Opinion
No. 58920-2-I.
January 28, 2008.
Appeal from a judgment of the Superior Court for King County, No. 99-1-02480-6, Sharon S. Armstrong, J., entered September 27, 2006.
Affirmed in part and remanded by unpublished per curiam opinion.
Lawrence Martin was resentenced after the Washington Supreme Court remanded his case to the trial court to wash out his juvenile offenses. He now appeals the sentence, contending, as he did unsuccessfully in a prior personal restraint petition (PRP), that two of his current offenses and two prior offenses constitute the same criminal conduct resulting in a lower offender score. He also makes several additional claims pro se. We affirm the sentence, but remand for correction of a scrivener error on the judgment and sentence.
FACTS
Martin was convicted of promotion of prostitution in the second degree, first degree rape, and unlawful imprisonment in 1999. The convictions stem from an incident involving a woman who prostituted for him. Martin apparently became angry because she had not earned enough money. He drove her to a secluded location and ordered her into the trunk of the car. Martin then drove the woman to an apartment where he reportedly raped her. When she screamed, he punched her in the nose. She eventually called the police and was taken to the hospital and treated for a broken nose.
The State charged Martin with second degree promotion of prostitution, first degree rape, and first degree kidnapping. A jury convicted him of second degree promotion of prostitution, first degree rape, and the lesser included offense of unlawful imprisonment. At sentencing, the court calculated an offender score of 9 and sentenced Martin to 318 months for the rape.
On direct appeal, Martin challenged the admission of 404(b) evidence and alleged an improper comment on the evidence by the trial judge and ineffective assistance of counsel. In an unpublished opinion, this court affirmed the conviction. State v. Martin, noted at 103 Wn. App. 1024, (2000). Martin then filed a PRP alleging a different claim of ineffective assistance of counsel. The petition was dismissed. But, Martin filed a second PRP alleging errors in his offender score, including same criminal conduct for two current offenses, same criminal conduct for two prior offenses, inclusion of washed-out juvenile offenses, addition of an extra point for his community custody status, and errors in his credit for time served. The Supreme Court granted the PRP and remanded for resentencingonly on the juvenile offenses; the other claims were denied.
At resentencing, Martin wanted to proceed pro se because of conflict with his appointed counsel. The trial court allowed him to represent himself, but maintained the court-appoint counsel as back-up. Martin asked the court to consider whether the rape and unlawful imprisonment constituted the same criminal conduct. However, the court resentenced Martin based only on a reduction in the offender score for the washed-out juvenile offenses. He received 210 months based on an offender score of seven. Martin now appeals the trial court's failure to determine that two of the current offenses amount to same criminal conduct and two past offenses were also same criminal conduct. He also raises several additional grounds pro se.
DISCUSSION
I. Same Criminal Conduct
Martin claims that two of his current offenses and two prior offenses should constitute the same criminal conduct and lower his offender score. He contends that the trial court was required to revisit the same criminal conduct issues during resentencing, because RCW 9.94A.525(5)(a)(i) mandates that "[t]he current sentencing court shall determine with respect to other prior adult offenses for which sentences were served concurrently or prior juvenile offenses for which sentences were served consecutively, whether those offenses shall be counted as one offense or as separate offenses using the 'same criminal conduct' analysis." The State argues that Martin failed to raise this on his original direct appeal and, therefore, waived the issue.
The State is correct that the issue was not raised in the direct appeal. Further, it was raised in the PRP which resulted in this resentencing. The Supreme Court order remanding Martin's case for resentencing specified that the PRP was granted only as to wash out of juvenile offenses. However, all other aspects of the PRP, including the same criminal conduct issues, were denied. On remand, the trial court only needed to modify Martin's sentence based on the washed-out juvenile offenses. The trial court properly complied with the Supreme Court order and resentenced Martin based on a revised offender score reflecting that his juvenile offenses had washed out. The trial court had no obligation to revisit challenges to the sentence which were already settled law of the case.
While not required to reopen these additional issues, the trial court does have discretion as to whether to revisit issues not raised by the appeal. State v. Barberio, 121 Wn.2d 48, 50-51, 846 P.2d 519 (1993). If the trial court chooses to reconsider an issue not the subject of the original appeal, the appellate court may use its discretion to review the issue as well.Id. RAP 2.5(c)(1). Review of such issues is not mandatory for either the trial court or the appellate court.Barberio, 121 Wn.2d at 51. Unless the trial court considered the issue on remand, the appellant cannot raise an issue in a second appeal. State v. Sauve, 33 Wn. App. 181, 183, 652 P.2d 967 (1982).
The parties disagree about whether the trial court considered the same criminal conduct analysis for the current charges of rape and unlawful imprisonment offenses. Martin requested that the court exercise its discretion to do so. In response, the trial court briefly discussed the issue with him and concluded, "(Inaudible) you're relying on, sir, you're not relying on the elements of the charges, so they are not for Nickel (phonetic) purposes at sentencing the same course of criminal conduct." While we cannot decipher from this comment whether the trial court intended to consider and rule on the same criminal conduct, the new sentence reflects no change in the analysis. At resentencing, the court treated the offenses separately. In so doing, the court reached the same conclusion as both the original sentencing court and the Washington Supreme Court. The claim of same criminal conduct for the current offenses has no merit.
As to the same criminal conduct claims relating to his prior offenses, Martin never raised the issue with the trial court. The trial court clearly never considered the issue, nor will we. We affirm the trial court's sentence.
