Opinion
No. 36881-1-II; 38352-7-II.
March 31, 2009.
Appeal from a judgment of the Superior Court for Grays Harbor County, No. 07-1-00067-7, Gordon Godfrey and David E. Foscue, JJ., entered October 8, 2007, together with a petition for relief from personal restraint.
Judgment affirmed and petition denied by unpublished opinion per Bridgewater, J., concurred in by Van Deren, C.J., and Houghton, J.
UNPUBLISHED OPINION
A jury convicted David W. Thompson of vehicular assault. He challenges his conviction alleging instructional error and ineffective assistance. In a consolidated personal restraint petition he challenges his sentence. We affirm his conviction and deny his petition.
Facts
Thompson was involved in an automobile accident on January 10, 2007. The accident occurred on a straight stretch of Highway 12 in Grays Harbor around midday. The weather and the roadway were clear, but snow and slush had accumulated on the shoulder. A passing motorist observed Thompson's pickup truck traveling at approximately 60 miles per hour steadily drift off the roadway, strike a bicyclist riding on the shoulder, then continue into a power pole.
The bicyclist, Charles Jenkins, was thrown from his bicycle and suffered multiple fractures. Jenkins later testified that he could see the driver and passenger struggling over the wheel and not paying attention to the road. Police found Thompson in the driver's seat severely injured. Thompson's passenger, Jo Ann Bollinger, died at the scene from her injuries. The initial investigation at the scene indicated that Thompson's truck left the road and hit the pole without ever braking.
Thompson was transported to the hospital for treatment. When hospital personnel looked in his pockets for identification, they found a syringe and drug paraphernalia. Thompson told a doctor he had used methamphetamine earlier that morning. A state trooper arrested Thompson that day for vehicular homicide. A blood sample was immediately taken and the analysis showed a methamphetamine concentration of 2.04 milligrams per liter.
The State charged Thompson with vehicular homicide and vehicular assault. Both charges alleged that Thompson was: (1) driving under the influence or affected by drugs; and (2) that he drove with disregard for the safety of others. At the following trial, the jury was unable to reach a verdict on the vehicular homicide charge, but convicted Thompson of vehicular assault under only the "disregard for the safety of others" prong. CP at 52. The trial judge declared a mistrial as to the vehicular homicide charge. The court imposed a standard range sentence on October 8, 2007.
Thompson timely appealed.
Two months after the court sentenced Thompson on his vehicular assault conviction, he entered an Alford plea to vehicular homicide regarding the January 10 accident. Based on his plea, the court sentenced him on January 7, 2008, to a standard range sentence of 116 months plus a community custody range of 18 to 36 months. On September 16, 2008, he filed a CrR 7.8(b) motion to correct judgment and sentence, which the trial court transferred to this court for treatment as a personal restraint petition (PRP). This court consolidated Thompson's PRP with his pending direct appeal. We now consider both matters.
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
Discussion Instructional Error
Thompson contends that a scrivener's error in a definitional instruction warrants reversal of his conviction for vehicular assault. We disagree.
We must first determine if Thompson waived his right to appeal the alleged instructional error by failing to object at trial. A party is required to object to an erroneous instruction in order to afford the trial court the opportunity to correct the error. CrR 6.15(c); State v. Scott, 110 Wn.2d 682, 685-86, 757 P.2d 492 (1988). Failing to object to an instruction may bar review. Scott, 110 Wn.2d at 686. But a party may raise a manifest error of constitutional magnitude for the first time on appeal. RAP 2.5(a)(3). Our Supreme Court has held that challenges to instructions defining essential alternative elements in the vehicular homicide and vehicular assault statutes may be raised for the first time on appeal. See State v. Roggenkamp, 153 Wn.2d 614, 620, 106 P.3d 196 (2005) (addressing challenge to definition of "in a reckless manner" alternative under vehicular homicide statute (RCW 46.61.520) and vehicular assault statute (RCW 46.61.522)).
Constitutional error is presumed to be prejudicial, but a constitutional error is harmless if we are convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of the error. See State v. Ridgley, 141 Wn. App. 771, 779, 174 P.3d 105 (2007) (citing State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986)). "'Parties are entitled to instructions that, when taken as a whole, properly instruct the jury on the applicable law, are not misleading, and allow each party the opportunity to argue their theory of the case.'" Ridgley, 141 Wn. App. at 779 (quoting State v. Redmond, 150 Wn.2d 489, 493, 78 P.3d 1001 (2003)). We review a challenged jury instruction de novo. Ridgley, 141 Wn. App. at 779.
