Opinion
No. 30355-8-II
Filed: April 5, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Mason County. Docket No. 02-1-00182-3. Judgment or order under review. Date filed: 04/18/2003. Judge signing: Hon. Toni a Sheldon.
Counsel for Appellant(s), John Lester Farra, Attorney at Law, Dune Square Bldg Ste 5, PO Box 817, Ocean Shores, WA 98569-0817.
Counsel for Respondent(s), Monty Dale Cobb, Mason County Prosecutors Office, 521 N 4th Ave Ste a, PO Box 639, Shelton, WA 98584.
A jury convicted Toby Erhart of eight counts of first degree child rape and eight counts of first degree incest, each involving his stepdaughter. Erhart appeals, arguing that his counsel was ineffective when he failed to properly investigate the case and interview witnesses, failed to object to certain evidence, and failed to call Erhart to testify on his own behalf. He also asserts that his exceptional sentence was invalid under Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), because the facts supporting the sentence were not submitted to a jury and proved beyond a reasonable doubt.
We affirm Erhart's convictions and sentence. We uphold the trial court's refusal to grant Erhart a new trial based on ineffective assistance of counsel. We also hold that the trial court did not violate Blakely when it imposed an exceptional sentence of 600 months because a standard range sentence would not have punished Erhart for several of his current offenses.
FACTS
A.B. was born on December 9, 1985. A.B.'s mother, Lisa, married Erhart (who was not A.B.'s biological father) in 1989. The family moved to the red house on 7th Street in Shelton, Mason County, when A.B. was seven years old and had just completed first grade. When A.B. was in second grade, her family, consisting of A.B.'s mother, Erhart, and her younger brother, T.E., moved into a blue house on 14th Street in Shelton.
A.B. testified that while the family lived in the blue house, when she was seven or eight years old, Erhart began sexually abusing her. She testified that, among other things, he inserted his finger and tongue into her vagina. He also had intercourse with her, inserting his penis into her vagina and anus. A.B. testified how once, when A.B. got into bed with her mother and Erhart, A.B. reached for Erhart's penis and he pushed her hand away he later explained to A.B. that he did so because her mother was also reaching for his penis at the same time.
The family moved back to the red house around the time A.B. was completing third grade and the abuse continued there. She testified that Erhart had penile-vaginal sexual intercourse with her more than twice, that he performed oral sex on her `[p]robably like seven times,' and that he put his fingers into her vagina more than once. 1 Report of Proceedings (RP) 42-43. She also testified that she performed oral sex on him `once or twice.' 1 RP at 42.
At that time, Erhart's mother, Shirley Erhart, owned the red house. She lived with her son's family initially but later sold the house to Erhart and A.B.'s mother and moved into an apartment.
The record also contains the report of proceedings for the November 2002 trial, which ended in a mistrial; unless otherwise specified, all references are to the 2003 trial report.
When A.B. was 11 and in fifth grade, her mother moved out, and A.B. stayed with Erhart instead of her mother `[b]ecause she was an alcoholic and I felt safer with [Erhart] because he took care of me and . . . was a better parent.' 1 RP at 28. A.B.'s little brother also lived with Erhart for a time. A.B. felt like she was taking over the mother position in the family and that she `was trying to be [Erhart's] girlfriend or something.' 1 RP at 34.
After A.B. started sixth grade, when A.B. was 11 or 12, Erhart's girlfriend, Teresa, moved into the house with her two sons, who were in fourth and fifth grade. A.B. testified that the sexual activity between A.B. and Erhart eventually stopped when A.B. was around 12 or 13, but that Erhart would continue to touch and grab her until she was around 14. A.B. testified that she did not get along with Teresa because she was an alcoholic and that they would often fight.
In November of 2001, when A.B. was 15, A.B. told her biological father and stepmother about Erhart's sexual abuse. She moved in with her father and stepmother shortly after that, in December 2001. Her father and stepmother eventually reported the abuse to the police.
A.B. testified that she first disclosed the abuse to her boyfriend, Adam Fosbre, in the spring of 2001. She later told other friends, including Kerrie Riker and Kelly Miller.
Erhart was charged with eight counts of first degree child rape and eight counts of first degree incest (based on the same underlying acts) by third amended information on November 5, 2002. The information alleged that Counts I through VIII occurred between the summer of 1993 and the spring of 1995, and the remaining eight counts occurred between the spring of 1995 and the fall of 1997.
