IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

STATE OF WASHINGTON, No. 49855-3-II

Respondent, UNPUBLISHED OPINION

v.

MICHAEL FREDERICK WELLS,

Appellant.

BJORGEN, C.J. — Michael Frederick Wells appeals from the sentence imposed following 

his guilty pleas to two counts of unlawful possession of a controlled substance with intent to 

deliver. Wells contends that (1) the sentencing court’s failure to credit him with time spent in 

custody solely on unrelated charges violated his due process and equal protection rights, (2) his 

defense counsel was ineffective at sentencing, and (3) the sentencing court erred by imposing a 

$2,000 drug enforcement fund fee after finding that he did not have the ability to pay the 

discretionary legal financial obligations (LFOs). We accept the State’s concession that the 

sentencing court erred by imposing the discretionary LFO. In all other respects, we affirm 

Wells’ sentence. Accordingly, we remand to the sentencing court to strike the $2,000 drug 

enforcement fund fee.

FACTS

On October 22, 2013, the State charged Wells with two counts of unlawful possession of 

a controlled substance with intent to deliver. In May 2014, while Wells was awaiting trial for the 

2013 charges, the State charged Wells with additional drug-related offenses in a separate matter. 

On October 14, Wells successfully moved the trial court to suppress evidence in the 2013 matter 

Filed

Washington State

Court of Appeals

Division Two

March 20, 2018
No. 49855-3-II

2

and to dismiss the case for insufficient evidence. The State appealed the trial court’s suppression 

and dismissal orders in the 2013 case. 

Wells pled guilty to the 2014 charges on June 17, 2015, while the State’s appeal in the 

2013 matter was still pending. Wells was sentenced to 40 months’ incarceration in the 2014 

matter, with credit for 121 days served. On January 26, 2016, we issued our unpublished opinion 

in the State’s appeal from the suppression and dismissal orders in the 2013 matter, wherein we 

reversed the trial court’s suppression order and remanded for further proceedings. State v. Wells, 

No. 46818-2-II, slip op at 192 Wn. App. 1028 (Wash. Ct. App. Jan. 26, 2016) (unpublished). 

The mandate for our opinion issued on August 15, 2016.

On December 2, 2016, Wells pled guilty to the 2013 charges of two counts of unlawful 

possession of a controlled substance with intent to deliver. As part of the plea agreement, the 

State agreed to recommend a 24-month sentence to run concurrent with Wells’ sentence in the 

2014 matter. Wells’ sentencing hearing in the 2013 matter was set for December 23.

The parties disagreed as to how much credit for time served Wells was entitled to in the 

2013 matter. The State contended that Wells was entitled to 29 days’ credit for the time he was 

in jail for charges in both the 2013 and 2014 matters. The State further contended that Wells was 

not entitled to credit for the 91 days he was in jail between the date that his 2013 charges were

dismissed and the date that he began serving his sentence in the 2014 matter. Wells also asserted 

that he was entitled to credit for the time served after August 15, 2016, the date of the mandate 

from our opinion in the State’s appeal of the 2013 matter, despite the fact that he had been 

serving his sentence in the 2014 matter.1 In a supplemental sentencing brief, Wells asserted that 

 

1 Wells does not reassert this claim on appeal.
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he was also entitled to credit for the time he was in jail awaiting resolution of the 2014 matter 

and while his 2013 charges had been dismissed.

At the December 23 sentencing hearing, the State requested a continuance to January 4, 

2017, because the prosecutor who had prepared the sentencing memorandum was unavailable. 

The sentencing court granted this continuance without objection from Wells. The sentencing 

court heard arguments on January 4 and indicated that it would reach its decision on the credit 

for time served issue the following morning. At the January 5 sentencing hearing, the sentencing 

court ruled that Wells was not entitled to credit for time served after the August 15, 2016 

mandate issued because he was then serving his sentence in the 2014 matter. Although the 

sentencing court agreed with the State that Wells was entitled only to credit for time served 

before his 2013 charges had been dismissed, it disagreed with the State’s calculation and credited 

Wells with 25 days for time served.

The sentencing court imposed the State’s recommended 24-month sentence to run 

concurrently with Wells’ sentence in the 2014 matter. The sentencing court also stated that it 

would waive discretionary LFOs, finding that Wells did not have an ability to pay them. 

