Opinion
No. 35319-9-II.
September 25, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-1-02629-4, Serjio Armijo, J., entered August 3, 2006.
Affirmed by unpublished opinion per Hunt, J., concurred in by Armstrong and Quinn-Brintnall, JJ.
Justan David Cola appeals his guilty plea convictions for first degree burglary with a firearm enhancement, first degree kidnapping with a firearm enhancement, first degree robbery with a firearm enhancement, second degree assault, and unlawful possession of a firearm. He argues that (1) several of his convictions were either the same criminal conduct or merged and were, therefore, improperly counted as separate offenses in his offender score; (2) his trial counsel was ineffective for allowing him to stipulate to an incorrect offender score that did not reflect that multiple offenses were the same criminal conduct or merged and for failing to ask the trial court to evaluate whether any of his current offenses were the same criminal conduct; and (3) his guilty plea is invalid because his counsel did not advise him of his correct offender score. Cola raises additional ineffective assistance of counsel arguments in a Statement of Additional Grounds for Review (SAG).
RAP 10.10.
Cola having failed to establish any error, we affirm.
FACTS I. The Incident
At about 6:45 a.m., on June 12, 2006, C. Grey was home alone with her one-year-old child when Cola knocked on her door and asked to use her phone because his car had broken down. When Grey refused his request, Cola pulled out a gun, threatened her, and forced his way inside.
In referring to the victims and witnesses, the record uses first initials instead of first names.
These facts are drawn from the declaration for determination of probable cause attached to the State's original charging information.
Once inside, Cola bound Grey's hands with duct tape and led her through the house as he searched for valuables. A short time later, P. Shafer arrived at Grey's home to do some work. Cola unbound Grey and made her answer the door and let Shafer in. Cola then confronted Shafer with the gun, took Shafer and Grey into the garage, and forced them to collect tools and other valuables. While in the garage, Shafer attempted to fight Cola, but Cola subdued him and, while still armed with the gun, kicked and stomped on Shafer's head, rendering him unconscious.
After gathering more items, Cola forced Grey to wake Shafer and then forced them both to load Grey's truck with the items he had collected. Cola then bound Shafer and Grey with tape and fled in the truck. Grey managed to unbind herself and she called for help.
When the deputies arrived, they observed that Grey had black tape on her wrists, she was crying, and the house appeared to have been ransacked. They also noted that Shafer's face was bleeding and that he seemed to have a shoe-patterned bruise on his face.
A short time after the robbery and a short distance from Grey's house, a witness saw a suspicious-looking man jump into a Mercury Topaz; the witness noted the license plate number and reported it to the police. The police found Grey's truck in the brush nearby.
The police later located the Topaz, driven by D. Geyer. After the police advised Geyer of his Miranda rights, Geyer told them that his brother B. Geyer had called him and asked him to pick up "Justin," who was later identified as Cola. Geyer told the police that Cola was armed with a handgun when he (Geyer) had picked him (Cola) up. Geyer later identified Cola in a photomontage.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
II. Charges, Plea, and Sentencing
The State initially charged Cola with the following offenses: (1) first degree burglary, (2) first degree kidnapping of Grey, (3) first degree kidnapping of Shafer, (4) first degree robbery of "C. Grey and/or P. Shafer," (5) first degree assault of Shafer, (6) second degree assault of Grey, and (7) first degree unlawful possession of a weapon. The State also alleged firearm enhancements on all counts except the first degree unlawful possession of a weapon count.
Following plea negotiations, Cola pleaded guilty to five offenses: (1) first degree burglary, (2) first degree kidnapping of Shafer, (3) first degree robbery of Grey, (4) second degree assault of Shafer, and (5) first degree unlawful possession of a firearm, with firearm enhancements on the burglary, kidnapping, and robbery counts. To his statement of defendant on plea of guilty, Cola attached a handwritten statement admitting the elements of each offense without referring to the details of the offenses. He did not agree to allow the trial court to review the police reports or the statement of probable cause in lieu of making a statement. The trial court accepted Cola's plea.
At sentencing, Cola stipulated to his criminal history and to an offender score that counted each of his current offenses as a separate offenses. As agreed, the State requested a sentence of 175 months for the offenses, with 180 additional months for the firearm enhancements, for a total sentence of 355 months. The sentencing court imposed the recommended 355-month sentence. Cola appeals.
analysis I. RCW 9.94A.589(1)(a): "Same Criminal Conduct"
RCW 9.94A.589(1)(a) defines "same criminal conduct" as (1) two or more crimes that require the same criminal intent, (2) are committed at the same time and place, and (3) involve the same victim. If two current offenses are same criminal conduct, then those current offenses together merit only one offender score point. State v. Haddock, 141 Wn.2d 103, 108, 3 P.3d 733 (2000).
Cola argues that (1) his offender score is incorrect because some or all of his current offenses were the same criminal conduct under RCW 9.94A.589(1)(a), (2) the trial court erred in failing to find these offenses to be the same criminal conduct, and (3) his trial counsel was ineffective for failing to argue that these offenses were the same criminal conduct and for allowing him to stipulate to an offender score counting these offenses separately. We disagree.
A. Waiver
Cola waived his claim that the trial court erred by failing to determine whether any of his offenses were the same criminal conduct when he stipulated to his offender score. In re Personal Restraint of Shale, 160 Wn.2d 489, 494-95, 158 P.3d 588 (2007) (citing In re Personal Restraint of Goodwin, 146 Wn.2d 861, 873-74, 50 P.3d 618 (2002); State v. Nitsch, 100 Wn. App. 512, 997 P.2d 1000, review denied, 141 Wn.2d 1030 (2000)). Nonetheless, we may still address Cola's argument in the context of his ineffective assistance of counsel claim.
Only eight justices participated in Shale. Four of these eight justices concurred in the result only and disagreed with the lead opinion's analysis of the double-jeopardy waiver issue. The concurrence did not, however, challenge the lead opinion's same-criminal-conduct waiver analysis. Shale, 160 Wn.2d at 496-502.
B. Ineffective Assistance of Counsel 1. Standard of review
To establish ineffective assistance of counsel, Cola must show that (1) his trial counsel's performance was deficient and (2) the deficient performance prejudiced him. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (adopting test from Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). Deficient performance occurs when counsel's performance falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). Prejudice occurs when, but for the deficient performance, the outcome would have differed. Stenson, 132 Wn.2d at 705-06. In evaluating counsel's performance, we give it great deference, starting our analysis with a strong presumption that counsel was effective. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
Furthermore, in the context of an ineffective assistance of counsel claim, we must evaluate all evidence in the record to determine whether Cola's counsel's actions were reasonable. Thus, we look beyond Cola's written admissions in his statement of defendant on plea of guilty and consider the facts as stated in the statement of probable cause when addressing the ineffective assistance of counsel claim. Cola does not meet his burden of showing ineffective assistance of counsel here.
2. Burglary
We first address whether Cola's first degree burglary conviction encompassed the same criminal conduct as any of his other offenses. The burglary anti-merger statute, RCW 9A.52.050, resolves this issue.
RCW 9A.52.050 provides: "Every person who, in the commission of a burglary shall commit any other crime, may be punished therefor as well as for the burglary, and may be prosecuted for each crime separately." Thus, even assuming the other four offenses could be considered the same criminal conduct as the burglary, the trial court would have had the discretion to consider the other offenses separately at sentencing. Given the facts in the statement of probable cause, it is unlikely that the trial court would have found that the offenses were the same criminal conduct as the burglary. Thus, Cola cannot establish ineffective assistance of counsel or error on this ground.
3. Unlawful Possession of a Firearm
To establish that the first degree unlawful possession of a firearm conviction was the same criminal conduct as any of the remaining offenses, Cola must show that he committed this offense at the same time and place as the other offenses. RCW 9.94A.589(1)(a). The statement of probable cause, however, establishes that (1) Cola entered Grey's house brandishing a firearm and (2) D. Geyer observed Cola in possession of a firearm after Cole had completed the robbery and left Grey's house. Given the proof that Cola possessed the firearm both before and after the other offenses, the time and place of the unlawful possession of a firearm offense differed from that of the other offenses. Therefore, the unlawful possession of a firearm offense cannot be considered same criminal conduct as any of the other offenses, and Cola cannot establish ineffective assistance of counsel or error on this ground.
4. Robbery
We next examine whether the first degree robbery was the same criminal conduct as any of the other offenses. Our analysis above establishes that the robbery, the burglary, and the unlawful possession of a firearm were not the same criminal conduct. As for the two remaining offenses, the kidnapping and the assault, the robbery cannot be the same criminal conduct because Shafer was the kidnapping and the assault victim and Grey was the robbery victim. Because the "same victim" requirement is clearly not met, Cola cannot establish ineffective assistance of counsel or error on this ground.
5. Kidnapping and assault
The remaining offenses are the first degree kidnapping and the second degree assault of Shafer. The above analysis shows that neither of these two offenses were the same criminal conduct as the burglary, the unlawful possession of a firearm, or the robbery. Thus, the only remaining question is whether the kidnapping and the assault are the same criminal conduct. Because these two offenses took place at different times, they are not.
As noted above, Cola initially confronted Shafer with a gun when Shafer entered Grey's house. Cola then physically assaulted Shafer and rendered him unconscious. Cola later woke Shafer, forced him to help load Grey's truck, then bound Shafer and left him secreted in Grey's house to facilitate his flight.
Notably, in the original information, the State charged Cola with first degree assault under RCW 9A.36.011(1)(c), which would have required the State to prove that Cola assaulted Shafer with intent to inflict great bodily harm. This first degree assault clearly related to Cola's later, physical assault of Shafer that left him unconscious. In contrast, the amended second degree assault charge was based on an assault with a deadly weapon, not on intent to inflict bodily harm.
In the amended information, the State charged Cola with the second degree assault of Shafer as an assault committed with a deadly weapon under RCW 9A.36.021(1)(c). It charged the first degree kidnapping under RCW 9A.40.020(1)(b), which provides: "A person is guilty of kidnapping in the first degree if he intentionally abducts another person with intent . . . [t]o facilitate commission of any felony or flight thereafter." Abduction includes secreting or holding a person in a place he is not likely to be found. RCW 9A.40.010(2).
The initial second degree assault started when Cola first confronted Shafer with the gun, and it ended when Cola rendered Shafer unconscious. Although Cola arguably kidnapped Shafer at this point as well, Cola also committed a separate kidnapping when he later restrained and secreted Shafer in Grey's house to facilitate his (Cola's) flight instead of leaving him unconscious in the garage. The break in time between the initial assault and the later restraint demonstrates that Cola committed a kidnapping that was separate from the initial assault with the gun. Accordingly, the kidnapping and assault cannot be the same criminal conduct, and Cola's trial counsel did not err when he scored these offenses separately.
Thus, Cola cannot establish ineffective assistance of counsel on this ground.
In addition, we note that given the State's original charges, scoring these two offenses separately was likely a legitimate tactical decision intended to produce the specific sentence that was an integral part of Cola's plea agreement with the State. We will not find ineffective assistance of counsel if the challenged actions can be construed as legitimate tactical decisions. State v. Garrett, 124 Wn.2d 504, 520, 881 P.2d 185 (1994).
II. Additional Claims of Ineffective Assistance of Counsel A. Merger
Cola next argues that the second degree assault and the kidnapping each merged into the first degree robbery and that his trial counsel was ineffective for failing to recognize this and allowing him to stipulate to an incorrect offender score. Again, we disagree.
Cola does not argue that the assault and the kidnapping merged.
Under the merger doctrine, if one crime involves an injury that is separate and distinct from that of the other, the crimes do not merge. State v. Vladovic, 99 Wn.2d 413, 421, 662 P.2d 853 (1983). When the victims of the offenses are different, the injuries are separate and the merger doctrine does not apply. Vladovic, 99 Wn.2d at 421 (holding that because the robbery and kidnappings involved different people, they created separate injuries and could not merge).
Here, Shafer was the victim of the assault and the kidnapping, but Grey was the robbery victim. Thus, neither the assault nor the kidnapping could merge into the robbery. Accordingly, Cola's offender score properly counted these offenses separately. Additionally, because merger did not apply, Cola's trial counsel's alleged failure to assert merger did not amount to deficient performance. Thus, Cola cannot establish ineffective assistance of counsel on this basis.
B. Mental Health
In his SAG, Cola asserts he told his trial counsel that he had been prescribed medications for attention deficit disorder and for "hearing violent voices" and that he had not been taking his medications when he committed the current offenses. He argues that because his counsel knew of his potential mental health issues, he received ineffective assistance when his trial counsel neither requested a mental health evaluation nor informed the trial court about his potential mental health issues. SAG (Additional Ground 1).
There is nothing in the record regarding Cola's potential mental health issues, his medication usage, or what he told his trial counsel about any potential mental health issues. Because these issues relate to matters outside the record, we cannot address them on direct appeal. McFarland, 127 Wn.2d at 338 ("a personal restraint petition is the appropriate means of having the reviewing court consider matters outside the record").
C. Information Regarding Enhancements
Cola also argues in his SAG that he received ineffective assistance of counsel because his trial counsel erroneously told him that he would be subject to five-year firearm enhancements regardless of whether he was convicted of class A or class B felonies. Again, this argument pertains to matters outside the record, which we cannot address on direct appeal. See McFarland, 127 Wn.2d 338.
III. Guilty Pleas
Cola further contends that his guilty pleas were not voluntary and knowing because his trial counsel failed to advise him of his proper offender score and allowed him to stipulate to an incorrect score. Even assuming, without deciding, that a guilty plea can be rendered invalid by counsel's having given the defendant incorrect information about his offender score, the above analysis demonstrates that Cola's counsel properly counted all of Cola's current offenses separately when calculating Cola's offender score. Accordingly, this argument also fails.
Affirmed.
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.
We concur:
ARMSTRONG, P.J.
QUINN-BRINTNALL, J.