IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

ROBERT RAY ABBETT,

Appellant.

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No. 36482-8-III

UNPUBLISHED OPINION

FEARING, J. — On appeal from a conviction for possession of a controlled 

substance with intent to deliver, Robert Abbett claims the State violated his due process 

rights by failing to notify him that the State might seek doubling of his maximum sentence 

under RCW 69.50.408(1). The statutory subsection allows doubling of the maximum 

sentence if the offender earlier garnered another drug conviction. We follow precedent 

that holds the State need not give such notice in the charging information. We thereby 

affirm Abbett’s sentence.

FACTS

Toppenish Police Officer Joshua Rosenow stopped Robert Abbett on April 6, 

2017, for speeding and an obstructed license plate. After Officer Rosenow activated his 

emergency lights, Abbett continued driving his truck a block and a half before stopping. 

FILED

MARCH 24, 2020

In the Office of the Clerk of Court

WA State Court of Appeals Division III
No. 36482-8-III

State v. Abbett

2

Abbett had a female passenger. Officer Rosenow walked to Abbett’s car, took Abbett’s 

driver’s license, returned to his patrol vehicle, and, through his car’s computer, 

researched Abbett’s driver’s license number. Rosenow’s search unearthed a Marysville 

Municipal Court no-contact order restraining Abbett from contact with Brenda Istvan. 

Officer Rosenow returned to Abbett’s vehicle and asked the passenger for her 

identification. The identification card listed Istvan. 

Officer Joshua Rosenow requested law enforcement officer assistance to arrest 

Robert Abbett. Officer Cody Quantrell arrived within thirty seconds. Officer Rosenow 

opened Abbett’s truck’s driver side door, and Abbett promptly closed the door. Abbett 

attempted to shift his truck into “drive,” and the engine revved. Report of Proceedings at

47. Rosenow deployed his stun gun on Abbett, but Abbett pulled the wires from the 

cartridge. After squirting Abbett’s face with pepper spray, the two law enforcement 

officers removed Abbett from the truck. 

During a search incident to the arrest of Robert Abbett, Officer Cody Quantrell 

located a firearm and an ammunition magazine in a shoulder holster that Abbett wore. 

Abbett could not lawfully possess a firearm due to earlier felony convictions. Officers 

seized Abbett’s truck and later executed a search warrant on the vehicle. The officers 

confiscated two scales, baggies, and $690 in cash from the truck. 
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The Washington State Patrol Crime Laboratory tested the white substance found in 

the baggies and determined the substance to be methamphetamine. The Toppenish Police 

Department inadvertently destroyed the baggies and their contents after the crime lab 

returned the objects to the department. The police department preserved transmittal 

documents to and from the crime lab, the lab report, and a log maintained by the 

department. 

PROCEDURE

Because Robert Abbett challenges the notice afforded him in the charging 

documents, we detail the contents of the many informations filed by the State. In its 

initial information, the State of Washington charged Robert Abbett with assault in the 

third degree, attempted second degree assault, unlawful possession of a firearm in the 

second degree, and violation of an order of protection. The State later filed an amended 

information. The amended information included two additional counts: possession of a 

controlled substance, methamphetamine, with intent to deliver and use of drug 

paraphernalia. The amended information stated that the maximum penalty for possession 

of a controlled substance with intent to deliver was “10 years imprisonment and/or a 

$25,000.00 fine.” Clerk’s Papers (CP) at 11.
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In a second amended information, the State switched the attempted assault in the 

second degree charge to a charge of assault in the second degree. The State also amended 

the unlawful possession of a firearm in the second degree charge to allege that Robert 

Abbett previously incurred felony convictions. 

The State filed a third amended information. This last information removed one of 

the named officers as a victim of assault in the second degree. The third amended 

information also removed some of the earlier felony convictions alleged for purposes of 

the predicate conviction for unlawful possession of a firearm, deleted the use of the drug 

paraphernalia count, and added a firearm enhancement that alleged that Robert Abbett 

possessed a controlled substance with intent to deliver while armed with a firearm. As 

with the prior documents, the third amended information stated the maximum penalty of 

ten years imprisonment on count five. Count six of the last information changed the 

charge of use of drug paraphernalia to possession of a controlled substance, 

methamphetamine. The State of Washington never mentioned, in any of the charging 

informations, that it would seek to double the maximum penalty for the conviction of 

possession of a controlled substance with intent to deliver.

The prosecution proceeded to a jury trial. Both Officers Joshua Rosenow and 

Cody Quantrell testified, and the State played, for the jury, Rosenow’s dash camera video 
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State v. Abbett

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of the incident. The video contained no audio, and the State did not play the entire video.

The trial court admitted State’s identification numbers 15 and 16, photographs of the two 

baggies containing the white substance, over defense counsel’s objection. 

Prior to submitting the criminal charges to the jury for deliberation, the trial court 

dismissed the assault in the third degree charge. The jury found Robert Abbett guilty of 

unlawful possession of a firearm in the second degree, violation of an order of protection, 

and possession of a controlled substance with intent to deliver. The trial court dismissed 

the lesser crime of possession of a controlled substance because the jury returned a guilty 

verdict on possession with intent to deliver. The jury found Abbett not guilty of assault in 

the second degree. The jury rendered special verdicts that the no-contact order violation 

involved a household member and that Abbett armed himself with a firearm at the time of 

the commission of possession of methamphetamine with the intent to deliver. 

Before sentencing, the State filed a sentencing memorandum that listed Robert 

Abbett’s prior convictions and included a chart that calculated Abbett’s offender score. 

The chart included a 2012 possession of a controlled substance, methamphetamine, 

conviction and sentence. Accordingly, the State wrote in its memorandum:

Also, as Defendant has a prior conviction under Chapter 69.50 

RCW, the statutory maximum for Count 5 doubles from 120 to 240 months. 

See RCW 69.50.408(1).
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CP at 120.

At sentencing, the trial court concluded that, because of the doubling provision in 

RCW 69.50.408(1), Robert Abbett’s maximum sentence on count five, possession of a 

controlled substance with intent to deliver, was twenty years. The trial court sentenced 

Abbett to 43 months’ confinement for unlawful possession of a firearm in the second 

degree, 364 days for violation of an order of protection, and 146 months for possession of 

a controlled substance with intent to deliver. The 146-month sentence on count five 

included a 36-month firearm enhancement. The sentencing court also imposed 12 months 

of community custody. The court ordered all sentences to run concurrently. 

LAW AND ANALYSIS

On appeal, Robert Abbett contends that his sentence for possession of a controlled 

substance with intent to deliver exceeds the maximum for a class B felony and that the 

trial court’s use of the doubling provision contained in RCW 69.50.408(1) violated his 

due process right to notice under the Fourteenth Amendment to the United States 

Constitution and article I, section 3 of the Washington State Constitution. The jury 

convicted Robert Abbett of a class B felony, possession with intent to deliver, which 

carries a statutory maximum ten year sentence. But RCW 69.50.408(1) declares:

Any person convicted of a second or subsequent offense under 

[chapter 69.50 RCW] may be imprisoned for a term up to twice the term 
No. 36482-8-III

State v. Abbett

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otherwise authorized, fined an amount up to twice that otherwise 

authorized, or both.

RCW 69.50.408(1) doubles the maximum sentence of the underlying charge under 

chapter 69.50 RCW, not the standard sentence range. In re Personal Restraint of Cruz, 

157 Wn.2d 83, 90, 134 P.3d 1166 (2006). When a defendant was earlier convicted under 

chapter 69.50 RCW, RCW 69.50.408 automatically applies to double the statutory 

maximum sentence. State v. Cyr, 8 Wn. App. 2d 834, 841, 441 P.3d 1238, review 

granted, 194 Wn.2d 1001, 451 P.3d 329 (2019). The trial court’s discretion involves

what sentence to actually impose within the doubled maximum and the standard range. 

State v. Cyr, 8 Wn. App. 2d at 841.

Robert Abbett concedes that the State previously convicted him of a drug crime. 

He also concedes that RCW 69.50.408(1) indicates that the maximum term for possession 

with intent to deliver may be twenty years instead of ten. Abbett contends, however, that 

the State never notified him in the many charging informations or in a separate pleading 

that he faced a penalty of twenty years.

State v. McNeal, 142 Wn. App. 777, 175 P.3d 1139 (2008) controls this issue. 

John McNeal argued that the trial court violated his due process right to notice under 

article I, section 22 of the Washington State Constitution and the Sixth Amendment to the 

United States Constitution because the State’s charging document failed to assert the 
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existence of the condition precedent to the application of RCW 69.50.408(1)’s doubling 

provision, which precedent was McNeal’s previous qualifying drug offenses. State v. 

McNeal, 142 Wn. App. at 785. The McNeal court disagreed. The court noted that the 

charging information need include only “the essential elements of the charged crime.” 

State v. McNeal, 142 Wn. App. at 785. While relying on Apprendi v. New Jersey, 530 

U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) and Blakely v. Washington, 542 

U.S. 296, 301, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), the McNeal court emphasized:

“Other than the fact of a prior conviction, any fact that increases the 

penalty for a crime beyond the prescribed statutory maximum must be 

submitted to a jury, and proved beyond a reasonable doubt.”

State v. McNeal, 142 Wn. App. at 786 (quoting Blakely v. Washington, 542 U.S. at 301). 

Accordingly, the McNeal court reasoned that the State’s failure to plead the doubling 

provision did not violate McNeal’s due process right to notice of the charges against him. 

State v. McNeal, 142 Wn. App. at 786. Presumably, as long as the accused received 

notice of his charges, he may conduct the research needed to determine the full maximum 

of his possible sentence.

