State of Washington v. Brian Lee Danner

• Court: Court of Appeals of Washington
• Decided: April 14, 2022
• Docket: 37829-2
• Status: Unpublished

Opinion

FILED APRIL 14, 2022 In the Office of the Clerk of Court WA State Court of Appeals, Division III

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

STATE OF WASHINGTON, ) ) No. 37829-2-III Respondent, ) ) v. ) ) BRIAN LEE DANNER, ) UNPUBLISHED OPINION ) Appellant. )

STAAB, J. — Brian Danner appeals an amended judgment and sentence, arguing

that the judgment and sentence documents contain a scrivener’s error. Specifically,

Danner contends that a notation in the caption of the judgment, directing the clerk to take

action on paragraph 5.8, was erroneous. While the caption contains this boiler plate

language, the option box at the beginning of paragraph 5.8 was not checked, clearly

indicating that the paragraph did not apply to Danner. We find no error and affirm.

BACKGROUND

On May 3, 2020, Sergeant Kurt Vigesaa, a police officer for the Spokane Police

Department, conducted a traffic stop in the Gonzaga University-Logan area for lack of

license plates. The stopped vehicle was a dark blue Chevrolet HHR, driven by Brian

Danner. After the suspect vehicle pulled over, Sergeant Vigesaa deactivated his No. 37829-2-III State v. Danner

emergency lights and pulled up next to the stopped vehicle. Sergeant Vigesaa had a brief

conversation with the driver, inquiring his name, to which Mr. Danner responded, “Cory

Gabriel Via [date of birth].” Clerk’s Papers (CP) at 51. Mr. Danner stated the Chevrolet

HHR lacked license plates because the vehicle was recently purchased. Sergeant Vigessa

ended the contact and drove away. While driving, Sargeant Vigessa checked a database

for the name “Cory Via,” and determined Mr. Danner did not match the booking photo

for Cory Via. Sergeant Vigessa later spotted the Chevrolet HHR driving recklessly,

nearly causing a collision and accelerating to 55 to 65 miles per hour in a 30 mile per

hour zone. After the vehicle slammed on its brakes and skidded to make a turn on

Baldwin Avenue into a residential area, Sergeant Vigessa activated his emergency lights

and sirens to conduct a second traffic stop. The driver failed to pull over and sped

dangerously through uncontrolled intersections along Baldwin Avenue at 60 miles per

hour in a 25 mile per hour zone. Sergeant Vigessa subsequently deployed the StarChase

GPS device and stopped pursuit, monitoring the location of the Chevrolet HHR using

StarChase mapping for a total of 6 minutes. The vehicle was tracked to an apartment

complex where Sargeant Vigessa found the Chevrolet HHR parked and unoccupied. A

silver Hyundai, driven by Jason Kiss, was later observed arriving at the apartment

complex and leaving with two individuals exiting the apartments. An additional traffic

stop was conducted on the silver Hyundai for speeding at a “very high rate.” Report of

Proceedings (Rosadovelazquez) at 202. Mr. Danner, a passenger in the silver Hyundai,

2 No. 37829-2-III State v. Danner

was subsequently arrested by Sergent Vigessa. Mr. Danner admitted to police the Bulova

eyeglasses case found in the center console of the silver Hyundai contained his “personal

amount” of heroin and estimated using two grams of heroin a day.

A jury found Mr. Danner guilty of attempting to elude a police vehicle as charged

in Count No. 1, and possession of a controlled substance as charged in Count No. 2. The

jury returned a special verdict finding Mr. Danner’s actions in eluding the police vehicle

endangered one or more persons other than Mr. Danner or the pursuing police officer.

The court entered a judgment of conviction and imposed a consecutive sentence of

65 months (41 months on Count No. 1 and 24 months on Count No. 2). Within the

caption of the judgment and sentence, the judge checked a box before preprinted

language indicating “Clerk’s Action Required, para 2.1, 4.1, 4.3, 4.8, 5.2, 5.3, 5.5, 5.7,

and 5.8[.]” CP at 62. Within the judgment, some of these delineated paragraphs included

additional check marks requiring clerk action. However, within the document, Paragraph

5.8, captioned “Department of Licensing Notice—Defendants under age 21 only,” was

left unchecked. CP at 75.

Mr. Danner filed a notice of appeal seeking review of all portions of his judgment

and sentence on October 26, 2020. After the notice of appeal was filed, the State

successfully moved the court to resentence Mr. Danner pursuant to Blake.1 The trial

1 State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021).

3 No. 37829-2-III State v. Danner

court vacated Mr. Danner’s charge for possession of a controlled substance and entered a

new judgment and sentence. The court imposed a new sentence of 41 months. The first

page of the amended judgment and sentence similarly includes a checkmark for “Clerk’s

Action Required, para 2.1, 4.1, 4.3, 4.8, 5.2, 5.3, 5.5, 5.7, and 5.8[.]” CP at 103. Again,

within the document, Paragraph 5.8, does not contain a checkmark. Mr. Danner appeals.

The only issue raised on appeal is whether the caption of the judgment and

sentence incorrectly directed the court clerk to take action according to paragraph 5.8.

This paragraph directs the court clerk to notify the department of licensing that the

defendant committed particular crimes when under the age of 21 that will affect the

defendant’s licensing status. The paragraph, like many other paragraphs within the

judgment and sentence, begins with an empty check box. When the judge finds that the

paragraph is relevant and applicable, the checkbox is marked by the judge. In this case,

the check box at the beginning of paragraph 5.8 was left blank. Thus indicating that the

paragraph did not apply in Danner’s case and the clerk should not take any action

according to paragraph 5.8.

Danner argues that the caption directs otherwise, but he does not allege or argue

that the court clerk actually notified the department of licensing to take adverse action

according to paragraph 5.8. Moreover, the judge in this case clearly established that

Danner was 48 years old at the time he committed the current offense and paragraph 5.8

would not apply.

4 No. 37829-2-III State v. Danner

We find no error and affirm.

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.

_________________________________ Staab, J.

WE CONCUR:

_________________________________ Fearing, J.

_________________________________ Siddoway, C.J.