Although the sentencing court found that Wells did not have an ability to pay discretionary 

LFOs, Wells’ judgment and sentence includes a discretionary $2,000 drug enforcement fund fee. 

Wells appeals from his sentence. 
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ANALYSIS

I. CREDIT FOR TIME SERVED

Wells first contends that the sentencing court erred by failing to credit him with the 91 

days in detention between the date that his 2013 charges were dismissed and the date that he 

began serving his sentence in the 2014 matter.2 Wells does not assert that the relevant statutory 

sentencing provision, former RCW 9.94A.505(6) (2010), provides for credit under these 

circumstances, instead claiming that credit must be applied under due process and equal 

protection principles. We disagree.

Sentencing courts are statutorily and constitutionally required to credit defendants with 

presentence detention time against the sentence ultimately imposed. State v. Speaks, 119 Wn.2d 

204, 206, 829 P.2d 1096 (1992); former RCW 9.94A.505(6). The failure to credit a convicted 

defendant with all presentence time served violates due process and equal protection. In re Pers. 

Restraint of Costello, 131 Wn. App. 828, 832, 129 P.3d 827 (2006). 

Fundamental fairness and the avoidance of discrimination and possible multiple 

punishment dictate that an accused person, unable to or precluded from posting bail 

or otherwise procuring his release from confinement prior to trial should, upon 

conviction and commitment to a state penal facility, be credited . . . with all time 

served in detention prior to trial and sentence. Otherwise, such a person’s total time 

in custody would exceed that of a defendant likewise sentenced but who had been 

able to obtain pretrial release.

 

2 As an initial matter, the State contends that Wells waived this issue on appeal by failing to 

argue it at his sentencing hearing. We disagree. First, although not entirely clear, it appears that 

Wells’ contention on appeal was encompassed within the arguments raised in his supplemental 

sentencing memorandum. Second, “illegal or erroneous sentences may be challenged for the 

first time on appeal.” State v. Ford, 137 Wn.2d 472, 477, 973 P.2d 452 (1999), superseded by 

statute on other grounds, LAWS OF 2008, ch. 231 § 4, as recognized in State v. Cobos, 182 

Wn.2d 12, 15-16, 338 P.3d 283 (2014). Accordingly, we address Wells’ contention regarding 

credit for time served on the merits.
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Reanier v. Smith, 83 Wn.2d 342, 346, 517 P.2d 949 (1974). We review constitutional issues de 

novo. State v. Vance, 168 Wn.2d 754, 759, 230 P.3d 1055 (2010).

Former RCW 9.94A.505(6) provides, “The sentencing court shall give the offender credit 

for all confinement time served before the sentencing if that confinement was solely in regard to 

the offense for which the offender is being sentenced.” Former RCW 9.94A.505(6) “simply 

represents the codification of the constitutional requirement that an offender is entitled to credit 

for time served prior to sentencing.” State v. Williams, 59 Wn. App. 379, 382, 796 P.2d 1301 

(1990). Notwithstanding the limiting language of former RCW 9.94A.505(6), our Supreme 

Court has held that offenders are constitutionally entitled to credit for time served even where 

such presentence detention time was in regard to multiple separate charges. See State v. Lewis, 

184 Wn.2d 201, 204-05, 355 P.3d 1148 (2015) (defendant entitled to credit for time served on 

assault and burglary sentences for the time he was detained awaiting trials on charges for assault, 

burglary and failure to register as a sex offender). 

We analyze equal protection challenges under one of three standards of review: strict 

scrutiny, intermediate scrutiny, or rational basis. State v. Manussier, 129 Wn.2d 652, 672-73, 

921 P.2d 473 (1996). Because Wells does not argue that he is a member of a suspect class or 

that application of the credit for time served statute threatens a fundamental right, we apply a 

rational basis review to his equal protection challenge. Manussier, 129 Wn.2d at 673. 

Under the rational basis test, the challenged law must serve a legitimate state objective, 

the law must not be wholly irrelevant for achieving that objective, and the means must be 

rationally related to the objective. Manussier, 129 Wn.2d at 673. The legislature need not adopt 
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the best means; rather, the legislature has broad discretion in how it pursues its legitimate 

objectives. Manussier, 129 Wn.2d at 673. 