RCW 9A.44.073(1) states that `[a] person is guilty of rape of a child in the first degree when the person has sexual intercourse with another who is less than twelve years old and not married to the perpetrator and the perpetrator is at least twenty-four months older than the victim.'
Former RCW 9A.64.020(1) (1985) states that `[a] person is guilty of incest in the first degree if he engages in sexual intercourse with a person whom he knows to be related to him, either legitimately or illegitimately, as an ancestor, descendant, brother, or sister of either the whole or the half blood.' And `[d]escendant' includes stepchildren and adopted children under 18 years of age. Former RCW 9A.64.020(3).
Erhart's first trial ended when the defense moved for mistrial during the State's cross examination of the defense's third witness.
Erhart's second trial began in February 2003. Erhart was represented by the same attorney at both trials. As it had at the first trial, the State called as witnesses the victim, A.B.; A.B.'s father, Alan B.; A.B.'s former boyfriend, Fosbre; and A.B.'s friends, Riker and Miller. Detective Thom Adams of the Shelton Police Department again testified for the State regarding the substance of his interview with Erhart. And, as it had at the first trial, the defense called A.B.'s friends, Tyson Kruger and Tiffany Goos, to impeach A.B. both testified that A.B. told them that she was inventing the abuse allegation out of anger at Erhart and a desire for revenge.
The jury found Erhart guilty of all 16 counts. On March 3, 2003, Erhart moved for a new trial under CrR 7.5(b) based on ineffective assistance of counsel. In support of the motion, Erhart submitted the affidavits of various individuals, including his own, describing proposed testimony that his counsel did not offer at trial. Some individuals asserted that Erhart's trial counsel had not interviewed them. The trial court denied Erhart's motion.
A motion for new trial must be served and filed within 10 days after the verdict or decision, although the court on application of the defendant or on its own motion may in its discretion extend the time, and the motion for a new trial must identify the specific reasons in fact and law as to each ground on which the motion is based. CrR 7.5(b). Erhart moved for a new trial on the ground that substantial justice had not been done. See CrR 7.5(a)(8).
Erhart's mother, Erhart's sister, Erhart's girlfriend, Teresa, Teresa's mother, Teresa's son, a childhood friend of A.B., the mother of a childhood friend of A.B., and an acquaintance of A.B. (who had recently seen her at the mall) submitted affidavits.
Finding that each pair of rape and incest charges constituted same criminal conduct, the court determined that Erhart had an offender score of `21,' resulting in a presumptive range sentence of 210-280 months on the first degree child rape charges and 77-102 months on the first degree incest charges. The court sentenced Erhart to an exceptional sentence of 600 months on the first degree child rape charges and a standard range sentence of 204 months on the first degree incest charges, to run concurrently.
See former RCW 9.94A.360(6)(a) (1992) (`Prior adult offenses which were found . . . to encompass the same criminal conduct, shall be counted as one offense, the offense that yields the highest offender score.').
Former RCW 9.94A.310(1) (1992).
Erhart appealed his conviction. While this case was pending on direct appeal, the United States Supreme Court decided Blakely, 124 S. Ct. 2531. We ordered Erhart and the State to provide supplemental briefing on Blakely sentencing issues.
ANALYSIS Ineffective Assistance of Counsel
Erhart contends that the trial court erred in denying his motion for a new trial based on ineffective assistance of counsel. He contends that his counsel was ineffective based on failure to interview certain witnesses and properly investigate; failure to object to or request a limiting instruction on certain prejudicial evidence; and failure to call Erhart to testify on his own behalf. He also contends that based on the cumulative effect of the above, he was denied a fair trial.
A trial court may grant a new trial if a defendant's substantial right to a fair trial was materially affected. CrR 7.5(a). We will not disturb a trial court's decision to grant or deny a new trial unless its decision constitutes a manifest abuse of discretion, based on untenable grounds or made for untenable reasons, or is based upon a mistake of law. State v. Jackman, 113 Wn.2d 772, 777, 783 P.2d 580 (1989). To show ineffective assistance of counsel, Erhart must demonstrate that (1) 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). 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 been different. In re Personal Restraint Petition of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998).
There is great judicial deference to counsel's performance and the analysis begins with a strong presumption that counsel was effective. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). If defense counsel's trial conduct can be characterized as legitimate trial strategy or tactics, then it cannot serve as a basis for a claim that the defendant did not receive effective assistance of counsel. State v. Adams, 91 Wn.2d 86, 90, 586 P.2d 1168 (1978). The reasonableness of counsel's challenged conduct must be viewed in light of all of the circumstances, on the facts of the particular case as of the time of counsel's conduct. Strickland, 466 U.S. at 689-90.
Failure to Interview/Call Potential Defense Witnesses
Erhart first contends that his counsel should have conducted additional investigation and interviewed and/or called certain people who could have provided testimony that would have assisted in Erhart's defense. On Erhart's motion for a new trial, the proposed witnesses submitted affidavits as to the testimony that they could have provided.
In arguing that his counsel was ineffective, Erhart largely relies on State v. Byrd, 30 Wn. App. 794, 638 P.2d 601 (1981), in which a neighbor heard the victim and defendants enter the apartment where an alleged rape took place. The defendant argued that the neighbor could have contradicted the victim's account that she was taken to the apartment by force, but that defense counsel failed to contact the neighbor even though the defendant had provided the neighbor's name to counsel. The defendant submitted the neighbor's affidavit in support of his personal restraint petition. Division One of this court found possible ineffective assistance based on counsel's failure to `conduct appropriate investigations, either factual or legal, to determine what matters of defense were available, or [failure] to allow himself enough time for reflection and preparation for trial.' Byrd, 30 Wn. App. at 799 (quoting State v. Jury, 19 Wn. App. 256, 263, 576 P.2d 1302, review denied, 90 Wn.2d 1006 (1978)). The court remanded to the trial court for findings on the credibility of the neighbor's affidavit.
Likewise, in Jury, also relied on by Erhart, we held that counsel's failure to adequately acquaint himself with the facts of the case by interviewing witnesses, failure to subpoena witnesses, and failure to inform the court of the substance of the witnesses' testimony on the defense's motion for a continuance and for a new trial were omissions that no reasonably competent counsel would have committed. 19 Wn. App. at 264.
Here, A.B.'s credibility was very important to the State's case, and the defense's stated theory was that A.B. accused Erhart because she was angry at him and Teresa and wanted to get back at Erhart for not buying her a car as promised. And in contrast to Byrd and Jury, Erhart's counsel did call witnesses in support of this theory. Kruger and Goos, acquaintances of A.B., testified as to A.B.'s October 2001 statements that she was angry and planning to accuse her stepfather of abusing her to get revenge for, among other things, failing to buy her a car. Additionally, defense counsel had also stated that he planned to call to the stand A.B.'s biological father, Alan, if the State did not call him. The State did call Alan and, in cross examination, defense counsel attempted to show that his behavior following A.B.'s disclosure of abuse was inconsistent with his belief in A.B.'s allegations.
The two witnesses also testified in the first trial, along with a third witness, Tyler Goos, whose testimony led to a mistrial after the State asked him a question that the trial court determined to be `prejudicial to the underpinning of [defense counsel's] representation.' 3 RP (Nov. 12-14, 2002) at 213.
Erhart states in his affidavit that `[t]he two witnesses my attorney did call . . . were brought to him by family members a few days before trial.' Clerk's Papers (CP) at 57. But the two witnesses also testified at the first trial, and whether counsel provided effective assistance at the first trial is not before this court.
Here, it is apparent that counsel's choice not to focus on those whom Erhart considered other potential witnesses was tactical. See Adams, 91 Wn.2d at 90. Defense called witnesses who were not the defendant's family members, thus avoiding the appearance of bias that might have attached to, for example, testimony from Erhart's mother, sister, and girlfriend. Moreover, it is reasonable to assume that defense evaluated these potential witnesses' proposed testimony and found it (1) cumulative; (2) irrelevant; or (3) inadmissable. For example, the proposed testimony of Teresa and Teresa's son, James Fleshman, that A.B. fought with Teresa would have been cumulative. Examples of arguably irrelevant proposed testimony included that of A.B.'s childhood friend, Felicia Sisson, that A.B. never disclosed abuse to her and proposed testimony of Erhart's mother that Erhart hired nannies for his children and therefore A.B. was not acting as a homemaker/girlfriend to Erhart. Also, Teresa's proposed testimony that A.B. was sexually active would likely have been inadmissible under the rape shield statute, RCW 9A.44.020(2), which bars evidence of a victim's past sexual history when it is offered to attack a victim's credibility. And Teresa's proposed testimony that Fosbre remained friends with Erhart after A.B. disclosed the alleged abuse to Fosbre was likely inadmissible as to A.B.'s and Fosbre's credibility (both A.B. and Fosbre testified that Erhart and Fosbre's relationship changed after A.B. disclosed the alleged abuse to Fosbre). See ER 608. Moreover, counsel could have reasonably chosen not to draw more attention to certain statements Erhart made to Detective Adams or to emphasize Erhart's habit of giving long hugs and patting people's buttocks.
Detective Adams testified that Erhart told him that `[A.B] and Theresa had come down with the same type of yeast infection recently and Teresa had confronted [Erhart] as to how they both could have the same strain of yeast infection.' 2 RP at 133. According to Detective Adams, Erhart had responded, `Do you think I would do her and do you without showering?' 2 RP at 133.
As for Erhart's assertion that defense counsel failed to interview `any of the state's or proposed defense witnesses,' this claim ignores that this was Erhart's second trial with the same counsel (the first ended in mistrial during the defense's case in chief), and that counsel already had, essentially, a practice run with the witnesses in the first trial.
CP at 57 (Affidavit of Erhart filed in support of motion for new trial).
On this record, Erhart has not demonstrated that his counsel's performance was deficient for failing to interview and/or call certain witnesses. And the trial court did not err in denying Erhart a new trial on this ground.
Failure to Object to Admission of Evidence and Failure to Request Limiting Instruction
Erhart contends that his trial attorney failed to object to the admission of certain testimony, including Erhart's statements to Detective Adams (1) recounting a skinny-dipping incident during which a seven- or eight-year-old A.B. had touched his penis and (2) relating his comments to Teresa when she and A.B. both suffered from yeast infections. He also asserts that his counsel was ineffective because he failed to object to the testimony of Fosbre, Riker, and Miller.
The admission of ER 404(b) evidence lies largely within the trial court's sound discretion. State v. Laureano, 101 Wn.2d 745, 764, 682 P.2d 889 (1984), overruled on other grounds by State v. Brown, 111 Wn.2d 124, 761 P.2d 588 (1988). We will not disturb a trial court's rulings on the admissibility of evidence absent an abuse of the court's discretion. State v. Glenn, 115 Wn. App. 540, 546, 62 P.3d 921, review denied, 149 Wn.2d 1007 (2003).
As a general rule, ER 404(b) provides that evidence of `other crimes, wrongs, or acts is not admissible' to show the character of a person and that a person acted in conformity therewith. ER 404(b) does provide that this type of evidence may be admissible for other purposes such as `proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.' But `[t]his list of exceptions is not necessarily exclusive.' State v. Goebel, 40 Wn.2d 18, 21, 240 P.2d 251 (1952), overruled on other grounds by State v. Lough, 125 Wn.2d 847, 889 P.2d 487 (1995). To admit evidence under an exception to ER 404(b), the trial court must (1) find by a preponderance of the evidence that the misconduct occurred; (2) identify on the record the purposes for which it admits the evidence; (3) determine whether the evidence is relevant to prove an element of the crime charged; and (4) weigh the probative value of the evidence against its prejudicial effect. State v. Pirtle, 127 Wn.2d 628, 648-49, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996); Lough, 125 Wn.2d at 853. Evidence is relevant and necessary if the purpose for admitting it is of consequence to the action and makes the existence of the identified fact more probable. State v. Powell, 126 Wn.2d 244, 259, 893 P.2d 615 (1995); State v. Dennison, 115 Wn.2d 609, 628, 801 P.2d 193 (1990). `A careful and methodical consideration of relevance, and an intelligent weighing of potential prejudice against probative value is particularly important in sex cases, where the prejudice potential of prior acts is at its highest.' State v. Saltarelli, 98 Wn.2d 358, 363, 655 P.2d 697 (1982).
Our Supreme Court `has consistently recognized that evidence of collateral sexual misconduct may be admitted under ER 404(b) when it shows the defendant's lustful disposition directed toward the offended female.' State v. Ray, 116 Wn.2d 531, 547, 806 P.2d 1220 (1991) (citing State v. Camarillo, 115 Wn.2d 60, 70, 794 P.2d 850 (1990); State v. Ferguson, 100 Wn.2d 131, 133-34, 667 P.2d 68 (1983); State v. Medcalf, 58 Wn. App. 817, 822-23, 795 P.2d 158 (1990)). After balancing the probative value of this type of evidence against the potential for unfair prejudice, our courts have repeatedly found that evidence of prior sexual misconduct toward the victim is permissible.
See State v. Kilgore, 147 Wn.2d 288, 290-91, 295, 53 P.3d 974 (2002) (affirming appellate court decision that evidence defendant molested step-niece five or six times, touched step-daughter's genitals with his hands and penis three times, and touched brother-in-law on other occasions was admissible); Ray, 116 Wn.2d at 548 (admitting evidence of father's three instances of prior attempts at sexual contact with his daughter); State v. Guzman, 119 Wn. App. 176, 184, 79 P.3d 990 (2003) (evidence that defendant had previously touched 10-year-old victim's breasts was `highly probative' to show lustful disposition), review denied, 151 Wn.2d 1036 (2004).
Here, in the first trial, which involved the same prosecutor, defense counsel, and judge, the court ruled over defense objection that evidence of both incidents was admissible. Thus, we distinguish the present case from State v. Dawkins, 71 Wn. App. 902, 863 P.2d 124 (1993), relied on by Erhart in his brief. In that case, Division One of this court upheld under an abuse of discretion standard the trial court's finding that defense counsel was ineffective for failing to object to lustful disposition evidence simply because he believed it would be admissible. Dawkins, 71 Wn. App. at 908-09.
Erhart also contends that his counsel was ineffective for failing to request a limiting instruction for the yeast infection and skinny-dipping evidence. But it was reasonable not to draw attention to the testimony with an instruction that the jury must limit its use of the testimony to show lustful disposition.
Finally, Erhart contends that defense counsel was ineffective for failing to object to the `clearly inadmissible' testimony of A.B.'s former boyfriend, Fosbre, and her friends, Riker and Miller. Br. of Appellant at 19. Each of the three testified as to the fact and timing of A.B.'s disclosure of sexual abuse to them, but not as to the details of the disclosure or the details of the alleged abuse. Erhart fails to explain why the evidence would be inadmissible other than to state that `[t]here is no conceivable exception to the hearsay rules which could justify the admission of these statements.' Br. of Appellant at 18. But the evidence was not offered to prove the truth of what A.B. disclosed; instead, it was offered to prove that she made these disclosure statements, when she made these disclosure statements, and to show her demeanor while making the statements. Such evidence was relevant in light of the defense's attack on A.B.'s credibility. Moreover, this was the second time the defense had heard these witnesses' testimony, and Riker and Miller's testimony that A.B. disclosed abuse to them in November 2001 was actually consistent with the defense's revenge theory: Kruger and Goos, the two defense witnesses, testified that A.B.'s revenge statements to them occurred earlier in October 2001.
``Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.' See ER 801(c).
The trial court did not abuse its discretion in denying Erhart's motion for a new trial based on counsel's failure to object to any of this evidence.
Failure to Call Erhart to Testify on His Own Behalf
Erhart next contends that his attorney rendered ineffective assistance by refusing to let Erhart testify on his own behalf. Erhart first raised this claim in his motion for a new trial under CrR 7.5(b). He asserted in his affidavit in support of the motion that his testimony was necessary to contradict the testimony of Detective Adams and A.B. The trial court denied Erhart's motion for a new trial.
We will not disturb a trial court's decision to grant or deny a new trial unless its decision constitutes a manifest abuse of discretion or is based upon a mistake of law. Jackman, 113 Wn.2d at 777.
A criminal defendant has both a state and federal constitutional right to testify on his or her own behalf. State v. Robinson, 138 Wn.2d 753, 758, 982 P.2d 590 (1999) (citing Rock v. Arkansas, 483 U.S. 44, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987)). On the federal level, the defendant's right to testify is implicitly grounded in the Fifth, Sixth, and Fourteenth Amendments. Robinson, 138 Wn.2d at 758 (citing Rock, 483 U.S. at 51-52). And article I, section 22 of our state constitution explicitly protects a criminal defendant's right to testify. Robinson, 138 Wn.2d at 758 (citing State v. Thomas, 128 Wn.2d 553, 558, 910 P.2d 475 (1996)). This right is fundamental and cannot be abrogated by defense counsel or by the court. Robinson, 138 Wn.2d at 758 (citing Thomas, 128 Wn.2d at 558).
The ultimate decision whether or not to testify rests with the defendant and his waiver must be knowing, voluntary, and intelligent, although the trial court need not obtain such a waiver on the record. Robinson, 138 Wn.2d at 758-59 (citing Thomas, 128 Wn.2d at 558-59). A defendant's right to testify is violated when an attorney uses threats and coercion against his client, or when the attorney flagrantly disregards the defendant's desire to testify. Robinson, 138 Wn.2d at 763 (citing United States v. Robles, 814 F. Supp. 1233, 1242 (E.D. Pa. 1993); United States v. Butts, 630 F. Supp. 1145, 1147 (D. Me. 1986)).
