Opinion
No. 22799-5-III.
August 14, 2007.
Appeal from a judgment of the Superior Court for Spokane County, No. 03-1-03059-8, Maryann C. Moreno, J., entered February 9, 2004.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Brown, J., concurred in by Sweeney, C.J., and Kulik, J.
Michael T. Daniels was convicted of attempted first degree assault — domestic violence, first degree kidnapping — domestic violence, and intimidating a witness in a bench trial. At sentencing, a point was added to Mr. Daniels' offender score because the court found he was on community supervision when the crimes occurred. Without a separate stipulation to consider exceptional sentencing facts and without making findings that juveniles were present when the first degree kidnapping was committed, the court imposed an exceptional sentence on that conviction. Mr. Daniels contends the offender score calculation and the exceptional sentencing offend the principles expressed in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Under State v. Jones, 159 Wn.2d 231, 149 P.3d 636 (2006), the trial court correctly decided that community placement added one point to Mr. Daniels' offender score. But without a stipulation to find exceptional sentencing facts and specific written findings that juveniles were present during the kidnapping, we reverse the exceptional sentencing. Further, we reject Mr. Daniels' additional grounds for review. We affirm in part, reverse in part, and remand for further proceedings.
FACTS
In August 2003, A.B. struggled to end her long-term relationship with Mr. Daniels. They had two young boys together, but lived apart.
On August 27, A.B. contacted Mr. Daniels about retrieving some items from his apartment. He informed A.B. he would bring the items to her brother's apartment where she was staying. Mr. Daniels showed up around 11:30 p.m. without the items and encountered a man, Rob, leaving the apartment. Upset, Mr. Daniels asked A.B. and the two children to sit in his car with him and talk because he did not want the neighbors to hear. He then began to drive away. A.B. told Mr. Daniels she was scared and did not want to leave with him. After confronting Rob, Mr. Daniels drove A.B. and the children to Mr. Daniels' place. A.B. told Mr. Daniels she wanted to leave but he would not let her. A.B. and Mr. Daniels argued all night while the children were in the bedroom.
On the afternoon of August 28, A.B. again requested to leave, when Mr. Daniels punched her on the right side of her head. He continued throughout the day to yell, scream, and cuss at A.B., accusing her of cheating on him. He again hit her on the head. The children did not witness this physical abuse but saw the bruising.
On August 29, Mr. Daniels struck A.B. on the back of the head and prohibited her from leaving. She continued to keep the children in the bedroom to protect them.
On August 30, Mr. Daniels told A.B. he was "tired of playing games" and used an extension cord to whip her on the legs and arms. Report of Proceedings (RP) at 99. A.B. screamed and their four-year-old son ran out of the bedroom. A.B. told him to go back to the bedroom.
On August 31, Mr. Daniels and A.B. continued to argue. He told her, "I am going to show you" and then walked to the kitchen to boil water. RP at 112. He told A.B. to take off her clothes, which she did except for her underwear and shirt. He then forced her to stand near a wall while he threw boiling water on her. A.B. was crying very loudly. The boys came out of the bedroom and, again, A.B. told them to go back. That evening, Mr. Daniels left the apartment to meet someone and A.B. called the police.
The State charged Mr. Daniels with attempted first degree assault, first degree kidnapping, harassment, and intimidating a witness. Following a bench trial, the court dismissed the harassment charge but convicted Mr. Daniels of the other charges.
During sentencing, Roger Bardwell from Safe Start, an agency helping children who witness law enforcement incidents, addressed the court. He commented on the children's behavior at the crime scene and stated, "it's clear that these children are going to be needing community resources for many years to come." RP at 249.
In computing Mr. Daniels' offender score, the court reviewed an October 2002 judgment and sentence where another court sentenced Mr. Daniels to community supervision for "up to 12 months" after completing his three-month sentence. Clerk's Papers (CP) at 38. Based on this, the court found Mr. Daniels was on community supervision when the crimes occurred and added one point to his offender score.
The court then sentenced Mr. Daniels, including an exceptional sentence on the kidnapping conviction by doubling its 51-month sentence based on the presence of the children. The court ordered that the assault and kidnapping convictions be served consecutively. Mr. Daniels' appeal has been stayed several times for Blakely appeals.
The standard range on the kidnapping charge was 108 to 144 months. The court imposed a 51-month sentence, and then doubled it, for a total sentence of 102 months, which is inexplicably below the standard range. The judgment and sentence notes the "enhancement" for "(JP) Juvenile present" is 51 to 68 months. CP at 35. The parties and the trial court inexplicably treat the sentence as an aggravated exceptional sentence.
ANALYSIS A. Offender Score
The issue is whether the trial court erred in adding one point to Mr. Daniels' offender score because the current acts were committed while he was on community supervision. Mr. Daniels contends the extra point was wrongly added because the community supervision finding must be made by a jury under Blakely, and substantial evidence did not show he was on community supervision when the crimes occurred.
