Opinion
Nos. 25554-9-III; 25775-4-III.
August 14, 2008.
Appeals from a judgment of the Superior Court for Okanogan County, No. 05-1-00142-7, Jack Burchard, J., entered September 19, 2006.
Affirmed in part and remanded by unpublished opinion per Kulik, A.C.J., concurred in by Sweeney and Korsmo, JJ.
Hector Ortiz appeals his sentences for attempted second degree murder, first degree robbery, and first degree burglary. The trial court considered Mr. Ortiz's poor mental health and prolonged drug use but refused to impose an exceptional sentence downward. Because Mr. Ortiz's sentences are within the standard range and there are no procedural or constitutional errors, the sentences are not appealable.
The trial court also correctly determined that the attempted second degree murder conviction did not constitute the same criminal conduct as the convictions for first degree robbery and first degree burglary. However, the court determined that the deadly weapon enhancement on count 3 would run concurrent with the deadly weapon enhancements on counts 1 and 2. Accordingly, we remand for resentencing on the deadly weapon enhancements.
FACTS
Hector Ortiz was charged with attempted first degree murder, first degree robbery, first degree burglary, second degree theft, and third degree malicious mischief based on events occurring on or about May 3, 2005. Each of the first three counts was accompanied by a special allegation that Mr. Ortiz was armed with a deadly weapon other than a firearm during the commission of the crimes. At trial, the following testimony was presented to the jury.
On May 2, 2005, at approximately 11:30 pm, Hector Ortiz and another man forcibly entered the home of Arthur Renner in Omak, Washington. Moments earlier, Mr. Renner had noticed a car pull in the alley beside his house and park outside of his kitchen window. He thought this was unusual, but went back into his living room where he had been watching television. Mr. Renner sat down at a table in the corner of the living room.
Without warning, Mr. Ortiz kicked in the locked front door and came inside the house. Mr. Renner stood up and "asked what the hell [he] was doing." Report of Proceedings (RP) (Aug. 16, 2006) at 69. Mr. Ortiz told Mr. Renner that someone was chasing him. At that point, another male came to the door and stood in the doorway. Mr. Renner recognized Mr. Ortiz from having met him a few days earlier.
After entering the home, Mr. Ortiz moved behind Mr. Renner and stabbed him in the back of the neck. Mr. Renner immediately fell forward over a chair and hit his head. Mr. Renner testified that when he was first stabbed "[i]t felt like somebody taking a baseball bat, and hit me as hard as they could in my neck." RP (Aug. 16, 2006) at 70. After falling over the chair, Mr. Renner was positioned so that his head was trapped between the chair, the wall, and the table. Mr. Ortiz continued to stab Mr. Renner in the back of the neck and the upper portion of his shoulder blades. During the course of the attack, Mr. Renner's spinal cord was severed. These injuries rendered Mr. Renner a quadriplegic.
Following the stabbing, the two men ran out of the house and left in a vehicle. Mr. Renner's cell phone was on the floor one or two inches from him, but he was unable to move or call for help. Then, about 15 to 20 minutes later, Mr. Renner heard a vehicle pull up. Mr. Renner testified that Mr. Ortiz and the second man returned, this time with three other individuals. The group entered the house and Mr. Ortiz demanded to know where Mr. Renner's pills and money were. At that time, Mr. Renner was taking two prescription medications — methadone for chronic neck pain and an anti-depressant. Mr. Renner told Mr. Ortiz that he kept the pills in a briefcase in his bedroom.
Mr. Renner also told Mr. Ortiz that he had money in his left front pocket — the full amount of a disability check he had just cashed for $339, along with other money. Mr. Ortiz demanded that Mr. Renner give him the money, but Mr. Renner said he could not move because he was paralyzed. Mr. Ortiz then grabbed Mr. Renner by the back of the hair and threw him to the ground. While Mr. Renner was lying on the ground face up, Mr. Ortiz continued to call him names and then reached in and grabbed the money out of Mr. Renner's pocket. Mr. Ortiz demanded to know where the briefcase was. Mr. Renner told him it was in the bedroom, and Mr. Ortiz yelled for the other man to retrieve the briefcase while he was taking the money from Mr. Renner.
Then, Mr. Ortiz and another individual began kicking Mr. Renner in the head and stomping on his hand. Mr. Renner told Mr. Ortiz that he was "killing me" and that he could not move because he was paralyzed. RP (Aug. 16, 2006) at 83. Mr. Ortiz was yelling at the others to hurry up and get the pills. Before leaving, Mr. Ortiz opened the briefcase and he and another individual stuffed pills into Mr. Renner's mouth. Mr. Renner testified that they filled his mouth with pills "full as they could get it" and then held their hands over his mouth so that he could not spit them out. RP (Aug. 16, 2006) at 82. Mr. Renner believed that they were trying to keep him from breathing. Mr. Renner described that there was so much pressure from the pills in his mouth that some of them were forced into his throat, which he swallowed.
The group left with Mr. Renner's money, the pills, and the briefcase. Mr. Renner laid on the floor for approximately one-half hour, until he lost consciousness. The first officer responded to the scene about 11:00 in the morning on May 3. When paramedics arrived, Mr. Renner was minimally responsive and had suffered severe blood loss, but he was breathing and had a faint pulse. Pills were found on the floor, around his body.
After the attack, Mr. Ortiz told others that that he had killed somebody and that "`he had done something bad.'" RP (Aug. 15, 2006) at 215.
The defense presented testimony from Dr. Mark Mays, a licensed psychologist, concerning Mr. Ortiz's mental health and history of substance abuse. Dr. Mays testified that Mr. Ortiz had extensive and continuing problems with alcohol and drug abuse. Dr. Mays described the effects of methamphetamine on the brain and testified that an individual's capacity to reflect on and consider their actions is diminished by the use of that drug. When asked about his conclusions about Mr. Ortiz's capacity to act with premeditation at the time of the incident, Dr. Mays testified that "I do not see him as able to premeditate much of anything in his life, much less this." RP (Aug. 17, 2006) at 71. Dr. Mays stated that Mr. Ortiz was likely impaired by alcohol and methamphetamine and, that at the time of the incident: "I believe that he was able [to] understand that stabbing a person was wrong." RP (Aug. 17, 2006) at 79.
The State then presented the rebuttal testimony of Dr. Laurine Marcinkowski, a licensed clinical psychologist specializing in forensic psychology at Eastern State Hospital. Dr. Marcinkowski and her staff performed an in-patient evaluation of Mr. Ortiz over a 21-day period. In preparing her report, Dr. Marcinkowski reviewed Mr. Ortiz's criminal history, police reports, information from other agencies, observations from the hospital staff, and his hospital chart. She also conducted an examination of Mr. Ortiz. Dr. Marcinkowski agreed with portions of Dr. May's report, but not with his conclusions that Mr. Ortiz did not have the capacity to form intent or premeditation. Dr. Marcinkowski opined that Mr. Ortiz was able to form intent or premeditation, and that his acts were goal directed and purposeful.
Mr. Renner's neighbor testified that on May 2 around 11:30 pm he heard a car outside and two men talking in the alley. The neighbor looked outside his window in time to see the car pulling out, but testified that he did not hear a car come back to that location.
At the close of the evidentiary portion of the trial, the State dismissed counts 4 and 5. The trial court instructed the jury on attempted first degree murder and the lesser-included crime of attempted second degree murder. The trial court also provided a voluntary intoxication instruction.
During closing argument, the defense questioned how much time had elapsed between the incidents, and whether Mr. Ortiz had in fact left and returned.
The jury found Mr. Ortiz guilty of attempted second degree murder, first degree robbery, and first degree burglary. The jury also found that Mr. Ortiz had committed each of these crimes while armed with a deadly weapon.
Sentencing At sentencing, the State recommended a high-end sentence, noting the egregious facts and Mr. Renner's substantial injuries. The State also argued that Mr. Ortiz's convictions should be punished separately because of the burglary anti-merger statute. With regard to the sentencing enhancements, the State argued that the deadly weapon enhancements must run consecutively to each other.
Defense counsel urged the trial court to consider Mr. Ortiz's underlying mental state as a mitigating factor justifying a reduced sentence. Mr. Ortiz maintained that the robbery and burglary convictions constituted the same criminal conduct for scoring purposes. He further argued that the attempted second degree murder conviction also constituted the same criminal conduct because it was accomplished at the same time and place and with the same intent to further the crime of robbery. Finally, Mr. Ortiz argued that each of the deadly weapons enhancements should run concurrently.