A court must distinguish between cases in which an attorney actually prevents a defendant from taking the stand and cases in which counsel `merely advise[s the] defendant against testifying as a matter of trial tactics.' Robinson, 138 Wn.2d at 763 (quoting State v. King, 24 Wn. App. 495, 499, 601 P.2d 982 (1979)). Where a defendant asserts facts suggesting that his attorney actually prevented him from testifying, an evidentiary hearing is appropriate. Robinson, 138 Wn.2d at 759. But a defendant who remains silent at trial and later alleges that his attorney actually prevented him from testifying must allege specific, credible facts demonstrating that counsel coerced him to waive his right to testify in order to successfully raise such a claim on appeal. See Robinson, 138 Wn.2d at 760. And a defendant who relies on tactical advice from his attorney has not been coerced and may not later claim denial of his right to testify.
In Robinson, 138 Wn.2d 753, our Supreme Court held that a defendant had provided substantial factual evidence to support his claim that his trial counsel actually prevented him from testifying. Robinson has submitted affidavits from several different people indicating that he unequivocally demanded that he testify before closing arguments began. Counsel even conceded that Robinson `pleaded' with him to be allowed to testify and personal reasons prevented him from moving to reopen the testimony. Our Supreme Court remanded the case for an evidentiary hearing to determine whether the defendant's waiver of his right to testify was knowing and voluntary.
In his motion for new trial, Erhart presented affidavits demonstrating that (1) he and others wanted to testify; (2) his counsel believed that this tactic would allow the admission of more damaging testimony and would be ineffective; so (3) he disregarded Erhart and his family's wishes and did not call them. Erhart did not dispute that he acquiesced in his attorney's decision not to call Erhart and his family members as witnesses, but he claimed that he did so only because he was afraid the attorney would withdraw. But neither Erhart nor the other potential witnesses assert that defense counsel ever threatened to withdraw. Erhart's affidavit submitted on his motion for new trial states:
2. I always thought I was going to testify at my trial.
3. On the day of trial for the first time my attorney told me I was not going to testify in my defense. I was shocked by this comment.
4. I again indicated that I have to testify that the jury needed to see and hear from me.
5. My attorney said that I would not testify in a million years. I felt that if I persisted in my demands to testify my attorney might withdraw as my attorney. I lost confidence in my attorney.
6. I didn't want to anger my attorney.
7. During trial I wrote a note to my attorney telling him of my intentions to testify.
8. My attorney to my surprise asked for the input of my family on whether or not I should testify. My family said I had to testify. My attorney again said I would not testify.
9. I told my attorney I needed to set the record straight regarding the inaccuracies testified to by Detective Adams and A.B.
. . . .
15. My attorney told me he would sign an affidavit stating that he refused to let me testify.
There is no such affidavit in the record.
Clerk's Papers (CP) at 57-58.
Teresa, Erhart's girlfriend, also submitted an affidavit on motion for new trial:
13. I was with [Erhart] during trial and I know he told his attorney that he wanted to testify and [Erhart's] attorney said that [Erhart] would not testify in a million years. . . .
. . . .
17. [Erhart's] attorney told me he would sign an affidavit saying he refused to let [Erhart] testify.
CP at 61-62.
Likewise, Erhart's mother, Shirley Erhart, submitted an affidavit:
18. I was with my son when he told his attorney during trial that he wanted to testify in his own behalf. I believe my son expected to testify. His attorney gathered [Erhart's] family together and asked our opinion on whether [Erhart] and Teresa should testify. We said we thought they should testify. His attorney told [Erhart] in our presence that [Erhart] would not testify in a million years.
19. [Erhart] appeared to be distraught over this news.
CP at 66.
Finally, Erhart's sister, Robin Kramer, submitted an affidavit on motion for new trial, stating:
4. I was present at trial when [Erhart's] attorney asked our opinion if [Erhart] and Teresa should testify. We said yes they should. If [sic] fact we prepared a note that [Erhart] gave to his attorney. The note said that: Adam [A.B.'s boyfriend] was [Erhart's] friend even after A.B. told Adam about the alleged event and the jury should hear this information. . . .
5. I know [Erhart] was upset when his attorney told him he could not testify.
CP at 55.
