### FILED FEBRUARY 18,2016 In the Office ofthe Clerk ofCourt W A State Court ofAppeals, Division III

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE IntheMatterofthePersonal ) Restraint of: ) No. 33635-2-111 ) ) ) ) JOSEMENDEZ, JR., ) UNPUBLISHED OPINION ) Petitioner. ) FEARING,

### J.

- In 2013, ajuryfound petitionerJose Mendez, Jr. guilty oftwo counts ofpossession ofa controlled substance, one count ofattemptingto elude a pursuingpolicevehicle, one count offirst degree driving while licenserevoked, and one count offelony while driving underthe influence. The trial court imposed an exceptional sentence upward due to Mendez's multiple current and prioroffenses. This court affirmedhisjudgmentand sentence on appeal. See State v. Mendez, Commissioner's Ruling no. 31580-1-111 (Wash. Ct. App. 2014). JoseMendez seeks reliefin this personalrestraintpetitionbyraising fourNo. 33635-2-II1 In re Pers. Restraintof Mendez arguments. First, the State presented insufficient evidence that he possessed the controlled substances. Second, the trial court erred in failing to treat the eluding a police officer, driving with a revoked license, and driving while underthe influence charges as the same criminal conduct for offender scorepurposes. Third, his trial and appeal counsel were ineffective. Fourth, the sentencing court miscalculated the offender score because it counted "washed out" convictions. We accept the State's concession thatthe offender score erroneously included washed out offenses. Consequently, we remand for recalculation ofthe offender score and resentencing. We find no merit in Mendez's remaining contentions and otherwise dismiss the personal restraint petition. FACTS Because Jose Mendez challenges the sufficiency ofthe evidence to support his convictions, we considerthe evidence presented at trial in the light most favorable to the State's case. During one October late evening in 2012, SergeantMonty McNearney of the Union Gap Police Departmentpatrolled the city in a markedpolice car when suddenly a sports utility vehicle (SUV) pulled in front ofhim and turned left. Sergeant McNearney slammed his brakes to avoid a collision. He activated his emergency lights, and the SUV stopped on the side ofthe road. McNearney parked about 25 feet behind the SUV and shined his spotlight on the rear and driver's side ofthe vehicle. The interior ofthe SUVwas dimly lit due to tinted windows, butMcNearney saw the face ofthe driverpeering at him in the driver's side mirror. The driver appeared Hispanic, with 2No.**33635~2~III** In re Pers. Restraint of Mendez

shorthair and facial hair, and wore a red shirt. As McNearney walked to the rear ofthe SUV, he saw the vehicle's brake lights activate. The SUV then accelerated onto the road. Sergeant Monty McNearney and officers in two otherpatrol cars pursuedthe speeding SUV through Union Gap. In the course ofthe chase, the SUV breachedred lights and stop signs, hit apowerpole, and collided with another car. Eventually, McNearney turned a comer and found the SUV stopped midway down the block. He saw the driver exit the SUV and run into the side yard ofa nearby residence. Monty McNearney discoveredJose Mendezhiding under a bush in the residence's yard. Mendez again ran, but officers caught and handcuffed him. He smelled ofalcohol. Police officers found a bag ofcocaine outside the SUV butnear the driver's side door, a bag ofmarijuana inside the SUV, and two envelopes addressed to Mendez. When McNeamey retraced Mendez's running route, McNearney recovered a bag ofblacktar heroin lying on fallen leaves under the bush where Mendez earlier hid. PROCEDURE The State ofWashington charged Jose Mendez with possession ofcocaine and heroin, attempting to elude pursuing officers, driving with a revoked license, and driving under the influence. Thejury found him guilty on all counts. LAW AND ANALYSIS To obtain reliefin a personal restraintpetition, Jose Mendez must show that he is unlawfully restrained due to an error ofconstitutional magnitude that substantially 3No. 33635-2-II1 In re Pers. Restraint

## 0/ Mendez prejudicedhim ordue to a fundamental defect ofa nonconstitutional nature that caused a complete miscarriage of justice. In re Pers. Restraint o/Finstad, 177 Wn.2d 501,506, 301 P.3d 450 (2013); In re Pers. Restraint o/Cook, 114 Wn.2d 802, 812, 792 P.2d 506 (1990). He may not rely on conclusory allegations. In re Pers. Restraint o/Lord, 152 Wn.2d 182, 188,94P.3d 952 (2004). He must showby a preponderance ofthe evidence that the error has caused him actual prejudice. Lord, 152 Wn.2d at 188. Sufficiency ofEvidence ofPossession Jose Mendez challenges the sufficiency ofthe evidence to convicthim of possession ofcocaine andheroin. Officers found the cocaine by the SUV and the heroin under a bush where he hid. Mendez contends his mere proximity to the bags of controlled substances fails to showhepossessed dominion and control overthem. A convictionbased on insufficient evidence violates the due process clause ofthe Fourteenth Amendment and therefore results in unlawful restraint. In re Pers. Restraint o/Martinez, 171 Wn.2d 354,364,256P.3d 277 (2011). To determine whether a conviction rests on insufficient evidence, we considerthe record inthe light most favorable to the defendant and askwhether any rational trier offact couldhave found the essential elements ofthe crimes beyond a reasonable doubt. Martinez, 171 Wn.2d at 364. Questions ofcredibility, persuasiveness, and conflictingtestimony are left to thejury. Martinez, 171 Wn.2d at 364.

