Opinion
No. 37776-4-II.
Filed: September 3, 2009.
Appeal from the Superior Court, Pierce County, No. 07-1-05057-6, Rosanne Buckner, J., entered May 23, 2008.
Affirmed by unpublished opinion per Hunt, J., concurred in by Houghton and Bridgewater, JJ.
Unpublished Opinion
Billy Chapman Frawley appeals his low-end standard-range sentence following his bench trial conviction for failure to register as a sex offender. He argues that his trial counsel did not provide effective representation in failing to ask the trial court to impose an exceptional sentence downward. Finding no basis for this claim, we affirm.
A commissioner of this court considered this matter under RAP 18.14 and referred it to a panel of judges.
FACTS
Billy Frawley has two 1992 first degree child molestation convictions, which require him to register as a sex offender with the Pierce County Sheriff. Because he had no fixed residence, RCW 9A.44.130(6)(a) required him to report to the sheriff's sex offender unit every week. When Frawley reported on September 11, 18, and 25, 2007, he filled out forms indicating that he was staying in an open field on the corner of South 96th Street and South Tacoma Way in Tacoma.
But the sex offender registration unit received information during that time that Frawley was staying at a residence on 120th Street South with a family that included a 12-year-old girl. On September 26, Detective Curtis Wright went to the 120th St. residence to investigate the tip and found that Frawley was there. Frawley admitted that he had been sleeping at the residence, and he explained that he had not registered that address because he had had problems with death threats in the past and wanted to keep a low profile.
Detective Wright also talked to Kristine Roosa, who lived at the 120th St. residence with her husband and 12-year-old daughter. Roosa told Wright that Frawley had been sleeping on their couch for about three weeks, that he had done odd jobs around the house in return for the favor, and that he had told her about his sex offender status only two days before her conversation with the detective.
The State charged Frawley with failure to register as a sex offender. Following a bench trial, the court convicted him as charged. He had 18 prior convictions, including the two 1992 child molestations, a 1990 incest, and seven failures to register as a sex offender. He agreed that his offender score was higher than 9, yielding a standard range sentence of 43-57 months of confinement; he asked for a sentence at the low end of the range. The State also recommended a low-end sentence. The trial court imposed the requested low end 43 months.
Frawley appeals.
ANALYSIS
Frawley now contends that his trial counsel provided inadequate assistance because he did not ask for an exceptional sentence downward. More specifically, Frawley contends that the purpose of the sex offender registration statute is to ensure law enforcement's ability to locate prior sexual offenders. He asserts that he fulfilled this purpose by registering the location of his tent and visiting it daily. He argues that his "substantial compliance" with the registration statute is a mitigating factor that his trial counsel should have used to request a downward exceptional sentence. This argument fails.
In order to prevail, Frawley must show that his counsel's performance fell below an objective standard of reasonableness and, but for that conduct, there is a reasonable probability that the outcome would have been different. Detention of Stout, 159 Wn.2d 357, 377, 150 P.3d 86 (2007). There is a wide range of professionally competent decisions regarding the viability of particular defenses or arguments; ordinarily, we defer to counsel's evaluation of the circumstances. See Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
A trial court may impose a sentence below the standard range for an offense if it finds, considering the purpose of RCW 9.94A, that there are substantial and compelling reasons justifying a downward exceptional sentence. RCW 9.94A.535. The purpose of RCW 9.94A is to make the criminal justice system accountable to the public, to ensure just and proportionate punishment, to provide offenders opportunities to improve themselves, to reduce the risk of reoffending, and to protect the public. See RCW 9.94A.010.
The purpose of the sex offender registration statute is to enable law enforcement agencies to protect their communities. See State v. Watson, 160 Wn.2d 1, 9, 154 P.3d 909 (2007); State v. Vanderpool, 99 Wn. App. 709, 712, 995 P.2d 104 (2000). One component of that protection is efficient investigation. Watson, 160 Wn.2d at 9; Vanderpool, 99 Wn. App. at 712. Another component is public notification of the presence of a sex offender in a given community. State v. Pickett, 95 Wn. App. 475, 480, 975 P.2d 584 (1999).
The second component, public notification, was plainly frustrated here. Frawley, who had prior convictions for sex crimes involving children, was living in a household that included a 12-year-old girl. He lived there almost three weeks before he informed the girl's mother that he was a sex offender. Thus, there is scant possibility that the trial court would have found that Frawley had substantially complied with the statute or that his conduct in any way warranted an exceptionally low sentence. Accordingly, trial counsel was not remiss in failing to use Frawley's argument to request a downward exceptional sentence; and Frawley has failed to show that trial counsel's conduct prejudiced him. We hold, therefore, that trial counsel did not provide ineffective assistance at sentencing.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, PJ. and BRIDGEWATER, J., concur.