                                                                         FILED 

                                                                    FEBRUARY 18,2016 

                                                                 In the Office of the Clerk of Court 

                                                               W A State Court of Appeals, Division III 





         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


In the Matter ofthe Personal                 )
Restraint of:                                )         No. 33635-2-111
                                             )
                                             )
                                             )
                                             )
JOSE MENDEZ, JR.,                            )         UNPUBLISHED OPINION
                                             )
                     Petitioner.             )

      FEARING, J.   - In 2013, a jury found petitioner Jose Mendez, Jr. guilty of two

counts of possession of a controlled substance, one count of attempting to elude a

pursuing police vehicle, one count of first degree driving while license revoked, and one

count of felony while driving under the influence. The trial court imposed an exceptional

sentence upward due to Mendez's multiple current and prior offenses. This court

affirmed his judgment and sentence on appeal. See State v. Mendez, Commissioner's

Ruling no. 31580-1-111 (Wash. Ct. App. 2014).

      Jose Mendez seeks relief in this personal restraint petition by raising four
No. 33635-2-II1
In re Pers. Restraint ofMendez


arguments. First, the State presented insufficient evidence that he possessed the

controlled substances. Second, the trial court erred in failing to treat the eluding a police

officer, driving with a revoked license, and driving while under the influence charges as

the same criminal conduct for offender score purposes. Third, his trial and appeal

counsel were ineffective. Fourth, the sentencing court miscalculated the offender score

because it counted "washed out" convictions. We accept the State's concession that the

offender score erroneously included washed out offenses. Consequently, we remand for

recalculation of the offender score and resentencing. We find no merit in Mendez's

remaining contentions and otherwise dismiss the personal restraint petition.

                                          FACTS

       Because Jose Mendez challenges the sufficiency of the evidence to support his

convictions, we consider the evidence presented at trial in the light most favorable to the

State's case. During one October late evening in 2012, Sergeant Monty McNearney of

the Union Gap Police Department patrolled the city in a marked police car when

suddenly a sports utility vehicle (SUV) pulled in front of him and turned left. Sergeant

McNearney slammed his brakes to avoid a collision. He activated his emergency lights,

and the SUV stopped on the side of the road. McNearney parked about 25 feet behind

the SUV and shined his spotlight on the rear and driver's side of the vehicle. The interior

of the SUV was dimly lit due to tinted windows, but McNearney saw the face of the

driver peering at him in the driver's side mirror. The driver appeared Hispanic, with

                                              2

No. 33635~2~III
In re Pers. Restraint ofMendez


short hair and facial hair, and wore a red shirt. As McNearney walked to the rear of the

SUV, he saw the vehicle's brake lights activate. The SUV then accelerated onto the road.

       Sergeant Monty McNearney and officers in two other patrol cars pursued the

speeding SUV through Union Gap. In the course of the chase, the SUV breached red

lights and stop signs, hit a power pole, and collided with another car. Eventually,

McNearney turned a comer and found the SUV stopped midway down the block. He saw

the driver exit the SUV and run into the side yard of a nearby residence.

       Monty McNearney discovered Jose Mendez hiding under a bush in the residence's

yard. Mendez again ran, but officers caught and handcuffed him. He smelled of alcohol.

Police officers found a bag of cocaine outside the SUV but near the driver's side door, a

bag of marijuana inside the SUV, and two envelopes addressed to Mendez. When

McNeamey retraced Mendez's running route, McNearney recovered a bag of black tar

heroin lying on fallen leaves under the bush where Mendez earlier hid.

                                      PROCEDURE

      The State of Washington charged Jose Mendez with possession of cocaine and

heroin, attempting to elude pursuing officers, driving with a revoked license, and driving

under the influence. The jury found him guilty on all counts.

                                 LA W AND ANALYSIS

      To obtain relief in a personal restraint petition, Jose Mendez must show that he is

unlawfully restrained due to an error of constitutional magnitude that substantially

                                             3

No. 33635-2-II1
In re Pers. Restraint 0/ Mendez


prejudiced him or due to a fundamental defect of a nonconstitutional nature that caused a

complete miscarriage ofjustice. In re Pers. Restraint o/Finstad, 177 Wn.2d 501,506,

301 P.3d 450 (2013); In re Pers. Restraint o/Cook, 114 Wn.2d 802, 812, 792 P.2d 506

(1990). He may not rely on conclusory allegations. In re Pers. Restraint o/Lord, 152

Wn.2d 182, 188,94 P.3d 952 (2004). He must show by a preponderance of the evidence

that the error has caused him actual prejudice. Lord, 152 Wn.2d at 188.

                          Sufficiency of Evidence of Possession

       Jose Mendez challenges the sufficiency of the evidence to convict him of

possession of cocaine and heroin. Officers found the cocaine by the SUV and the heroin

under a bush where he hid. Mendez contends his mere proximity to the bags of

controlled substances fails to show he possessed dominion and control over them.

       A conviction based on insufficient evidence violates the due process clause of the

Fourteenth Amendment and therefore results in unlawful restraint. In re Pers. Restraint

o/Martinez, 171 Wn.2d 354,364,256 P.3d 277 (2011). To determine whether a

conviction rests on insufficient evidence, we consider the record in the light most

favorable to the defendant and ask whether any rational trier of fact could have found the

essential elements of the crimes beyond a reasonable doubt. Martinez, 171 Wn.2d at 364.

Questions of credibility, persuasiveness, and conflicting testimony are left to the jury.

Martinez, 171 Wn.2d at 364.




                                              4

No. 33635-2-III
In re Pers. Restraint ofMendez


       RCW 69.50.4013(1) renders it "unlawful for any person to possess a controlled

substance" unless pursuant to a valid prescription. Possession may be actual or

constructive. State   V.   Jones, 146 Wn.2d 328, 333,45 P.3d 1062 (2002). A defendant has

actual possession when he holds physical custody of the substance. State     V.   Jones, 146

Wn.2d at 333. Constructive possession comprises dominion and control over the

controlled substance, which means that the item may be reduced to actual possession

immediately. State    V.   Jones, 146 Wn.2d at 333. Mere proximity to the drug is

insufficient to establish possession over it. State v. Jones, 146 Wn.2d at 333. To

establish constructive possession, the court must look at the "totality of the situation" to

determine whether the jury can reasonably infer from the evidence that the defendant

possessed dominion and control. State v. Porter, 58 Wn. App. 57, 60, 791 P.2d 905

(1990).

       Law enforcement officers did not find the bag of cocaine or bag of heroin on Jose

Mendez's body. No witness saw him holding or dropping the bags. Thus, the State

cannot prove actual possession. Viewed in the light most favorable to the State, however,

substantial evidence supported the jury's reasonable conclusion that Mendez

constructively possessed both bags.

       Sergeant Monty McNeamey saw Jose Mendez hurriedly exit from the SUV

driver's seat and run to the side yard. No other person occupied the car. Law

enforcement did not observe any other persons in that area. The bag of cocaine lay

                                                5

No. 33635-2-II1
In re Pers. Restraint ofMendez


immediately outside the driver's door. Officers found a bag of marijuana on the SUV's

running board, and the location of the bag suggested that Mendez dropped the bag after

he opened the door. A jury could reasonably conclude that Mendez dropped the bag of

cocaine at the same time as he dropped the bag of marijuana.

       The bag of heroin found in the bush lay on top offallen leaves. A jury could

conclude that the bag lay only temporarily on the ground since the season was autumn

and leaves continued to fall. Jose Mendez fled from the bush as soon as Monty

McNeamey espied him. The jury could reasonably conclude that Mendez left the bag in

a hiding place and ned to draw attention from the heroin.

      Jose Mendez's proximity to the drugs, his action in fleeing the SUV, his conduct

in rushing from the hiding area of the bag of heroin, and the other circumstances support

the jury's reasonable inference that he possessed dominion and control over the drugs.

The evidence sufficed to show constructive possession.

                                 Same Criminal Conduct

      Jose Mendez next contends that the trial court erred in treating the charges of

eluding a pursuing officer, driving with a revoked license, and driving under the

influence as separate current offenses in his offender score. He argues that the

convictions should be counted as one offense because they constituted the same criminal

conduct.

      The trial court determines an offender's standard sentence range by calculating an

                                             6

No. 33635-2-III
In re Pers. Restraint ofMendez


offender score based on the number of current and prior convictions. RCW 9.94A.525;

RCW 9.94A.589(l)(a); State v. Graciano, 176 Wn.2d 531,535-36,295 P.3d 219 (2013).

If the court finds that some or all of the current offenses encompass the same criminal

conduct, those current offenses shall be counted as one crime. RCW 9.94A.589(l)(a);

Graciano, 176 Wn.2d at 536. Offenses must be treated as the same criminal conduct

when they are committed at the same time and place, require the same intent, and involve

the same victim. Graciano, 176 Wn.2d at 536. RCW 9.94A.589(l)(a) is construed

narrowly, and, if the defendant fails to prove any of its elements, the crimes are not the

same criminal conduct. Graciano, 176 Wn.2d at 540.

       We will not disturb a sentencing court's determination of same criminal conduct

unless the court abused its discretion or misapplied the law. Graciano, 176 Wn.2d at

536. If the record supports only one conclusion on whether crimes constitute the same

criminal conduct, we will conclude that the sentencing court abused its discretion in

arriving at a contrary result. Graciano, 176 Wn.2d at 537-38. But if the record supports

either conclusion, we defer to the sentencing court's discretion. Graciano, 176Wn.2d at

538.

