Opinion
Nos. 25022-9-III; 25047-4-III; 25601-4-III.
September 13, 2007.
Appeal from a judgment of the Superior Court for Kittitas County, No. 04-1-00310-4, Michael E. Cooper, J., entered February 22, 2006, together with petitions for relief from personal restraint.
Judgment affirmed and petitions dismissed by unpublished opinion per Stephens, J., concurred in by Sweeney, C.J., and Brown, J.
Samuel Ahlwardt pleaded guilty to several crimes, including first degree extortion with a 36-month "deadly weapon or firearm enhancement." Clerk's Papers (CP) at 14. Mr. Ahlwardt filed a motion for relief from his sentence pursuant to CrR 7.8(b)(5), claiming the facts only supported the imposition of a deadly weapon enhancement, and the trial court erroneously imposed a firearm enhancement. The motion was denied. He appeals. He also filed two personal restraint petitions seeking relief from this sentence, which were consolidated with his direct appeal. We affirm his conviction and dismiss his personal restraint petitions.
FACTS
In November 2004, the State charged Mr. Ahlwardt with nine felonies: first degree kidnapping, first degree assault, first degree robbery, first degree extortion, first degree malicious mischief, three counts of theft of a firearm and second degree theft. In February 2005, he pleaded guilty to an amended information charging him with first degree extortion while armed with a firearm, second degree robbery, second degree theft, second degree assault, unlawful imprisonment and first degree malicious mischief.
In his written statement on plea of guilty, Mr. Ahlwardt acknowledged he was charged with "Extortion in the First Degree." CP at 9. His acknowledgement included the elements of the crime, and a 36-month "deadly weapon or firearm enhancement." CP at 14. As part of the acknowledgement, Mr. Ahlwardt stated:
On or about November 5, 2004 in Kittitas County, WA, I threatened another w/physical confinement to obtain property/services and was armed with a deadly weapon at the time. I unlawfully took property of another w/threatened and/or immediate force. I unlawfully obtained property of another in excess of $250 but less than $1500. I inflicted substantial bodily injury to another. I knowing[ly] restrained another. I maliciously caused damage in excess of $1500 to the property of another.
CP at 15.
At the hearing on his guilty plea, Mr. Ahlwardt indicated he understood his rights. The State referenced a firearm as supporting the 36-month enhancement, though the statement was not specific to any one charge.
The court accepted Mr. Ahlwardt's pleas. It imposed a sentence of 65 months; 36 months was for a firearm enhancement.
Mr. Ahlwardt sought relief from his sentence under CrR 7.8(b)(5), arguing that the court should adjust his sentence to exclude the firearm enhancement. The court denied the motion. Mr. Ahlwardt appeals. He also filed two personal restraint petitions, which have been consolidated with his appeal.
ANALYSIS
A. Direct Appeal
Mr. Ahlwardt pleaded guilty to first degree extortion while armed with a firearm. A plea of guilty is a plea of guilt to the information as charged. State v. Bowerman, 115 Wn.2d 794, 799, 802 P.2d 116 (1990).
Mr. Ahlwardt asserts that because his statement on plea of guilty referred only to a deadly weapon and not a firearm, there were no facts before the court to support the imposition of the 36-month firearm enhancement. Under the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, a trial judge may rely on facts that are admitted, proved, or acknowledged to determine any sentence. State v. Grayson, 154 Wn.2d 333, 338-39, 111 P.3d 1183 (2005) (citing RCW 9.94A.530(2)). "`Acknowledged' facts include all . . . facts presented or considered during sentencing that are not objected to by the parties." Id.
Mr. Ahlwardt raised this issue in both his opening brief and in his additional grounds for review.
When asked to state in his own words the factual basis for his guilty plea, Mr. Ahlwardt acknowledged the use of a deadly weapon. Additionally, the signed statement on plea of guilty indicated the State was seeking a 36-month "deadly weapon or firearm enhancement." CP at 14; see also CP at 10 (indicating 36-month enhancement for firearm or other deadly weapon). During the colloquy at the guilty plea hearing, Mr. Ahlwardt stated he was pleading guilty to first degree extortion while armed with a firearm. The prosecutor stated in his comments to the court, "I think with respect to the extortion it was done with force and for the firearm — with the firearm and I don't know if that was in there." Report of Proceedings (RP) (Feb. 11, 2005) at 5. After accepting the guilty pleas, the court then held a discussion on sentencing. The prosecutor indicated there was a three year "weapon enhancement." RP (Feb. 11, 2005) at 6. The court also mentioned "with three years['] firearm enhancement." RP (Feb. 11, 2005) at 11.
