Opinion
No. 54238-9-I
Filed: May 23, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 04-1-09381-0. Judgment or order under review. Date filed: 04/30/2004. Judge signing: Hon. Joan B. Allison.
Counsel for Appellant(s), David Bruce Koch, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), Alice Degen, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
A jury convicted Woodrow Porter of second degree possession of stolen property, first degree theft, and first degree trafficking in stolen property. Porter appeals, contending that the theft and trafficking offenses encompassed the same criminal conduct: pumping gas for people in exchange for money using a stolen gas card. He argues in the alternative that defense counsel was ineffective for failing to raise the same criminal conduct issue and acknowledging that Porter had an offender score based on three separate offenses. Because Porter did not raise the same criminal conduct issue below, and acknowledged the offender score calculation during sentencing, he waived this issue. In addition, there was a legitimate strategic reason for not raising the issue at sentencing. As there is no reasonable likelihood that the sentence would have changed if the issue were raised, Porter did not receive ineffective assistance of counsel. We affirm.
FACTS
On January 16, 2004, the City of Tacoma discovered that an unusually large number of gas transactions had been charged on the `Petrocard' assigned to one of the Tacoma Fire Department's trucks. There were several transactions each day on an almost-daily basis beginning in mid-November 2003. The city confirmed with the fire department and the Petrocard company that the transactions were unauthorized, and Tacoma Police Department detectives were assigned to investigate. Using information from the Petrocard invoice to determine when and where the suspect(s) might be found, detectives set up surveillance at five Seattle area gas stations beginning January 17, 2004. The detectives also used a notification system so they would be paged as soon as the stolen card was used to purchase fuel.
The City of Tacoma issues a `Petrocard' to each of the city's fire trucks for purchasing gasoline. The Petrocard works like a credit card, and the City of Tacoma pays the invoices and then forwards the individual bills to the Tacoma Fire Department for reimbursement. The Petrocard can only be used at certain locations.
For unknown reasons, the notification system failed on January 17, and Porter was not apprehended despite using the Petrocard at one of the monitored locations.
On January 18, detectives were notified that the card was being used at a Marginal Way gas station. They saw a man, later identified as Woodrow Porter, at that station pumping gas into Wangi Mugenyi's semi-truck. Police officers arrested Porter and found the Petrocard in his pocket. The State charged Porter with one count each of second degree possession of stolen property (the Petrocard), first degree theft (gasoline), and first degree trafficking in stolen property (gasoline). At trial, Mugenyi testified that Porter approached him, said he had a discount gas card, and offered to sell him gas for $1.00 per gallon instead of the $1.50 the gas station charged. Mugenyi accepted, and Porter swiped the card and began fueling Mugenyi's truck. The State introduced the `Fuel Summary Report' for the Petrocard showing every transaction between November 14, 2003 and January 18, 2004. The unauthorized transactions totaled over $20,000. A jury found Porter guilty as charged, and the King County Superior Court sentenced him to 14 months in prison.
DISCUSSION
Porter first argues that the trial court erred by sentencing him for both theft and trafficking in stolen property because these two offenses encompassed the same criminal conduct. The State responds that Porter waived the same criminal conduct issue by not raising it below.
Issues not raised at trial may not be raised for the first time on appeal. And although a defendant generally cannot waive a challenge to a miscalculated offender score, there can be a waiver `where the alleged error involves an agreement to facts, later disputed, or where the alleged error involves a matter of trial court discretion.' In State v. Nitsch, we held that `[a]pplication of the same criminal conduct statute involves both factual determinations and the exercise of discretion.' The Sentencing Reform Act (SRA) of 1981 allows the sentencing court to rely on information that is admitted or acknowledged at the time of sentencing. A defendant waives the same criminal conduct issue by failing to raise it below and admitting or acknowledging the offender score calculation during sentencing.
RAP 2.5(a).
In re Goodwin, 146 Wn.2d 861, 874, 50 P.3d 618 (2002).
100 Wn. App. 512, 523, 997 P.2d 1000, review denied, 141 Wn.2d 1030 (2000).
Nitsch, 100 Wn. App. at 519.
