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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.  41783-9-II

                             Respondent,

       v.

J D KIENITZ                                                UNPUBLISHED OPINION

                             Appellant.

       Penoyar, C.J.  --  J D Kienitz appeals his convictions for three counts of unlawful delivery 

of a controlled substance (marijuana).  He argues that the conditional terms of the State's plea 

offer deprived him of his constitutional right to assistance of counsel.  He also asserts that the trial 

court issued an erroneous special verdict instruction.  In the alternative, he contends that he 

received ineffective assistance of counsel when his defense counsel failed to object to the special 

verdict jury instruction.  He raises further  arguments in his statement of additional grounds 

(SAG).1 We affirm.

                                            FACTS

       On February 17, 2009, the State charged Kienitz with three counts of unlawful delivery of 

a controlled substance (marijuana) with school bus route stop enhancements.2          The State 

presented a plea offer but conditioned its offer on the nondisclosure of the identities of the 

1 RAP 10.10.

2 In violation of RCW 69.50.401(1), (2)(c); RCW 69.50.435(1)(c); and former RCW 
9.94A.533(6) (2008).  The State also charged Kienitz with two counts of witness tampering and 
one count of intimidating a witness.  The jury found Kienitz not guilty of one count of witness 
tampering and not guilty of intimidating a witness.  The jury found Kienitz guilty of one count of 
witness tampering, but he does not challenge this conviction on appeal.   

41783-9-II

confidential informants.3, 4  

       Defense counsel requested the two confidential informants' identities.  The State disclosed 

the identities, and defense counsel interviewed the two confidential informants.  The State then 

withdrew its plea offer.  

       On July 30, Kienitz moved to dismiss the charges against him, arguing that the prosecutor 

committed prosecutorial misconduct by making a plea offer conditioned on the nondisclosure of 

the confidential informants' identities.  The trial court denied the motion.  At trial, the State called 

the confidential informants as witnesses and Kienitz cross-examined them. 

       Defense counsel proposed a jury instruction, which stated, in part:

              If you find the defendant guilty of these crimes, you will then use the 
       special verdict form and fill in the blanks with the answer "yes" or "no" according 
       to the decision you reach.

3 In an email to defense counsel, the prosecutor wrote, "Re:  the [confidential informants], if we 
have to disclose them then the offer dated 2/18/09 is off the table and no further offers will be 
made to your client." Clerk's Papers (CP) at 43. 

4 We note that the information and amended informations cite RCW 69.50.435(1)(b), which 
establishes a sentencing enhancement for delivery of a controlled substance on a school bus.  It 
appears, however, that the correct statute is RCW 69.50.435(1)(c), which establishes a sentencing 
enhancement for delivery of a controlled substance within 1,000 feet of a designated school bus 
route stop.  Under CrR 2.1(a)(1), "Error in the citation or its omission [on the information] shall 
not be ground for dismissal of the . . . information or for reversal of a conviction if the error or 
omission did not mislead the defendant to the defendant's prejudice." Here, there is no prejudice 
because the information charges Kienitz with committing the offenses "within 1,000 feet of a 
school bus route stop." CP at 58.
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              The special verdict form for these offenses has two questions.[5]  Because 
       this is a criminal question, all twelve of you must agree to answer each question.

Clerk's Papers (CP) at 68.

       Ultimately, the trial court issued jury instruction number 24, which reads, in part:

       If you find the defendant guilty of the crime of Delivery of a Controlled Substance 
        --  Marijuana in Count 1, 2 or 3, you will then use the Special Verdict Form A for 
       that Count and fill in the blank with the answer "yes" or "no" according to the 
       decision you reach as to that Count.  Because this is a criminal case, all twelve of 
       you must agree in order to answer the special verdict forms, Special Verdict Form 
       A.  In order to answer the special verdict forms "yes", you must unanimously be 
       satisfied beyond a reasonable doubt that "yes" is the correct answer as to each 
       count.  If you unanimously have a reasonable doubt as to this question, you must 
       answer "no."

