No. 48459-1-IThe Court of Appeals of Washington, Division One.
Filed: July 1, 2002 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of King County, No. 001030441, Hon. Michael C. Hayden, April 13, 2001, Judgment or order under review.
Counsel for Appellant(s), Washington Appellate Project, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Gregory C. Link, Washington Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/Appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Randi J. Austell, King Co Pros Attorney, 516 3rd Ave 5th Floor, Seattle, WA 98104.
PER CURIAM.
When a defendant affirmatively waives a constitutional issue at trial, the issue may not be raised on appeal except in the context of ineffective assistance of counsel. Prior to his trial for burglary and rape, Nakia Smith affirmatively waived any challenge to the legality of the entry and search of his residence. In this appeal, he claims that his statements to police and certain physical evidence should have been suppressed as products of an unlawful entry and search, and that deadly weapon enhancements imposed by the court violate double jeopardy.
Because Smith waived any challenge to the entry and search below and does not claim that his counsel was ineffective, and because his challenge to the deadly weapon enhancements is contrary to the relevant caselaw and a plain reading of the enhancement statute, we affirm.
FACTS
On the morning of March 19, 2000, a man wearing a jacket bearing the word `Georgetown’ entered S.Z.’s apartment and raped her at knifepoint. Based on identification evidence from S.Z., her friends, and a surveillance tape from a nearby 7-11 store, police located and interviewed Smith. He initially denied being at the 7-11 on the night of the rape, but later said he bought a beer there and then returned to his apartment. After speaking with his roommate, the police sought a search warrant for the apartment. While waiting for the warrant, the police stationed an officer inside the apartment to prevent people from entering the bedroom. When Smith came home from work, the officer instructed him not to enter the bedroom or talk about the investigation. The officer was eventually relieved by other officers who read Smith his rights and talked to him about the rape. Smith initially stated he had been home during the time in question, but later admitted he had gone to a nearby store. Shortly thereafter, detectives arrived and executed a search warrant. They found several items of clothing matching S.Z’s description, including a `Georgetown’ jacket that was bunched up in a ball and stuffed behind a water heater in the bathroom. Police then arrested and questioned Smith. He said he had been invited to S.Z.’s apartment and had consensual sex with her. DNA analysis of sperm recovered from S.Z. indicated that Smith was the most likely source of the sperm. Based on this evidence, the State charged Smith with first degree burglary and first degree rape, alleging that both offenses were committed with a deadly weapon. Prior to trial, defense counsel noted a CrR 3.6 motion to suppress but later told the court he had decided not to raise that issue. The court then held a CrR 3.5 hearing to determine the admissibility of Smith’s statements. Defense counsel argued that the statements were inadmissible under the Fifth Amendment and CrR 3.1. The court at one point attempted to clarify counsel’s argument:
[DEFENSE COUNSEL]: No. That is not my argument. . . .THE COURT: . . . You ask[ed] the officer[s] many times in their testimony when they thought there was probable cause, there [were] objections. I, nevertheless, allowed the answers. It appeared to me that you were forming some type of basis to argue that they took certain actions when they did not have probable cause, and that those actions somehow tainted later statements.
[DEFENSE COUNSEL]: And so it’s not my argument that . . . later statements were tainted by lack of probable cause. If this were a 3.6 hearing I would be making that argument, but it’s not.
The court ruled that, with the exception of statements made at the police station, all of Smith’s statements were admissible.
The jury in Smith’s first trial was unable to reach a verdict. His second trial, however, resulted in convictions and deadly weapon enhancements on both counts.
DECISION I.
Smith contends the trial court erred in failing to suppress statements and physical evidence obtained after the police entered his apartment. For the first time on appeal, he argues that the statements and physical evidence were the fruits of an unlawful entry and search, and that the State had the burden of demonstrating otherwise at the CrR 3.5 hearing.[1] As a general rule, issues raised for the first time on appeal are not subject to review. RAP 2.5(a). An exception exists, however, for issues involving manifest constitutional error. Smith contends that exception applies here because the warrantless entry amounts to `manifest constitutional error.’ We disagree.
A defendant may waive issues of constitutional magnitude,[2] and a `conscious decision not to raise a constitutional issue at trial effectively serves as an affirmative waiver.’[3] Here, defense counsel told the court that he would not be pursuing a noted 3.6 motion and that he was not arguing that Smith’s statements were tainted by a lack of probable cause. The defense thus waived any suppression issue based on the legality of the entry or search.[4] Because Smith has not argued ineffective assistance of counsel, there is no basis for us to review this claim for the first time on appeal.[5]
II
Smith also contends the sentence enhancements imposed by the court violate double jeopardy. He argues that `imposition of multiple deadly weapon enhancements for possession of a single weapon violates Double Jeopardy principals [sic].’[6] We disagree. Washington courts have repeatedly rejected arguments that weapons enhancements violate double jeopardy. In State v. Claborn,[7] the defendant received separate weapons enhancements for burglary and theft convictions arising from the same event. On appeal, Claborn argued that separate enhancements for the `single act’ of being armed with a deadly weapon during the burglary and theft violated double jeopardy. Noting that burglary and theft have separate elements and that the enhancement statutes did not themselves create criminal offenses, the Claborn court held that the enhancements did not create multiple punishment for the same offense.
Our courts have also rejected double jeopardy challenges to deadly weapon enhancements where the use of a deadly weapon was an element of the crime charged.[8] In those cases, the courts emphasized that, for purposes of sentence enhancements, `the double jeopardy clause does no more than prevent greater punishment for a single offense than the Legislature intended.’[9] The court in Caldwell concluded `that the Legislature has clearly expressed its intent in RCW 9.94A.310 that a person who commits certain crimes while armed with a deadly weapon will receive an enhanced sentence, notwithstanding the fact that being armed with a deadly weapon was an element of the offense.’[10] Contrary to Smith’s assertions, it is also clear that the Legislature intended to impose separate enhancements for each crime committed with a weapon, regardless of whether the crimes involved the same weapon. At the time of Smith’s offenses, former RCW 9.94A.310(4) provided in part:
(4) The following additional times shall be added to the [standard] sentence [range] for felony crimes . . . if the offender or an accomplice was armed with a deadly weapon . . . and the offender is being sentenced for one of the crimes listed in this subsection as eligible for any deadly weapon enhancements . . . . If the offender is being sentenced for more than one offense, the deadly weapon enhancement or enhancements must be added to the total period of confinement for all offenses, . . . . . . . (e) Notwithstanding any other provision of law, any and all deadly weapon enhancements under this section are mandatory, shall be served in total confinement, and shall run consecutively to all other sentencing provisions, including other firearm or deadly weapon enhancements, for all offenses sentenced under this chapter.[11]
The statute is unambiguous: an enhancement must be imposed for each qualifying crime committed with a deadly weapon. No exceptions are contemplated. The enhancements imposed in this case did not violate the double jeopardy clause.
Affirmed.[12]