Opinion
Nos. 61548-3-I; 62348-6-I.
May 11, 2009.
Appeal from a judgment of the Superior Court for Skagit County, No. 07-1-00698-1, John M. Meyer, J., entered March 28, 2008.
Affirmed by unpublished opinion per Agid, J., concurred in by Grosse and Cox, JJ.
UNPUBLISHED OPINION
A jury convicted Terry Jones of second degree burglary and second degree possession of stolen property after a police dog found him hiding near John Bettys' Salvage Boys Auto Repair Yard. Jones also had stolen property in his pickup. The trial court counted both offenses against each other to determine his offender score, and Jones's lawyer did not argue that the two current offenses should have counted as one. Because the burglary antimerger statute gives the trial court the discretion to count burglary and possession of stolen property separately when calculating an offender score, Jones cannot establish a reasonable probability that an objection from his lawyer would have changed the trial court's sentencing decision.
FACTS
Bettys co-managed Salvage Boys in Anacortes. Salvage Boys buys cars and either repairs them for resale or sells them for scrap. Bettys' nephew called him around 10:15 p.m. on June 8, 2007, to report a vehicle parked outside Salvage Boys' entrance. Salvage Boys had been the victim of prior burglaries, with the most recent occurring about a month earlier. After receiving the call, Bettys, who lived about a block away from Salvage Boys, put on a shirt that said "Security" and walked down to the shop area. Bettys identified himself as security and asked anyone in the area to reveal themselves. He thought he saw someone running and yelled, "[s]top or I'll shoot," but the person continued on and disappeared. When Bettys looked in the back of the pickup truck parked outside the entrance, he recognized things that had been taken from Salvage Boys in previous burglaries.
Bettys called the Anacortes Police Department, and a K-9 unit found Jones and Martin Adams hiding under an excavator near a driveway across from the Salvage Boys' shop building. Bettys testified that the milk crate, come-along, chain, and brush-cutting blade found in the truck had recently been used at the business. Bettys also identified property in the truck that had been stolen in previous burglaries. Specifically, he identified a chain-fall that resembled a missing chain-fall, a tow bar, and a tackle box that had been stolen two years earlier. The bumper on Jones's truck was the same type as a bumper that had been missing from Salvage Boys.
The State charged Jones with second degree burglary and second degree possession of stolen property, and the jury found him guilty as charged. Although Jones had no prior offenses, the State calculated his offender score as one because of his other current offense. Based on that offender score, Jones faced a standard range of 3-8 months' confinement for second degree burglary and 0-90 days' confinement for second degree possession of stolen property. Jones's lawyer did not object to the calculation of the standard range based on the offender score of one. The trial court sentenced Jones to 5 months of confinement and allowed him to serve his time on work release and other alternatives to incarceration.
See RCW 9.94A.525(1) ("Convictions entered or sentenced on the same date as the conviction for which the offender score is being computed shall be deemed `other current offenses' within the meaning of RCW 9.94A.589.").
Second degree burglary has a seriousness level of III, and second degree possession of stolen property has a seriousness level of I.
RCW 9.94A.515. For an offender score of zero, the standard range for second degree burglary is one to three months and the standard range for second degree possession of stolen property is zero to 90 days. RCW 9.94A.510.
DECISION
Jones argues that his lawyer deprived him of effective assistance of counsel by failing to argue that his two offenses should be counted as one crime for the purposes of determining his offender score. To demonstrate ineffective assistance of counsel, Jones must show that defense counsel's representation fell below an objective standard of reasonableness and that the deficient representation prejudiced him. To show prejudice, Jones must establish that there is a reasonable probability the result would have been different but for the deficient performance.
See State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
See State v. Townsend, 142 Wn.2d 838, 843-44, 15 P.3d 145 (2001).
Under the general rule in RCW 9.94A.589(1)(a), "whenever a person is to be sentenced for two or more current offenses, the sentence range for each current offense shall be determined by using all other current and prior convictions as if they were prior convictions for the purpose of the offender score." And under the same criminal conduct provision in RCW 9.94A.589(1)(a), the current offenses count as one crime "if the court enters a finding that some or all of the current offenses encompass the same criminal conduct." Multiple offenses encompass the same criminal conduct when they involve the same (1) objective criminal intent, (2) time and place, and (3) victim.
When one of the current offenses is burglary, the burglary antimerger statute applies, allowing the "sentencing judge discretion to punish for burglary, even where it and an additional crime encompass the same criminal conduct." The statute provides that "[e]very person who, in the commission of a burglary shall commit any other crime, may be punished therefor as well as for the burglary." Accordingly, the trial court properly exercised its discretion by counting both convictions toward Jones's offender score. While the permissive language in the antimerger statute provides the trial court with the discretion to treat burglary and the other offense as one crime if the offenses in fact constitute the same criminal conduct, Jones does not explain why the trial court would have exercised its discretion in his favor had his lawyer objected to the State's calculation. Here, the discretion to also punish for burglary rested with the trial court, and Jones does not show a reasonable probability that an objection would have caused the trial court to exercise its discretion differently. Jones did not receive ineffective assistance of counsel because he was not prejudiced by his counsel's decision.
State v. Lessley, 118 Wn.2d 773, 781, 827 P.2d 996 (1992).
RCW 9A.52.050.
See State v. Tresenriter, 101 Wn. App. 486, 495-96, 4 P.3d 145, 14 P.3d 788 (2000), review denied, 143 Wn.2d 1010 (2001).
Jones also argues that his attorney's decision not to object prejudiced him by waiving his right to challenge the trial court's offender score calculation on appeal. Because the decision to also punish for burglary rests solely with the trial court, Jones would have no basis for appeal absent an abuse of discretion or misapplication of the law, neither of which were alleged here. Accordingly, Jones was not prejudiced when his attorney reasonably did not preserve his right to challenge the trial court's discretionary offender score decision.
Because we affirm on other grounds, we do not reach the State's argument that both of Jones's convictions would still count toward his offender score even if the trial court had decided against also punishing for the burglary under the burglary antimerger statute.
We affirm.