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RCW 69.50.4013(1) renders it "unlawful for any persontopossess a controlled substance" unless pursuantto a valid prescription. Possession may be actual or constructive. State V. Jones, 146 Wn.2d 328, 333,45 P.3d 1062 (2002). A defendant has actual possession whenhe holds physical custody ofthe substance. State V. Jones, 146 Wn.2d at 333. Constructive possession comprises dominion and control overthe controlled substance, which means thatthe item may be reduced to actual possession immediately. State V. Jones, 146 Wn.2d at 333. Mere proximity to the drug is insufficientto establish possession over it. State v. Jones, 146 Wn.2d at 333. To establish constructivepossession, the court must look at the "totality ofthe situation" to determine whetherthejurycan reasonably infer from the evidence that the defendant possessed dominion and control. State v. Porter, 58 Wn. App. 57, 60, 791 P.2d 905 (1990). Law enforcement officers did not find the bag ofcocaine or bag ofheroin onJose Mendez's body. No witness sawhim holding ordropping the bags. Thus, the State cannotprove actual possession. Viewed in the light most favorable to the State, however, substantial evidence supported thejury'sreasonable conclusion that Mendez constructively possessed both bags. SergeantMonty McNeamey saw Jose Mendezhurriedly exit from the SUV driver's seat and run to the side yard. No otherperson occupiedthe car. Law enforcement did not observe any otherpersons in that area. The bag ofcocaine lay 

### 5No. 33635-2-II1 In re Pers. Restraintof Mendez immediately outside the driver's door. Officers found a bag ofmarijuana on the SUV's running board, and the location ofthe bag suggested that Mendez dropped the bag after he opened the door. Ajury could reasonably conclude that Mendez dropped the bag of cocaine atthe same time as he droppedthe bag ofmarijuana. The bag ofheroin found in the bush lay on top offallen leaves. Ajury could conclude thatthe bag lay only temporarily on the ground since the season was autumn and leaves continued to fall. Jose Mendez fled from the bush as soon as Monty McNeamey espied him. Thejury could reasonably conclude that Mendez left the bag in

a hiding place and nedto draw attention from the heroin. Jose Mendez's proximityto the drugs, his action in fleeing the SUV, his conduct in rushing from the hiding area ofthe bag ofheroin, and the other circumstances support thejury'sreasonable inferencethat he possessed dominion and control over the drugs. The evidence sufficed to show constructivepossession. Same Criminal Conduct Jose Mendez next contends thatthe trial court erred in treating the charges of eluding a pursuing officer, driving with a revoked license, and driving under the influence as separate current offenses in his offender score. He argues that the convictions should be counted as one offense because they constituted the same criminal conduct. The trial court determines an offender's standard sentence range by calculating an 6No. 33635-2-III In re Pers. Restraint of Mendez

offender score based on the number ofcurrent andpriorconvictions. RCW 9.94A.525; RCW 9.94A.589(l)(a); State v. Graciano, 176 Wn.2d 531,535-36,295 P.3d 219 (2013). Ifthe court finds that some or all ofthe current offenses encompass the same criminal conduct, those current offenses shall be counted as one crime. RCW 9.94A.589(l)(a); Graciano, 176 Wn.2d at 536. Offenses must be treated as the same criminal conduct when they are committed atthe same time andplace, require the same intent, and involve the same victim. Graciano, 176 Wn.2d at 536. RCW 9.94A.589(l)(a) is construed narrowly, and, ifthe defendant fails to prove any ofits elements, the crimes are notthe

same criminal conduct. Graciano, 176 Wn.2d at 540. We will not disturb a sentencing court's determination ofsame criminal conduct unless the court abused its discretion or misappliedthe law. Graciano, 176 Wn.2d at 536. Ifthe record supports only one conclusion onwhether crimes constitute the same criminal conduct, we will conclude that the sentencing court abused its discretion in arriving at a contrary result. Graciano, 176 Wn.2d at 537-38. Butifthe record supports either conclusion, we defer to the sentencing court's discretion. Graciano, 176Wn.2d at 538. Because a determination ofsame criminal conduct involves the sentencing court's exercise ofdiscretion, the defendant's failure to request a finding ofsame criminal conductwaives the issue. In re Pers. Restraintof Shale, 160 Wn.2d 489, 494-95, 158