CP at 107.  At trial, Kienitz objected to this instruction, arguing that the trial court should issue 

his proposed instruction, but he did not object to the unanimity language in the trial court's 

instruction.  

       The jury found Kienitz guilty of three counts of unlawful delivery of a controlled 

substance (marijuana) and answered "yes" to the three corresponding special verdict forms.  The 

trial court imposed concurrent6 sentences for each offense, as well as three consecutive7 school 

5 Defense counsel's proposed special verdict form asked the jurors two questions: (1) "Has the 
State proved beyond a reasonable doubt that the defendant delivered a controlled substance to a 
person" and (2) "[h]as the defendant proved by a preponderance of the evidence that (a) the 
defendant's conduct took place entirely within a private residence; and (b) no person under 
eighteen years of age was present in the private residence at any time during the commission of 
the offense; and (c) the defendant's conduct did not involve delivering, manufacturing, selling, or 
possessing with the intent to manufacture, sell, or deliver any controlled substance for profit?"  
CP at 74-75.

6 The trial court sentenced Kienitz to 12 months' confinement on each count. 

7 The trial court sentenced Kienitz to 24 months for each school bus route stop enhancement, 
resulting in a total of 72 months' confinement for the school zone enhancements.
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41783-9-II

zone enhancements, resulting in a total of 84 months' confinement.  Kienitz petitioned the 

Supreme Court for review.  The Supreme Court transferred the case to this court.  

                                          ANALYSIS

I.     Plea Offer

       A.     Right to Counsel

       First, Kienitz argues that he was denied his right to counsel under the Washington and 

United States Constitutions.  Specifically, he asserts that the State's plea offer denied him his 

constitutional right to assistance of counsel.  Kienitz asserts that "[i]t is difficult to imagine how a 

defendant and his counsel can adequately evaluate the strength of the State's evidence and the 

chances of prevailing at trial without knowing the identities of the witnesses who participated in 

the crime and provided the source and basis for the State's evidence of guilt." Appellant's Reply 

Br. at 6.  We find no constitutional violation here.

       A criminal defendant has a right to the assistance of counsel at every critical stage of a 

criminal proceeding.  U.S. Const. amend. VI; Wash. Const. art. I, § 22; State v. Robinson, 153 

Wn.2d 689, 694, 107 P.3d 90 (2005).  "[T]he right to counsel is the right to the effective 

assistance of counsel." United States v. Cronic, 466 U.S. 648, 654, 104 S. Ct. 2039, 80 L. Ed. 2d 

657 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct 1441, 25 L. Ed. 

2d 763 (1970)).  "If no actual 'Assistance' 'for' the accused's 'defence' is provided, then the 

constitutional guarantee has been violated."  Cronic, 466 U.S. at 654.

       The right to counsel requires that the defense be permitted to participate fully and fairly in 

the adversary factfinding process.  Herring v. New York, 422 U.S. 853, 858, 95 S. Ct. 2550, 45 L. 

Ed. 2d 593 (1975).  "[I]f counsel entirely fails to subject the prosecution's case to meaningful 

                                               4 

41783-9-II

adversarial testing, then there has been a denial of Sixth Amendment rights that makes the 

adversary process itself presumptively unreliable."  Cronic, 466 U.S. at 659.

       "A defendant does not have a constitutional right to plea bargain."  State v. Wheeler, 95 

Wn.2d 799, 804, 631 P.2d 376 (1981) (citing Weatherford v. Bursey, 429 U.S. 545, 97 S. Ct. 

837, 51 L. Ed. 2d 30 (1977)).  But "[t]he presence of counsel during all stages of plea bargaining 

is mandated by the courts."  State v. Swindell, 93 Wn.2d 192, 198, 607 P.2d 852 (1980).

       To support its contention that Kienitz's argument should fail, the State relies on State v. 

Moen, 150 Wn.2d 221, 76 P.3d 721 (2003).  In Moen, the defendant argued that "the State's 

policy of refusing to plea bargain with a criminal defendant who successfully compels disclosure 

of the State's confidential informant in a civil forfeiture action chills his right to obtain discovery 

in the civil case and thus violates due process." 150 Wn.2d at 225.  Our Supreme Court held that 

the policy did not violate the defendant's due process rights.

       In reaching its conclusion, the court recognized the contractual nature of plea bargains, 

reasoning that "[a] plea bargain is a contract and both sides to the agreement must perceive an 

advantage to entering the bargain."  Moen, 150 Wn.2d at 230 (internal citation omitted).  Further, 

the court noted the legitimate State interest in protecting the identity of confidential informants.  

Moen, 150 Wn.2d at 230 (citing State v. Casal, 103 Wn.2d 812, 815, 699 P.2d 1234 (1985)).  

"When the State is compelled to disclose an informant's identity, it loses a valuable asset or tool 

of law enforcement.  Under the policy, the State gains protection of its informants and, in 

exchange, the defendant receives the opportunity to bargain for a reduction or dismissal of 

charges."  Moen, 150 Wn.2d at 230.

              We recognize that the prosecutor's policy requires the defendant to forgo 
       his right to request disclosure of an informant's identity.  However, a condition 
                                               5 

41783-9-II

       insisted on by the State that requires a defendant to give up a constitutional right 
       does not, by itself, violate due process. "Agreements to forgo seeking an 
       exceptional sentence, to decline prosecuting all offenses, to pay restitution on 
       uncharged crimes, and to waive the right to appeal are all permissible components 
       of  valid plea agreements." State v. Lee, 132 Wn.2d 498, 506, 939 P.2d 1223 
       (1997); see State v. Perkins, 108 Wn.2d 212, 737 P.2d 250 (1987). The theoretical 
       basis for all plea bargaining is that defendants will agree to waive their 
       constitutional rights.  Perkins, 108 Wn.2d at 217.

Moen, 150 Wn.2d at 230-31.

       Moen supports the conclusion that the State's plea offer was proper.  First, a plea bargain 

is a contract and here the State's offer was motivated by its legitimate interest in protecting the 

identities of its informants.  Further, while the offer required Kienitz to waive his right to request 

disclosure of the informants' identities, waivers are necessary components of plea agreements.  

See Moen, 150 Wn.2d at 230-31.

       Kienitz fails to show that defense counsel "failed to function in any meaningful sense as 

the  Government's adversary," ultimately depriving him of his right to assistance of counsel.  

Cronic, 466 U.S. at 666.  Kienitz does not have a constitutional right to plea bargain and he 

participated fully in the adversarial process.  After Kienitz requested the confidential informants'

identities, the State provided defense counsel with their identities and defense counsel interviewed 

the two individuals.  The confidential informants testified at trial and Kienitz had the opportunity 

to cross-examine them.  Kienitz had a true adversarial criminal trial in which he was represented 

by counsel.  The State's conduct did not deprive Kienitz of his right to assistance of counsel.

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41783-9-II

       B.     Ineffective Assistance of Counsel

       To the extent Kienitz is arguing that specific errors made by defense counsel deprived him 

of his right to effective assistance of counsel, we reject his argument.8    In order to prove 

ineffective assistance of counsel, Kienitz has the burden of showing that (1) his counsel's 

performance fell below an objective standard of reasonableness and (2) his counsel's performance 

prejudiced him.  See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 

(1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).  "The benchmark 

for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the 

proper functioning of the adversarial process that the trial cannot be relied on as having produced 

a just result." Strickland, 466 U.S. at 686.  "Effective assistance of counsel includes assisting the 

defendant in making an informed decision as to whether to plead guilty or to proceed to trial."  

State v. A.N.J., 168 Wn.2d 91, 111, 225 P.3d 956 (2010) (citing State v. S.M., 100 Wn. App. 

401, 413, 996 P.2d 1111 (2000)). "[A] defendant's counsel cannot properly evaluate the merits of 

a plea offer without evaluating the State's evidence."  A.N.J., 168 Wn.2d at 109.

