                                                                           FILED 

                                                                         JUNE 5, 2014 

                                                                 In the Office of the Clerk of Court 

                                                               W A State Cou rt of Appeals, Division III 



            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                          )
                                              )         No. 31180-5-III
                       Respondent,            )
                                              )
       v.                                     )
                                              )
HEATHER L. J. MERCADO,                        )         PUBLISHED OPINION
                                              )
                       Appellant.             )

       FEARING, J. -    RCW 70.24.340(1 )(c) authorizes a local health department to

conduct human immunodeficiency virus (HIV) testing and counseling of a defendant

found guilty of a drug offense if the court determines that the "related drug offense is one

associated with the use of hypodermic needles." Heather Mercado claims the trial court

erred when ordering her to submit to HIV testing because the court did not determine that

she used a hypodermic needle to ingest the methamphetamine for which she was

convicted of possessing. The State of Washington argues that the trial court need not find

that the defendant actually used a hypodermic needle at the time of the crime as long as

the drug ingested by the defendant is sometimes ingested by others with a hypodermic

needle. Because the statute is ambiguous, we spend time deconstructing and interpreting

the language of the statute. We agree with Mercado. We vacate the trial court's order for

HIV testing and remand for further proceedings to determine if Heather Mercado's
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I    No. 31180-5-111
     State v. Mercado
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     possession of methamphetamine on May 10, 2012, entailed use of a hypodermic needle.

                                              FACTS

            On May 10,2012, police executed an arrest warrant for Joaquin Jaimes at an

     apartment in Walla Walla. Through an apartment window, police saw Heather Mercado

     preparing to smoke methamphetamine from a pipe. Police obtained a second warrant to

     search the apartment. Inside the apartment, police found Mercado's glass pipe, a baggie

     containing a golf ball sized amount of methamphetamine, and a black leather bag. Inside

     the black leather bag, police found a handgun, digital scales, and white T-shirts. One of

     the shirts appeared to have blood thereon.

                                          PROCEDURE

           The State of Washington charged Heather Mercado with possession of a

     controlled substance and use of drug paraphernalia. Mercado pled guilty to possession of

     a controlled substance in violation ofRCW 69.50.4013(1) in exchange for the State

     dismissing the drug paraphernalia charge and recommending a sentence of 30-days

     converted to community service.

           Heather Mercado signed a "Statement of Defendant on Plea of Guilty." Clerk's

     Papers (CP) at 12. The State claims that Mercado's counsel prepared the statement, since

     the statement contains the name and address of defense counsel in the lower right margin.

I
I
     Someone crossed out most "[n]otification" paragraphs as inapplicable to Mercado, but

\    checked paragraph 6(s) as applying. CP at 15. That paragraph reads, "If this crime




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No. 31180-5-111
State v. Mercado


involves prostitution, or a drug offense associated with hypodermic needles, 1 will be

required to undergo testing for human immunodeficiency (HIV/AIDS) virus." CP at 16.

The paragraph repeats language from RCW 70.24.340(1)(c).

      At Heather Mercado's change of plea hearing on July 16,2012, the trial court

asked Mercado whether she had read her plea statement before signing it and whether she

understood the statement. Mercado answered yes to both questions. The trial court

explained:

              THE COURT: Because this is a felony offense, a drug offense, you
      will lose your right to own, use or possess a firearm. You may not exercise
      that right unless it is restored to you by a court of competent jurisdiction.
              You will lose your right to vote.
              If you are receiving public assistance and sentenced to jail time, that
      public assistance may be suspended.
              You will be required to provide a biological sample for
      [deoxyribonucleic acid] DNA identification analysis, and pay a $100
      collection fee.
              You will be required to be tested/or the [acquired immune 

      deficiency syndrome] AIDS virus. 

              If it is determined this charge is a result of a drug or alcohol
      problem, you may be required to participate in a treatment program as part
      of your judgment and sentence.
              This conviction may affect your eligibility for State and federal
      foods stamps, welfare and education benefits. 

              Do you understand these things? 

              [MERCADO]: Yes. 


Report of Proceedings at 5-6 (emphasis added).

      The sentencing court ordered Heather Mercado to serve 240 hours of community

service within 6 months. At paragraph 4.5 ofthe judgment and sentence, the court


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No. 31180-5-III
State v. Mercado


ordered the Health Department to test Mercado for HIV as soon as possible and for

Mercado to fully cooperate in the testing. During the sentencing hearing, the State

presented no evidence that Heather Mercado used a hypodermic needle.

                                 LA W AND ANALYSIS

                                       Invited Error

       Heather Mercado limits her appeal to a challenge of the court's order that she be

tested for HIV/AIDS. Before addressing the merits of her appeal, we must address the

State's request that this reviewing court refuse review because Mercado invited any error

and she did not preserve the issue for appeal. We address the invited error doctrine first

and rule the doctrine does not apply because Mercado did not create any error and the

doctrine does not apply to sentencing challenges.

       The State of Washington contends Heather Mercado's trial counsel prepared the

statement on plea of guilty form directing the HIV testing, since the format is on

counsel's stationery. Mercado neither affirms nor denies this contention. We recognize

that the statement may be on defense counsel's stationery, but that the prosecution could

have placed the checkmark by the paragraph addressing HIV testing. We will assume,

for argument sake, however, that defense counsel struck the many inapplicable

paragraphs and checked the HIV testing paragraph.

      The invited error doctrine precludes a criminal defendant from seeking appellate

review of an error she helped create, even when the alleged error involves constitutional

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     No. 3U80-5-II1 

     State v. Mercado 



~    rights. State v. Studd, 137 Wn.2d 533,546-47,973 P.2d 1049 (1999); State v.
.
!
     Henderson, 114 Wn.2d 867,870-71, 792 P.2d 514 (1990). The doctrine of invited error


I    prohibits a party from setting up an error at trial and then complaining of it on appeal.

     State v. Wakefield, 130 Wn.2d 464,475,925 P.2d 183 (1996); State v. Pam, 101 Wn.2d

     507,511,680 P.2d 762 (1984), overruled on other grounds by State v. Olson, 126 Wn.2d

     315,893 P.2d 629 (1995). To determine whether the invited error doctrine is applicable

     to a case, we may consider whether the petitioner affirmatively assented to the error,

     materially contributed to it, or benefited from it. State v. Momah, 167 Wn.2d 140, 154,

     217 P.3d 321 (2009); In re Pers. Restraint o/Copland, 176 Wn. App. 432, 442, 309 P.3d

     626 (2013).

            To be invited, the error must be the result of an affirmative, knowing, and

     voluntary act. State v. Lucero, 152 Wn. App. 287, 292, 217 P.3d 369 (2009), rev'd on

     other grounds, 168 Wn.2d 785, 230 P.3d 165 (2010). The defendant must materially

     contribute to the error challenged on appeal by engaging in some type of affirmative

     action through which he knowingly and voluntarily sets up the error. In re Pers.

     Restraint o/Call, 144 Wn.2d 315,328,28 P.3d 709 (2001); Wakefield, 130 Wn.2d at

I    475. The State bears the burden of proof on invited error. State v. Thomas, 150 Wn.2d

     821,844,83 P.3d 970 (2004).


I
1
           Because of the language in her statement on plea of guilty, we conclude that

     Heather Mercado did not invite or create the assigned error. The relevant paragraph of
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No. 31180-5-II1
State v. Mercado


the statement read, "lfthis crime involves prostitution, or a drug offense associated with

hypodermic needles, I will be required to undergo testing for human immunodeficiency

(HIV/AIDS) virus." CP at 16 (emphasis added). In logic parlance, the sentence is a

conditional "if-then" statement, comprised of an antecedent and consequent. The

sentence does not admit that Heather Mercado's crime involves a drug offense associated

with hypodermic needles. The sentence admits that,     if the drug offense falls into the
category, Mercado must undergo testing. The statement paraphrases RCW 70.24.340,

but does not admit that RCW 70.24.340 applies. The checkmark does not change the

conditional nature of the paragraph. Thus, the State has not proved an affirmative and

knowing assent to HIV testing. Defense counsel only informed Mercado and the court of

potentially applicable law.

       Heather Mercado, citing State v. Lewis, 15 Wn. App. 172, 177, 548 P.2d 587

(1976), asserts that she received no advantage in connection with the imposition of HIV

testing, and for this reason alone, the invited error doctrine cannot control. Later cases

suggest that the doctrine can apply in situations when the defendant does not benefit from

the error. We do not address this argument of Mercado since we otherwise reject the

invited error doctrine in this appeal.

       Even if Heather Mercado invited error, she can raise her assignment for the first

time on appeal. Our state high court has consistently held that the fixing of legal

punishments for criminal offenses is a legislative function. State v. Ammons, 105 Wn.2d

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No. 31180-5-III
State v. Mercado


175, 180, 713 P.2d 719,718 P.2d 796 (1986). A defendant cannot agree to punishment in

excess of that which the legislature has established. In re Pers. Restraint of West, 154

Wn.2d 204,214, 110 P.3d 1122 (2005); In re Pers. Restraint ofGoodwin, 146 Wn.2d

861,873-74,50 P.3d 618 (2002). Even where a defendant clearly invited the challenged

sentence by participating in a plea agreement, to the extent that he can show that the

sentencing court exceeded its statutory authority, the invited error doctrine will not

preclude appellate review. Goodwin, 146 Wn.2d at 872. Therefore, the invited error

doctrine does not apply to illegally imposed sentences, even if a defendant agrees to the

sentence. In re Pers. Restraint ofGreen, 170 Wn. App. 328, 332,283 PJd 606 (2012).

If Mercado's possession of methamphetamine is not a drug offense associated with the

use of hypodermic needles, then the court exceeded its limited statutory authority to order

HIVIAIDS testing.

                                  Preservation for Appeal

       Related to, but distinct from, the State's argument of invited error, the State also

contends Heather Mercado may not raise the applicability ofRCW 70.24.340 on appeal,

since she did not object to the sentence below and thus did not preserve the issue for

appeal. The State emphasizes that, when the trial court informed Mercado that she would

be tested for HIV/AIDS, she stated she understood and did not object. We reject this

second argument of the State and will reach the merits of Mercado's appeal.




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No. 31180-5-III
State v. Mercado


       Under RAP 2.5(a), an appellate court may refuse to hear a claim not preserved by

objection below. Thus, in general, a party may not raise an issue for the first time on

appeal that it did not raise below. State v. Moen, 129 Wn.2d 535, 543, 919 P.2d 69

(1996). But an unlawful sentence may be challenged for the first time on appeal. State v.

Warnock, 174 Wn. App. 608, 611, 299 P.3d 1173 (2013); State v. Ford, 137 Wn.2d 472,

477, 973 P .2d 452 (1999). A justification for the rule is that it tends to bring sentences in

conformity and compliance with existing sentencing statutes and avoids permitting

widely varying sentences to stand for no reason other than the failure of counsel to

register a proper objection in the trial court. Ford, 137 Wn.2d at 478; State v. Paine, 69

Wn. App. 873, 884, 850 P.2d 1369 (1993). Our Supreme Court has repeatedly held that

the existence of an erroneous sentence requires resentencing. Call, 144 Wn.2d at 333;

Brooks v. Rhay, 92 Wn.2d 876, 877,602 P.2d 356 (1979).

                                        HIVTesting

       Heather Mercado's challenge to the order directing her to undergo HIV testing

requires a review and interpretation ofRCW 70.24.340(1)(c). The statute reads, in

relevant part:

       Local health departments authorized under this chapter shall conduct or
       cause to be conducted pretest counseling, HIV testing, and posttest
       counseling of all persons:

             (c) Convicted of drug offenses under chapter 69.50 RCW lfthe court
       determines at the time ofconviction that the related drug offense is one
       associated with the use ofhypodermic needles.

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No. 31180-5-III
State v. Mercado



(Emphasis added.) Subsections (a) and (b) ofRCW 70.24.340 require HIV testing upon

the conviction of other crimes.

      As part of the public health chapter covering sexually transmitted diseases, RCW

70.24.340(1)(c) mandates HIV testing for all persons convicted ofa drug offense

associated with the use of a hypodermic needle. Testing is to occur soon after sentencing

upon an order of the sentencing judge. RCW 70.24.340(2). All tests are to be performed

by the local health department and must include both pre and posttest counseling. RCW

70.24.340.

      The purpose behind RCW 70.24.340, adopted in 1988, is declared in RCW

70.24.015:

      The legislature declares that sexually transmitted diseases constitute a
      serious and sometimes fatal threat to the public and individual health and
      welfare of the people of the state. The legislature finds that the incidence of
      sexually transmitted diseases is rising at an alarming rate and that these
      diseases result in significant social, health, and economic costs, including
      infant and maternal mortality, temporary and lifelong disability, and
      premature death.

      It is therefore the intent of the legislature to provide a program that is
      sufficiently flexible to meet emerging needs, deals efficiently and
      effectively with reducing the incidence of sexually transmitted diseases,
      and provides patients with a secure knowledge that information they
      provide will remain private and confidential.

      Heather Mercado posits that the trial court did not determine whether her

possession of methamphetamine was associated with hypodermic needles. She contends



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No. 31180-5-II1
State v. Mercado


a finding that she used a needle when possessing the methamphetamine on May 10,2012,

is a prerequisite to an order directing HIV testing under RCW 70.24J40(l)(c). The State

answers that Mercado's possession of methamphetamine is a drug offense that is

associated with the use of hypodermic needles and Mercado's actual use or nonuse of a

needle is irrelevant. Stated differently, the State asks us to focus on the nature of the

crime charged, and Heather Mercado requests we concentrate on her manner of

commission of the crime.

       When interpreting a statute, our fundamental objective is to determine and give

effect to the intent of the legislature. State v. Sweany, 174 Wn.2d 909, 914, 281 PJd 305

(2012). When possible, we derive legislative intent solely from the plain language

enacted by the legislature, considering the text of the provision in question, the context of

the statute in which the provision is found, related provisions, and the statutory scheme as

a whole. State v. Evans, 177 Wn.2d 186,192,298 P.3d 724 (2013).

       The phrase "related drug offense" in RCW 70.24.340(l)(c) has two potential

meanings, either referring to a particular defendanCs specific conduct or "drug offenses

under chapter 69.50 RCW" more generally. One manner of resolving the ambiguity is to

ask how the legislature could have better written the statute if it intended the meaning

forwarded by Heather Mercado. The most direct language would be to require "HIV

testing if the defendant, when committing the drug offinse, used a hypodermic needle."

Since the legislature used the wording, "the related drug offense is one associated with

                                             10 

No. 31180-5-III
State v. Mercado


the use of hypodermic needles," we could conclude that the legislature must have

intended drug offenses in a general sense. Nevertheless, we may also ask how the

legislature could have better written the statute if it intended the meaning advanced by the

State. The most direct language would be to require HIV testing "if the court determines

at the time ofthe conviction that the related drug is one associated with the use of

hypodermic needles." We removed the word "offense" from the statute to arrive at the

more direct language consistent with the state's interpretation. Since the statute could

have been drafted better to express either intent, ruminating on redrafting provides no

insight into resolving our ambiguity.

       We note that the State of Washington charged Heather Mercado with possession

ofa controlled substance in violation ofRCW 69.50.4013(1). This statute makes no

mention of methamphetamine and reads, "It is unlawful for any person to possess a

controlled substance unless the substance was obtained directly from, or pursuant to, a

valid prescription . ... " Id. Thus, at least in part, a court must review the defendant's

specific conduct, not simply the crime charged, in order to determine what drug she

possessed, since not all controlled substances are associated with hypodermic needles.

       In RCW 69.50.4013, the legislature criminalizes possession, delivery, and

possession with the intent to manufacture or deliver drugs. The statute does not

criminalize drug use. Neither possession nor delivery of a controlled substance is

associated with hypodermic needles. Therefore, examining the defendant's specific

                                             11 

No. 31180-5-111
State v. Mercado


conduct is helpful in determining whether HIV testing should be ordered.

       The posing of hypothetical situations that arise from the juxtaposition ofRCW

70.24.340(l)(c) with 69.50.4013(1) illustrate the need to base a determination of HIV

testing on the defendant's own conduct. If a defendant is convicted of delivery of a

controlled substance, would it be appropriate to determine if the defendant was using

drugs and the method of her use? If the defendant is convicted of being an accomplice to

possession or delivery of a controlled substance, is it inevitable to look at the facts of the

case rather than determine the identity of the drug in the case? If the defendant is an

accomplice to a delivery or possession of methamphetamine because he served as a

lookout or delivered money, did the legislature intend for the court to require the

defendant to be HIV tested because the drug was methamphetamine? What if the drug is

not associated with hypodermic needles, but, in a rare case before the court, the defendant

absorbed the controlled substance with a hypodermic needle? Ecstasy is associated with

use in pill form, but has on occasion been ingested with hypodermic needles. Did the

legislature intend to withhold HIV testing in such a case because the drug Ecstasy is not

associated with hypodermic needles? Or would the legislature wish HIV testing in such a
                                                                                                 I
                                                                                                 I
                                                                                                 1
case because the defendant used a hypodermic needle?

       We note a distinction in subparagraph (c) from subparagraphs (a) and (b) in RCW

70.24.340:




                                              12
No. 31180-5-II1
State v. Mercado


       (I) Local health departments authorized under this chapter shall conduct or
       cause to be conducted pretest counseling, HIV testing, and posttest
       counseling of all persons:
              (a) Convicted of a sexual offense under chapter 9A.44 RCW;
              (b) Convicted of prostitution or offenses relating to prostitution
       under chapter 9A.88 RCW; or
              (c) Convicted of drug offenses under chapter 69.50 RCW if the court
       determines at the time of conviction that the related drug offense is one
       associated with the use of hypodermic needles.

Subparagraphs (a) and (b) demand HIV testing upon the conviction of specified crimes

regardless if the trial court determines the crime involved additional conduct. This

distinction hints that the legislature intended more than a conviction of a particular drug

offense before requiring HIV testing for the offense.

       Based upon a careful reading ofRCW 70.24.340, we hold that HIV testing may

not be ordered unless the trial court enters a finding that the defendant used or intended

use of a hypodermic needle at the time of committing the crime.

                                 Reimbursement ofCosts

       Heather Mercado asks to be reimbursed for any funds she may have expended in

connection with HIV testing. We deny the request on two grounds. First, she has not

presented evidence that she has complied with the HIV testing requirement or paid for

any testing. Second, Mercado cites no authority that would allow this court to reimburse

her for the cost of testing. We need not address arguments unsupported by citation to

authority. RAP 10.3(a)(6); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801,

809, 828 P.2d 549 (1992).

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       No. 31180-5-III
       State v. Mercado


                                            CONCLUSION

             The trial court exceeded its statutory authority when it ordered Heather Mercado

       to be tested for HIV/AIDS under RCW 70.24.340, without the trial court first finding that

       Mercado used or intended use of a hypodermic needle at the time of committing the

       crime of possession of a controlled substance. We remand for a hearing on the question

       of whether HIV testing should be ordered consistent with the holding of this decision.




       WE CONCUR: 





       Siddoway, C.J.                                    Antosz, .




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