Opinion
No. 37078-6-II.
March 17, 2009.
Appeal from a judgment of the Superior Court for Mason County, No. 07-1-00415-7, Toni A. Sheldon, J., entered November 15, 2007.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Houghton, J., concurred in by Armstrong and Hunt, JJ.
UNPUBLISHED OPINION
Tony League appeals his judgment and sentence on convictions of first degree robbery and unlawful imprisonment, raising multiple arguments. The State concedes trial court sentencing error. We affirm the convictions but vacate the sentence and remand for resentencing.
FACTS
We derive the facts from the trial evidence.
League and some friends plotted to rob Brandon Robbins under the guise of a marijuana sale. Initially, they planned to sell Robbins fake marijuana, but then they agreed to hold him and take his money.
At the arranged meeting location, League approached Robbins, who gave him $80 for the marijuana. After taking the money, League grabbed Robbins and wrapped his arms around him, or, as League stated, put him in a "full Nelson." Ex. 15 at 3. An accomplice pushed both of them to the ground and started checking Robbins's pockets. League "slammed [Robbins] in the ground when he started to get back up." Ex. 15 at 3. League's accomplices took additional money and a pipe from Robbins's pockets.
The State charged League with first degree robbery and unlawful imprisonment. A jury convicted him as charged. The trial court sentenced him to 60 months for the first degree robbery conviction and 10 months for the unlawful imprisonment conviction. He appeals.
ANALYSIS
League first contends that the State improperly charged him. He asserts that the charging document did not include restraint element subparts, whereas the trial court instructed the jury on them.
The amended information on Count II reads in part: "LEAGUE, did commit UNLAWFUL IMPRISONMENT . . . in that said defendant did knowingly restrain another person, to-wit: Brandon W. Robbins . . . contrary to RCW 9A.40.040 and 9A.40.010(1) and 9A.08.020." Clerk's Papers (CP) at 55.
Jury instruction 18 reads in part: "(2) That such restraint was (a) without the other person's consent, or (b) accomplished by physical force, intimidation, or deception." CP at 45.
A charging document is constitutionally adequate only if it includes all essential elements of a crime. State v. Taylor, 140 Wn.2d 229, 235, 996 P.2d 571 (2000). When, as here, the argument first arises on appeal, we liberally construe the information in favor of validity. Taylor, 140 Wn.2d at 237. The defendant must demonstrate the information lacks an essential element of the crime and that prejudice resulted. State v. Kjorsvik, 117 Wn.2d 93, 105, 812 P.2d 86 (1991). The primary goal of the essential elements rule is to give a defendant notice of the nature of the crime charged for him to prepare a defense. Kjorsvik, 117 Wn.2d at 101.
The State properly charged League. The information included each essential element of unlawful imprisonment and provided a sufficient factual reference that League "knowingly restrain[ed]" Robbins, which mirrors the language of RCW 9A.40.040. Clerk's Papers at 55. The jury instruction simply incorporated the definitional language of RCW 9A.40.010(1); it did not establish additional essential elements. Moreover, League fails to establish prejudice in that he cannot demonstrate that he lacked notice of the nature of the crime or that he could not prepare his defense. League's argument fails.
League also contends that the trial court erred by not merging the first degree robbery and unlawful imprisonment convictions for sentencing. He bases his argument on double jeopardy grounds.
The Fifth Amendment and article I, section 9 of the Washington State Constitution prohibit the State from imposing multiple punishments for the same offense. State v. Adel, 136 Wn.2d 629, 632, 965 P.2d 1072 (1998). We review double jeopardy questions de novo. State v. Freeman, 153 Wn.2d 765, 770, 108 P.3d 753 (2005). We must determine whether the legislature intended to impose multiple punishments for the same offense. In re Pers. Restraint of Orange, 152 Wn.2d 795, 815, 100 P.3d 291 (2004).
League may first raise this constitutional claim on appeal. RAP 2.5(a).
When the legislature does not expressly or implicitly articulate its intent, we turn to the "same evidence" test to determine whether the offenses are the same in law and in fact. State v. Calle, 125 Wn.2d 769, 777-78, 888 P.2d 155 (1995); Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932). Offenses are the same in law if they have identical essential elements and are the same in fact if the proof to sustain one conviction is the same for the other. Blockburger, 284 U.S. at 304. Under the "same evidence" test, League concedes that unlawful imprisonment and first degree robbery do not contain the same elements. RCW 9A.56.200; RCW 9A.40.040. Nevertheless, we must also look to the merger doctrine to determine whether the legislature intended to punish each offense separately when they arise out of a single act. State v. Vladovic, 99 Wn.2d 413, 418-19, 662 P.2d 853 (1983). When the conduct of one offense elevates the degree of the second offense, the offenses merge to avoid double jeopardy. Vladovic, 99 Wn.2d at 419.
In State v. Kier, our Supreme Court held that the legislature did not intend to impose separate punishments for first degree robbery and second degree assault convictions because the threat to use force, or the assault, elevated the robbery to a first degree offense. 164 Wn.2d 798, 805, 194 P.3d 212 (2008). First degree robbery requires the taking of property "by the use or threatened use of immediate force, violence, or fear of injury." RCW 9A.56.190. Here, League inflicted bodily injury by holding Robbins down, which elevated the robbery to a first degree offense. Accordingly, the legislature did not intend to impose separate punishments for both offenses and the convictions must be merged for sentencing purposes.
We affirm the convictions but vacate the sentence and remand for resentencing. A majority of the panel having determined that this opinion will not be printed in the
Because we remand for resentencing, we do not address League's arguments based on trial court error in calculating his offender score and the standard range sentence except to note that the State correctly concedes the error.
We also do not address League's argument that he received ineffective assistance of counsel at sentencing. To prevail on an ineffective assistance of counsel, League must show defective performance that prejudiced him. In re Pers. Restraint of Woods, 154 Wn.2d 400, 420-21, 114 P.3d 607 (2005). Because we remand for resentencing, League cannot establish prejudice.
Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, J. and HUNT, J., concur.