Opinion
No. 60198-9-I.
November 10, 2008.
Appeal from a judgment of the Superior Court for Skagit County, No. 03-1-00690-3, Susan K. Cook, J., entered June 14, 2007.
Affirmed in part and remanded by unpublished per curiam opinion.
UNPUBLISHED OPINION.
Rayne Dee Wells, Jr. appeals his resentence of 150 months for first-degree robbery and second-degree assault, claiming that the court erred in its calculation of his offender score, because certain convictions in his criminal history constituted the same criminal conduct. We affirm, but remand solely to correct the offender score stated in the judgment and sentence.
FACTS
Rayne Dee Wells, Jr. was found guilty of two counts of second-degree assault and one count of first-degree robbery in August 2004. Based on an offender score of 18, the court sentenced Wells to 84 months for the two counts of second-degree assault and 171 months for the first-degree robbery, to run concurrent with each other. Wells appealed his convictions, but did not appeal the calculation of his offender score. This court reversed one of the assault convictions, because the assault and robbery of the same victim merged, and remanded for resentencing.State v. Wells, 133 Wn. App. 1006, 2006 WL 1462788 (2006). The Washington State Supreme Court denied review. State v. Wells, 159 Wn.2d 1017, 157 P.3d 404 (2007) (cert denied, 128 S. Ct. 251, 169 L.Ed.2d 184 (2007).
The resentencing hearing was set for May 24, 2007, at which time Wells filed a brief requesting that the court redetermine his criminal history. The court continued the hearing in order for the State to gather criminal history and file a brief.
Wells argued that several of his prior convictions should not factor into his offender score based on the same criminal conduct principle as articulated in RCW 9.94A.589(1)(a). Specifically, Wells argued that the following convictions constituted the same criminal conduct: all convictions under Douglas County Cause No. 01-1-00070-9 (one count of forgery and two counts of second-degree theft); all convictions under San Juan County Cause No. 00-1-05037-0 (possession of marijuana with intent to deliver and second degree unlawful possession of a firearm); and all convictions under Snohomish County Cause No. 04-1-00732-6 (first degree possession of stolen property and attempting elude).
The State claimed that none of the prior convictions cited by Wells constituted the same criminal conduct. The State contended that Wells' offender score was 16: one point for each of the 15 past convictions, and one point for being on community custody at the time of offense. The court agreed that Wells' offender score was 16, and that none of the prior convictions constituted the same criminal conduct. The court sentenced Wells to 150 months (150 months for Count I, second-degree assault, and 84 months for Count II, first-degree robbery, to run concurrently), and community custody of 18-36 months for both counts.
The initial offender score was 18, because of the assault and robbery charges that subsequently were recognized as merged with other offenses.
ANALYSIS
The trial court has discretion to make factual determinations as to whether convictions constitute the same criminal conduct. State v. Haddock, 141 Wn.2d 103, 110, 3 P.3d 733 (2000). When two or more crimes require the same criminal intent, are committed at the same time and place, and involve the same victim, they constitute the same criminal conduct and the sentencing court must count them as one offense when computing the defendant's criminal history at sentencing. RCW 9.94A.589(1)(a). This concept is narrowly construed, and the court will not find the same criminal conduct if any of the three elements is missing. State v. Porter, 133 Wn.2d 177, 181, 942 P.2d 974 (1997); State v. Saunders, 120 Wn. App. 800, 824, 86 P.3d 232 (2004). The trial court focuses on the extent to which the criminal intent, objectively viewed, changed from one crime to the next. State v. Dunaway, 109 Wn.2d 207, 215, 743 P.2d 1237 (1987). "'A trial court's determination of what constitutes the same criminal conduct will . . . not be reversed absent an abuse of discretion or misapplication of the law.'" State v. Tili, 139 Wn.2d 107, 122, 985 P.2d 365 (1999) (quoting State v. Walden, 69 Wn. App. 183, 188, 847 P.2d 956 (1993)).
I. Law of the Case
The State contends that Wells is precluded from challenging his offender score upon remand for resentencing, because he did not challenge it during the first sentencing or in his first appeal. The State citesState v. Wilson, 117 Wn. App. 1, 75 P.3d 573 (2003), in support. But in that case, we stated that the appellant waived his right to make the argument on appeal, because he had "failed to challenge the calculation of his offender score below and did not request the court make a 'same course of criminal conduct' determination at sentencing." Id. at 21 (emphasis added). Here, upon remand from this court for resentencing, Wells specifically asked the trial court to make a same criminal conduct determination.
The State also argues that the "law of the case" doctrine should apply, because Wells did not initially appeal his offender score, and because there is no substantial change in the evidence. See Folsom v. County of Spokane, 111 Wn.2d 256, 263, 759 P.2d 1196 (1988); State v. Bailey, 35 Wn. App. 592, 594, 668 P.2d 1285 (1983).
