State v. Truong

STATE OF WASHINGTON, Respondent, v. JOHN PHI TRUONG, Appellant.

No. 53203-4-II

Court of Appeals of Washington, Division 2

March 9, 2021

UNPUBLISHED OPINION

Order filed June 8, 2021

ORDER GRANTING MOTION FOR RECONSIDERATION AND AMENDING UNPUBLISHED OPINION IN PART

Appellant filed a motion for reconsideration of the opinion filed on March 17, 2020 in the above entitled matter. After consideration, we grant appellant's motion and amend the opinion in part as follows:

On page 1, paragraph 1, line 6, we insert the following language:

Truong also seeks to be resentenced based on an error in his offender score under State v. Blake, 197 Wn.2d 170 481 P.3d 521 (2021).

On page 1, paragraph 2, line 3, we remove the following language:

Consequently, we affirm.

and replace it with:

Consequently, we affirm Truong's conviction. We remand for resentencing.

On page 4, paragraph 3, line 4, we remove the following language:

Truong was sentenced to 180 months of total confinement.

and replace it with:

Truong had a criminal history including prior convictions for simple drug possession and for attempted drug possession which resulted in an offender score of eight. Truong was sentenced to 180 months of total confinement.

On page 12, paragraph 2, line 7, we insert the following language:

After Truong's case was submitted, our Supreme Court decided Blake, which voided Washington's criminal law prohibiting possession of controlled substances. Here, Truong has prior convictions for possession of controlled substances, which were used to calculate his offender score. "A sentence that is based on an incorrect offender score is a fundamental defect." In re Pers. Restraint of Goodwin, 146 Wn.2d 861 876, 50 P.3d 618 (2002). We agree that Truong must be resentenced.

On page 15, paragraph 1, line 5, we remove the following language:

Accordingly, we affirm.

and replace it with:

Accordingly, we affirm Truong's convictions. We remand to the trial court for resentencing in light of Blake.

We do not amend any other portion of the opinion or the result. Accordingly, it is

SO ORDERED.

WORSWICK, J.

John Phi Truong appeals his convictions for unlawful possession of a firearm and unlawful possession of a controlled substance-methamphetamine with intent to deliver, with a firearm enhancement. For the first time on appeal, Truong argues that his conviction was based on unlawfully seized evidence. Truong also argues that he received ineffective assistance of counsel for failing to move to suppress the alleged unlawfully seized evidence. In his Statement of Additional Grounds (SAG) for Review, Truong asserts that the evidence was insufficient to support the jury's verdict and that his sentence violates double jeopardy.

We do not consider Truong's unlawfully seized evidence argument raised for the first time on appeal, and the record on appeal does not support his ineffective assistance of counsel argument. Moreover, we reject the arguments raised in the SAG. Consequently, we affirm.

FACTS

In August 2018, law enforcement officers had reason to believe that John Phi Truong was living at his mother's home. Truong's mother's home was a single-family dwelling with a two- car garage and driveway that faced the street. The garage had been converted into a makeshift bedroom by adding a bed, heater, and floor coverings. Although the garage was attached to the house, it was accessible only from the exterior of the garage, either through a standard size door on the side or through a roll-up style vehicle entry door in the front.

On August 23, Torey Petersen came to Truong's garage to obtain and use heroin. Truong's girlfriend, Lashaia Avila, was in the garage when Petersen arrived.^[1] Truong Avila, and Petersen used drugs together and spent the night in the garage. The next morning, Truong became irritated when he discovered some of his drugs were missing. According to Petersen, Truong produced a black revolver and began pacing back and forth, saying, "[W]e're going to get to the bottom of [this]." VRP at 93. In fear for his personal safety, Petersen called and sent text messages to his mother, explaining that he was uncomfortable and that she needed to come and take him home. Petersen's mother called law enforcement. Eventually, Petersen was able to leave the garage despite Truong's insistence that he stay.

Officers from the Longview Police Department and the Department of Corrections (DOC) arrived on the scene in response to Petersen's mother's call. Once there, they formed "a team." Verbatim Report of Proceedings (VRP) at 36. The Longview police officers understood that the house was the address used by a DOC client, and that the DOC has different roles and responsibilities than police officers in terms of entering a residence. The DOC officers determined they would go into the residence and apprehend Truong.

DOC officers obtained permission from Truong's mother to search the residence. DOC officers completed a search of the house but did not find Truong inside. Hearing movement coming from inside of the garage, a group of DOC and Longview police officers assembled on the driveway in front of the garage's roll-up door. The garage door began to go up and down, partially opening, before it finally opened all the way and Truong appeared.^[2] Truong exited the garage, sprinted across the driveway and collided with a DOC officer. Truong was apprehended and arrested in the driveway by DOC officers. DOC officers found a scale with what appeared to be drug residue on Truong's person.

The Longview police did not have a warrant to search the garage, however there is evidence in the record that Truong's mother gave officers permission to search the residence. DOC officers began to search the garage under authority of RCW 9.94A.631(1).^[3] When DOC officers entered the garage to begin their search, Longview Police Department Corporal Danielle Jenkins positioned herself on the corner of the garage directly near the garage entryway. Corporal Jenkins, acting on information that there was a bag inside of the garage that contained evidence, peered into the garage without actually entering. Jenkins observed a bag hanging from the rafters and she notified DOC of the bag's presence. DOC officers retrieved the bag from the rafters. Jenkins saw "some contents" of the bag and told DOC officers to "hold onto" the bag, and that she would obtain a search warrant for it. VRP at 38.

The bag located in the rafters was a lunch box style, dark colored container with a zippered lid. Jenkins and other officers of the Longview Police Department obtained a warrant, opened the bag, and discovered a safe inside. Officers forcibly opened the safe. Inside the safe, officers discovered a black revolver, ammunition, methamphetamine, heroin, drug paraphernalia, and cash, along with documents with Avila's name on them.

Truong was charged by information with one count each of unlawful possession of a controlled substance with intent to deliver-methamphetamine, ^[4] unlawful possession of a controlled substance with intent to deliver-heroin^[5] (each with school zone and firearm enhancements)^[6], first degree unlawful possession of a firearm, ^[7] and harassment.^[8]

The case proceeded to a jury trial. At trial, Truong's attorney neither challenged the search warrant, nor moved to suppress the evidence located in the bag. A jury found Truong committed the crimes of possession with intent to deliver methamphetamine, with school zone and firearm enhancements, and first degree unlawful possession of a firearm.^[9] Truong was sentenced to 180 months of total confinement. Truong appeals his conviction, judgment and sentence.

ANALYSIS

I. Search and Seizure

For the first time on appeal, Truong argues that the State seized evidence from the garage in violation of his constitutional rights. Specifically, Truong argues that Corporal Jenkins conducted an unlawful, warrantless search of his home, and that the fruit of that warrantless search was used to convict him.

The State argues that Truong waived his right to appeal because he did not move to suppress this evidence at trial and the record is not sufficiently developed for our review. The State argues that the record is not sufficient for us to determine whether the error is manifest because we cannot determine whether the warrantless search was allegedly unreasonable. Alternatively, the State argues that if it was a warrantless search, one of a number of exceptions apply.

We agree with State that this record is insufficient for us to decide the merits of Truong's argument, thus we do not consider it.

A. Unpreserved Challenge

This court will generally not consider errors raised for the first time on appeal unless a defendant shows a "manifest error affecting a constitutional right." RAP 2.5(a)(3). We review constitutional issues de novo. State v. Fenwick, 164 Wn.App. 392, 398, 264 P.3d 284 (2011).

An error is manifest when a defendant makes a plausible showing that the error had practical and identifiable consequences in the trial. State v. O'Hara, 167 Wn.2d 91, 99, 217 P.3d 756 (2009). An error cannot be manifest where the record is not sufficient for a reviewing court to decide the merits of the alleged error. O'Hara, 167 Wn.2d at 99. In other words, a defendant cannot show prejudice and the error is not manifest where the record does not contain all the facts necessary to adjudicate the alleged error. Fenwick, 164 Wn.App. at 405.

1. Warrantless Search

Both the United States and Washington constitutions provide a right to be free from unlawful searches. Wash Const, art. I § 7; U.S. Const, amends. IV; XIV. When the government '"physically occupie[s] private property for the purpose of obtaining information, '" that is a '"'search'...