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PJd 588 (2007). Jose Mendez did not request such a finding and consequently waived the assignment oferror. Ineffective Assistance ofCounsel Alternatively, Jose Mendez contends he received ineffective assistance ofcounsel because his attorney failed to argue that the three current driving offenses constituted the

same criminal conduct. To prevail, he must show that his counsel'sperformance was deficient and thatthis deficiency prejudiced him. Stricklandv. Washington, 466 U.S. 668,687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35,899 P.2d 1251 (1995). Prejudice occurs ifthere is a reasonable probability that, but for the deficientperformance, the outcome ofthe trial would have been different. McFarland, 127 Wn.2d at 334-35. We strongly presume counsel provided effective assistance, and Mendez must show an absence oflegitimate strategic reasons to support his counsel's challenged conduct. State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004); McFarland, 127 Wn.2d at 335. Jose Mendez fails to show either deficient performance or prejudice because he does not showwith apreponderance ofthe evidence that the driving offenses encompass the same criminal conduct. One offense, driving with a revoked license, is a gross misdemeanor and was not counted in the offender score. RCW 46.20.342(1)(a). The remaining class C felony driving offenses were committed nearthe same time andplace and had the same victim, the public at large. RCW46.61.024(1); RCW46.61.502(6). 

### 8No. 33635-2-111 In re Pers. Restraint of Mendez Compare State v. Garza-Villarreal, 123 Wn.2d 42,47, 864 P.2d 1378 (1993). Nevertheless, Mendez's objective criminal intent varied from one crime to the next. He claims that eluding the police vehicle and driving under the influence were committed with the one overall criminal purpose to drive the SUV illegally. This argument, however, characterizes intent too broadly. In a rough sense, all crimes, or at least intentional crimes, have one purpose ofacting illegally. The crimes ofeluding the police and driving under the influence did not further

one another. Jose Mendez decided to drive under the influence long before he encountered Sergeant Monty McNeamey. Mendez later separately decided to elude a police vehicle. Although the eluding activity allowed him to continue to drive impaired, he more likely sought to avoid apolice stop because he possessed controlled substances. His objective intent changed from one driving crime to the next. We construe RCW 9.94A.589(a) narrowly to disallow most contentions that mUltiple offenses constitute the same criminal conduct. State v. Graciano, 176 Wn.2d at 540 (2013); State v. Porter, 133 Wn.2d 177, 181,942 P.2d 974 (1997). With thatpolicy in mind, we conclude that Jose Mendez fails to show, with apreponderance ofthe evidence, that the trial court could only have treated his driving offenses as the same criminal conduct. Consequently, he does not show that his trial or appellate counsel acted deficiently orprejudiced his case by failing to raise a same criminal conduct argument. 9No. 33635-2-111 In re Pers. Restraintof Mendez

Jose Mendezraisesadditional arguments in his reply briefto support a claim of ineffective assistance ofcounsel. Because he raises the arguments for the first time in the reply brief, we decline to address them. RAP 10.3(c); State v. Alton, 89 Wn.2d 737, 739, 575 P.2d 234 (1978). Offender Score The trial court counted nine earlier adult felonies in Jose Mendez's offender score. Jose Mendez now contends four 1998 drug convictions and one 1998 conviction for failure to return from work release should have washed out. During sentencing and by agreement ofthe parties, the trial court did not include in the calculation a 1990 federal conviction ofconspiracy to distribute cocaine because the State had not obtained a certifiedrecord ofthejudgment. The State now concedes that several class C felony offenses were washed out due to the State's failure to provide a record ofthe federal conviction. Under RCW 9.94A.525(2)(c), class C prior felonies are not included in the offender score if, since the last date ofrelease from confinement orentry of judgment and sentence for a felony, the offender spent five consecutive years in the community without committing a crime that resulted in a conviction. We agree that the trial court incorrectly calculated the offender score. Consequently, we vacate the sentence and remand to the superior court for resentencing. As a result, Jose Mendez's remaining contention regardinghis trial counsel's and

10No. 33635-2-111 In re Pers. Restraint of Mendez appellate counsel's failures to challenge the offender score are moot. See State v. Hunley, 175 Wn.2d 901, 907, 287 P.3d 584 (2012). CONCLUSION We grant, in part, Jose Mendez'spersonal restraint petition. Weremandthe case tothe Yakima County Superior Court for resentencing. Otherwise, we dismiss the petition. We referJose Mendez'srequest for counsel at the resentencing hearingtothe superior court. RAP 16.15(g). A majority ofthe panel has determinedthis opinion will notbeprinted in the WashingtonAppellate Reports, butitwill be filed for public record pursuantto RCW 2.06.040.

WE CONCUR:

Siddoway, C.J.

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