Based on this record, Mr. Ahlwardt acknowledged the use of a firearm to support the 36-month enhancement. See In re Pers. Restraint of Connick, 144 Wn.2d 442, 463-64, 28 P.3d 729 (2001) (holding that where defendant agreed that two out-of-state convictions were included in his offender score, he could not challenge the court's reliance on his representations), overruled in part by In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 50 P.3d 618 (2002). The sentencing court did not err in imposing the firearm enhancement.
B. Personal Restraint Petition
1. Firearm Enhancement
Mr. Ahlwardt also filed a personal restraint petition alleging the imposition of the firearm enhancement was improper. To obtain relief through a personal restraint petition, the petitioner must show he was actually and substantially prejudiced by a violation of his constitutional rights or by a fundamental error of law. In re Pers. Restraint of Cook, 114 Wn.2d 802, 810, 792 P.2d 506 (1990). In personal restraint petitions, we ordinarily will not review issues previously raised and resolved on direct review. In re Pers. Restraint of Gentry, 137 Wn.2d 378, 388, 972 P.2d 1250 (1999). In order to renew an issue rejected on its merits on appeal, the petitioner must show how the ends of justice would be served by reexamining the issue. In re Pers. Restraint of Vandervlugt, 120 Wn.2d 427, 432, 842 P.2d 950 (1992).
We find no basis to reexamine Mr. Ahlwardt's challenge to the firearm enhancement. This issue was addressed and resolved on direct appeal and Mr. Ahlwardt has not shown how the ends of justice would be served by reexamining it in his personal restraint petition.
2. Findings of Fact and Conclusions of Law
Mr. Ahlwardt additionally argues that the court must enter findings of fact to support the firearm enhancement, citing RCW 9.94A.535. This statute is not applicable. RCW 9.94A.535 sets forth the rules for exceptional sentences. An enhancement increases the presumptive or standard sentencing range but is not an exceptional sentence. State v. Silva-Baltazar, 125 Wn.2d 472, 475, 886 P.2d 138 (1994). Findings of fact are thus not required by RCW 9.94A.535. Moreover, as discussed previously, in resolving Mr. Ahlwardt's direct appeal, the sentencing court considered sufficient acknowledged facts to support the enhancement. There is no requirement that formal findings be entered in addition to those acknowledged facts.
3. Double Jeopardy as Applied to Weapon Enhancement
Finally, Mr. Ahlwardt claims he was punished twice for using a deadly weapon or firearm during the commission of extortion because the threat element for the extortion charge included the use of a deadly weapon or firearm. Double jeopardy prohibits multiple punishments for the same offense. State v. Adel, 136 Wn.2d 629, 632, 965 P.2d 1072 (1998). The legislature has the authority to define offenses and set punishments. State v. Calle, 125 Wn.2d 769, 776, 888 P.2d 155 (1995). When a defendant's conduct violates more than one statute, the critical question is whether the legislature intended that result. In re Pers. Restraint of Orange, 152 Wn.2d 795, 815, 100 P.3d 291 (2004); Calle, 125 Wn.2d at 776.
Washington courts have previously considered and rejected a double jeopardy challenge to weapon enhancements. Firearm enhancements "do not violate a defendant's double jeopardy rights where possession or use of a firearm is an element of the underlying offense because the legislature has clearly indicated its intent in the statute that the enhancements shall apply." State v. Esparza, 135 Wn. App. 54, 67, 143 P.3d 612 (2006). Accordingly, we reject Mr. Ahlwardt's double jeopardy argument.
CONCLUSION
The record before the trial court established that Mr. Ahlwardt acknowledged the use of a firearm. His acknowledgement supported the 36-month enhancement, and the sentencing court properly denied Mr. Ahlwardt's CrR 7.8 motion. We affirm.
Because we reject Mr. Ahlwardt's challenge to the firearm enhancement in his direct appeal, and he has not shown the ends of justice would be served by reexamining this issue, we also reject his argument in his personal restraint petition. Additionally, he has not shown that written findings of fact were required to supplement his acknowledgement, or that the enhancement violated double jeopardy. Thus, we dismiss his personal restraint petitions.
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.
SWEENEY, C.J., BROWN, J., concur.