Opinion
No. 32228-5-II.
May 31, 2006.
Appeal from a judgment of the Superior Court for Grays Harbor County, No. 04-1-00116-4, F. Mark McCauley, J., entered September 13, 2004.
Counsel for Appellant(s), Peter B. Tiller, The Tiller Law Firm, PO Box 58, Centralia, WA 98531-0058.
Counsel for Respondent(s), Kraig Christian Newman, Grays Harbor Co PA, 102 W Broadway Ave Rm 102, Montesano, WA 98563-3621.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Quinn-Brintnall, C.J., and Bridgewater, J.
Michael A. Holcomb appeals his convictions for second degree theft and second degree arson, arguing that the State failed to prove the arson charge and that his counsel was ineffective in guiding him through plea negotiations that turned out to be more favorable than his ultimate jury convictions and sentence. Finding no reversible error, we affirm.
FACTS
In December 2003, the Grays Harbor County Sheriff responded to a report of a vehicle fire. The burned vehicle belonged to Jason Steen, who had reported his truck as stolen earlier that day. Based on information from another investigation, Detective Don Kolilis decided to interview Michael Holcomb about the truck theft and fire. Holcomb told Kolilis that he and Jason Sutherland had taken the truck. He explained that he was angry because Steen was dating his ex-girlfriend and that Sutherland was also angry with Steen over a drug deal. Accordingly, he and Sutherland decided to take the truck, believing that Steen kept drugs in it. Holcomb gave Sutherland a key to the truck; Sutherland drove the truck out to a side road with Holcomb following in another vehicle.
Holcomb and Sutherland then cut up the seats in their search for drugs. When they found none, Sutherland, according to Holcomb, decided to burn the truck. Holcomb explained that Sutherland alone poured gas on the truck and set it on fire. Before burning the vehicle, Sutherland removed a bag containing a gun from the truck.
The State charged Holcomb with second degree theft of the car; second degree unlawful possession of a firearm; theft of a firearm; and second degree arson. Before trial, the State offered to dismiss counts III and IV if Holcomb pleaded guilty to counts I and II. As part of the plea proposal, the State calculated Holcomb's offender score at 5 based on his criminal history and the pleas. Based on the offender scores, the State arrived at standard ranges of 4 to 12 months for count I and 17 to 22 months for count II. The State said it would recommend 8 months for count I and 20 months for count II, to be served concurrently and concurrent to an earlier Kitsap County sentence. Holcomb rejected the offer.
The jury acquitted Holcomb on counts II and III, but found him guilty on counts I and IV. When this matter initially came on for sentencing, the State calculated Holcomb's offender score at 7 for count I and 8 for count IV. According to the State, Holcomb's standard range for count I was 14 to 18 months, and 53 to 70 months for count IV. Holcomb faced an additional conviction for a Kitsap County offense that occurred after the offenses here. The State recommended 18 months for count I and 62 months for count IV, to be served consecutively to the Kitsap County conviction.
Then the State filed an amended statement of prosecuting attorney, asserting an offender score of 8 for count I and 9 for count IV. After recalculating the standard range for count I at 17 to 22 months and count IV at 63 to 84 months, the State recommended 20 months for count I and 75 months for count IV, to be served concurrent with each other and consecutive with the Kitsap County sentence.
At Holcomb's sentencing hearing, defense counsel contended that the State had not given Holcomb an accurate list of his criminal history when it proposed the plea offer. Counsel said that he relied on the State to give an accurate criminal history because that information is in a restricted database. Defense counsel argued that the plea proposal showed Holcomb's pre-conviction offender score as 4, rather than the 7 he actually had at the time and that Holcomb, if he had known 'what the stakes were,' would not have chosen a jury trial. Report of Proceedings (RP) (Aug. 30, 2004) at 121.
The trial court continued the sentencing hearing to allow both counsel to brief the plea offer issue. When the hearing reconvened, neither counsel offered any authority on the issue; defense counsel represented that he had been unable to find any law on the question. The trial judge sentenced Holcomb to the low end of the range for both counts, to be served concurrently with the Kitsap County sentence.
