State v. Abarca

11 Wn.App.2d 1012

STATE OF WASHINGTON, Respondent, v. PETER ABARCA, Appellant.

No. 51673-0-II

Court of Appeals of Washington, Division 2

November 5, 2019

UNPUBLISHED OPINION

CRUSER, J.

Peter Abarca appeals his exceptional sentence and legal financial obligations (LFOs) following his guilty plea convictions for unlawful delivery of methamphetamine, unlawful possession of methamphetamine with intent to manufacture or deliver, and unlawful possession of a controlled substance (heroin) with intent to manufacture or deliver, each with the major violation of the Uniform Controlled Substances Act, ch. 69.50 RCW (VUCSA), aggravating factor. RCW 9.94A.535(3)(e).^[1] We hold that (1) the trial court did not err when it imposed the exceptional sentence, (2) Abarca was not deprived of effective assistance of counsel by his attorney's decision not to seek an exceptional sentence below the standard range based on Abarca's youth, (3) under the recently amended LFO statutes, the imposition of a criminal filing fee and a nonrestitution interest provision is not authorized, (4) under the recently amended LFO statutes, the trial court properly imposed a deoxyribonucleic acid (DNA) collection fee, and (5) the community custody supervision assessment was properly imposed because it was not a cost subject to the recent amendments.

Accordingly we affirm the exceptional sentence and the imposition of the DNA collection fee and community custody supervision assessment. But we remand to the trial court to strike the nonrestitution interest provision effective June 7, 2018 and to reassess whether to impose the remaining LFOs under the current law.^[2]

FACTS

I. Arrest, Charges, and Guilty Plea

Following a drug investigation by the West Sound Narcotic Enforcement Team (WestNET) that culminated in a series of controlled buys, Abarca was arrested for his participation in two drug sales that he and his girlfriend, Yenilen Guzman, had engaged in in Kitsap County. Law enforcement confiscated at least 5.6 pounds of methamphetamine and .3 pounds of heroin during the controlled buys and a subsequent search of Guzman's vehicle.

The State charged Abarca by amended information with unlawful delivery of methamphetamine (count I), unlawful possession of methamphetamine with intent to manufacture or deliver (count II), and unlawful possession of a controlled substance (heroin) with intent to manufacture or deliver (count III).^[3] Count I was based on a controlled drug sale in June 2017; Abarca was 19 years old at the time of this offense. Counts II and III were based on the drug "buy bust" operation that led to Guzman's arrest in mid-July; Abarca was 20 years old at the time of these offenses. Clerk's Papers (CP) at 7. The State alleged that each offense was a major violation of the VUCSA under RCW 9.94A.535(3)(e).

The certificate of probable cause supporting the charges stated,

During late June 2017, WestNET conducted a controlled buy from Yenilen Guzman ..... With the use of a Police Operative WestNET ordered methamphetamine directly from [Guzman]. [Guzman] transported the narcotics from the Los Angeles, CA area up to Kitsap County.

Special Agent [(SA)] Kilgallen was able to place video cameras in a hotel room in south Kitsap County without the use of any audio, and the [operative] arranged for the deal to happen there. The [operative] held constant communication with [Guzman] and the deal occurred as planned.

[Guzman] arrived to the deal in a rental vehicle and carried a black bag with her, containing the meth. The [operative] was previously searched as well as the hotel room, and the [operative] was handed a large amount of pre-recorded funds. ($8K)

[Guzman] brought a male with her, who was later identified as Peter Abarca. . . .

During the exchange, both [Guzman] and [Abarca] handled the meth and [Guzman] accepted the money and counted it right in the room. Everything was captured on video.

[Kitsap County Sheriff's Detective Sean Kirkwood] later processed the evidence that weighed approximately 2 pounds with packaging and displayed (2) separate positive NIK test results.

On 7/12/17, WestNET conducted a buy bust operation from [Guzman]. WestNET ordered 7 pounds of meth and 4 ounces of heroin from [Guzman]. The [operative] spoke directly to and texted [Guzman] to arrange the deal. On the day that [Guzman] arrived, the [operative] called her number to confirm arrangements and [Abarca] picked up [Guzman's] phone to speak directly to the [operative] regarding the details of the deal. I know this, because I was listening to the call with the [operative] and heard [Abarca] speak directly.

