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State v. Mohamed

Court of Appeals of Washington, Division 1

May 18, 2015

The State of Washington , Respondent ,
v.
Ali Abukar Mohamed , Appellant

Superior Court County: King. Superior Court Cause No: 13-1-13139-7 SEA. Superior Court Judge Signing: Regina S. Cahan. Date filed in Superior Court: August 1, 2014.

David B. Zuckerman, for appellant.

Daniel T. Satterberg, Prosecuting Attorney, and Stephanie F. Guthrie, Deputy, for respondent.

Written by: Cox, J. Concurred by: Trickey, J. Spearman, C.J.

OPINION

Cox, J.

Page 672

[187 Wn.App. 633] ¶ 1 Ali Abukar Mohamed appeals his judgment and sentence for his four convictions of delivery of cocaine that included school zone enhancements for three of these convictions. He argues that the trial court improperly limited impeachment of a police informant who testified at trial. He claims that the lead detective, who also testified at [187 Wn.App. 634] trial, " improperly vouched" for the informant. Additionally, Mohamed seeks a remand for a

Page 673

new sentencing hearing based on his claim that the trial court improperly exercised its discretion based on a mistaken belief about sentencing enhancements. And he claims he is entitled to a mitigated exceptional sentence.

¶ 2 We hold that Mohamed failed to preserve the impeachment and vouching claims and cannot make them for the first time on appeal. But there are sentencing alternatives that are potentially available to him based on a correct understanding of sentencing enhancements. The trial court did not abuse its discretion in denying his request for a mitigated exceptional sentence. Accordingly, we affirm his convictions and remand for a new sentencing hearing for the trial court to consider the full range of available sentencing options.

¶ 3 The Seattle Police Department (SPD) began its investigation in this case when a confidential informant told his handler, Detective Samuel DeJesus, that a man named " Dime" was selling crack cocaine out of his business. The informant later identified " Dime" as Mohamed.

¶ 4 Detective DeJesus arranged for the informant to make five " controlled buys" from Mohamed. The police indicated they were attempting to determine whether Mohamed also trafficked weapons.

¶ 5 Three of the controlled buys occurred between April 2012 and May 2012. The remaining two occurred in November 2012 and February 2013. On each occasion, Detective DeJesus gave the informant about $150 and the informant returned with a small rock of cocaine. The first four controlled buys took place at Mohamed's clothing store, which was about 300 feet from an elementary school. The final controlled buy took place in Mohamed's vehicle. During each transaction, the informant wore a hidden camera.

¶ 6 Based on these transactions, the State charged Mohamed, by amended information, with five counts of delivery [187 Wn.App. 635] of cocaine. Four counts included special allegations that the crimes were committed within 1,000 feet of a school.

¶ 7 The jury acquitted Mohamed of the first delivery charge and special allegation. It found him guilty of the other four delivery charges. The jury also found him guilty of the other three special allegations.

¶ 8 At sentencing, the parties agreed that each delivery conviction required imprisonment within a base standard range of 20 to 60 months. They also agreed that school zone enhancements of 24 months applied to each of the three convictions on the special allegations.

¶ 9 In his sentencing memorandum, Mohamed asked the trial court not to impose a standard sentence. Instead, he sought the imposition of an alternative sentence based either on a parenting sentencing alternative (PSA) under RCW 9.94A.655 or a drug offender sentencing alternative (DOSA) under RCW 9.94A.660. He also sought a mitigated exceptional sentence based on what he called " sentencing entrapment" and " sentencing manipulation." [1]

¶ 10 In response, the State argued that sentence alternatives " only waive imposition of the standard range part of a sentence." [2] It further claimed, " The defendant must be sentenced to the School Zone Enhancements he was convicted on separate and distinctly from imposition of, or in the alternative to, the standard range." [3] It appears from the record that the State took the position that Mohamed " will be serving 72 months in prison for the [school zone] enhancements." [4]

¶ 11 At the sentencing hearing, the trial court made clear that it believed it had no authority to waive the enhancements [187 Wn.App. 636] if it chose to impose an alternative sentence, stating, " There has to be a 72-month sentence [enhancement]. I have no choice in the matter." [5] Accordingly, the court imposed concurrent sentences of 20 months on each of four delivery convictions. The court also imposed three school zone enhancements of 24

Page 674

months each, to be served consecutively to each other and consecutively to the three delivery sentences, for a total sentence of 92 months.

¶ 12 Mohamed appeals.

SENTENCING

¶ 13 Mohamed makes two arguments on appeal. First, he argues that the trial court mistakenly believed that it did not have the authority to waive the enhancements if it chose to impose either a PSA or a DOSA. Second, he contends that he is entitled to a remand for resentencing. We agree with both arguments.

" Standard Range Sentence"

¶ 14 The threshold issue is whether the trial court had the authority to waive the 24-month school zone enhancements specified by RCW 9.94A.533(6) in favor of either of two sentencing alternatives.[6] One alternative was the drug offender sentencing alternative (DOSA) under RCW 9.94A.660. The other was the parenting sentencing alternative (PSA) under RCW 9.94A.655. Both of these two latter statutes provide sentencing alternatives that may be [187 Wn.App. 637] imposed in lieu of a sentence within the " standard sentence range" for eligible offenders.[7]

¶ 15 A court's fundamental objective in reading a statute is to ascertain and carry out the legislature's intent.[8] If a statute's meaning is plain on its face, then the court must give effect to that plain meaning.[9] Under the plain meaning rule, such meaning is derived from all that the legislature has said in the statute and related statutes that disclose legislative intent about the provision in question.[10] A court should not adopt an interpretation that renders any portion of the statute meaningless or superfluous.[11] The meaning of a statute is a question of law that the court reviews de novo.[12]

¶ 16 Under RCW 9.94A.660(3), the DOSA statute:

If the sentencing court determines that the offender is eligible for an alternative sentence under this section and that the alternative sentence is appropriate, the court shall waive imposition of a sentence within the standard sentence range and impose a sentence consisting of either a prison-based alternative under RCW 9.94A.662 or a residential chemical dependency treatment-based alternative under RCW 9.94A.664.[13]

¶ 17 Similarly, under RCW 9.94A.655(4), the PSA statute:

If the sentencing court determines that the offender is eligible for a sentencing alternative under this section and that the sentencing alternative is appropriate and should be imposed, the court shall waive imposition of a sentence [187 Wn.App. 638] within the standard sentence range and impose a sentence consisting of twelve months of community custody. The court shall consider the offender's criminal history when determining if the alternative is appropriate.[14]

¶ 18 Both of these alternative sentencing provisions permit a sentencing court to waive imposition of a sentence within the standard sentence range, conditioned on the court's determination that an offender is otherwise eligible for the alternative. Thus, the question is what " ...


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