Opinion
No. 25306-6-III.
October 25, 2007.
Appeal from a judgment of the Superior Court for Benton County, No. 06-1-00407-1, Carrie L. Runge, J., entered June 7, 2006.
Affirmed by unpublished opinion per Brown, J., concurred in by Schultheis, A.C.J., and Kulik, J.
Initially, Daniel Soto was charged with one count of violating a no-contact order ( SOTO I) after a series of phone calls extending over two months. He turned down a plea offer not to file similar violations. The State filed eight new charges in a new case ( SOTO II). SOTO I was reversed on appeal. Mr. Soto was convicted in SOTO II. Now, Mr. Soto's appeal raises claims of ineffective assistance of counsel, prosecutorial vindictiveness, and double jeopardy. We reject Mr. Soto's claims, and his additional grounds for review. Accordingly, we affirm.
FACTS
Mr. Soto was ordered not to have contact with his estranged wife, Glenda Moreno, for two years after a 2005 domestic violence assault conviction. Throughout January 2006 and into February 2006, Mr. Soto left 35 vulgar and threatening messages on Ms. Moreno's cell phone. In SOTO I, the State charged Mr. Soto with one violation of a no-contact order based on a message left in February, but when Mr. Soto turned down a plea offer, the State filed a new case with eight similar counts for events occurring in January 2006. SOTO I was reversed on appeal based on conceded error, but later Mr. Soto apparently entered a guilty plea in that case.
Prior to trial on SOTO II, defense counsel notified the court that a pretrial hearing would be necessary because Mr. Soto believed the current eight charges "were merged or precluded by a prior prosecution." Report of Proceedings (RP) (April 19, 2006) at 3. Mr. Soto, pro se, then filed a motion for dismissal on double jeopardy principles. This motion was returned as "non-fileable." Clerk's Papers (CP) at 86. Then his appointed counsel raised the double jeopardy issue, filed Mr. Soto's pro se motion, and informed the court this issue would have to be briefed and dealt with. On the day before trial, defense counsel filed a motion for mandatory joinder. We do not know the disposition of the joinder motion.
The State offered to withdraw seven of the eight violation charges in SOTO II, if Mr. Soto agreed to proceed to a stipulated facts trial on one count. He refused.
During trial, the State offered a tape recording of all 35 messages without defense objection. Before the tape was played, defense counsel questioned Ms. Moreno about apparently inconsistent time and date stamps. In closing arguments, defense counsel stressed the point that the calls were not in chronological order. Mr. Soto did not deny the calls, but he defended on the basis that the calls were not made with knowledge and were not willful. Mr. Soto argued his belief that Ms. Moreno had requested termination of the no-contact order. The jury found Mr. Soto guilty of all eight counts. He appealed.
ANALYSIS A. Ineffective Assistance of Counsel
Mr. Soto contends he was denied effective assistance of counsel because his counsel failed to request dismissal based on the mandatory joinder rule and failed to object to allowing all 35 messages to be played for the jury.
Ineffective assistance of counsel claims require showing both deficient performance and resulting prejudice. State v. Turner, 143 Wn.2d 715, 730, 23 P.3d 499 (2001). Deficient performance falls "below an objective standard of reasonableness based on consideration of all the circumstances." State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). Prejudice results if the record shows a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). "[S]crutiny of counsel's performance is highly deferential and courts will indulge in a strong presumption of reasonableness." Thomas, 109 Wn.2d at 226. If counsel's conduct can be characterized as legitimate trial strategy, it cannot provide a basis for a claim of ineffective assistance of counsel. State v. Aho, 137 Wn.2d 736, 745, 975 P.2d 512 (1999).
Under the mandatory joinder rule, two or more offenses must be joined if they are related. CrR 4.3.1(b)(3). Offenses are related if they are within the jurisdiction and venue of the same court and are based on the "same conduct." CrR 4.3.1(b)(1). "Same conduct" is conduct that involves a single criminal incident or episode. State v. Lee, 132 Wn.2d 498, 503, 939 P.2d 1223 (1997). Dismissal may be warranted if new charges stem from the same conduct. CrR 4.3.1(b)(3).
Mr. Soto argues trial defense counsel failed to raise double jeopardy, but the motion was filed the day before trial. And, related issues of merger, joinder, and double jeopardy were repeatedly raised as well. Thus, Mr. Soto fails to show deficient performance. Therefore, we do not reach prejudice. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
Next, Mr. Soto argues defense counsel's performance was deficient because he failed to object to the introduction of all 35 messages. "The decision of when or whether to object is a classic example of trial tactics. Only in egregious circumstances, on testimony central to the State's case, will the failure to object constitute incompetence of counsel justifying reversal." State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989). Here, defense counsel tactically challenged Ms. Moreno's credibility and the evidence by suggesting she altered the time and date stamps. Defense counsel strategically raised this issue before trial, during trial, and argued the inconsistency in closing argument. The strategic and tactical decisions of Mr. Soto's trial counsel do not show deficient performance.
Given our analysis, Mr. Soto fails to show ineffective assistance of counsel.
B. Prosecutor Conduct
The next issue is whether Mr. Soto's due process rights were violated because the State acted vindictively in filing SOTO II after he refused to plead guilty in SOTO I.
"Prosecutorial vindictiveness occurs when 'the government acts against a defendant in response to the defendant's prior exercise of constitutional or statutory rights.'" State v. Korum, 157 Wn.2d 614, 627, 141 P.3d 13 (2006) (quoting United States v. Meyer, 810 F.2d 1242, 1245 (D.C. Cir. 1987)). There are two kinds of prosecutorial vindictiveness: actual and presumptive. Id. Adding additional charges does not amount to actual vindictiveness nor amount to a presumption of vindictiveness unless "a defendant can prove that 'all of the circumstances, when taken together, support a realistic likelihood of vindictiveness.'" Korum, 157 at 627 (quoting Meyer, 810 F.2d at 1246). Courts have "emphatically rejected the notion that filing additional charges after a defendant refuses a guilty plea gives rise to a presumption of vindictiveness." Korum, 157 Wn.2d at 629.
Prosecutorial vindictiveness does not occur "from the rough and tumble of legitimate plea bargaining." State v. Lee, 69 Wn. App. 31, 35, 847 P.2d 25 (1993). The State's sharp bargaining does not make the process unfair in a constitutional sense, or raise a presumption of vindictiveness. Moreover, the new counts were raised in an entirely new case and were tried separately. And, the State offered a second deal prior to trial in SOTO II, agreeing to drop seven charges if Mr. Soto agreed to a stipulated facts trial for a single count, but he refused.
In sum, Mr. Soto fails to show "'a realistic likelihood of vindictiveness.'" Korum, 157 Wn.2d at 627 (quoting Meyer, 810 F.2d at 1246). Thus, we reject his due process claim.
C. Double Jeopardy
The next issue is whether Mr. Soto's prosecution and conviction in SOTO II violate double jeopardy principles. Mr. Soto urges us to adopt a transactional view which we reject in favor of adherence to prior case law.
Both the state and federal constitutions protect a person from being twice put in jeopardy for the same offense. U.S. Const. amend. V; Wash. Const. art. I, § 9. "[O]ffenses are not constitutionally the same if there is any element in one offense not included in the other and proof of one offense would not necessarily prove the other." State v. Trujillo, 112 Wn. App. 390, 410, 49 P.3d 935 (2002). Washington uses the same evidence rule. State v. Womac, 160 Wn.2d 643, 652, 160 P.3d 40 (2007). "'[T]he defendant's double jeopardy rights are violated if he or she is convicted of offenses that are identical both in fact and in law.'" Id. (quoting State v. Calle, 125 Wn.2d 769, 777, 888 P.2d 155 (1995)).
The charges in SOTO I stemmed from a February message left on Ms. Moreno's cellular phone, but the charges in SOTO II stem from messages left in January. Proof of a February violation would not be necessary to prove the January violations. Further, two offenses are not the same in fact when the first one is over before the second one is committed. In re Pers. Restraint of Fletcher, 113 Wn.2d 42, 49, 776 P.2d 114 (1989). Because different facts support each conviction, Mr. Soto cannot establish the same-in-fact prong of the same evidence test. Thus, his double jeopardy argument fails.
Mr. Soto invites us to adopt a "same transaction test," similar to Oregon's where a second prosecution is the same offense if the charges arise out of the same act or transaction. State v. Brown, 262 Ore. 442, 497 P.2d 1191, 1198 (1972). Our Supreme Court rejected this test in State v. Roybal, 82 Wn.2d 577, 583, 512 P.2d 718 (1973). And, the Womac court specified, "Washington follows the 'same evidence' rule." Womac, 160 Wn.2d at 652. Accordingly, we decline Mr. Soto's invitation.
Mr. Soto's statement of additional grounds for review presents issues adequately raised by his appellate counsel and precluded by RAP 10.10(a), except his argument that the State improperly delayed production of a video tape for defense review. A defendant claiming prosecutorial misconduct must show that the prosecutor's conduct was both improper and prejudicial. State v. Stenson, 132 Wn.2d 668, 718, 940 P.2d 1239 (1997). Because the video was not offered or admitted at trial, Mr. Soto cannot show prejudice.
Affirmed.
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.
SCHULTHEIS, A.C.J., KULIK, J., Concur.