                                                                                           FILED
                                                                                   COURT OF APPEALS
                                                                                         DIVISION II

                                                                                 2015 JAN 2.!      Pi 9 : 04
                                                                                  STAT    N4110:
                                                                                  BY




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II

STATE OF WASHINGTON,                                                No. 44646 -4 -II


                                 Respondent,


          v.




 SANDY LYNN FEHR,                                              UNPUBLISHED OPINION


                                 Appellant.


         WORSWICK, P. J. —    Sandy Fehr appeals her conviction and sentence for possession with

intent to deliver methamphetamine. 1 Fehr argues that insufficient evidence supported her intent

to deliver the methamphetamine in her possession and that the trial court erred at sentencing by

including 14 alleged prior felony convictions in her offender score. We hold that sufficient
evidence supports Fehr' s conviction, but that because the State failed to prove Fehr' s alleged

prior convictions by a preponderance of the evidence, the trial court erred by including them in
her offender score. Therefore, we affirm Fehr' s conviction, but vacate her sentence and remand

for resentencing.




1
    RCW 69. 50. 206( d)( 2); former RCW 69. 50. 401 ( 2005).
No. 44646 -4 -II



                                                       FACTS


         Detectives Seth Libbey and Raymond Hartley took Sandy Fehr into custody under an

arrest warrant. Detective. Hartley searched Fehr and found methamphetamine in two separate

places on Fehr' s person. In Fehr' s sweatshirt pocket, Detective Hartley found a purse with a

pipe, pills, and approximately one gram of methamphetamine. In Fehr' s pants pocket, Detective

Hartley found a plastic " boggle" containing 5. 1 grams of methamphetamine.

         Detective Hartley testified that 5 grams of methamphetamine could be sold for

approximately $500, and that it was not typical for a user to carry 5 grams of methamphetamine

on her person. Detective Libbey testified that the methamphetamine dealers he interacts with

and arrests often " pinch" off a piece of the methamphetamine for their personal use, and sell the

rest to pay back their dealer. Detective Libbey testified that methamphetamine users often

smoke methamphetamine through a pipe.

         The State charged Fehr with one count of possession with intent to deliver

methamphetamine, and a jury found her guilty as charged. After the jury' s verdict, based in part

on the State' s allegation that Fehr had three prior bail jumping2 convictions, the trial court

ordered Fehr' s immediate remand into custody. After the trial court' s ruling, Fehr stated the

following on her own behalf:

           Fehr]: When I     got   those bail jumps    a   long   time   ago.   That was because there was
          an issue going on where I had gotten charged but they' d gotten dismissed with on
          a ...   case   because I' d   walked   in   on   something     and watched   these guys— seeing

          these guys beating this man up. And the only reason I didn' t come to court and bail
         jumped    on those    issues   was   because my     children and —      lived in La Center and the
          people who      had done   that ...    had literally went down there and shot bullets into


 2
     RCW 9A.76. 170.
No. 44646 -4 -II



         my   ex —   ex- husband' s house and threatened my children. So I went on the run and
         hid until all of that was over and then afterwards turned myself in.
          Trial Court]:    Okay.
          Fehr]:    So only —only,       that was the only reason I ever bail jumped because of fear
         for my children' s lives.

Verbatim Report of Proceedings ( VRP) at 180.


         At sentencing, the State provided the trial court with a summary of Fehr' s 14 alleged
                                3
prior   felony   convictions,       including 10 convictions for violating the Uniform Controlled

Substances Act,4 3 convictions for bail jumping, and 1 conviction for rendering criminal

assistance.5 Other than the summary, the State did not provide any evidence supporting the

convictions' existence.



          At sentencing, Fehr' s trial counsel did not object to inclusion of these alleged prior

convictions in Fehr' s offender score, stating the following:

          Prior to [ Fehr' s] conviction in the most recent case, she does have a lot of points.
          However,     almost all ofthose —most of those points are derived from possession of

          drug   cases.   There is one possession with intent to deliver on a conviction within
          that group, but clearly the —the         vast   majority   of   those are   possession and —and of

          course there arethere are a couple bail jumps in there. I believe those are Class
          C felonies. So,    although    the tally is high, before last week' s verdict case, if
                                           the —

          you will, there was only one possession with intent case in that group.

VRP at 187. The trial court included the 14 alleged prior convictions in Fehr' s offender score,

resulting in an offender score of 14. Based on that offender score, the trial court imposed 60




3 Fehr appeals 3 of these alleged prior convictions in the linked case, State v. Fehr, filed, No.
44643 -0 -II, (Wash. Ct. App. Mar. 13, 2013).


