Opinion
No. 25801-7-III.
June 17, 2008.
Appeal from a judgment of the Superior Court for Adams County, No. 06-1-00040-4, Richard W. Miller, J., entered December 11, 2006.
Affirmed by unpublished opinion per Kulik, A.C.J., concurred in by Brown, J., and Thompson, J. Pro Tem.
Martin Purdom appeals convictions of five counts of second degree burglary and one count of attempted burglary. Mr. Purdom contends (1) the evidence was insufficient to convict him of one count of second degree burglary, (2) that the State failed to show that Mr. Purdom knew the buildings he burglarized were abandoned, and (3) that the trial court abused its discretion by not giving him a drug offender sentencing alternative (DOSA) sentence. In his statement of additional grounds for review, Mr. Purdom contends he received ineffective assistance of counsel and was denied his choice of counsel. Concluding that Mr. Purdom's contentions are without merit, we affirm.
FACTS
On April 25, 2005, at approximately 3:30 am, Adams County Deputy Ned Bernath checked on an old, unoccupied house on the property of Alan and Alice Koch. The deputies checked the house because the Kochs had previously reported a burglary. Deputy Bernath observed a red pickup in the driveway, an open back door, and items stacked outside the residence. Deputy Bernath called for backup and, shortly thereafter, Martin Purdom was found hiding in some bushes on the Koch property. Inside Mr. Purdom's jacket were several items later identified by the Kochs.
Mr. Purdom was taken to the Adam's County Sheriff's Office, where he described a shop belonging to Eric Lund and property belonging to James Wahl, and described items he had taken from each property respectively. Mr. Purdom gave a full tape-recorded confession, admitting his involvement in the robbery of the Koch, Lund, and Wahl properties.
Mr. Purdom was charged with two counts of second degree burglary and one count of attempted burglary of a building owned by Eric Lund (counts I, II, III); one count of second degree burglary of property owned by James Wahl (count IV); and two counts of residential burglary of a house owned by Alan and Alice Koch (counts V, VI).
Mr. Purdom waived his right to a jury trial. The court convicted Mr. Purdom as charged on counts I through IV. The court downgraded counts V and VI from residential burglary to second degree burglary because the State did not prove beyond a reasonable doubt that the Koch house, which had been unoccupied since 1994, was a "dwelling" under RCW 9A.04.110(7). Clerk's Papers at 76-78.
At sentencing, Mr. Purdom requested a DOSA sentence, but the State opposed his request. After hearing arguments from both sides, the court denied Mr. Purdom's request for a DOSA sentence and sentenced him to the top of the standard range on all counts.
ANALYSIS
Evidence is sufficient to support a conviction if, when viewed in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). When the sufficiency of the evidence is challenged in a criminal case, all reasonable inferences from the evidence are drawn in favor of the State and interpreted most strongly against the defendant. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977).
Mr. Purdom was convicted of burglary in the second degree on count I. "A person is guilty of burglary in the second degree if, with intent to commit a crime against a person or property therein, he enters or remains unlawfully in a building other than a vehicle or a dwelling." RCW 9A.52.030(1). Also relevant is RCW 9A.52.040, which states: "In any prosecution for burglary, any person who enters or remains unlawfully in a building may be inferred to have acted with intent to commit a crime against a person or property therein, unless such entering or remaining shall be explained by evidence satisfactory to the trier of fact to have been made without such criminal intent."
The Washington Supreme Court has determined that the inference of criminal intent in burglary prosecutions is permissive, not mandatory. State v. Cantu, 156 Wn.2d 819, 826, 132 P.3d 725 (2006). Thus, although a trier of fact may infer criminal intent from a person's unlawful presence in a building, unlawful presence does not relieve the State of its burden to prove criminal intent beyond a reasonable doubt. Id. at 825-26.
Mr. Purdom contends that the State failed to prove criminal intent. Mr. Purdom argues that although he unlawfully entered the Lund shop, his intent on the occasion of count I was to look over the premises in preparation to return at a later date to burglarize the property. He contends under these circumstances he would be guilty of criminal trespass, not burglary.