Wells does not address the rational basis test as set forth in Manussier in his briefing 

before this court, instead merely claiming that he was entitled to credit for time served toward his 

sentence in the 2013 matter for the time that he was jailed solely on his 2014 charges. He argues 

that the failure to so credit him unconstitutionally “treats him differently based on his financial 

status” because a “rich person could have bailed out during the 91 days” that he was 

incarcerated. Br. of Appellant at 11. This argument fails. 

Regardless of financial status, a defendant is not entitled to credit for presentence time 

served solely for a separate criminal matter. See, e.g., State v. Stewart, 136 Wn. App. 162, 165-

67, 149 P.3d 391 (2006) (defendant entitled to credit only for presentence time actually served 

on a charged offense) (citing State v. Davis, 69 Wn. App. 634, 849 P.2d 1283 (1993)); State v. 

Watson, 63 Wn. App. 854, 822 P.2d 327 (1992); see also In re Pers. Restraint of Albritton, 143 

Wn. App. 584, 594 n.6, 180 P.3d 790 (2008) (“Denial of credit for unrelated charges does not 

raise due process, equal protection, or double jeopardy concerns.”) That Wells was apparently 

unable to obtain bail with regard to his 2014 charges while his 2013 charges were dismissed has 

no bearing on the credit he is entitled to receive against his sentence in the 2013 matter, because 

he was not detained for the 2013 matter during that time period. In addition, Wells did receive 

credit for the 91 days of presentence detention time he served solely with regard to his 2014 

charges. His presentence detention time for the 2014 charges was credited to the sentence for 

those same charges. 
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In short, the legislature has a rational basis for not crediting an offender’s sentence with 

detention time that was not served in relation to the charges underlying that sentence. Because 

Wells did not serve the 91 days of detention time at issue here for the 2013 charges, he is not 

constitutionally entitled to credit for that time against his sentence in the 2013 matter. 

Wells also argues that the failure to credit him with the time detained solely on the 2014 

charges unfairly punishes him for successfully exercising his rights and obtaining a dismissal in 

the 2013 matter. Again, this argument fails. There was no punishment imposed for Wells’ 

temporary success in obtaining a dismissal for his 2013 charges. He was not subject to 

confinement for his 2013 charges during the time period in which the charges were dismissed 

and, accordingly, he was not entitled to credit for any time served while the 2013 charges were 

dismissed. Wells was confined during that period solely because he had pending charges in a 

wholly separate criminal matter, for which he received credit against the sentence imposed in 

that separate matter.3

Accordingly, we hold that Wells has failed to demonstrate any due process or equal 

protection violation stemming from the sentencing court’s refusal to credit him with the 91 days 

of presentence detention time served solely for a separate criminal matter.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

Next, Wells contends that his counsel was ineffective at sentencing for (1) failing to 

argue for a sentence at the bottom of the standard range, (2) failing to demand that a sentencing 

 

3 Wells’ due process claim relies on the same case law and arguments used to support his equal 

protection claim. The due process claim thus fails for the same reasons as does the equal 

protection challenge. To the extent the argument in this paragraph describes a separate due 

process claim, it fails for the reasons in this paragraph.
No. 49855-3-II

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hearing occur immediately after acceptance of his guilty pleas, and (3) failing to object to the 

State’s request for a 13-day continuance of the sentencing hearing. On all contentions, we 

disagree.

To demonstrate ineffective assistance of counsel, Wells must show both (1) that defense 

counsel’s conduct was deficient and (2) that the deficient performance resulted in prejudice. 

State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004). Performance is deficient if it 

falls below an objective standard of reasonableness. In re Det. of Moore, 167 Wn.2d 113, 122, 

216 P.3d 1015 (2009). Counsel’s conduct is not deficient if it can be characterized as legitimate 

strategy or tactics. State v. Kyllo, 166 Wn.2d 856, 863, 215 P.3d 177 (2009). Prejudice occurs 

where there is a reasonable probability that, but for the deficient performance, the outcome of the 

proceedings would have been different. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 

1251 (1995). We need “not address both prongs of the ineffective assistance test if the 

defendant’s showing on one prong is insufficient.” State v. Foster, 140 Wn. App. 266, 273, 166 

P.3d 726 (2007). 

Regarding Wells’ first claim of ineffective assistance, even assuming, without deciding,

that counsel performed deficiently by failing to request a sentence at the bottom end of the 

standard range, Wells cannot show a reasonable probability that the sentencing court would have 

followed his recommendation. At Wells’ plea hearing, the trial court informed Wells that it did 

not have to follow the State’s recommended sentence of 24 months to be served concurrently

with his sentence in the 2014 matter. The trial court further informed Wells that it could 

sentence him anywhere in the 20 to 60 month standard range for his offenses. The trial court 
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was aware of its discretion to sentence Wells anywhere within the standard range regardless of

any sentencing recommendations from the State or defense counsel. 

Against this background, Wells does not demonstrate a reasonable probability that the trial 

court would have exercised its discretion any differently had defense counsel recommended a 

sentence at the bottom of the range. Accordingly, he cannot show the requisite prejudice to support 

his claim of ineffective assistance of counsel on this ground.

Wells also contends that his defense counsel was ineffective for failing to demand a 

sentencing hearing immediately following entry of his guilty pleas and for acquiescing to the 

State’s request for a continuance of the sentencing hearing. On each contention, we disagree.

Wells cannot show defense counsel performed deficiently by failing to immediately 

request a sentencing hearing following the entry of his guilty plea because this conduct can be

characterized as a legitimate tactic. Defense counsel indicated at the plea hearing that he 

believed there was an arguable basis to credit Wells with time served in the 2014 matter based on 

existing case law. Although defense counsel’s briefing and argument at the continued sentencing 

hearing was ultimately unsuccessful, we cannot say that the tactic of not requesting an immediate 

sentencing in order to fully prepare the arguments raised was illegitimate. Accordingly, Wells 

cannot show defense counsel performed deficiently on this basis. 

Similarly, defense counsel’s conduct in acquiescing to the State’s request for a 

continuance of the sentencing hearing can be characterized as a legitimate tactic and, thus, 

cannot support Wells’ ineffective assistance of counsel claim. After the State obtained a 

continuance of the sentencing hearing, defense counsel filed a supplemental sentencing brief that 

appears to encompass the same credit for time served argument raised in this appeal. Because 
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defense counsel’s acquiescence to a continuance allowed him to present additional argument 

regarding Wells’ credit for time served, it can be characterized as a legitimate strategy and, thus, 

cannot support a claim of ineffective assistance of counsel. 

Moreover, Wells cannot show that the sentencing court would have likely denied the 

State’s continuance request had defense counsel objected. The sentencing court stated that it 

desired to hear argument from the prosecutor who had prepared the State’s sentencing 

memorandum, who was then unavailable. Because the sentencing court indicated its desire to 

hear from the unavailable prosecutor regarding the credit for time served issue, Wells cannot 

show a reasonable probability that it would have denied the State’s continuance request had 

defense counsel objected. Accordingly, Wells’ ineffective assistance claim fails for this reason 

as well.

III. LFOS

Finally, Wells contends, and the State concedes, that the sentencing court erred by 

imposing a $2,000 drug enforcement fund fee as part of his LFOs, because the sentencing court 

found that Wells did not have the ability to pay discretionary LFOs. We agree and accept the 

State’s concession that the sentencing court erred by imposing this fee.

Former RCW 10.01.160(3) (2010) provides in relevant part that a sentencing “court shall 

not order a defendant to pay costs unless the defendant is or will be able to pay them.” This 

statutory requirement applies only to the imposition of discretionary LFOs. State v. Lundy, 176 

Wn. App. 96, 102, 308 P.3d 755 (2013). The drug enforcement fund fee imposed here was a 

discretionary LFO. See RCW 9.94A.760(1) (“the court may order the payment of a legal 

financial obligation as part of the sentence.”) (emphasis added); former RCW 9.94A.030(30) 
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(2012) (defining “legal financial obligation” to include “county or interlocal drug funds.”); see 

also State v. Hunter, 102 Wn. App. 630, 634-35, 9 P.3d 872 (2000) (characterizing imposition of 

fee for county or interlocal drug funds as discretionary). 

The sentencing court found that Wells was unable to pay discretionary LFOs and stated 

its intention to waive discretionary LFOs. Despite this finding, Wells’ judgment and sentence 

includes the imposition of the discretionary $2,000 drug enforcement fund fee. Because the 

imposition of this fee violates former RCW 10.01.160(3), we remand to the sentencing court to 

strike it from Wells’ judgment and sentence. In all other respects, we affirm Wells’ sentence.

A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 

2.06.040, it is so ordered.

Bjorgen, C.J.

We concur:

Johanson, J.

Sutton, J.