                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                        December 22, 2015




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    STATE OF WASHINGTON,                                             No. 46707-1-II

                                Respondent,

          v.

    ROBERT BURTON FALCONER, JR.,                              UNPUBLISHED OPINION

                                Appellant.

         JOHANSON, C.J. — Robert Burton Falconer, Jr. appeals his jury trial convictions of three

counts of unlawful delivery of a controlled substance, each with a school bus route stop sentencing

enhancement, and two counts of unlawful possession of a controlled substance. We hold that (1)

the trial court did not err when it refused to consider the pretrial Knapstad1 motion to dismiss the

sentencing enhancements because CrR 8.3(c)(3) precludes the trial court from dismissing

sentencing enhancements unless it is also dismissing the underlying charges, (2) Falconer waived

his legal financial obligation (LFO) argument by failing to challenge the LFOs at sentencing, (3)

there was no double jeopardy violation, (4) Falconer waived his due process argument because he

failed to raise the issue below, and (5) his ineffective assistance of counsel argument has no merit.

Accordingly, we affirm.


1
    State v. Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986).
No. 46707-1-II


                                               FACTS

          In controlled-buy operations on April 15, April 16, and May 1, 2014, a confidential

informant (CI) purchased drugs from Falconer. Based on these controlled buys and controlled

substances discovered upon Falconer’s arrest,2 the State charged Falconer with three counts of

unlawful delivery of a controlled substance and two counts of unlawful possession of a controlled

substance. It also alleged that Falconer had committed the three unlawful delivery offenses within

a school bus route stop zone.

          Before trial, Falconer filed a pro se3 motion to dismiss the “school zone [e]nhancements,”

arguing that the drug transactions occurred in a private home when no minor children were present

and was, therefore, not part of a “school zone” under the federal constitution. Clerk’s Papers (CP)

at 9. Citing a statutory affirmative defense to the enhancement, RCW 69.50.435(4), 4 the State

responded that the trial court could not consider this pretrial motion because Falconer was raising




2
    Falconer was arrested on May 7.
3
  Falconer was originally represented by counsel, but Falconer moved for new counsel. After the
trial court denied this request, Falconer proceeded pro se with defense counsel as his stand-by
counsel.
4
    RCW 69.50.435(4) provides in part,
       It is an affirmative defense to a prosecution for a violation of this section that the
       prohibited conduct took place entirely within a private residence, that no person
       under eighteen years of age or younger was present in such private residence at any
       time during the commission of the offense, and that the prohibited conduct did not
       involve delivering, manufacturing, selling, or possessing with the intent to
       manufacture, sell, or deliver any controlled substance in RCW 69.50.401 for profit.
       The affirmative defense established in this section shall be proved by the defendant
       by a preponderance of the evidence.

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No. 46707-1-II


an affirmative defense that required the presentation of evidence. The trial court reserved ruling

on the motion until after the parties had presented their evidence.

        After the evidence was presented, neither party asked the trial court to address the motion

to dismiss the enhancements. There were also no jury instructions or argument related to the

affirmative defense.

        The jury found Falconer guilty as charged. It also found that he had committed each of the

unlawful delivery offenses within 1,000 feet of a school bus route stop.

        At the September 2, 2014 sentencing hearing, the trial court imposed discretionary and

nondiscretionary LFOs without specifically addressing Falconer’s present or future ability to pay.

Falconer did not object to the imposition of the LFOs or the trial court’s failure to address his

ability to pay. The judgment and sentence contains boilerplate language stating that the trial court

had considered Falconer’s ability to pay LFOs and found that he had the ability or likely future

ability to pay.

        At sentencing, Falconer asked for leniency because he had not intended to take the case to

trial and only did so after his then-counsel had “actually opened the CI packet” without informing

him (Falconer), apparently revealing the identity of the CI and precluding the State from making

any more plea offers.5 2B Report of Proceedings (RP) at 403. The State responded that before

counsel had opened the CI packet, Falconer “had at least . . . three to four opportunities to take

advantage of a plea offer in this case and each time he changed his mind.” 2B RP at 404. The

State also commented that it had reviewed Falconer’s jail calls and every time he contacted friends



5
 It appears that it was the prosecutor’s policy to make any plea offers contingent on the defense
not opening the CI packet and revealing the CI’s identity.

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No. 46707-1-II


or family “he was very adamant that he was not going to take any plea and he was going to go to

trial on this.” 2B RP at 404.

          Falconer appeals his convictions, the sentencing enhancements, and his LFOs.

                                               ANALYSIS

                         I. MOTION TO DISMISS SENTENCING ENHANCEMENTS

          Falconer first argues that the trial court erred when it refused to consider his pretrial motion

to dismiss the sentencing enhancements. We disagree.

          A defendant may move before trial to dismiss a criminal charge for insufficient evidence

to establish a prima facie case. RAP 8.3(c)(3). But RAP 8.3(c)(3), which sets out the procedures

to be followed for a Knapstad motion,6 specifically precludes the trial court from dismissing a

sentencing enhancement or aggravating circumstance without also dismissing the underlying

charge. See also State v. Meacham, 154 Wn. App. 467, 473-74, 225 P.3d 472 (2010). Because

the trial court was not authorized to dismiss only the sentencing enhancements and Falconer did

not move to dismiss the underlying charges, the trial court did not err in refusing to consider

Falconer’s pretrial motion to dismiss the sentencing enhancements.7 Accordingly, this argument

fails.8




6
  See State v. Newcomb, 160 Wn. App. 184, 188 n.2, 246 P.3d 1286 (2011) (“The procedure to be
followed for Knapstad motions is delineated by CrR 8.3(c).”).
7
 Although the trial court did not rely on CrR 8.3(c)(3) when it refused to consider the motion to
dismiss, we may affirm the trial court on any ground supported by the record, including those not
explicitly articulated by the trial court. State v. Norlin, 134 Wn.2d 570, 582, 951 P.2d 1131 (1998).
8
 We also note that even if the trial court had considered this motion to dismiss it would not have
been successful. To prove the affirmative defense, Falconer would have had to prove that the
“prohibited conduct did not involve” delivering the controlled substance “for profit.” RCW
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No. 46707-1-II


                                   II. LFO CHALLENGE WAIVED

       Falconer next challenges his LFOs, arguing that the trial court failed to make the necessary

findings on his ability to pay. He invites us to exercise our discretion and address this issue despite

his failure to object to the LFOs at sentencing. We decline this invitation.

       When an appellant fails to raise an issue below, we may refuse to review it. RAP 2.5(a).

In State v. Blazina, 182 Wn.2d 827, 832-33, 344 P.3d 680 (2015), our Supreme Court reaffirmed

that appellate courts in this state may decline to review the imposition of discretionary LFOs where

the defendant failed to object to the imposition of LFOs at sentencing.

       In May 2013, we issued our opinion in State v. Blazina, 174 Wn. App. 906, 911, 301 P.3d

492 (2013), remanded by 182 Wn.2d 827, wherein we declined to review the trial court’s

imposition of discretionary LFOs because the defendant did not object at sentencing. Thus, by

May 2013, defendants were on notice that they must object to the imposition of LFOs in order to

preserve the error for appellate review. Because Falconer was sentenced in September 2014, well

after May 2013, and he did not object to the trial court’s imposition of LFOs at sentencing, we

decline his invitation to review this issue for the first time on appeal. See State v. Lyle, 188 Wn.

App. 848, 852, 355 P.3d 327 (2015).

                                              III. SAG

       In his pro se SAG, Falconer claims violations of his double jeopardy and due process rights

and ineffective assistance of counsel. These arguments either fail or were waived.




69.50.435(4). Not only did Falconer’s motion fail to mention this element, Falconer testified that
selling drugs was the “only option” he had for making an income. 2A RP at 350.
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No. 46707-1-II


                                    A. NO DOUBLE JEOPARDY

       Falconer argues that the three unlawful delivery of a controlled substance convictions

violated double jeopardy. This argument fails.

       Any time a defendant violates the same statute multiple times, double jeopardy could

attach. State v. Adel, 136 Wn.2d 629, 634, 965 P.2d 1072 (1998). When faced with multiple

violations of the same statute, we apply the “unit of prosecution” test to determine if there is a

double jeopardy issue. Adel, 136 Wn.2d at 634. Under that test, we review the statute in question

to determine the criminal conduct or unit of prosecution that the legislature intended to be a

punishable act. State v. Tvedt, 153 Wn.2d 705, 710, 107 P.3d 728 (2005).

       “Although unit of prosecution cases are of constitutional dimension, they are resolved by

questions of statutory interpretation and legislative intent.” In re Pers. Restraint of Davis, 142

Wn.2d 165, 172, 12 P.3d 603 (2000). “In determining legislative intent as to the unit of

prosecution, we first look to the relevant statute. The meaning of a plain, unambiguous statute

must be derived from the statutory language.” Tvedt, 153 Wn.2d at 710-11.

       RCW 69.50.401(1) provides, in part, that “it is unlawful for any person to . . . deliver . . . a

controlled substance.” Thus, unlawful delivery of a controlled substance requires the State to

prove that the defendant (1) delivered a controlled substance and (2) knew that the substance

delivered was a controlled substance. RCW 69.50.401(1); State v. Evans, 80 Wn. App. 806, 814

n.17, 911 P.2d 1344 (1996). Given the language of the statute, it is clear that the legislature

intended each separate delivery to be the unit of prosecution. Because each of the deliveries here

were on different days and each was a completed crime once the delivery occurred, the deliveries

were sufficiently distinguishable to qualify as separate deliveries to avoid any double jeopardy


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No. 46707-1-II


violation. See State v. Allen, 150 Wn. App. 300, 314, 207 P.3d 483 (2009) (no double jeopardy

when defendant was charged with multiple violations of a no-contact order when contacts took

place on different days). This argument fails.

                                         B. DUE PROCESS

       Falconer next argues for the first time on appeal that “law enforcement[’s]” failure to notify

him of each charge when the crime was complete violated his right to due process. SAG (Apr. 20,

2015) at 2. Essentially, he is asserting a prosecutorial delay claim. Falconer has waived this issue

because he did not object on this ground in the trial court and he fails to show, on this record, that

this is a manifest constitutional error. See RAP 2.5(a)(3).

       An “appellate court may refuse to review any claim of error [that] was not raised in the

trial court.” RAP 2.5(a). We may, however review an unpreserved error if the claimed error is a

“manifest error affecting a constitutional right.” RAP 2.5(a)(3). “‘If the facts necessary to

adjudicate the claimed error are not in the record on appeal, no actual prejudice is shown and the

error is not manifest.’” State v. O’Hara, 167 Wn.2d 91, 99, 217 P.3d 756 (2009) (quoting State v.

McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995)).

       When asserting a prosecutorial delay claim, a defendant must first establish that the

charging delay caused prejudice. State v. Oppelt, 172 Wn.2d 285, 290, 257 P.3d 653 (2011). If

he meets that burden, the court then examines the reasons for the delay and balances the delay

against the prejudice to the defendant to determine if the delay violated the fundamental

conceptions of justice. Oppelt, 172 Wn.2d at 290 (quoting State v. Salavea, 151 Wn.2d 133, 139,

86 P.3d 125 (2004)). Because Falconer did not raise this issue in the trial court, there is nothing




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No. 46707-1-II


in the record explaining the reason for delay. Thus, any potential due process violation was not

manifest, and we hold that Falconer has waived this issue.

                             C. INEFFECTIVE ASSISTANCE OF COUNSEL

       Finally, Falconer appears to assert that his appointed counsel provided ineffective

assistance because he opened a CI packet without Falconer’s knowledge, thereby depriving him

of the possibility of reaching a plea bargain with the State. This argument fails on this record.

       To establish ineffective assistance of counsel, Falconer must show that his counsel’s

representation was deficient and that this deficient representation was prejudicial. State v. Strange,

188 Wn. App. 679, 687-88, 354 P.3d 917 (quoting McFarland, 127 Wn.2d at 334-35), review

denied, No. 91940-2 (Wash. Nov. 3, 2015). Falconer does not establish prejudice based on this

record. Even assuming, but not deciding, that his counsel provided deficient representation when

he opened the CI packet, Falconer does not show that the State would have offered him an

acceptable plea if this had not occurred. Accordingly, this argument fails.

       In summary, we hold that (1) the trial court did not err when it refused to consider

Falconer’s pretrial motion to dismiss the sentencing enhancements, (2) Falconer waived his LFO

argument by failing to challenge the imposition of LFOs at sentencing, (3) there was no double

jeopardy violation, (4) Falconer waived his due process argument because he failed to raise the




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No. 46707-1-II


issue below, and (5) his ineffective assistance of counsel claim has no merit. Accordingly, we

affirm Falconer’s convictions, enhancements, and LFOs.

        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.



                                                    JOHANSON, C.J.
 We concur:



 WORSWICK, J.




 MAXA, J.




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