The court held that the first degree robbery and first degree burglary convictions constituted the same criminal conduct. The court also determined that Mr. Ortiz had an offender score of 6.5. Based on that score, the court found that the standard range for each crime, without enhancement, was as follows: Count 1: attempted murder in the second degree 146.25 to 221.25 months; count 2: robbery in the first degree 77 to 102 months; count 3: burglary in the first degree 57 to 75 months. The court found the high end of the standard range to be the appropriate sentence on counts 1 and 2. The court also ordered that the base sentence imposed on count 2 would run concurrently with the base sentence imposed on count 1.
Starting with a base sentence of 221.25 months, a high-end standard range on count 1, the court then added a 48-month deadly weapon enhancement on count 1 and an additional 48-month enhancement on count 2, each to run consecutively. The court then determined that the 48-month enhancement on count 3 should run concurrent with counts 1 and 2 because of its earlier finding that the robbery and burglary convictions constituted the same criminal conduct. The court noted that the deadly weapon statute provides that all enhancements must be served consecutively to each other and to all other counts. The court concluded that "[t]o impose 48 additional months for a crime involving the same criminal conduct seems to be outside the intention of the legislature." RP (Sept. 19, 2006) at 46. The court imposed a total sentence of 317.25 months.
Mr. Ortiz timely appealed the judgment and sentence entered on September 19, 2006. On December 26, 2006, the DOC filed a postsentence petition with this court, pursuant to RCW 9.94A.585(7), seeking review of the sentence. The DOC's postsentence petition was consolidated with the direct appeal.
ANALYSIS
Mitigating Factors. Mr. Ortiz contends the trial court erred by failing to consider his poor mental health and prolonged drug use as mitigating factors justifying a exceptional sentence below the standard range. He argues that the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, authorizes judges to impose sentences outside of the standard range if "there are substantial and compelling reasons justifying an exceptional sentence." RCW 9.94A.535. Mr. Ortiz points out that RCW 9.94A.535(1)(e) provides that if a court finds that a defendant's capacity to appreciate the wrongfulness of his or her conduct or to conform his or her conduct to the requirements of the law was significantly impaired, the court could consider this as a mitigating factor justifying a downward departure on the defendant's base sentence.
We note that Mr. Ortiz refers to former versions of the statute. The pertinent language has remained unchanged. The applicable statute is RCW 9.94A.535.
Mr. Ortiz asserts that direct evidence of his mental condition was presented at trial that established his capacity to appreciate the wrongfulness of his conduct or to act in conformity with the law was significantly impaired. In light of this evidence, he contends the trial court erred by failing to impose an exceptional sentence downward. But this argument is not persuasive.
In general, a sentence within the standard range under RCW 9.94A.510 or .517 is not subject to appeal. RCW 9.94A.585(1). A defendant may, however, appeal a standard range sentence if the sentencing court failed to comply with procedural requirements of the SRA or constitutional requirements. State v. Mail, 121 Wn.2d 707, 710-12, 854 P.2d 1042 (1993). Mr. Ortiz's challenge does not fall within either exception to the rule.
In fact, "where a defendant has requested an exceptional sentence below the standard range[,] review is limited to circumstances where the court has refused to exercise discretion at all or has relied on an impermissible basis for refusing to impose an exceptional sentence below the standard range." State v. Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997). Here, the record shows that the trial court considered Mr. Ortiz's request for an exceptional sentence downward. At the sentencing hearing, the court found:
There is a theft 2 also and some other things that really don't matter in the long run but to have someone who has a robbery 1, a 2nd degree assault with a deadly weapon and then to be here on a [sic] attempted 2nd degree murder indicates that it would be entirely unjust to reduce your sentence in any way do [sic] to some lower level of mental responsibility.
RP (Sept. 19, 2006) at 41. Thus, the trial court did not refuse to exercise its discretion.
In State v. Cole, the defendant unsuccessfully requested a sentence below the standard range and then sought to challenge the court's refusal to impose an exceptional sentence on appeal. State v. Cole, 117 Wn. App. 870, 880, 73 P.3d 411 (2003). The court held that the defendant could not appeal from a standard range sentence where the trial court considered the defendant's request for the application of a mitigating factor, heard extensive argument on the subject, and then exercised its discretion by denying the request. Id. at 881. Similarly, the court in Garcia-Martinez, held that "a trial court that has considered the facts and has concluded that there is no basis for an exceptional sentence has exercised its discretion, and the defendant may not appeal that ruling." Garcia-Martinez, 88 Wn. App. at 330.
Because Mr. Ortiz is not entitled to appeal his standard range sentence based on the argument presented, we dismiss that part of his appeal.
