Appeal from Superior Court of King County. Docket No: 94-8-08225-8. Date filed: 02/24/95. Judge signing: Hon. Leroy McCullough.
Authored by Ronald E. Cox. Concurring: C. Kenneth Grosse, Faye C. Kennedy
The opinion of the court was delivered by: Cox
COX, J. -- Charles Stephenson appeals from the order of Disposition entered against him for one count of delivery of cocaine in December 1994. Because the Disposition did not constitute a second punishment, we affirm.
In September 1994, the State charged Stephenson with one count of possession of cocaine with intent to manufacture or deliver (the September charge). In December 1994, the court entered an order of deferred adjudication. The order stated that the court found Stephenson guilty but deferred entry of that finding for one year subject to various conditions. One of those conditions was that Stephenson not possess drugs or alcohol.
Days after entry of this order, Officer Kenneth Saucier was working as an undercover drug buyer and contacted Stephenson. They had a brief Discussion in which Saucier requested a "40," meaning $40 worth of cocaine. Stephenson then walked over to another individual. Saucier told that individual as well that he wanted a "40." Stephenson gave the other person a small object. Saucier then saw that the other individual was holding a rock of suspected cocaine. As a result, the State charged Stephenson with one count of possession of cocaine with intent to manufacture or deliver (the December charge).
In January 1995, the State moved to revoke the deferred adjudication on the September charge on the basis of the December charge. The juvenile court revoked Stephenson's deferred adjudication and sentenced him to the standard range of 13-16 weeks' detention on the September charge.
One month later, when the court was adjudicating the December charge, Stephenson moved to dismiss that charge on double jeopardy grounds. He argued that the conduct underlying the December charge had already been used to revoke the deferred adjudication on the September charge. Therefore it could not be used in this adjudication. The court denied the motion and found him guilty of one count of delivery of cocaine. The court sentenced him to the standard range of 52-65 weeks' detention. He appeals.
Stephenson argues that the State violated the Double Jeopardy Clauses of the Federal and Washington State Constitutions by prosecuting him for the December charge after using that conduct as the basis for revoking the deferred adjudication on the September charge. We disagree.
The Fifth Amendment to the United States Constitution provides that no person "shall . . . be subject for the same offense to be twice put in jeopardy of life or limb." Article 1, section 9 of the Washington State Constitution similarly provides that no person shall "be twice put in jeopardy for the same offense." Our Supreme Court has held that Washington courts are to give the state constitutional provision the same interpretation that the U.S. Supreme Court gives to the federal provision. *fn1 In Witte v. United States, *fn2 the United States Supreme Court decided on double jeopardy grounds an appeal of an indictment for conduct that had been used to enhance a sentence for a previous conviction. Witte challenged the indictment for a cocaine offense that had been considered as relevant conduct at a prior sentencing for a marijuana offense. *fn3 The district court had dismissed the indictment. But the Fifth Circuit reversed the dismissal and reinstated the indictment. *fn4 Upholding the circuit court decision, the Supreme Court noted that in a previous case it had "specifically . . . rejected the claim that double jeopardy principles bar a later prosecution or punishment for criminal activity where that activity has been considered at sentencing for a separate crime." *fn5 The Court held that "where the legislature has authorized . . . a particular punishment range for a given crime, the resulting sentence within that range constitutes punishment only for the offense of conviction for purposes of the double jeopardy inquiry." *fn6 Thus, even though considering the cocaine conviction raised Witte's offense level, the resulting sentence was permissible because it fell within the Congressionally authorized range. *fn7 Here, each of the Dispositions was within the respective standard range for that charge. Moreover, the conduct resulting in revocation of the deferred adjudication of the September 1994 charge could also serve as a basis for the current Disposition. As Witte holds, the use of such conduct is not barred by double jeopardy principles.
Because there was no error below, it is not necessary to address Stephenson's argument regarding ineffective assistance of counsel.
We affirm the order of Disposition.