Opinion
No. 61868-7-I.
September 8, 2009.
Appeal from the Superior Court, Grays Harbor County, No. 07-1-00312-9, F. Mark McCauley, J., entered January 22, 2008.
Reversed and remanded by unpublished opinion per Penoyar, J., concurred in by Van Deren, C.J., and Bridgewater, J.
Michael Draman challenges his convictions of one count of felony stalking and four counts of violation of a court order. He argues that the multiple convictions violate double jeopardy because the proof was the same for the stalking charge as for the violations of the court order, and therefore all four violations of a court order should merge with the felony stalking charge. We hold that two of Draman's court order violations merge with the felony stalking charge and must be vacated. Because the trial court only sentenced Draman on two counts of violation of a court order, we affirm his sentence but remand for correction of the judgment and sentence.
Background
When Michael Draman and Brenda Kasel began dating, their relationship was fun and playful. Draman was supportive of Kasel while she was dealing with conflicts with her ex-husband, and he appeared to be a good influence on her children. However, Draman soon began to display aggressive, overprotective behaviors.
Draman's behaviors included acting highly intolerant of Kasel's ex-husband, including talking profanely about him in front of Kasel's children and asking Kasel to invite him over so Draman could fight him. Draman was also violent toward other men and Kasel. One day, after Draman had been living with Kasel for a few months, a male friend stopped by the house to check on Kasel. Unprovoked, Draman pushed Kasel aside as she answered the door and attacked the man, grabbing him and pushing him into the carport where he kicked him in the groin, "roughed him up," and pinned him down with a baseball bat. The incident scared Kasel, but Draman told her it was just "what guys do." On an occasion when Draman and Kasel were fighting, he frightened her by holding her by the neck and pressing her head down on the kitchen table, showing her his fist. He let go without hurting her, but she felt scared and weak. Another time, because he was upset that Kasel's ex-husband would be attending one of her children's birthday parties, Draman picked up Kasel and threw her. She did not call police on any of these occasions because Draman always calmed down and apologized profusely. But Draman's aggressive behaviors increased in frequency, so Kasel decided to separate from him.
After Kasel and Draman separated, they attended counseling together and continued to have a relationship. During that time, Kasel became pregnant with Draman's child, and they decided to get married. The marriage seemed to go well during the pregnancy and for a short time after the birth of the baby, but Draman's aggressive behaviors quickly returned. Once, when Kasel's ex-husband arrived at the house to pick up one of the older children, Draman asked him to roll down the window of his car and then punched him in the face while he was sitting in the driver's seat. About one year later, Kasel's son called police when Draman flew into a rage, threw several objects including a microwave oven at Kasel, kicked a cupboard door while Kasel's hand was inside the cupboard, and backed her into corners while swearing at her and calling her names. When police arrived, Draman instantly changed his demeanor and asked Kasel to tell officers everything was okay. He was taken into custody that day. Shortly thereafter, Kasel obtained a permanent protection order against him.
Despite the protection order, Kasel voluntarily met with Draman a number of times. When Kasel refused to answer his calls, Draman called her repeatedly on her cell phone, home phone, and work phone, sometimes calling every 30 seconds for two or more hours. On one occasion, Draman broke into Kasel's house after she was in bed, and told her he was "just checking to see if there's a guy here." When Kasel realized Draman's behavior toward her was obsessive and abusive, and the frequency of his phone calls increased, Kasel decided she no longer wanted to have contact with him. She also decided to move to a new house, so he could not contact her at home.
The charges in this case are based on four separate contacts that Draman made in violation of the order protecting Kasel and her children. On November 19, 2007, Draman attempted to contact Kasel at her residence and also called her repeatedly that day. On November 21, 2007, Draman called Kasel at work. When she answered, she heard Draman say, "What the fuck?" Kasel hung up, but Draman called her work and cell phones over and over again, "all day and night." On November 27, 2007, Draman called Kasel at her home over 20 times. Although Kasel had not told Draman the address for her new home, he showed up there that evening. Kasel heard his car door outside and called police. The responding officer answered Kasel's phone when Draman called again, and Draman told the officer that he was Kasel's brother. On November 29, 2007, Kasel was driving in the Factoria area when she saw Draman driving in a different direction. He made an illegal turn in order to pull in behind her, and he began honking his horn and weaving around, trying to get her to pull over. Kasel called 911. Draman was arrested later that day.
Draman was charged and convicted of one count of felony stalking (count 1) and four counts of violating a court order (counts II-V). He was sentenced to 14 months on count I and 12 months each on counts III and IV, to be served consecutively for a total of 38 months confinement. The trial court did not sentence Draman on counts II or V, indicating that it considered counts II and V the same criminal conduct as count I.
