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In re Personal Restraint Petition of Mark Maxfield

filed: May 10, 1996.

IN RE THE PERSONAL RESTRAINT PETITION OF MARK MAXFIELD, PETITIONER.


Written By: Morgan, J, Concurred IN By: Seinfeld, CJ, Bridgewater, J

Author: Morgan

MORGAN, J. -- Mark Maxfield has filed a personal restraint petition in which he argues (1) double jeopardy and (2) ineffective assistance of counsel during an earlier appeal to the Washington State Supreme Court. We dismiss the petition with prejudice.

During the summer of 1991, Maxfield was involved in two marijuana grow operations. One was located in a house in Clallam County; the other was located in a house in Jefferson County.*fn1

On June 6, 1991, an employee of the local public utility district (PUD) informed the police that power consumption at one of the houses was high. He also said the PUD's records could be examined only after law enforcement filed a request for inspection, pursuant to the public disclosure act, RCW 42.17. The employee had not been directed to call law enforcement with suspicious power readings, or asked to investigate the particular house on which he was reporting.*fn2

The police filed a request for inspection and viewed the records. They then secured search warrants, which they executed on July 24. They seized marijuana from each

home, and cars, cash, equipment and many other items from the Clallam County home.

On July 25, Maxfield was charged in Clallam County with manufacture of marijuana and possession of marijuana with intent to deliver. On July 26, he was charged in Jefferson County with possession of marijuana with intent to deliver.

On December 13, 1991, Maxfield was convicted as charged in Jefferson County. He was sentenced to three months in jail.

On January 10, 1992, Maxfield was convicted as charged in Clallam County. He was sentenced to 29 months in prison.

Maxfield appealed his convictions to the Washington Supreme Court. He argued that his privacy rights under the Fourth Amendment to the federal constitution and Article 1, § 7 of the state constitution had been violated when the PUD employee informed the police of high power consumption at the Clallam County house.*fn3 The Supreme Court rejected his Fourth Amendment claim and declined to consider his Article I, § 7 claim. The Court said:

Defendants have failed to analyze the constitutional provisions involved here under the criteria set forth in Gunwall. We therefore will not consider independent state constitutional grounds. As we stated in Gunwall, "naked castings into the constitutional sea are not sufficient to command judicial consideration and discussion."*fn4

Whether an individual customer of a utility company has a privacy interest in electrical consumption records under our state constitution is not properly before us in the present case. Resolution of that issue must await another day."*fn5

Meanwhile, back on July 29, 1991, Clallam County served Maxfield with a "Notice ...


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