At trial, the State presented several pieces of evidence tending to show that Mr. Purdom intended to take items from the Lund shop on the night in question. The evidence included: testimony by a detective that Mr. Purdom told him that he and his associate drove to the Lund property in a pickup truck and entered the shop with the intent to take items, but were spooked by a flashing digital clock radio that they thought was an alarm; Mr. Purdom's confession that prior to the incident, he went to the Lund property to see whether there were any good items to take, but left because a farmer spotted him from across the road; the fact that a week after the incident in count I, Mr. Purdom and his associate returned to the Lund property and successfully burglarized the shop; and testimony by Mr. Purdom's associate and the burglary victim corroborating the details of the evening of the incident in count I, as well as the subsequent successful burglary.
Considering the evidence and inferences therefrom in a light most favorable to the State, and recognizing that the trier of fact in a burglary case may make an inference of intent if unlawful presence is established, the State presented sufficient evidence to convict Mr. Purdom on count I.
Next, we review Mr. Purdom's contention that the State had to prove beyond a reasonable doubt that Mr. Purdom knew the buildings were not abandoned. It is a defense to criminal trespass if "[a] building involved in [the] offense . . . was abandoned." RCW 9A.52.090(1).
In City of Bremerton v. Widell, the Washington Supreme Court explained the effect of RCW 9A.52.090. City of Bremerton v. Widell, 146 Wn.2d 561, 570, 51 P.3d 733 (2002). The court stated that "[s]tatutory defenses to criminal trespass negate the unlawful presence element of criminal trespass," and "once a defendant has offered some evidence that his or her entry was permissible[,] . . . the State bears the burden to prove beyond a reasonable doubt that the defendant lacked license to enter." Id.
In State v. J.P. this court determined that Widell permitted a defendant to use an abandonment defense to residential burglary. State v. J.P., 130 Wn. App. 887, 895, 125 P.3d 215 (2005). We explained that "[c]riminal trespass is a lesser included offense to burglary . . . [because] [r]esidential burglary is a criminal trespass with the added element of intent to commit a crime against a person or property therein." Id. Because the unlawful entry component of the burglary statute and the criminal trespass statute are the same, we held that the abandonment defense could be used by defendants in burglary cases. Id.
Mr. Purdom contends that Widell and J.P. dictate that the State was required, in its case-in-chief, to prove beyond a reasonable doubt that he knew the buildings were not abandoned. Such an interpretation misconstrues the approach outlined by the court in Widell. Under Widell, the defendant who asserts the abandonment defense bears the initial burden of production to come forward with evidence to show that the property was abandoned. Widell, 146 Wn.2d at 570. Once the defendant has "offered some evidence" of abandonment, the State must establish beyond a reasonable doubt that the property was not abandoned. Id.
Mr. Purdom did not meet the initial burden of production because the defense did not present any evidence that the buildings were abandoned. At the close of the State's case-in-chief, the defense rested, choosing not to present any evidence or call any witnesses. Thus, the burden never shifted to the State to show that the buildings were not abandoned.
Mr. Purdom next contends that the trial court's denial of his request for a DOSA sentence is an abuse of discretion and violates the "appearance of fairness" doctrine.
"As a general rule, the trial judge's decision whether to grant a DOSA is not reviewable." State v. Grayson, 154 Wn.2d 333, 338, 111 P.3d 1183 (2005) (citing RCW 9.94A.585(1); State v. Bramme, 115 Wn. App. 844, 850, 64 P.3d 60 (2003)). However, when a defendant has requested a State-authorized sentencing alternative like DOSA, it is an abuse of discretion for a trial court to refuse to consider the alterative sentence. Id. at 342. Such an abuse of discretion is subject to reversal. Id.
The "appearance of fairness" doctrine requires that judges not only be impartial, but also appear to be impartial. State v. Ring, 134 Wn. App. 716, 722, 141 P.3d 669 (2006) (citing State v. Brenner, 53 Wn. App. 367, 374, 768 P.2d 509 (1989) overruled on other grounds by State v. Wentz, 149 Wn.2d 342, 68 P.3d 282 (2003)). Under this doctrine, the reviewing court considers whether the reasonably disinterested person would conclude that the proceedings appeared to be unfair. Id.
At sentencing, the judge gave the State and defense counsel an opportunity to argue whether a DOSA sentence was appropriate for Mr. Purdom. The State argued against a DOSA sentence for Mr. Purdom, contending that Mr. Purdom was unfit for the sentencing alternative because he failed to complete a court-ordered 500 hours of drug treatment while serving a 21-month federal sentence; Mr. Purdom admitted during presentencing that drugs were not the cause of his crime; and Mr. Purdom possessed a 27-year history of committing crimes against the community.
Mr. Purdom's counsel argued that Mr. Purdom would benefit from a DOSA sentence because he had been abusing drugs and alcohol his whole life and committed crimes when he used drugs, but that he had not had any meaningful drug treatment in 20 years. Defense counsel also argued that a DOSA sentence was proper because Mr. Purdom's codefendant was offered a DOSA sentence.
After hearing both sides, the trial court denied Mr. Purdom a DOSA sentence and sentenced him to the top of the sentencing range on all counts.
The court's stated reason for not giving Mr. Purdom a DOSA sentence was its belief that, in light of Mr. Purdom's criminal record, the public was best protected if Mr. Purdom was behind bars. Thus, the court considered a DOSA sentence, but permissibly exercised its discretion by denying Mr. Purdom's request.
There is also nothing in the record to indicate that the trial court violated the "appearance of fairness" doctrine by denying Mr. Purdom a DOSA sentence. The trial court heard both sides' arguments regarding DOSA and then properly exercised its discretion to decide that traditional incarceration was preferable to the DOSA sentence. There are no facts that would lead the reasonably disinterested person to believe that the trial court did not appear to be impartial.
STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW
In his statement of additional grounds for review, Mr. Purdom's first contention is that he had ineffective assistance of counsel. Mr. Purdom asserts that his attorney told him that he had an offender score of only 7 or 8 points and indicated to him that he could do better than a plea bargain of 51 months by taking the case to trial. He contends that if he had "known the difference" (that the trial court judge would find his offender score to be 17 and sentence him to 68 months), he would have taken the plea bargain.
Statement of Additional Grounds.
Mr. Purdom's second contention appears to be that his Sixth Amendment right to counsel was violated. He states, "I also asked for a different attorney and they told me no. This guy wouldn't come see [me] until after I asked for a different attorney."
Statement of Additional Grounds.
Mr. Purdom's contention that he received ineffective assistance of counsel is unsupported by the record. Although Mr. Purdom's attorney unsuccessfully argued at the sentencing hearing that he thought Mr. Purdom's offender score was 8 or 9, there is nothing in the record to indicate that his attorney ever told him that he could do better than a 51-month plea bargain. Because this claim is based upon matters outside the record, a personal restraint petition is the appropriate procedure to raise this claim on appeal. However, no such petition was filed. See In re Det. of Broten, 130 Wn. App. 326, 340-41, 122 P.3d 942 (2005). Thus, there is no basis for this court to conclude that Mr. Purdom's counsel was ineffective.
The Sixth Amendment right to counsel includes the defendant's right to be represented by the counsel of his or her choice. State v. Price, 126 Wn. App. 617, 631, 109 P.3d 27 (2005). However, there is nothing in the record to indicate that Mr. Purdom ever requested a different attorney. No motion was filed, and neither Mr. Purdom nor his counsel ever mentioned Mr. Purdom's dissatisfaction with his counsel on the record. Accordingly, the court has no grounds to consider Mr. Purdom's contention that he was denied his choice of counsel.
We affirm Mr. Purdom's convictions.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
BROWN, J., THOMPSON. J. Pro Tem., Concur.