Discussion
Draman argues that his convictions violate double jeopardy and the merger doctrine and that the sentencing court did not give him proper credit for time served. An alleged violation of double jeopardy is reviewed de novo. Whether the trial court gave Draman proper credit for time served is a question of statutory construction we review de novo.
State v. Freeman, 153 Wn.2d 765, 770, 108 P.3d 753 (2005).
State v. L.W., 101 Wn. App. 595, 600, 6 P.3d 596 (2000).
A person commits misdemeanor stalking if
(a) He or she intentionally and repeatedly harasses or repeatedly follows another person; and
(b) The person being harassed or followed is placed in fear that the stalker intends to injure the person, another person, or property of the person or of another person. The feeling of fear must be one that a reasonable person in the same situation would experience under all the circumstances; and
(c) The stalker either
(i) Intends to frighten, intimidate, or harass the person; or
(ii) Knows or reasonably should know that the person is afraid, intimidated, or harassed even if the stalker did not intend to place the person in fear or intimidate or harass the person.
"`Repeatedly' means on two or more separate occasions." The crime is elevated to a felony if "the stalking violates any protective order protecting the person being stalked." To convict Draman of four counts of violation of a court order, the State had to prove that on four separate occasions, Draman willfully had contact with Kasel, that the contact was prohibited by a court order, and that he knew of the existence of the court order.
Former RCW 26.50.110 (2007).
Draman argues that the convictions of violation of a court order violate double jeopardy. In determining whether multiple convictions violate double jeopardy, "[t]he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." However, where the preliminary requirement that "the same act or transaction" violates two or more criminal statutes is not met, traditional double jeopardy principles do not apply. In State v. Parmelee, the defendant was convicted of three counts of violation of a court order and one count of felony stalking. Each count of violation of a court order was based on a separate letter sent to the victim, and the stalking conviction was based on repeated harassment established by the letters. The convictions did not violate double jeopardy because they were not based on "the same act or transaction."
Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 2d 306 (1932).
State v. Parmelee, 108 Wn. App. 702, 708-09, 32 P.3d 1029 (2001).
108 Wn. App. 702, 32 P.3d 1029 (2001).
Parmelee, 108 Wn. App. at 709.
Parmelee, 108 Wn. App. at 709.
This case is indistinguishable. The State proved Draman committed four counts of violation of a court order. Each conviction was based on an individual act of contacting Kasel in violation of the court order. Felony stalking requires the proof that Draman "intentionally and repeatedly" harassed Kasel and that the conduct violated a protection order. Therefore, as in Parmelee, traditional double jeopardy principles do not apply because stalking requires proof of an additional fact — repeated harassment — which is not required to prove violation of a court order. Thus, the preliminary requirement that "the same act or transaction" violates multiple criminal statutes is absent here.
Draman argues that this court's opinion in Parmelee is incorrect and unsupported by precedent. He argues that Parmelee is inconsistent with State v. Freeman and State v. Johnson. However, in both Freeman and Johnson, the convictions were based on a single act or transaction that violated multiple criminal statutes. In Freeman, our Supreme Court held that assault and first degree robbery were the same offense for the purposes of double jeopardy where the assault elevated the robbery to the first degree. But there, the assault and robbery occurred at the same time as part of a single criminal act. Similarly, in Johnson, where the defendant committed kidnapping, assault, and rape during a single criminal act, our Supreme Court held that the legislative intent was that he be convicted for first degree rape only. The court noted that any injustice due to the multiple convictions would be remedied by vacating the kidnapping and assault convictions. As explained above, traditional double jeopardy principles do not apply here because Draman's multiple convictions were not based on the same act or transaction.
153 Wn.2d 765, 108 P.3d 753 (2005).
92 Wn.2d 671, 600 P.2d 1249 (1979) (overturned on other grounds by State v. Sweet, 138 Wn.2d 466, 980 P.2d 1223 (1999)).
Freeman, 153 Wn.2d at 774.
Freeman, 153 Wn.2d at 769.
Johnson, 92 Wn.2d at 679-80.
Johnson, 92 Wn.2d at 681-82.
However, we agree, and the State concedes, that two of Draman's misdemeanor convictions merge with the felony stalking conviction. The merger doctrine is a rule of statutory construction that applies to effect the legislature's intent "when a crime is elevated to a higher degree by proof of another crime proscribed elsewhere in the criminal code." Where applicable, the merger doctrine is an "aid in determining legislative intent, even when two crimes have formally different elements." "[W]hen the degree of one offense is raised by conduct separately criminalized by the legislature, we presume the legislature intended to punish both offenses through a greater sentence for the greater crime." Conversely, if there is an independent purpose or effect to charges that on an abstract level would seem to merge, they may be punished separately. Here, the crime of stalking was elevated to a felony by proof that Draman committed other criminal acts, two counts of violation of a court order. Therefore, two of Draman's protection order violations merge into the stalking conviction.
Parmelee, 108 Wn. App. at 710.
Freeman, 153 Wn.2d at 772.
Freeman, 153 Wn.2d at 772-73.
Freeman, 153 Wn.2d at 773.
See Parmelee, 108 Wn. App. at 711.
Draman was sentenced only for counts I, III, and IV. However, the misdemeanor judgment and sentence states that Draman was found guilty of counts II-V, domestic violence misdemeanor violation of a court order. Where conduct constitutes only one violation of a criminal statute for purposes of the merger doctrine, the proper remedy is to vacate the merged convictions. We therefore accept the State's concession that counts II and V must be vacated because they merge into count I.
See Parmelee, 108 Wn. App. at 711.
Draman argues that all four court order violations must be vacated because the jury did not elect which violations it relied on to elevate the stalking charge to a felony. He argues that all four protection violations should merge with the stalking charge and that, because felony stalking requires "two or more" protection order violations, merging only two of the convictions ignores and renders meaningless the statutory language "or more." We disagree.
RCW 9A.46.110(6)(e) (emphasis added).
The State had to prove only two violations to convict Draman of felony stalking. Because all four violations were the same, any two of the four violations would have been sufficient to prove felony stalking. As this court held in Parmelee, only two protection order violations are essential elements of the crime of felony stalking and merge into the stalking conviction. Any additional protection order violations are not essential elements and thus stand as independent convictions. By defining "repeatedly" to include "two or more separate occasions," the legislature has defined the unit of prosecution for stalking to encompass a series of "two or more" incidents of harassment. Thus, the State cannot charge a defendant with two counts of felony stalking where he has committed four protection order violations. However, because the legislature has made only two of those violations essential elements of stalking, only two of the violations merge with the stalking conviction. The legislature did not intend that more than two violations of a court order should merge with felony stalking. Such an interpretation would produce the absurd result that a defendant who is convicted for felony stalking and has committed 100 violations of a court order would receive the same sentence as one who has committed only two violations of a court order. Thus, we hold that it does not violate the merger doctrine for the defendant to be punished for the remaining two counts of violation of a court order in addition to felony stalking where the State has proven four counts and two counts merge with the stalking conviction.
Parmelee, 108 Wn. App. at 711.
Parmelee, 108 Wn. App. at 711.
Furthermore, "even if on an abstract level two convictions appear to be for the same offense or for charges that would merge, if there is an independent purpose or effect to each, they may be punished as separate offenses." The stalking statute is found in chapter 9A.46 RCW and was created for a wholly different purpose than the statute criminalizing violations of court orders:
Freeman, 153 Wn.2d at 773.
The legislature finds that the prevention of serious, personal harassment is an important government objective. Toward that end, this chapter is aimed at making unlawful the repeated invasions of a person's privacy by acts and threats which show a pattern of harassment designed to coerce, intimidate, or humiliate the victim.
Thus, the crime of stalking has an independent purpose from the crime of violating a court order and may be punished separately. However, because two violations of a court order were essential elements of the stalking charge in this case, they merge with the stalking conviction.
Finally, Draman argues that he was not given proper credit for time served. RCW 9.94A.505(6) provides that "[t]he sentencing court shall give the offender credit for all confinement time served before the sentencing if that confinement was solely in regard to the offense for which the offender is being sentenced." Draman served 168 days before he was sentenced. The sentencing court gave him credit for 168 days against his total sentence of 38 months confinement for the felony and misdemeanor convictions, as shown on the felony judgment and sentence. The felony judgment and sentence cross-referenced the misdemeanor judgment and sentence and reflected the total sentence for which Draman was being sentenced on all charges. Similarly, the misdemeanor judgment and sentence cross-referenced the felony judgment and sentence and indicated that the credit for time served was reflected on the felony judgment and sentence. When an offender is confined for several offenses, RCW 9.94A.505(6) does not authorize the sentencing court to give "credit for all confinement time served" on each and every offense, essentially multiplying credit for time served by the number of offenses for which the offender has been held. Draman has cited no authority for the proposition that he should receive credit for more time than that which he has actually served.
Conclusion
We affirm counts I, III, and IV, remand for vacation of counts II and V, and affirm Draman's sentence.
WE CONCUR: