FILED
JUNE 5, 2014
In the Office of the Clerk of Court
W A State Cou rt of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) ) No. 31180-5-III Respondent, ) ) v. ) ) HEATHER L. J. MERCADO, ) PUBLISHED OPINION ) Appellant. )
FEARING, J. - RCW 70.24.340(1 )(c) authorizes a local health department to
conduct human immunodeficiency virus (HIV) testing and counseling of a defendant
found guilty of a drug offense if the court determines that the "related drug offense is one
associated with the use of hypodermic needles." Heather Mercado claims the trial court
erred when ordering her to submit to HIV testing because the court did not determine that
she used a hypodermic needle to ingest the methamphetamine for which she was
convicted of possessing. The State of Washington argues that the trial court need not find
that the defendant actually used a hypodermic needle at the time of the crime as long as
the drug ingested by the defendant is sometimes ingested by others with a hypodermic
needle. Because the statute is ambiguous, we spend time deconstructing and interpreting
the language of the statute. We agree with Mercado. We vacate the trial court's order for
HIV testing and remand for further proceedings to determine if Heather Mercado's I I I No. 31180-5-111 State v. Mercado f 'I
possession of methamphetamine on May 10, 2012, entailed use of a hypodermic needle.
FACTS
On May 10,2012, police executed an arrest warrant for Joaquin Jaimes at an
apartment in Walla Walla. Through an apartment window, police saw Heather Mercado
preparing to smoke methamphetamine from a pipe. Police obtained a second warrant to
search the apartment. Inside the apartment, police found Mercado's glass pipe, a baggie
containing a golf ball sized amount of methamphetamine, and a black leather bag. Inside
the black leather bag, police found a handgun, digital scales, and white T-shirts. One of
the shirts appeared to have blood thereon.
PROCEDURE
The State of Washington charged Heather Mercado with possession of a
controlled substance and use of drug paraphernalia. Mercado pled guilty to possession of
a controlled substance in violation ofRCW 69.50.4013(1) in exchange for the State
dismissing the drug paraphernalia charge and recommending a sentence of 30-days
converted to community service.
Heather Mercado signed a "Statement of Defendant on Plea of Guilty." Clerk's
Papers (CP) at 12. The State claims that Mercado's counsel prepared the statement, since
the statement contains the name and address of defense counsel in the lower right margin.
I I Someone crossed out most "[n]otification" paragraphs as inapplicable to Mercado, but
\ checked paragraph 6(s) as applying. CP at 15. That paragraph reads, "If this crime
I
No. 31180-5-111 State v. Mercado
involves prostitution, or a drug offense associated with hypodermic needles, 1 will be
required to undergo testing for human immunodeficiency (HIV/AIDS) virus." CP at 16.
The paragraph repeats language from RCW 70.24.340(1)(c).
At Heather Mercado's change of plea hearing on July 16,2012, the trial court
asked Mercado whether she had read her plea statement before signing it and whether she
understood the statement. Mercado answered yes to both questions. The trial court
explained:
THE COURT: Because this is a felony offense, a drug offense, you will lose your right to own, use or possess a firearm. You may not exercise that right unless it is restored to you by a court of competent jurisdiction. You will lose your right to vote. If you are receiving public assistance and sentenced to jail time, that public assistance may be suspended. You will be required to provide a biological sample for [deoxyribonucleic acid] DNA identification analysis, and pay a $100 collection fee. You will be required to be tested/or the [acquired immune
deficiency syndrome] AIDS virus.
If it is determined this charge is a result of a drug or alcohol problem, you may be required to participate in a treatment program as part of your judgment and sentence. This conviction may affect your eligibility for State and federal foods stamps, welfare and education benefits.
Do you understand these things?
[MERCADO]: Yes.
Report of Proceedings at 5-6 (emphasis added).
The sentencing court ordered Heather Mercado to serve 240 hours of community
service within 6 months. At paragraph 4.5 ofthe judgment and sentence, the court
No. 31180-5-III State v. Mercado
ordered the Health Department to test Mercado for HIV as soon as possible and for
Mercado to fully cooperate in the testing. During the sentencing hearing, the State
presented no evidence that Heather Mercado used a hypodermic needle.
LA W AND ANALYSIS
Invited Error
Heather Mercado limits her appeal to a challenge of the court's order that she be
tested for HIV/AIDS. Before addressing the merits of her appeal, we must address the
State's request that this reviewing court refuse review because Mercado invited any error
and she did not preserve the issue for appeal. We address the invited error doctrine first
and rule the doctrine does not apply because Mercado did not create any error and the
doctrine does not apply to sentencing challenges.
