FILED SEPT 15, 2016 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STATE OF WASHINGTON, ) ) No. 33096-6-111 Respondent, ) ) V. ) ) JAVIER OROZCO, ) UNPUBLISHED OPINION ) Appellant. )
KORSMO, J. -Javier Orozco contends that his trial counsel performed
ineffectively and that the trial court sentenced him to an excessive term of community
custody. We disagree with both contentions and affirm the convictions for possession of
methamphetamine and felony driving under the influence of alcohol.
FACTS
Mr. Orozco was charged in Grant County Superior Court with the two noted
offenses arising from a traffic stop on January 19, 2014. The matter eventually
proceeded to jury trial.
Prior to trial, the defense stipulated that Mr. Orozco had "criminal history
sufficient to satisfy the requirements ofRCW 46.6I.502(6)(a)," the prior offense element
that raises driving under the influence to a felony offense. Clerk's Papers (CP) at 210. No. 33096-6-III State v. Orozco
The stipulation was presented to the jury in the form of a jury instruction. Id. The
elements instruction given to the jury listed this element in the language of the
stipulation. CP at 212. However, although defense counsel attempted to have the trial
court bifurcate the jury's consideration of the elements of the offense, no effort was made
to seek a limiting instruction concerning the stipulation.
The jury convicted Mr. Orozco as charged. The trial court calculated the offender
score as 9+ on the driving while under the influence count and imposed a sentence of 60
months. On the drug possession charge, the trial court sentenced Mr. Orozco to 12
months in prison, concurrent with the 60 month sentence, and 12 months of community
custody upon release from prison.
Mr. Orozco timely appealed to this court. His counsel subsequently filed a motion
for relief from appellate costs in accordance with the general order of this court. As the
motion was received before the release of this opinion, the panel decided to address the
motion in this document.
ANALYSIS
Mr. Orozco presents two issues in this appeal. He first argues that his counsel
performed ineffectively by failing to seek a limiting instruction concerning the stipulation
to his criminal history. He also believes the trial court erred in imposing the term of
community custody. We address the issues in the order noted.
2 No. 33096-6-III State v. Orozco
Ineffective Assistance Claim
The standards of review governing a claim of ineffective assistance of counsel are
well understood. The Sixth Amendment guarantee of counsel requires more than the
mere presence of an attorney; counsel must perform to the standards of the profession.
Failure to live up to those standards will require a new trial when the client has been
prejudiced by counsel's failure. State v. McFarland, 127 Wn.2d 322, 334-335, 899 P.2d
1251 (1995). In evaluating ineffectiveness claims, courts must be highly deferential to
counsel's decisions. A strategic or tactical decision is not a basis for finding error.
Stricklandv. Washington, 466 U.S. 668, 689-691, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). To prevail on a claim of ineffective assistance, the defendant must show both
that his counsel erred and the error was so significant, in light of the entire trial record,
that it deprived him of a fair trial. Id. at 690-692.
Mr. Orozco is unable to satisfy either prong of the Strickland test. Because the
decision not to seek a limiting instruction is frequently a tactical one, the Washington
Supreme Court has declined to find that counsel erred by not seeking an instruction.
State v. Humphries, 181 Wn.2d 708,336 P.3d 1121 (2014), is on point. There, as here,
the defense stipulated to the defendant's past criminal history and did not seek a limiting
instruction. Noting that foregoing an instruction is frequently a tactical decision, the
court concluded the defendant had not overcome the presumption that the decision was a
tactical one. Id. at 720-721.
3 No. 33096-6-III State v. Orozco
This case is in an even stronger position than that one. There the stipulation to the
prior conviction, an element of one offense, was potentially prejudicial to the other count,
an assault charge. Id. at 712, 719. Nonetheless, the court concluded there was no
showing to overcome the likelihood that counsel made a tactical decision. Id. at 720-721.
Here, the stipulation was in the same language as the element of the jury instruction on
the driving offense. Counsel understandably would not desire to further call the jury's
attention to his criminal history, particularly where it was clearly directed at the one
count.
In light of Humphries, Mr. Orozco has not shown his counsel erred. He also fails
to establish prejudice. In this case, the stipulation kept from the jury the fact that Mr.
Orozco had at least four prior driving while under the influence convictions---the same
crime for which he was then before the jury. Again, counsel understandably would not
want to call the jury's attention to the stipulation. A limiting instruction telling the jury
that it could consider the stipulation only as to the driving offense would tend to suggest
to the jury that Mr. Orozco had prior driving offenses of some nature that they were not
being told about. Mr. Orozco simply cannot explain how this tactic prejudiced him in
any manner, let alone that it was such significant error that his trial was unfair.
Mr. Orozco needed to show both error and resulting prejudice from his counsel's
alleged omission. He has done neither. Accordingly, the ineffective assistance claim is
without merit.
4 No. 33096-6-III State v. Orozco
Community Custody
Mr. Orozco next argues that the court erred by imposing the term of community
custody, contending that the court lacked authority to do so. He erroneously tacks the
term on to his driving sentence instead of on to his drug possession sentence. Properly
viewed, there was no error.
The trial court cannot sentence an offender to a greater penalty than the statutory
maximum for the specific crime. RCW 9.94A.505(5). The maximum sentence period
includes both any term of incarceration as well as any term of community custody. In re
McWilliams, 182 Wn.2d 213, 216, 340 P.3d 223 (2014). Thus, a court errs when it
imposes a "combined term of confinement and community custody that exceeds the
statutory maximum." Id. When the court imposes a standard range sentence and term of
community custody that exceeds the statutory maximum, it must reduce the term of
community custody. RCW 9.94A.701(9).
As with any case of statutory construction, this court reviews the interpretation of
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FILED SEPT 15, 2016 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. 33096-6-111 Respondent, ) ) V. ) ) JAVIER OROZCO, ) UNPUBLISHED OPINION ) Appellant. )
KORSMO, J. -Javier Orozco contends that his trial counsel performed
ineffectively and that the trial court sentenced him to an excessive term of community
custody. We disagree with both contentions and affirm the convictions for possession of
methamphetamine and felony driving under the influence of alcohol.
FACTS
Mr. Orozco was charged in Grant County Superior Court with the two noted
offenses arising from a traffic stop on January 19, 2014. The matter eventually
proceeded to jury trial.
Prior to trial, the defense stipulated that Mr. Orozco had "criminal history
sufficient to satisfy the requirements ofRCW 46.6I.502(6)(a)," the prior offense element
that raises driving under the influence to a felony offense. Clerk's Papers (CP) at 210. No. 33096-6-III State v. Orozco
The stipulation was presented to the jury in the form of a jury instruction. Id. The
elements instruction given to the jury listed this element in the language of the
stipulation. CP at 212. However, although defense counsel attempted to have the trial
court bifurcate the jury's consideration of the elements of the offense, no effort was made
to seek a limiting instruction concerning the stipulation.
The jury convicted Mr. Orozco as charged. The trial court calculated the offender
score as 9+ on the driving while under the influence count and imposed a sentence of 60
months. On the drug possession charge, the trial court sentenced Mr. Orozco to 12
months in prison, concurrent with the 60 month sentence, and 12 months of community
custody upon release from prison.
Mr. Orozco timely appealed to this court. His counsel subsequently filed a motion
for relief from appellate costs in accordance with the general order of this court. As the
motion was received before the release of this opinion, the panel decided to address the
motion in this document.
ANALYSIS
Mr. Orozco presents two issues in this appeal. He first argues that his counsel
performed ineffectively by failing to seek a limiting instruction concerning the stipulation
to his criminal history. He also believes the trial court erred in imposing the term of
community custody. We address the issues in the order noted.
2 No. 33096-6-III State v. Orozco
Ineffective Assistance Claim
The standards of review governing a claim of ineffective assistance of counsel are
well understood. The Sixth Amendment guarantee of counsel requires more than the
mere presence of an attorney; counsel must perform to the standards of the profession.
Failure to live up to those standards will require a new trial when the client has been
prejudiced by counsel's failure. State v. McFarland, 127 Wn.2d 322, 334-335, 899 P.2d
1251 (1995). In evaluating ineffectiveness claims, courts must be highly deferential to
counsel's decisions. A strategic or tactical decision is not a basis for finding error.
Stricklandv. Washington, 466 U.S. 668, 689-691, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). To prevail on a claim of ineffective assistance, the defendant must show both
that his counsel erred and the error was so significant, in light of the entire trial record,
that it deprived him of a fair trial. Id. at 690-692.
Mr. Orozco is unable to satisfy either prong of the Strickland test. Because the
decision not to seek a limiting instruction is frequently a tactical one, the Washington
Supreme Court has declined to find that counsel erred by not seeking an instruction.
State v. Humphries, 181 Wn.2d 708,336 P.3d 1121 (2014), is on point. There, as here,
the defense stipulated to the defendant's past criminal history and did not seek a limiting
instruction. Noting that foregoing an instruction is frequently a tactical decision, the
court concluded the defendant had not overcome the presumption that the decision was a
tactical one. Id. at 720-721.
3 No. 33096-6-III State v. Orozco
This case is in an even stronger position than that one. There the stipulation to the
prior conviction, an element of one offense, was potentially prejudicial to the other count,
an assault charge. Id. at 712, 719. Nonetheless, the court concluded there was no
showing to overcome the likelihood that counsel made a tactical decision. Id. at 720-721.
Here, the stipulation was in the same language as the element of the jury instruction on
the driving offense. Counsel understandably would not desire to further call the jury's
attention to his criminal history, particularly where it was clearly directed at the one
count.
In light of Humphries, Mr. Orozco has not shown his counsel erred. He also fails
to establish prejudice. In this case, the stipulation kept from the jury the fact that Mr.
Orozco had at least four prior driving while under the influence convictions---the same
crime for which he was then before the jury. Again, counsel understandably would not
want to call the jury's attention to the stipulation. A limiting instruction telling the jury
that it could consider the stipulation only as to the driving offense would tend to suggest
to the jury that Mr. Orozco had prior driving offenses of some nature that they were not
being told about. Mr. Orozco simply cannot explain how this tactic prejudiced him in
any manner, let alone that it was such significant error that his trial was unfair.
Mr. Orozco needed to show both error and resulting prejudice from his counsel's
alleged omission. He has done neither. Accordingly, the ineffective assistance claim is
without merit.
4 No. 33096-6-III State v. Orozco
Community Custody
Mr. Orozco next argues that the court erred by imposing the term of community
custody, contending that the court lacked authority to do so. He erroneously tacks the
term on to his driving sentence instead of on to his drug possession sentence. Properly
viewed, there was no error.
The trial court cannot sentence an offender to a greater penalty than the statutory
maximum for the specific crime. RCW 9.94A.505(5). The maximum sentence period
includes both any term of incarceration as well as any term of community custody. In re
McWilliams, 182 Wn.2d 213, 216, 340 P.3d 223 (2014). Thus, a court errs when it
imposes a "combined term of confinement and community custody that exceeds the
statutory maximum." Id. When the court imposes a standard range sentence and term of
community custody that exceeds the statutory maximum, it must reduce the term of
community custody. RCW 9.94A.701(9).
As with any case of statutory construction, this court reviews the interpretation of
the various provisions of the Sentencing Reform Act of 1981, ch. 9.94A RCW, de novo.
State v. Bradshaw, 152 Wn.2d 528, 531, 98 P.3d 1190 (2004); State v. Winborne, 167
Wn. App. 320, 326, 273 P.3d 454 (2012). A court begins by looking at the plain meaning
of the statute as expressed through the words themselves. Tesoro Ref & Mktg. Co. v.
Dep 't of Revenue, 164 Wn.2d 310, 317, 190 P.3d 28 (2008). If the statute's meaning is
plain on its face, the court applies the plain meaning. State v. Armendariz, 160 Wn.2d
5 No. 33096-6-III State v. Orozco
106, 110, 156 P.3d 201 (2007). Only if the language is ambiguous do we look to aids of
construction, such as legislative history. Id. at 110-111. A provision is ambiguous if it is
reasonably subject to multiple interpretations. State v. Engel, 166 Wn.2d 572,579,210
P .3d 1007 (2009).
There is no such problem in this case; the statute could hardly be any plainer.
"The 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." RCW 9.94A.701(9) (emphasis added). Because the legislature specifically
referred to "the crime," it was not intending this provision to address any combination of
sentences between crimes.
The statutory maximum sentence for each offense is five years. RCW 9A.20.021;
RCW 46.61.502(6); RCW 69.50.4013(2). Here, the court imposed the community
custody term only on the drug possession offense, a crime for which Mr. Orozco was
sentenced to serve 12 months (plus one day) in prison. The combination of the prison
sentence and the community custody extends to only one day past two years, a period of
time well within the five year maximum sentence period available. Only if the prison
sentence for the driving while under the influence charge were combined with the
community custody term for the drug possession offense could there be any possible
violation of the statute. The trial court did not make that mistake in this instance.
6 No. 33096-6-III State v. Orozco
RCW 9.94A.701(9) only prohibits combined terms for the same crime from
exceeding the statutory maximum term. That did not happen here. There was no error.
Costs on Appeal
Lastly, we consider Mr. Orozco's motion to waive appellate costs. All members
of the court agree to consider the motion since the briefs were filed prior to the adoption
of our new general order. However, a majority of the court has voted to deny the motion.
Since it has prevailed, the State may claim costs, if it desires, by the timely filing of a
cost bill. RAP 14.4. Nothing in our ruling prohibits Mr. Orozco from timely challenging
any inappropriate cost claims. RAP 14.5.
Affirmed.
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.
WE CONCUR: