IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON t. .1

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STATE OF WASHINGTON,

Respondent,

v.

No. 68062-5-1

DIVISION ONE

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ERIC VERNON CARMICHAEL, UNPUBLISHED OPINION CO

1—1

Appellant. FILED: May 13, 2013

Leach, C.J. — Eric Carmichael appeals his sentence for his conviction for

possession of stolen property, unlawful possession of a firearm, and violation of

the Uniform Controlled Substances Act, chapter 69.50 RCW. He challenges the

trial court's finding that he has the current or future ability to pay the imposed

mandatory legal financial obligations and the legality of his sentence. In a

statement of additional grounds, Carmichael claims that the court improperly

denied his motions to suppress evidence, denied him meaningful access to the

court, erroneously denied his requested jury instruction, improperly permitted the

prosecutor to disclose his prior crimes, erroneously admitted evidence, and

miscalculated his offender score. Because the record does not support the

ability to pay finding and the finding is unnecessary, we remand for the limited

purpose of striking the finding. Finding no merit in Carmichael's remaining

arguments, we otherwise affirm.
No. 68062-5-1/2

Background

On May 21, 2011, around 5:00 a.m., an off-duty Seattle Police officer

reported suspicious circumstances to the Renton Police. She had seen two

white males and a black male flee from a vehicle parked in a no-parking zone

into adjacent woods. One of the Renton officers looked into the vehicle and

observed an open glove box, items strewn about, the absence of a stereo, and

its wires hanging out. A police dispatch indicated that the vehicle was not

reported as stolen. The Renton officers found two of the men, including

Carmichael, in the woods and directed them to stop. Carmichael matched the

description of one of the individuals seen fleeing the vehicle. Although the

officers told Carmichael to keep his hands up, he repeatedly dropped them to his

side. One of the officers patted down Carmichael for weapons and found a

loaded handgun, pepper spray, a window punch, and a Leatherman tool in his

jacket pocket.

At a showup, the Seattle Police officer positively identified the men as

those she saw at the vehicle. The officers learned that Carmichael was a

convicted felon and that the vehicle was now reported as stolen. They arrested

Carmichael and searched him incident to arrest, finding methamphetamine and

suspected stolen items, including a check.

The State charged Carmichael with one count of possession of a stolen

vehicle, one count of unlawful possession of a firearm in the first degree, one

count of possession of stolen property in the first degree, and one count of

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No. 68062-5-1 / 3

violation of the Uniform Controlled Substances Act for possession of

methamphetamine. The court granted Carmichael's motion to represent himself

but also appointed standby counsel. At trial, the court denied Carmichael's

motions to suppress physical evidence under CrR 3.6 and his motion to dismiss

under CrR 8.3(b) for governmental misconduct. The State conceded that it

presented insufficient evidence of possession of a stolen vehicle, and a jury

convicted Carmichael on all other counts. The court imposed concurrent

sentences, totaling 116 months of confinement and 12 months of community

custody. Carmichael appeals.

Analysis

Carmichael contends that the record does not support the sentencing

court's boilerplate finding that he "has the present or likely future ability to pay the

financial obligations imposed." Carmichael does not challenge the financial

obligations that the court imposed—the victim's penalty assessment and the

DNA collection fee. He seeks only to strike the court's finding regarding his

ability to pay. Because this finding is unsupported by the record and

unnecessary, we grant his request.

The trial court is not required to enter findings regarding a defendant's

ability to pay before ordering the defendant to pay financial obligations.1 The

proper time for such findings "is the point of collection and when sanctions are

1 State v. Blank, 131 Wn.2d 230, 241-42, 930 P.2d 1213 (1997); State v.

Curry. 118 Wn.2d 911, 916, 829 P.2d 166(1992).

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No. 68062-5-1/4

sought for nonpayment."2 While sentencing courts must consider the

defendant's financial situation before imposing nonmandatory costs,3 this

consideration is not necessary at sentencing when, as here, the financial

obligations imposed are mandatory.4 In these circumstances, the challenged

finding is unnecessary and should be stricken from the judgment and sentence.

Carmichael also claims that his sentence exceeds the statutory maximum.

The court imposed standard range sentences of 116 months of confinement for

unlawful possession of a firearm in the first degree, 57 months of confinement for

possession of stolen property in the first degree, and 24 months of confinement

for violation of the Uniform Controlled Substances Act.

Carmichael contends that the court added the 12 months of community

custody to his sentence for unlawful possession of a firearm. He argues that

when combined with the 116 months of confinement that the court imposed on

this count, the total exceeds the statutory maximum term of 120months.5

2 Blank, 131 Wn.2d at 241-42; State v. Crook, 146 Wn. App. 24, 27, 189

P.3d 811 (2008).

3 See RCW 10.01.160(3) ("The court shall not order a defendant to pay

costs unless the defendant is or will be able to pay them. In determining the

amount and method of payment of costs, the court shall take account of the

financial resources of the defendant and the nature of the burden that payment of

costs will impose."); State v. Baldwin, 63 Wn. App. 303, 308-12, 818 P.2d 1116

(1991), 837 P.2d 646 (1992); State v. Bertrand, 165 Wn. App. 393, 404, 267 P.3d

511 (2011). review denied. 175Wn.2d 1014, 276 P.3d 10(2012).

4See, e.g.. State v. Thompson, 153 Wn. App. 325, 336-39, 223 P.3d 1165

(2009) (DNA fee is mandatory and imposed regardless of hardship); State v.

Williams. 65 Wn. App. 456, 460-61, 828 P.2d 1158 (1992) (victim penalty

assessment "is mandatory and requires no consideration of a defendant's ability

to pay" at sentencing).

5RCW 9.41.040; RCW 9A.20.21.

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No. 68062-5-1 / 5

When the standard range term of confinement, in combination with the

term of community custody, exceeds the statutory maximum for the crime, RCW

9.94A.701(9) requires the sentencing court to reduce the community custody

term to bring the total term within the statutory maximum.6 Despite Carmichael's

assertion, the judgment and sentence shows that the court imposed community

custody for possessing methamphetamine, a controlled substance, in violation of

RCW 69.50.4013. The standard range sentence for that offense is 12+ to 24

months ofconfinement. The statutory maximum term is 60 months.7

Unlawful possession of a firearm in the first degree and possessing stolen

property in the first degree are not crimes against a person.8 And, unlike

violations of the Uniform Controlled Substances Act, they are not violations of

chapter 69.50 RCW or chapter 69.52 RCW.9 Further, the court explicitly rejected

the State's request for an exceptional sentence. Therefore, it is clear from the

record that the sentencing court imposed 12 months of community custody for

violation of the Uniform Controlled Substances Act. Because the maximum term

that Carmichael can serve on that count is 36 months and the total term does not

exceed the statutory maximum of 60 months, his sentence is lawful.

In a statement of additional grounds, Carmichael challenges the trial

court's denial of his motion to suppress the physical evidence that police officers

6 State v. Boyd, 174 Wn.2d 470, 472, 275 P.3d 321 (2012).

7RCW 69.50.4013(2); RCW 9A.20.021(1)(c).

8SeeRCW9.94A.411.

9See RCW 9.41.040(1); RCW 9A.56.150.

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No. 68062-5-1/6

obtained when they searched him in the woods and incident to arrest. Because

Carmichael does not assign error to any of the trial court's findings of fact

entered after the suppression hearing, they are verities on appeal.10 Therefore,

'"our review in this case is limited to a de novo determination of whether the trial

court derived proper conclusions of law from those [unchallenged] findings.'"11

Under Terry v. Ohio,12 "*[p]olice may conduct an investigatory stop if the

officer has a reasonable and articulable suspicion that the individual is involved in

criminal activity.'"13 Police may also conduct a frisk of the person if the officer

has reasonable grounds to believe that the person is armed and presently

dangerous.14 We examine the totality ofthe circumstances to determine whether

a Terry stop and frisk wasjustified.15

An arrest is reasonable if it is based on probable cause.16 The arresting

officer must have "'knowledge of facts sufficient to cause a reasonable [officer] to

10 State v. Lew, 156 Wn.2d 709, 733, 132 P.3d 1076 (2006) (citing State

v. O'Neill. 148 Wn.2d 564, 571, 62 P.3d 489 (2003)).

11 State v. O'Cain, 108 Wn. App. 542, 548, 31 P.3d 733 (2001) (alteration

in original) (quoting State v. Armenta. 134 Wn.2d 1, 9, 948 P.2d 1280 (1997)).

12 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

13 State v. Lee. 147 Wn. App. 912, 916, 199 P.3d 445 (2008) (quoting

State v. Walker. 66 Wn. App. 622, 626, 834 P.2d 41 (1992)).

14 State v. Hudson. 124Wn.2d 107, 112, 874 P.2d 160(1994).

15 State v. Glover. 116 Wn.2d 509, 514, 806 P.2d 760 (1991).

16 State v. Moore. 161 Wn.2d 880, 885, 169 P.3d 469 (2007) (citing State

v. Potter. 156 Wn.2d 835, 840, 132 P.3d 1089 (2006)).

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No. 68062-5-1/7

believe that an offense has been committed' at the time of the arrest."17 An

officer may search an individual's person incident to a valid arrest.18

Here, the trial court concluded that the stop and pat-down search and the

search incident to arrest were lawful. Based upon the unchallenged findings of

fact, we affirm the trial court's denial of Carmichael's motion to suppress the

evidence.

Carmichael also claims that the trial court improperly denied him "nonmonitored and non-recorded phone calls and funds for essential supplies and

services from the Office of Public Defense," as well as "additional requests for

legal materials such as WPIC's [sic]."19 We reject these contentions.

The court determined that the jail was not monitoring his phone calls with

his investigator or standby counsel, that the jail "has legitimate security reasons"

for monitoring his phone calls with defense witnesses, and that he did not have a

privilege that applied to his witnesses. At a pretrial hearing, Carmichael agreed

that the court had addressed many of his requests for additional materials.

Because Carmichael does not explain why he needed additional supplies, he

fails to show that he was entitled to any additional funds.

17 Moore, 161 Wn.2d at 885 (alteration in original) (quoting Potter, 156

Wn.2d at 840).

18 State v. Jones, 146 Wn.2d 328, 335, 45 P.3d 1062 (2002) (citing State

v. Vrielinq. 144 Wn.2d 489, 492, 28 P.3d 762 (2001)).

1911 Washington Practice: Washington Pattern Jury Instructions:

Criminal (3d ed. 2008) (WPIC).

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No. 68062-5-1 / 8

Carmichael also fails to demonstrate that he was denied access to any

necessary services. He chose to represent himself. He agreed that he had

access to Westlaw while he was in jail, and he communicated frequently with the

Office of Public Defense and with his standby counsel. Because Carmichael had

adequate resources to enable him to defend himself sufficiently, we conclude

that he was not denied meaningful access to the court.20

Next, Carmichael claims that the court erred "in denying defendant's jury

instruction on knowingly and willingly, AKA 'unwitting possession."' To define the

knowledge element of unlawful possession of a firearm in the first degree,

Carmichael sought to use a definition from a 1968 version of Black's Law

Dictionary. Because Carmichael fails to show that his proposed instruction

states the applicable law correctly, we reject his claim.21

Carmichael also asserts that even though the court granted his motion in

limine to prohibit the prosecutor from impeaching him with certain prior

convictions, the prosecutor "attacked his character by disclosing his prior crimes

to the jury." The court rejected Carmichael's CrR 8.3(b) motion raising this issue.