The State of Washington contends Heather Mercado's trial counsel prepared the
statement on plea of guilty form directing the HIV testing, since the format is on
counsel's stationery. Mercado neither affirms nor denies this contention. We recognize
that the statement may be on defense counsel's stationery, but that the prosecution could
have placed the checkmark by the paragraph addressing HIV testing. We will assume,
for argument sake, however, that defense counsel struck the many inapplicable
paragraphs and checked the HIV testing paragraph.
The invited error doctrine precludes a criminal defendant from seeking appellate
review of an error she helped create, even when the alleged error involves constitutional
No. 3U80-5-II1
State v. Mercado
~ rights. State v. Studd, 137 Wn.2d 533,546-47,973 P.2d 1049 (1999); State v. . ! Henderson, 114 Wn.2d 867,870-71, 792 P.2d 514 (1990). The doctrine of invited error
I prohibits a party from setting up an error at trial and then complaining of it on appeal.
State v. Wakefield, 130 Wn.2d 464,475,925 P.2d 183 (1996); State v. Pam, 101 Wn.2d
507,511,680 P.2d 762 (1984), overruled on other grounds by State v. Olson, 126 Wn.2d
315,893 P.2d 629 (1995). To determine whether the invited error doctrine is applicable
to a case, we may consider whether the petitioner affirmatively assented to the error,
materially contributed to it, or benefited from it. State v. Momah, 167 Wn.2d 140, 154,
217 P.3d 321 (2009); In re Pers. Restraint o/Copland, 176 Wn. App. 432, 442, 309 P.3d
626 (2013).
To be invited, the error must be the result of an affirmative, knowing, and
voluntary act. State v. Lucero, 152 Wn. App. 287, 292, 217 P.3d 369 (2009), rev'd on
other grounds, 168 Wn.2d 785, 230 P.3d 165 (2010). The defendant must materially
contribute to the error challenged on appeal by engaging in some type of affirmative
action through which he knowingly and voluntarily sets up the error. In re Pers.
Restraint o/Call, 144 Wn.2d 315,328,28 P.3d 709 (2001); Wakefield, 130 Wn.2d at
I 475. The State bears the burden of proof on invited error. State v. Thomas, 150 Wn.2d
821,844,83 P.3d 970 (2004).
I 1 Because of the language in her statement on plea of guilty, we conclude that
Heather Mercado did not invite or create the assigned error. The relevant paragraph of I j 5
No. 31180-5-II1 State v. Mercado
the statement read, "lfthis crime involves prostitution, or a drug offense associated with
hypodermic needles, I will be required to undergo testing for human immunodeficiency
(HIV/AIDS) virus." CP at 16 (emphasis added). In logic parlance, the sentence is a
conditional "if-then" statement, comprised of an antecedent and consequent. The
sentence does not admit that Heather Mercado's crime involves a drug offense associated
with hypodermic needles. The sentence admits that, if the drug offense falls into the category, Mercado must undergo testing. The statement paraphrases RCW 70.24.340,
but does not admit that RCW 70.24.340 applies. The checkmark does not change the
conditional nature of the paragraph. Thus, the State has not proved an affirmative and
knowing assent to HIV testing. Defense counsel only informed Mercado and the court of
potentially applicable law.
Heather Mercado, citing State v. Lewis, 15 Wn. App. 172, 177, 548 P.2d 587
(1976), asserts that she received no advantage in connection with the imposition of HIV
testing, and for this reason alone, the invited error doctrine cannot control. Later cases
suggest that the doctrine can apply in situations when the defendant does not benefit from
the error. We do not address this argument of Mercado since we otherwise reject the
invited error doctrine in this appeal.
Even if Heather Mercado invited error, she can raise her assignment for the first
time on appeal. Our state high court has consistently held that the fixing of legal
punishments for criminal offenses is a legislative function. State v. Ammons, 105 Wn.2d
175, 180, 713 P.2d 719,718 P.2d 796 (1986). A defendant cannot agree to punishment in
excess of that which the legislature has established. In re Pers. Restraint of West, 154
Wn.2d 204,214, 110 P.3d 1122 (2005); In re Pers. Restraint ofGoodwin, 146 Wn.2d
861,873-74,50 P.3d 618 (2002). Even where a defendant clearly invited the challenged
sentence by participating in a plea agreement, to the extent that he can show that the
sentencing court exceeded its statutory authority, the invited error doctrine will not
preclude appellate review. Goodwin, 146 Wn.2d at 872. Therefore, the invited error
doctrine does not apply to illegally imposed sentences, even if a defendant agrees to the
sentence. In re Pers. Restraint ofGreen, 170 Wn. App. 328, 332,283 PJd 606 (2012).
