                                                               FILED
                                                             JULY 2, 2019
                                                    In the Office of the Clerk of Court
                                                   WA State Court of Appeals, Division III




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

STATE OF WASHINGTON,                         )         No. 36646-4-III
                                             )
                    Respondent,              )
                                             )
             v.                              )         UNPUBLISHED OPINION
                                             )
DAVID WILLIAM BROWN,                         )
                                             )
                    Appellant.               )

      LAWRENCE-BERREY, C.J. — David Brown appeals his sentence after his

conviction for possession of a controlled substance, methamphetamine, with intent to

deliver. He argues he received ineffective assistance of counsel because his attorney

failed to request a drug offender sentencing alternative (DOSA). We determine that

Brown cannot establish a reasonable probability that the trial court would have granted a

DOSA and affirm.
No. 36646-4-III
State v. Brown


                                          FACTS

      Police served a search warrant at Brown’s residence for suspected drug activity.

Detective Kenny Lutz detained Brown and read him his Miranda1 rights. Brown waived

his rights and spoke with Detective Lutz. Brown confessed to Detective Lutz that he was

getting methamphetamine from a few people and only “middle-manning”—just dealing to

some of his friends to help them out. Report of Proceedings (RP) at 154. Brown told

Detective Lutz that the police would find scales and methamphetamine in “baggies” and

explained where those items were located in his home. Brown said most of his deals

were in smaller gram amounts. The search of Brown’s home revealed one baggie with

one gram of methamphetamine, less than one-tenth of one gram of methamphetamine on

a scale plate, and more than 20 small baggies, which did not contain methamphetamine.

      Detective Lutz also executed a search warrant on Brown’s cell phone. Detective

Lutz uncovered many text messages to and from Brown that evidenced he was dealing

methamphetamine. There was a message about selling an “eight ball,” or 3.5 grams of

methamphetamine. RP at 165. There were messages from Brown about the price for two

ounces of methamphetamine. Detective Lutz testified that two ounces of

methamphetamine is much more than a “personal use” amount. RP at 170-71.


      1
          Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

                                             2
No. 36646-4-III
State v. Brown


       Brown was charged with possession of a controlled substance, methamphetamine,

with intent to deliver, together with a school bus route stop enhancement. Brown

proceeded to trial, and a jury found him guilty.

       The court subsequently sentenced Brown. The standard range was 36 to 44

months with the school bus route stop enhancement. The State recommended a sentence

of 40 months because of Brown’s history of dealing methamphetamine evidenced through

the text messages. The State acknowledged that Brown had no felony criminal history

and only a driving under the influence of intoxicating alcohol or drugs in Nevada in 2001.

Brown’s counsel asked for an exceptional downward departure from the sentencing

range because Brown was older, he had no prior felony criminal history, and he

cooperated fully with law enforcement, which in turn weighed heavily against him at trial.

The court sentenced Brown to 36 months, the low end of the standard range sentence.

       Brown timely appealed to this court.

                                        ANALYSIS

       INEFFECTIVE ASSISTANCE OF COUNSEL

       Brown contends he received ineffective assistance of counsel because his trial

counsel failed to request a DOSA sentence. We disagree.




                                              3
No. 36646-4-III
State v. Brown


       To protect a defendant’s right to counsel, a defendant has the right to receive

effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984). An allegation of ineffective assistance of counsel is a

mixed question of law and fact that we review de novo. State v. Sutherby, 165 Wn.2d

870, 883, 204 P.3d 916 (2009) To determine whether counsel provided effective

assistance, we apply a two-pronged test: (1) whether counsel’s performance was deficient

and (2) whether that deficient performance prejudiced the defendant to an extent that

changed the result of the trial. Strickland, 466 U.S. at 687. We can address the second

prong initially “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack

of sufficient prejudice.” Id. at 697.

       To show prejudice, the defendant must show that without the errors, there is a

“reasonable probability” that the result of the proceeding would have been different. Id.

at 694. A “reasonable probability” is a “probability sufficient to undermine confidence in

the outcome.” Id.