The trial court heard Erhart's motion for a new trial and reviewed the witness affidavits. Defense counsel did not submit an affidavit and was not called as a witness at the post-trial hearing. The trial court ruled that Erhart's counsel's decision not to introduce his testimony was an objectively, reasonably competent one and the decision not to call Erhart (or his family members) to testify to certain matters, most of which were inadmissible or would have opened the door to other more damaging testimony, was not ineffective.
Likewise, our review of the record confirms that there were legitimate, tactical reasons for Erhart's counsel to advise him to waive his right to testify. Erhart made a variety of statements to Detective Adams that were potentially damaging to his defense; for example, that A.B. had ``spooned' with him while he was naked.' CP at 51. And, importantly, Erhart does not dispute any one of these statements other than to point out that a conversation with Teresa regarding A.B.'s yeast infection occurred when A.B. was 15, after the time period of the alleged abuse.
But here the issue is whether Erhart's waiver of his right to testify was obtained by coercion. According to Erhart and family members, Erhart's counsel told him at some point that he would not testify `in a million years.' CP at 57. But the trial record before us reveals that defense counsel asked for a brief recess to confer with Erhart before resting the defense case. It does not show that the defendant indicated a desire to testify at that time. Moreover, although in his motion for a new trial Erhart asserted that he believed his counsel would withdraw if he insisted on testifying, there is no evidence even in Erhart's own affidavit that defense counsel threatened to do so.
The affidavit of the prosecuting attorney submitted in opposition to Erhart's motion for new trial states in part:
3. Following the state's case-in-chief, the defense presented two witnesses.
4. When the court called the next defense witness, defense counsel asked for a moment with his client. RP 157.
5. Following a moment with his client, defense counsel advised the court that the time was 3:25 p.m. and that he rested his case on behalf of his client. RP 157.
6. During closing argument, defense counsel advised the jury that his client had chosen not to testify.
CP at 30.
In sum, the trial court presided over Erhart's trial and the prior mistrial. It reviewed Erhart's motion for a new trial and the affidavits of Erhart's family and girlfriend who wanted to testify. Most of the things the witnesses wanted to testify to were inadmissible or unhelpful. Others would have opened the door or focused the jury's attention on matters harmful to Erhart's defense. While Erhart's affidavit clearly established that defense counsel strenuously advised against his testifying, it also established that Erhart did not testify due to his beliefs and fears, and he did not provide any evidence that he was misled or coerced into waiving his right to testify before the defense rested its case. On this record we cannot hold that the trial court erred when it denied Erhart's motion for a new trial on the basis that he was denied effective assistance from his counsel.
Cumulative Effect of Counsel's Alleged Deficiencies
Erhart also contends that the cumulative effect of his trial counsel's deficiencies prevented him from receiving a fair trial. But as demonstrated above, the record does not support this claim.
Blakely Issues
After this court heard oral argument in this case, the United States Supreme Court decided Blakely, 124 S. Ct. 2531. Erhart filed a supplemental brief contending that his 600-month exceptional sentence was invalid under Blakely.
Even after Blakely, in reviewing an exceptional sentence, we must determine whether (1) under a clearly erroneous standard, the reasons supplied by the sentencing court are supported in the record that was before the judge; (2) under a de novo standard, those reasons justify a sentence outside the standard range; and (3) under an abuse of discretion standard, the sentence imposed was clearly excessive. State v. Van Buren, 123 Wn. App. 634, 653, 98 P.3d 1235 (2004) (citing State v. Rotko, 116 Wn. App. 230, 242, 67 P.3d 1098 (2003)). When a trial court lists more than one justification for an exceptional sentence and each ground is an independent justification, we will affirm the sentence if one of the grounds is valid. State v. Zatkovich, 113 Wn. App. 70, 78, 52 P.3d 36 (2002) (citing State v. Negrete, 72 Wn. App. 62, 71, 863 P.2d 137 (1993), review denied, 123 Wn.2d 1030 (1994)).
Here, the trial court found three reasons for imposing an exceptional sentence:
1. The defendant used his position of trust to facilitate the commission of the current offenses.
2. The offenses were part of an ongoing pattern of sexual abuse of the same victim under the age of eighteen years manifested by multiple incidents over a prolonged period of time.
3. The operation of the multiple offense policy of RCW 9.94A.589[,] formerly [RCW 9.94A].400[,] results in a presumptive sentence that is clearly too lenient in light of the p[u]rpose of this chapter, as expressed in RCW 9.94A.010.
