Opinion
No. 66734-3-I.
Filed: May 2, 2011.
Appeal from a judgment of the Superior Court for Thurston County, No. 09-1-01818-2, Gary R. Tabor, J., entered March 11, 2010.
Affirmed by unpublished opinion per Schindler, J., concurred in by Grosse and Appelwick, JJ.
To convict a defendant of felony violation of a no contact order (FVNCO), the State must prove beyond a reasonable doubt violation of a court order issued under particular statutes and the existence of at least two previous convictions for violating a no contact order or protection order. A jury convicted Kenneth Buckley of one count of FVNCO as charged in a second amended information. Buckley claims for the first time on appeal that the information was constitutionally deficient because it did not allege specific facts related to the two prior convictions. In the alternative, Buckley claims his attorney provided ineffective assistance of counsel by failing to object to inadmissible and prejudicial testimony. Because the charging document apprised Buckley of the charged crime of FVNCO and he cannot show ineffective assistance of Councel, we affirm.
FACTS
On September 19, 2008, a King County Superior Court judge entered an order as a condition of sentencing that prohibited Buckley from having contact with Cassandra Conley for five years.
At approximately 4:30 a.m. on November 28, 2009, John Mooneyhan called 911 to report a disturbance at a neighbor's apartment. Officer Steven Hurd and another officer responded to the 911 call. Officer Hurd knocked on the door of the neighbor's apartment. Conley opened the door. Officer Hurd said that Conley was very intoxicated. Conley told Officer Hurd that "there were two men in the apartment, and one was in violation of a no contact order." Conley indentified "Kevin Buckley" as the man who was in violation of the no contact order.
As the men were leaving, Officer Hurd stopped Buckley and asked for his identification. Buckley told Officer Hurd that he did not have identification. Buckley gave Officer Hurd "different names, different dates of birth." The dispatcher did not find any record of the names Buckley provided, but verified that there was a no contact order in effect that prohibited Kenneth Buckley from having contact with Conley. Officer Hurd placed Buckley under arrest.
The State charged Buckley with one count of FVNCO issued on September 19, 2008. The second amended information alleged that Buckley had at least two prior convictions for violating a no contact order or protection order issued under particular statutes.
Before trial, the defense moved to exclude evidence that Buckley had been previously convicted of other crimes or that he was on community custody with the Department of Corrections at the time of the offense, except as necessary to establish the elements of the crime. The trial court ruled that the State was entitled to present evidence to establish the elements of FVNCO.
Only three witnesses testified at trial — Officer Hurd, Mooneyhan, and Community Corrections Officer (CCO) Daniel Andemariam.
During the testimony of Officer Hurd, the court admitted a copy of photo identification of Conley issued by the State of Washington. Officer Hurd confirmed that Conley was at the apartment with Buckley on November 28. Mooneyhan also confirmed that Conley was his neighbor and that he called 911 to report a disturbance at her apartment.
The State called CCO Andemariam for the limited purpose of introducing into evidence the 2008 no contact order and a March 2007 and an October 2009 conviction for violating a no contact order or protection order. CCO Andemariam testified that Buckley had been under his supervision since the summer of 2009 and that he "stressed to Mr. Buckley that he's to have no contact of any kind with Ms. Conley, be it first person, direct, or even passing messages through third parties."
In closing, Buckley claimed that the woman at the apartment was not Conley. The jury convicted Buckley of FVNCO. The court sentenced Buckley within the standard range. Buckley appeals.
ANALYSIS
For the first time on appeal, Buckley contends that the second amended information was constitutionally deficient because it did not allege specific facts related to the two prior convictions, such as the date of the prior conviction, the cause number, or any other facts.
Under the United States Constitution and the Washington State Constitution, "[a]ll essential elements of a crime, statutory or otherwise, must be included in a charging document in order to afford notice to an accused of the nature and cause of the accusation against him." State v. Kjorsvik, 117 Wn.2d 93, 97, 812 P.2d 86 (1991); See U.S. Const. amend. VI; Wash. Const. art. I, § 22. In addition to adequately identifying the crime charged, the charging document must allege facts supporting every element of the offense. Kjorsvik, 117 Wn.2d at 98.
When reviewing a challenge to the language in a charging document for the first time on appeal, we engage in a two-part inquiry. Kjorsvik, 117 Wn.2d at 105. First, we examine whether "the necessary facts appear in any form, or by fair construction can they be found, in the charging document" and liberally construe the language in favor of finding it sufficient. Secondly, we consider whether the defendant can show that actual prejudice caused lack of notice. Kjorsvik, 117 Wn.2d at 105-06.
The legislature defines the elements of a crime. State v. Williams, 162 Wn.2d 177, 183, 170 P.3d 30 (2007). Where a prior conviction elevates an offense from a misdemeanor to a felony, the prior conviction is an essential element of the crime rather than an aggravating factor. State v. Roswell, 165 Wn.2d 186, 192, 196 P.3d 705 (2008).
RCW 26.50.110(5) elevates violation of a no contact order from a gross misdemeanor to a felony if the defendant has at least two previous convictions for violating a no contact order or protection order issued under certain statutes. See RCW 26.50.110(1). RCW 26.50.110(5) provides, in pertinent part:
A violation of a court order issued under this chapter, chapter 7.90, 9.94A, 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, or of a valid foreign protection order as defined in RCW 26.52.020, is a class C felony if the offender has at least two previous convictions for violating the provisions of an order issued under this chapter, chapter 7.90, 9.94A, 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, or a valid foreign protection order as defined in RCW 26.52.020. The previous convictions may involve the same victim or other victims specifically protected by the orders the offender violated.