Even if Wells had not asked the trial court to conduct the same criminal conduct analysis, this court could still consider it. RAP 2.5(c)(1). RAP 2.5(c)(1) provides:
(c) Law of the Case Doctrine Restricted. The following provisions apply if the same case is again before the appellate court following a remand:
(1) Prior Trial Court Action. If a trial court decision is otherwise properly before the appellate court, the appellate court may at the instance of a party review and determine the propriety of a decision of the trial court even though a similar decision was not disputed in an earlier review of the same case.
The Supreme Court addressed the scope of RAP 2.5(c)(1) in State v. Barberio, 121 Wn.2d 48, 50, 846 P.2d 519 (1993), explaining that: "Only if the trial court, on remand, exercised its independent judgment, reviewed and ruled again on such issue does it become an appealable question. . . . Clearly the rule is permissive for both the trial court and the appellate court." A determination of the same criminal conduct requires a trial court to exercise its independent judgment. Wells raised the issue of the same criminal conduct on remand and the trial court ruled upon it. Review of the trial court's determination of the same criminal conduct is properly before this court.
II. Burden of Showing Same Criminal Conduct
Wells argues that the court improperly placed the burden on him to prove the same criminal conduct. Wells correctly notes that the sentencing court has an affirmative duty to determine whether the prior offenses shall be counted as one offense or as separate offenses using the same criminal conduct analysis under RCW 9.94A.589(1)(a). The State has the burden of proving criminal history by a preponderance of the evidence under RCW 9.94A.500. The State offered certified copies of all of Wells' past convictions. Wells points out that the trial judge incorrectly articulated the burden when she said, "I'm assuming the defense has the burden of proving same criminal conduct." However, the court did not actually place the burden of proving same criminal conduct on Wells. If Wells had not contested the score on the grounds of the same criminal conduct, the State would have met its burden. It had established on the record the existence and the classification of the convictions relied on in calculating the offender score. State v. Ford, 137 Wn.2d 472, 480, 973 P.2d 452 (1999). The court merely asked Wells to respond and argue the same criminal conduct issue. The trial court did not improperly place the burden on Wells to prove the same criminal conduct.
III. Same Criminal Conduct
Wells argues that the following three cause numbers contained convictions that constituted the same criminal conduct. A. Douglas County Cause No. 01-1-00070-9
Although Wells' brief presents the correct law to determine whether prior convictions constitute the same criminal conduct, it does little to apply the law to the facts of Wells' convictions.
This cause number involved forgery and theft. Count I, which occurred on July 12, 2000, was for forging checks in the account of John Koonan, Count II was for theft of a pit bull belonging to Linda Logan on July 20, 2000, and Count III was for theft of other personal property belonging to Logan on July 21, 2000. While Count II and Count III were against the same victim, they happened at different times.
Wells has not provided argument, specifically, on why the Douglas County convictions constitute the same criminal conduct.
In State v. Prince, 103 Wn. App. 845, 856 14 P.3d 841 (2000), two first-degree assaults constituted separate and distinct criminal conduct where the defendant shot at the victim, got in his car, pursued the victim, and shot at him a second time a few miles away. If mere minutes are sufficient to constitute separate criminal conduct against the same victim with the same criminal intent, two counts of theft on different days, although with the same criminal intent and involving the same victim, do not constitute same criminal conduct. The trial court did not abuse its discretion when it found that these crimes did not constitute same criminal conduct.
B. San Juan County Cause No. 00-1-05037-0
In September of 2000, Wells was charged with possession of marijuana with intent to deliver and second-degree unlawful possession of a firearm. The court found that these crimes did not constitute same criminal conduct, because:
[T]he mental element of the offenses is different, it is conceivable that the firearm was possessed in order to facilitate the delivery of drugs. But, the controlled substance violation is with intent to deliver marijuana, possessed marijuana and the firearm is merely a possession offense, under that an element is knowing, they are just not the same criminal conduct.
Case law interpreting the "same criminal intent" language in RCW 9.94A.589(1)(a) distinguishes it from the mens rea element of the particular crime involved: "[i]ntent, in this context, is not the particular mens rea element of the particular crime, but rather is the offender's objective criminal purpose in committing the crime." State v. Adame, 56 Wn. App. 803, 811, 785 P.2d 1144 (1990). In State v. Adame, the appellant argued that the convictions for possession of controlled substances and unlawful possession of a short firearm constituted the same criminal conduct. Id. at 809. The court reasoned that the purpose of possessing drugs is to use or sell them, whereas the purpose of possessing a short firearm is less clear. Id. at 811. Because the facts did not support an implication that the possession of the firearm furthered his possession of cocaine, the crimes did not constitute the same criminal conduct. Id.