Same Criminal Conduct. Mr. Ortiz next argues that the convictions for attempted second degree murder, first degree burglary, and first degree robbery should have been considered the same criminal conduct for sentencing purposes. We review a trial court's determination of whether multiple crimes constitute the same criminal conduct for abuse of discretion or misapplication of the law. State v. Elliott, 114 Wn.2d 6, 17, 785 P.2d 440 (1990). A trial court abuses its discretion by arbitrarily counting convictions separately without engaging in a "same criminal conduct" analysis. State v. Haddock, 141 Wn.2d 103, 110, 3 P.3d 733 (2000).
Under RCW 9.94A.589(1)(a), whenever a person is to be sentenced for two or more current offenses, the sentence range for each offense shall be determined by using all other current offenses as if they were prior convictions in calculating the defendant's offender score. However, the statute further provides that if some or all of the current offenses encompass the "same criminal conduct," then those current offenses "shall be counted as one crime," with only one offense counting toward the offender score. RCW 9.94A.589(1)(a). The statute defines "same criminal conduct" as "two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim." RCW 9.94A.589(1)(a). Appellate courts narrowly construe the statutory language to disallow most claims of same criminal conduct. State v. Price, 103 Wn. App. 845, 855, 14 P.3d 841 (2000) (citing former RCW 9.94A.400(1)(a) (1999), recodified as RCW 9.94A.589 by Laws of 2001, ch. 10, § 6).
RCW 9.94A.589(1)(a) provides in relevant part: [W]henever a person is to be sentenced for two or more current offenses, the sentence range for each current offense shall be determined by using all other current and prior convictions as if they were prior convictions for the purpose of the offender score: PROVIDED, That if the court enters a finding that some or all of the current offenses encompass the same criminal conduct then those current offenses shall be counted as one crime.
For each of Mr. Ortiz's crimes to constitute the same criminal conduct, each crime must involve: (1) the same criminal intent; (2) the same time and place; and (3) the same victim. State v. Maxfield, 125 Wn.2d 378, 402, 886 P.2d 123 (1994). Importantly, if any one of the elements is missing, multiple offenses cannot be considered the same criminal conduct and they must be counted separately in calculating the defendant's offender score. Id.
Here, Mr. Ortiz was convicted of attempted second degree murder, first degree burglary, and first degree robbery. At sentencing, the trial court ruled that the burglary and robbery convictions constituted the same criminal conduct, but the attempted second degree murder conviction did not. The trial court found that the objective criminal intent was not the same for the three crimes Mr. Ortiz committed. The court explained that Mr. Ortiz's purpose in illegally entering Mr. Renner's home was to rob him of his money and pills. The court found no evidence that Mr. Ortiz had an intent to kill prior to entering the residence. The court concluded that the intent to kill was formulated sometime after Mr. Ortiz was already in the home. The court noted that the intent to kill had a separate criminal objective from the intent to forcefully enter the home which was done for the purpose of robbing Mr. Renner.
Mr. Ortiz contends that the facts, when viewed objectively, demonstrate that he likely did not have sufficient time to pause, reflect, and form a new objective intent. He argues that the evidence at trial proved that the acts occurred at the same place, involved the same victim, and were relatively close in time. Moreover, he asserts that each crime related to the furtherance of the other. Mr. Ortiz maintains that even if he left the house and then returned minutes later, demanding pills and money as Mr. Renner testified, there is no evidence establishing a change in criminal intent. In sum, Mr. Ortiz contends the trial court erred by concluding that the attempted second degree murder conviction was separate criminal conduct.
A similar argument was rejected in State v. Dunaway, 109 Wn.2d 207, 743 P.2d 1237, 749 P.2d 160 (1987). In Dunaway, the defendants, Mr. Green and Mr. Franklin, each committed armed robbery and then attempted to murder their victims. Id. at 209. In each case, the murders were attempted after the defendant received the money, but before leaving the premises. Id. at 216. The issue before the court was whether the armed robbery and the attempted murder constituted the same criminal conduct for sentencing purposes. Id. at 209. The court applied an objective intent analysis in interpreting the "same criminal conduct" language found in former RCW 9.94A.400(1)(a). Dunaway, 109 Wn.2d at 214-15.
Significantly, the court declined to find that the two crimes encompassed the same criminal conduct, holding that "[w]hen viewed objectively, the criminal intent in these cases was substantially different: the intent behind robbery is to acquire property while the intent behind attempted murder is to kill someone." Id. at 216. The court also found that neither crime furthered the commission of the other. Id. at 217. The court reasoned that "[w]hile the attempted murders may have been committed in an effort to escape the consequences of the robberies, they in no way furthered the ultimate goal of the robberies [and] the robberies did not further the attempted murders." Id. The court ultimately held that the crimes involved two separate incidents of criminal conduct. Id.
In light of Dunaway, the facts here, and the court's thorough same criminal conduct analysis at sentencing, the trial court did not abuse its discretion.
STATEMENT OF ADDITIONAL GROUNDS
Mr. Ortiz argues in his statement of additional grounds for review that he received ineffective assistance of counsel because his trial counsel failed to request a diminished capacity instruction. The Washington Pattern Jury Instruction on diminished capacity states: "Evidence of mental illness or disorder may be taken into consideration in determining whether the defendant had the capacity to form ___ (fill in requisite mental state)." 11 Washington Pattern Jury Instructions: Criminal 18.20, at 224 (2d ed. 1994).
Diminished capacity is a mental condition not amounting to insanity which prevents the defendant from forming the necessary mental state to satisfy the elements of the crime charged. State v. Harris, 122 Wn. App. 498, 506, 94 P.3d 379 (2004). Importantly, this defense must be declared pretrial. Id. (citing CrR 4.7(b)(1), (b)(2)(xiv)).
Washington has adopted the Strickland two-part test for evaluating claims of ineffective assistance of counsel. State v. Thomas, 109 Wn.2d 222, 225, 743 P.2d 816 (1987) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). In order to satisfy the Strickland test, a defendant must prove
(1) that defense counsel's conduct was deficient, i.e., that it fell below an objective standard of reasonableness; and (2) that the deficient performance resulted in prejudice, i.e., that there is a reasonable possibility that, but for the deficient conduct, the outcome of the proceeding would have differed.
State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004). "A failure to establish either element of the test defeats the ineffective assistance of counsel claim." In re Pers. Restraint of Davis, 152 Wn.2d 647, 673, 101 P.3d 1 (2004).
The failure to request a diminished capacity instruction is not ineffective assistance of counsel per se. State v. Cienfuegos, 144 Wn.2d 222, 229, 25 P.3d 1011 (2001). In determining whether counsel's failure to request such an instruction constituted ineffective assistance of counsel, the court proceeds through a three-step analysis:
First, we must determine whether [the defendant] was entitled to a diminished capacity instruction. Second, we must decide whether it was ineffective assistance of counsel per se not to have requested the instruction. Finally, we must decide whether ineffective assistance of counsel prejudiced his defense under the Strickland standard.
Id. at 227.
Here, Mr. Ortiz's ineffective assistance claim is without merit. The record shows that prior to trial, Mr. Ortiz instructed his defense counsel not to pursue a diminished capacity defense. On September 1, 2005, defense counsel informed the trial court that "the instructions that I had received from my client, who I believe is competent, is that he does not wish me to pursue the diminished capacity defense." RP (Sept. 1, 2005) at 5. Defense counsel further stated that "as such I was prepared to advise the court today that on the bases [sic] of my client's request, we were going to withdraw our request for a mental evaluation, forensic evaluation." RP (Sept. 1, 2005) at 5. Mr. Ortiz was present. The judge then instructed defense counsel to meet with Mr. Ortiz "to get a final decision on the competency or diminished capacity question" and then inform the court at the following hearing on how he intended to proceed. RP (Sept. 1, 2005) at 8.
At the next two hearings, defense counsel again referenced the fact that Mr. Ortiz did not intend to pursue a diminished capacity defense. Consistent with what appears to have been his client's instructions, on October 20, defense counsel informed the court that the nature of Mr. Ortiz's defense was one of general denial and that he did not intend to rely on any defense regarding incompetency, insanity, or diminished capacity.
The record also shows that Mr. Ortiz did not want to be evaluated by the defense's expert psychologist, Dr. Mays. Defense counsel specifically stated that "my client does not wish to participate in the second evaluation process." RP (Nov. 7, 2005) at 5. Defense counsel made clear on the record that he had engaged in several conversations with Mr. Ortiz regarding the focus of his defense and that the results of an evaluation would have a predominant effect on the approach taken. In fact, at a hearing on April 13, Mr. Ortiz expressed his desire to continue to trial on April 17, despite the fact that his counsel was simultaneously requesting a continuance because Dr. Mays had not completed his report regarding Mr. Ortiz's mental state at the time of the crimes.
On this record, Mr. Ortiz cannot establish the first prong of the Strickland test — that defense counsel's conduct was deficient. Reichenbach, 153 Wn.2d at 130. The record indicates that Mr. Ortiz instructed his counsel not to pursue a diminished capacity defense and that counsel appropriately proceeded according to his client's wishes. Mr. Ortiz cannot now complain that his counsel failed to request proper jury instructions and that this failure was prejudicial to him. Accordingly, his pro se claim of ineffective assistance of counsel is without merit.
POSTSENTENCE PETITION
The DOC filed a postsentence petition with this court, pursuant to RCW 9.94A.585(7), seeking review of the sentence imposed in this case. The trial court imposed three deadly weapon enhancements of 48 months each. However, the trial court ran one of the enhancements concurrently to the other two, based on its finding that two of the three counts in Mr. Ortiz's sentence constituted the same criminal conduct. The DOC contends that under RCW 9.94A.533(4)(e), all sentence enhancements must run consecutively. The DOC further asserts that the statutory language is clear and unambiguous. As a result, the DOC argues that the trial court erred by failing to run all three of Mr. Ortiz's deadly weapon enhancements consecutively to each other, even though they involved the same criminal conduct. We agree.
RCW 9.94A.533(4) provides that additional time shall be added to the standard sentence range for felony crimes if the offender or an accomplice was armed with a deadly weapon other than a firearm. The statute further provides that if the offender is being sentenced for more than one offense, "the deadly weapon enhancement or enhancements must be added to the total period of confinement for all offenses, regardless of which underlying offense is subject to a deadly weapon enhancement."
RCW 9.94A.533(4). Finally, the statute provides that "[n]otwithstanding any other provision of law, all deadly weapon enhancements under this section are mandatory, shall be served in total confinement, and shall run consecutively to all other sentencing provisions, including other firearm or deadly weapon enhancements, for all offenses sentenced under this chapter." RCW 9.94A.533(4)(e).
The single issue presented by the DOC's postsentence petition is whether RCW 9.94A.533(4)(e) requires a court to run all deadly weapon enhancements consecutively, even if the underlying crimes involve the same criminal conduct. This court previously adjudicated an almost identical issue in State v. Callihan, 120 Wn. App. 620, 623, 85 P.3d 979 (2004).
In Callihan, the defendant assaulted a single victim in two separate incidents, first firing a gun during an argument with the victim, and later forcing the gun into the victim's mouth before hitting him over the head with it. Id. at 621. A jury convicted Mr. Callihan of two counts of second degree assault and found that he used a firearm in both crimes. Id. at 622. At sentencing, the trial court found that both assaults constituted the same criminal conduct. Id. The court then sentenced Mr. Callihan to concurrent, below standard range sentences of 48 months for the two assault convictions. Id. However, each of the convictions carried mandatory 36-month firearm enhancements, and the court ordered Mr. Callihan to serve them consecutively. Id.
Mr. Callihan appealed, arguing that the superior court erred by running the firearm enhancements on the two assault convictions consecutively, despite having found that the underlying assaults involved the same criminal conduct. Id. at 621. This court applied former RCW 9.94A.310(3)(e) (2001), the firearm enhancement statute in effect at the time, focusing on the language which provides that firearm enhancements "shall run consecutively to all other sentencing provisions, including other firearm or deadly weapon enhancements." Id. at 622 (emphasis omitted). While the current case involves |RCW 9.94A.533(4)(e), enhancements for deadly weapons other than a firearm, the language of these two provisions — other than the words specifying the weapons involved — is identical. Significantly, this court in Callihan found that the meaning of the statute was clear and unambiguous. Callihan, 120 Wn. App. at 623. Accordingly, this court held that the trial court correctly sentenced Mr. Callihan to consecutive 36-month firearm enhancements. Id. at 624.
Following the analysis in Callihan, the language of RCW 9.94A.533(4)(e) is unambiguous. Deadly weapon enhancements must run consecutively to all other sentencing provisions, including other firearm or deadly weapon enhancements, even in cases where the underlying offenses are found to involve the same criminal conduct. In the present case, the trial court's decision to run the deadly weapon enhancement on count 3 concurrent with the deadly weapon enhancements on counts 1 and 2 was in error.
In summary, we affirm Mr. Ortiz's sentences except for the deadly weapon enhancements. We grant the DOC's petition and remand for resentencing of the deadly weapon enhancements to run consecutively.
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.
KORSMO and SWEENEY, JJ., concur.