State v. Bergstrom
| Decision Date | 10 November 2020 |
| Docket Number | 36381-3-III |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. ZACHARY P. BERGSTROM, Appellant. |
UNPUBLISHED OPINION
Zachary Bergstrom appeals from multiple convictions, primarily challenging the sufficiency of the evidence and some conditions of community custody. His attorney seeks to withdraw from representation due to criticism in Mr Bergstrom's statement of additional grounds (SAG). We affirm the convictions, deny the motion to withdraw, and remand to strike one condition of community custody.
A Spokane County sheriff's deputy walked up to a car parked in the closed parking lot of a county park. It was 12:30 a.m. Mr. Bergstrom was the sole occupant of the backseat of the car; two others sat in the front seat.
The deputy observed a semiautomatic handgun on the floor between Bergstrom's feet. When Bergstrom declined to keep his hands in view, the deputy removed him from the car and detained him in handcuffs. The deputy then obtained consent from the driver to search the vehicle and retrieve the gun.
After running the gun's serial number, law enforcement obtained a warrant to search the vehicle. The ensuing search revealed a holster for the firearm located under a blanket directly next to where Mr. Bergstrom had sat. Deputies also located a green ledger with Mr. Bergstrom's name in it with language related to drug dealing. A pouch by Mr Bergstrom's feet contained a white crystalline substance another container held a black tar-like substance. Deputies also found a scale, Baggies, and cash near Mr. Bergstrom. Testing positively identified methamphetamine and heroin.
The prosecutor ultimately charged Bergstrom with second degree unlawful possession of a firearm, possession of a stolen firearm, possession of methamphetamine with intent to deliver while armed with a firearm, and possession of heroin. The case proceeded to jury trial. The stolen firearm count was dismissed at the conclusion of the State's case. The jury convicted on the remaining three counts and found that Mr Bergstrom was armed with a firearm while possessing the methamphetamine.
At the initial sentencing hearing, the trial court identified a base range of 60 to 120 months on the possession with intent count, plus an additional 36 months for the weapons enhancement. The court imposed a midrange term of 126 months on that count and lesser concurrent terms on the unlawful firearm possession and heroin counts. After it was called to the court's attention that the maximum sentence for a class B felony was 120 months, the court resentenced the defendant. Interested in imposing supervision on the defendant, the court inquired of a basis for an exceptional sentence in order to do so. Defense counsel could not think of a basis for an exceptional sentence, so asked to brief the issue; the hearing was continued.
Counsel did not file a brief and indicated at the hearing that he found no basis for an exceptional sentence. The court then imposed a sentence of 120 months, consisting of 84 months and the 36-month enhancement; the court deemed this an "exceptional sentence."
Mr. Bergstrom timely appealed to this court. His appointed counsel filed a brief of appellant and, on April 2, 2020, a reply brief. Mr. Bergstrom filed his SAG on January 14, 2020. The issue raised in that document was a contention that appellate counsel provided ineffective assistance by failing to challenge the foundation for each piece of evidence admitted against him, a purported defect that Mr. Bergstrom allegedly remedied by use of his SAG. On June 22, this court notified the parties that the case would be heard at oral argument on September 10. However, during subsequent review, the panel decided not to hear argument. The decision was communicated to the parties on August 25. Meanwhile, on August 24, counsel for appellant read the SAG and discovered that it challenged the effectiveness of appellate counsel.
Appellate counsel filed a request to withdraw. The clerk of court denied the request on September 1. Counsel then filed a motion to modify and, if necessary, to stay proceedings pending a motion for discretionary review to the Washington Supreme Court. The motions were passed to the panel considering the appeal.
Before addressing the merits of the arguments presented by the briefing, we first consider counsel's motion to withdraw in conjunction with the SAG. We deny the motion to withdraw and, briefly, reject the SAG argument.
