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                                                                         FILED

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                                                                      JULY 11, 2017
                                                               In the Office of the Clerk of Court
                                                             WA State Court of Appeals, Division III

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t                IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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     STATE OF WASHINGTON,                          )         No. 34513-1-111
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                            Respondent,            )
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j           V.                                     )         UNPUBLISHED OPINION
I    SILVER GARCIA,
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                            Appellant.             )

            PENNELL, J. -    Silver Garcia appeals his conviction and sentence for attempting to

     elude, unlawful imprisonment, third degree malicious mischief, and fourth degree assault.

     We affirm Mr. Garcia's convictions but reverse his sentence and remand for resentencing.

                                               FACTS

            The investigation of Mr. Garcia began with a high speed vehicle chase in Quincy,

     Washington. Two individuals had been observed in the suspect vehicle by a pursuing

     police officer. The individuals fled on foot before the officer made contact, leaving the

     vehicle abandoned. The officer conducted a warrantless search of the vehicle and found a

     wallet containing a number of items bearing Mr. Garcia's name. Although the vehicle

     had not been reported stolen, the registered owner was not Mr. Garcia. Attempts to

     contact the registered owner were unsuccessful.
     No. 34513-1-111
     State v. Garcia


            Mr. Garcia was arrested a few days later at the home of a third party. The

     circumstances surrounding Mr. Garcia's arrest led to charges of unlawful imprisonment,

     malicious mischief, and assault. The details of Mr. Garcia's arrest and additional charges

     are not pertinent to this appeal.

            Mr. Garcia's case proceeded to a jury trial. The defense did not file a pretrial

     motion to suppress the fruits of the warrantless vehicle search. However, an objection

     was raised during trial. The State claimed the defense had waived any objection to the

     warrantless search by failing to schedule a CrR 3 .6 hearing prior to trial. The State also

     responded to Mr. Garcia's arguments on the merits. The trial court ultimately overruled

     the defense objection, reasoning Mr. Garcia did not have standing to contest the search.

            The jury found Mr. Garcia guilty on all pending counts. At sentencing, Mr. Garcia

     was given an offender score of 6 on the attempting to elude conviction, and 5 on the

     unlawful imprisonment conviction. The offender scores were based on the State's oral

     representations of Mr. Garcia's criminal history. Mr. Garcia was given concurrent

     sentences of 15 months for attempting to elude and 19.5 months for unlawful

     imprisonment with suspended sentences on the two remaining counts. The trial court also

     imposed 18 months of community custody on the unlawful imprisonment conviction

     because it was a violent offense. Mr. Garcia appeals.


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No. 34513-1-III
State v. Garcia


                                        ANALYSIS

Ineffective assistance of counsel

       Mr. Garcia argues defense counsel provided ineffective assistance by not filing a

pretrial suppression motion under CrR 3.6. We review this claim de novo. State v.

Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). To demonstrate ineffective

assistance, Mr. Garcia must show both deficient performance and prejudice. State v.

Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987); Stricklandv. Washington, 466

U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Failure to meet either prong of

this test is dispositive of an ineffective assistance claim. State v. Berg, 14 7 Wn. App.

923, 937, 198 P.3d 529 (2008).

       Mr. Garcia's ineffective assistance argument fails because he cannot demonstrate

prejudice. Even if defense counsel had filed a suppression motion, Mr. Garcia fails to

show that the motion would have been successful. The facts of Mr. Garcia's case are

materially indistinguishable from those in State v. Samalia, 186 Wn.2d 262, 276-77,

375 P.3d 1082 (2016). In Samalia, our Supreme Court determined no search warrant was

needed to seize a cellular telephone that had been abandoned in a vehicle after a high

speed police chase. Based on Samalia, we perceive no probability that Mr. Garcia's trial

counsel could have prevailed on a suppression motion. Counsel was therefore not


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     No. 34513-1-111


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     State v. Garcia


     ineffective for failing to file such a motion in a timely manner.

     Criminal history
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            Relying on State v. Hunley, 175 Wn.2d 901, 909-11, 287 P.3d 584 (2012), Mr.


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     Garcia argues the State provided insufficient evidence of his criminal history at

     sentencing. The State concedes remand is appropriate to correct this error. "Bare

l    assertions, unsupported by evidence, do not satisfy the State's burden to prove the

I    existence of a prior conviction." Id. at 910. The best way for the State to meet this

     burden is to provide a certified copy of the prior judgment, but there are also other means

     of meeting this burden. Id. at 910-11 (providing examples). Here, the State only

     provided an oral recitation of Mr. Garcia's criminal history at sentencing. This was

     insufficient to meet the State's burden. Mr. Garcia's lack of an objection at sentencing

     does not alter the outcome. See id. at 913. Remand is required so that the State may be

     held to its burden of proving Mr. Garcia's criminal history.

     Community custody term

            Mr. Garcia argues the trial court erred by imposing an 18-month community

     custody term for a violent offense on his unlawful imprisonment conviction. Whether a

     trial court's sentence is authorized by statute is reviewed de novo. State v. Coombes,

     191 Wn. App. 241,249,361 P.3d 270 (2015), review denied, 185 Wn.2d 1020, 369 P.3d


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No. 34513-1-111
State v. Garcia


500 (2016). Mr. Garcia asserts, and the State appropriately concedes, that unlawful

imprisonment is a crime against a person, not a violent offense. Thus, under RCW

9.94A.701(3)(a) and .411(2)(a), only a 12-month community custody term is authorized.

Remand is required to correct this error.

                                      CONCLUSION

       We affirm Mr. Garcia's convictions but remand for resentencing. Because Mr.

Garcia has prevailed on two of the three issues on appeal, we grant his request to deny

appellate costs.

       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.


                                            Pennell, J.
WE CONCUR:




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