 4 Chapter 69. 50 RCW.

 5 Former RCW 9A.76. 070 ( 1982).


                                                              3
No. 44646 -4 -II



months imprisonment, to run consecutively with the charges in the linked case, No. 44643 -0 -II.

Fehr appeals.


                                                        ANALYSIS


             I. SUFFICIENCY OF THE EVIDENCE: INTENT To DELIVER METHAMPHETAMINE

       Fehr argues that insufficient evidence supported her intent to deliver the

methamphetamine in her possession. We disagree.


        When a defendant challenges the sufficiency of the evidence supporting her conviction,

we view the evidence in the light most favorable to the State and determine whether any rational

trier of fact could have found the charged crime' s elements beyond a reasonable doubt. State v.

Hosier, 157 Wn.2d 1, 8, 133 P. 3d 936 ( 2006); State v. Salinas, 119 Wn.2d 192, 201, 829 P. 2d


1068 ( 1992). "`      A claim of insufficiency admits the truth of the State' s evidence and all

inferences that reasonably         can    be drawn therefrom. "'          State v. Moles, 130 Wn. App. 461, 465,

123 P. 3d 132 ( 2005) ( quoting Salinas, 119 Wn.2d                  at   201).    Circumstantial evidence is not any

less reliable or probative than direct evidence in reviewing the sufficiency of the evidence

supporting a jury verdict. State v. Delmarter, 94 Wn.2d 634, 638, 618 P. 2d 99 ( 1980).
        Under RCW 69. 50. 206( d)( 2),             methamphetamine           is   a " controlled substance."   RCW


69. 50. 401( 1) states in part:

           I] t is   unlawful   for any   person   to ...   possess with intent to manufacture or deliver,
        a controlled substance.



 Convictions for possession with intent to deliver a controlled substance are highly fact specific

 and require substantial corroborating evidence. See State v. Brown, 68 Wn. App. 480, 483 -85,

 843 P. 2d 1098 ( 1993).        The mere fact of possession of a large quantity of drugs, and a detective' s

 opinion   testimony     that the quantity     was more      than   a    drug    user would   typically carry for   personal
No. 44646 -4 -II



use, do not provide adequate corroborating evidence to establish intent to deliver. State v.

Campos, 100 Wn. App. 218, 222, 998 P. 2d 893 ( 2000).

       Here, the evidence showed more than the mere fact of possession of a large quantity of

drugs and a detective' s opinion testimony that the quantity was more than a methamphetamine

user would typically carry. Upon searching Fehr, Detective Hartley found a pipe, pills, and

approximately one gram of methamphetamine in Fehr' s sweatshirt pocket. Detective Hartley

also found ,another 5. 1 grams of methamphetamine in Fehr' s pants pocket. Detective Hartley

testified that 5 grams of methamphetamine is worth approximately $500, and is a far larger

quantity than a methamphetamine user would typically carry. Detective Libbey testified that the
methamphetamine dealers he interacts with and arrests often " pinch" off a piece of the


methamphetamine for their personal use and sell the rest to pay back their dealer. Detective

Libbey also testified that methamphetamine users often smoke methamphetamine through a pipe.

        Viewing this evidence in the light most favorable to the State, a rational trier of fact could
have found beyond a reasonable doubt that Fehr possessed a large amount of methamphetamine,

placed a small amount of it in her sweatshirt pocket with her pipe for personal use, and placed

the remaining 5. 1 grams in her pants pocket with intent to sell it. Thus, substantial evidence

supports that Fehr had intent to deliver the methamphetamine in her possession.

                                II. OFFENDER SCORE CALCULATION


        Fehr argues that the State must prove convictions to a jury beyond a reasonable doubt

before the trial court may include them in a defendant' s offender score and alternatively argues

that the State failed to prove Fehr' s prior convictions by a preponderance of the evidence. We




                                                   5
No. 44646 -4 -II



hold that the State must prove convictions only to a judge by a preponderance of the evidence,

but that here, the State failed to do so.


          Sentencing errors resulting in unlawful sentences may be raised for the first time on

appeal.   State   v.   Bahl, 164 Wn.2d 739, 744, 193 P. 3d 678 ( 2008).        We review offender score


calculations     de    novo.   State   v.   Moeurn, 170 Wn.2d 169, 172, 240 P. 3d 1158 ( 2010). The


sentencing court acts without statutory authority when imposing a sentence based on a

miscalculated offender score. In re Pers. Restraint ofJohnson, 131 Wn.2d 558, 568, 933 P. 2d

1019 ( 1997).