       As support for his argument, Kienitz cites A.N.J., 168 Wn.2d 91.  In A.N.J., the State 

offered the defendant a plea deal:  if the defendant would plead guilty to one count of first degree 

child molestation, the State would recommend a special sex offender disposition alternative; and, 

if the defendant finished treatment, the charge would be reduced to second degree child 

molestation.  168 Wn.2d at 101.  Defense counsel spent less than an hour with the defendant 

8 Because Kienitz has not established that defense counsel's performance was deficient, we need 
not reach the prejudice prong of the ineffective assistance of counsel test.  The recent United 
States Supreme Court cases, Lafler v. Cooper, 2012 WL 932019, and Missouri v. Frye, 2012 WL 
932020, do not affect our determination that counsel did not act deficiently in evaluating Kienitz's 
case.
                                               7 

41783-9-II

before the plea hearing, did no independent investigation, did not review the plea agreement 

carefully, and did not consult with experts.  A.N.J., 168 Wn.2d at 102.  The defendant pleaded 

guilty but, after hiring a new attorney, moved to withdraw his guilty plea.  A.N.J., 168 Wn.2d at 

102.  The trial court denied his motion.  A.N.J., 168 Wn.2d at 105.  Our Supreme Court 

concluded that the defendant received ineffective assistance of counsel and held that "at the very 

least, counsel must reasonably evaluate the evidence against the accused and the likelihood of a 

conviction if the case proceeds to trial so that the defendant can make a meaningful decision as to 

whether or not to plead guilty."  A.N.J., 168 Wn.2d at 111-12.

       This case is quite unlike A.N.J.  Kienitz's counsel did not act deficiently in evaluating the 

case, as he considered the State's evidence that was available and ultimately decided that it was 

critical to obtain the confidential informants' identities and interview them.  The prosecutor's 

conduct did not cause Kienitz to receive ineffective assistance of counsel.

II.    Jury Instruction

       Next, Kienitz asserts that the trial court erred by instructing the jury that it must be 

unanimous in order to answer "no" on the special verdict forms.  The State contends that Kienitz 

waived the right to raise this issue for the first time on appeal.  We do not consider Kienitz's 

argument for the first time on appeal because the alleged error is not a manifest constitutional 

error.

       A.     Bashaw Overview

       In State v. Bashaw, 169 Wn.2d 133, 146, 234 P.3d 195 (2010), our Supreme Court held 

that "a unanimous jury decision is not required to find that the State has failed to prove the 

presence of a special finding increasing the defendant's maximum allowable sentence. A 

                                               8 

41783-9-II

nonunanimous jury decision is a final determination that the State has not proved the special 

finding beyond a reasonable doubt."   Thus, the Bashaw court concluded that a jury instruction 

stating that all 12 jurors must agree on an answer to the special verdict was erroneous.  169 

Wn.2d at 147.  The court reasoned, "Though unanimity is required to find the presence of a 

special finding increasing the maximum penalty . . . it is not required to find the absence of such a 

special finding.  The jury instruction here stated that unanimity was required for either 

determination.  That was error."  Bashaw, 169 Wn.2d at 147.

       Following Bashaw, Division One of this court held that the following jury instruction on 

special verdicts was also improper: "In order to answer the special verdict forms 'yes,' you must 

unanimously be satisfied beyond a reasonable doubt that 'yes' is the correct answer.  If you 

unanimously have a reasonable doubt as to this question, you must answer 'no.'" State v. Ryan, 

160 Wn. App. 944, 947, 252 P.3d 895, review granted, 172 Wn.2d 1004 (2011); see also State v. 

Guzman Nunez, 160 Wn. App. 150, 163, 248 P.3d 103, review granted, 172 Wn.2d 1004 (2011)

(containing the same jury instruction language rejected in both Bashaw and Ryan but declining to 

review the claimed error for the first time on appeal because it was not manifest constitutional 

error).  At Kienitz's trial, the trial court issued the same jury instruction as the one at issue in 

Ryan and Nunez.

       B.     Manifest Constitutional Error

       The State asserts that we should not consider the claimed error for the first time on appeal 

under RAP 2.5(a) because it "is not of constitutional dimension." Resp't's Br. at 21.  We agree.

