State v. BICKLE

222 P.3d 113
Court of Appeals of Washington·Decided November 17, 2009·No. 37664-4-II·Published·Cited by 2 cases

Opinion

222 P.3d 113 (2009)

STATE of Washington, Respondent,
v.
Kevin M. BICKLE, Appellant.

No. 37664-4-II.

Court of Appeals of Washington, Division 2.

November 17, 2009.

*114 Rebecca Wold Bouchey, Attorney at Law, Mercer Island, WA, for Appellant.

Stephen D. Trinen, Pierce County Prosecutors Ofc., Tacoma, WA, for Respondent.

PENOYAR, A.C.J.

¶ 1 Kevin M. Bickle appeals his resentencing for his 2002 convictions of unlawful manufacture of methamphetamine,[1] unlawful manufacture of marijuana,[2] unlawful possession of methamphetamine,[3] and unlawful possession of marijuana.[4] He claims that his offenses were the same criminal conduct, and that the trial court erred in treating these offenses separately in determining his sentence range. We affirm each of the convictions, and we uphold the sentences for the manufacture and possession of methamphetamines. We disagree with the trial court on one issue, however. We hold that, for sentencing purposes, manufacturing and possessing marijuana constitute the same criminal conduct. Therefore, we reverse Bickle's sentence and remand for resentencing.

Facts

¶ 2 We set out the facts in Bickle's previous direct appeal as follows:

On the night of August 8, 2002, Mary Wigley, Bickle's ex-girlfriend, reported to the Thurston County Sheriff's Office that even though she had a no-contact order against Bickle, he had left threatening messages on her answering machine. She also reported that Bickle was growing marijuana and manufacturing methamphetamine at his house on Ainsworth Street in Tacoma.
The next morning, Steve Hamilton, a Thurston County detective, thought he had probable cause to arrest Bickle for violating a no-contact order and for failing to register as a sex offender. Hamilton drove to Tacoma to arrest Bickle. Pierce County detective Nathan Clammer arrived to assist and, because Bickle was under supervision by the Department of Corrections (DOC), one of its officers also arrived.
The officers observed that Bickle's house was surrounded by a six-foot high chain-link fence with two gates, both padlocked. Bickle's vehicle was in the driveway. Clammer called the residence, but no one answered. Clammer and the DOC officer then jumped the fence "with the intention of arresting Bickel [sic]." [Clerk's Papers (CP) at 24.] They knocked on the front door, identified themselves, then knocked on another door. No one responded, so they came back outside the fence. While *115 inside the fence, they smelled a strong chemical odor and saw drug paraphernalia.
The officers applied for a Pierce County search warrant. Simultaneously, Thurston County officers applied for an arrest warrant based on Bickle's failure to comply with sex offender registration requirements. Both warrants were granted.
Sergeant Shawn Stringer and Detective Terry Krause, both of the Tacoma Police Department, also arrived to assist. Stringer waited for both warrants because "there was no rush." [1 Report of Proceedings (RP) (3.6 hearing, Oct. 22, 2002) at 34.] After trying to contact Bickle for about five hours, the officers broke the door down, and Stringer, Krause, and a meth lab team entered the residence. Once inside, the officers observed a marijuana grow operation and meth lab paraphernalia.
The team searched the entire house but did not find Bickle. Finally, they determined that he was in a crawl space leading to the attic. They tried to flush him out with gas but eventually had to cut a hole in the roof. He was arrested and taken to jail.
On August 12, 2002, the State charged Bickle with unlawfully manufacturing methamphetamine and unlawfully manufacturing marijuana. On October 22, 2002, the State added a count of unlawfully possessing methamphetamine and a count of unlawfully possessing marijuana.
. . . .
On October 23, 2002, the court convened a jury trial. On October 29, 2002, the jury found Bickle guilty as charged. After sentencing, he filed this appeal.

State v. Bickle, noted at 121 Wash.App. 1005, 2004 WL 792413, at * 1-2 (footnotes omitted).

¶ 3 Bickle challenged the search and seizure on appeal, but we affirmed. Pro se, he challenged his offender score calculation, claiming that certain offenses amounted to same criminal conduct. We refused to address the merits of this claim because defense counsel affirmatively agreed to Bickle's standard range at sentencing.

¶ 4 Bickle then filed a personal restraint petition, claiming that (1) his offender scores were incorrect because they were calculated using an outdated sentencing statute; (2) his two manufacturing convictions violate the prohibition against double jeopardy under the "unit of prosecution" rule; and (3) the sentencing court erred when it failed to consider his current offenses as the same criminal conduct. The State conceded error on the offender score and we granted the petition, reserving issues (2) and (3) for the trial court to resolve at the resentencing hearing. In re Pers. Restraint Petition of Bickle, No. 36079-9-II, filed December 11, 2007.

¶ 5 At the 2008 resentencing hearing, the trial court calculated Bickle's offender score at nine for the methamphetamine manufacturing. It imposed a low-end standard range sentence of 149 months' incarceration for the methamphetamine manufacturing count and high-end standard range sentences based on an offender score of five for the marijuana manufacturing count and the counts for possession of methamphetamine and marijuana.[5]

¶ 6 The trial court specifically found that the two manufacturing counts were not the same criminal conduct and that the possession counts were not the same criminal conduct as each of the manufacturing counts. Bickle now appeals.

Analysis

I. Same Criminal Conduct — Manufacturing Methamphetamine and Marijuana

¶ 7 Bickle first argues that the trial court erred in finding that the two manufacturing counts were not the same criminal conduct. He argues that they occurred at the same time and place and had the same objective intent.

¶ 8 Bickle further argues that the trial court erred because the fact that two different drugs were involved is not dispositive; rather, the only question was whether his objective intent was the same. State v. Garza-Villarreal, 123 Wash.2d 42, 49, 864 *116 P.2d 1378 (1993) ("[T]hat the two charges involved different drugs does not by itself evidence any difference in intent. The possession of each drug furthered the overall criminal objective of delivering controlled substances in the future.").

¶ 9 The State responds that Bickle had different objective intents because the two manufacturing processes were to produce two separate drugs, methamphetamine and marijuana. Further, the State argues that the manufacturing processes differ significantly. Finally, the State argues that the manufacturing processes took place in different locations because Bickle manufactured the methamphetamine in his kitchen, but the marijuana operation was in his basement, which was only accessible through an outside door.

¶ 10 Bickle argues that the only dispute is whether he had the same criminal intent when committing both manufacturing offenses. The State co

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State v. BICKLE, 222 P.3d 113 (Wash. Ct. App. 2009).

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