II. Additional Grounds
A. Miscalculation of Credit for Time Served
When Martin was originally sentenced in October 1999, the trial court gave him 190 days of credit for time served. Martin contends that since he was arrested on March 19, 1999 and sentenced on October 8, 1999, he should have been credited 236 days for time served and 41 days of good time. At resentencing the court did not specify his credit in the judgment and sentence document. Instead, the court allowed for credit for days determined by the King County Jail and Department of Corrections (DOC). But, Martin provides no information about the number of days credited to him by the King County Jail or DOC after his resentencing. The 190 day credit assigned during his original sentencing no longer applies, and we have no evidence of the new credit or its calculation. As a result, we cannot review this complaint.
B. Community Placement and Offender Score
Martin received 12 months of community placement for a 1998 conviction for second degree assault. Since he committed the current offenses while on community placement, he received an extra point in his offender score. RCW 9.94A.525(19). He claims that the offender score that yielded the 12 months of community placement for the prior conviction improperly included his juvenile offenses. According to Martin, if the sentence for the assault conviction had used the correct offender score, he would not have been on community placement when he committed his current offenses. Because he should not have been on community placement when he committed his current offenses, Martin contends that he should not have received the extra point in his offender score.
The record shows no evidence that Martin ever challenged the validity of the prior sentence. Any errors in calculating the offender score for the assault should have been timely appealed as they related to that sentence. Martin cannot collaterally attack that sentence since more than one year has elapsed since the judgment became final. RCW 10.73.090. In re Pers.Restraint of Skylstad, 160 Wn.2d 944, 948, 162 P.3d 413 (2007). The sentence stands. Therefore, regardless of whether the prior assault conviction resulted in a proper sentence, Martin was on community placement at the time he committed the current offenses. He properly received the extra point in his offender score for commission of the crimes while on community placement.
C. Speedy Trial Violation
Martin alleges that his speedy trial rights were violated because he was arrested on March 19, 1999 but his trial did not begin until May 25, 1999. Since Martin was in custody, his trial needed to commence within 60 days of his arraignment. CrR 3.3(b)(1)(i) and CrR 3.3(c)(1). Martin's arraignment occurred on March 26, 1999, less than 60 days before his trial began. Based on these dates, his speedy trial rights were not violated.
D. Merger Doctrine
Martin contends that his convictions for first degree rape and unlawful imprisonment should merge. The merger doctrine is "a doctrine of statutory interpretation used to determine whether the Legislature intended to impose multiple punishments for a single act [that] violates several statutory provisions."State v. Slemmer, 48 Wn. App. 48, 56, 738 P.2d 281 (1987). Merger prevents unnatural elevation of the crime charged. It is relevant only when a crime is "elevated to a higher degree by proof of another crime proscribed elsewhere in the criminal code." State v. Rivera, 85 Wn. App. 296, 301-302, 932 P.2d 701 (1997) (quoting State v. Eaton, 82 Wn. App. 723, 730, 919 P.2d 116 (1996)).
Martin's convictions do not merge because first degree rape does not require proof of unlawful imprisonment. First degree rape requires proof of use or threat of deadly force, serious physical injury, felonious entering of a building or vehicle, or kidnapping. RCW 9A.44.040(1). Kidnapping — not unlawful imprisonment — elevates a rape charge to first degree. Since the jury did not convict Martin of kidnapping, the kidnapping could not have served as the basis for the first degree rape conviction. Indeed, the first degree rape charge stemmed from the infliction of serious physical injury, not kidnapping. The two charges do not merge.
E. Ineffective Assistance of Counsel and Right to Counsel
Martin contends that he suffered from a deprivation of conflict-free counsel and ineffective assistance of counsel. At resentencing, Martin unequivocally expressed his desire to represent himself because of conflict with his court-appointed counsel. "I would like to fire my counsel and proceed pro se with him as backup counsel. We have argued over here since I've gotten here. This man is not acting as my advocate." After listening to the trial court's concerns with this request, Martin reiterated his desire to represent himself. "I would like to retain him as backup counsel, but my feelings with him and my first impression of him, he is not my advocate." The trial court acquiesced. Martin continued pro se, only asking his backup counsel if he missed any issues.
While Martin told the court that he had concerns about his counsel, he did not ask the court to determine a conflict or ineffective assistance of counsel. Martin fired his counsel, so we have little record of their interactions other than Martin's allegations of conflict and ineffectiveness. The court made no findings or rulings pertaining to the counsel's representation. Therefore, other than Martin's allegations, we have no evidence of deficiency or serious conflict. Without deficiency or prejudice Martin cannot prove ineffective assistance. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). Without evidence of actual conflict he cannot show deprivation of representation.State v. Stenson, 132 Wn.2d 668, 734, 940 P.2d 1239 (1997). Martin made an unequivocal request to represent himself, even after the court urged him to reconsider. He cannot now complain about his exercise of this right. State v. Fritz, 21 Wn. App. 354, 360, 585 P.2d 173 (1978).
F. Special Finding of Sexual Motivation
On Martin's new judgment and sentence, the trial court marked the box for a special finding or verdict of sexual motivation for the unlawful imprisonment count. But, the original judgment and sentence did not include the special finding of sexual motivation. Under RCW 9.94A.835, a finding of sexual motivation requires a special allegation by the State and a specific finding by the jury or court. The original charges were tried to a jury. The State did not allege sexual motivation and the jury did not render a special verdict. The trial court did not make any mention of sexual motivation during resentencing, and the inclusion of sexual motivation does not appear to have affected the sentence. We can only conclude that this was a scrivener's error which requires remand for correction. Upon remand, the trial court need only remove the sexual motivation special finding from the judgment and sentence.
We affirm the sentence of the trial court, but remand for removal of the sexual motivation designation pertaining to the unlawful imprisonment.