State v. LusbyState v. Lusby
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—After entering a negotiated plea, Pat Lusby appeals her conviction for possession of marijuana with intent to deliver. First, she contends the trial court abused its discretion when it denied her motion to compel the State to reveal the identity of a confidential informant. Next, she contends the sentencing enhancement set forth in
FACTS
After neighbors complained of suspicious traffic coming in and out of Ms. Lusby’s home in Asotin County, members of the Quad Cities Drug Task Force attempted to set up two controlled narcotics purchases at her home utilizing a confidential informant (Cl). Although neither attempt was successful, the Cl reported being able to enter Ms. Lusby’s residence. The Cl smelled burnt or burning marijuana and saw marijuana and two bongs, used for smoking marijuana, lying on the coffee table in the living room.
Based on the Cl’s observations and the reports from concerned neighbors, a search warrant was issued and served on Ms. Lusby at her residence. Forced entry was not required. Ms. Lusby was cooperative when sheriffs deputies and task force officers searched her home. Based on the evidence collected, Ms. Lusby was arrested and charged *261with various drug crimes. The State requested a 24-month enhancement pursuant to
When arrested, Ms. Lusby waived her right to remain silent and admitted that she sold drugs from her residence. Then, she supplied the officers with details of the drug operation. Ms. Lusby voluntarily relinquished the drugs, drug paraphernalia, and proceeds from recent drug sales to the officers.
In December 1998, Ms. Lusby was charged in Asotin County with two drug offenses — count I, possession of a controlled substance (methamphetamine); and count II, possession of a controlled substance (marijuana) with the intent to deliver. In March 1999, an amended information was filed adding count III, possession of a controlled substance (hydrocodone).
In February 1999, Ms. Lusby filed a motion to compel the identity of the Cl. She believed the Cl would be essential to her defense strategy at trial since she refused to sell drugs to that person. When the State informed her that it did not know the Cl’s identity, Ms. Lusby filed a motion to compel disclosure. After a hearing, the motion was denied. Ms. Lusby then sent a general subpoena to the task force requesting the Cl’s identity. The State was successful in getting the subpoena quashed.
Ms. Lusby eventually entered into a plea agreement whereby she agreed to plead guilty to possessing marijuana with intent to deliver (count II), in exchange for dismissing count I and count III. At the plea hearing she verbally and in writing admitted that she supplemented her income with drug sales.
Although she knew the State was recommending the 24-month sentence enhancement, Ms. Lusby forcefully argued against it at her sentencing hearing. She also sought participation in the work ethic camp as part of her sentence. Ms. Lusby was sentenced to 2 months (midpoint of *262the standard range) plus a 24-month enhancement pursuant to
ANALYSIS
A. Disclosure of the Cl
First, Ms. Lusby asserts that the trial court erred when it denied her motion to compel the State’s disclosure of the identity of the Cl in this case. The trial court’s decision is reviewed under the abuse of discretion standard. A trial court abuses its discretion when its decision is based on untenable grounds or reasons or if it makes a determination that is manifestly unreasonable. State v. Petrina, 73 Wn. App. 779, 782-83, 871 P.2d 637 (1994).
Generally, the government is not required to disclose the identity of an informant providing information related to criminal activity. State v. Harris, 91 Wn.2d 145, 148, 588 P.2d 720 (1978). However, a defendant’s request for disclosure of the Cl’s identity at trial implicates constitutional issues of fundamental fairness and due process. United States v. Raddatz, 447 U.S. 667, 679, 100 S. Ct. 2406, 65 L. Ed. 2d 424 (1980). When disclosure of a Cl’s identity is relevant and useful to the defendant, or if disclosure is essential to a fair determination of the case, then disclosure is warranted. Petrina, 73 Wn. App. at 783-84 (citing Roviaro v. United States, 353 U.S. 53, 60-61, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957)). The defendant has the burden of proving disclosure is necessary. Petrina, 73 Wn. App. at 784. If the trial court finds that either prong of the Roviaro test (relevant and useful to the defense or essential to a fair determination of the case) has been satisfied, then fundamental fairness requires disclosure. Harris, 91 Wn.2d at 149.
Ms. Lusby argues the Cl’s testimony was necessary *263to her defense because the Cl had information that would disprove the intent to deliver portion of the possession charge. She contends the Cl could testify that on two different occasions prior to the critical police search, the Cl was told that drugs were not for sale at Ms. Lusby’s residence. This argument might be persuasive except for Ms. Lusby’s valid admission during the raid that she sold drugs of the type found in her home. This admission was repeated during the plea. As such, disclosure of the identity of the Cl was not necessary under these facts. Given the above, we conclude the trial court did not abuse its discretion in denying Ms. Lusby’s motion to compel disclosure of the Cl.
We take this opportunity to comment on the procedure by which this issue was before us on appeal. Ms. Lusby pleaded guilty pursuant to a plea agreement. Part of the agreement was that she would be allowed to appeal the denial of her motion to compel. Generally, a defendant waives the type of issue presented here by pleading guilty. While waiver is not argued here, it is clear that Ms. Lusby wanted to preserve the informant disclosure issue. The usual practice would have been to proceed with a bench trial on stipulated facts. The appellant then would have had an orderly remedy, i.e., reversal and remand. Here, the sole remedy for a successful appeal would be to reverse and remand to allow Ms. Lusby an opportunity to withdraw her guilty plea.
B. Drug-Free Zone Sentence Enhancement
1. Equal Protection Violation
Next, Ms. Lusby argues that the trial court erred when it utilized the “drug-free zone” enhancement when sentencing Ms. Lusby because
*264 According to our equal protection laws, all people similarly situated with respect to the legitimate purpose of the law must receive like treatment. State v. Coria, 120 Wn.2d 156, 169, 839 P.2d 890 (1992). A statute is presumed constitutional and the challenger has the burden of proving it unconstitutional. Citizens for More Important Things v. King County, 131 Wn.2d 411, 415, 932 P.2d 135 (1997). A challenged statute should not be declared unconstitutional unless is appears to be so beyond a reasonable doubt. Island County v. State, 135 Wn.2d 141, 146, 955 P.2d 377 (1998). This particular statute has been the subject of appeal many times and has always survived constitutional challenges. “
It has been well established in this state that there must be a demonstration of discriminatory intent or purpose in order to establish a valid equal protection claim. Coria, 120 Wn.2d at 175. By its plain language,
*265 2. Sentencing Enhancement
Ms. Lusby also argues that
(a) Any person who violatesRCW 69.50.401(a) by manufacturing, selling, delivering, or possessing with the intent to manufacture, sell, or deliver a controlled substance ... to a person:
(6) In a public housing project designated by a local governing authority as a drug-free zone;
may be punished by. . . imprisonment of up to twice the imprisonment otherwise authorized by this chapter .... The provisions of this section shall not operate to more than double the . . . imprisonment otherwise authorized by this chapter for an offense.
(Emphasis added.) Whereas
The Supreme Court, in Silva-Baltazar, cited the bill analysis prepared by the House Committee on Judiciary to support its holding that
If, as here, the language in a statute is plain and unambiguous, the court’s inquiry must end, because the meaning must be derived from the wording of the statute itself. State v. Wilbur, 110 Wn.2d 16, 19, 749 P.2d 1295 (1988). The statute was followed to the letter in this case. Because Ms. Lusby’s drug offense occurred within a public housing project in violation of
C. Work Ethic Camp
Finally, Ms. Lusby asserts that the trial court failed to recognize it had discretion to order work ethic camp (WEC). She is correct.
Ms. Lusby requested an alternative sentence *267pursuant to
From 1995 until July 25,1999, offenders were eligible for WEC if they were sentenced to between 16 months and 36 months of confinement, had no current or prior violent or sex offense convictions, and were referred by the sentencing court. Effective July 25, 1999, eligibility standards changed. Offenders are now eligible if they are sentenced to between 12.03 months and 36 months of confinement, have no current drug offenses, have no current or prior violent or sex convictions, are not subject to an Immigration and Naturalization Service detainer or deportation order, and have not participated in WEC in the past. Laws of 1999, ch. 197, § 5. Presently, if the court determines that the offender is eligible for WEC and is likely to qualify, it “shall impose a sentence within the standard range and may recommend that the offender serve the sentence at a work ethic camp.”
Pursuant to the criminal prosecution saving statute, prosecution for a criminal offense must proceed under the criminal and penal statutes in effect at the time the offense was committed unless the Legislature expresses a different intent in an amending statute.
Ms. Lusby’s crime was committed in October 1998. The effective date of the 1999 amendment that changed eligibility criteria for WEC was July 25, 1999. If Ms. Lusby met eligibility criteria in effect as of the date of her offense, the sentencing court was free to exercise its discretion in recommending WEC. It should have made that determination on the record. The court was mistaken in its belief that WEC was unavailable to Ms. Lusby due to the 1999 amendment to the statute. Accordingly, remand is appropriate to allow the trial court to consider WEC.
CONCLUSION
The trial court neither abused its discretion when denying Ms. Lusby’s motion to compel disclosure of the Cl nor when sentencing, except by failing to recognize it had discretion to order WEC.
Accordingly, we affirm Ms. Lusby’s conviction and remand for resentencing in order to allow the sentencing court to exercise its discretion as to whether to include work ethic camp in Ms. Lusby’s sentence.
Brown, A.C.J., and Kato, J., concur.
Review denied at 144 Wn.2d 1005 (2001).
Notes
Judge Tari S. Eitzen is serving as a judge pro tempore of the Court of Appeals pursuant to