Opinion
No. 51851-8-I consolidated with cause No. 52159-4-I.
Filed: February 9, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 00-1-03253-2. Judgment or order under review. Date filed: 01/24/2003.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Holton Miller (Appearing Pro Se), Stafford Creek Correction Center, Doc # 634002, 191 Constantine Way, Aberdeen, WA 98520.
Jason Brett Saunders, WA Appellate Project, Cobb Bldg., 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Timothy John Leary, Attorney at Law, W554 King Co Cthse, 516 3rd Ave, Seattle, WA 98104-2385.
Twice before, Holton Miller appealed the sentence imposed on certain convictions. In both cases, this court accepted the State's concession of error, reversed Miller's sentence, and remanded for resentencing. On appeal from that resentencing, Miller again contends that the sentencing court miscalculated his offender score. But because he is attempting to raise a same criminal conduct issue for the first time on appeal, the matter has not been properly preserved for our review. Even if we were to treat the issue as properly before us, we cannot say the sentencing court on remand erred in scoring Miller's 1995 convictions separately. We also reject the other contentions raised by Miller in his pro se `Statement of Additional Grounds [for Review].' Accordingly, we affirm.
The appeals in Nos. 51851-8-I and 52159-4-I have been consolidated for purposes of review and disposition.
FACTS
In August 2000, Miller was convicted by jury verdict of one count of second degree theft. Using an offender score of 7, the trial court imposed a standard range sentence. Approximately a year later, Miller pleaded guilty to two counts of domestic violence felony violation of a court order. At sentencing, the trial court calculated Miller's offender score to be 8 on both counts.
Miller appealed both convictions, arguing that the sentencing courts had erroneously included three prior felony convictions in his offender scores. The State conceded that the prior convictions had `washed out' and should not have been included in Miller's offender score.
In separate decisions filed on September 23, 2002, this court accepted the State's concession that the offender scores used to calculate the sentences on his convictions for theft and domestic violence felony violation of a court order were miscalculated, reversed Miller's sentences, and remanded the matter for resentencing. See State v. Miller, Nos. 49765-1-I and 47767-6-I (September 23, 2003).
At the joint resentencing on January 24, 2003, the State informed the court that Miller's offender score was 4 on the theft and 6 on the domestic violence felony violation of a court order. Although Miller stated that based upon representations previously made by a prosecutor, he believed the offender score should be 5 on his convictions for violation of a protective order, defense counsel disagreed, asserting that the State's offender score calculations were correct. Defense counsel remarked:
Very briefly, Your Honor, obviously, the present calculation — well, the recitation of criminal history and calculation of offender score surely is now correct, and stipulate to the presumptive ranges that have been recited.
At some later point, when Miller once again referenced to a document in which the offender score was tabulated as 5 points, defense counsel stated: For the record, I will state I have reviewed the criminal history. I believe the [S]tate's calculation is correct, regardless of what is pled in the document that Mr. Miller is proffering.
The sentencing court then imposed standard range sentences, based on offender scores of 4 and 6 respectively. This appeal followed.
DECISION
We are asked to again review the calculation of the offender scores used to compute the sentences imposed on Miller's convictions of one count of second degree theft and two counts of domestic violence felony violation of a court order. Miller argues that his 1995 conviction for two counts of first degree possession of stolen property encompassed the same criminal conduct and, therefore, should have counted as only one offense for sentencing purposes. Because his offender scores were miscalculated, Miller argues, `this Court should remand the matter for a new sentencing hearing with instructions to reduce Mr. Miller's offender score by 1 for both the felony violation of a court order convictions and for the theft conviction.' Having failed to raise the same criminal conduct issue below, however, Miller waived any challenge regarding whether the offenses constituted the same criminal conduct. See State v. Nitsch, 100 Wn. App. 512, 520-25, 997 P.2d 1000 (2000); State v. Wilson, 117 Wn. App. 1, 21, 75 P.3d 573 (2003) (one who fails to challenge the calculation of his offender score below and does not request the trial court to make a same course of conduct determination `has waived the right to make the argument here'); In re Goodwin, 146 Wn.2d 861, 875, 50 P.3d 618 (2002).
Even if we were to find no waiver, we would still find no reversible error. Under former RCW 9.94A.360(5)(a)(i), multiple prior convictions are counted as one only if the convictions constitute the same criminal conduct. To constitute the same criminal conduct for purposes of determining an offender score at sentencing, two or more criminal offenses must involve (1) the same objective intent, (2) the same time and place, and (3) the same victim. Former RCW 9.94A.400(1)(a) (recodified as RCW 9.94A.589(1)(a) by Laws of 2001, ch. 10, sec. 6); In re Connick, 144 Wn.2d 442, 459, 28 P.3d 729 (2001). "If any one element is missing, multiple offenses cannot be said to encompass the same criminal conduct, and they must be counted separately in calculating the offender score." State v. Garza Villarreal, 123 Wn.2d 42, 47, 864 P.2d 1378 (1993) (quoting State v. Lessley, 118 Wn.2d 773, 778, 827 P.2d 996 (1992)).
Recodified as RCW 9.94A.525(5)(a)(i) by Laws of 2001, ch. 10, sec. 6.
Here, the 1995 convictions involved property stolen from two construction companies. While it is true that the contractors were both hired to help build a Safeway store and were working at the same construction site, there were two separate and distinct victims. Nor has Miller cited any support for his novel theory that `ultimately Safeway was the [sole] victim.' There is no showing that Miller's two counts of first degree possession of stolen property encompassed the same criminal conduct. State v. Vanoli, 86 Wn. App. 643, 650-52, 937 P.2d 1166 (1997) (multiple crimes with different victims do not encompass same criminal conduct). Miller, in the alternative, argues that the doctrine of collateral estoppel precludes the sentencing court on remand from counting the two counts of first degree possession of stolen property as separate offenses.
Collateral estoppel precludes parties from relitigating issues `actually raised and resolved by a former verdict and judgment.' State v. Harrison, 148 Wn.2d 550, 560-61, 61 P.3d 1104 (2003). As the State correctly points out, the same criminal conduct issue now raised by Miller was never discussed or litigated at his original sentencing. Hence, the doctrine of collateral estoppel does not apply.
Miller, pro se, also raises various other contentions in his `Statement of Additional Grounds [for Review].' Miller appears to contest the figures and methods used by the Department of Corrections to complete its `Post-Resentencing Recalculations' regarding his term of confinement. Nothing on the face of the documents submitted by Miller suggest that those calculations are incorrect. It appears Miller has received credit for the presentence time he served in King County Jail. In any event, this issue necessarily concerns matters outside the record and cannot be raised on appeal. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995) (When reviewing claims brought on direct appeal, the court `will not consider matters outside the trial court record.').
Miller's contention that he was denied effective assistance of counsel is also without merit. Contrary to Miller's conclusory and unsupported allegations, there is no showing that he was prejudiced by the late filing of the notice of appeal in No. 52159-4-I. This court granted an extension of time to file the notice. Nor does the record support Miller's remaining claim that counsel was ineffective for failing to object to the offender score calculations. There is a strong presumption that appointed counsel provided effective representation. McFarland, 127 Wn.2d at 335.
Affirmed.
COLEMAN and BAKER, JJ., concur.