If Mercado's possession of methamphetamine is not a drug offense associated with the
use of hypodermic needles, then the court exceeded its limited statutory authority to order
HIVIAIDS testing.
Preservation for Appeal
Related to, but distinct from, the State's argument of invited error, the State also
contends Heather Mercado may not raise the applicability ofRCW 70.24.340 on appeal,
since she did not object to the sentence below and thus did not preserve the issue for
appeal. The State emphasizes that, when the trial court informed Mercado that she would
be tested for HIV/AIDS, she stated she understood and did not object. We reject this
second argument of the State and will reach the merits of Mercado's appeal.
Under RAP 2.5(a), an appellate court may refuse to hear a claim not preserved by
objection below. Thus, in general, a party may not raise an issue for the first time on
appeal that it did not raise below. State v. Moen, 129 Wn.2d 535, 543, 919 P.2d 69
(1996). But an unlawful sentence may be challenged for the first time on appeal. State v.
Warnock, 174 Wn. App. 608, 611, 299 P.3d 1173 (2013); State v. Ford, 137 Wn.2d 472,
477, 973 P .2d 452 (1999). A justification for the rule is that it tends to bring sentences in
conformity and compliance with existing sentencing statutes and avoids permitting
widely varying sentences to stand for no reason other than the failure of counsel to
register a proper objection in the trial court. Ford, 137 Wn.2d at 478; State v. Paine, 69
Wn. App. 873, 884, 850 P.2d 1369 (1993). Our Supreme Court has repeatedly held that
the existence of an erroneous sentence requires resentencing. Call, 144 Wn.2d at 333;
Brooks v. Rhay, 92 Wn.2d 876, 877,602 P.2d 356 (1979).
HIVTesting
Heather Mercado's challenge to the order directing her to undergo HIV testing
requires a review and interpretation ofRCW 70.24.340(1)(c). The statute reads, in
relevant part:
Local health departments authorized under this chapter shall conduct or cause to be conducted pretest counseling, HIV testing, and posttest counseling of all persons:
(c) Convicted of drug offenses under chapter 69.50 RCW lfthe court determines at the time ofconviction that the related drug offense is one associated with the use ofhypodermic needles.
(Emphasis added.) Subsections (a) and (b) ofRCW 70.24.340 require HIV testing upon
the conviction of other crimes.
As part of the public health chapter covering sexually transmitted diseases, RCW
70.24.340(1)(c) mandates HIV testing for all persons convicted ofa drug offense
associated with the use of a hypodermic needle. Testing is to occur soon after sentencing
upon an order of the sentencing judge. RCW 70.24.340(2). All tests are to be performed
by the local health department and must include both pre and posttest counseling. RCW
70.24.340.
The purpose behind RCW 70.24.340, adopted in 1988, is declared in RCW
70.24.015:
The legislature declares that sexually transmitted diseases constitute a serious and sometimes fatal threat to the public and individual health and welfare of the people of the state. The legislature finds that the incidence of sexually transmitted diseases is rising at an alarming rate and that these diseases result in significant social, health, and economic costs, including infant and maternal mortality, temporary and lifelong disability, and premature death.
It is therefore the intent of the legislature to provide a program that is sufficiently flexible to meet emerging needs, deals efficiently and effectively with reducing the incidence of sexually transmitted diseases, and provides patients with a secure knowledge that information they provide will remain private and confidential.
Heather Mercado posits that the trial court did not determine whether her
possession of methamphetamine was associated with hypodermic needles. She contends
a finding that she used a needle when possessing the methamphetamine on May 10,2012,
is a prerequisite to an order directing HIV testing under RCW 70.24J40(l)(c). The State
answers that Mercado's possession of methamphetamine is a drug offense that is
associated with the use of hypodermic needles and Mercado's actual use or nonuse of a
needle is irrelevant. Stated differently, the State asks us to focus on the nature of the
crime charged, and Heather Mercado requests we concentrate on her manner of
commission of the crime.
When interpreting a statute, our fundamental objective is to determine and give
effect to the intent of the legislature. State v. Sweany, 174 Wn.2d 909, 914, 281 PJd 305
(2012). When possible, we derive legislative intent solely from the plain language
enacted by the legislature, considering the text of the provision in question, the context of
the statute in which the provision is found, related provisions, and the statutory scheme as
a whole. State v. Evans, 177 Wn.2d 186,192,298 P.3d 724 (2013).
The phrase "related drug offense" in RCW 70.24.340(l)(c) has two potential
meanings, either referring to a particular defendanCs specific conduct or "drug offenses
under chapter 69.50 RCW" more generally. One manner of resolving the ambiguity is to
ask how the legislature could have better written the statute if it intended the meaning
forwarded by Heather Mercado. The most direct language would be to require "HIV
testing if the defendant, when committing the drug offinse, used a hypodermic needle."
Since the legislature used the wording, "the related drug offense is one associated with
the use of hypodermic needles," we could conclude that the legislature must have
intended drug offenses in a general sense. Nevertheless, we may also ask how the
legislature could have better written the statute if it intended the meaning advanced by the
State. The most direct language would be to require HIV testing "if the court determines
at the time ofthe conviction that the related drug is one associated with the use of
hypodermic needles." We removed the word "offense" from the statute to arrive at the
more direct language consistent with the state's interpretation. Since the statute could
have been drafted better to express either intent, ruminating on redrafting provides no
insight into resolving our ambiguity.
We note that the State of Washington charged Heather Mercado with possession
ofa controlled substance in violation ofRCW 69.50.4013(1). This statute makes no
mention of methamphetamine and reads, "It is unlawful for any person to possess a
controlled substance unless the substance was obtained directly from, or pursuant to, a
valid prescription . ... " Id. Thus, at least in part, a court must review the defendant's
specific conduct, not simply the crime charged, in order to determine what drug she
possessed, since not all controlled substances are associated with hypodermic needles.
In RCW 69.50.4013, the legislature criminalizes possession, delivery, and
possession with the intent to manufacture or deliver drugs. The statute does not
criminalize drug use. Neither possession nor delivery of a controlled substance is
associated with hypodermic needles. Therefore, examining the defendant's specific
conduct is helpful in determining whether HIV testing should be ordered.
The posing of hypothetical situations that arise from the juxtaposition ofRCW
70.24.340(l)(c) with 69.50.4013(1) illustrate the need to base a determination of HIV
testing on the defendant's own conduct. If a defendant is convicted of delivery of a
controlled substance, would it be appropriate to determine if the defendant was using
drugs and the method of her use? If the defendant is convicted of being an accomplice to
possession or delivery of a controlled substance, is it inevitable to look at the facts of the
case rather than determine the identity of the drug in the case? If the defendant is an
accomplice to a delivery or possession of methamphetamine because he served as a
lookout or delivered money, did the legislature intend for the court to require the
defendant to be HIV tested because the drug was methamphetamine? What if the drug is
not associated with hypodermic needles, but, in a rare case before the court, the defendant
absorbed the controlled substance with a hypodermic needle? Ecstasy is associated with
use in pill form, but has on occasion been ingested with hypodermic needles. Did the
legislature intend to withhold HIV testing in such a case because the drug Ecstasy is not
associated with hypodermic needles? Or would the legislature wish HIV testing in such a I I 1 case because the defendant used a hypodermic needle?
We note a distinction in subparagraph (c) from subparagraphs (a) and (b) in RCW
70.24.340:
12 No. 31180-5-II1 State v. Mercado
(I) Local health departments authorized under this chapter shall conduct or cause to be conducted pretest counseling, HIV testing, and posttest counseling of all persons: (a) Convicted of a sexual offense under chapter 9A.44 RCW; (b) Convicted of prostitution or offenses relating to prostitution under chapter 9A.88 RCW; or (c) Convicted of drug offenses under chapter 69.50 RCW if the court determines at the time of conviction that the related drug offense is one associated with the use of hypodermic needles.
Subparagraphs (a) and (b) demand HIV testing upon the conviction of specified crimes
regardless if the trial court determines the crime involved additional conduct. This
distinction hints that the legislature intended more than a conviction of a particular drug
offense before requiring HIV testing for the offense.
Based upon a careful reading ofRCW 70.24.340, we hold that HIV testing may
not be ordered unless the trial court enters a finding that the defendant used or intended
use of a hypodermic needle at the time of committing the crime.
Reimbursement ofCosts
Heather Mercado asks to be reimbursed for any funds she may have expended in
connection with HIV testing. We deny the request on two grounds. First, she has not
presented evidence that she has complied with the HIV testing requirement or paid for
any testing. Second, Mercado cites no authority that would allow this court to reimburse
her for the cost of testing. We need not address arguments unsupported by citation to
authority. RAP 10.3(a)(6); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801,
809, 828 P.2d 549 (1992).
13 No. 31180-5-III State v. Mercado
CONCLUSION
The trial court exceeded its statutory authority when it ordered Heather Mercado
to be tested for HIV/AIDS under RCW 70.24.340, without the trial court first finding that
Mercado used or intended use of a hypodermic needle at the time of committing the
crime of possession of a controlled substance. We remand for a hearing on the question
of whether HIV testing should be ordered consistent with the holding of this decision.
WE CONCUR:
Siddoway, C.J. Antosz, .