                                                                                                                        FILED
                                                                                                                COURT   OF
                                                                                                                             APPEALS
                                                                                                                     DIVISION II
                                                                                                           2015 JUN – 4
                                                                                                                        Ail 8: 38
                 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON1                                             T
                                                                                                                        WASHINGTON
                                                       DIVISION II                                         i3



    STATE OF WASHINGTON,                                                              No. 46433 -1 - I1

                                         Respondent,

            v.                                                                 UNPUBLISHED OPINION

    ORLANDO C. ALEXANDER,

                                         Appellant.



           MAXA, 7. —        Orlando Alexander appeals his conviction and sentence for unlawful delivery

of a controlled substance. He argues that the trial court erred in imposing his sentence by using an

offender score based on prior convictions when the State failed to prove the existence of those

prior convictions       by   a preponderance of        the   evidence.    The State concedes that it failed to prove


Alexander' s prior convictions at sentencing. We accept the State' s concession.

           Alexander     also   challenges      his   conviction   in    a statement of additional     grounds (     SAG),


asserting that ( 1)     he    received   ineffective     assistance of counsel       for   several reasons, (   2) he was


denied his Sixth Amendment right to confrontation when his attorney was not allowed to interview

a   key   witness or   meaningfully      cross -examine       him, ( 3) the prosecutor failed to remove a witness


based on issues of credibility and violated Brady' when it did not disclose an alleged change in the

witness' s   testimony, ( 4) the State failed to present sufficient evidence to charge him with unlawful

delivery of a controlled substance, and ( 5) the cumulative error doctrine entitles him to relief
because the       combined effect of      the   alleged errors     denied him    a   fair trial. We reject Alexander' s


SAG arguments.



1
    Brady   v.   Maryland, 373 U. S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 ( 1963).
46433 -1 - I1



         We affirm Alexander' s conviction, but vacate his sentence and remand for resentencing.

                                              FACTS


         On April 3, 2013 a Tacoma Police informant made a controlled purchase of crack


cocaine. To initiate the drug purchase, the informant contacted Michael Zollner. Zollner then

contacted Alexander, and they agreed to meet in Alexander' s car in front of a Tacoma

convenience store. Zollner entered Alexander' s car, and then exited the car and gave the


informant an item later determined by the police to be cocaine.

         The State charged both Alexander and Zollner with one count of unlawful delivery of a

controlled substance. At trial, Zollner testified against Alexander stating how the transaction

occurred. The jury found Alexander guilty.

         Before sentencing, the State filed a document summarizing the defendant' s criminal

history and offender score. At the sentencing hearing, the State referenced documents in support

of its offender score calculation, but there is no evidence that these documents were produced at


sentencing. The trial court calculated Alexander' s offender score at seven, and sentenced him to

the standard range of 90 months in prison.


         Alexander appeals.


                                             ANALYSIS


A.       PROOF OF PRIOR CONVICTIONS


         Alexander argues, and the State concedes, that his sentence should be vacated because


the State did not prove the existence of his prior convictions by a preponderance of the evidence.

We accept the State' s concession because the State failed to provide evidence supporting its

summary of Alexander' s criminal history.




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         A trial court' s sentence following a conviction depends on a defendant' s offender score,

which is calculated based on the defendant' s current offenses and prior convictions. RCW

9. 94A. 525, . 530( 1).     We review a sentencing court' s calculation of an offender score de novo.

State v. Bergstrom, 162 Wn.2d 87, 92, 169 P. 3d 816 ( 2007).


         In order to establish a defendant' s criminal history for sentencing purposes, the State

must prove a       defendant'     s prior convictions   by   a preponderance of   the   evidence.   RCW


9. 94A. 500( 1);    State   v.   Hunley,   175 Wn.2d 901, 909 -10, 287 P. 3d 584 ( 2012). The best evidence


of a prior conviction is a certified copy of the judgment, but the State also may produce other

comparable documents or transcripts from prior hearings to prove prior convictions. Id. at 910.