       An error cannot be raised for the first time on appeal unless it is a "manifest error affecting 

a constitutional right." RAP 2.5(a)(3); State v. O'Hara, 167 Wn.2d 91, 98, 217 P.2d 756 (2009).

                                               9 

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For the RAP 2.5(a)(3) exception to apply, the appellant must demonstrate that (1) the error is 

truly of constitutional magnitude and (2) the error is manifest. O'Hara, 167 Wn.2d at 98.  For an 

error to be "manifest," the defendant must show that the asserted error had practical and 

identifiable consequences at trial.  State v. Gordon, 172 Wn.2d 671, 676, 260 P.3d 884 (2011).

       The State asserts that "the claimed error is not of constitutional dimension." Resp't's Br. 

at 21.  We recently held, in State v. Grimes, that "instructional error requiring jury unanimity to 

answer 'no' on the special sentence enhancement verdict form . . . is not constitutional in nature."

165 Wn. App. 172, 189, 267 P.3d 454 (2011).  We follow Grimes and hold that the alleged error 

does not affect a constitutional right.

       Furthermore, Kienitz's claim fails because the alleged error does not meet the RAP 

2.5(a)(3) requirement that it be a "manifest" error.  As Kienitz did not challenge or present 

conflicting evidence on the school bus route stop issue, our independent review of the record does 

not reveal any practical and identifiable consequences at his trial.  Furthermore, the trial court 

could not have been informed by Bashaw at the time of Kienitz's trial.  See O'Hara, 167 Wn.2d 

at 100 ("[T]o determine whether an error is practical and identifiable, the appellate court must 

place itself in the shoes of the trial court to ascertain whether, given what the trial court knew at 

that time, the court could have corrected the error.").  Kienitz's trial took place in January of 

2010 and Bashaw was filed on July 1, 2010.  Accordingly, because the alleged error was neither 

constitutional nor manifest, we decline to review Kienitz's claim.9

9 Further, any error was harmless beyond a reasonable doubt in the context of Kienitz's trial as it 
did not affect his rights at trial or the jury's verdict.   At trial, Kienitz did not challenge or present 
conflicting evidence on this issue.
                                               10 

41783-9-II

III.   Ineffective Assistance of Counsel

       Kienitz asserts that "to the extent the error in the jury instructions was invited by defense 

counsel, Mr. Kienitz received ineffective assistance of counsel." Appellant's Br. at 28. Again, we 

disagree.

       We do not address whether defense counsel's performance was deficient because Kienitz's 

argument fails for lack of prejudice.  At trial, the State presented testimony on several school bus 

route stops located within 1,000 feet of Kienitz's home.  Kienitz did not challenge or present 

conflicting evidence on this issue.10 Further, Kienitz's proposed special verdict jury instructions 

asked the jury whether Kienitz had proven an affirmative defense to the school bus route stop 

enhancements:

       Has the defendant proved by a preponderance of the evidence that (a) the 
       defendant's conduct took place entirely within a private residence; and 

       (b) no person under eighteen years of age was present in the private residence at 
       any time during the commission of the offense; and 

       (c) the defendant's conduct did not involve delivering, manufacturing, selling, or 
       possessing with the intent to manufacture, sell, or deliver any controlled substance 
       for profit?

CP at 74-75.  Defense counsel did not address the school bus route stop enhancements in closing 

argument.  Thus, the jury had unchallenged evidence and no argument against the school bus 

route  stop  enhancements.  Under these facts, we conclude that Kienitz was not prejudiced 

because there is no reasonable probability that the outcome would have differed if the jury had 

been properly instructed.

10 Defense counsel cross-examined the State's two witnesses, but he did not elicit contradictory 
testimony.
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41783-9-II

IV.    Statement of Additional Grounds

       A.     Sentence

       In his SAG, Kienitz argues that the trial court erred when it sentenced him to 84 months'

confinement.  Specifically, he argues that the statutory maximum for delivery of a controlled 

substance (marijuana) is 60 months.  Kienitz's argument is misguided because the statutory 

maximum applies to each conviction, not to the total sentence.  The jury convicted Kienitz of 

three counts of delivery of a controlled substance (marijuana).  With regard to Kienitz's three 

unlawful delivery of a controlled substance (marijuana) convictions, the trial court sentenced 

Kienitz to 12 months' confinement with an additional 24 months' confinement for the school bus 

route stop sentencing enhancement.  Thus, for each delivery of a controlled substance (marijuana) 

conviction, the trial court sentenced Kienitz to only 36 months' confinement.  Even though the 

trial court sentenced Kienitz to over 60 months' total confinement, this was the total sentence for 

four convictions.11

       B.     Affirmative Defense

       Kienitz also argues that he was entitled to an affirmative defense under RCW 69.50.435(4) 

because "the crime was [i]nside [his] [p]rivate [r]esidence" and "the crime was not for [p]rofit."  

SAG at 5.  RCW 69.50.435(4) reads:

       It is an affirmative defense to the prosecution for a violation of this section that the 
       prohibited conduct took place entirely within a private residence, that no person 
       under eighteen years of age or younger was present in such private residence at 
       any time during the commission of the offense, and that the prohibited conduct did 
       not involve delivering, manufacturing, selling, or possessing with the intent to 
       manufacture, sell, or deliver any controlled substance in RCW 69.50.401 for profit.  
       The affirmative defense established in this section shall be proved by the defendant 

11 The fourth conviction is a witness tampering conviction that Kienitz does not challenge on 
appeal.
                                               12 

41783-9-II

       by a preponderance of the evidence.

       To support his argument that he did not sell the marijuana for profit, Kienitz cites to a 

portion of the record in which his defense counsel stated, "[Kienitz] made a total of $160.00 

profit every month from selling drugs.  So, he used $160.00 to help pay for food and rent and to 

live." RP at 491.  Further, witnesses at trial testified that they paid Kienitz for marijuana during 

the three controlled buys.  The record simply does not support Kienitz's claim.

       C.     Enhancement Statute

       Finally, Kienitz challenges the application of sentencing enhancements under RCW 

69.50.43512 to his convictions13 and asks us to "[o]verrule/[m]odify the Pierce[14] [d]ecision to

reflect the [legislative intent of the] [l]aws that [were] passed." SAG at 8.  In State v. Pierce, we 

considered whether RCW 69.50.435 applied to the manufacture of marijuana.  78 Wn. App. 1, 3, 

895 P.2d 25 (1995).  We held that "[u]pon reading RCW 69.50.401, .410, and .435 together, it is 

clear that the Legislature did not intend to exclude marihuana offenses that violated RCW 

69.50.401 from the enhancement provisions of RCW 69.50.435(a)."  Pierce, 78 Wn. App. at 4.  

12RCW 69.50.435(1)(c) reads, in pertinent part:

       Any person who violates RCW 69.50.401 by manufacturing, selling, delivering, or 
       possessing with the intent to manufacture, sell, or deliver a controlled substance 
       listed under RCW 69.50.401 or who violates RCW 69.50.410 by selling for profit 
       any controlled substance or counterfeit substance classified in schedule I, RCW 
       69.50.204, except leaves and flowering tops of marihuana to a person . . . [w]ithin 
       one thousand feet of a school bus route stop designated by the school district . . . 
       may be punished by . . . imprisonment of up to twice the imprisonment otherwise 
       authorized by this chapter.

13 Kienitz was found guilty of three counts of violating RCW 69.50.401.

14 State v. Pierce, 78 Wn. App. 1, 895 P.2d 25 (1995).
                                               13 

41783-9-II

Here, the jury found Kienitz guilty of violating RCW 69.50.401.  We follow Pierce and conclude 

that the sentencing enhancements were properly applied to Kienitz's marijuana offenses.

       Affirmed.

       A majority of 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.

                                                           Penoyar, C.J.

We concur:

       Van Deren, J.

       Worswick, J.

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