In re Davis

• Decision Date: 02 November 2000
• Docket Number: No. 68053-1.,68053-1.
• Citation: 12 P.3d 603,142 Wash.2d 165
• Court: Washington Supreme Court
• Parties: In the Matter of the Personal Restraint Petition of Brent Allen DAVIS, Petitioner.

12 P.3d 603

142 Wash.2d 165

In the Matter of the Personal Restraint Petition of Brent Allen DAVIS, Petitioner.

No. 68053-1.

Supreme Court of Washington, En Banc.

Argued May 16, 2000.

Decided November 2, 2000.

Christine Gregoire, Attorney General, Frederick John Caruso, Asst. Atty. Gen., Olympia, Amicus Curiae on Behalf of Attorney General.

Brent Allen Davis, Bellevue, Helen Allison Anderson, Seattle, for Petitioner.

Norm Maleng, King County Prosecutor, William M. Berg, Ann Marie Summers, Deputy's King County Prosecutor, Seattle, for Respondent.

MADSEN, J.

Petitioner Brent Allen Davis pleaded guilty to two counts of possession of marijuana with intent to manufacture or deliver. RCW 69.50.401(a)(1)(iii). His convictions were based on two marijuana grow operations housed in separate single family dwellings. Davis brings this personal restraint petition alleging his two grow operations were one statutory "unit of prosecution," and thus his two convictions violate the double jeopardy clauses of the state and federal constitutions under this Court's decision in State v. Adel, 136 Wash.2d 629, 965 P.2d 1072 (1998). In a published split decision, the Court of Appeals, Division One, denied Davis' petition. In re Personal Restraint of Davis, 95 Wash.App. 917, 977 P.2d 630 (1999). We affirm.

FACTS

The facts, which Davis agrees to, are set forth in the Certification for Probable Cause. State v. Davis, No. 31813-6-I, slip op. at 2, 1994 WL 908460 (1994). This certification provides in part:

On January 31, 1992, the King County Police served three narcotic search warrants upon the premises located at 4607 264th NE ("264th address"), 22122 NE 13th Pl. ("13th address") and 3806 230th Ct. ("230th address"), King County, Washington. The warrants directed the police to seize any controlled substances, dominion and control papers, and paraphernalia items present in the residences. The police first served the warrant upon the 264th address and located in the garage of the home a marijuana grow operation, including approximately 90 suspected marijuana plants, halide lights, ballasts, timers, and fans, which are items used to grow and cultivate marijuana. The police found an Ohaus scale and numerous papers indicating that defendant Telford lived in the subject residence. They also found two receipts in the house, both in the name of "Brad Alan", listing the 13th address and the 230th address. [Count I]

The police next executed the warrant upon the 13th address. In the back of the house, the police located another grow operation, with approximately 80 suspected marijuana plants and grow paraphernalia items. They found paperwork in the house with Telford's name and in the name of a "Brian Miller". A boat was parked in the garage of the house which was owned by defendant Davis.... [T]he police met with ... the owner of the 13th address who told the police that Davis rented the home under the name of "Brian Miller" together with his girlfriend defendant Denaxas. He also turned over the rental agreement which showed "Brian Miller" and Denaxas as the lessees of the house. [Count II]

The police then served the warrant upon the 230th address. Parked in front of this address was a jeep [sic] Cherokee belonging to Davis.... In the basement police found a grow farm which apparently at one time was significantly larger. The police confiscated approximately 200 "starter" plants and several pounds of suspected dried marijuana found in the living room. They also located approximately $4600 in cash, an Ohaus scale, and numerous papers in the name of Brent Davis. The police interviewed the owner of the home ... who stated that Davis had rented the house under the name of "Brad Alan".... [Count III]

On February 4, Telford was arrested by the police and signed a written confession as to the entire operation. He told the police that he had been hired by Davis to tend the grow operation at the 264th address which Telford stated was where he lived. Telford stated that Davis provided the materials for the grow and agreed to pay Telford $20,000 as "commission" for the first "harvest". Davis also agreed to pay Telford's rent on the house and the utilities. Telford further stated that Davis had set up grows at both the 13th and 230th addresses[.]

. . . .

The circumstances indicate that Davis is using the three homes for grow operations and is making a significant amount of money from this "business".

State v. Davis, slip op. at 2-3 (quoting Certification for Probable Cause).

On May 19, 1992, the King County Prosecutor ("State") charged Davis with three counts of possession with intent to manufacture or deliver marijuana in violation of the Uniform Controlled Substances Act. RCW 69.50.401(a)(1)(iii).¹ The State dismissed the first count and Davis pleaded guilty to the latter two.