CP at 22. From these findings, the court concluded, There are substantial and compelling reasons justifying an exceptional sentence considering that the purpose of Chapter 9.94A [RCW] which is to ensure that the punishment for a criminal offense is proportionate to the seriousness of the offense, to promote respect for the law by providing punishment which is just, to protect the public, and to reduce the risk of reoffending by offenders in the community. Any one or all of the above aggravating factors apply [and] would stand alone to support an exceptional sentence.
The court noted that all factors applied to the first degree child rape charges and that the second and third factors applied to the first degree incest charges.
CP at 22.
The third reason cited by the trial court was that the presumptive sentence range was clearly too lenient based on operation of the multiple offense policy. The `multiple offense policy' under former RCW 9.94A.400 (1990) means that where multiple current offenses are concerned, except in specified instances involving multiple violent felonies, presumptive sentences for multiple current offenses consist of concurrent sentences, each computed with the others treated as criminal history used in calculating the offender score. See State v. Batista, 116 Wn.2d 777, 786-87, 808 P.2d 1141 (1991). And where such a presumptive sentence is `clearly too lenient,' the sentencing court may depart from the presumptive sentence by either imposing consecutive sentences or, as here, further lengthening the otherwise standard concurrent sentences that have already been calculated according to the multiple offense policy. See Batista, 116 Wn.2d at 787.
In State v. Stephens, 116 Wn.2d 238, 243, 803 P.2d 319 (1991), our Supreme Court stated that a defendant who is already at the upper limit of the sentencing grid `should receive a greater punishment if he commits more than one current crime.' Because a defendant in such circumstances will receive no punishment for one or more of his current offenses, this result is generally referred to as `free crimes.' Van Buren, 123 Wn. App. at 652-53. In State v. Smith, 123 Wn.2d 51, 864 P.2d 1371 (1993), our Supreme Court held that `[t]his inquiry [whether there are substantial and compelling reasons justifying an exceptional sentence] is automatically satisfied whenever `the defendant's high offender score is combined with multiple current offenses so that a standard sentence would result in `free' crimes crimes for which there is no additional penalty.'' 123 Wn.2d at 56 (emphasis added) (quoting Stephens, 116 Wn.2d at 243).
Erhart's offender score of 21 substantially exceeds the standard sentencing range guideline grid, which provides the same presumptive range for any offender score of `9' or greater. Here, imposing a standard range sentence would have resulted in Erhart receiving `free crimes,' or four pairs of current crimes going unpunished. See Stephens, 116 Wn.2d at 243; Van Buren, 123 Wn. App. at 652-53. See also State v. Coats, 84 Wn. App. 623, 628, 929 P.2d 507, review denied, 132 Wn.2d 1003 (1997).
Each first degree child rape charge corresponded to a first degree incest charge, and the pairs were therefore treated as same criminal conduct.
See former RCW 9.94A.360(1) (1992) (`A prior conviction is a conviction which exists before the date of sentencing for the offense for which the offender score is being computed. Convictions entered or sentenced on the same date as the conviction for which the offender score is being computed shall be deemed `other current offenses' within the meaning of RCW 9.94A.400'); former RCW 9.94A.400(1)(a)(1990) (`the sentence range for each current offense shall be determined by using all other current and prior convictions as if they were prior convictions for the purpose of the offender score').
Blakely states that `[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.' Blakely, 124 S. Ct. at 2536 (emphasis added) (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)). And because `free crime' analysis is a function of determining the defendant's offender score from the record of his prior and current criminal convictions (which does not require weighing evidence, determining credibility, or making a finding of disputed facts), it is not affected by the Blakely requirement that certain facts must be pleaded and proved to a jury beyond a reasonable doubt in order to impose an exceptional sentence. Van Buren, 123 Wn. App. at 653. Regardless of the viability of its other two grounds, the court's third `substantial and compelling' reason was valid under Blakely and itself supported the exceptional sentence.
In conclusion, we hold that the trial court did not abuse its discretion by denying Erhart's motion for a new trial. Defense counsel's representation was effective and Erhart did not allege specific facts suggesting that his counsel actually coerced him to waive his right to testify. We also hold that the trial court's 600-month exceptional sentence was properly supported by his offender score of 21 and the fact that a standard range sentence would have resulted in four pairs of current crimes going unpunished. Finally, because this calculation does not involve resolution of disputed facts, no Blakely violation occurred.
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.
HOUGHTON, J. and HUNT, J., Concur.