At issue is instruction 6, which defined an element identified in each of the "to convict" instructions for the charges of vehicular homicide and vehicular assault. We consider this instruction in the context in which it was presented. See State v. Hutchinson, 135 Wn.2d 863, 885, 959 P.2d 1061 (1998) (jury is presumed to read instructions in light of all other instructions), cert. denied, 525 U.S. 1157 (1999). The "to convict" instruction for vehicular homicide required the State to prove beyond a reasonable doubt that Thompson (1) on or about January 10, 2007, operated a motor vehicle, (2) that his operation of a motor vehicle proximately caused injury to his identified passenger, "(3) That at the time of causing the injury, the defendant was operating the motor vehicle[:] (a) while under the influence of drugs, or (b) with disregard for the safety of others" ( see CP at 51 (Instruction 4)); (4) the identified passenger died as a proximate result of the injuries; and (5) that this act occurred in Washington. The instruction explained that all elements had to be proved beyond a reasonable doubt, except that (3)(a) and (3)(b) were alternatives, and only one of them had to be so proved.
The "to convict" instruction for vehicular assault similarly required the State to prove that Thompson (1) on or about January 10, 2007, operated a motor vehicle; (2) that his operation of the motor vehicle proximately caused substantial bodily harm to the identified bicyclist; "(3) That at the time David Thompson[:] (a) was under the influence of drugs, or (b) operated the vehicle with a disregard for the safety of others, see CP at 52 (Instruction 5)"; and (4) that this act occurred in Washington. This instruction similarly provided that elements (3)(a) and (3)(b) were alternatives, only one of which need be found beyond a reasonable doubt.
Instruction 6 defined the (3)(a) and (3)(b) alternative elements that appeared in the above "to convict" instructions. It stated:
A person is under the influence or affected by the use of drugs when that person's ability to drive a motor vehicle is lessened in any appreciable degree as a result of the drug.
Disregard for the safety of others means an aggravated kind of negligence or carelessness, falling short of recklessness but constituting a more serious dereliction than ordinary negligence. Operation in a reckless manner means to drive in a rash or heedless manner, indifferent to the consequences. Ordinary negligence is the failure to exercise ordinary care. Ordinary negligence is the doing of some act which a reasonably careful person would not do under the same or similar circumstances, or the failure to do something which a reasonably careful person would have done under the same or similar circumstances. Ordinary negligence in operating a motor vehicle does not render a person guilty of [] Vehicular Homicide.
CP at 52 (emphasis added).
Both parties acknowledge that the last sentence of instruction 6 should have referenced vehicular homicide and vehicular assault, and that the omission of vehicular assault was inadvertent. Thompson argues that the instruction as written is misleading and fails to provide an ascertainable standard for adjudication for vehicular assault. He contends that by not including a reference to vehicular assault in the highlighted sentence above, the instruction implies that ordinary negligence is all that is needed to establish "disregard for the safety of others" as to the vehicular assault charge, and the instruction thereby misled the jury. We disagree.
"Instructions are sufficient if they are supported by substantial evidence, allow the parties to argue their theories of the case, and when read as a whole properly inform the jury of the applicable law." Hutchinson, 135 Wn.2d at 885 (emphasis added). "The jury is presumed to read the court's instructions as a whole, in light of all other instructions. The jury is also to presume each instruction has meaning." Hutchinson, 135 Wn.2d at 885 (citation omitted).
Instruction 6 plainly sets forth what the phrase "disregard for the safety of others" means by describing it as a state of carelessness that lies between "recklessness" and "ordinary negligence," and by then discussing what those terms mean. CP at 52. The instruction's later recognition that ordinary negligence is insufficient to render a person guilty of vehicular homicide in no way detracts from the preceding sentences explaining what "disregard for the safety of others" means. Thompson's assertion — that the instruction's last sentence implies that a less demanding level of dereliction is applicable to vehicular assault than is applicable to vehicular homicide — ignores the other portions of the instruction. We will not assume that the jury ignored the balance of the instruction as Thompson's contention suggests. Hutchinson, 135 Wn.2d at 885. See also State v. Studd, 137 Wn.2d 533, 549, 973 P.2d 1049 (1999).
Moreover, a single instruction to a jury may not be judged in artificial isolation, rather it must be viewed in the context of the entire set of jury instructions. See In re Pers. Restraint of Benn, 134 Wn.2d 868, 922, 952 P.2d 116 (1998). Here, instructions 4 and 5 informed the jury that "disregard for the safety of others" was one of the alternative elements required for the offenses of vehicular homicide and vehicular assault, respectively. CP at 51-52. That was a correct statement of the law. See RCW 46.61.522(1)(c) (vehicular assault); RCW 46.61.520(1)(c) (vehicular homicide). Instruction 6 then defined the elements that were common to both offenses, and its description of "disregard for the safety of others" as carelessness falling between recklessness and ordinary negligence was also a correct statement of the law. See State v. Eike, 72 Wn.2d 760, 765-66, 435 P.2d 680 (1967). Where the instructions taken in their entirety properly state the law, there is no error. Hutchinson, 135 Wn.2d at 885. Cf. Studd, 137 Wn.2d at 549 (even presumptively prejudicial ambiguity created by one instruction can be cured when instructions are considered as a whole). Because the instructions when read together properly stated the law, we find no error.
Although we find no error, we admonish counsel and the trial court to be diligent in drafting and reviewing instructions to avoid similar scrivener's errors in the future.
Ineffective Assistance
Thompson urges that in the event this court concludes he waived his instructional challenge by not objecting to the instructions at trial, defense counsel's failure to so object constitutes ineffective assistance of counsel. He also contends that reasonably effective counsel should have caught the scrivener's error in instruction 6 and brought it to the court's attention.
In order to show ineffective assistance of counsel, the defendant must show (1) that his attorney's performance was deficient and (2) that the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). A defendant is prejudiced when he can show that, but for his counsel's errors, there was a reasonable probability that the trial result would have differed. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
As noted above, due to the nature of Thompson instructional challenge, he is not foreclosed by his failure to object at trial. Also, because we have found no instructional error, there was no basis for counsel to object, and thus his failure to do so was not ineffective assistance.
Personal Restraint Petition
In his personal restraint petition, Thompson contends that the trial court's addition of community custody unlawfully exceeded the statutory maximum sentence permissible for his offense. We disagree.
Thompson relies in part on RCW 9.94A.505(5), which provides that with exceptions not pertinent here, "a court may not impose a sentence providing for a term of confinement or community supervision, community placement, or community custody which exceeds the statutory maximum for the crime as provided in chapter 9A.20 RCW." Division Three cited this statutory provision in vacating a sentence where the term of confinement plus the community custody term exceeded the 120-month maximum sentence possible for the defendant's drug crime. See State v. Zavala-Reynoso, 127 Wn. App. 119, 124, 110 P.3d 827 (2005).
Here, the trial court sentenced Thompson to 116 months — a term at the top of the standard range for his vehicular homicide conviction. The maximum sentence for this class A felony under chapter 9A.20 RCW is life imprisonment. See RCW 46.61.520(2); RCW 9A.20.021(1)(a). The addition of a 36-month term of community custody to a 116-month sentence thus did not exceed the statutory maximum sentence permissible under chapter 9A.20 RCW.
Thompson does not otherwise challenge the trial court's calculation of his 9+ offender score or the resulting standard range of 87 to 116 months.
Thompson contends that the maximum sentence to be considered, however, is the top of the standard sentencing range and cites as support Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). But Blakely does not apply here. Blakely's genesis is succinctly described by our Supreme Court in State v. Evans, 154 Wn.2d 438, 114 P.3d 627, cert. denied, 546 U.S. 983 (2005). Evans explained that the United States Supreme Court has held that every fact (other than the fact of a prior conviction) that increases the defendant's sentence beyond the statutory maximum may be used only if it was proved beyond a reasonable doubt to the trier of fact at trial or admitted by the defendant. Evans, 154 Wn.2d at 441 (citing Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)). Subsequently in Blakely, the Court clarified that the "statutory maximum" referred to in Apprendi was not the maximum sentence authorized by the legislature for the crime but the top of the standard sentencing range. See Evans, 154 Wn.2d at 441-42 (citing Blakely 542 U.S. 296, 124 S. Ct. 2531, 2538). Thompson argues that it is the Blakely interpretation of "statutory maximum" that applies here, and he contends that this statutory maximum was unlawfully exceeded when the trial court added community custody to his high-end standard range sentence.
But Blakely is not relevant in this context because the statutory maximum at issue is that set forth in chapter 9A.20 RCW. See RCW 9.94A.505(5). Moreover, the addition to a sentence of post-incarceration supervision such as community custody or community placement does not trigger Blakely because there is no fact finding involved. Rather, the law dictates the term of such supervision that a sentencing court must impose according to the seriousness and type of the underlying offense. See, e.g., RCW 9.94A.700 (community placement); RCW 9.94A.545 (community custody); see also RCW 9.94A.030(5), (7), (10). As long as the combined total of the period of incarceration imposed and the period of community placement possible does not exceed the statutory maximum for the offense, as set forth in chapter 9A.20 RCW, the sentence is lawful.
Affirmed; personal restraint petition denied.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, J. and VAN DEREN, C.J., concur.