Mr. Daniels' first contention has been resolved against him by Jones, 159 Wn.2d at 234, where the court held:
[B]ecause community custody is directly related to and follows from the fact of a prior conviction and that the attendant factual determinations involve nothing more than a review of the nature of the defendant's criminal history and the defendant's offender characteristics, such a determination is properly made by the sentencing judge.
Regarding Mr. Daniels' second contention, we will uphold a lower court's finding if it is supported by substantial evidence. State v. Brockob, 159 Wn.2d 311, 343, 150 P.3d 59 (2006). The State offered the October 2002 judgment and sentence, showing Mr. Daniels was ordered to community supervision following the completion of his three-month sentence. The 2002 court ordered community supervision for up to 12 months, and the prosecutor here stated at sentencing that he thought he had information that Mr. Daniels was on community supervision but it was not readily available. Mr. Daniels offered no rebuttal. Thus, substantial evidence supports the court's finding that Mr. Daniels was on community supervision when the crimes occurred. In sum, under RCW 9.94A.525(18), the court correctly added one point to Mr. Daniels' offender score.
B. Exceptional Sentencing
The issue is whether the sentencing court erred in imposing an exceptional sentence because the court, and not a jury, decided the exceptional sentencing facts, and because the evidence does not show the presence of children.
Mr. Daniels' first contention is dispositive. RCW 9.94A.535(3)(h)(ii) provides that the court may impose an exceptional sentence upward if the crime was a domestic violence offense that occurred within sight or sound of the victim's or the offender's minor children. Generally, aggravating factors must be determined by a jury. Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). A defendant, however, may waive his right to have a jury determine aggravating sentencing factors if he admits the facts or consents to judicial fact finding. Blakely, 542 U.S. at 309.
While Mr. Daniels consented to allow the judge to be the fact finder of guilt, he did not consent for the judge to be the fact finder of the aggravating factors to establish an exceptional sentence. A defendant does not waive his right to a jury determination of aggravating factors when he consents to a bench trial. State v. Harris, 123 Wn. App. 906, 920, 99 P.3d 902 (2004), overruled on other grounds by State v. Harris, 154 Wn.2d 118, 110 P.3d 192 (2005); see also State v. Suleiman, 158 Wn.2d 280, 285, 143 P.3d 795 (2006) (when facts used to support exceptional sentence were outside the defendant's stipulated facts, the exceptional sentence violates Blakely). Further, the trial court did not enter supporting findings of fact regarding the children. Finally, Mr. Daniels does not dispute his consecutive sentencing.
Given all, the sentencing court erred in its doubling calculation. The "exceptional" sentence on the kidnapping charge should be reversed. We do not disturb the consecutive sentencing decision.
See footnote one. The sentencing court should correct the kidnapping sentence to a time within the standard range.
C. Pro Se Additional Grounds for Review
Generally, Mr. Daniels contends insufficient evidence supports his attempted first degree assault conviction and further, that all his convictions should be reversed for ineffective assistance of counsel and cumulative error.
1. Sufficiency of the Evidence. In determining if the evidence is sufficient, we determine whether, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). The trier of fact, not the appellate court, resolves testimonial conflicts and evaluates witness credibility and evidence weight. State v. Carver, 113 Wn.2d 591, 604, 781 P.2d 1308 (1989).
"A person is guilty of assault in the first degree if he or she, with intent to inflict great bodily harm: (a) Assaults another with a firearm or any deadly weapon or by any force or means likely to produce great bodily harm or death." RCW 9A.36.011(1)(a). "A person is guilty of an attempt to commit crime if, with intent to commit a specific crime, he or she does any act which is a substantial step toward the commission of that crime." RCW 9A.28.020(1).
Mr. Daniels contends insufficient evidence shows he took a substantial step to inflict great bodily harm. But, in its unchallenged findings of fact that are verities on appeal, State v. Rankin, 151 Wn.2d 689, 709, 92 P.3d 202 (2004), the court found Mr. Daniels forced A.B. to stand by a wall while he threw boiling water at her, A.B. had brown spots on her body from the burns, and a doctor (not testifying as an expert), provided general knowledge that boiling water can cause third degree burns. Viewing these facts in a light most favorable to the State, any rational trier of fact could find Mr. Daniels took a substantial step to inflict great bodily harm beyond a reasonable doubt. Sufficient evidence supports his attempted first degree assault conviction.
Ineffective Assistance of Counsel. To prove counsel provided ineffective assistance, a defendant must show: "(1) defense counsel's representation was deficient, i.e., it fell below an objective standard of reasonableness based on consideration of all the circumstances; and (2) defense counsel's deficient representation prejudiced the defendant, i.e., there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different." State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Both deficient performance and resulting prejudice must be proved. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Because Mr. Daniels does not relate how his counsel's performance prejudiced him, his ineffective assistance of counsel claim necessarily fails. Thus, we do not consider his deficient performance claims.
Cumulative Error. Because Mr. Daniels has not established error, we do not consider his cumulative error arguments.
Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
WE CONCUR:
Sweeney, C.J. Kulik, J.