Opinion
No. 56506-1-I.
July 31, 2006.
Appeal from a judgment of the Superior Court for King County, No. 04-1-14650-6, Gregory P. Canova, J., entered July 5, 2005.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, 1511 Third Avenue, Suite 701, Seattle, WA 98101.
Robert Crawford/Doc#748816 (Appearing Pro Se), Washington State Penitentiary, 1313 N. 13th Ave., Walla Walla, WA 99362.
Nancy P. Collins, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Catherine Marie McDowall, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Affirmed by unpublished per curiam opinion.
Robert Crawford appeals his sentence for felony violation of a no contact order. He argues that two prior convictions for felony harassment and unlawful imprisonment, stemming from a single incident in 1996, constitute the same criminal conduct, and that his right to a jury under Blakely v. Washington was violated when the sentencing court found the crimes were not the same criminal conduct. Because the finding was not an abuse of discretion, and because the finding does not increase the standard range, and therefore does not implicate Blakely, we affirm.
542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
BACKGROUND
Robert Crawford entered an Alford plea to a charge of felony violation of a no contact order for assaulting his girlfriend Cinda Cecil at her home. At sentencing, Crawford objected to the State's calculation of his offender score as four, based on four prior offenses: (1) intimidating a public servant in 2003; (2) felony harassment in 2001; and (3) harassment and (4) unlawful imprisonment, both arising from a 1996 incident involving Crawford's girlfriend at the time, Erica Sequoia. Crawford advocated for an offender score of three, arguing that the two 1996 convictions constituted the same criminal conduct. Over Crawford's objection, the sentencing court found that the crimes were not the same criminal conduct, and imposed a standard range sentence for the offender score of four. Crawford appeals.
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
DISCUSSION
Crawford challenges the sentencing court's determination that his prior offenses did not constitute the same criminal conduct. He also argues that his right to jury trial as recently clarified under Blakely was violated when the court made factual findings in the process of reaching that determination. We disagree.
Under the Sentencing Reform Act, multiple prior offenses are presumptively counted separately in determining a defendant's offender score unless the trial court finds that the offenses encompass the same criminal conduct. RCW 9.94A.525(5)(a). Such a finding is an exception to the default rule that prior convictions are counted separately. In re Pers. Restraint of Markel, 154 Wn.2d 262, 274, 111 P.3d 249 (2005). Because such a finding can only decrease, but cannot increase, the applicable sentencing range, it does not implicate Blakely or Apprendi, which require a jury finding of any facts that increase sentences beyond the statutory maximum. Id. Furthermore, because counting crimes separately is the default rule, a specific finding that the crimes are not the same criminal conduct is not required. See State v. Anderson, 92 Wn. App. 54, 62, 960 P.2d 975 (1998) (appellate court may treat trial court's calculation of offender score as an implicit finding that offenses did not constitute the same criminal conduct.)
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
Two crimes constitute the same criminal conduct only if they share each of three elements: (1) the same criminal intent, (2) the same time and place, and (3) the same victim. Markel, 154 Wn.2d at 274. If any one of these elements is missing, multiple offenses cannot encompass the same criminal conduct, and must be counted separately in calculating the offender score. State v. Vike, 125 Wn.2d 407, 410, 885 P.2d 824 (1994). The statutory language is narrowly construed to disallow most assertions of same criminal conduct. State v. Price, 103 Wn. App. 845, 855, 14 P.3d 841 (2000); State v. Palmer, 95 Wn. App. 187, 191 n. 3, 975 P.2d 1038 (1999). Though we review a sentencing court's calculation of an offender score de novo, we review a determination on same criminal conduct for an abuse of discretion or misapplication of the law. State v. Haddock, 141 Wn.2d 103, 110, 3 P.3d 733 (2000).
There is no dispute that Crawford's 1996 offenses of harassment and unlawful imprisonment were perpetrated against the same victim during the same period of time. In February 1996, Crawford went to the home of Erica Sequoia, the mother of his three children. He held Ms. Sequoia and her children captive in the house for nine days, during which time he threatened, with excruciating specificity, to injure and kill her. Thus, the only issue at sentencing was whether the two crimes shared the same criminal intent.
The standard for determining the same intent prong is the extent to which the criminal intent, viewed objectively, changed from one crime to the next. Vike, 125 Wn.2d at 411. In this context, intent is not the mens rea element of the particular crime, but rather is the offender's objective criminal purpose in committing the crime. State v. Adame, 56 Wn. App. 803, 811, 785 P.2d 1144 (1990).
Crawford contends that the sentencing court erred in finding no shared intent, because the two crimes `share the same general objective of knowingly threatening another.' App. Br. at 11. But for the purposes of this analysis, intent is not determined by the mens rea element of the crime. Therefore, it is of no moment that both statutes contain the term `knowingly.' Moreover, even if the statutorily defined intent was determinative, these offenses do not share the same intent. Harassment requires a knowing threat, while unlawful imprisonment requires knowing restraint. RCW 9A.46.020; 9A.40.040. The sentencing court did not abuse its discretion in concluding that Crawford had a different intent in committing each of those crimes, because harassment is accomplished with `knowingly threatening to kill' while unlawful imprisonment is accomplished by `knowingly restraining' another. Report of Proceedings (July 1, 2005) at 17. As such, the court did not abuse its discretion in concluding the two crimes were not the same criminal conduct and that each should be counted separately in calculating Crawford's offender score.
Affirmed.
ELLINGTON, SCHINDLER and BECKER, JJ.