Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

STATE OF WASHINGTON,                                             No.  41231-4-II

                             Respondent,

       v.

RYAN JAY DOERING,
                                                                Consolidated with
                             Appellant.
In the Matter of the Personal Restraint                          No.  41286-1-II
of:

RYAN JAY DOERING,

                                                           UNPUBLISHED OPINION
                             Petitioner.

       Worswick, A.C.J.  --  Ryan Doering appeals his convictions for felony driving under the 

influence and second degree driving with license suspended or revoked. Doering argues that the 

trial court erred in (1) admitting his pre-arrest statement that he had not been drinking, and (2) 

sentencing him to a combined total of confinement and community custody in excess of the 

statutory maximum. In a pro se personal restraint petition,1 Doering also argues that he received 

1 Rules of Appellate Procedure (RAP) 16.3. 

No. 41231-4-II
Consolidated with No. 41286-1

ineffective assistance of counsel at trial.  We affirm the trial court's admission of Doering's pre-

arrest statements, remand for the trial court to amend the judgment and sentence, and dismiss 

Doering's personal restraint petition.

                                            FACTS

       In the early morning hours of March 25, 2010, while Bremerton Police Officer Aaron 

Elton assisted fellow officers with an unrelated incident, Officer Elton saw Doering drive by in a 

silver pickup truck.  Officer Elton recognized Doering because he had known Doering for several 

years.  Officer Elton checked the truck's license plate and confirmed that Doering was driving 

with a suspended license.  A few minutes later, Officer Elton drove in search of Doering.  Officer 

Elton quickly caught up to Doering's truck, verified that Doering was still driving, activated his 

emergency lights, and stopped Doering because he was driving with a suspended license.

       Officer Elton told Doering that he was stopped for driving with a suspended license.  

Doering replied that he was "aware of that."  1 Report of Proceedings (RP) at 58.  Officer Elton 

noticed Doering slurred his speech and had the odor of alcohol on his breath.  Officer Elton asked 

Doering if he had been drinking and Doering replied "no."  1 RP (Aug. 17, 2010) at 47.

       Officer Elton arrested Doering for driving with a suspended license and read Doering his 

Miranda2 rights from a department-issued card.  Doering said that he understood his rights and 

continued to speak with Officer Elton.  Officer Elton again asked Doering if he had been drinking.  

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d. 694 (1966).

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Doering admitted that he "had one or two beers" shortly before he began driving.  1 RP (Aug. 17,

2010) at 60; 2 RP (Aug. 18, 2010) at 126.  Officer Elton then requested Officer Donnell Rogers, 

Bremerton Police Department's on-duty dedicated traffic officer, to assist in determining whether 

Doering was driving under the influence.

       When Officer Rogers arrived, Officer Elton told Officer Rogers that he already read 

Doering his Miranda rights.  Officer Rogers noticed that Doering's pupils were dilated, his eyes 

were red and watery, his speech was fast and slurred, and he was unsteady on his feet.  Officer 

Rogers requested Doering voluntarily perform a series of field sobriety tests (FSTs), which 

Doering did.  Based on all of Officer Rogers's contact with Doering and Doering's poor 

performance on the FSTs, Officer Rogers concluded that Doering was intoxicated and unable to 

drive safely.  Officer Rogers arrested Doering for suspicion of driving under the influence (DUI), 

handcuffed him, and transported him to the police station.

       Doering was argumentative at the police station, so Officer Rogers did not remove 

Doering's handcuffs.  Officer Rogers gave Doering implied consent warnings for breath testing 

and read Doering his Miranda rights from a standardized form.  Doering said that he understood 

his rights, but did not sign the standardized form in the DUI packet because he was still 

handcuffed.  Doering refused to submit to breath testing.

       The State charged Doering with felony DUI and second degree driving with license 

suspended or revoked.  Before trial, the trial court held a CrR 3.5 hearing regarding admissibility 

of Doering's statements to Officers Elton and Rogers.  At this CrR 3.5 hearing, Officers Elton 

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and Rogers testified as described above. Doering testified at the hearing that Officer Elton never 

read him his Miranda rights but that Officer Rogers did not read him his Miranda rights "until 

way at the end;"  however, on cross-examination, Doering stated that Officer Rogers never read 

him his rights.  1 RP (Aug. 17, 2010) at 59, 62, 66.

       The trial court weighed the credibility of the witnesses for both sides and concluded that

Officer Elton properly advised Doering of his rights verbally at the scene and that Officer Rogers 

properly advised Doering of his rights in writing at the station.  The trial court ruled that 

Doering's pre-Miranda statements were admissible because Doering was not subject to custodial 

interrogation when he made them; rather, Doering made his pre-Miranda statements in the course 

of a Terry3 investigative stop.

       At trial, Officer Elton testified that Doering first denied having consumed alcohol but later 

admitted having a beer or two.  The State also presented Officer Rogers's testimony detailing 

Doering's slurred speech and Doering's poor performance on the FSTs. Doering testified that he 

was not under the influence of alcohol and that he initially denied having consumed alcohol 

because he "didn't want to go into that situation."  3 RP (Aug. 19, 2010) at 234.

       The jury found Doering guilty of felony DUI and second degree driving with license 

suspended; the jury also found that Doering refused a breath test to determine his blood alcohol 

content.  The State recommended the statutory maximum sentence of 60 months confinement and 

expressed regret that, because it recommended the statutory maximum sentence, imposing the 

3 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

                                               4 

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Consolidated with No. 41286-1

normal 12 months of community custody for felony DUI would necessarily lessen the duration of 

Doering's confinement.  The trial court acknowledged that it had "very little discretion in 

[sentencing] this case" because the statutory maximum sentence range was "a flat 60 [months],"

so the trial court could not deviate and it sentenced Doering to 60 months confinement.  3 RP 

(Aug. 27, 2010) at 372-73.

       However, the trial court entered a written judgment and sentence that conflicted with its 

oral ruling.  The written judgment and sentence ordered Doering to the statutory maximum 60 

months confinement and also ordered 12 months of community custody, stating "Note: While 12 

months of community custody is authorized for this offense, such period of community custody 

exceeds the statutory maximum term (5 years) given [ . . . Doering's] sentence of 60 months."  

Clerk's Papers (CP) at 137-38. Doering timely appealed.

                                          ANALYSIS

                            I.  Admissibility of Doering's Statements

       Doering argues that the trial court erred in admitting his pre-Miranda statement that he 

had not consumed any alcohol because he made that statement while subject to custodial 

interrogation.  We disagree. 

       We review whether a criminal defendant was in custody for purposes of Miranda de novo.  

State v. Lorenz, 152 Wn.2d 22, 36, 93 P.3d 133 (2004).  We apply an objective test, inquiring 

"whether a reasonable person in a suspect's position would have felt that his or her freedom was 

curtailed to the degree associated with a formal arrest."  State v. Heritage, 152 Wn.2d 210, 218, 

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95 P.3d 345 (2004).

                                               6 

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       Criminal defendants cannot be compelled to make incriminating statements.  U.S. Const. 

amend. V; Wash. Const. art. I, § 9.  Miranda warnings protect that right and must be given 

before a criminal defendant is subject to custodial interrogation.  Lorenz, 152 Wn.2d at 36.  

Whether the interrogating officers had probable cause to arrest the suspect is irrelevant to this 

objective inquiry.  Lorenz, 152 Wn.2d at 37.

       Conversely, a person subject to an investigative detention (or Terry stop) is not in custody 

under Miranda because investigative detentions are brief, occur in public, and are less police 

dominated.  Heritage, 152 Wn.2d at 218.  Police may properly make an investigative detention if 

they have "a reasonable and articulable suspicion that the individual [stopped] is involved in 

criminal activity."  State v. Marcum, 149 Wn. App. 894, 903, 205 P.3d 969 (2009) (quoting State 

v. Walker, 66 Wn. App. 622, 626, 834 P.2d 41 (1992)).  An officer's suspicion is reasonable if 

there is the "substantial possibility that criminal conduct has occurred or is about to occur."  

Marcum, 149 Wn. App. at 903 (quoting State v. Kennedy, 107 Wn.2d 1, 6, 726 P.2d 445 

(1986)).  

       Police officers may make a Terry stop of a vehicle registered to a person with a suspended 

license.  State v. Phillips, 126 Wn. App. 584, 587, 109 P.3d 470 (2005); RCW 46.20.349.  

During an investigative detention, police officers may ask a "moderate number of questions to 

determine [the detainee's] identity and to try to obtain information confirming or dispelling the 

officer's suspicions."  Berkemer v. McCarty, 468 U.S. 420, 439-40, 104 S. Ct. 3138, 82 L. Ed. 

