IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

PAULA M. GARDNER,

Appellant.

)

)

)

)

)

)

)

)

)

No. 36660-0-III

OPINION PUBLISHED IN PART

KORSMO, A.C.J. — Paula Gardner appeals from convictions for first degree 

burglary and possession of a controlled substance. In the published portion of this 

opinion, we address her challenge to the verdict form used for the possession count. In 

the unpublished portion, we address her challenge to the State’s withdrawal from its plea 

agreement with Ms. Gardner. Overall, we affirm the convictions and remand to strike a 

provision of the sentence.

FACTS

Ms. Gardner was tried in the Lincoln County Superior Court on the two noted 

charges after the State was able to withdraw Ms. Gardner’s guilty plea to a criminal 

trespassing charge due to her breach of a cooperation agreement. At trial, the evidence 

FILED

AUGUST 18, 2020

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 36660-0-III

State v. Gardner

2

showed that Ms. Gardner possessed methamphetamine at the time she was arrested for 

burglary.

The charging document accused her of possessing methamphetamine. The 

elements instruction required the jury to find beyond a reasonable doubt that Ms. Gardner 

“possessed a controlled substance.” Another instruction advised the jury that 

methamphetamine was a controlled substance. The verdict form directed the jurors to 

determine whether Ms. Gardner was guilty or not guilty 

of the crime of Possession of a Controlled Substance—other than 

Marijuana in Count II.

Clerk’s Papers at 292.

The jury convicted Ms. Gardner on the two charged counts. The trial court 

imposed an exceptional sentence composed of consecutive terms due to the defendant’s 

exceptionally high offender score. Ms. Gardner timely appealed to this court. A panel 

considered her appeal without conducting oral argument.

ANALYSIS

The appeal raises challenges to the revocation of the original guilty plea, a provision 

of the judgment and sentence, and to the verdict form used on the drug possession count. 

We address the latter issue first.

Ms. Gardner argues that the failure of either the elements instruction or the verdict 

form to identify methamphetamine as the drug she possessed resulted in an unauthorized 
No. 36660-0-III

State v. Gardner

3

sentence. This issue is one that has divided the appellate courts. See State v. Sibert, 168 

Wn.2d 306, 230 P.3d 142 (2010). She primarily relies on the Division One decision in 

State v. Clark-El, 196 Wn. App. 614, 618, 384 P.3d 627 (2016), and this court’s adoption 

of Clark-El in State v. Barbarosh, 10 Wn. App. 2d 408, 448 P.3d 74 (2019). 

Those cases stand for the proposition that where an elements instruction does not 

identify the controlled substance, a general verdict form that merely finds a defendant 

guilty of “possession of a controlled substance” does not authorize the trial court to 

sentence as if the offender possessed a particular controlled substance. Barbarosh, 10 

Wn. App. 2d at 418. Instead, the court must sentence consistent with the lowest possible 

drug possession offense, misdemeanor possession of marijuana. Id. at 418-419. 

However, a verdict form that identifies the controlled substance found by the jury 

is sufficient to authorize sentencing for that particular substance, even if the elements 

instruction did not specify a specific controlled substance. State v. Rivera-Zamora, 7 

Wn. App. 2d 824, 828-830, 435 P.3d 844 (2019). Courts must look to the entirety of the 

jury instructions in determining whether a jury verdict authorizes a particular sentence. 

Barbarosh, 10 Wn. App. 2d at 410-411, 418. 

The drug sentencing table places all felony controlled substance possession cases in 

seriousness level one. RCW 9.94A.518. The assigned sentencing level is one of two 

components of sentencing under the drug sentencing grid. RCW 9.94A.517. In contrast, 
No. 36660-0-III

State v. Gardner

4

marijuana possession less than 40 grams is sentenced as a misdemeanor in accordance with 

RCW 69.50.4014.

Here, the verdict form reflects the jury’s determination that Ms. Gardner possessed 

a controlled substance other than marijuana. We conclude that form is adequate to take 

this case outside of Barbarosh. The jury expressly found that the appellant possessed a 

controlled substance that was not marijuana. Although a negative finding, it was 

sufficient to place Ms. Gardner’s offense within the scope of the felony drug sentencing 

grid because it eliminated marijuana as a basis for the conviction.

The verdict form authorized the sentence imposed. The court did not err.

A majority of the panel having determined that only the foregoing portion of this 

opinion will be printed in the Washington Appellate Reports and that the remainder, 

having no precedential value, shall be filed for public record pursuant to RCW 2.06.040, 

it is so ordered.

Ms. Gardner also challenges the revocation of her cooperation agreement and 

ensuing withdrawal of her original guilty plea as well as the imposition of community 

supervision fees. The State concedes error on the latter argument and we accept the 

concession. The trial court may not impose discretionary LFOs on indigent defendants. 

State v. Ramirez, 191 Wn.2d 732, 750, 426 P.3d 714 (2018). Accordingly, we remand 

for the court to strike the supervision fee.
No. 36660-0-III

State v. Gardner

5

The revocation issue is the primary focus of the appellate briefing. We have 

explained the basic principles governing this issue:

A plea agreement is a contract with constitutional implications. In re Pers. 

Restraint of Lord, 152 Wn.2d 182, 188-89, 94 P.3d 952 (2004). If a 

defendant breaches a plea agreement, the State may rescind it. State v. 

Thomas, 79 Wn. App. 32, 36-37, 899 P.2d 1312 (1995). However, before 

doing so the State must prove breach by a preponderance of the evidence. 

In re Pers. Restraint of James, 96 Wn.2d 847, 850-51, 640 P.2d 18 (1982).

State v. Townsend, 2 Wn. App. 2d 434, 438, 409 P.3d 1094 (2018). 

We review the trial court’s decision to withdraw a guilty plea for abuse of 

discretion. State v. Blanks, 139 Wn. App. 543, 548, 161 P.3d 455 (2007). Findings of

fact are reviewed for substantial evidence. Id. Discretion is abused when it is exercised 

on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 

12, 26, 482 P.2d 775 (1971). Substantial evidence is that sufficient to persuade a fairminded, rational person of the truth of the evidence. World Wide Video, Inc. v. City of 

Tukwila, 117 Wn.2d 382, 387, 816 P.2d 18 (1991). 

The court conducted two hearings, with Ms. Gardner represented by different 

attorneys at each hearing, concerning the revocation of the agreement and withdrawal of 

the plea. Although the State’s case against both Gardner and Michael Jackson on the 

burglary case was strong, the State offered Gardner the trespassing charge after she 

reported that both Jackson and a mutual friend, Robert Brown, had threatened to kill her. 

The reduced charge would protect Gardner and gain her testimony against both men. The 
No. 36660-0-III

State v. Gardner

6

State moved to revoke the agreement after finding no corroboration of the threats and 

learning that Gardner had lied to law enforcement concerning her relationship with the 

two men.

After the reconsideration hearing, the court entered extensive findings that include 

a lengthy recitation of the evidence presented by each side.1 Although Ms. Gardner 

properly assigns error to numerous findings, much of her argument is misplaced. The 

question on appeal is whether the evidence supported the findings the court did make 

rather than whether the court should have found Ms. Gardner’s version of events a more 

credible explanation. Since she does not point to specific evidentiary problems with the 

findings the court did make (other than her contrary testimony), we need not discuss the 

basis for those findings.

At issue here was whether Ms. Gardner misled the prosecutor and law 

enforcement. The trial court found that she did do so, leading the State to dismiss 

charges against the two men in light of the lack of evidence and Gardner’s self-impugned 

credibility. Despite alleging that she feared the two men, she continued to see them and 

even spent nights at Mr. Jackson’s house. She also fabricated evidence of threats. The 

 

1 Unless a court is going to expressly find or reject each statement, a detailed 

recitation of the evidence is unnecessary and a summary of evidence presented is 

sufficient to set the stage for the trial judge’s findings and conclusions. This court will 

see the evidence presented through the transcript of the hearing and/or the filings 

designated amongst the clerk’s papers. 
No. 36660-0-III

State v. Gardner

7

trial court concluded that, far from being an abused victim, Ms. Gardner was the 

ringleader who orchestrated the group’s criminal activities.

The evidence supported the trial court’s determination that Ms. Gardner falsified a 

story that she was in danger from the two men. Since the need to protect her and 

prosecute the threats was the basis for offering her the initial deal, the State 

understandably sought to withdraw from the agreement. The trial court had very tenable 

reasons for permitting it. 

The court did not abuse its discretion.

Affirmed and remanded.

_________________________________

Korsmo, A.C.J.

WE CONCUR:

_________________________________

Fearing, J.

_________________________________

Lawrence-Berrey, J.