Opinion
No. 34042-9-II.
April 3, 2007.
Appeal from a judgment of the Superior Court for Kitsap County, No. 05-1-00917-7, Sally F. Olsen and Anna M. Laurie, JJ., entered October 19, 2005.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Penoyar, J.; Quinn-Brintnall, J., dissenting.
Steffan F.E. Schiersch appeals his convictions of threatening to bomb or injure property and false reporting, arguing that he received ineffective assistance of counsel. We affirm.
Facts
On June 18, 2005, Schiersch was a passenger on a ferry crossing from Edmonds to Kingston. He was intoxicated and fell asleep on the passenger deck. After the ferry arrived in Kingston, a worker awakened Schiersch and told him he had to leave. As he walked off the ferry, another worker stopped him and told him he required permission from the captain before he could leave. Becoming belligerent, Schiersch physically resisted the worker's efforts to detain him and walked into the nearby Drifters Bar and Grill.
After the ferry workers called the police, Washington State Patrol Trooper J.D. Parker was dispatched to the ferry terminal to investigate the reported assault. A few minutes later, Washington State Patrol Sergeant Richard Beghtol learned that Kitsap County 911 had just received a "hang-up" call from a male who stated that there was a bomb on the ferry at the Kingston terminal. CP at 17.
In the meantime, Trooper Parker was investigating the assault and took a witness into the Drifters. Upon entry, the witness identified Schiersch as the man who had assaulted the ferry worker. Trooper Parker made contact with Schiersch, who again became belligerent but provided her with his name and date of birth. Trooper Parker then returned to the terminal and met Trooper Beghtol, who had learned that the bomb threat was made from a pay telephone in the Drifters. The troopers returned to the bar and saw Schiersch run out the back door. They pursued and restrained him with difficulty.
As Trooper Beghtol escorted Schiersch to the patrol car, Schiersch became verbally and then physically abusive. When the trooper told Schiersch that he was being arrested for assaulting the ferry worker, Schiersch said that he shoved the worker because he was trying to act like a police officer. Schiersch denied making the bomb threat, but the grin on his face led Trooper Beghtol to believe he was not being truthful. It was clear to the troopers that Schiersch was intoxicated.
The State charged Schiersch with making a threat to bomb or injure property and third degree assault. Before trial, defense counsel filed a Knapstad motion in an attempt to gain dismissal of the threat-to-bomb charge. The defense contended that the statement "[t]here's a bomb on the ferry" was insufficient, as a matter of law, to constitute a threat to bomb under RCW 9.61.160(1). RP (Oct. 6, 2005) at 7.
State v. Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986).
The trial court denied the motion. Two weeks later, the parties appeared in court for a trial on stipulated facts pursuant to an amended information that substituted a false reporting charge for the assault charge. Defense counsel explained that the purpose of the stipulated facts trial was to preserve Schiersch's right to appeal the issue raised in his Knapstad motion. Schiersch understood that the court would find him guilty on both charges but would vacate the false reporting conviction if the threat-to-bomb conviction were affirmed on appeal. The parties jointly requested a first-time offender waiver and a 90-day sentence for each offense, to run concurrently.
Pursuant to the parties' agreement, the trial court found Schiersch guilty of both offenses and entered concurrent 90-day sentences. Schiersch now appeals.
The trial court imposed 90 days on the false reporting charge by sentencing Schiersch to 365 days with 275 days suspended for two years.
Discussion
Schiersch contends that he received ineffective assistance of counsel because his attorney filed an inappropriate Knapstad motion and agreed to a stipulated facts trial which resulted in his conviction of both offenses charged and which precluded use of a diminished capacity defense.
To show ineffective assistance of counsel, Schiersch must show that counsel's performance was deficient and that the deficiency was prejudicial. State v. Thomas, 109 Wn.2d 222, 225, 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). Deficient performance is not shown by matters that go to trial strategy or tactics. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). Prejudice is shown when there is a reasonable probability that, but for counsel's errors, the result of the trial would have been different. Thomas, 109 Wn.2d at 226. If either part of the test is not satisfied, the inquiry need go no further. State v. Mierz, 127 Wn.2d 460, 471, 901 P.2d 286 (1995). We give considerable deference to counsel's performance and presume it 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).
We start with Schiersch's complaint about the propriety of the Knapstad motion. A trial court may entertain a Knapstad motion to dismiss if there are no material disputed facts and the undisputed facts are insufficient to support a finding of guilt. State v. Knapstad, 107 Wn.2d 346, 351-53, 729 P.2d 48 (1986).
Defense counsel argued in his Knapstad motion that the statement "[t]here's a bomb on the ferry" did not constitute a threat to bomb under RCW 9.61.160(1). CP at 3. He supported his motion with two written briefs and extended oral argument but was unsuccessful. His lack of success does not signify that the motion constituted ineffective assistance. As our Supreme Court has stated, "'Effective assistance of counsel' does not mean 'successful assistance of counsel.' The competency of counsel is not measured by the result." State v. White, 81 Wn.2d 223, 225, 500 P.2d 1242 (1972). Counsel's decision to file a Knapstad motion was a tactical matter and does not demonstrate deficient performance.
This subsection makes it unlawful for any person "to threaten to bomb or otherwise injure" several types of buildings and property or "to communicate or repeat any information concerning such a threatened bombing or injury, knowing such information to be false and with intent to alarm the person or persons to whom the information is communicated or repeated." RCW 9.61.160(1).
Schiersch also contends that he received ineffective assistance of counsel when his attorney agreed to a trial on stipulated facts that led to his conviction on both offenses charged.
Schiersch apparently decided to proceed with a trial on stipulated facts instead of pleading guilty so that he could preserve his right to appeal a guilty verdict on the threat-to-bomb charge. See Mierz, 127 Wn.2d at 469 (a guilty plea obviates the need for a trial, but a stipulated facts trial is still a trial of the defendant's guilt or innocence and preserves the right to appeal). With that decision, Schiersch succeeded in substituting the gross misdemeanor charge of false reporting for the felony charge of third degree assault, obtained the State's agreement to recommend a first-time offender waiver and concurrent sentences of 90 days, and also got the State to agree that he would ultimately be convicted of only one offense. The stipulation reflects Schiersch's understanding of that agreement:
The first-time offender option allows a sentencing court to waive the imposition of a standard range sentence and impose a more lenient sentence. State v. Ha'mim, 132 Wn.2d 834, 845, 940 P.2d 633 (1997). Without that waiver, Schiersch faced standard range terms of 3-9 months on the threat-to-bomb count and 0-365 days on the false reporting count.
I am making this stipulation to preserve my rights to appeal a finding of guilty to Count I only. If my conviction for Count I is vacated, I agree that my conviction for Count II shall stand unaffected. If my conviction for Count I is upheld, I will move to vacate my conviction for Count II upon the issuance of a mandate from the Court of Appeals. The Prosecuting Attorney has agreed to support such a motion, based on the parties' joint intention that I be ultimately convicted of one crime as a result of me making the 911 call referenced above.
CP at 48.
Here again, counsel's decision to proceed by way of a trial on stipulated facts was a tactical decision that was not in itself deficient or prejudicial. See Mierz, 127 Wn.2d at 476 (stipulation as to facts may represent a tactical decision that may or may not bear fruit). Indeed, Schiersch recognizes that this decision resulted in a more favorable disposition than would have been likely following trial. Schiersch takes issue, however, with the related agreement that he would ultimately receive only one conviction. Schiersch contends that this agreement is unenforceable and illegal, but he cites no authority to support that assertion. The fact that he has abandoned his original appeal strategy and has chosen, with a different attorney, to proceed with a different issue does not mean that the parties' pretrial agreement is unenforceable.