At his sentencing hearing in King County Superior Court, Davis argued his two convictions should be treated as one crime for purposes of computing his offender score because they "encompass the same criminal conduct...." See RCW 9.94A.400(1)(a). The trial judge rejected this contention, stating:

Looking at the facts of this case, I find two different marijuana grow operations. I find that the defendant is guilty of two different crimes.... I do not find the same criminal conduct. I find that there were significant factual differences between the associates involved in the different charges, between the names used, between the nature of the grows.... I think he spread his risk by having various operations going and this enterprise was a business, calculated risk/reward assessment.... If they had all been in the same house it would have been one crime....

Verbatim Report of Proceedings (Nov. 4, 1992) at 8-9.

Davis was assigned an offender score of three for each count and sentenced to concurrent terms of twelve months.² He brought a direct appeal, contending the trial court erred in finding his two marijuana grow operations were not part of the same course of criminal conduct for purposes of computing his offender score. On July 18, 1994, the Court of Appeals affirmed his sentence in an unpublished decision.

On October 15, 1998, this Court issued its opinion in State v. Adel, 136 Wash.2d 629, 965 P.2d 1072. Davis filed his personal restraint petition on December 10, 1998. Relying on Adel, Davis argues his two separately located marijuana grow operations constituted only one statutory "unit of prosecution," and hence, his two convictions violated his double jeopardy rights under the state and federal constitutions. The Court of Appeals denied Davis' petition, holding that under a unit of prosecution analysis a "separate and distinct intent to manufacture drugs" is required, and this intent is established by Davis' two grow operations. In re Personal Restraint of Davis, 95 Wash.App. at 924, 977 P.2d 630 (emphasis omitted). Judge Becker dissented, reasoning that the two grow operations evidence only one "intention to grow marijuana for commercial purposes." Id. at 926, 977 P.2d 630 (Becker, J., dissenting). Davis sought discretionary review. The University of Washington Appellate Advocacy Clinic represents Davis. The Washington State Attorney General (Attorney General) appears as amicus curiae.

Analysis

"To obtain relief in this personal restraint petition, the defendant must show he was actually and substantially prejudiced either by a violation of his constitutional rights or by a fundamental error of law." In re Personal Restraint of Benn, 134 Wash.2d 868, 884-85, 952 P.2d 116 (1998) (citing In re Personal Restraint of Lord, 123 Wash.2d 296, 303, 868 P.2d 835 (1994); In re Personal Restraint of St. Pierre, 118 Wash.2d 321, 329, 823 P.2d 492 (1992); In re Personal Restraint of Hews, 99 Wash.2d 80, 87, 660 P.2d 263 (1983); In re Personal Restraint of Cook, 114 Wash.2d 802, 810, 792 P.2d 506 (1990)).

Davis contends his two marijuana grow operations, each at a different location, constitute only one "unit of prosecution" under RCW 69.50.401(a)(1)(iii). Thus, Davis argues that his multiple convictions punished him twice for the same statutory "unit of prosecution" in violation of the double jeopardy clauses of the state and federal constitutions. The State argues that each of Davis' grow operations served as the basis for a separate statutory offense.

The double jeopardy clause of the fifth amendment to the United States Constitution provides: "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb...." Washington's analogous constitutional provision, found in article I, section 9, proclaims: "No person shall be ... twice put in jeopardy for the same offense." Const. art. I, § 9. The federal and state provisions afford the same protections and are "identical in thought, substance, and purpose." State v. Schoel, 54 Wash.2d 388, 391, 341 P.2d 481 (1959); see also Adel, 136 Wash.2d at 632,

965 P.2d 1072. "Double jeopardy is implicated whether or not [a defendant's] sentences are served concurrently or consecutively." Adel, 136 Wash.2d at 632,

965 P.2d 1072 (citing Ball v. United States, 470 U.S. 856, 865, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985)).

"To determine if a defendant has been punished multiple times for the same offense, this court has traditionally applied the "`same evidence'" test ..., [which] mirrors the federal `same elements' standard adopted in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932)." Adel, 136 Wash.2d at 632, 965 P.2d 1072. But that test applies only when a defendant is convicted of violating "several statutory provisions." Id. at 633, 965 P.2d 1072 (emphasis omitted). "If a defendant is convicted of violating a single statute multiple times, the proper inquiry ... is `what "unit of prosecution" has the Legislature intended as the punishable act under the specific criminal statute.'" State v. Till, 139 Wash.2d 107, 113, 985 P.2d 365 (1999) (quoting Adel, 136 Wash.2d at...