State v. Mercado

• Decision Date: 05 June 2014
• Docket Number: No. 31180–5–III.,31180–5–III.
• Citation: 326 P.3d 154,181 Wash.App. 624
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Heather L.J. MERCADO, Appellant.

181 Wash.App. 624

326 P.3d 154

STATE of Washington, Respondent,

v.Heather L.J. MERCADO, Appellant.

No. 31180–5–III.

Court of Appeals of Washington, Division 3.

June 5, 2014.

Dennis W. Morgan, Attorney at Law, Republic, WA, for Appellants.

James Lyle Nagle, Office of the Pros Attorney, Walla Walla, WA, Teresa Jeanne Chen, Attorney at Law, Pasco, WA, for Respondents.

FEARING, J.

¶ 1 RCW 70.24.340(1)(c) authorizes a local health department to conduct human immunodeficiency virus (HIV) testing and counseling of a defendant found guilty of a drug offense if the court determines that the “related drag offense is one associated with the use of hypodermic needles.” Heather Mercado claims the trial court erred when ordering her to submit to HIV testing because the court did not determine that she used a hypodermic needle to ingest the methamphetamine for which she was convicted of possessing. The State of Washington argues that the trial court need not find that the defendant actually used a hypodermic needle at the time of the crime as long as the drug ingested by the defendant is sometimes ingested by others with a hypodermic needle. Because the statute is ambiguous, we spend time deconstructing and interpreting the language of the statute. We agree with Mercado. We vacate the trial court's order for HIV testing and remand for further proceedings to determine if Heather Mercado's possession of methamphetamine on May 10, 2012, entailed use of a hypodermic needle.

FACTS

¶ 2 On May 10, 2012, police executed an arrest warrant for Joaquin Jaimes at an apartment in Walla Walla. Through an apartment window, police saw Heather Mercado preparing to smoke methamphetamine from a pipe. Police obtained a second warrant to search the apartment. Inside the apartment, police found Mercado's glass pipe, a baggie containing a golf ball sized amount of methamphetamine, and a black leather bag. Inside the black leather bag, police found a handgun, digital scales, and white T-shirts. One of the shirts appeared to have blood thereon.

PROCEDURE

¶ 3 The State of Washington charged Heather Mercado with possession of a controlled substance and use of drug paraphernalia. Mercado pled guilty to possession of a controlled substance in violation of RCW 69.50.4013(1) in exchange for the State dismissing the drug paraphernalia charge and recommending a sentence of 30–days converted to community service.

¶ 4 Heather Mercado signed a “Statement of Defendant on Plea of Guilty.” Clerk's Papers (CP) at 12. The State claims that Mercado's counsel prepared the statement, since the statement contains the name and address of defense counsel in the lower right margin. Someone crossed out most “[n]otification” paragraphs as inapplicable to Mercado, but checked paragraph 6(s) as applying. CP at 15. That paragraph reads, “If this crime involves prostitution, or a drug offense associated with hypodermic needles, I will be required to undergo testing for human immunodeficiency (HIV/AIDS) virus.” CP at 16. The paragraph repeats language from RCW 70.24.340(1)(c).

¶ 5 At Heather Mercado's change of plea hearing on July 16, 2012, the trial court asked Mercado whether she had read her plea statement before signing it and whether she understood the statement. Mercado answered yes to both questions. The trial court explained:

THE COURT: Because this is a felony offense, a drug offense, you will lose your right to own, use or possess a firearm. You may not exercise that right unless it is restored to you by a court of competent jurisdiction.

You will lose your right to vote.

If you are receiving public assistance and sentenced to jail time, that public assistance may be suspended.

You will be required to provide a biological sample for [deoxyribonucleic acid] DNA identification analysis, and pay a $100 collection fee.

You will be required to be tested for the [acquired immune deficiency syndrome] AIDS virus.

If it is determined this charge is a result of a drug or alcohol problem, you may be required to participate in a treatment program as part of your judgment and sentence.

This conviction may affect your eligibility for State and federal foods stamps, welfare and education benefits.

Do you understand these things?

[MERCADO]: Yes.

Report of Proceedings at 5–6 (emphasis added).

¶ 6 The sentencing court ordered Heather Mercado to serve 240 hours of community service within 6 months. At paragraph 4.5 of the judgment and sentence, the court ordered the Health Department to test Mercado for HIV as soon as possible and for Mercado to fully cooperate in the testing. During the sentencing hearing, the State presented no evidence that Heather Mercado used a hypodermic needle.

LAW AND ANALYSIS

Invited Error

¶ 7 Heather Mercado limits her appeal to a challenge of the court's order that she be tested for HIV/AIDS. Before addressing the merits of her appeal, we must address the State's request that this reviewing court refuse review because Mercado invited any error and she did not preserve the issue for appeal. We address the invited error doctrine first and rule the doctrine does not apply because Mercado did not create any error and the doctrine does not apply to sentencing challenges.