       Because a determination of same criminal conduct involves the sentencing court's

exercise of discretion, the defendant's failure to request a finding of same criminal

conduct waives the issue. In re Pers. Restraint ofShale, 160 Wn.2d 489, 494-95, 158




                                             7

No. 33635-2-III
In re Pers. Restraint ofMendez


PJd 588 (2007). Jose Mendez did not request such a finding and consequently waived

the assignment of error.

                             Ineffective Assistance of Counsel

       Alternatively, Jose Mendez contends he received ineffective assistance of counsel

because his attorney failed to argue that the three current driving offenses constituted the

same criminal conduct. To prevail, he must show that his counsel's performance was

deficient and that this deficiency prejudiced him. Strickland v. Washington, 466 U.S.

668,687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322,

334-35,899 P.2d 1251 (1995). Prejudice occurs if there is a reasonable probability that,

but for the deficient performance, the outcome of the trial would have been different.

McFarland, 127 Wn.2d at 334-35. We strongly presume counsel provided effective

assistance, and Mendez must show an absence of legitimate strategic reasons to support

his counsel's challenged conduct. State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d

80 (2004); McFarland, 127 Wn.2d at 335.

       Jose Mendez fails to show either deficient performance or prejudice because he

does not show with a preponderance of the evidence that the driving offenses encompass

the same criminal conduct. One offense, driving with a revoked license, is a gross

misdemeanor and was not counted in the offender score. RCW 46.20.342(1)(a). The

remaining class C felony driving offenses were committed near the same time and place

and had the same victim, the public at large. RCW 46.61.024(1); RCW 46.61.502(6).

                                             8

No. 33635-2-111
In re Pers. Restraint ofMendez


Compare State v. Garza-Villarreal, 123 Wn.2d 42,47, 864 P.2d 1378 (1993).

Nevertheless, Mendez's objective criminal intent varied from one crime to the next. He

claims that eluding the police vehicle and driving under the influence were committed

with the one overall criminal purpose to drive the SUV illegally. This argument,

however, characterizes intent too broadly. In a rough sense, all crimes, or at least

intentional crimes, have one purpose of acting illegally.

       The crimes of eluding the police and driving under the influence did not further

one another. Jose Mendez decided to drive under the influence long before he

encountered Sergeant Monty McNeamey. Mendez later separately decided to elude a

police vehicle. Although the eluding activity allowed him to continue to drive impaired,

he more likely sought to avoid a police stop because he possessed controlled substances.

His objective intent changed from one driving crime to the next.

       We construe RCW 9.94A.589(a) narrowly to disallow most contentions that

mUltiple offenses constitute the same criminal conduct. State v. Graciano, 176 Wn.2d at

540 (2013); State v. Porter, 133 Wn.2d 177, 181,942 P.2d 974 (1997). With that policy

in mind, we conclude that Jose Mendez fails to show, with a preponderance of the

evidence, that the trial court could only have treated his driving offenses as the same

criminal conduct. Consequently, he does not show that his trial or appellate counsel

acted deficiently or prejudiced his case by failing to raise a same criminal conduct

argument.

                                             9

No. 33635-2-111
In re Pers. Restraint ofMendez


       Jose Mendez raises additional arguments in his reply brief to support a claim of

ineffective assistance of counsel. Because he raises the arguments for the first time in the

reply brief, we decline to address them. RAP 10.3(c); State v. Alton, 89 Wn.2d 737, 739,

575 P.2d 234 (1978).

                                      Offender Score

       The trial court counted nine earlier adult felonies in Jose Mendez's offender score.

Jose Mendez now contends four 1998 drug convictions and one 1998 conviction for

failure to return from work release should have washed out. During sentencing and by

agreement of the parties, the trial court did not include in the calculation a 1990 federal

conviction of conspiracy to distribute cocaine because the State had not obtained a

certified record of the judgment. The State now concedes that several class C felony

offenses were washed out due to the State's failure to provide a record of the federal

conviction. Under RCW 9.94A.525(2)(c), class C prior felonies are not included in the

offender score if, since the last date of release from confinement or entry ofjudgment and

sentence for a felony, the offender spent five consecutive years in the community without

committing a crime that resulted in a conviction.

       We agree that the trial court incorrectly calculated the offender score.

Consequently, we vacate the sentence and remand to the superior court for resentencing.

As a result, Jose Mendez's remaining contention regarding his trial counsel's and



                                             10 

No. 33635-2-111
In re Pers. Restraint ofMendez


appellate counsel's failures to challenge the offender score are moot. See State v. Hunley,

175 Wn.2d 901, 907, 287 P.3d 584 (2012).

                                     CONCLUSION

      We grant, in part, Jose Mendez's personal restraint petition. We remand the case

to the Yakima County Superior Court for resentencing. Otherwise, we dismiss the

petition. We refer Jose Mendez's request for counsel at the resentencing hearing to the

superior court. RAP 16.15(g).

      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.




WE CONCUR: 




Siddoway, C.J.




                                            11 

