Opinion
No. 57186-9-I.
November 27, 2006.
Appeal from a judgment of the Superior Court for King County, No. 05-1-05023-0, Helen Halpert, J., entered October 20, 2005.
Counsel for Appellant(s), Nancy P Collins, Washington Appellate Project, Seattle, WA.
Counsel for Respondent(s), Deborah A. Dwyer, King Co Pros Ofc/Appellate Unit, Seattle, WA.
Affirmed by unpublished per curiam opinion.
Edmond Cummings contends the trial court violated his Sixth Amendment right to a jury trial when it decided two prior criminal convictions were not the "same criminal conduct" under RCW 9.94A.589. Alternatively, Cummings argues the trial court abused its discretion in finding the two prior convictions were not the same criminal conduct. Because the Washington Supreme Court squarely rejected Cummings' Sixth Amendment argument in In re Pers. Restraint of Markel, 154 Wn.2d 262, 274, 111 P.3d 249 (2005) and the trial court did not abuse its discretion, we affirm.
FACTS
In April 2005, Cummings was convicted of escape in the first degree. As part of his presentence report, Cummings submitted a copy of a 1989 certification of probable cause. At sentencing, Cummings argued his 1989 conviction for assault in the second degree and vehicular assault of the same victim, at the same time, and place should count as one crime for purposes of calculating his offender score. The State asserted the two crimes were not the same criminal conduct and should count separately in Cummings' offender score.
According to the 1989 certification for determination of probable cause, Cummings offered to help Kyle Jorgenson purchase drugs. Jorgenson purchased the drugs from two individuals Cummings knew, but then tried to drive away without paying. After Jorgenson crashed into a parked car, Cummings and his two companions beat up Jorgenson, punching him in the face and pulling him out the car window. While his companions continued to punch and kick Jorgenson, Cummings frantically searched through Jorgenson's car, saying several times "where's my money?" While Jorgenson was unconscious on the ground, Cummings searched him and retrieved something from his clothing. Cummings then kicked Jorgenson in the head.
Cummings got into Jorgenson's car, put the car in reverse, backed up over Jorgenson and drove away. Jorgenson suffered severe injuries. Cummings was charged with attempted murder. He pleaded guilty to assault in the second degree and vehicular assault.
In sentencing Cummings on the 2005 escape conviction, the court decided that the 1989 assault in the second degree and vehicular assault convictions were not the same criminal conduct. The court sentenced Cummings based on an offender score of eight. Cummings appeals.
The court stated its determination that the assaults were not the same criminal conduct was based on State v. Flake, 76 Wn. App. 174, 883 P.2d 341 (1994).
ANALYSIS
Cummings contends that the court's determination that his 1989 assault convictions were not the same criminal conduct violates his Sixth Amendment right to a jury trial under Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L. Ed. 2d 435 (2000); Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002) and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). The Washington Supreme Court squarely rejected this argument in In re Pers. Restraint of Markel, 154 Wn.2d at 274.
Under the Sentencing Reform Act of 1981, the court must determine the standard sentence range, in part, by calculating the defendant's offender score. RCW 9.94A.505(2)(a)(i); See also State v. Haddock, 141 Wn.2d 103, 108, 3 P.3d 733 (2000). "The offender score is determined, for any one offense, as follows: each past crime equals one point, and each `other current offense' equals one point." Haddock, 141 Wn.2d at 108 (citing RCW 9.94A.360; RCW 9.94A.400). However, if the court determines that two offenses involve the same criminal conduct as defined in RCW 9.94A.400(1)(a), they count as one point, instead of two. Id.
In Apprendi, the Supreme Court held that other than a prior conviction, "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490. The Supreme Court clarified this holding in Blakely, stating, the "`statutory maximum'" for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely, 542 U.S. at 303.
In Markel, the Court held that Apprendi and Blakely are not implicated in cases where no aggravating factors are considered by the judge and where a "same criminal conduct" finding could only have lowered the applicable sentencing range. In re Markel, 154 Wn.2d at 274-75. "A `same criminal conduct' finding is an exception to the rule that all convictions must count separately. Such a finding can operate only to decrease the otherwise applicable sentencing range." Id. at 274.
Here, as in In re Markel, there were no aggravating factors and the same criminal conduct finding could only have lowered the sentencing range. With an offender score of seven rather than eight, Cummings' standard sentencing range was 43-57 months rather than 53-70 months.
Cummings also argues the trial court abused its discretion in finding his 1989 convictions for second-degree assault and vehicular assault was not the same criminal conduct. We review the trial court's same criminal conduct determination under an abuse of discretion standard. Haddock, 141 Wn.2d at 103. We construe same criminal conduct narrowly. State v. Flake, 76 Wn. App. 174, 180, 883 P.2d 341 (1994). "`Same criminal conduct. . . . means 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. If any of the three elements are missing, then the court must score the offenses separately. State v. Lessley, 118 Wn.2d 773, 778, 827 P.2d 996 (1992). In determining same criminal conduct, the court must decide whether when viewed objectively, the intent changed from one crime to the next. State v. Tili, 139 Wn.2d 107, 123, 985 P.2d 365 (1999), aff'd., 148 Wn.2d 350, 60 P.3d 1192 (2003).
Cummings relies on Tili and State v. Porter, 133 Wn.2d 177, 942 P.2d 974 (1997) to argue that his two assault convictions were the same criminal conduct. The trial court, on the other hand, relied on State v. Flake, 118 Wn.2d 773. This case is more like Flake than Tili and Porter.
In Tili, the Court held that Tili's three rapes of the same victim that occurred within a two-minute period were the same criminal conduct because it was unlikely Tili could have formed a separate criminal intent between each separate penetration. Tili, 139 Wn.2d at 124. In Porter, the Court held that Porter's sale of two different types of drugs to the same undercover detective within ten minutes was the same criminal conduct. Porter, 133 Wn.2d at 185-86. The Court held that Porter had the same criminal intent because it was Porter's intent "to sell both drugs in the present as part of an ongoing transaction." Id. at 184-85.
In Flake, Flake pleaded guilty to vehicular assault and a "hit and run injury accident." 76 Wn.2d at 176. The trial court determined that Flake's objective intent in committing the two crimes was different and concluded the crimes were not the same criminal conduct. On appeal, this court affirmed and held the trial court did not abuse its discretion in concluding that when Flake committed the hit and run, his purpose was unrelated to vehicular assault. Flake's intent was to avoid responsibility by fleeing. Id. at 180-81.
Here, unlike in Tili and Porter, Cummings did not have the same criminal intent in committing the two assaults. The first assault occurred when Cummings was trying to recover money from Jorgenson, while the second occurred when Cummings drove away in Jorgenson's car to flee. As in Flake, it is reasonable to conclude that Cummings committed vehicular assault not in furtherance of the beating, but to leave and avoid responsibility for the crime. We conclude it was not an abuse of discretion for the sentencing court to decide Cummings's purpose in committing the two crimes was different and count the crimes separately for purposes of calculating his offender score.
As the State points out, if Cummings intended to further injure Jorgenson by running him over, he likely would not have stopped at running him over once. Instead, it is reasonable to conclude that Cummings was trying to drive away, and in so doing, drove over an unconscious Jorgenson.
Cummings also relies on State v. Cabrera, 73 Wn. App. 165, 868 P.2d 179 (1994), and RCW 9.94A.530, to argue the State did not meet its burden to proving the prior convictions sentencing. But, unlike Cabrera, Cummings did not dispute that he was convicted for vehicular assault or second degree assault in 1989. Instead, Cummings disputes the conclusion the sentencing court drew from the 1989 certification of probable cause. And, under RCW 9.94A.530(2), the trial court can rely on information admitted or acknowledged at time of sentencing. In his presentence report Cummings admits the 1989 convictions and attaches the certification of probable cause.
We affirm the trial court's determination that Cummings' offender score was an eight and the judgment and sentence.