STATE v. LEGRONE, 51353-2-I (Wash.App. 6-30-2003)

STATE OF WASHINGTON, Respondent, v. DONALD LEGRONE, Appellant.

No. 51353-2-IThe Court of Appeals of Washington, Division One.
Filed: June 30, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from Superior Court of King County Docket No: 00-1-10352-9 Judgment or order under review Date filed: 11/08/2002

Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.

Jason Brett Saunders, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.

Counsel for Respondent(s), Gregory L Fullington, King Co Pros Office, W554, 516 3rd Ave, Seattle, WA 98104-2390.

Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.

COLEMAN, J.

A jury convicted David Legrone of delivery of cocaine and possession of cocaine with intent to deliver. In his sentencing memorandum, Legrone included two out-of-state convictions in his offender score but argued that they counted as one point. For the first time on appeal, he contests the inclusion of those convictions in his offender score, arguing that the State failed to prove their comparability to Washington offenses. He also argues that his conviction for possession with intent to deliver is not supported by sufficient evidence. Finally, he asks us to reconsider our holding in State v. McCarthy[1] that recent amendments to certain sentencing statutes are not retroactive. We adhere to our holding in McCarthy and affirm. Legrone first contends there was insufficient evidence that he intended to deliver the cocaine in his possession. We disagree. While possession alone is not sufficient to support an inference of intent to deliver,[2] possession plus a large amount of cash, a prior delivery, or other indicia of intent to deliver will suffice.[3] Legrone had $160 in cash in his pockets and had delivered cocaine immediately prior to his arrest. In addition, he possessed a relatively large amount of cocaine and carried no paraphernalia for personal use. Viewed in a light most favorable to the State, this evidence was sufficient to support an inference of intent to deliver.

Legrone also contends the sentencing court erred in including out-of-state convictions in his offender score because the State never proved their comparability. Under State v. Ford,[4] however, the State was relieved of that burden when Legrone included the out-of-state convictions in his own offender score calculation.[5] Legrone argues that this portion of Ford is inconsistent with and/or abrogated by In re Personal Restraint of Goodwin.[6] But as we recently said in State v. Hunter: “Nothing in Goodwin, which involved a collateral challenge to a judgment and sentence that was invalid on its face, supports the proposition that the sentencing court must undertake a comparability determination despite the defendant’s affirmative agreement with the State’s classification.”[7] Finally, Legrone contends the trial court should have given retroactive effect to recent amendments that would reduce his standard range. In McCarthy,[8] we followed State v. Kane[9]
and refused to give retroactive effect to those amendments. Legrone contends McCarthy should be reconsidered in light of three Supreme Court cases McCarthy did not expressly discuss: State v. Heath,[10] State v. Grant,[11] and State v. Wiley.[12] Heath and Grant, however, were thoroughly considered and distinguished in Kane.[13] As for State v. Wiley, Legrone focuses on the Supreme Court’s statement that legislative downgrading of a crime based on the determination that the conduct is less culpable will ordinarily be given retroactive effect.[14] But this language, arguably dicta,[15] is unhelpful because Wiley did not consider RCW 10.01.040, the statute that controlled in Kane and McCarthy. Moreover, Wiley’s comments about retroactivity are based only upon pre-2000 versions of the SRA.[16] In 2000, the legislature clarified its intent regarding retroactivity by enacting RCW 9.94A.345: “Any sentence imposed under [the SRA] shall be determined in accordance with the law in effect when the current offense was committed.”[17]
Even without considering RCW 10.01.040 or RCW 9.94A.345, Legrone’s reliance on Wiley is misplaced because the amendments in this case do not reflect a legislative determination that the offenses are less culpable.[18] Rather, the legislature found that substance abuse remains a serious societal problem and enacted a comprehensive scheme aimed at most efficiently employing treatment and incarceration to minimize recidivism.[19] Legrone has demonstrated no infirmity in McCarthy. We adhere to our holding in that case and affirm.

GROSSE and AGID, JJ., concur.

[1] 112 Wn. App. 231, 48 P.3d 1014 (2002), review denied, 148 Wn.2d 1011 (2003).

[2] State v. Campos, 100 Wn. App. 218, 222, 998 P.2d 893 (2000) (citing State v. Lopez, 79 Wn. App. 755, 768, 904 P.2d 1179
(1995)).

[3] State v. Hernandez, 85 Wn. App. 672, 676, 935 P.2d 623 (1997) (prior delivery); State v. Thomas, 68 Wn. App. 268, 273-74, 843 P.2d 540
(1992) (prior delivery); Campos, 100 Wn. App. at 223-24 (large amount of cash, scales, cell phones, address lists) (citing State v. Brown, 68 Wn. App. 480, 482, 484-85, 843 P.2d 1098 (1993)); State v. Hubbard, 27 Wn. App. 61, 64, 615 P.2d 1325 (1980) (evidence of prior drug sale tended to rebut defendant’s denial of intent to sell).

[4] 137 Wn.2d 472, 973 P.2d 452 (1999).

[5] Ford, 137 Wn.2d at 483 n. 5 (although classification is normally a mandatory step in the sentencing process, “out-of-state convictions included in the defense’s proffered offender score calculation . . . are properly included [in the court’s calculation] without further proof of classification”).

[6] 146 Wn.2d 861, 50 P.3d 618 (2002).

[7] Wn. App., 65 P.3d 371, 373 (2003).

[8] 112 Wn. App. 231, 48 P.3d 1014 (2002).

[9] 101 Wn. App. 607, 5 P.3d 741 (2000) (under the saving statute, RCW 10.01.040, 1999 amendments expanding DOSA availability are not applied retroactively).

[10] 85 Wn.2d 196, 532 P.2d 621 (1975).

[11] 89 Wn.2d 678, 575 P.2d 210 (1978).

[12] 124 Wn.2d 679, 880 P.2d 983 (1994).

[13] Kane, 101 Wn. App. at 612-18.

[14] Wiley, 124 Wn.2d at 688.

[15] The Supreme Court in Wiley refused to give retroactive effect to changes in the elements of theft offenses that would have reduced the defendant’s offender score. Wiley, 124 Wn.2d at 686.

[16] Wiley, 124 Wn.2d at 687 (citing State v. Johnson, 51 Wn. App. 836, 759 P.2d 459 (1988)).

[17] Laws of 2000, ch. 26, § 2.

[18] Wiley, 124 Wn.2d at 688 (“Only when the Legislature has reassessed the culpability of criminal conduct should a sentencing court give a change in law retroactive effect under the SRA.”).

[19] Laws of 2002, ch. 290, § 1; see also Wash. Sentencing Guidelines Comm’n, A Comprehensive Review and Evaluation of Sentencing Policy in Washington State, 2000-2001. That the amendments mandate additional changes to presumptive sentences for drug offenses in the future further demonstrates that the legislature intends that the reductions should be phased in on precisely the schedule it has set. Laws of 2002, ch. 290, §§ 7, 8, 31.