ANALYSIS I. Sufficiency of the Evidence
Holcomb argues that the State failed to prove the arson charge. The only evidence of Holcomb's participation in the arson came from his admissions to Kolilis. In that conversation, Holcomb told Kolilis that after the two cut up the interior of the truck, they knew because of the damage to the truck that 'this was now a serious situation'; RP (Aug. 17, 2004) at 44, Sutherland came up with the idea of 'burning all the evidence away'; while Sutherland was preparing to burn the truck, Holcomb grabbed some bags from the vehicle, including one that contained a gun. RP (Aug. 17, 2004) at 44, 68. But according to Holcomb, Sutherland alone poured gasoline on the truck and lighted it.
Due process requires the State to prove its case beyond a reasonable doubt. City of Seattle v. Slack, 113 Wn.2d 850, 859, 784 P.2d 494 (1989) (citing State v. Baeza, 100 Wn.2d 487, 488, 670 P.2d 646 (1983)).
In testing for sufficiency of the evidence, we ask whether, considering the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980); see also State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992); State v. Saunders, 120 Wn. App. 800, 814, 86 P.3d 1194 (2004). We consider circumstantial and direct evidence as equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980) (citing State v. Gosby, 85 Wn.2d 758, 766, 539 P.2d 680 (1975)).
To convict Holcomb of second degree arson, the State had to prove that he knowingly and maliciously caused a fire that damaged a car. RCW 9A.48.030. To affirm his conviction as an accomplice, the evidence must support a finding that he encouraged, aided, or agreed to aid Sutherland in planning or committing the arson, knowing that his acts would promote or facilitate the crime. See RCW 9A.08.020(3)(a)(i-ii). A person's 'presence at the commission of a crime, even coupled with a knowledge that one's presence would aid in the commission of the crime, will not subject an accused to accomplice liability.' State v. Rotunno, 95 Wn.2d 931, 933, 631 P.2d 951 (1981). When complicity is based on presence, as opposed to an overt act, the accused must also be ready to assist in the crime. In re Wilson, 91 Wn.2d 487, 491, 588 P.2d 1161 (1979).
But an accomplice, 'having agreed to participate in a criminal act, runs the risk of having the primary actor exceed the scope of the preplanned illegality.' State v. Davis, 101 Wn.2d 654, 658, 682 P.2d 883 (1984) (citing State v. Carothers, 84 Wn.2d 256, 525 P.2d 731 (1974)). Thus, one who acts as a lookout to a robbery is liable even if he did not know the principal intended to use a gun to commit the robbery. Davis, 101 Wn.2d at 658-59; see also State v. Bilial, 54 Wn. App. 778, 782-83, 776 P.2d 1322 (1989). Nonetheless, an accomplice's knowledge that the principal intends to commit 'a crime' does not 'impose strict liability for any and all offenses that follow.' State v. Roberts, 142 Wn.2d 471, 513, 14 P.3d 713 (2000). Rather, RCW 9A.08.020, the accomplice liability statute, refers specifically to 'the crime,' not a series of crimes. Roberts, 142 Wn.2d at 513.
Here, the evidence shows that Holcomb and Sutherland agreed to steal Steen's truck. They both cut up the inside of the truck searching for drugs. When they failed to find any, they both believed they had a serious situation because of the extensive damage to the truck. Although Sutherland came up with the specific method for disposing of the truck, the jury could easily infer from the evidence that Holcomb impliedly agreed that they should destroy the truck. And Holcomb continued to participate in destroying the truck by removing items from it while Sutherland prepared to burn it. Finally, Holcomb remained at the crime scene while Sutherland burned the truck and then the two drove away together. Thus, the jury could find that Holcomb encouraged and assisted Sutherland in the arson destruction of the truck by agreeing they should destroy the truck, by assisting with the removal of items the two intended to steal, and by waiting to provide Sutherland transportation after the arson.
II. Ineffective Assistance of Counsel
Holcomb argues that his counsel was ineffective for failing to investigate his criminal history and failing to move for relief from judgment at sentencing. Because a claim that counsel was ineffective is a mixed question of law and fact, we review it de novo. In re Pers. Restraint of Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001).
Both the United States Constitution and the Washington Constitution guarantee a defendant effective assistance of counsel. U.S. Const. amend. VI; Wash. Const., art. I, sec. 22. To prove that counsel was ineffective, Holcomb must show that (1) counsel's performance was deficient; and (2) the deficient performance prejudiced him. In re Pers. Restraint of Woods, 154 Wn.2d 400, 420-21, 114 P.3d 607 (2005) (citing State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996)); State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). Counsel's performance is deficient when it falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997). Prejudice occurs when, but for the deficient performance, there is a reasonable probability the outcome would have differed. In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). We generally presume that counsel was effective, allowing considerable deference for matters of strategy. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
A. Counsel's Failure to Investigate the Accuracy of the Plea Offer
Holcomb argues that his counsel should have investigated the accuracy of the State's representation of his criminal history. If he had, according to Holcomb, he would have discovered additional convictions and would have advised Holcomb differently about the State's plea offer. The State's plea offer calculated Holcomb's offender score at 4 before the current convictions instead of 7, the correct score including 3 pre-1991 felony convictions the State originally missed.
Holcomb contends that his counsel's failure to investigate the accuracy of the offender score in the plea offer was both deficient and prejudicial. 'To provide constitutionally adequate assistance, 'counsel must, at a minimum, conduct a reasonable investigation enabling [counsel] to make informed decisions about how best to represent [the] client." Brett, 142 Wn.2d at 873 (quoting Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994)) (emphasis omitted). Holcomb cites State v. Shaver, 116 Wn. App. 375, 379, 65 P.3d 688 (2003), where Shaver's counsel allowed him to testify at his trial about his previous convictions, but counsel was not aware of an earlier felony drug conviction that the State impeached him with. Division Three reversed, holding that counsel was ineffective for failing to discover the conviction and that the failure prejudiced Shaver. Shaver, 116 Wn. App. at 384-85.
Shaver does not help Holcomb. Counsel's failure to investigate in Shaver exposed his client to additional impeachment before the jury. Counsel's failure to investigate here did not affect Holcomb's trial. At most it contributed to the State's plea offer based on its error in estimating Holcomb's offender score and standard sentencing ranges. Although both were incorrect, Holcomb rejected the State's plea offer. The miscalculated scores and ranges thus had no effect on Holcomb's ultimate convictions and sentences. Still, Holcomb complains that if he had known the true scores and ranges (higher than represented) he would have accepted the State's offer. But if counsel had investigated Holcomb's criminal history, he would have been ethically obligated to advise the State of its miscalculation. RCW 9.94A.441. And once advised, we seriously question whether the State would continue to offer the same miscalculated sentencing ranges a question for which Holcomb offers no reasonable explanation. Accordingly, Holcomb cannot show that he was prejudiced by counsel's failure to investigate his criminal history.
B. Mutual Mistake and Detrimental Reliance
Holcomb also maintains that his counsel should have moved for relief from judgment under CrR 7.8(b) based on mutual mistake and detrimental reliance. He reasons that he relied on the incorrect offender score in making his choice to reject the plea proposal and go to trial. Holcomb contends that the incorrect offender score is grounds for a CrR 7.8(b) motion and his counsel failed him by arguing the mistake only in mitigation.
A court may relieve a party from a final judgment (1) because of mistakes, inadvertence, surprise, excusable neglect, or irregularity in obtaining the judgment; (2) for newly discovered evidence; (3) for fraud; (4) if the judgment is void; or (5) for any other reason justifying relief from the judgment. CrR 7.8(b)(1)-(5).
Holcomb does not persuade us that his counsel's decision not to pursue a CrR 7.8(b) motion fell below an objective standard of reasonableness. Counsel explained that he could find no law to support such an argument. Accordingly, counsel argued the mistake as a mitigating factor, urging the court to sentence Holcomb to the low end of the standard range. Holcomb cites no authority that his rejection of a plea offer based on incorrect criminal history would support a CrR 7.8(b) motion.
