Opinion
No. 24774-1-III.
April 17, 2007.
Appeal from a judgment of the Superior Court for Walla Walla County, No. 04-1-00501-6, Donald W Schacht, J., entered November 14, 2005.
Affirmed by unpublished opinion per Sweeney, C.J., concurred in by Schultheis and Brown, JJ.
The State must set out the essential elements of a crime charged in its information. Here, the defendant assigns error to the failure of the State to set out statutory language that a school bus stop was "designated by the school district." RCW 69.50.435(1)(c). And the statute enhancing the penalty for the sale of controlled substances within 1,000 feet of a school bus stop uses that language. But the fact that the school bus stop was designated by the district is neither an element of the crime of delivery of a controlled substance, nor is it necessary to notify the defendant of the sentence enhancement. We therefore affirm the conviction. We also affirm the sentence. We conclude that although the sentencing judge did not specifically articulate reasons for imposing fines, the judge sat through the trial and referred to trial testimony as reasons. That, we conclude, is sufficient to support the imposition of the fines.
FACTS
Michelle Hopwood sold methamphetamine to a police informant. The State charged her with delivery of a controlled substance within 1,000 feet of a school bus stop.
The director of transportation for the Walla Walla public schools testified that a school bus stopped at the shopping mall where Ms. Hopwood sold the drugs. A detective testified that the distance from the front of the mall (where the school bus stops) and the furthest point reached by the defendant during the drug transaction was approximately 200 feet.
A jury returned a special verdict finding that the drug transaction took place within 1,000 feet of a school bus stop. The court added a school bus stop enhancement to the sentence. RCW 69.50.435. The trial court also imposed a $3,000 meth lab clean up fine and a $500 contribution to the Drug Enforcement Fund of the City of Walla Walla.
DISCUSSION
Statutory Language — "Designated by the School District"
Ms. Hopwood argues that the information charging her with delivery of a controlled substance within 1,000 feet of a school bus stop was deficient because it did not include the statutory language "designated by the school district."
Whether the language of a statute is an essential element of a crime and, therefore, must be included in an information and proved by the State is a question of law that we review de novo. State v. Phillips, 98 Wn. App. 936, 939, 991 P.2d 1195 (2000); State v. Silva, 119 Wn. App. 422, 428, 81 P.3d 889 (2003). The fact that Ms. Hopwood did not object to the information until after the verdict influences the way we read the information: "[w]hen a challenge is made for the first time after verdict, the charging documents must be construed liberally in favor of validity." State v. Taylor, 140 Wn.2d 229, 237, 996 P.2d 571 (2000). "Under the liberal standard of construction, a court has `considerable leeway to imply the necessary allegations from the language of the charging document.'" Id. (quoting State v. Kjorsvik, 117 Wn.2d 93, 104, 812 P.2d 86 (1991)). The statute here permits a sentence enhancement for delivery within 1,000 of a school bus stop.
Any person who violates RCW 69.50.401 by . . . delivering . . . a controlled substance listed under RCW 69.50.401 . . . (c) [w]ithin one thousand feet of a school bus route stop designated by the school district . . . may be punished by a fine of up to twice the fine otherwise authorized by this chapter . . . or by imprisonment of up to twice the imprisonment otherwise authorized by this chapter . . . or by both such fine and imprisonment. RCW 69.50.435(1).
Methamphetamine is a substance listed under RCW 69.50.401(2)(b).
The State must include the essential elements of a crime in the information. But it need only give the defendant notice of its intent to seek a sentence enhancement. State v. Thorne, 129 Wn.2d 736, 779-81, 921 P.2d 514 (1996); State v. Frazier, 81 Wn.2d 628, 635, 503 P.2d 1073 (1972). And the charging information here notifies Ms. Hopwood of the State's intent to seek an enhancement: "VIOLATION OF THE UNIFORM CONTROLLED SUBSTANCES ACT — DELIVERY OF METHAMPHETAMINE WITHIN 1,000 FEET OF A SCHOOL BUS STOP, RCW 69.50.401(1) (2) (b) and 69.50.435(a) (3), Class B Felony (10 years or fine of $25,000 or both)." Clerk's Papers (CP) at 7.
The statutory language "as designated by the school district" simply explains how the school bus stop is established. It is neither an element of the crime of delivery nor a necessary prerequisite to imposition of the sentence enhancement. The enhancement only requires that delivery occur within 1,000 feet of the school bus stop. It is clear from the statute, and it follows from common sense, that the school district sets the school bus stops.
The State then does not need to include in the information "how" school bus stops are designated. But even if it did have to include that language, the language is fairly implied from this information here. Kjorsvik, 117 Wn.2d at 104. The school district designates the school bus route stop — period. RCW 69.50.435(6)(c).
