Opinion
No. 32275-7-II
Filed: May 24, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Clark County. Docket No: 00-1-01609-3. Judgment or order under review. Date filed: 09/08/2004. Judge signing: Hon. Robert L. Harris.
Counsel for Appellant(s), David Schultz, Attorney at Law, 430 NE Everett, Camas, WA 98607-2115.
Counsel for Respondent(s), Thomas C. Duffy, Attorney at Law, 18005 SE 44th Way, Vancouver, WA 98683-7402.
Matthew Ryan Hastings appeals from a resentencing hearing. He argues the sentencing court erred in failing (1) to treat three 1998 offenses as the same criminal conduct, and (2) to consider a drug offender sentencing alternative (DOSA). Finding no error, we affirm.
FACTS
A jury found Hastings guilty of unlawful delivery of a controlled substance, methamphetamine, within one thousand feet of a school bus route stop.
A. Original Sentence, 2000
Based on an offender score of seven, the sentencing court imposed a 102-month standard range sentence. Hastings appealed under cause number 27203-2-II. Because of an offender score miscalculation, we remanded for resentencing. State v. Hastings, No. 27203-2-II, slip op. at 10 (Wash.Ct.App. February 25, 2003).
The sentencing court added two points for Hastings's three 1998 guilty plea convictions for first degree theft, unlawful imprisonment, and second degree unlawful possession of a firearm. The sentencing court for these previous offenses did not find that they were the same criminal conduct.
B. Remand for Resentencing, 2003
At the resentencing hearing on remand, Hastings argued that his three 1998 convictions were the same criminal conduct. The sentencing court disagreed, recalculated his sentence using an offender score of six, and imposed a 94-month standard range sentence. Hastings appealed under cause number 30496-1-II. We again remanded for resentencing because the record did not show that the sentencing court had exercised its discretion in determining that two of Hastings' 1998 offenses were the same criminal conduct and one was separate. State v. Hastings, No. 30496-1-II, slip op. at 5 (Wash.Ct.App. May 4, 2004).
C. Second Remand for Resentencing, 2004
The sentencing court reconvened following our second remand order. The State introduced exhibit 1, a 1998 Clark County Sheriff's Office incident report, in which the reporting officer detailed the events leading to the 1998 charges. The report read, in part, as follows:
On 02/10/98, I was dispatched to 14624 NE Coast Pine Ct. for a cold armed robbery. Upon arrival I talked to the victim, Walter Kenneth Newton (Kenny). Kenny told me how he had been accosted at an apartment complex and forced at gun point to drive the suspect around until he was nearly out of gas, and was robbed of $175.00. Kenny was able to escape when the suspect got out of the car at a mini-mart to make a phone call. . . .
Kenny described how as he was leaving a friend, Nicole M. Planert's, apartment between 2130 and 2145 hrs. when he was approached by Matt in the parking lot. Hastings asked Kenny for a ride and offered to help pay for gas. Kenny agreed to give a ride to Matt, however once on the road, Matt pointed the semi-automatic pistol at Kenny demanding to be driven to different locations. . . .
After driving a while Matt demanded that Kenny take him back to the apartment where he was picked up. At approximately 0245 to 0300 they returned to Nicole's. Matt concealed the pistol and the two went into Nicole's apartment. . . . After what Kenny thought was less than about 45 minuets [sic] they left.
. . . .
On 02/11/98, I recontacted Kenny to ask if he could remember exactly when it was that Matt had taken his money. Kenny said that it was after they had left Nicole's apartment together. The money was sitting in the center console of the car.
Kenny also described further how Matt had pointed the gun at him. Kenny said that it was when they were in the area of Cub Foods that Matt told him that he had a gun. Kenny questioned Matt if he was serious. Matt pulled out the gun and pulled back the slide. Kenny said that he thought it sounded like Matt had put a bullet in the chamber.
Exhibit No. 1.
At the sentencing hearing, Hastings testified that: (1) he had met Newton in the parking lot; (2) Newton had some money and wanted to buy drugs; and (3) he, Hastings, then got a gun, drove with Newton to Cub Foods, robbed Newton, and unintentionally left the gun in Newton's car.
The sentencing court issued a memorandum decision denying Hastings' request to treat the 1998 offenses as the same criminal conduct. The sentencing court then issued an order recommitting Hastings to the same terms it had set in the earlier 2003 amended judgment and sentence following the previous remand. In its written decision, the sentencing court explained:
This matter was returned from the Court of Appeals to determine whether or not Unlawful Possession of a Firearm would constitute same criminal conduct as Theft I and the Unlawful Imprisonment. Police reports were submitted at the hearing as well as testimony taken.
The police report indicated that an individual was approached by defendant in the parking lot of an apartment complex on Northeast Coast Pine Court. The defendant was on foot and asked for a ride and offered to help pay for gas. At some point during the ride a weapon, which had been in possession of the defendant, was used for the purpose of making threats.
After a period of time they returned back to the original starting point and the victim and defendant, while concealing the weapon, went into the apartment that victim had previously been. After approximately forty-five minutes they then left. Defendant later got out of the car to make another phone call at a pay phone and the victim drove off and went directly home and called 911. The victim discovered defendant's weapon in the car and turned it over to a deputy sheriff who attempted to obtain prints but was unsuccessful.