¶ 8 The State of Washington contends Heather Mercado's trial counsel prepared the statement on plea of guilty form directing the HIV testing, since the format is on counsel's stationery. Mercado neither affirms nor denies this contention. We recognize that the statement may be on defense counsel's stationery, but that the prosecution could have placed the checkmark by the paragraph addressing HIV testing. We will assume, for argument sake, however, that defense counsel struck the many inapplicable paragraphs and checked the HIV testing paragraph.

¶ 9 The invited error doctrine precludes a criminal defendant from seeking appellate review of an error she helped create, even when the alleged error involves constitutional rights. State v. Studd, 137 Wash.2d 533, 546–47, 973 P.2d 1049 (1999); State v. Henderson, 114 Wash.2d 867, 870–71, 792 P.2d 514 (1990). The doctrine of invited error prohibits a party from setting up an error at trial and then complaining of it on appeal. State v. Wakefield, 130 Wash.2d 464, 475, 925 P.2d 183 (1996); State v. Pam, 101 Wash.2d 507, 511, 680 P.2d 762 (1984), overruled on other grounds by State v. Olson, 126 Wash.2d 315, 893 P.2d 629 (1995). To determine whether the invited error doctrine is applicable to a case, we may consider whether the petitioner affirmatively assented to the error, materially contributed to it, or benefited from it. State v. Momah, 167 Wash.2d 140, 154, 217 P.3d 321 (2009); In re Pers. Restraint of Copland, 176 Wash.App. 432, 442, 309 P.3d 626 (2013).

¶ 10 To be invited, the error must be the result of an affirmative, knowing, and voluntary act State v. Lucero, 152 Wash.App. 287, 292, 217 P.3d 369 (2009), rev'd on other grounds,168 Wash.2d 785, 230 P.3d 165 (2010). The defendant must materially contribute to the error challenged on appeal by engaging in some type of affirmative action through which he knowingly and voluntarily sets up the error. In re Pers. Restraint of Call, 144 Wash.2d 315, 328, 28 P.3d 709 (2001); Wakefield, 130 Wash.2d at 475, 925 P.2d 183. The State bears the burden of proof on invited error. State v. Thomas, 150 Wash.2d 821, 844, 83 P.3d 970 (2004).

¶ 11 Because of the language in her statement on plea of guilty, we conclude that Heather Mercado did not invite or create the assigned error. The relevant paragraph of the statement read, “ if this crime involves prostitution, or a drug offense associated with hypodermic needles, I will be required to undergo testing for human immunodeficiency (HIV/AIDS) virus.” CP at 16 (emphasis added). In logic parlance, the sentence is a conditional “if-then” statement, comprised of an antecedent and consequent. The sentence does not admit that Heather Mercado's crime involves a drug offense associated with hypodermic needles. The sentence admits that, if the drug offense falls into the category, Mercado must undergo testing. The statement paraphrases RCW 70.24.340, but does not admit that RCW 70.24.340 applies. The checkmark does not change the conditional nature of the paragraph. Thus, the State has not proved an affirmative and knowing assent to HIV testing. Defense counsel only informed Mercado and the court of potentially applicable law.

¶ 12 Heather Mercado, citing State v. Lewis, 15 Wash.App. 172, 177, 548 P.2d 587 (1976), asserts that she received no advantage in connection with the imposition of HIV testing, and for this reason alone, the invited error doctrine cannot control. Later cases suggest that the doctrine can apply in situations when the defendant does not benefit from the error. We do not address this argument of Mercado since we otherwise reject the invited error doctrine in this appeal.

¶ 13 Even if Heather Mercado invited error, she can raise her assignment for the first time on appeal. Our state high court has consistently held that the fixing of legal punishments for criminal offenses is a legislative function. State v. Ammons, 105 Wash.2d 175, 180, 713 P.2d 719, 718 P.2d 796 (1986). A defendant cannot agree to punishment in excess of that which the legislature has established. In re Pers. Restraint of West, 154 Wash.2d 204, 214, 110 P.3d 1122 (2005); In re Pers. Restraint of Goodwin, 146 Wash.2d 861, 873–74, 50 P.3d 618 (2002). Even where a defendant clearly invited the challenged sentence by participating in a plea agreement, to the extent that he can show that the sentencing court exceeded its statutory authority, the invited error doctrine will not preclude appellate review. Goodwin, 146 Wash.2d at 872, 50 P.3d 618. Therefore, the invited error doctrine does not apply to illegally imposed sentences, even if a defendant agrees to the sentence. In re Pers. Restraint of Green, 170 Wash.App. 328, 332, 283 P.3d 606 (2012). If Mercado's possession of...