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

STATE OF WASHINGTON,                      No. 67127-8-1


               Respondent,

          v.



STEPHEN A. JONES,                         UNPUBLISHED OPINION


               Appellant.                 FILED: March 4, 2013


      Verellen, J. — Stephen Jones appeals his conviction for felony driving under the

influence (DUI) and the misdemeanors of driving while license suspended or revoked in

the first degree and nonfelony hit and run. Jones contends that the trial court erred by

partially articulating the sentence it intended to impose before providing him the

opportunity for allocution. But Jones waived any claim of error on this issue by not

raising it before the trial court. Jones also contends, and the State concedes, that the

trial court erroneously sentenced him to a term of imprisonment and community custody

potentially greater than the statutory maximum for felony DUI. The State's concession

is well taken. We affirm the conviction, but remand for correction of the term of

community custody.
                                                                                          £?        './>
                                                                                                           C;
                                                                                          <*j




                                                                                     CD     ^r-
                                                                                    Co     -w,--,
                                                                                    CD     O-V
No. 67127-8-1/2


                                          FACTS

      Early on the morning of December 5, 2009, Officer Hisel found an extensively

damaged concrete barrier, fragments of concrete loose in the roadway, tire marks

leading up to the damaged barrier, a reflective road safety sign that had broken off the

barrier, and a black and gold car door panel.

      After driving for a half mile, Officer Hisel found a black sports utility vehicle (SUV)

with gold trim in a parking lot. Stephen Jones was asleep in the passenger seat.

Damage to the passenger side of the SUV matched the door panel Officer Hisel found

in the roadway. Broken concrete was embedded in the side of the SUV. There was

sleet and ice on the ground. Officer Hisel observed that there were no footprints around

the SUV. The hood and tailpipe of the SUV were still warm. Jones smelled strongly of

intoxicants and had flushed skin and bloodshot eyes. He could not stand on his own,

and leaned against the SUV while he talked to Officer Hisel. Jones denied being in an

accident. Jones had the keys to the SUV in his pocket and his breathalyzer tests

indicated blood alcohol levels of .127 and .131.

       Based on his prior criminal history, Jones was charged with felony DUI,

misdemeanor driving while license suspended in the first degree, and hit and run.

      At trial, the parties stipulated that Jones had been convicted of four qualifying

prior offenses within the previous 10 years.1 Jones did not deny that he had been




       1 Under former RCW 46.61.502 (2008), a "qualifying offense" is a prior offense,
committed within 10 years, for driving under the influence or other offenses committed
while under the influence, including: vehicular homicide; vehicular assault; negligent
driving in the first degree; reckless driving; reckless endangerment; an equivalent out-of-
state conviction; or a deferred prosecution for the same offenses.
No. 67127-8-1/3



drinking, but testified that a friend was driving the car at the time of the accident. The

jury convicted Jones of all three charges.

       At the sentencing hearing, the judge denied Jones' motion for an exceptional

sentence downward from the presumptive range. The trial court stated that it would

impose a standard range sentence, and articulated a range of 55 months for felony DUI,

180 days for driving while license suspended, and 90 days for hit and run. The trial

court then began to enumerate sentencing conditions and costs it would impose. While

detailing its intended sentence, the trial court realized that Jones had not yet had the

opportunity to allocute. The trial court then invited Jones to do so, stating:

               And I did not give Mr. Jones an opportunity to allocute, so I will do
       that at this time. Mr. Jones, you have this opportunity, if you would like, to
       speak with the court. You are not required to say anything, but if you
       would like, you may.[2]
       Jones made the following statement to the court:

               Yes, urn, I would just like to thank the court for allowing the
       exceptional amount of time this case has taken. I really appreciate the
       fact that I feel I was treated fairly, and that the court considered so many
       different aspects of this case. I would like to say, for the record, at no
       point did I ever waive my rights to Officer Hisel. I made no admissions to
       him at any point. And, um, I only printed my name because I did not have
       any way to read the documents that he was giving me, and I do not
       believe that I formally waived my rights by printing part of my name on a
       document that I could not read. And I would just like to say that I thank
       the court for its time.E31

       The judge responded:

              Thank you, Mr. Jones. The court, having heard the defendant
       allocute, imposes the sentence as previously stated, which is 55 months
       on the DUI, 365 days in DWLS, with 185 days suspended, and 90 days on
       the hit and run to run consecutive, suspended for twelve months.141
       2Report of Proceedings (Apr. 15, 2011) at 86.
       3 Id, at 86-87.
       4 Id. at 87.
No. 67127-8-1/4


       Jones appeals.
                                       DISCUSSION


                                         Allocution


       Jones contends the trial court erred by depriving him of his statutory right of

allocution by not allowing him to speak before the court first announced its intended

sentence. Although the trial court began to tell Jones what sentence it was inclined to

impose, the court quickly recognized that it had not yet given him the opportunity for

allocution. The court then properly allowed Jones to allocute before imposing sentence.

       Adefendant has a statutory right to allocution at sentencing.5 But if a trial court
fails to solicit a defendant's statement before imposing sentence, the defendant must

object in order to preserve a claim of error.6
       Jones waived any error by failing to object. The Washington Supreme Court

decision in State v. Hatchie controls.7 There, the trial court announced its sentence

before giving the defendant a chance to speak.8 The defendant did not object or
request an opportunity to speak before the oral sentence.9 Concluding that the
defendant waived the issue by failing to object, the court refused to consider Hatchie's




       5RCW 9.94A.500 (1) provides, in part, that at a sentencing hearing "[t]he court
shall consider the risk assessment report and presentence reports, if any, including any
victim impact statement and criminal history, and allow arguments from the prosecutor,
the defense counsel, the offender, the victim, the survivor of the victim, or a
representative of the victim or survivor, and an investigative law enforcement officer as to
the sentence to be imposed."
       6State v. Hatchie. 161 Wn.2d 390, 405, 166 P.3d 698 (2007); RAP 2.5(a)(3).
       7161 Wn.2d 390, 166 P.3d 698 (2007).
       8jd, at 405-06.
       9 Id.
No. 67127-8-1/5


challenge to the timing ofthe allocution.10 The same analysis applies here. Because
Jones failed to object below, he has not preserved the issue for appeal, and his

challenge fails.

                        Statement of Additional Grounds for Review


       In his pro se statement of additional grounds for review, Jones contends he was

denied his right to effective assistance of counsel under the Washington Constitution

article I, section 22 and the Sixth Amendment to the United States Constitution. We

disagree.

       To determine whether a defendant is entitled to relief based upon the ineffective

assistance of trial counsel, Washington uses the two-part test articulated in Strickland v.

Washington.11 The defendant mustfirst show that counsel's performance was
deficient.12 The defendant must then show thatthis deficient performance prejudiced
the defense, such that the result ofthe trial was unreliable.13 The second prong may be
proven by showing that, but for counsel's errors, there is a reasonable probability that

the outcome ofthe trial would have been different.14 This court engages in a strong
presumption that counsel's representation was effective, and legitimate trial strategy or

tactics cannot be the basis for a claim of ineffective assistance of counsel.15 The



       10 jp\ The Supreme Court also has refused to consider a challenge to a complete
failure to offer an opportunity for allocution where the defendant did not object in the trial
court. State v. Hughes. 154Wn.2d 118, 153, 110P.3d 192 (2005). overruled on other
grounds. Washington v. Recuenco. 548 U.S. 212, 126 S. Ct. 2546,165 L Ed. 2d 466
(2006): accord State v. Ague-Masters. 138 Wn. App. 86,109-10,156 P.3d 265 (2007).
       11 466 U.S. 668, 104 S. Ct. 2052, 80 L Ed. 2d 674 (1984).
       12 State v. Cienfuegos. 144Wn.2d 222, 226, 25 P.3d 1011 (2001).
       13 id at 226-27 (quoting Strickland. 466 U.S. at 687).
       14 Id. at 229.
No. 67127-8-1/6


presumption of effective representation can be overcome only by a showing of deficient

representation based on the record established in the proceedings below.16
       Jones first contends that his counsel failed to make a motion to suppress his

statements, and that there was a reasonable probability such a motion would have been

granted. Jones appears to argue that his counsel should have moved to suppress his

statements because the arrest that led to his formal statement was not supported by

probable cause. Jones argues that his attorney was not sufficiently prepared at the time

of the suppression hearing, and failed to highlight apparent discrepancies between

Officer Hisel's account of events and the other evidence.17

       The record reveals that Jones' counsel argued for suppression of his statements

to police by responding to the State's motion to admit his statements pursuant to

CrR 3.5. Jones' counsel argued that the statements should have been excluded

because Jones was "in custody" once Office Hisel challenged Jones' account of events

and began "interrogating" him while the two men talked in the parking lot, long before

Jones was given Miranda18 warnings. Counsel's arguments were rooted in relevant




      15 State v. Garrett. 124 Wn.2d 504, 520, 881 P.2d 185 (1994).
      16 State v. McFarland. 127 Wn.2d 322, 335, 899 P.2d 1251 (1995); State v.
Thomas. 109 Wn.2d 222, 226, 743 P.2d 816 (1987).
      17 Jones contends that his counsel was better prepared at trial and effectively
undermined Officer Hisel's testimony by illuminating these apparent discrepancies during
cross-examination. Specifically, during trial, defense counsel elicited Officer Hisel's
statements that there were no photographs that showed sleet on the ground; that he did
not write down Jones' purported remarks from the parking lot until hours later; that he
apparently misremembered when a backup police officer arrived; and he did not check
the driver's side headrest for signs of another driver's hair. See RP (Nov. 18, 2010) at
107-09,118-21.
      18 Miranda V.Arizona. 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
No. 67127-8-1/7


case law, applied to the specific facts ofJones' case.19 Jones fails to demonstrate that
his counsel's approach was anything other than a reasonable strategic decision.

       Jones also argues that in questioning Officer Hisel, defense counsel "fail[ed] to

test the adversarial process" by referring to potentially incriminating physical evidence

and statements by Jones thatwere "not substantiated" by other evidence.20 But Jones
cites no authority that defense counsel violated his right to effective representation by

purportedly asking misleading questions. Jones fails to show that his counsel's decision

to challenge to the admissibility of his pre-Miranda statements rather than the existence

of probable cause was an unreasonable strategic decision. To the extent that Jones'

argument refers to facts outside the record on appeal regarding his conversations with

his trial counsel, such evidence can only be considered as part of a personal restraint

proceeding where evidence can be received.21
       Jones also appears to argue that his statements to Officer Hisel were not

voluntarily given, that he never intelligently waived his Miranda rights, and that Officer

Hisel interfered with his ability to contact his attorney. But these issues were the subject

of the trial court's findings of fact and conclusions of law entered in the CrR 3.5 hearing,

which Jones does not challenge. "Unchallenged findings of fact entered following a




      19 Moreover, the record reveals a substantial basis for finding probable cause and
denying a motion to suppress, including the condition of the car and the concrete barrier,
Jones' presence in the car, and his intoxication.
       20 Statement of Additional Grounds.
       21 State v.Bugai. 30 Wn. App. 156, 158, 632 P.2d 917 (1981); State v. King. 24
Wn. App. 495, 505, 601 P.2d 982 (1979).
No. 67127-8-1/8


suppression hearing are verities on appeal."22 Further, "conclusions entered by a trial
court following a suppression hearing carry great significance for a reviewing court."23
       The trial court specifically found that Jones "did acknowledge and understand his

Miranda [w]arnings," that "the Miranda warnings given by Officer Hisel were sufficient to

advise the defendant of his rights," and that Jones "voluntarily waived his rights before

making statements."24 Although the court found that Officer Hisel "dialed the number"
Jones gave for his attorney and "the defendant did not speak to [his attorney] for

unknown reasons," the court found that Jones' request to speak with an attorney was

unequivocal, and excluded his subsequent statements.25 Becausethe unchallenged
findings of fact support the trial court's legal conclusions, Jones fails to demonstrate a

basis for relief on appeal.

                                        Sentencing

       Jones next asserts, and the State concedes, that the trial court erred by imposing

a term of community custody that exceeded the statutory maximum sentence for felony

DUI, in contravention of RCW 9.94A.701(9).26 The State's concession is well-taken.27




       22 State v. Gaines. 154 Wn.2d 711, 716, 116 P.3d 993 (2005).
       23 State v. Collins. 121 Wn.2d 168, 174, 847 P.2d 919 (1993).
       24 Clerk's Papers at 44.
       25 Clerk's Papers at 43.
       26 The controlling statute, RCW 9.94A.701(9), provides that "[t]he term of
community custody specified by this section shall be reduced by the court whenever an
offender's standard range term of confinement in combination with the term of community
custody exceeds the statutory maximum for the crime as provided in RCW 9A.20.021."
       27 A court may not impose a sentence for which the combined total ofconfinement
and community custody exceeds the statutory maximum. RCW 9.94A.505(5).


                                             8
No. 67127-8-1/9


       The court sentenced Jones to 55 months on the felony DUI, with 12 months of

community custody. Felony DUI has a statutory maximum of60 months.28 Although
the trial court made a notation that "[c]ommunity custody will be a term ... for a period

of earned early release not to exceed the statutory maximum sentence," such a notation

is not sufficient to comply with RCW 9.94A.701 (9). The trial court, not the Department

of Corrections, is required to reduce an offender's term of community custody to ensure

that the total sentence is within the statutory maximum.29
      We affirm the conviction on all counts, but remand for correction of the

community custody term in the judgment and sentence.




WE CONCUR:




      28 Former RCW 46.61.502 (2008); former RCW 46.61.5055 (2008) (in effect at
time of offense); former RCW 46.61.5055 (2010) (in effect at time of sentencing).
      29 State v.Bovd. 174Wn.2d470, 473, 275 P.3d 321 (2012).