Washington permits an appellant in a criminal case to file a SAG addressing issues that "the defendant believes have not been adequately addressed by the brief filed by the defendant's counsel." RAP 10.10(a). In the event that issues of possible merit have been identified, the court may require both counsel to address the SAG issues. RAP 10.10(f). Only documents in the record may be considered when assessing a SAG argument. RAP 10.10(c). Thus, if the record does not contain the necessary support for an argument, the reviewing court will decline to consider it due to lack of an evidentiary basis. Id.; State v. Bluehorse, 159 Wn.App. 410, 435, 248 P.3d 537 (2011).[1]
Here Mr. Bergstrom argues in the SAG that his appellate counsel wrongly focused argument on the sufficiency of the evidence instead of its admissibility. He argues that appellate counsel should have challenged the foundation for the physical evidence. He also believes that by raising this contention in his SAG, he has refocused the issue to its proper position on appeal. Appointed counsel believes the SAG goes beyond mere disagreement with counsel's approach to the case and is the equivalent[2] to a motion to discharge existing counsel and appoint new counsel. These arguments fail.
Mr. Bergstrom did not file a motion asking for a new attorney, nor did he seek to discharge counsel and represent himself. State v. Rafay, 167 Wn.2d 644, 222 P.3d 86 (2009). He also had plenty of time between the filing of the SAG and counsel's review of the document to bring his own request for a new attorney if he had desired to do so.[3] All properly filed SAG issues implicitly criticize counsel's choice of arguments, but that fact does not create a conflict of interest. Similarly, an appellate court's decision to request briefing on a SAG issue could itself be interpreted as a criticism of counsel's choice of arguments; yet, appellate courts do not routinely appoint new attorneys just because a SAG raises an issue of potential merit.
In this instance the SAG did not rise to that level. If the issue had presented a question justifying briefing, this court then would necessarily have had to consider whether current counsel was the appropriate party to brief the issue.[4] But, criticism by an appellant of counsel's briefing does not itself create a conflict of interest requiring the appointment of new counsel.
This case demonstrates that nicely. The SAG issues are without merit. A party seeking to challenge an evidentiary ruling on appeal must necessarily have first raised the same issue to the trial court. State v. Guloy, 104 Wn.2d 412, 421, 705 P.2d 1182 (1985). Evidence allegedly admitted in violation of the Rules of Evidence does not present a manifest constitutional error that this court can consider for the first time on appeal. RAP 2.5(a); Dowling v. United States, 493 U.S. 342, 352, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990). Appellant did not object to the evidence in the trial court on these same grounds and cannot bring the SAG challenges now. Id.
Thus, the SAG arguments fail in multiple manners. First, because he did not present the foundation challenges in the trial court, the arguments are waived.[5] Guloy, 104 Wn.2d at 421. Second, because the arguments were waived at the trial level, appellate counsel could not do anything to revive them on appeal. RAP 2.5(a). Likewise, the effort of the SAG to present the issue is equally ineffectual. Appellate counsel was not ineffective for failing to raise an unpreserved and meritless argument. The motion to withdraw also is without merit.
Accordingly, we decline to modify the clerk's ruling and decline to stay consideration of this case. The SAG claims are without merit.
The appeal raises four challenges to the sufficiency of the evidence, alleges ineffective assistance of counsel and error by the trial judge at sentencing, and challenges several components of the judgment. We jointly consider the sufficiency challenges before turning to the challenges to the sentencing proceeding. Finally, we address the challenges to the sentencing components.
The brief challenges the sufficiency of the proof that the firearm was genuine, whether Bergstrom "possessed" the weapon or the drugs, and whether he was "armed" with the weapon. We treat those four claims as three, and first consider the possession argument common to all three convictions.
Appellate review of these arguments is in accord with well-understood standards. Evidence is sufficient to support a verdict if the jury has a factual basis for finding each element of the offense proved beyond a reasonable doubt. Jackson v Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 94 Wn.2d 216, 221-222 616 P.2d 628 (1980). The evidence is viewed in the light most favorable to the prosecution. Green, 94 Wn.2d at 221. Appellate courts defer to the trier-of-fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). Circumstantial evidence is as reliable as direct evidence. State v. Delmarter, 94 Wn.2d 634,...
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