In addition, the State can meet its burden if the defendant affirmatively acknowledges the

criminal history on the record. State v. Mendoza, 165 Wn.2d 913, 930, 205 P. 3d 113 ( 2009),

disapproved ofon other grounds by State v. Jones, 182 Wn.2d 1, 338 P. 3d 278 ( 2014). 2
However, the " mere failure to object to a prosecutor' s assertions of criminal history does not

constitute such an acknowledgement."               Id. at 928.


         Here, the State did not satisfy its burden of proving Alexander' s prior convictions by a

preponderance of the evidence. The State filed a sentencing memorandum and a proposed .

stipulation detailing Alexander' s criminal history and offender score. However, Alexander did

not sign the proposed stipulation. Moreover, the State failed to introduce any evidence

substantiating its list of Alexander' s reported prior felony and misdemeanor convictions or

document the existence and dates of these misdemeanors.




2 Jones disapproved of Mendoza to the extent that it could be read as reaffirming the " no second
chance" rule, which precluded the State from presenting additional evidence of a defendant' s
criminal history on remand. Jones, 182 Wn.2d at 7 n.3.
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46433 -1 - II




           Because the State did not provide evidence of Alexander' s criminal history, it did not

establish Alexander' s prior convictions by a preponderance of the evidence. Therefore, we

vacate Alexander' s sentence and remand for resentencing. At resentencing, the State will be able

to offer evidence proving Alexander' s prior convictions. RCW 9. 94A.530( 2).

B.         SAG ASSERTIONS


           Alexander makes a number of claims in his SAG. We hold that these claims have no

merit.



           1.     Ineffective Assistance of Counsel


           Alexander asserts that he received ineffective assistance of counsel because his attorney

 a)   failed to   collect evidence of reports and police statements, (           b) failed to conduct a reasonable


pretrial   investigation, ( c)   made statements to Alexander prompting him to file a letter of

grievance with       the Department     of   Assigned Counsel, ( d)        failed to investigate the criminal history

of    Zollner,   a witness   for the State, ( e) had   a conflict of     interest, ( f) failed to impeach Zollner, and


 g) failed to make timely motions at trial. We hold that these claims rely on facts outside the

record or that have no merit.


                    a.    Legal Principles


           We review claims of ineffective assistance of counsel de novo. State v. Sutherby, 165

Wn. 2d 870, 883, 204 P. 3d 916 ( 2009). To prevail on an ineffective assistance of counsel claim,


the defendant must show both that ( 1) defense counsel' s representation was deficient, and ( 2) the

deficient representation prejudiced the defendant. State v. Grier, 171 Wn.2d 17, 32 -33, 246 P. 3d

 1260 ( 2011).      Representation is deficient if, after considering all the circumstances, it falls below

an objective standard of reasonableness.               Id.   at   33. Prejudice exists if there is a reasonable




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46433 -1 - II




probability that except for counsel' s errors, the result of the proceeding would have been
different. Id. at 34

         We presume that counsel' s representation was effective, and to demonstrate deficient

performance the defendant must show that, based on the record, there are no legitimate strategic

or tactical reasons for the challenged conduct. State v. Emery, 174 Wn.2d 741, 755, 278 P. 3d

653 ( 2012).     The law affords trial counsel wide latitude in the choice of tactics. In re Pers.

Restraint   ofStenson,       142 Wn. 2d 710, 736, 16 P. 3d 1 ( 2001).          Legitimate trial strategy cannot

serve as the basis for a claim of ineffective assistance of counsel. State v. Lord, 117 Wn.2d 829,

883, 822 P. 2d 177 ( 1991).


                    b.     Matters Relying on Facts Outside the Record

         Alexander' s first five claims regarding ineffective assistance of counsel all depend on

matters outside the record. Alexander alleges that his attorney failed to collect evidence

regarding police statements and reports. He asserts that his attorney failed to conduct a pretrial

investigation, but does not identify of what. He claims his defense counsel made statements to

Alexander prompting him to write a grievance letter to the Department of Assigned Counsel.

