State v. Rouse

STATE OF WASHINGTON, Respondent, v. JOSHUA DEAN ROUSE, Appellant.

No. 53294-8-II

Court of Appeals of Washington, Division 2

October 20, 2020

UNPUBLISHED OPINION

Worswick, J.

Joshua Rouse appeals his conviction and sentence for felony violation of a no contact order. After his jury trial conviction, Rouse requested a drug offender sentencing alternative (DOSA), but the trial court declined and instead sentenced him to a standard range sentence.

On appeal, Rouse argues that his trial counsel was ineffective for failing to move to redact the prior no contact order that was admitted into evidence, and that the DOSA statute is unconstitutionally vague and violates due process. In a Statement of Additional Grounds (SAG) for Review, Rouse argues there was insufficient evidence to convict because of discrepancies in eyewitness testimony.

We hold that Rouse did not receive ineffective assistance of counsel. We further hold that the DOSA statute is not unconstitutionally vague and does not create a constitutionally protected liberty interest. Finally, we hold that there was sufficient evidence to determine the jury could have found the State proved each element to convict beyond a reasonable doubt. Thus, we affirm.

FACTS

Beginning in December 2017, Rouse was subject to a post-conviction no contact order that prohibited him from coming within 500 feet of Megan Hopson or her residence. Rouse was previously convicted of no contact order violations in December 2017. The no contact order was titled "Domestic Violence No Contact Order," and ordered Rouse to surrender all firearms. Ex. 3. The order stated that the order was needed to "prevent possible recurrence of violence." Ex 3.

In November 2018, Megan Hopson's neighbor called 911 to report that she had seen a man, later identified as Rouse wearing khakis and a red backpack coming from Hopson's lawn. The neighbor also told the operator the man had tattoos on his arms. The neighbor saw Rouse come from the direction of Hopson's house, and saw that one of Hopson's windows was open with the blinds mangled. Police apprehended Rouse a short distance away and brought the neighbor to the arrest scene. Rouse admitted to being in the area to see Hopson. The neighbor identified him as the same man who crossed her lawn. Rouse had no tattoos on his arms.

The State charged Rouse with residential burglary-domestic violence, and felony violation of a no contact order-domestic violence. At trial, the jury heard testimony consistent with the facts above. Also, the trial court admitted into evidence an unredacted copy of Rouse's December 2017 no contact order. Rouse's counsel did not object.

The jury found Rouse not guilty of burglary, but found him guilty of one count of violation of a no contact order-domestic violence. At the sentencing hearing, Rouse requested a DOSA sentence. The State filed a sentencing memorandum, arguing against a DOSA sentence. The State's memorandum included information that Rouse had previously received a DOSA sentence. Before imposing the sentence, the trial court noted that it had reviewed Rouse's criminal history. The trial court denied Rouse's request stating, "Based on all of the factors that have been put forth to me, though, I don't think the [DOSA] is appropriate." Verbatim Report of Proceedings (Feb. 20, 2019) at 25. The court imposed a standard range sentence of 48 months' confinement plus community supervision. Rouse appeals.

ANALYSIS

I. Ineffective Assistance of Counsel

Rouse argues that he received ineffective assistance from his trial counsel because counsel did not request redaction of-or object to admission of-the prior no contact order. We disagree.

A claim of ineffective assistance of counsel presents a mixed question of fact and law that this court reviews de novo. State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). For Rouse to demonstrate ineffective assistance of counsel, he must show that (1) defense counsel's performance was deficient, and (2) that the deficient performance resulted in prejudice to the defendant. State v. Linville, 191 Wn.2d 513, 524, 423 P.3d 842 (2018) (citing Strickland v. Washington, 466 U.S. 668, 687 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). We may deem counsel's performance deficient if it is not objectively reasonable. State v. Estes, 188 Wn.2d 450, 458, 395 P.3d 1045 (2017). Prejudice results if the outcome of the trial below would have been different if counsel had not performed deficiently. Estes, 188 Wn.2d at 458. This court strongly presumes counsel's performance was effective. State v. Emery, 174 Wn.2d 741, 755, 278 P.3d 653 (2012). The failure to demonstrate either prong ends our enquiry. State v. Classen, 4 Wn.App. 2d 520, 535, 422 P.3d 489 (2018).

Rouse cannot show that the outcome below would have been different had the no contact order been redacted. Accordingly, he cannot show prejudice. First, there was an abundance of evidence presented to the jury on the charge of violation of the no contact order. This evidence included the neighbor's eyewitness account, followed by a showup identification, and Rouse's admission to police officers that he was in the area of Hopson's house attempting to work on his relationship with her.

Second, there is nothing in the record to suggest the jury was so prejudiced that it did not "reasonably, conscientiously, and impartially" apply the law. Strickland, 466 U.S. at 695. Indeed, the jury's decision to acquit Rouse of the more serious burglary charge suggests that the jury did not have an emotional response to the evidence in the record. Because Rouse cannot show that defense counsel's failure to redact the no contact order resulted in prejudice, he cannot show ineffective assistance of counsel, and this claim fails.

II. DOSA Constitutional Claims

Rouse argues that he was improperly denied a DOSA because the DOSA statute, RCW 9.94A.660, is unconstitutionally vague. He further argues that because the DOSA statute does not require a trial court to state its reasons for denying a DOSA sentence, the statute violated his right to due process. We disagree on both counts.

A. Vagueness

A trial court's decision whether to grant a DOSA is not generally reviewable. State v. Lemke, 7 Wn.App. 2d 23, 27, 434 P.3d 551 (2018). However, the imposition of a standard range sentence, instead of an alternative, may be challenged on constitutional grounds. In re Pers. Restraint of Tricomo, 13 Wn.App. 2d 223, 234-35, 463 P.3d 760 (2020). This court reviews constitutional challenges de novo. In re Pers. Restraint of Troupe, 4 Wn.App. 2d 715, 721, 423 P.3d 878 (2018). We presume a statute's constitutionality, and the challenger bears the burden of proving the statute is unconstitutional beyond a reasonable doubt. Troupe, 4 Wn.App. 2d at 721.

A constitutional due process vagueness analysis contains two points. First, the criminal statute "must be specific enough that citizens have fair notice of what conduct is proscribed." State v. Baldwin, 150 Wn.2d 448, 458, 78 P.3d 1005 (2003). Second, the statute "must provide ascertainable standards of guilt to protect against arbitrary arrest and prosecution." Baldwin, 150 Wn.2d at 458. A statute that fails on both points is unconstitutionally vague.

In Baldwin, our Supreme Court analyzed a constitutional vagueness challenge to two sentencing guideline statutes in the Sentencing Reform Act (SRA) of 1981, chapter 9.94A. 150 Wn.2d at 458-49. On the first point, the court explained that "[s]entencing guidelines do not inform the public of the penalties attached to a criminal conduct nor do they vary the statutory maximum and minimum penalties assigned to illegal conduct by the legislature." Baldwin, 150 Wn.2d at 459. Second, the court noted that guideline statutes do not force citizens to guess at potential consequences of prosecution because the guidelines do not set the penalties. Baldwin, 150 Wn.2d at 459. As a result, the court held that "the due process considerations that underlie the void-for-vagueness doctrine have no application in the context of sentencing guidelines." Baldwin, 150 Wn.2d at 459.

The same logic applies here. Like the portions of the SRA at issue in Baldwin, the DOSA sentencing guidelines in RCW 9.94A.660 do not set the penalties for particular crimes. Instead, the DOSA guidelines at issue here lay out eligibility criteria for a trial court to decide whether to impose a sentencing alternative. As a result, under Baldwin, a vagueness challenge to RCW 9.94A.660 fails.

Furthermore, Rouse's vagueness argument is self-defeating. Should the DOSA sections of the SRA be held void for vagueness, the sentencing alternative made available by the statute would be struck down. All that would remain would be the standard range sentence-just like the one imposed. The case could not be remanded for a prison based DOSA sentence as Rouse requests, because there would be no sentencing alternative. In either situation, Rouse's argument fails. Accordingly, we hold the DOSA statute is not unconstitutionally vague.

B. Due Process

Rouse argues for the first time on appeal that the DOSA statute violates procedural due process because it does not require the trial court to articulate the basis for denying a DOSA sentence. We do not consider Rouse's procedural due process argument for the first time on appeal because the DOSA statute does not create a protected liberty interest, thus, this is not manifest constitutional error.

Generally this court will not review a claim of error raised for the first time on appeal. RAP 2.5(a); State v. A.M., 194 Wn.2d 33, 38, 448 P.3d 35 (2019). However, this general rule includes an exception when the claimed error is a manifest error affecting a constitutional right. State v. Burns, 193 Wn.2d...