2d 317 (1984).  Police officers may ask such questions without giving Miranda warnings during 

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an investigative detention even if those questions are designed to "elicit      an incriminating 

response."  State v. Walton, 67 Wn. App. 127, 130, 834 P.2d 624 (1992).  Moreover, if a police 

officer's initial articulable suspicion is further aroused during a Terry  stop, that officer may 

expand the scope of that lawful Terry stop as necessary.  State v. Acrey, 148 Wn.2d 738, 747, 64 

P.3d 594 (2003).

       Here, Officer Elton stopped Doering for driving with a suspended license.  Because 

Officer Elton had reasonable and articulable suspicion that Doering was committing a crime 

(driving with a suspended license), Officer Elton had the authority to stop Doering.

       As soon as Officer Elton noticed Doering's slurred speech and smelled alcohol on 

Doering's breath, Officer Elton had reasonable and articulable suspicion that Doering was 

committing a second crime.  Based on that reasonable suspicion, Officer Elton had the authority 

to expand the scope of his lawful Terry stop and ask if Doering had been drinking.  Because 

Officer Elton stopped Doering in a lawful Terry stop and properly expanded the scope of that 

Terry stop when Officer Elton formed reasonable and articulable suspicion that Doering was 

intoxicated, Doering was not in custody.4    Because Doering was not in custody, he was not 

4 Doering supports his argument that he was in custody when Officer Elton asked if he had been 
drinking, by analogizing to State v. France, 129 Wn. App. 907, 120 P.3d 654 (2005).  In France, 
although the officer had probable cause to arrest France, the officer explicitly told France that he 
was not free to leave until after they "cleared up" a domestic relations issue.  France, 129 Wn. 
App. at 909-10.  In holding that the officer subjected France to custodial interrogation rather than 
an investigative detention, we considered both that the duration of the stop was open-ended 
because the officer had probable cause to arrest France and that the officer explicitly told France 
he was not free to leave until after they "cleared up" the issue.  France, 129 Wn. App. at 909-11.  
Doering argues that, because Officer Elton had probable cause to arrest him for misdemeanor 

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No. 41231-4-II
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subject to custodial interrogation and Officer Elton lawfully inquired whether Doering had been 

drinking without informing him of his Miranda rights.   We affirm Doering's conviction.

                                  II.  Judgment and Sentence 

       Doering argues that the trial court erred in entering a judgment and sentence ordering 60 

months of confinement and 12 months of community custody, for a total of six years, because his 

statutory maximum sentence is five years.  The State concurs and concedes that the appropriate 

remedy is for the trial court to amend the judgment to explicitly state that the "combination of 

confinement and community custody shall not exceed the statutory maximum" pursuant to In re 

Pers. Restraint of Brooks, 166 Wn.2d 664, 671-73, 211 P.3d 1023 (2009).  We agree.

       Doering's statutory maximum sentence cannot exceed five years.  Although the trial 

court's oral ruling stated that it could not deviate from the 60-month statutory maximum 

sentence, the trial court's written judgment and sentence imposed 60 months confinement and 12 

months community custody.  Because the total duration of Doering's confinement and community 

custody is 72 months (i.e., six years), the sentence exceeds the five-year statutory maximum.  

Thus, we agree with both Doering and the State and remand for the trial court to amend 

Doering's sentence in accordance with Brooks.

                                III.  Personal Restraint Petition 

driving with a suspended license, the stop's duration was open-ended and he was in custody.  
Here, though, Officer Elton made a lawful Terry stop of Doering's truck, asked Doering if he had 
been drinking while Doering was still in his truck, and never told Doering that he could not leave.  
Thus, Doering's argument fails in accordance with Phillips, 126 Wn. App. at 587.

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       In a pro se personal restraint petition (PRP), Doering argues that he received ineffective 

assistance of counsel at trial.  We disagree and dismiss his PRP.

       In a PRP, the petitioner has the burden of proving by a preponderance of the evidence 

either constitutional error resulting in actual and substantial prejudice or nonconstitutional error 

resulting in a complete miscarriage of justice.5  In re Pers. Restraint of Lord, 152 Wn.2d 182, 

188, 94 P.3d 952 (2004).  In meeting that burden of proof, a PRP petitioner must state facts upon 

which the claim of unlawful restraint is based and the evidence available to support the factual 

allegations.  In re Pers. Restraint of Monschke, 160 Wn. App. 479, 488, 251 P.3d 884 (2010); 

RAP 16.7(a)(2).  A PRP petitioner cannot meet this burden of proof with conclusory allegations 

unsupported by citation to authorityor references to the record. Monschke, 160 Wn. App. at 

488; State v. Brune, 45 Wn. App. 354, 363, 725 P.2d 454 (1986).  We must dismiss a PRP where 

the petitioner fails to meet his burden of showing he was actually prejudiced by alleged 

constitutional error.  Monschke, 160 Wn. App. at 489.

       We review ineffective assistance of counsel claims de novo.  Monschke, 160 Wn. App. at 

490.  The federal and state constitutions guarantee effective assistance of counsel.  U.S. Const. 

5 We recognize the dissent in In re Pers. Restraint of Crace, 157 Wn. App. 81, 114-19, 236 P.3d 
914 (2010) (Quinn-Brintnall, J., dissenting), review granted, 171 Wn.2d 1035, 257 P.3d 664 
(2011).  Crace discussed the higher burden placed on petitioners alleging ineffective assistance of 
counsel in a PRP.  157 Wn. App. at 110-14.  We do not reach the issue of Doering's burden of 
proof here because he (1) fails to establish his counsel's performance was deficient and (2) fails to 
establish prejudice under Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. 
Ed. 2d 674 (1984).  Thus, Doering failed to meet his PRP burden of showing prejudice under any 
standard. 

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amend. VI; Wash. Const. art. I, § 22.  We start with a strong presumption of counsel's 

effectiveness.  State v. Gerdts, 136 Wn. App. 720, 726, 150 P.3d 627 (2007); State v. 

McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).  A person claiming ineffective 

assistance of counsel must show both that (1) counsel's deficient performance deprived the 

defendant of his constitutional right to counsel and (2) counsel's deficient performance prejudiced 

the defendant's case.  Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. 

Ed. 2d 674 (1984).  Deficient performance occurs when counsel's performance falls below an 

objective standard of reasonableness.  State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 

(2004).  Prejudice occurs when, but for counsel's deficient performance, there is a reasonable 

probability the outcome would have differed.  Reichenbach, 153 Wn.2d at 130.  If a person bases 

his ineffective assistance of counsel claim on counsel's failure to object, he must show that the 

objection would have succeeded.  Gerdts, 136 Wn. App. at 727.

       Here, Doering argues that he received ineffective assistance of counsel because his counsel 

failed to object to "any untrue information," including when "Officer [Rogers] . . . lied about 

knowing [Doering]" and when the "prosecutor continued to tell the jury that [Doering] was drunk 

[because he] did not take a breathalyzer." Personal Restraint Petition (PRP) at 4.  Doering 

further argues that he was denied effective assistance of counsel because his attorney neither  filed

pretrial motions "to have officers at the scene testify . . . that they falsely accused [him] of being 

'high' on 'meth,'" nor presented evidence of Doering taking and "passing" FSTs, nor objected to 

the jury seeing Doering in "cuffs." PRP at 4.

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       In his PRP,  Doering did not cite evidence that his counsel failed to object to "untrue 

information" and that, even if counsel failed to object to "untrue information," that the failure 

prejudiced Doering's defense.  Doering made no showing that, had counsel made every objection 

Doering believed was appropriate, those objections would have succeeded.  Further, Doering fails 

to support his allegations with references to the record, other admissible evidence, or authority.  

For example, neither Doering's PRP nor the record contain any factual reference to whether the 

jury did or did not see Doering in handcuffs.  In his PRP, Doering fails to satisfy both Strickland 

prongs and, thus, fails to establish constitutional error and resulting prejudice.  Because Doering 

fails to establish prejudice under Strickland, Doering did not meet his PRP burden.  Therefore, we

dismiss his PRP.

       We affirm the trial court's admission of Doering's pre-arrest statements, remand for the 

trial court to enter a sentence not exceeding the statutory maximum, and dismiss Doering's 

personal restraint petition.

       A majorityof the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 

2.06.040, it is so ordered.

                                                                Worswick, A.C.J.
We concur:

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No. 41231-4-II
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Quinn-Brintnall, J.

Van Deren, J. 

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