Alexander claims his attorney failed to investigate Zollner' s criminal history. And he argues that

his defense     counsel' s "   interests    were on others rather      than [ Alexander],"   and his attorney had a

conflict of     interest   at a pretrial   hearing that   prohibited   them from communicating. SAG at 2.



         There is nothing in the record to support these claims. As a result, we cannot consider

them   in this direct      appeal.   State   v.   Alvarado, 164 Wn.2d 556, 569, 192 P. 3d 345 ( 2008).        They

are more properly raised in a personal restraint petition. Id.




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                c.        Failure to Impeach


         Alexander argues that he received ineffective assistance when his defense counsel failed

to impeach Zoliner, who testified against Alexander. However, the record demonstrates that

counsel for Alexander cross -examined Zollner at trial and impeached his character with evidence

of   Zollner' s 2010      conviction   for " making    a   false   statement   to law   enforcement."   Report of


Proceedings     at   165.    In addition, Alexander' s attorney elicited testimony from Zollner that he

lied to police and was cooperating with law enforcement by agreeing to testify. Therefore, we

hold that this claim has no merit.

                     d.     Failure to Make Timely Motions

          Alexander argues that his defense counsel was ineffective by failing to file timely

motions. He does not argue that his attorney should have filed different motions, but seems to

argue that his attorney' s performance was lackluster when compared to his co- defendant' s

attorney.


          The record demonstrates that Alexander' s attorney filed two motions his behalf, one for a

medical continuance and one for Alexander' s release on an appeal bond at sentencing.

Alexander argues that his counsel' s actions constitute objectively deficient performance, but he

does not explain or provide supporting evidence from the record. Therefore, he fails to establish

deficient performance.


          2.    Right to Confrontation


          Alexander argues that he was denied his right to confront witnesses who testified against


him when his attorney was not allowed to interview Zollner or conduct a " meaningful cross -

examination" of           Zollner. SAG   at   3.   We disagree.




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46433 -1 - II




         Under the Sixth Amendment to the United States Constitution, criminal defendants have

the right to confront or cross -examine those who offer testimony against them. State v. Jasper,

174 Wn.2d 96, 109, 271 P. 3d 876 ( 2012). The right to confrontation means that the defendant


must have the opportunity to confront those who bear testimony. Id. The primary and most

important component of the confrontation clause is the right to conduct a meaningful cross -

examination of adverse witnesses. State v. Darden, 145 Wn.2d 612, 620, 41 P. 3d 1189 ( 2002).

Confrontation' s "   purpose   is to test the   perception,   memory,   and   credibility   of witnesses,"   and it


therefore helps assure the accuracy of the fact finding process. Id. We review an alleged

confrontation clause violation de novo. Jasper, 174 Wn.2d at 108.

         The record contradicts. Alexander' s claim that he was denied the right to confront Zollner.

It shows that Alexander' s defense counsel interviewed Zollner before he testified. Moreover,

Alexander' s attorney was able to cross -examine Zollner at trial, questioning him about his 2010

conviction for making a false statement to law enforcement. Zollner also testified during defense

cross -examination that he lied to police and was cooperating with law enforcement by agreeing

to testify. Based on these facts, Alexander fails to show that he was deprived of his right to
confront or cross -examine Zollner.


          3.    Prosecutorial Misconduct


          Alexander asserts that the prosecutor committed misconduct by failing to remove a

witness based on issues of credibility and by failing to disclose an alleged change in Zollner' s

testimony. We disagree.

          The State has a duty to disclose material evidence favorable to the defendant. See Brady

v.   Maryland, 373 U. S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 ( 1963).            Brady states that the

suppression of evidence favorable to an accused violates due process " where the evidence is



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46433 -1 - II



material either to guilt or to punishment, irrespective of the good faith or bad faith" of the State.

Id.


          The State has a duty to learn of any favorable evidence " known to the others acting on

the   government' s    behalf in the   case,   including   the   police."   Kyles v. Whitley, 514 U. S. 419, 437,

115 S. Ct. 1555, 131 L. Ed. 2d 490 ( 1995).           But Brady does not obligate the State to

communicate         preliminary   or speculative   information. United States v. Diaz, 922 F. 2d 998, 1006


 2d Cir. 1990).      And there is no Brady violation if the defendant, using reasonable diligence,

could have obtained the evidence. State v. Thomas, 150 Wn.2d 821, 851, 83 P. 3d 970 ( 2004).

          To establish a Brady violation, a defendant must demonstrate the existence of each of

three necessary      elements: (   1) the State must have suppressed the evidence, either willfully or


inadvertently; ( 2) the evidence at issue must be favorable to the accused, either because it is

exculpatory, or because it is impeaching; and ( 3) prejudice must have ensued such that there is a

reasonable probability that the result of the proceeding would have differed had the State
disclosed the evidence to trial counsel. State v. Mullen, 171 Wn.2d 881, 895, 897, 259 P. 3d 158

 2011).


          Even assuming Alexander established the evidence was suppressed and that this evidence

should have been disclosed because it could have impeached Zollner' s testimony, Alexander has

not shown that his case was prejudiced by the State failing to inform him of the change in
Zollner'   s   testimony. Alexander     argues    that Zollner' s    statements "   completely   change[   d]" at trial


and that his " testimony through states [ sic] questions elicit[ed] co- defendant `Z' to admit to

  1] ying before but     not now.' "    SAG at 5. Alexander does not argue that the State suppressed


this evidence, willfully or inadvertently, stating only that trial testimony " was not the proper

venue     for the   accused   to discover the   testimony    change."       SAG at 5. The record shows that




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Alexander' s defense attorney elicited testimony highlighting that Zollner had lied initially to the

police and later told the truth. Therefore, Alexander' s claim for prosecutorial misconduct fails.

          5.   Sufficiency of the Evidence

          Alexander argues that the State failed to present sufficient evidence to convict him with

unlawful delivery of a controlled substance. We disagree.

          The test for determining sufficiency of the evidence is whether, after viewing the

evidence in the light most favorable to the State, any rational trier of fact could have found the

defendant guilty beyond a reasonable doubt. State v. Homan, 181 Wn.2d 102, 105, 330 P. 3d 182

 2014).    All reasonable inferences from the evidence must be drawn in favor of the State and

interpreted most strongly against the defendant. Id. The reviewing court defers to the trier of

fact on issues of conflicting testimony, credibility of witnesses, and persuasiveness of the

evidence. State v. Andy, 182 Wn.2d 294, 303, 340 P. 3d 840 ( 2014).

          Taken in the light most favorable to the State, the evidence in this case supports


Alexander' s conviction for unlawful delivery of a controlled substance. The evidence shows that

Zollner was contacted by the police informant in order to purchase drugs. At trial, Zollner
testified that he had called Alexander to arrange the cocaine purchase, which he acquired from

Alexander and delivered to the informant. Zollner testified that he gave permission to police


officers to search and use his cellular phone; the officers dialed the most recent outgoing call

connecting them. to Alexander' s phone. Officers involved in the operation also testified that they

had observed Zollner' s movements and confirmed that Zollner' s last call was to Alexander' s

phone.




          Based on the evidence presented, a rational trier of fact could have found Alexander


guilty of unlawful delivery beyond a reasonable doubt. Therefore, we find that the State


                                                    9
46433 -1 - II.




presented sufficient evidence for a jury to reasonably convict Alexander of the unlawful delivery

of a controlled substance.

         6.      Cumulative Error


         Alexander contends that the cumulative error doctrine entitles him to relief because the

combined effect of the alleged errors denied him a fair trial. Under the cumulative error


doctrine, the court may reverse a defendant' s conviction when the combined effect of trial errors

effectively denies the defendant his or her right to a fair trial, even if each error alone would be

harmless. State     v.   Weber, 159 Wn.2d 252, 279, 149   P. 3d 646 ( 2006). But because Alexander


has failed to show any prejudicial errors affecting his conviction, we reject this assertion.

         We affirm Alexander' s conviction, but vacate his sentence and remand for resentencing.

         A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,

it is so ordered.




We concur:




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