A.        Burden ofProving the Existence ofPrior Convictions

          Fehr argues that to include prior convictions in a defendant' s offender score, the State

must prove their existence to a jury beyond a reasonable doubt, rather than to a judge by a

preponderance of the evidence, citing the United States Supreme Court' s recent decision in
Alleyne    v.   United States, _       U. S. _,   133 S. Ct. 2151, 186 L. Ed. 2d 314 ( 2013) and the 3 part


balancing test from Mathews v. Eldridge, 424 U.S. 319, 334 -35, 96 S. Ct. 893, 47 L. Ed. 2d 18
 1976).    We disagree.


          The use of prior convictions as a basis for sentencing is constitutionally permissible

provided either the State proves their existence to a judge by a preponderance of the evidence, or

 a defendant affirmatively acknowledges their existence. State v. Witherspoon, 180 Wn.2d 875,
 892, 329 P. 3d 888 ( 2014);           State v. Mendoza, 165 Wn.2d 913, 927 -28, 205 P. 3d 113 ( 2009).

 Following the briefing in this case, our Supreme Court considered Alleyne 's effect on this rule,

 and held that the State must prove the prior convictions' existence to a judge by a preponderance

 of   the evidence.      Witherspoon, 180 Wn.2d at 891 -92. And use of the balancing test in Mathews,



                                                             6
No. 44646 -4 -II



a case involving termination of social security benefits, is inappropriate for analyzing the

calculation of offender scores because this issue can arise in only a criminal context. See State v.

Hurst, 173 Wn.2d 597, 601 -03, 269 P. 3d 1023 ( 2012); State v. Brousseau, 172 Wn.2d 331, 346


n. 8,   259 P. 3d 209 ( 2011);   State v. Heddrick, 166 Wn.2d 898, 904 -05 n.3, 215 P. 3d 201 ( 2009).

Thus, the State must prove prior convictions only to a judge by a preponderance of the evidence,

not to a jury beyond a reasonable doubt.

B.         Application to Fehr' s Case


           Fehr argues that the trial court erred by including 14 alleged prior felony convictions in

her offender score because the State failed to prove these alleged prior convictions' existence.

The State argues that the trial court properly included the alleged prior convictions because Fehr

affirmatively acknowledged their existence. We agree with Fehr.

           While a certified copy of the judgment provides the best evidence to prove a prior

conviction' s existence, a sentencing court may rely on other comparable documents or

transcripts as long as they provide minimum indicia of reliability. In re Pers. Restraint of
Adolph, 170 Wn.2d 556, 568 -69, 243 P. 3d 540 ( 2010).         But an unsupported criminal history

 summary, standing alone, is insufficient to establish the existence of a defendant' s prior

 convictions by a preponderance of the evidence. State v. Hunley, 175 Wn.2d 901, 917, 287 P. 3d
 584 ( 2012).


            To make an affirmative acknowledgment of a conviction' s existence, the defendant must

 make an affirmative acknowledgement of `facts and information introduced for the purposes of

 sentencing."     Mendoza, 165 Wn.2d at 928. Neither the defendant' s failure to object to the State' s

 statement of criminal history, nor the defendant' s agreement with the ultimate sentencing



                                                        7
No. 44646 -4 -II


recommendation, constitutes an affirmative acknowledgement of the State' s asserted criminal


history. Hunley, 175 Wn.2d at 917; Mendoza, 165 Wn.2d at 928.

        Here, the State provided only its unsupported summary of Fehr' s alleged prior

convictions. This, standing alone, is insufficient to establish the existence of Fehr' s alleged prior

convictions by a preponderance of the evidence. Hunley, 175 Wn.2d at 917.

        At a hearing on post-conviction bail, Fehr made general statements about her reasons for
                And Fehr'                            that Fehr had "   a   lot   of points."   VRP at 187.
jumping bail.               s counsel acknowledged




These statements do not qualify as affirmative acknowledgments of Fehr' s alleged prior

convictions because these statements were too general to clearly state which, how many, or what

type of convictions Fehr acknowledged. Thus, the State failed to meet its burden of proving the

existence of Fehr' s 14 convictions by a preponderance of the evidence.

        We affirm Fehr' s conviction, but vacate Fehr' s 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:




  2
  Lee, J.




 Sutton, J.




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