When [Guzman] arrived to serve the drugs, [Guzman] informed the [operative] that she saw an unmarked police car in the driveway of the prearranged deal location which was the Days Inn located in south Kitsap County. [Guzman] and another female drove out of the area where a marked vehicle made a traffic stop approximately 1 mile up the road. [Guzman] and the female were subsequently taken into custody without a problem.

[Kirkwood] transported [Guzman] to the Kitsap County jail and Detective Manchester got a warrant to search the rental vehicle. During questioning,

[Kirkwood] began by reading [Guzman] Miranda^[4] warnings that she stated she understood. SA Kilgallen and [Kirkwood] were in an interview room with

[Guzman]. [Kirkwood] showed [Guzman] pictures of her and [Abarca] doing the controlled buy and she admitted that it was them. [Guzman] admitted that [Abarca] was the one talking to the [operative] to arrange the deal safely for her. During that conversation, [Abarca] stated that he had a lot more "work" for the [operative] and that he had (2) kilos of cocaine on him right then at that time.

[Guzman] admitted that during the search warrant, we would find (5) pounds of meth and (5) ounces of heroin in the trunk of the rental vehicle and that she was here to sell it to the [operative].

[Guzman] also admitted that she was up here a third time that we had not yet discussed with her.

The result of the buy bust search warrant, was as follows:

Approximately 5.6 pounds of meth with packaging

And approximately .3 pounds of heroin with packaging.

The meth was in 5 separate 1 pound bundles and the heroin was on [sic] 1 bundle.

Each of said bundles was test[ed] and all of which showed presumptive positive NIK test results.

There is probable cause to charge [Guzman] and [Abarca] with the following:

VUCSA delivery of meth

VUCSA delivery of meth and heroin

The [operative] has also been told, that both [Guzman] and [Abarca] are planning to flee to Mexico. Currently WestNET has active pings on [Guzman's] phone from a previously obtained warrant and she is in the Los Angeles area preparing to leave.

CP at 7-8.

Abarca pleaded guilty to the amended charges and to the aggravating circumstances related to each charge. Rather than state in his own words what made him guilty of the crimes, he agreed that the trial court could "review the police reports and/or statement of probable cause supplied by the prosecution to establish a factual basis for the plea."^[5] Id. at 62. The amended plea agreement^[6] specified that the aggravating circumstances for each offense were that the offenses were major violations of the VUCSA under RCW 9.94A.535(3)(e), but it did not specify which of six possible factual grounds were the basis of the aggravating circumstances. The trial court accepted Abarca's guilty plea.

II. Sentencing

A. Kirkwood's Testimony and Abarca's Allocution

During the sentencing hearing, ^[7] the trial court heard testimony from Kirkwood.^[8]Kirkwood's testimony was consistent with the facts in the certificate of probable cause, but he provided more detail. Kirkwood had been investigating suspected drug dealer Robert Pacheco for two years. Pacheco was dating Guzman in mid-2016 through mid-2017, and she was involved in his drug dealing activities. After Guzman and Pacheco's relationship ended, Guzman decided to develop her own drug operation using the connections she had developed while working for Pacheco. Guzman then became a "primary target" for WestNET. Verbatim Report of Proceedings (VRP) (Feb. 26, 2018) at 15.

The police operative subsequently engaged in two controlled buys with Guzman in June 2017. Guzman conducted the first sale in the company of a man who was not Abarca. The other man purchased approximately 2.06 pounds of methamphetamine from Guzman and introduced the operative to Guzman. Kirkwood testified that the drugs purchased at the first controlled buy were packaged to avoid detection and that this type of packaging was rarely seen unless the sale involved "a high-level, sophisticated drug dealer." Id. at 18.

About two weeks later, the operative was able to purchase two more pounds of methamphetamine from Guzman. Abarca, who was now in a relationship with Guzman, accompanied Guzman to this sale. During this sale, Abarca unpackaged the methamphetamine so the operative could inspect and weigh it. This methamphetamine was packaged the same way as the previously purchased methamphetamine.

In July, Kirkwood attempted to conduct a "buy/bust" operation. Id. at 29. When Guzman arrived at the designated location, she thought saw an unmarked police car nearby. Guzman called the operative and told him about her concern. Either Guzman or the operative called Abarca, who was in California, and Guzman, Abarca, and the operative spoke to each other in a three-way call. During this call, Abarca told Guzman to drive away and "ditch" the drugs. Id. at 32.

Guzman drove away as directed, and law enforcement officers stopped her. The officers found approximately 5 pounds of methamphetamine and .3 pounds (135 to 136 grams) of heroin hidden inside the vehicle. After the officers...