Meth Lab Clean-up Fine and Drug Enforcement Fund Meth Lab Clean-Up Fine
Ms. Hopwood next assigns error to the sentencing judge's failure to set out reasons for its discretionary decision to impose drug fines authorized by statute. We review the decision for abuse of discretion. RCW 69.50.401(2)(b)(ii); State v. Wood, 117 Wn. App. 207, 210, 70 P.3d 151 (2003). The trial court must have tenable grounds or reasons for doing what it did. State v. Neal, 144 Wn.2d 600, 609, 30 P.3d 1255 (2001). The trial court has the discretion to impose prison time, a fine, or both, following a defendant's conviction for delivery of methamphetamine. RCW 69.50.401(2)(b); Wood, 117 Wn. App. at 212.
Ms. Hopwood argues that the trial court abused its discretion when it failed to exercise the discretion conferred by the statute and automatically imposed the fine. Appellant's Br. at 12. But this trial judge sat through a two-day jury trial that resulted in a conviction for delivery of meth: "I did listen to the testimony. I sat on this trial, obviously, and I'm convinced that you were not being truthful when you testified, ma'am. I simply feel the officers were very credible and you weren't." Report of Proceedings (RP) at 193-94.
The court then considered the findings of the jury. The court considered the fact that Ms. Hopwood had no prior criminal history. Ms. Hopwood did not suggest any mitigating factors that should influence the imposition of a fine. See Wood, 117 Wn. App. at 212 (trial court did not impose a fine because defendant had already spent $14,000 cleaning up his own meth lab). The amount imposed was on the low end of the court's statutory range for a fine on a defendant convicted of a meth-related crime. RCW 69.50.401(2)(b).
The trial court's decision to impose a fine was tenable. And the amount imposed was also reasonable. The trial court did not abuse its discretion by imposing a $3,000 fine on Ms. Hopwood.
The first $3,000 of the fine must go to the meth lab clean-up fund. RCW 69.50.401(2)(b); Wood, 117 Wn. App. at 212. The trial court had no discretion related to the use of the first $3,000 of any fine it imposes in a meth-related conviction case; it goes to the meth lab clean-up fund as a matter of law. Wood, 117 Wn. App. at 212. Ms. Hopwood's argument that she only delivered meth but did not "cook" it is irrelevant to whether she must contribute $3,000 to the meth lab clean-up fund once a fine has been imposed. Contribution to the Drug Enforcement Fund "Whenever a person is convicted in superior court, the court may order the payment of a legal financial obligation as part of the sentence." RCW 9.94A.760(1).
A legal financial obligation is "a sum of money that is ordered by a superior court of the state of Washington for legal financial obligations which may include . . . county or interlocal drug funds." Former RCW 9.94A.030(27) (2003). Any contribution to a drug fund must be for a drug-related crime and commensurate with the costs of the investigation. State v. Hunter, 102 Wn. App. 630, 640, 9 P.3d 872 (2000).
Though the contribution to the drug fund must be commensurate with the costs of investigation, the trial court is not required to substantiate the costs on the record. Id. at 641. In Hunter the reviewing court concluded that "although the record does not contain substantiation of the costs of the investigation, the trial court apparently considered those costs." Id. "We find that the trial court's imposition of a drug fund contribution is authorized by statute and does not violate . . . the due process clause." Id.
The court convicted Ms. Hopwood of a drug-related crime. The trial court then acted within its discretion when it required a contribution to the drug fund. See id. at 640.
Ms. Hopwood argues that the trial court is required to provide some substantiation for its imposition of $500 as the amount "commensurate with the costs of investigation." She is mistaken. Id. at 641. Again, the trial court listened to the evidence and based its sentence on the testimony. That is all that is required under Hunter. Additional Assignments of Error Ms. Hopwood argues that she has never seen school buses stop at the designated bus stop. But the actual presence of children at the bus stop is irrelevant because "[i]t is not a defense to a prosecution for a violation of this section or any other prosecution under this chapter that persons under the age of eighteen were not present . . . at the school bus route stop." RCW 69.50.435(3); State v. Coria, 120 Wn.2d 156, 162, 839 P.2d 890 (1992).
And she argues that the bus stop is not clearly marked. But again "[i]t is not a defense to a prosecution for a violation of this section that the person was unaware that the prohibited conduct took place while . . . within one thousand feet of the school or school bus route stop." RCW 69.50.435(2).
In Coria, our Supreme Court held that "due process does not require [that] drug dealers know they are within a drug free zone for purposes of the federal school yard statute or RCW 69.50.435." Coria, 120 Wn.2d at 166. It explained:
It is true that the school bus route stops involved here, like most others, are not marked. Therefore, the defendants could not have immediately determined, simply by looking around during a drug sale, that they were nearby a school bus route stop. Nevertheless, information regarding the locations of the stops was available through such means as observing the gathering of schoolchildren waiting for their school buses, or contacting local schools or the director of transportation for the school district. It may be unrealistic, of course, to expect drug dealers to take these steps, but that is irrelevant.Id. at 167.
We affirm the conviction and sentence.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
WE CONCUR: Schultheis, J. Brown, J.