State v. Phillips, 26901-1-I
| Decision Date | 20 April 1992 |
| Docket Number | No. 26901-1-I,26901-1-I |
| Citation | 828 P.2d 42,65 Wn.App. 239 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Carl Dennis PHILLIPS, a/k/a Michael Dennis Phillips, Defendant, Reynold O'Keefe Scott, and each of them, Appellant. |
Washington Appellate Defenders, Andrew P. Stanton, Seattle, for appellant.
Norm Maleng, King County Pros. Atty., Patricia Eakes, Deputy, Seattle, for respondent.
Reynold O'Keefe Scott appeals the judgment and sentence entered against him for possession of a controlled substance (cocaine) in violation of RCW 69.50.401(d). Scott claims that the evidence was insufficient to convict him of possession, that the State's charging decision violated his state and federal equal protection rights, and that the trial court erred by imposing financial obligations upon him without considering his present or future ability to pay.
On October 21, 1989, Seattle Police Officers Cass and Koutsky were driving in a marked patrol car in a "high narcotics area" of Seattle. They noticed Scott and an unidentified woman briefly make contact while walking down the street in opposite directions. The officers saw Scott and the woman "making a transaction with their hands", through which Scott received something in his left hand from the woman. The officers stopped the patrol car and got out to contact Scott, who was about 20 to 30 feet away.
According to Officer Cass, when Scott noticed the officers "he took his hand and put it up to his mouth as if he was putting something into" it. The officer was referring to Scott's left hand. Officer Koutsky asked Scott a question and Scott spoke "as if mumbling, as if he had something in his mouth." Scott attempted to swallow several times and finally did "complete the swallowing". Scott then stated, "No more left; I swallowed it all down." Officer Cass asked to see Scott's hands and observed what he believed to be cocaine residue. The officers arrested Scott, placed him in the back seat of the patrol car (which Officer Koutsky inspected first), and transported him to the police precinct.
Officer Cass used cotton swabs to obtain separate samples of the residue from Scott's hands. After Officer Koutsky read Scott his Miranda rights, Scott said, Officer Koutsky inspected the back seat of the patrol car after taking Scott to the precinct and found a glass pipe with black residue. Scott was later charged by information with possession of cocaine, a controlled substance, contrary to RCW 69.50.401(d).
At trial, in addition to the two officers' testimony described above, a forensic scientist testified about the lab analyses of the cotton swabs and the glass pipe. With regard to the cotton swab with residue from Scott's right hand, the scientist was "able to detect the presence of a controlled substance, however, it was present in insufficient quantities for [her] to make a conclusive statement." 1 However, the scientist testified unequivocally that the cotton swab with the residue from Scott's left hand contained cocaine. The glass pipe contained cocaine, although the residue on the pipe weighed less than 0.1 gram.
At the close of the State's evidence, defense counsel moved to dismiss the possession charge for insufficiency of the evidence. He also moved to dismiss that charge without prejudice on the ground that the State charged the wrong crime and should have charged Scott with violating RCW 69.50.412(1), the statute proscribing the use of drug paraphernalia. 2 The trial court denied the motions because "no particular amount of cocaine need be shown to be in possession ... in order to establish the crime, and that, indeed, trace elements are enough."
The jury found Scott guilty, and judgment and sentence were entered accordingly. Although the trial court did not evaluate Scott's ability to pay, the court imposed costs of $173 in court costs, $100 for "Crime Victim" (presumably the victim's penalty assessment, "VPA"), $100 for the King County drug fund, $525 for recoupment of attorney fees, and $1,000 for VUCSA. The trial court set a payment schedule of $50 per month. No objection was made regarding the court's failure to determine Scott's ability to pay. Scott appeals.
We are asked to consider whether the trial court erred by imposing financial obligations upon Scott without considering Scott's present or future ability to pay. Scott, who was deemed indigent for purposes of obtaining counsel at trial and on appeal, raises this issue now for the first time. The State maintains that a trial court's failure to enter findings regarding a defendant's ability to pay is not an error of constitutional magnitude and, thus, Scott waived any claim of error by failing to raise the issue at trial.
We agree with the State. Issues raised for the first time on appeal generally will not be heard. State v. Anderson, 58 Wash.App. 107, 110, 791 P.2d 547 (1990). An exception to that rule exists when an issue of constitutional magnitude is initially raised on appeal. RAP 2.5(a)(3); State v. Scott, 110 Wash.2d 682, 686, 757 P.2d 492 (1988).
However, a trial court's failure to enter formal findings regarding a defendant's financial circumstances before imposing costs pursuant to RCW 10.01.160 3 is not a constitutional error that requires resentencing. State v. Curry, 62 Wash.App. 676, 680-81, 814 P.2d 1252 (1991); State v. Eisenman, 62 Wash.App. 640, 62 Wash.App. 640, 810 P.2d 55, 817 P.2d 867 (1991). Curry drew the same conclusion as to the mandatory victim's penalty assessment under RCW 7.68.035 and adopted the view of the Second Circuit in United States v. Pagan, 785 F.2d 378, 381 (2d Cir.1986), cert. denied, Pagan v. United States, 479 U.S. 1017, 107 S.Ct. 667, 93 L.Ed.2d 719 (1986). See Curry, at 681-82, 814 P.2d 1252. Pagan held that the
imposition of assessments on an indigent, per se, does not offend the Constitution. Constitutional principles will be implicated only if the government seeks to enforce collection of the assessments " 'at a time when [the defendant is] unable, through no fault of his own, to comply.' " See United States v. Hutchings, 757 F.2d 11, 14-15 (2d Cir.), cert. denied, 472 U.S. 1031, 105 S.Ct. 3511, 87 L.Ed.2d 640 (1985) (quoting United States v. Brown, 744 F.2d 905, 911 (2d Cir.), cert. denied, 469 U.S. 1089, 105 S.Ct. 599, 83 L.Ed.2d 708 (1984)) ...
... It is at the point of enforced collection of the principal or additional amounts, where an indigent may be faced with the alternatives of payment or imprisonment, that he "may assert a constitutional objection on the ground of his indigency." Hutchings, 757 F.2d...
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Table of Cases
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§ 11.7 Particular Applications of the General Rule and Its Exceptions
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