15 CCAR 45
Max LAZARD, Appellant,
v.
COLVILLE CONFEDERATED TRIBES, Appellee.
No. AP21-007, 8 CTCR 13
Colville Confederated Tribes Court of Appeals
April 18, 2022
Trial Court Case No. CR-2018-41040
 

Before Chief Justice Anita Dupris, Justice Mary Finkbonner, and Justice Theresa M. Pouley
Dupris, C.J.

Procedural Summary

This appeal arises from the latest ruling in this case, which was initially filed on March 21, 2018, in which Appellant was charged with two counts of drug possession (methamphetamine and heroin), and two counts of possession of drug paraphernalia. Appellant, while represented by a spokesperson, entered guilty pleas to the two drug possession charges on May 3, 2018 and was sentenced on that date. The two possession of drug paraphernalia charges were dismissed.

Our Court dismissed an Appeal of the Trial Court's Order of January 15, 2021which reinstated Appellant's suspended sentence 510 days, finding the reinstated jail time did not violate the Tribal Law and Order Act (TLOA), 25 U.S.C. 2801 (2010). The Appellant also asked this Court to review his guilty plea and Judgment and Sentence of May 3, 2018. We held this request was untimely and denied the Appeal.

In April, 2021 Appellant asked the Trial Court to vacate his conviction based on a newly-issued State of Washington case, State v. Blake, 197 Wn.2d 170, 481 P.3d 521, 2021 LEXUS 107 (2021), in which the Washington State Supreme Court (Supreme Court) found the State's drug possession statute unconstitutional because it lacked a mens rea element. Appellant asked the Court to review our drug possession statutes under the standards established in Blake, supra. Appellee Tribes objected to the Motion to Vacate. On June 25, 2021 the Trial Court denied the Motion to Vacate. Appellant filed a timely appeal from this latest Order.

After reviewing the record and applicable law, and based on the reasoning below, we find that Appellant's case is distinguishable from Blake, supra. We will not adopt the rulings in Blake and will affirm the Trial Court's Order dated June 25, 2021.

Issue

Does our strict liability criminal statute against drug possession violate a defendant's due process rights without a mens rea element, analogous to the reasoning set out in State v. Blake, supra?

Standard of Review

The issue is one of law. We review de novo. Naff v. CCT, 2 CCAR 50 (1995).

Discussion

Appellant asks us to adopt the reasoning and ruling in Blake, supra in which the Washington State Supreme Court found its strict liability felony drug possession statute was unconstitutional as it was beyond the power of the Washington State Legislature to criminalize unknowing possession of drugs. Such conduct, the Supreme Court held, violated defendants' due process rights under the State and Federal Constitutions.

Briefly, the facts under Blake, supra, were that a defendant was arrested during a search warrant, and when booked into jail, illegal drugs were found in the coin pocket of the jeans she was wearing. At trial she claimed she was innocent because she got the pants second hand from a friend, and she didn't know there were drugs in the coin pocket. The jury found her guilty of possession of drug possession, finding she had not proven her defense of "unwitting possession."

The Washington Court of Appeals affirmed her conviction. On appeal to the Supreme Court the Blake defendant challenged the strict liability drug possession, arguing it should have a mens rea element. The Supreme Court agreed. It posited that because of the extreme consequences of the crime of drug possession, the defendant's rights to due process were violated when there was no mens rea requirement. Under the protected personal liberties aspect of due process, the Court found that mens rea is the rule, and not the exception to criminal laws. It found further that a law cannot criminalize "essentially innocent" conduct. See, eg. City of Seattle v. Pullman, 82 Wn.2d 794, 514 P.2d 1059 (1973).

The Supreme Court emphasized the serious consequences to defendants convicted of a strict liability drug offense, such as the felony statute imposes harsh consequences for passive conduct; it carries the maximum penalty of 5 years in jail and a $10,000.00 fine. Also, felony convictions strip defendants of many fundamental rights at the time of incarceration and long after, as well as harsh collateral consequences of being a convicted drug offender.

Justice Stephens' dissent opinion asserts that the majority opinion goes to far when all they had to do was declare the pre-Blake rulings not requiring a mens rea element for the drug offense was wrong, and to over-turn the contrary decisions. She writes that the common law principle of mens rea is foundational to the criminal justice system, which is supported by (1) RCW 9A.04.060 ("...the provisions of the common law relating to the commission of crime...shall supplement all penal statutes of this state."); (2) U.S. Supreme Court caselaw (eg. Staples v. United States, 511 U.S. 600 (1994)); and the Uniform Controlled Substances Act §401(c), which requires a defendant "knowingly or intentionally" possess a controlled substance. Washington is the only state to maintain a strict liability drug possession statute, both in its language and its interpretation.

We are asked to follow the ruling in the Blake majority decision in that our drug offenses are strict liability, with no mens rea element in the offense. We have found that declaring a tribal statute unconstitutional or otherwise invalid should be the last resort of our inquiry when presented with the question. Wiley v. CCT, 2 CCAR 60 (1995). We must first analyze whether the proper case is before us to do so.

Appellant's case is clearly distinguishable from the facts in Blake. First, Appellant specifically acknowledged his culpability in his statement of guilty plea in 2018. He specifically stated he possessed methamphetamine and heroin. He was represented by a spokesperson at his guilty plea hearing; if innocent this would have been the time to raise the argument.

In Blake the defendant claimed she had no knowledge she had drugs in her pocket. The Blake Court found this to be essentially innocent possession, and that upholding the strict liability element of the drug possession charge violates the due process rights of defendants acting with innocent conduct. Appellant's guilty statement does not support an innocent possession.

Further, Appellant's sentence is not akin to the potential penalties recognized by the Court that Blake was subject to, i.e. felony record, felony jail time/fine, and so on. These were important considerations the Court recognized in its decision.

The facts in this case show further that Appellant has made attempts to not fulfill his sentence by filing other Appeals after he has been ordered to jail. It raises the question of whether Appellant is grasping at straws in this case. He was sentenced three (3) years ago, and now is trying to overturn that conviction by hanging his hat on the Blake case in order to avoid his reinstated sentence. Any question of constitutionality of his sentence is not viable at this time.

For these reasons, we find that even though it is in our responsibility to review statutes for constitutionality, and even though the question of strict liability of our drug possession offenses may be relevant to a case in the future, this is not the case. Based on our reasoning above we AFFIRM the Trial Court order of June 25, 2021, and REMAND to the Trial Court for actions consistent with this order.