Opinion
No. 35693-7-II.
April 15, 2008.
Appeal from a judgment of the Superior Court for Grays Harbor County, No. 99-1-00060-1, David E. Foscue, J., entered December 1, 2006.
Affirmed by unpublished opinion per Penoyar, J., concurred in by Van Deren, A.C.J., and Quinn-Brintnall, J.
A jury convicted Steven Pink of conspiracy to commit first degree murder (Count I) and first degree assault (Count II) in connection with the placement of a bomb at his community corrections officer's (CCO) home. After this court vacated his exceptional sentence on Count I, Pink was resentenced on both counts to standard range, consecutive sentences. Pink appeals his sentence on several grounds. First, Pink argues that his convictions involved the "same criminal conduct" so he should have received concurrent, rather than consecutive, sentences. Second, he contests his offender score calculation, arguing that the sentencing court incorrectly included a prior Oregon felony conviction and his community custody status. Finally, he argues that a jury, not a judge, should have made the "same criminal conduct," comparability and community custody findings. We find no merit in Pink's arguments and affirm the trial court.
FACTS
On January 26, 1999, Thomas Perrine, Pink's CCO noticed a beer bottle sitting on top of a box outside of his home. He picked up the box and it exploded. The explosion caused Perrine severe injuries, but he survived.
On October 7, 1999, a jury convicted Pink of conspiracy to commit first degree murder (Count I) and first degree assault (Count II) in connection with the bomb. The court imposed a 600-month exceptional sentence on Count I and a 147-month standard sentence on Count II, to run consecutively.
The court imposed a 24-month "deadly weapon other than a firearm" enhancement on both counts, to run consecutively under RCW 9.94A.125, .310 (1998) recodified, respectively, as RCW 9.94A.602, .510 by Laws of 2001, ch. 10, § 6. Clerk's Papers (CP) at 16.
Pink appealed his conviction and sentence on two grounds: (1) the trial court erred in admitting testimony protected by marital privilege, and (2) the trial court erred by using an Oregon second degree robbery conviction to increase his offender score by two points. This court remanded to the trial court to consider these issues. On remand, the trial court determined that (1) Pink enjoyed no marital privilege because his marriage was void ab initio, and (2) Pink's second degree robbery conviction in Oregon was comparable to first degree robbery in Washington and thus the court properly added two points to his offender score during sentencing.
Clerk's Papers 26 to 39 consist of this court's 2003 unpublished opinion in Pink's first direct appeal. State v. Pink, noted at 118 Wn. App. 1049, 2003 WL 22183943. This opinion is referred to as the "2003 opinion."
Almost a year after sentencing, Pink filed a pro se motion for a new trial, which was denied by the trial court. Pink's appeal of the trial court's decision on remand and the denial of the motion for new trial were consolidated into a single appeal before this court.
In a September 23, 2003 unpublished decision, this court affirmed Pink's convictions. Relevant to the inquiry here, this court found: (1) Pink's conviction on Counts I and II did not encompass the "same criminal conduct" under RCW 9.94A.589(1)(a), and thus the trial court did not abuse its discretion by imposing consecutive, rather than concurrent, sentences; (2) the trial court did not err by imposing an exceptional sentence for Count I; and (3) Pink had no viable ineffective assistance of counsel or cumulative error claims. Also, this court did not address the comparability of Pink's Oregon robbery conviction because he did not raise the issue in his post-remand brief.
The exceptional sentence was subsequently vacated since it was based on two findings that were not submitted to the jury. See Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004); Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
This court also resolved issues that are not contested in this appeal. The court found that: (1) the trial court did not err in denying Pink's motion to suppress, (2) Pink had no basis to assert marital privilege, and (3) the trial court did not err by declining to instruct the jury on a lesser included offense.
This court amended its September 23, 2003 ruling on two occasions in light of the decisions in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) and State v. Hughes, 154 Wn.2d 118, 110 P.3d 192 (2005), abrogated by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006). On January 25, 2005, this court vacated Pink's exceptional sentence on Count I. On August 24, 2005, the Washington Supreme Court granted a petition for review and remanded to this court for further consideration in light of Hughes. On November 15, 2005, this court reaffirmed the vacation of Pink's exceptional sentence and directed the trial court to "remand for resentencing within the standard range as required under Hughes." Clerk's Papers (CP) at 25.
At the December 1, 2006 resentencing hearing, the trial court imposed a 393.75-month standard range sentence for Count I and a 147-month standard range sentence for Count II, to run consecutively. Pink raised a number of substantive issues at the resentencing hearing, including the issue of "same criminal conduct" and the comparability of the Oregon robbery conviction. Report of Proceedings (RP) at 13, 16-19. Pink also challenged for the first time the court's ability to find that he was on community custody at the time of the offense, which increased his offender score by one point. The sentencing court did not extensively address any of Pink's arguments that were unrelated to sentencing.
ANALYSIS
I. Same Criminal Conduct
At the resentencing hearing, the trial court sentenced Pink to standard range consecutive sentences for the two convictions. Pink argues that the trial court erred by finding that his offenses did not involve the same criminal conduct. RCW 9.94A.589(1)(a) requires that sentences for crimes involving the same criminal conduct be served concurrently, not consecutively.
We decline to review Pink's argument under the "law of the case" doctrine. See RAP 2.5(c). This court clearly and unambiguously addressed Pink's argument in its 2003 decision. Moreover, Pink does not meet the high burden for this court to exercise its discretion to review the propriety of its earlier decision on the same issue. See RAP 2.5(c)(2), see also Folsom v. County of Spokane, 111 Wn.2d 256, 264, 759 P.2d 1196 (1988) (stating that reconsideration will be granted in the case of a prior holding that was "clearly erroneous" or that would "result in manifest injustice").
The 2003 unpublished decision states:
The record shows that Pink completed the crime of conspiracy to commit first degree murder before the assault because he took substantial steps to commit the crime by obtaining a rifle, purchasing explosives, delivering the explosives to Davis, and showing him how to make a bomb. None of these actions occurred at Perrine's residence, which was the location of the assault. And the assault occurred at a different time from the conspiracy. The trial court did not abuse its discretion in declining to view the two convictions as the same criminal conduct and in imposing consecutive sentences.
CP at 37.
II. Sentencing Judge's Ability to Find "Same Criminal Conduct"
Pink next argues that the trial court violated his constitutional rights by not submitting the issue of whether his crimes constituted the same criminal conduct to a jury. This argument has no merit.
Pink asserts that the trial court's ruling on same criminal conduct violated his Sixth Amendment right to a jury trial and his Fourteenth Amendment right to proof beyond a reasonable doubt.
Apprendi stands for the proposition that 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. 530 U.S. at 490.
All convictions count separately under Washington law for purposes of computing the offender score. RCW 9.94A.525(5)(a). However, offenses that are found to encompass the same criminal conduct are counted as one offense. RCW 9.94A.525(5)(a)(i). A finding of same criminal conduct, therefore, can operate only to decrease the offender score and the otherwise applicable sentencing range. In re Pers. Restraint of Markel, 154 Wn.2d 262, 274, 111 P.3d 249 (2005). Therefore, Apprendi's directive that any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury is not implicated by a finding of "same criminal conduct," a finding that only operates to decrease the possible sentence. See Apprendi, 530 U.S. at 490; Markel, 154 Wn.2d at 274. The issue of same criminal conduct is properly decided by the sentencing judge.
III. Consecutive Sentences
In a related argument, Pink argues that the trial court erred in imposing consecutive sentences.
Washington sentencing courts must impose consecutive sentences when a defendant is convicted of two or more "serious violent offenses" that arise from "separate and distinct criminal conduct." RCW 9.94A.589(1)(b). Although "separate and distinct" is not defined by the statute, the Washington Supreme Court has said that it is "well established" that offenses that do not constitute the "same criminal conduct" are necessarily "separate and distinct." State v. Cubias, 155 Wn.2d 549, 552, 120 P.3d 929 (2005) (citing State v. Lessley, 118 Wn.2d 773, 778, 827 P.2d 996 (1992)). Given that this court affirmed the trial court's finding that Pink's conspiracy and assault convictions did not involve the "same criminal conduct," it follows that Pink's violent offenses arose from "separate and distinct criminal conduct." Therefore, the sentencing court had no discretion in imposing consecutive sentences for Pink's violent offenses.
There is no question that Pink's convictions are "serious violent offenses." See RCW 9.94A.030(37)(v) (first degree assault is a "serious violent offense"); RCW 9.94A.030(37)(ix) (conspiracy to commit first degree murder is a "serious violent offense").
Pink resorts to statutory construction arguments to challenge the Washington Supreme Court's interpretation that offenses that do not constitute the same criminal conduct are necessarily "separate and distinct." Appellant's Br. at 21-25; see Cubias, 155 Wn.2d at 552. Pink's statutory arguments are unpersuasive. We affirm the trial court's imposition of consecutive sentences.
IV. Comparability of Oregon Conviction
A. Discretion to Review
At the December 14, 2001 remand hearing, the trial court entered finding of fact IV, which states that "the Oregon conviction is comparable to Robbery in the First Degree under Washington law." CP at 91. The court also entered conclusion of law I, which states that "[t]he defendant's prior Oregon robbery conviction was properly included in his offender score." CP at 91. Pink appealed from the remand hearing, but he did not challenge this comparability finding in his supplemental brief. Therefore, this court declined to further address the issue.
In this appeal, Pink revives his argument that Oregon's second degree robbery statute is not comparable to Washington's first degree robbery statute. Pink also contends that he had a constitutional right to have a jury, rather than a judge, determine the comparability of the prior Oregon robbery conviction beyond a reasonable doubt. The State disagrees with both of these assertions.
The State argues that the validity of the Oregon conviction was before this court in the 2003 appeal and that Pink may not now relitigate the same issue. As noted above, however, this court declined to address the comparability issue in the 2003 appeal because Pink did not raise it in his brief. We have the discretion to review and determine the propriety of a trial court decision even though a similar decision was not disputed in an earlier review of the same case. RAP 2.5(c)(1).
We exercise our discretion in order to provide clarity and finality for both parties. On the merits, we find that (1) Pink's convictions are comparable and that (2) the sentencing judge did not violate Pink's constitutional rights by determining comparability.
B. Comparability Analysis
In Morely, the Washington Supreme Court adopted a two-part test to determine whether a foreign conviction is comparable to a Washington offense. State v. Morely, 134 Wn.2d 588, 605-06, 952 P.2d 167 (1998). The court must first analyze the legal comparability of the convictions. See In re Pers. Restraint of Lavery, 154 Wn.2d 249, 255, 111 P. 3d 837 (2005). The legal comparability test consists of comparing the elements of the out-of-state crime to the elements of the Washington criminal statute in effect at the time the out-of-state crime was committed. See Lavery, 154 Wn.2d at 255; Morley, 134 Wn.2d at 606.
If the elements of the foreign crime are not substantially similar to the Washington crime, or if the foreign crime is more broadly defined, the court may analyze the factual comparability of the convictions. See Lavery, 154 Wn.2d at 255. Thus, the court may look at the defendant's conduct, as evidenced by the indictment or information, to determine if the conduct itself would have violated a comparable Washington statute. Lavery, 154 Wn.2d at 255. However, even where the court looks into the record of a foreign conviction, "the elements of the charged crime must remain the cornerstone of the comparison." Lavery, 154 Wn.2d at 255.
Pink's indictment for second degree robbery in Oregon states that he:
[K]nowingly, unlawfully and feloniously threaten[ed] the immediate use of physical force upon Linda Smiley, and was armed with what purported to be a deadly weapon, to-wit: a revolver, while in the course of committing theft of property, to-wit: lawful currency of the United States of America, with the intent of preventing resistance to the said defendant's taking of the said property.
CP at 89.
At the time of Pink's Oregon second degree robbery, the Washington crime of robbery required: (1) the unlawful taking (2) of personal property (3) from the person of another or in his presence (4) against his will (5) by the use or threatened use of immediate force, violence or fear of injury to the person or his property or the person or property of anyone. RCW 9A.56.190. First degree robbery requires one of three "aggravating factors" — thus, a perpetrator of first degree robbery must (a) be armed with a deadly weapon, (b) display what appears to be a firearm or other deadly weapon, or (c) inflict bodily injury. RCW 9A.56.200(1) (1983).
Washington's definition of robbery has not been amended since 1975.
The first degree robbery statute was amended in 2002 to include robberies within and against financial institutions. RCW 9A.56.200(1)(b).
The contemporaneous Oregon third degree robbery statute required that in the course of committing or attempting to commit theft, the person used or threatened the immediate use of physical force upon another with the intent of (a) preventing or overcoming resistance to the taking of the property or to retention thereof immediately after the taking; or (b) compelling the owner of such property or another person to deliver the property or to engage in other conduct which might aid in the commission of the theft. Or. Rev. Stat. § 164.395 (1983). Second degree robbery in Oregon required one of two "aggravating factors" — thus, a perpetrator of second degree robbery must (a) represent by word or conduct that the person is armed with what purports to be a dangerous or deadly weapon, or (b) be aided by another person actually present. Or. Rev. Stat. § 164.405 (1983).
The Oregon legislature amended Or. Rev. Stat. § 164.395 in 2003 in a manner that does not affect the present analysis. See 2003 OR. Laws, ch. 357, § 1.
The legislature has not amended Or. Rev. Stat. § 164.405 since 1971.
These two crimes are not legally comparable because one of the aggravating factors for second degree robbery in Oregon, being aided by another person present, is not sufficient to elevate a robbery in Washington from second degree robbery to first degree robbery.
Pink's crimes, however, are factually comparable. Pink was armed with a deadly weapon, which is an aggravating factor that triggers first degree robbery in Washington. Although we need to look at the indictment to adequately assess comparability, the elements of the charged crime remain the cornerstone of the comparison. See Lavery, 154 Wn.2d at 255. As discussed above, only the "aggravating factors" of the Oregon and Washington statutes are not legally comparable. Since the facts alleged on Pink's Oregon indictment would satisfy all elements of the Washington crime of first degree robbery, including an aggravating factor, the crimes are factually comparable. Thus, the trial court was justified in using the Oregon conviction as part of Pink's offender score.
V. Sentencing Judge's Ability to Find Comparability
Pink asserts that he had a Sixth Amendment right to have a jury determine the comparability of the prior Oregon conviction beyond a reasonable doubt. We reject Pink's argument.
In Blakely, the Court stated that judges, rather than juries, can still find evidence of prior convictions. Hughes, 154 Wn.2d at 137. This is an exception to the general rule that juries must find facts that increase sentences. The exception is justifiable because the defendant already had the facts regarding his prior conviction found by a jury beyond a reasonable doubt. Hughes, 154 Wn.2d at 137 n. 5.
In a 2006 case, this court held that the trial court did not violate a defendant's Sixth Amendment right under Blakely by comparing a defendant's out-of-state conviction with a Washington statute in calculating his offender score for sentencing. State v. Farnsworth, 133 Wn. App. 1, 16, 130 P.3d 389 (2006). We follow Farnsworth and find that comparability may be determined by the sentencing judge.
VI. Sentencing Judge's Ability to Find Community Custody.
Pink argues that the trial court erred by finding that Pink was on community custody at the time he committed his crimes, which increased his offender score by one point. As Pink openly concedes, however, this argument lacks merit in light of State v. Jones, which held that a court, rather than a jury, can make the community placement determination. 159 Wn.2d 231, 247, 149 P.3d 636 (2006).
VII. Statement of Additional Grounds (SAG)
Finally, Pink filed a SAG. He makes numerous arguments in the SAG. After careful review, we find that none have merit.
A. Matters Outside the Record
Pink makes numerous arguments that rely on information not found in the record. This court has no basis on which to assess these arguments and will not consider them on appeal.
Pink's arguments that have no basis in the record include: (1) The trial court record does not support the facts underlying this court's analysis of the "same criminal conduct" issue in its 2003 opinion; (2) Pink's query about how could he "be with Ms. Lash, and also conspiring with Davis?" SAG at 2; (3) Claim that police, prosecutors and trial court judge all personally knew the victim: (4) Prosecutors relied on "tainted, threatened" witnesses and "used witness tampering." SAG at 2; (5) No "authentic confession by Pink" was in evidence except "uncorroborated police and prosecution hearsay." SAG at 2; (6) There was no affirmative showing in the record that Pink's pleas to his Oregon criminal charges were "intelligent and voluntary" [sic]. SAG at 3; (7) When Pink pled guilty to crimes that pre-dated his prosecution and conviction in these proceedings, he was never informed that his guilty pleas would allow for enhancement of future sentences; (8) Trial court erred in relying on finding of alleged facts to find "separate criminal conduct" and "consecutive exceptional sentence." SAG at 8; and (9) Pink claims the case was "mischarged," that he had mentioned this at resentencing, and that his attorney had objected previously at trial. SAG at 9. The record reflects that Pink did not raise this issue at resentencing, and there is no other information regarding this issue before us.
B. Issues Already Addressed by Appellate Counsel
Pink closely echoes several arguments that appellate counsel addresses in this appeal, including (1) "separate criminal conduct" cannot be applied to impose an exceptional consecutive sentence; (2) the trial court violated due process by "denying proper inquiry into factual facial validity of Pink's offender score." (SAG at 3); (3) he should have been sentenced to concurrent, not consecutive sentences; and (4) a jury must determine facts that enhanced Pink's sentence.
We decline to address SAG arguments that simply repeat or paraphrase arguments presented in the appellate counsel's brief. State v. Johnston, 100 Wn. App. 126, 132, 996 P.2d 629 (2000).
C. Ineffective Assistance of Counsel
Pink asserts a claim of ineffective assistance of counsel. Specifically, he alleges that defense counsel (1) failed to object to the use of his prior convictions in increasing his offender score, and (2) failed to challenge his guilty pleas for those convictions.
To establish ineffective assistance, Pink must show that his attorney's performance was deficient and that the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Pink's SAG hews closely to the Strickland language, asserting that his counsel's representation "fell below an objective standard of reasonableness, was deficient, and Pink was thereby prejudiced." SAG at 5. He asserts that the record shows no tactical or strategic reason why counsel would not object on these matters.
Pink's first claim is that he received ineffective assistance when his trial counsel failed to object to the use of his prior convictions in increasing his offender score. This claim fails for two reasons. First, state law requires a court to consider prior convictions "whenever a person is to be sentenced for two or more current offenses." RCW 9.94A.589(1)(a). Since Pink was convicted of two violent felonies, the court had no discretion on this matter; thus, any objection raised by counsel would have been unsuccessful. Second, even if counsel provided ineffective assistance at sentencing by failing to raise the comparability issue, that issue is now moot. The remedy for such failure is a remand for a comparability analysis. See State v. Thiefault, 160 Wn.2d 409, 417, 158 P.3d 580 (2007). Clearly, a remand is unnecessary here since we analyzed the comparability of Pink's prior conviction in this opinion.
Pink's second claim is that he received ineffective assistance when his counsel failed to challenge his guilty pleas for the out-of-state convictions that were used to increase his offender score. This claim is unsustainable. Defendants may be allowed to withdraw guilty pleas only to correct a "manifest injustice." See, e.g. CrR 4.2(f). Pink asks us to require defense counsel as a matter of course to challenge every conviction made on the basis of a guilty plea even though the vast majority of such pleas will not meet the "manifest injustice" standard. Furthermore, there is nothing in the record before us, other than Pink's bare assertions in his SAG, that his guilty pleas were made as a result of "manifest injustice." Absent such particularized evidence, Pink's ineffective assistance of counsel claim fails.
D. Standard for Proving Convictions
Pink claims that at sentencing, the trial court erred in not requiring the State to prove, beyond a reasonable doubt, the "Constitutional, and facial validity of Pink's prior . . . guilty plea convictions," for purposes of calculating his offender score. SAG at 3. Pink requests various evidentiary hearings so that he may testify to the prior convictions' invalidity. As noted by the trial court, this claim is without merit. The Sentencing Reform Act's requirement that the State prove prior convictions by a preponderance of the evidence is indeed constitutional. State v. Ammons, 105 Wn.2d 175, 186, 713 P.2d 719, modified by, 718 P.2d 796 (1986). As noted by the trial court, constitutional validity "is the fact of the conviction." RP at 8. We find no reason to remand on this issue.
E. Trial Court's Discretion Within Sentencing Range
Pink argues that based on the United States Supreme Court's recent decision in Cunningham v. California, ___ U.S. ___, 127 S. Ct. 856, 166 L. Ed. 2d 856 (2007), the trial court erred in exercising its discretion in selecting "a specific sentence within a defined range." SAG at 6. Pink improperly twists an excerpt from Cunningham to argue this point, changing the case's true holding. Cunningham held California's determinate sentencing law, in which the judge rather than the jury found facts exposing a defendant to an elevated upper term sentence, to be a violation of the defendant's right to trial by jury. Cunningham, 127 S. Ct. at 871. Cunningham did not go so far as to assert that the trial court has no discretion to sentence within a range, as Pink suggests. More accurately, the Cunningham Court reiterated and reaffirmed the previous holdings of Blakely and Apprendi, which are of no help to Pink in this case.
F. Victim's Statement at Resentencing
Pink asserts that the victim's statement, given to the trial court at resentencing, constitutes the introduction of improper "extrinsic evidence" and serves as grounds for a new trial. SAG at 8. To support his claim, Pink cites a number of cases, which all deal with jurors introducing outside knowledge/evidence into juror deliberations. See Richards v. Overlake Hosp. Med. Ctr., 59 Wn. App. 266, 796 P.2d 737 (1990); also Halverson v. Anderson, 82 Wn.2d 746, 513 P.2d 827 (1973).
Under Washington's sentencing procedures, however, it is perfectly appropriate for the trial court to consider a victim's statement, or, in the alternative, to allow the victim to speak at the sentencing hearing. RCW 9.94A.500(1). Indeed, the Washington State Constitution and the Victims of Crimes Act each provide crime victims with the right to make statements at sentencing hearings for felony convictions. Const. art. I, § 35; RCW 7.69.030(14). Finding no impropriety here, we decline to give Pink a new trial on these grounds.
Pink additionally argues that he is sentenced under ex-post facto laws, and that he should be resentenced in accordance with the laws in place when originally convicted and sentenced in 1999. Pink's argument on this point is unclear. After a review of the 1999 sentencing guidelines, and subsequent case law, it appears that Pink was sentenced appropriately. We decline to remand on this basis.
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.
VAN DEREN, A.C.J., QUINN-BRINTNALL, J., concur.