Similarly, the facts here do not support an implication that Wells' pistol furthered his possession of marijuana. Students of Orcas High School reported that Wells and another man had arrived on campus to sell marijuana, as they had the day before. As the two men drove their truck out of the school parking lot, deputies stopped them and found marijuana in the cab. Wells' pistol was discovered in the bed of his pick-up truck in a laundry bag. Nothing else in the record suggests the firearm possession furthered the intent to deliver marijuana. Under RCW 9.94A.589(1)(a), possessing marijuana and possessing a handgun suggest distinct objective criminal purposes. Even though the trial court conflated the traditional definition of mens rea with the criminal intent that RCW 9.94A.589(1)(a) contemplates, any error was harmless, because the court's conclusion was nevertheless sound. The trial court did not abuse its discretion in finding that Wells' possession of a firearm did not further his possession of marijuana with intent to deliver.
C. Snohomish County Cause No, 04-1-00732-6
Wells was charged with first-degree possession of stolen property and attempting to elude.
The trial court's decision is consistent with State v. Webb, 112 Wn. App. 618, 624, 50 P.3d 654 (2002), where this court found that a defendant's actions on the same day, including taking a motor vehicle without permission (TMVWOP), robbery, and an attempt to elude were not the same criminal conduct. Each of the three crimes had different victims: the victims of the robberies were the clerks of the two stores robbed, the victim of the TMVWOP was the owner of the stolen car, and the victims of the elude were the pursuing troopers and the civilians endangered by Webb's weaving in and out of traffic at high speed. Id.
The same reasoning applies to the case at hand. The trial court found that these crimes did not constitute the same criminal conduct, reasoning that the victim of the stolen property was the rightful owner, whereas the victim of the attempt to elude was the community at large. The court did not abuse its discretion in determining that these crimes did not constitute the same criminal conduct.
Even if the above mentioned crimes were to constitute same criminal conduct, Wells' offender score would have dropped from 15 to 9, and the sentencing grid ends at 9 or more. RCW 9.94A.510. The applicable standard range would be unchanged and Wells was sentenced within the standard range. Therefore, any error would be harmless. State v. Fleming, 140 Wn. App. 132, 138, 170 P.3d 50 (2007), review denied, 163 Wn.2d 1047, 187 P.3d 750 (2008) ("A trial court may determine that nine convictions exist and then stop calculating, so long as the court is not considering the imposition of an exceptional sentence based on reasons related to the offender score. Where the standard sentence range is the same regardless of a recalculation of the offender score, any calculation error is harmless.") (citations omitted).
STATEMENT OF ADDITIONAL GROUNDS
I. Affidavit of Prejudice
Wells contends that the trial court erred in denying his affidavit of prejudice filed before the re-sentencing. The statute provides that if a party wishes to remove a judge, that party must make a motion and file an affidavit
before he shall have made any ruling whatsoever in the case, either on the motion of the party making the affidavit, or on the motion of any other party to the action, of the hearing of which the party making the affidavit has been given notice, and before the judge presiding has made any order or ruling involving discretion.
RCW 4.12.050. Judge Cook had presided at trial and had therefore already made discretionary rulings in the case. A resentencing hearing is part of the case. See State v. Belgarde, 62 Wn. App. 684, 691, 815 P.2d 812 (1991) (finding that defendant's retrial following reversal of his earlier conviction constituted further proceeding "in the case"). We hold that the trial court properly rejected Wells' affidavit of prejudice.
II. Statutory Maximum
Wells argues that when community custody and confinement terms are added together, the court imposed a sentence that exceeded the statutory maximum.
RCW 9A.56.200(2) provides that robbery in the first degree is a class A felony. RCW 9A.20.021(1)(a) provides that "[f]or a class A felony, by confinement in a state correctional institution for a term of life imprisonment, or by a fine in an amount fixed by the court of fifty thousand dollars, or by both such confinement and fine." (emphasis added). RCW 9.94A.505(5) provides that "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." The trial court sentenced Wells to a concurrent sentence of 150 months for second-degree assault and 84 months for first-degree robbery to run concurrently. Pursuant to RCW 9.94A.715(1), the court sentenced Wells to 18-36 months of community custody for each of the two counts. The 150 months plus the 18-36 months of community placement do not exceed life imprisonment, the statutory maximum in this instance. The trial court's ruling did not exceed the statutory maximum. See, e.g., State v. Adams, 138 Wn. App. 36, 51, 155 P.3d 989 (2007), review denied, 161 Wn.2d 1006, 169 p. 3d 33 (2007).
