SPOKANE - A Ferry County man’s appeal of three criminal convictions has been rejected by the state Court of Appeals for Division III.
Thomas Jackson Barton appealed his 2017 convictions for possession of a controlled substance, resisting arrest and obstructing a law enforcement officer.
“We reject two constitutional challenges to his convictions that this court has repeatedly rejected before,” said the unpublished opinion filed April 2. “His challenge to his offender score was waived when his trial lawyer explicitly agreed with the score, and error, if any occurred, cannot be raised on direct appeal.”
Ferry County Sheriff’s Office Deputy Patrick Rainer attempted to serve a protective order on Barton on a spring day in 2017. When Barton saw the deputy pull his patrol vehicle into an area where Barton was fueling a truck, Barton stopped what he was doing and started to run, said court records.
Rainer yelled at Barton to stop and that he was under arrest.
“Mr. Barton continued to hide or flee until he was immobilized by the deputy’s stun gun and handcuffed,” court records said.
Rainer retrieved two pocket knives and a metal marijuana pipe from the pockets of Barton’s bib overalls. A search of shorts Barton wore under the overalls yielded, among other items, a glass smoking device the deputy recognized as a type commonly used to smoke methamphetamine, according to court documents.
The device later tested positive for the presence of methamphetamine, and Barton was charged with possession of a controlled substance, resisting arrest, use of drug paraphernalia and obstructing a law enforcement officer.
At Barton’s jury trial, a forensic scientist testified to the presence of methamphetamine in the glass smoking device and that what she tested was residue scraped out of the device with a wooden stick, said court records. On cross examination, she admitted someone would not be able to tell the device contained a controlled substance just by looking at it.
Barton, testifying in his own defense, denied knowing the device was in the pocket of the shorts. He claimed to have borrowed all the clothing he was wearing from a friend after falling into a river and soaking his own clothing.
The jury found him guilty of all but the drug paraphernalia offense. At sentencing, the parties agreed that Barton’s offender score was four.
A person’s previous convictions are used in calculating an offender score.
Court records said he had convictions for four previous adult felonies. He was sentenced to eight months in jail.
The appeals court rejected two points of appeal, saying it previously rejected those constitutional contentions that state law does not violate the Eighth Amendment as applied to the possession of drug residue, and that the pattern “reasonable doubt” instruction given to the jury does properly state the law.
The court also found that any error in calculating the offender score was waived for purposes of direct appeal.
“For the first time on appeal, Mr. Barton argues that the trial court counted his 2000 felony conviction for attempting to elude a pursuing police vehicle toward his offender score in error, because it should have washed out,” said the court.
The appeals court said defense counsel and the state agreed on Barton’s offender score.
While the 15-year gap between the first conviction reflected in Barton’s criminal history and his other convictions supports the possibility of a “washout,” where those older offender score points won’t be counted because of time spent in the community without further crimes, the appeals court said no objection was made at sentencing.
Barton also had been sentenced in 2015 for three other three felonies.
“The state represents that defense counsel was aware of intervening misdemeanor convictions that would prevent the conviction from washing out. Because no objection was made to the offender score, there was no need for the state to present that evidence at sentencing,” the appeals court said.
“Whether the 2000 conviction should have washed out presents a factual issue that Mr. Barton waived by failing to raise it,” the court continued. “Any evidence that it should have washed out will have to be presented in a personal restraint petition.”
Judge Laurel Siddoway wrote the appeals court decision, with Kevin Korsmo and Robert Lawrence-Berrey concurring.
Barton was represented on appeal by Jodi R. Backlund and Manek R. Mistry of Backlund and Mistry, Olympia. The state was represented by Kathryn Isabel Burke of the Ferry County Prosecutor’s Office.