson, 175 Wn.2d 155, 163-64, 283 P.3d 1089
(2012).


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