III. Indeterminate Sentence
Wells also claims that the range of 18-36 months of community custody violates Washington's determinate sentencing scheme in RCW 9.94A.030(21), which states that a sentence must state "with exactitude the number of actual years, months . . . of community supervision." The trial judge properly stated that Wells was to serve 18 to 36 months of community custody. The trial court had authority to impose the community custody term under RCW 9.94A.715(1) (directing the court to sentence the offender to community custody, for the range established under RCW 9.94A.850 or RCW 9.94A.728, when the offender has committed a violent offense). We hold the trial court did not err in sentencing Wells to 18-36 months of community custody.
IV. Sufficiency of Evidence Concerning Burglary Charge
Wells argues that his 1996 burglary conviction was improperly included on his criminal history, contributing to an improper calculation of his offender score. The judgment and sentence shows two prior burglary convictions. Wells only challenges his 1996 burglary conviction, but did not argue this at resentencing. Generally, we address only those issues that were argued before the trial court. RAP 2.5(a). However, a defendant may challenge an illegal or erroneous sentence for the first time on appeal. Ford, 137 Wn. 2d at 477-78. A sentencing court's offender score requires de novo review. Tili, 148 Wn.2d at 358.
Exhibit 1, the State's criminal history report, shows that Wells was charged with three crimes under case number 96-8-00257-1: taking a motor vehicle without permission, criminal trespass, and burglary. The order of disposition of that case number shows that Wells was only found guilty of TMVWOP and trespass, not burglary. The only evidence of the 1996 burglary before this court is the information contained in Exhibit 1. Wells also correctly points out that the State's re-sentencing brief does not list the 1996 burglary.
Moreover, the date on the Information in Exhibit 1 lists the date of the burglary as 3-5-1996; the date of the burglary on the judgment and sentence is 9-15-96.
The 1996 burglary was erroneously included in the criminal history in the judgment and sentence. However, whether Wells' offender score was 15 or 16, the same category on the sentencing matrix of 9 or more is involved, and the same standard range from which the judge would impose a sentence applies. State v. Lillard, 122 Wn. App. 422, 433, 93 P.3d 969 (2004) (holding that the trial court was not required to calculate the defendant's exact offender score when it was clear that the number far exceeded the statutory maximum of nine points and the defendant failed to show prejudice based on the absence of an exact score); State v. Argo, 81 Wn. App. 552, 569, 915 P.2d 1103 (1996) (holding that a calculation error in defendant's offender score was harmless, because the standard range for his sentence would have been the same had the court properly calculated); see also RCW 9.94A.510. Any error is harmless. We remand solely to correct the scoring error in the judgment and sentence.
V. Disproportionate Sentence
Wells also argues that the court imposed a disproportionate sentence for the first-degree robbery, in violation of Article 1, Section 14 of the Washington Constitution. Wells has not provided argument showing that his sentence was disproportionate. We decline to address these constitutional claims absent reasoned argument and citation to legal authority. See RAP 10.3(a)(5); State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992) (declining review of constitutional issues unsupported by reasoned argument).
VI. Motion for New Trial
Wells argues that the court improperly denied his motion for a new trial. After reviewing the materials that Wells submitted in support of his motion for a new trial, the court properly ruled that it was untimely under CrR 7.5(c). The court determined that his motion should be considered under CrR 7.8, and that under this rule, it was most appropriate to transfer the motion to this court as a personal restraint petition. The court had discretion do so under CrR 7.8(c)(2), and we hold that the trial court did not err.
Wells' filed personal restraint petition, No. 61355-3, but then filed a motion for voluntary dismissal. An order terminating review has been filed.
VII. Propriety of Consecutive Sentence
Lastly, Wells argues that the trial court abused its discretion by choosing to impose a consecutive sentence for the Snohomish County crimes (possession of stolen property and attempting to elude). "'A sentencing judge has unfettered discretion to impose any sentences under RCW 9.94A.400(3) [the predecessor of RCW 9.94A.589(3)], either concurrently with, or consecutively to, a prior sentence for multiple current offenses. Consecutive sentencing must be expressly ordered.'" State v. Grayson, 130 Wn. App. 782, 786, 125 P.3d 169 (2005) (quoting In re Pers. Restraint of Long, 117 Wn.2d 292, 305, 815 P.2d 257 (1991)).
Under the discretion given to it in RCW 9.94A.589(3), the court stated the Snohomish County sentence would be consecutive, because "when you are out on pre-trial release from our County, and you go to another County and commit an offense while you are on pre-trial release . . . there does need to be a sanction for that, that is going to be that that sentence will run consecutive to the one that I'm imposing under this cause number." The trial court did not abuse its discretion in choosing to impose a consecutive sentence.
We affirm, but remand solely to correct the offender score stated in the judgment and sentence.
For the Court: