FILED JANUARY 10, 2017 In the Office of the Clerk of Court WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 33702-2-111 ) Respondent, ) ) V. ) UNPUBLISHED OPINION ) MIGUEL ANGEL MAGALLAN, ) ) Appellant. )
LAWRENCE-BERREY, J. - Miguel Angel Magallan appeals his conviction and
sentence following a jury verdict finding him guilty of one count of possession of a
controlled substance, heroin, and one count of possession of a controlled substance,
methamphetamine, with intent to deliver. The jury also found that the offenses occurred
within a drug protection zone. The trial court sentenced Mr. Magallan to a term of
imprisonment within the standard range in accordance with the jury's verdict and special
finding, and based on an agreed offender score of 9. The trial court also assessed
mandatory legal financial obligations (LFOs) and two discretionary LFOs.
Mr. Magallan contends: (1) the evidence was insufficient to convict him on the
charge of possession of a controlled substance, methamphetamine, with intent to deliver, No. 33702-2-III State v. Magallan
(2) the State failed to meet its burden in proving his criminal history at sentencing, and
(3) the trial court erred when it imposed various mandatory and two discretionary LFOs
without inquiring into his ability to pay those obligations.
We reject Mr. Magallan's first and second contentions, but agree that the trial
court erred when it imposed the two discretionary LFOs. We accept the State's
concession to direct the trial court to strike those discretionary LFOs rather than remand
for a new hearing. We also decline to award the State appellate costs, in accordance with
our June 10, 2016 general order.
FACTS
Scott McLean, Mr. Magallan's probation officer, arrested Mr. Magallan on an
outstanding warrant. The warrant was issued because Mr. Magallan had recently tested
positive for methamphetamine and heroin. At the time of his arrest, Mr. Magallan was
staggering alongside his bicycle and carrying a backpack. In the search incident to arrest,
Officer McLean found a user's amount of heroin in Mr. Magallan's pocket. Officer
McLean also searched Mr. Magallan's backpack. In the backpack, Officer McLean found
two empty "baggies," a baggie with a white crystalline substance, and two vials with a
white crystalline substance. The baggie contained 27 .6 grams of methamphetamine. One
2 No. 33702-2-III State v. Magallan
vial contained 5.3 grams of methamphetamine, and the other vial was not tested.
Converted into ounces, the total weight of the methamphetamine was 1.16 oz.
By amended information, the State charged Mr. Magallan with one count of
possession of heroin and one count of possession of methamphetamine with intent to
deliver and alleged that the latter offense occurred in a drug protection zone.
At trial, Detective Erik Horbatko testified that there was approximately 1.25 oz. of
methamphetamine found in the baggie and containers. He estimated the wholesale price
of that amount ofmethamphetamine was between $550 and $600. But if sold in multiple
sales of smaller quantities, the retail price for that amount would be from $800 to $1,120.
He estimated the number of individual doses for 1.25 oz. of methamphetamine was
between 165 and 327, depending on such factors as the user's tolerance and the drug's
purity. He testified that 1.25 oz. was "[n]o way" a user's amount, and that he had never
seen a user with that much methamphetamine. Report of Proceedings (RP) at 75. He also
testified that the two clean baggies found on Mr. Magallan were "intended to use to put
something from a bigger amount to make it into a smaller amount for sale." RP at 78. He
further testified that he had "never seen an ounce be personal use-in my entire career-
so far." RP at 90.
3 No. 33702-2-III State v. Magallan
Officer McLean also testified. He testified he had known Mr. Magallan for nine
years and began directly supervising him 10 months prior to the encounter. He also
testified Mr. Magallan did not have a job while under his supervision, he may have been
receiving disability payments, and he may have been living with his son, but did not have
his own telephone.
After the parties presented their evidence, the court instructed the jury on the two
charged offenses and also on a lesser offense of possession of methamphetamine. The
jury returned guilty verdicts on the two charged offenses and found that the intent to
deliver offense occurred in a protected drug zone. For this reason, the jury did not reach a
verdict on the lesser offense of possession of methamphetamine.
At sentencing, the State set forth in the proposed judgment and sentence a
summary of Mr. Magallan's criminal history, together with an offender score of 9.
Defense counsel admitted that Mr. Magallan had the criminal history set forth in the
summary and that the offender score of 9 was correct. While admitting this, she argued
for a lenient sentence:
I would point out that-we have to go back 25 years to count the criminal offenses for Mr. Magallan. 1988, for which there's not even any paper work. 1989, 1993. He knows that those count under the current Sentencing Reform Act guidelines. They didn't used to. That was a change that was made several years ago to--make sure that any misdemeanor conviction prevented a washout instead of just felonies.
4 No. 33702-2-III State v. Magallan
But we have somebody here who has an offender score-that he does. And technically there's seven prior felonies in the last 25 years. And then because he was on DOC that adds a point. And then because there are concurrent convictions that and that's how you get to nine.
RP at 258-59.
The trial court struck a few proposed discretionary LFOs from the proposed
judgment and sentence prior to signing it. The trial court did not inquire into Mr.
Magallan's present or future ability to pay the LFOs. The trial court imposed mandatory
LFOs in the form of a $500 crime penalty assessment, a $200 criminal filing fee, and a
$100 deoxyribonucleic (DNA) collection fee. The trial court also imposed discretionary
LFOs in the form of costs of incarceration, capped at $100, and did not strike a separate
paragraph that made Mr. Magallan responsible for the costs of his medical care while
incarcerated.
Mr. Magallan appealed.
ANALYSIS
A. SUFFICIENCY OF THE EVIDENCE
Mr. Magallan contends the evidence is insufficient to show intent to deliver and
only the lesser charge of possession of methamphetamine can be sustained.
Evidence is sufficient to convict if it permits a rational trier of fact to find the
essential elements of the crime proved beyond a reasonable doubt. State v. Munoz-
5 No. 33702-2-III State v. Magallan
Rivera, 190 Wn. App. 870, 882, 361 P .3d 182 (2015). This court "must draw all
reasonable inferences from the evidence in favor of the State and interpret the evidence
most strongly against the defendant." Id. Direct and circumstantial evidence carry the
same weight. Id. We will "defer to the fact finder on the resolution of conflicting
testimony, credibility determinations, and the persuasiveness of the evidence." Id. This
court's role is not to reweigh the evidence and substitute its judgment for that of the jury.
State v. Green, 94 Wn.2d 216, 221, 616 P .2d 628 ( 1980).
Evidence of a specific criminal intent exists when the evidence supports a logical
probability that the defendant acted with the requisite intent. State v. Stearns, 61 Wn.
App. 224, 228, 810 P .2d 41 ( 1991 ). Evidence of the specific intent to deliver a controlled
substance must be compelling. State v. Davis, 79 Wn. App. 591, 594, 904 P.2d 306
(1995); State v. Lopez, 79 Wn. App. 755, 768, 904 P.2d 1179 (1995).
Mr. Magallan argues the State's evidence was insufficient to prove intent to
deliver because the State was required to prove more than he possessed a large quantity of
contraband. We agree with the legal principle argued by Mr. Magallan, but disagree that
the State's evidence was so limited.
In Lopez, Lopez purchased $1,000 of cocaine from narcotics officers. Lopez, 79
Wn. App. at 758. In the search incident to arrest, an officer found 14 individual quarter-
6 No. 33702-2-III State v. Magallan
gram bindles of cocaine and more than $800 of cash. Id. at 759. The State charged
Lopez with two counts of possession of cocaine with intent to deliver, and one count of
delivery of cocaine to a person under 18 years of age in a public park. Id. at 760. At trial,
Lopez testified he was employed in construction prior to his arrest, and that all the money
he used to purchase the cocaine and the money found on him was from his employment.
Id. He explained he purchased a large amount of cocaine because he was an addict, and
that he would sometimes buy a two or three month supply. Id. at 759-60. Despite his
testimony, the jury convicted him of the possession with intent to deliver charges, but
acquitted him of the delivery to a minor charge. Id. at 760. The Lopez court repeated the
rule, "even possession of a large amount of controlled substances, without some
additional factor, is insufficient to establish intent." Id. at 768. In concluding that
sufficient evidence supported intent to deliver, the Lopez court determined that the
purchase of a large quantity of contraband, together with a large sum of cash on Lopez's
person, was sufficient. Id. at 769.
This case is similar to Lopez. In addition to the large amount of methamphetamine
found on Mr. Magallan, the State presented evidence that Mr. Magallan could not have
purchased that amount unless he also earned money selling it.
I No. 33702-2-III State v. Magallan
Mr. Magallan also relies upon Davis. The evidence in that case consisted of six
individually wrapped baggies of marijuana, marijuana seeds, a small container of
marijuana, a box of unused baggies, and another baggie with marijuana residue. Davis,
79 Wn. App. at 595. In reversing the intent to deliver charge, the Davis court determined
"there was no evidence Mr. Davis had bought or sold marijuana or was in the business of
buying or selling." Id. The Davis court reasoned that the packaging was "not
inconsistent with personal use" and that the 19 grams of marijuana likewise could
"certainly be consumed in the course of normal personal use." Id. at 595-96.
This case is distinguishable from Davis because the amount of contraband here is
not consistent with personal use. Construing the evidence most favorably to the State, as
we must for this type of review, possession ofup to 317 individual doses together with
empty baggies is indicative of intent to deliver rather than personal use.
Mr. Magallan also argues that an officer's opinion of what constitutes personal use
is insufficient to infer intent. State v. Hutchins, 73 Wn. App. 211,217, 868 P.2d 196
(1994). Again, we agree with the legal principle argued, but disagree that the State's
evidence was so limited. Again, in addition to the large quantity of methamphetamine
found on Mr. Magallan, the State submitted evidence that Mr. Magallan could not have
possessed such a large amount of methamphetamine unless he also was selling it.
8 No. 33702-2-III State v. Magallan
The State admits that this case is not the typical drug dealer case where a dealer
might have a sophisticated operation and make good money selling contraband. Rather,
the evidence suggested that Mr. Magallan traveled by bicycle instead of car, did not have
his own telephone, and did not have his own home. The State argues,
To require a level of sophistication as seen in many of the cases cited by Appellant to uphold a conviction for possession with intent to deliver will negate the State's ability to prosecute a vast array of individual[s] who are in fact selling drugs but doing [so] not to gain vast wealth but to support and sustain an all-consuming addiction.
Br. of Resp't at 6.
We agree. Whether intent to deliver has been proved beyond a reasonable doubt is
a highly fact-specific inquiry. Davis, 79 Wn. App. at 594. Here, the State was permitted
to argue that a methamphetamine user with little financial means could not come into
such a large quantity of methamphetamine unless, in addition to using it, he was also
selling it.
B. PROOF OF PRIOR CRIMINAL HISTORY
Mr. Magallan argues the State did not meet its burden in proving his prior criminal
history that was used to calculate his offender score.
Sentencing errors resulting in unlawful sentences may be raised for the first time
on appeal. State v. Bahl, 164 Wn.2d 739, 744, 193 P.3d 678 (2008). Offender score
9 No. 33702-2-III State v. Magallan
calculations are reviewed de novo. State v. Moeurn, 170 Wn.2d 169, 172, 240 P.3d 1158
(2010).
The State has the burden of establishing a defendant's prior criminal history by a
preponderance of the evidence to determine his or her offender score at sentencing. State
v. Ford, 137 Wn.2d 472, 479-80, 973 P.2d 452 (1999). An unsupported statement of
prior criminal history is insufficient to satisfy the State's burden of proof. State v.
Hunley, 175 Wn.2d 901,910,287 P.3d 584 (2012). The State is relieved ofthis burden if
the defendant affirmatively acknowledges his or her prior criminal history; the
defendant's mere failure to object is insufficient. Id.
The State argues that defense counsel's admission of the correctness of the State's
summary of prior criminal history and offender score calculation was a sufficient
acknowledgment to relieve it of its burden. In Ford, the court noted that defense
counsel's submissions in its proffered offender score calculation could be considered by
the sentencing court without further proof. Id. at 483 n.5. We consider this note as
sufficient authority to support the State's argument. We, therefore, conclude that defense
counsel's admission was a sufficient acknowledgment to relieve the State of its burden of
proving such facts.
10 No. 33702-2-III State v. Magallan
C. LEGAL FINANCIAL 0BLIGA TIONS
Mr. Magallan also challenges the imposition of both discretionary and mandatory
LFOs. He contends that the trial court did not conduct an individualized inquiry into his
ability to pay before it imposed the LFOs. He challenges the imposition of LFOs on
several grounds-grounds he did not preserve through arguments to the trial court. Mr.
Magallan urges this court to exercise its discretion to review his unpreserved challenges.
Because the factors for exercising such discretion differ depending on the nature of the
LFOs, we address Mr. Magallan's requests and arguments in two parts.
1. Discretionary LFOs
Whenever a person is convicted, the trial court "may order the payment
of a legal financial obligation" as part of the sentence. RCW 9 .94A. 760(1 ); see
RCW 10.01.160(1). We refer to costs that are authorized but not mandated as
"discretionary costs."
Here, Mr. Magallan asserts that the $100 capped cost of incarceration and the
uncapped medical care costs are discretionary LFOs. He is correct. See State v. Leonard,
184 Wn.2d 505, 507, 358 P.3d 1167 (2015).
By statute, the trial court is not authorized to order a defendant to pay discretionary
costs unless he or she is or will be able to pay them. RCW 10.01.160(3). In determining
11 No. 33702-2-III State v. Magallan
the amount and method of payment of such costs, the trial court shall take into account
the financial resources of the defendant and the nature of the burden that payment of costs
will impose. Id. Accordingly, "a trial court has a statutory obligation to make an
individualized inquiry into a defendant's current and future ability to pay before the court
imposes LFOs." State v. Blazina, 182 Wn.2d 827, 830, 344 P.3d 680 (2015).
Importantly, "the court must do more than sign a judgment and sentence with
boilerplate language stating that it engaged in the required inquiry." Id. at 838.
Therefore, "[t]he record must reflect that the trial court made an individualized inquiry
into the defendant's current and future ability to pay." 1 Id. However, neither
RCW 10.01.160 nor the constitution "' requires a trial court to enter formal, specific
findings regarding a defendant's ability to pay [discretionary] court costs.'" State v.
Lundy, 176 Wn. App. 96, 105, 308 PJd 755 (2013) (alteration in original) (quoting State
v. Curry, 118 Wn.2d 911, 916, 829 P.2d 166 (1992)).
"A defendant who makes no objection to the imposition of discretionary LFOs at
sentencing is not automatically entitled to review." Blazina, 182 Wn.2d at 832. Subject
1 Although courts have little guidance regarding what counts as an "individualized inquiry," Blazina makes clear, at a minimum, the sentencing court "must consider important factors ... such as incarceration and a defendant's other debts, including restitution, when determining a defendant's ability to pay," and "should also look to the comment in court rule GR 34 for guidance." Blazina, 182 Wn.2d at 838.
12 No. 33702-2-III State v. Magallan
to three exceptions that do not apply here, RAP 2.5(a) provides that an "appellate court
may refuse to review any claim of error which was not raised in the trial court." Blazina
confirmed that an appellate court's discretion under RAP 2.5(a) extends to review of a
trial court's imposition of discretionary LFOs. Id. at 834-35.
Under Blazina, each appellate court is entitled to "make its own decision to accept
discretionary review" of unpreserved LFO errors. Id. at 835. Admittedly, the judges of
this court are not in agreement as to what extent discretion should be exercised to review
unpreserved LFOs. An approach favored by the author is to consider the administrative
burden and expense of bringing a defendant to court for a new hearing, versus the
likelihood that the discretionary LFO result will change. "An important consideration of
this analysis is the dollar amount of discretionary LFOs imposed by the sentencing court."
State v. Arredondo, 190 Wn. App. 512,538,360 P.3d 920 (2015), review granted, 185
Wn.2d 1024, 369 P.3d 502 (2016). In this case, the majority of these factors weigh in
favor of reviewing Mr. Magallan's unpreserved discretionary LFO challenge.
First, the dollar amount of the discretionary LFOs the trial court imposed warrants
granting review. The trial court imposed, perhaps unintentionally, medical costs incurred
during incarceration. The sentence imposed was 114 months. Medical costs over the
course of nearly 10 years might be substantial.
13 No. 33702-2-III State v. Magallan
The second factor-the administrative burden and expense of bringing Mr.
Magallan to court for a new sentencing hearing-weighs against granting review. Unless
remand is otherwise required, the State would incur the extra expense of transporting Mr.
Magallan to court.
The final factor weighs in favor of granting review-a new sentencing hearing
would likely change the discretionary LFO result. As indicated earlier, Mr. Magallan
probably depends on government assistance, and he has no car, no telephone, and no
home of his own. A new sentencing hearing would very likely change the discretionary
LFO result.
In weighing the relevant factors, we exercise our discretion and accept review of
Mr. Magallan's discretionary LFO challenge. As acknowledged by the State, there is no
evidence to support imposition of the discretionary LFOs. Rather than remand for a new
sentencing hearing, the State requests that we remand with instructions to the trial court
for it to strike the discretionary LFOs. We so instruct.
2. Mandatory LFOs
Mr. Magallan did not object to mandatory LFOs below. The State urges this court
to decline to accept review of the unpreserved mandatory LFO challenge and to follow
State v. Stoddard, 192 Wn. App. 222, 366 P.3d 474 (2016). In Stoddard, we refused to
14 No. 33702-2-111 State v. Magallan
review unpreserved arguments challenging the constitutionality of various mandatory
LFOs. Id. at 226. The reason for our refusal was the record was insufficient for us to
determine Stoddard's indigency. Id. at 228-29.
That is not the case here. The degree of Mr. Magallan's indigency was an
important factor in the State's ability to prove intent to deliver. Indeed, it was an
important factor supporting our affirmance.
We therefore agree to review Mr. Magallan's unpreserved mandatory LFO
challenge. But we do so only in the most summary fashion. We note that the issues he
raises were recently raised and rejected in State v. Mathers, 193 Wn. App. 913, 376 P.3d
1163, review denied, 186 Wn.2d 1015, 380 P.3d 482 (2016). We similarly reject his
challenges.
D. COSTS ON APPEAL
Mr. Magallan requests that we exercise our discretion and not award the State
appellate costs in the event it substantially prevails. In making his request, Mr. Magallan
has complied with our Jun~ 10, 2016 general order and submitted sufficient proof of his
continued indigency. We, therefore, decline to award the State costs on appeal.
15 No. 33702-2-III State v. Magallan
Affirmed with instructions to correct the judgment and sentence.
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.
Lawrence-Berrey, J. j WE CONCUR:
Siddoway, J.