We then have a series of bizarre phone calls by the defendant asking for his gun to be returned, including a conversation with the reporting officer. A meeting place was arranged and the two individuals waiting to receive the weapon were apprehended. They indicated that they were asked by defendant to be there for the purpose of receiving the weapon and returning it to him.
Defendant had the weapon on him prior to any contact with the victim. At what point in time the intent to use the weapon occurred is not known, but the purpose that it was subsequently used clearly occurred at a time separate from the original possession. There is nothing that would indicate that the weapon was in his possession for the sole purpose of robbing the individual, taking property from that person, or restraining in the manner in which he did.
Possession of the weapon was clearly separate and independent of the crimes in question. Therefore, I will continue to score three convictions as two as the theft of the property and requiring him to remain within his presence under the threat of the weapon is same criminal conduct. Unlawful possession of the weapon occurred prior to any of the subsequent actions taking place. After analyzing the police report, it is also clear that the weapon was not obtained in the apartment in question.
Clerk's Papers at 17-19 (emphasis added).
Hastings again appeals.
ANALYSIS I. Same Criminal Conduct
Hastings first argues that the record does not support the sentencing court's finding that his 1998 convictions were separate, not the same, criminal conduct.
`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.' Former RCW 9.94A.400(1)(a) (2000).
A. Standard of Review
We review same or separate criminal findings for an abuse of discretion or misapplication of the law. State v. Haddock, 141 Wn.2d 103, 110, 3 P.3d 733 (2000) (quoting State v. Elliott, 114 Wn.2d 6, 17, 785 P.2d 440, cert. denied, 498 U.S. 838 (1990)). A court abuses its discretion when it takes a position no reasonable person would adopt. State v. Demery, 144 Wn.2d 753, 758, 30 P.3d 1278 (2001). Where reasonable persons could take differing views regarding the propriety of the trial court's actions, the trial court has not abused its discretion. Id. at 758 (citing State v. Sutherland, 3 Wn. App. 20, 22, 472 P.2d 584, review denied, 78 Wn.2d 996 (1970)).
In Haddock, the Court reasoned that unlawful possession of a firearm and possession of stolen firearms were not the same criminal conduct because they involved different victims. Unlawful possession of a firearm, the Court explained, has the general public as its victim, whereas, possession of stolen firearms has the dispossessed person as its victim. Similarly, in State v. Thompson, 55 Wn. App. 888, 781 P.2d 501 (1989), the court held that unlawful possession of a firearm and two counts of assault were not the same criminal conduct because the intent for unlawful possession of a firearm is voluntary possession, whereas the intent for assault is a knowing assault of another with a weapon likely to produce bodily harm. The court also noted that Thompson possessed the weapon both before and after the assault and, thus, the time and place requirements differed.
B. Separate Conduct
Hastings specifically challenges the sentencing court's finding that he possessed the pistol before his confrontation with Newton. He contends that the only evidence adduced at the resentencing hearing was his testimony, which was directly contrary to this finding by the sentencing court. We disagree. The Sheriff's incident report shows that Hastings possessed the gun before he approached Newton and that he did not display it until they had neared Cub Foods. Thus, Hastings was a felon in possession of a firearm before he used the weapon to rob Newton.
See also State v. Morris, 123 Wn. App. 467, 476, 98 P.3d 513 (2004) (`The intent in unlawfully possessing a firearm is different from the intent in possessing a controlled substance with intent to deliver even if possessing one conveniently facilitates possession of the other.')
Thus, it was reasonable for the sentencing court to find that Hastings unlawfully possessed the firearm before he committed the theft and unlawful imprisonment offenses. The offenses bore different intents, and they occurred at different times. We hold, therefore, that the sentencing court neither abused its discretion nor misapplied the law.
II. DOSA
Hastings next contends that the sentencing court erred in failing to consider him for a DOSA because, on remand, it had authority to resentence him and we did not limit that sentencing authority.
Hastings committed his current offense on August 16, 2000. Former RCW 9.94A.120(6)(a) (2000) defined those eligible for DOSA at that time:
(6)(a) An offender is eligible for the special drug offender sentencing alternative if:
(i) The offender is convicted of a felony that is not a violent offense or sex offense and the violation does not involve a sentence enhancement under RCW 9.94A.310 (3) or (4);
(ii) The offender has no current or prior convictions for a sex offense or violent offense in this state, another state, or the United States;
(iii) For a violation of the uniform controlled substances act under chapter 69.50 RCW or a criminal solicitation to commit such a violation under chapter 9A.28 RCW, the offense involved only a small quantity of the particular controlled substance as determined by the judge upon consideration of such factors as the weight, purity, packaging, sale price, and street value of the controlled substance; and
(iv) The offender has not been found by the United States attorney general to be subject to a deportation detainer or order.
Two subsections of this statute made Hastings ineligible for DOSA. First, he had a prior conviction for a violent offense (first degree burglary), which made him ineligible under subsection (ii). And second, the record shows that Hastings' current offense involved at least 2.32 grams of methamphetamine, not a small quantity of the controlled substance, which made him ineligible under subsection (iii).
See Former RCW 9.94A.030(44)(a) (2000) (any class A felony is a violent offense).
Clearly, Hastings did not qualify for a DOSA. Therefore, the sentencing court had no authority to impose a DOSA. Accordingly, we need not address whether the sentencing court was erroneous in its interpretation of our remand order.
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.
BRIDGEWATER, P.J. and DEREN, J., Concur.