Accordingly, the elements of FVNCO are a violation of a court order and the existence of at least two previous convictions at the time of the charged offense for violating a no contact order or a protection order issued under particular statutes.
While the existence of at least two previous convictions for violating a no contact order is an essential element of the crime, the validity of those convictions and whether the prior convictions are admissible is a threshold question of law that the court decides. State v. Gray, 134 Wn. App. 547, 555-56, 138 P.3d 1123 (2006); State v. Miller, 156 Wn.2d 23, 31, 123 P.3d 827 (2005).
Here, the second amended information charges Buckley with FVNCO as follows:
COUNT I — VIOLATION OF POST CONVICTION NO CONTACT ORDER/DOMESTIC VIOLENCE — THIRD OR SUBSEQUENT VIOLATION OF ANY SIMILAR ORDER, RCW 26.50.110(5), RCW 10.99.020, RCW 10.99.050 — CLASS C FELONY:
In that the defendant, KENNETH REX BUCKLEY, in the State of Washington, on or about November 28, 2009, with knowledge that the King County Superior Court had previously issued a no contact order, pursuant to Chapter 10.99 in King County Superior Court, on September 19, 2008, Cause No 08-1-04241-0, did violate the order while the order was in effect by knowingly violating the restraint provisions therein pertaining to Cassandra Conley, a family or household member, pursuant to RCW 10.99.020; and furthermore, the defendant has at least two prior convictions for violating the provisions of a protection order, restraining order, or no-contact order issued under Chapter 10.99, 26.09, 26.10, 26.26, 26.50, 26.52, or 74.34 RCW, or a valid foreign protection order as defined in RCW 26.52.020.
Buckley's reliance on City of Seattle v. Termain, 124 Wn. App. 798, 102 P.3d 183 (2004) and City of Bothell v. Kaiser, 152 Wn. App. 466, 217 P.3d 339 (2009) is misplaced. In Termain, the defendant was charged with two counts of violating a domestic violence no contact order. Termain, 124 Wn. App. at 800. While the charging document recited the language of the ordinance that the defendant was alleged to have violated, it did not identify the specific domestic violence no contact order that the defendant was alleged to have violated. Termain, 124 Wn. App. at 800-01. We held that in a charging document alleging a violation of a domestic violence order, "identification of the specific no contact order, the issuance date from a specific court, the name of the protected person, or sufficient other facts must be included in some manner." Termain, 124 Wn. App. at 805. In reaching that conclusion, we explained:
In domestic violence cases, the culpable act necessary to establish the violation of a no-contact order is determined by the scope of the predicate order. The no-contact order is essential to prosecute the violation of the order. A conviction cannot be obtained without producing the order as it will identify the protected person or location and any allowance for contact or the expiration date.
Termain, 124 Wn. App. at 804 (footnote omitted).
In Kaiser, the defendant was charged with one count of violating a no contact order. Kaiser, 152 Wn. App. at 468. The original charging document did not contain any facts identifying the no contact order alleged to have been violated, other than the date and location of the alleged violation. Kaiser, 152 Wn. App. at 476. We held that the charging document "did not identify the specific order that was allegedly violated or the scope of that order and therefore lacked essential elemental facts of the charged crime." Kaiser, 152 Wn. App. at 476.
Here, the information alleged that Buckley knowingly violated the 2008 no contact order issued by the King County Superior Court under Chapter 10.99 on November 28, 2009 and that Buckley had at least two prior convictions for violating a no contact order issued under particular statutes. In alleging that Buckley has at least two previous convictions, the State need only allege the statutory basis and applicability of the previous convictions. The specific circumstances surrounding those previous convictions have no relevance to establishing the essential element of FVNCO.
We conclude that the second amended information was constitutionally sufficient to apprise Buckley of the charged offense of FVNCO.
Ineffective Assistance Of Counsel
In the alternative, Buckley claims his attorney provided ineffective assistance of counsel by failing to object to inadmissible and prejudicial testimony.
A criminal defendant has the right under the Sixth Amendment to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To demonstrate ineffective assistance of counsel, the defendant must show both deficient performance and resulting prejudice. Strickland, 466 U.S. at 687; State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). If a defendant fails to satisfy either part of the test, the court need not inquire further. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996). Deficient performance is representation that falls below an objective standard of reasonableness based on consideration of all the circumstances. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). To establish prejudice, "`[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Lord, 117 Wn.2d 829, 883-84, 822 P.2d 177 (1991) (quoting Strickland, 466 U.S. at 694). There is a strong presumption that counsel's representation was effective and competent. State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002). Legitimate trial strategy or tactics cannot be the basis for an ineffective assistance of counsel claim. McNeal, 145 Wn.2d at 363.
Buckley asserts that his attorney provided ineffective assistance of counsel by not objecting to Officer Hurd's testimony that the dispatcher contacted the Seattle Police Department to verify the existence of the no contact order. Buckley argues that this testimony should have been excluded because it was "hearsay within hearsay" and the testimony established the existence of the no contact order. Buckley also argues that his attorney provided ineffective assistance of counsel by not objecting to CCO Andemariam's testimony that Buckley had been previously convicted of other crimes and that Buckley was on community custody with the Department of Corrections at the time of the offense.
Buckley cannot show prejudice. Even if Officer Hurd's testimony was inadmissible hearsay, the court admitted into evidence the 2008 no contact order signed by Buckley that prohibited contact with Conley. Buckley also cannot show prejudice from his attorney's failure to object to the testimony establishing that Buckley had two previous convictions.
We affirm.