Moreover, Holcomb would have faced the same prejudice problem in making a CrR 7.8(b) motion. His mutual mistake argument assumes that but for the mistake, he and the State would have made the deal the State offered. As we have discussed, however, common sense dictates otherwise. But for the State's mistake, it most likely would not have offered the low sentence ranges. And we have no way of knowing what, if any, offer the State would have made if it had known Holcomb's true criminal history or whether Holcomb would have accepted any such offer. Thus, Holcomb cannot show that he was prejudiced by going to trial, and without demonstrating prejudice, a CrR 7.8(b) motion would fail. Holcomb was not prejudiced by counsel's failure to make the motion. See Pirtle, 136 Wn.2d at 487.
(1) Detrimental Reliance
Holcomb contends that he detrimentally relied on the inaccurate plea offer. The doctrine of detrimental reliance borrows from unilateral contract theory and applies this doctrine to the plea bargain process. State v. Wheeler, 95 Wn.2d 799, 803, 631 P.2d 376 (1981). Accordingly, the State cannot revoke a plea proposal if the defendant accepts either by entering the plea or on a showing of some act of detrimental reliance. Wheeler, 95 Wn.2d at 803. A defendant may prove detrimental reliance by showing he relied on the State's offer in such a way that a fair trial is no longer possible. State v. Budge, 125 Wn. App. 341, 347, 104 P.3d 714 (2005) (citations omitted). Absent this showing, a jury trial is an adequate remedy for the revocation. Wheeler, 95 Wn.2d at 803.
But Holcomb did not rely on the State's low offer in any way that made a fair trial impossible. He did not plead guilty or make any admissions as a result of the State's offer. And he points to nothing in the trial record that suggests the State used his response to its plea offer to its advantage. We find no merit in Holcomb's detrimental reliance argument.
(2) Mutual Mistake
Holcomb also argues that counsel could have brought a CrR 7.8(b)(1) motion based on mutual mistake. Where a defendant enters a guilty plea based on misinformation caused by mutual mistake about the plea agreement sentence, the defendant generally may choose between specific performance or plea withdrawal. State v. Walsh, 143 Wn.2d 1, 8-9, 17 P.3d 591 (2001). The State then bears the burden of showing compelling reasons why the court should not accept the defendant's choice of remedy. Walsh, 143 Wn.2d at 9 (citing State v. Miller, 110 Wn.2d 528, 536, 756 P.2d 122 (1988)).
Here, the plea offer contained incorrect information about the prospective offender score. Holcomb, however, did not plead; he rejected the offer. The mutual mistake cases typically arise where the defendant pleads before the parties realize the mistake. See State v. Skiggn, 58 Wn. App. 831, 833, 795 P.2d 169 (1990) (State figured out that defendant's offender score created a higher standard range sentence after defendant entered the guilty plea); State v. Moon, 108 Wn. App. 59, 61, 29 P.3d 734 (2001) (defendant realized after sentencing that the sentencing range agreed to in his guilty plea was higher than the range he could have received); and Walsh, 143 Wn.2d at 5 (defendant sought to withdraw guilty plea after sentencing because the plea listed a shorter standard range sentence due to a mistake in his offender score). Because no consequences flowed from the mutual mistake, if there was one, there is nothing for Holcomb to withdraw.
III. Statement of Additional Grounds
Under RAP 10.10(a), a defendant may file a statement of additional grounds (SAG) to identify matters he believes have not been adequately addressed by counsel's brief. Although Holcomb need not refer to the record or cite to legal authority, he must inform us of the nature and occurrence of the alleged errors. RAP 10.10(c). We are not obligated to search the record in support of his claims. RAP 10.10(c).
A. Incorrect Offender Score Used at Sentencing
Holcomb argues that the State incorrectly calculated his offender score at his sentencing. Holcomb says that his offender score is not 9, but 11. He maintains that counsel should have objected to this error. The record does not contain the facts needed to substantiate this claim. Nevertheless, any error is harmless because 9 is the maximum score used for calculating sentencing ranges. RCW 9.94A.510. Anything above a 9 would yield the same sentencing range. Thus, Holcomb cannot show he suffered any prejudice.
