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State v. Mayberry

The Court of Appeals of Washington, Division One
Mar 19, 2007
137 Wn. App. 1042 (Wash. Ct. App. 2007)

Opinion

No. 57034-0-I.

March 19, 2007.

Appeal from a judgment of the Superior Court for King County, No. 04-1-14583-6, Julie Spector, J., entered September 30, 2005.

Counsel for Appellant(s), Oliver Ross Davis, Washington Appellate Project, Seattle, WA.

Counsel for Respondent(s), Sean Patrick O' Donnell, King Co Courthouse, Seattle, WA, 98104-2362.


Affirmed by unpublished per curiam opinion.


An error in an offender score is harmless if it does not affect the standard range and the record indicates the sentencing court would have imposed the same sentence regardless of the error. Because any error in the calculation of Michael Mayberry's offender score did not affect his standard range, and because we are confident the court would impose the same sentence even in the absence of the alleged error, we affirm Mayberry's sentence for eleven counts of forgery. Because we reject Mayberry's pro se arguments regarding prosecutorial vindictiveness, we affirm his convictions.

State v. Argo, 81 Wn. App. 552, 569, 915 P.2d 1103 (1996) (although trial court erroneously scored defendant as 16 rather than 13, error was harmless because standard range did not change); State v. Van Buren, 123 Wn. App. 634, 650-51, 98 P.3d 1235 (2004).

DECISION

Mayberry contends his offender score, which the court calculated at 16, was miscalculated because some of the forgeries were the same criminal conduct. He conceded at sentencing, however, that his score was at least 9, and he proposed the same standard range ultimately utilized by the court. Thus, any error in the offender score did not affect the standard range. In addition, a review of the record leaves no doubt that the court's sentence would have been the same even with an offender score of nine. After noting that the State had elected not to charge "every single check that he attempted to pass or did successfully pass," the court stated:

Report of Proceedings (RP) (Sept. 30, 2005) at 17.

And, frankly, Mr. Mayberry, you're lucky I don't run this consecutively. Because you're looking at so much time on the assault I, you're essentially getting all of these crimes, all of these forgeries for free. . . . Had the State not asked for concurrent time, I would have, you know, easily run it consecutively."

RP (Sept. 30, 2005) at 17.

We have no doubt the sentencing court would have imposed the same sentence had Mayberry's offender score been 9 instead of 16. Accordingly, we need not reach Mayberry's offender score argument because any error was harmless.

Even if we were to reach the argument, however, we would reject it. Under RCW 9.94A.589(1)(a), offenses involve the same criminal conduct only if they share the same criminal intent, are committed at the same time and place, and involve the same victim. If any one of these elements is missing, the offenses must be individually counted toward the offender score. The statute is narrowly construed to disallow most assertions of same criminal conduct, and the trial court has broad discretion in making a same criminal conduct determination.

State v. Garza-Villarreal, 123 Wn.2d 42, 47, 864 P.2d 1378 (1993).

State v. Palmer, 95 Wn. App. 187, 190-91, 975 P.2d 1038 (1999).

State v. Haddock, 141 Wn.2d 103, 110, 3 P.3d 733 (2000).

In this case, the forgeries occurred at eleven different stores at eleven different times. In addition, each offense involved a separate intent. Under the circumstances, we cannot say the court abused its discretion in concluding that the offenses were not the same criminal conduct.

See generally State v. Lessley, 118 Wn.2d 773, 827 P.2d 996 (1992); State v. Stockmyer, 136 Wn. App. 212, 148 P.3d 1077 (2006); State v. Young, 97 Wn. App. 235, 984 P.2d 1050 (1999); State v. Henderson, 64 Wn. App. 339, 824 P.2d 492 (1992); State v. King, 47 Wn. App. 38, 733 P.2d 568 (1987); State v. Calloway, 42 Wn. App. 420, 711 P.2d 382 (1985).

In a pro se "Statement of Additional Grounds for Review," Mayberry contends the prosecutor's decision to add the forgery charges to his pending theft charge amounted to retaliation for the exercise of his right to go to trial on an unrelated assault. According to Mayberry, the forgery counts were added after his first assault trial ended in a hung jury and negotiations involving the assault, forgery, and theft charges broke down. These allegations do not make out a prima facie case of prosecutorial retaliation or vindictiveness.

Prosecutorial vindictiveness occurs when the State increases the charges against a defendant in retaliation for exercising his or her constitutional rights.

State v. Bonisisio, 92 Wn. App. 783, 790, 964 P.2d 1222 (1998).

"But an initial charging decision does not freeze prosecutorial discretion," and there is no presumption of prosecutorial vindictiveness when the State amends charges in a pretrial setting. The defendant bears the burden of proving either "`(1) actual vindictiveness, or (2) a realistic likelihood of vindictiveness which will give rise to a presumption of vindictiveness.'"

Bonisisio, 92 Wn. App. at 790.

Bonisisio, 92 Wn. App. at 791.

Bonisisio, 92 Wn. App. at 791 (quoting U. S. v. Wall, 37 F.3d 1443, 1447 (10th Cir. 1994)).

There is no showing here of either actual or presumptive vindictiveness. Although the record confirms the timing of the amendment, nothing in the record supports Mayberry's allegations regarding the nature of negotiations occurring around the time of the amendment. Moreover, it is well settled that filing additional charges after a failed negotiation does not, without more, amount to vindictiveness.

Mayberry's allegations as to specific negotiations are matters outside the record on appeal and are not properly before this court.

See State v. Korum, 157 Wn.2d 614, 629-36, 141 P.3d 13 (2006).

Mayberry seems to contend that retaliation is demonstrated by the fact that the forgeries were merely "incidental" to the theft count. He contends the forgeries were "not separate in action, motive or even victim" from the theft charge. But Mayberry overlooks the fact that a forgery is proved on the mere presentation of the forged check, whether or not money is obtained, while a completed theft requires proof that the defendant actually obtained property belonging to another. The two offenses are therefore distinct; therefore, Mayberry's argument fails.

See State v. Barton, 28 Wn. App. 690, 695, 626 P.2d 509 (1981); State v. Goodlow, 27 Wn. App. 769, 773, 620 P.2d 1015 (1980).

AFFIRMED.


Summaries of

State v. Mayberry

The Court of Appeals of Washington, Division One
Mar 19, 2007
137 Wn. App. 1042 (Wash. Ct. App. 2007)
Case details for

State v. Mayberry

Case Details

Full title:THE STATE OF WASHINGTON, Respondent, v. MICHAEL LAVELL MAYBERRY, Appellant

Court:The Court of Appeals of Washington, Division One

Date published: Mar 19, 2007

Citations

137 Wn. App. 1042 (Wash. Ct. App. 2007)
137 Wash. App. 1042