Opinion
No. 57019-6-I.
April 9, 2007.
Appeal from a judgment of the Superior Court for Snohomish County, No. 04-1-01750-0, Kenneth L. Cowsert, J., entered September 9, 2005.
Affirmed in part and remanded by unpublished per curiam opinion.
FACTS
In July 2004, David Hill and his girlfriend, Michelle Houser, provided alcohol to Houser's 13-year old son, B.E., her 17-year old daughter, C.D., and C.D.'s 17-year old girlfriend, N.E. After Hill and Houser went to bed, the children Page 2 engaged in sexual activities. When C.D. told Hill and Houser that B.E. and N.E. were having sex, Hill and Houser got a video camera and began filming and encouraging B.E. to continue the sexual contact. After B.E. left the room, Hill and Houser encouraged C.D. to perform sexual acts on N.E.
The State charged Hill with three counts of sexual exploitation of a minor; one count of second degree child molestation; one count of second degree child rape; possession of depictions of minors engaged in sexually explicit conduct; and supplying liquor to a minor. Following a bench trial, the court found Hill guilty on all counts except rape.
At sentencing, the State calculated Hill's offender score as a nine and the standard range for each of the three counts of sexual exploitation was 120 months with a ten year maximum. For child molestation the standard range was 87 to 116 months, and for possession of depictions of minors engaged in sexually explicit conduct, the standard range was zero to 12 months. Hill did not object or comment on the State's calculation of his offender score. Nor did Hill ask the court to engage in a same criminal conduct analysis. Instead, Hill requested the court to impose a special sex offender sentencing alternative (SSOSA). The trial court denied Hill's request for a SSOSA and sentenced Hill to 120 months on each of the three counts of sexual exploitation, 116 months on second degree molestation, and 12 months on possession of depictions of minors engaged in sexually explicit conduct, to be served concurrently.
For the first time on appeal, Hill contends that several of his convictions involve the same criminal conduct. The State claims Hill waived his challenge to the offender score and his same criminal conduct argument by failing to raise it before the trial court. In the alternative, Hill argues that his trial counsel provided ineffective assistance by failing to raise a same criminal conduct argument.
DISCUSSION
A defendant may waive a challenge to a miscalculated offender score "where the alleged error involves an agreement to facts, later disputed, or where the alleged error involves a matter of trial court discretion." In re Goodwin, 146 Wn.2d 861, 874, 50 P.3d 618 (2002). In Goodwin, the Supreme Court approved of this court's analysis in State v. Nitsch, 100 Wn. App. 512, 997 P.2d 1000 (2000). After agreeing to his offender score at the sentencing hearing, Nitsch argued on appeal that his offender score was incorrect and that the sentencing court "should have, sua sponte, found his two crimes to be the same criminal conduct." Nitsch, 100 Wn. App. at 520. We held that Nitsch could not raise this argument for the first time on appeal.
Only an illegal or erroneous sentence is reviewable for the first time on appeal. Application of the same criminal conduct statute involves both factual determinations and the exercise of discretion. It is not merely a calculation problem, or a question of whether the record contains sufficient evidence to support the inclusion of out-of-state convictions in the offender score.
Nitsch, 100 Wn. App. at 523.
As stated in Nitsch, because the determination of whether two crimes constitute the same criminal conduct involves both determinations of fact and an exercise of judicial discretion, a defendant may waive the argument. We conclude Hill waived his argument regarding same criminal conduct by not raising it at sentencing.
To demonstrate that his counsel provided ineffective assistance by failing to bring a motion to count certain crimes as the same criminal conduct, Hill must demonstrate that the trial court probably would have granted the motion. State v. McFarland, 127 Wn.2d 322, 334-35, 337, n. 4, 899 P.2d 1251 (1995) ("Absent an affirmative showing that the motion probably would have been granted, there is no showing of actual prejudice.").
Here, Hill contends that the following combinations of the counts in the information should have been treated as single offenses: 1) count I and count III; 2) count I, II or IV and count VI; and/or 3) count III and count VI. Because Hill fails to establish that the trial court probably would have exercised its discretion to find any particular combination of the identified counts constitute the same criminal conduct, he cannot demonstrate ineffective assistance of counsel. Finally, Hill contends that his sentence for child molestation and for sexual exploitation of a minor is illegal because the trial court exceeded the statutory maximum of 10 years for these class B felonies by imposing a 36 to 48-month term of community custody in addition to each 120 month prison term. To avoid confusion, we remand to amend the judgment and sentence to state the maximum sentence and clarify that the total term of incarceration and community custody cannot exceed the statutory maximum. State v. Sloan, 121 Wn. App. 220, 223-24, 87 P.3d 1214 (2004).
In his Statement of Additional Grounds for Review, Hill contends that the prosecutor committed misconduct by amending the information to add additional counts in retaliation for Hill's refusal to agree to a plea bargain. When prosecutorial misconduct is alleged, "the defendant bears the burden of establishing that the conduct complained of was both improper and prejudicial." State v. Stenson, 132 Wn.2d 668, 718, 940 P.2d 1239 (1997). Pretrial amendments are "liberally allowed, and the defendant may, if necessary, seek a continuance in order to adequately prepare to meet the charge as altered." State v. Pelkey, 109 Wn.2d 484, 490, 745 P.2d 854 (1987). The State may amend an information before it rests as long as there is no prejudice to the defendant. CrR 2.1(d); State v. Schaffer, 120 Wn.2d 616, 620-21, 845 P.2d 281 (1993). The defendant has the burden of showing prejudice from an amendment. State v. Guttierrez, 92 Wn. App. 343, 346, 961 P.2d 974 (1998).
The record demonstrates that the State filed its amended information on November 18, 2004, long before Hill's trial in May 2005. Nothing in the record supports Hill's claim of prosecutorial misconduct regarding amendment of the information.
Hill also claims he is entitled to a mistrial under CR 59(3) based on a letter Houser sent to the prosecutor and the trial judge after Hill's conviction. In the letter, Houser states that she committed perjury and lied on the stand. A claim based on "newly discovered evidence" may be considered only when a moving party establishes that the evidence: (1) will probably change the result of the trial; (2) was discovered since the trial; (3) could not have been discovered before trial by the exercise of due diligence; (4) is material; and (5) is not merely cumulative or impeaching. In re Personal Restraint of Stenson, 150 Wn.2d 207, 217, 76 P.3d 241 (2003). The absence of any one of the five factors is grounds to deny a new proceeding. Stenson, 150 Wn.2d at 217. Because Houser's claim that she lied on the stand could be considered merely impeaching, we reject Hill's claim.
Affirmed, but remanded for clarification of judgment and sentence.