In Nitsch, the defendant argued for the first time on appeal that his offender score was miscalculated because his two crimes were the same criminal conduct. But the defendant agreed in his presentence report that his offender score was properly calculated, and we held that this was an implicit admission that his crimes did not constitute the same criminal conduct. We distinguished State v. Anderson, where we permitted the defendant to argue for the first time on appeal that his crimes constituted the same criminal conduct, because the defendant in Anderson did not affirmatively acknowledge his offender score at sentencing.
Id. at 522.
Id.
92 Wn. App. 54, 960 P.2d 975 (1998), review denied, 137 Wn.2d 1016 (1999).
Here, Porter argues for the first time on appeal that his offender score was miscalculated because the theft and trafficking charges encompassed the same criminal conduct. But in his reply to the State's motion for an exceptional sentence and during the sentencing hearing, Porter acknowledged that under the SRA, he would have an offender score of two points for each of his three crimes. Because Porter did not raise the same criminal conduct issue below, and acknowledged that his offender score was correct, Porter waived the issue.
Porter argues in the alternative that his defense counsel was ineffective for failing to argue that the theft and trafficking offenses encompassed the same criminal conduct. We review ineffective assistance of counsel claims de novo, but there is a strong presumption that counsel provided adequate assistance. To establish ineffective assistance of counsel, a defendant must prove that counsel's performance fell below an objective standard of reasonableness and that, but for counsel's deficient performance, the result would have been different. This places a heavy burden on the defendant. If defense counsel's conduct can be characterized as legitimate trial strategy or tactics, it is not ineffective assistance of counsel.
State v. White, 80 Wn. App. 406, 410, 907 P.2d 310 (1995), review denied, 129 Wn.2d 1012 (1996).
State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
State v. Townsend, 142 Wn.2d 838, 843-44, 15 P.3d 145 (2001) (citing In re Personal Restraint of Rice, 118 Wn.2d 876, 888, 828 P.2d 1086, cert. denied, 506 U.S. 958 (1992)).
State v. Jury, 19 Wn. App. 256, 263, 576 P.2d 1302, review denied, 90 Wn.2d 1006 (1978).
State v. Ray, 116 Wn.2d 531, 548, 806 P.2d 1220 (1991) (citing State v. Mak, 105 Wn.2d 692, 731, 718 P.2d 407, cert. denied, 479 U.S. 995 (1986)).
Porter contends this case is similar to State v. McGill. There, the trial court indicated that it wanted to impose an exceptional sentence downward, but incorrectly believed that it lacked the ability to do so. On appeal, we held that defense counsel was ineffective for failing to cite case law that would have allowed the trial court to impose the exceptional sentence. We held that `[a] trial court cannot make an informed decision if it does not know the parameters of its decision-making authority. Nor can it exercise its discretion if it is not told it has discretion to exercise.' But unlike McGill, this case does not involve an erroneous application of the law.
112 Wn. App. 95, 47 P.3d 173 (2002).
Id. at 102.
Nor does anything in the record indicate the trial court was unaware of its decision-making authority or discretion under the same criminal conduct doctrine. In fact, defense counsel's conduct during sentencing is best characterized as legitimate strategy. Defense counsel successfully argued against an exceptional sentence upward by pointing out that the standard sentence alone was a harsh punishment since the State charged the three offenses separately.
The State requested an exceptional sentence of 36 months. Defense counsel argued that this was too much, especially considering that by convicting on two additional charges having little economic impact on the victim, the State has been able to raise the range on the Theft to 3 to 9 months. Then, by the normal operation of the SRA, Mr. Porter's actual sentence will be as much as 14 months in the Department of Corrections. Id.
Moreover, Porter has not demonstrated a reasonable likelihood that the sentence would have been different had defense counsel asked the trial court to exercise its discretion to find the offenses involved the same criminal conduct. The trial court imposed the longest sentence possible under the standard range 14 months. And although it denied the State's motion for an exceptional sentence, the court made it clear how serious it considered Porter's crimes:
RCW 9.94A.510 (sentencing grid).
My comments are not . . . intended to lea[ve] those here today with the impression that this court does not believe that what occurred wasn't very, very serious. It was. It should be punished, and it will be punished. . . . There was a lot of money involved here, well beyond the normal amount. But for all the reasons I have identified, it is appropriate to impose the high end of 14 months.
Because we have determined that there was no error or ineffective assistance, we need not decide whether the theft and trafficking convictions involved the same criminal conduct. We affirm.