The State concludes its brief by suggesting that the trial court erred in entering judgment and sentence on both convictions and that this court must remand for vacation of the false reporting conviction. We see no error and decline to remand. The parties agreed that Schiersch would be convicted of both offenses and that the false reporting conviction would be vacated only pursuant to a motion filed after an unsuccessful appeal. We leave the parties to proceed according to their agreement, which the trial court apparently accepted.
In a related argument, Schiersch argues that his attorney was deficient for failing to consider a diminished capacity defense despite ample evidence that Schiersch was intoxicated when he made the 911 call.
Failure of defense counsel to present a diminished capacity defense where the facts support such a defense has been held to satisfy the ineffective assistance of counsel test. State v. Tilton, 149 Wn.2d 775, 784, 72 P.3d 735 (2003) (citing Thomas, 109 Wn.2d at 226-29). A diminished capacity defense requires evidence of a mental condition that prevents the defendant from forming the requisite intent necessary to commit the crime charged. Tilton, 149 Wn.2d at 784. An intoxication defense allows a jury to consider the effect of voluntary intoxication by alcohol or drugs on the defendant's ability to form the requisite mental state. Tilton, 149 Wn.2d at 784.
The facts in Thomas indicated that the defendant had a history of drinking and blackouts, and she testified that she was drunk and incoherent on the night of the incident, and had no memory of eluding police or even of police cars following her car. Thomas, 109 Wn.2d at 225. The facts here do not support a claim that Schiersch was similarly intoxicated and thus unable to form the intent required to commit the crimes of making a threat to bomb or false reporting. Nor does the evidence indicate that Schiersch's intoxication significantly affected his ability to acquire the required mental states. See State v. Gallegos, 65 Wn. App. 230, 239, 828 P.2d 37 (1992) (although evidence showed that Gallegos had been drinking, and that the drinking made him lose his balance, spill things, and knock things over, there was no evidence that the drinking impaired his ability to acquire the intent to engage in sexual intercourse by forcible compulsion), review denied, 119 Wn.2d 1024 (1992).
Here, the descriptions of Schiersch's behavior before and directly after he made the 911 call do not support the conclusion that his drinking impaired his ability to intend to alarm those to whom the call was made or his ability to know that his call was likely to cause public inconvenience or alarm. See RCW 9.61.160(1); RCW 9A.84.040. As the prosecuting attorney stated, Schiersch's 911 call was a deliberate response to the altercation on the ferry: "He was intoxicated. He made a horrible decision after he had had a confrontation with ferry officials. He may have been given some inconsistent information, got him frustrated, picked up the phone, and this is how he chose to act on it." RP (Oct. 19, 2005) at 9. We do not see that the failure to consider a defense based on Schiersch's intoxication was either deficient or prejudicial.
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.
PENOYAR, J., concur.
If Steffan F.E. Schiersch was appealing a final order, I would concur with the majority. But in my opinion, the prosecution's promise to agree to vacate Count II if this court upholds the conviction on Count I impedes the finality of Schiersch's judgment and sentence and is an attempt to obtain an advisory opinion without holding a trial. See, e.g., State v. Maloney, 1 Wn. App. 1007, 1009, 465 P.2d 692 (1970).
The time for Schiersch and the State to negotiate charges is before trial. If the State properly charged Schiersch with both counts, there are no proper grounds for a motion to vacate one of those charges. CrR 7.8. On the other hand, if the State knows of a lawful basis to vacate a charge, it has an ethical obligation to do so. In my opinion, the agreement here abuses the appellate process. The net effect of this agreement is to manipulate this court into issuing an advisory opinion. See also State v. Norby, 122 Wn.2d 258, 269, 858 P.2d 210 (1993) (advisory opinions are disfavored by courts) ( citing Maloney, 1 Wn. App. at 1009).
A party may appeal as of right only from a final order. RAP 2.2(a)(1). Schiersch's judgment and sentence is not final and any opinion from this court is necessarily advisory and premature. Accordingly, I would dismiss this appeal and remand for entry of a final judgment and sentence that may then be timely appealed by any party aggrieved.