B. Failure to Adequately Challenge the Prior Convictions
Holcomb next argues that his counsel should have challenged several of his earlier convictions. At the first sentencing hearing, counsel stated that he had received certified copies of all the judgments and sentences. Certified copies of the prior judgments and sentences sufficiently establish a defendant's criminal history by a preponderance of the evidence. State v. Cabrera, 73 Wn. App. 165, 168, 868 P.2d 179 (1994) (citing State v. Herzog, 48 Wn. App. 831, 834, 740 P.2d 380 (1987)). Counsel could reasonably rely on those certified copies to establish the three convictions; his assistance to Holcomb on this issue was effective.
C. Priors Would Be Washed Out
Holcomb next contends that his trial counsel told him 'all through the trial process' that the three prior convictions not in the plea offer would be washed out. SAG at 7. In 2002, the legislature amended the Sentencing Reform Act of 1981 (SRA) to include most of the previously washed out convictions in the defendant's criminal history and offender score calculation. RCW 9.94A.030(13) (b-c); .525(18); State v. Varga, 151 Wn.2d 179, 193, 86 P.3d 139 (2004). As to counsel's alleged representations, nothing in the record deals with these allegations; Holcomb must raise them in a personal restraint petition. McFarland, 127 Wn.2d at 335.
D. Counsel's Alleged Insistence That the Supplemental Brief Was Not His job
Holcomb faults his counsel for failing to write a brief for the second sentencing hearing; he contends that counsel told him it was not his job. But counsel advised the court that he had searched for authority and found none. Holcomb also has provided none for us. And counsel's alleged statements are not part of the record before us. Holcomb must raise them in a personal restraint petition. McFarland, 127 Wn.2d at 335.
E. Proof of Prior Criminal History at Sentencing
Holcomb maintains that the State failed to prove his criminal history and, thus, his offender score at sentencing beyond a reasonable doubt. The State is not required, however, to prove prior convictions beyond a reasonable doubt. State v. Hughes, 154 Wn.2d 118, 131, 110 P.3d 192 (2005) (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)). Instead, under the SRA, the State must prove such convictions only by a preponderance of the evidence. RCW 9.94A.500; State v. Holgren, 106 Wn. App 477, 482, 23 P.3d 1132 (2001). The State provided Holcomb with certified copies of the judgments and sentences of his prior convictions to establish his criminal history and offender score. This is sufficient to satisfy the preponderance of the evidence standard. See State v. Lillard, 122 Wn. App. 422, 432-33, 93 P.3d 969 (2004), review denied, 154 Wn.2d 1002 (2005).
F. Challenge to Three Convictions at Sentencing
Holcomb says he intended to challenge the validity of the three convictions he alleges to have created the problems with the plea offer. But the State produced certified copies of the judgments and sentences for his prior criminal conduct. This is sufficient to establish his criminal history by a preponderance of the evidence. See Lillard, 122 Wn. App. at 432-33. Moreover, Holcomb does not explain the nature of his intended challenges.
G. Prosecutorial Misconduct
Holcomb asserts that the incorrect offender score in the plea offer essentially amounted to prosecutorial misconduct. The prosecutor explained that the offender score calculated in the plea offer missed any pre-1991 convictions due to the data base used in preparing the plea offer. To establish prosecutorial misconduct, the defendant must prove the prosecutor acted improperly and that conduct had a prejudicial effect on the trial. State v. Johnson, 113 Wn. App. 482, 492, 54 P.3d 155 (2002). Prejudice is established only if there is a substantial likelihood that the misconduct affected the jury's verdict. State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995). Holcomb fails to explain how the prosecutor acted improperly or how the conduct prejudiced his trial.
H. Failure to Disclose
Holcomb seems to argue that the State failed to disclose his prior criminal history. A prosecutor has a duty to disclose known prior criminal convictions of the defendant. CrR 4.7(a)(1)(vi). The prosecutor said at the time of sentencing that the State did not know of the three convictions at issue until it used a different data base. When the State discovered the convictions, it informed Holcomb. The State did not violate its duty to disclose Holcomb's criminal history.
I. Firing Counsel at Trial
Lastly, Holcomb says that he attempted to fire his counsel at trial for failure to adequately represent him. Because the record contains nothing about this incident, we do not address it. 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, J. and QUINN-BRINTNALL, C.J., concur.