20 See State v. Silva. 107 Wn. App. 605, 629-30, 27 P.3d 663 (2001)

("[W]e hold that unless otherwise ordered by the trial court, standby counsel is

not required to actually perform research and errands on behalf of pro se

defendants. Rather, their role is, as the term standby 'counsel' suggests, one of

alerting the accused to matters beneficial to him and providing the accused with

legal advice or representation upon request.").

21 See Joyce v. Dep't of Corr., 155 Wn.2d 306, 323, 119 P.3d 825(2005)

("'Jury instructions are sufficient ifthey allow the parties to argue their theories of

the case, do not mislead the jury and, when taken as a whole, properly inform the

jury of the law to be applied."' (quoting Hue v. Farmbov Spray Co.. 127 Wn.2d

67, 92, 896 P.2d 682 (1995))).

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No. 68062-5-1 / 9

The court can dismiss charges under CrR 8.3(b) if the defendant shows

both (1) arbitrary action or governmental misconduct and (2) prejudice.22 We

review a trial court's denial of an 8.3(b) motion for manifest abuse of discretion.23

A trial court abuses its discretion if its decision is '"manifestly unreasonable, or

exercised on untenable grounds, orfor untenable reasons.'"24

The record shows that the prosecutor properly impeached Carmichael

with evidence of prior convictions for crimes involving dishonesty.25 The

prosecutor elicited this evidence from Carmichael on cross-examination and also

established the prior convictions by public record. Because Carmichael does not

show governmental misconduct, we need not reach the prejudice element.

Carmichael contends that the State violated ER 1002 and ER 1003 by

presenting a facsimile of a check that police obtained when they searched him

incident to arrest. Because Carmichael did not raise this objection when the

State introduced the check into evidence, his objection was untimely.26 As such,

we decline to address this issue.27

22 State v. Michielli. 132 Wn.2d 229, 239-40, 937 P.2d 587 (1997) (citing

State v Blackwell, 120 Wn.2d 822, 831, 845 P.2d 1017 (1993)).

23 State v. Moen. 150 Wn.2d 221, 226, 76 P.3d 721 (2003) (citing Michielli.

132Wn.2dat240).

24 In re Estate of Black. 153 Wn.2d 152, 172, 102 P.3d 796 (2004)

(internal quotation marks omitted) (quoting State v. Downing, 151 Wn.2d 265,

272, 87 P.3d 1169(2004)).

25 ER609(a)(2).

26 See State v. O'Neill. 91 Wn. App. 978, 993, 967 P.2d 985 (1998) ("The

failure to make a timely objection to the admission of evidence at trial precludes

appellate review.").

27 RAP 2.5(a).

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No. 68062-5-1/10

Finally, Carmichael claims that the court miscalculated his offender score

because it should have counted three of his juvenile convictions as the same

criminal conduct. Prior crimes encompass the same criminal conduct and count

as one crime when they share the same criminal intent, time and place, and

victim.28 Asame criminal conduct finding is a discretionary determination.29

The court found that the certified copies of Carmichael's prior convictions

were valid and explained that Carmichael was "sentenced separately on them

and they have different cause numbers." Because Carmichael fails to

demonstrate that the court's reasoning is based on untenable grounds or

reasons, we uphold the court's offender score calculation.

Conclusion

The boilerplate language in Carmichael's judgment and sentence

regarding his ability to pay the imposed mandatory legal financial obligations was

not supported by the record and was unnecessary. Carmichael's sentence did

not exceed the statutory maximum, and the issues that he raises in his statement

28 State v. Tornqren, 147 Wn. App. 556, 564, 196 P.3d 742 (2008) (citing

RCW9.94A.589(1)(a)).

29 State v. Young. 97 Wn. App. 235, 243, 984 P.2d 1050 (1999); see State

v. Porter. 133 Wn.2d 177, 181, 942 P.2d 974 (1997) (appellate court reviews a

same criminal conduct determination for clear abuse of discretion or

misapplication of the law).

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No. 68062-5-1/11

of additional grounds lack merit. Therefore, we remand to the trial court to strike

the unnecessary finding about Carmichael's ability to pay and otherwise affirm.

WE CONCUR:

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