       Even if Brown’s counsel requested a DOSA sentence, we are not convinced there

was a “reasonable probability” that the court would have granted his request. A trial

court has the discretion to grant a DOSA sentence if the defendant meets all of the

statutory criteria. RCW 9.94A.660. Under RCW 9.94A.660:


                                              4
No. 36646-4-III
State v. Brown


      (1) An offender is eligible for the special drug offender sentencing
      alternative if:
             (a) The offender is convicted of a felony that is not a violent offense
      or sex offense and the violation does not involve a sentence enhancement
      under RCW 9.94A.533(3) or (4);
             (b) The offender is convicted of a felony that is not a felony driving
      while under the influence of intoxicating liquor or any drug under RCW
      46.61.502(6) or felony physical control of a vehicle while under the
      influence of intoxicating liquor or any drug under RCW 46.61.504(6);
             (c) The offender has no current or prior convictions for a sex
      offense at any time or violent offense within ten years before conviction of
      the current offense, in this state, another state, or the United States;
             (d) For a violation of the Uniform Controlled Substances Act under
      chapter 69.50 RCW or a criminal solicitation to commit such a violation
      under chapter 9A.28 RCW, the offense involved only a small quantity of
      the particular controlled substance as determined by the judge upon
      consideration of such factors as the weight, purity, packaging, sale price,
      and street value of the controlled substance;
             (e) The offender has not been found by the United States attorney
      general to be subject to a deportation detainer or order and does not become
      subject to a deportation order during the period of the sentence;
             (f) The end of the standard sentence range for the current offense is
      greater than one year; and
             (g) The offender has not received a drug offender sentencing
      alternative more than once in the prior ten years before the current offense.

      Although Brown may have met most the criteria, he does not meet subsection

(1)(d). Brown argues that the only methamphetamine found in his home was one gram in

one baggie and less than one-tenth of one gram on a scale, which constitutes a small

amount. This may be true, but Brown was convicted for possession with intent to deliver,

not mere possession. There was substantial evidence that he engaged in many drug deals.


                                            5
No. 36646-4-III
State v. Brown


Detective Lutz uncovered messages that indicated Brown was selling as much as two

ounces of methamphetamine per transaction—much more than a “personal use” amount.

Therefore, Brown would not meet the criteria for a DOSA sentence because the offense

did not involve a small quantity. RCW 9.94A.660(1)(d). And a trial court has

discretion to grant a DOSA sentence only if the defendant meets all the criteria.

RCW 9.94A.660(1).

       Moreover, the trial court seemed dissatisfied with Brown’s level of involvement,

personal knowledge, and sophistication of methamphetamine dealing.

       You know, what struck me kind of just as dicta to the case and maybe part
       of the sentencing is that you’re highly sophisticated in the language and the
       art of methamphetamine dealing. From the testimony that I heard listening
       to some of the different transactions that were occurring around you, with
       you, talking about gas, talking about full tanks, talking about all sorts of—
       and—and I think one of your comments to one of the people that was
       looking for some dope is an eight—something about an eight ball is what I
       remember and you said don’t talk any more like that to me. I mean so you
       were very sophisticated in the evidence that I heard about the—the art of—
       of methamphetamine dealing.

RP at 233-34. With this insight into the trial court’s considerations, we are not convinced

that even if requested, the trial court would have granted Brown’s DOSA request.

       Because Brown cannot show with a reasonable probability that the trial court

would have granted his DOSA request if his counsel requested it, Brown cannot establish

that he received ineffective assistance of counsel.

                                             6
No. 36646-4-III
State v. Brown


      Brown requests waiver of appellate costs if he does not prevail. The State has

agreed not to request appellate costs. None are imposed.

      Affirmed.

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

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.


                                         Lawrence-Berr~y, C.J.     ~       c.. ~-
WE CONCUR:




                                         Pennell, J.




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