This court, in State v. Roy, 147 Wn. App. 309, 195 P.3d 967 (2008), followed the 

same reasoning as the McNeal court. We held that the State did not breach Nicholas 

Roy’s due process notice rights when it did not give notice that his maximum sentence 
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could be doubled under RCW 69.50.408(1). We follow the teachings of State v. McNeal

and State v. Roy.

In his reply brief, Robert Abbett cites State v. Crawford, 159 Wn.2d 86, 147 P.3d 

1288 (2006). The Crawford court held that the State must give notice to an accused 

facing a determination of habitual offender status. Abbett equates a habitual offender 

charge and the doubling provision of RCW 69.50.408(1) for purposes of the notice the 

State must afford the accused. We disagree. As stated in State v. Crawford:

[P]rosecutors must set forth their intent to seek enhanced penalties 

for the underlying crime in the information and are not applicable where, as 

here, a defendant faces potential sentencing consequences because of 

convictions for prior crimes.

 

State v. Crawford, 159 Wn.2d at 94. RCW 69.50.408(1) imposes a doubling measure on 

the existence of a prior conviction.

Robert Abbett also contends the RCW 69.50.408(1)’s doubling provision parallels 

an aggravating circumstance under RCW 9.94A.537(1) such that the State must have 

afforded him notice of the doubling provision. Once again, we disagree. On the one 

hand, RCW 9.94A.537(1) directs the State to give notice that it intends to seek a sentence 

above the standard range “[a]t any time prior to trial or entry of the guilty plea,” and that 

“[t]he notice shall state aggravating circumstances upon which the requested sentence 

will be based.” On the other hand, the doubling provision of RCW 69.50.408(1) modifies 
No. 36482-8-III

State v. Abbett

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only the maximum penalty for the offense, not the standard range penalty. In re Personal 

Restraint of Cruz, 157 Wn.2d at 90 (2006).

Finally, Robert Abbett argues, in the alternative, that, if RCW 69.50.408(1) does 

not constitute an aggravating circumstance, the statutory subsection metes an enhanced 

sentence. Abbett cites State v. Theroff, 95 Wn.2d 385, 622 P.2d 1240 (1980), that 

compares the doubling provision to enhanced penalties such as firearm and deadly 

weapon enhancements. Nevertheless, Abbett cites no authority mandating that due 

process notice requirements, applicable when the State seeks enhanced penalties, apply to 

when the State seeks to apply the doubling provision under RCW 69.50.408(1). We 

decline to extend the rule in this appeal.

We also observe that Robert Abbett shows no prejudice resulting from application 

of RCW 69.50.408(1). He does not contend he would have changed his trial strategy or 

any negotiation tactic assuming notice from the State of the doubling statute.

Statement of Additional Grounds

Robert Abbett raises three arguments in his statement of additional grounds for 

review (SAG). First, Abbett complains about the the destruction of exculpatory evidence 

before trial. Although not expressly stated by Abbett, he probably references the 

inadvertently destroyed baggies containing methamphetamine.
No. 36482-8-III

State v. Abbett

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To comport with due process, the prosecution must disclose material exculpatory 

evidence to the defense and preserve such evidence for use by the defense. Brady v. 

Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); State v. Wittenbarger, 

124 Wn.2d 467, 474-75, 880 P.2d 517 (1994). Contrary to Abbett’s contention, the 

actual baggies and the encased substance would have implicated him, not exculpated him.

Second, Robert Abbett contends that his trial counsel performed ineffectively 

when counsel failed to object to the State’s introduction of only a portion of the video 

captured by the law enforcement officer camera. Abbett asserts that his counsel should 

have insisted on the playing of the full video because its entirety “would clearly [have] 

established what really happened.” SAG at 8. Nevertheless, Abbett does not indicate 

whether establishing what really happened would have benefited or prejudiced him.

Robert Abbett’s second assigned error pertains to matters outside the record, 

which we cannot address in direct appeal. The entire video is not before us. A personal 

restraint petition is the proper means to introduce evidence outside the record on appeal.

State v. McFarland, 127 Wn.2d 322, 338, 899 P.2d 1251 (1995).

Third, Robert Abbett contends that the destruction of the methamphetamine and 

the State’s showing of only a portion of the dash camera video qualifies as prosecutorial 

misconduct. Abbett cites only RPC 8.4 in support of this assigned error.
No. 36482-8-III

State v. Abbett

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To prevail on a claim of prosecutorial misconduct, a defendant must show that the 

prosecutor’s conduct was both improper and prejudicial. State v. Thorgerson, 172 Wn.2d 

438, 442, 258 P.3d 43 (2011). Abbett fails to cite this general principle. He also fails to 

show any prejudice.

CONCLUSION

We affirm Robert Abbett’s convictions 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.

Fearing, J.

WE CONCUR:

Lawrence-Berrey, J.

Korsmo, A.C.J.