State Of Washington v. Chanara Soeun ( 2015 )

FILED
COURT OF APPEALS
DIVISION II
2015 FEB 18
AM 9: 22
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IN THE COURT OF APPEALS OF THE STATE OF WA`` lA
DIVISION II
STATE OF WASHINGTON, No. 45473 -4 -11
Respondent,
v.
CHANARA SOEUN, UNPUBLISHED OPINION
Appellant.
LEE, J. — Chanara Soeun appeals his sentence following his conviction for second degree
robbery. Soeun argues that the trial court incorrectly calculated his offender score because three
of his prior convictions should have been considered the same criminal conduct. We hold that the
trial court did not abuse its discretion by scoring Soeun' s three prior convictions separately for the
purpose of calculating Soeun' s offender score and Soeun' s sentence. Therefore, we affirm.
FACTS
A jury found Soeun guilty of second degree robbery. 1 Soeun' s criminal history included
four juvenile convictions and adult convictions for first degree robbery, third degree assault, and
first degree theft. The adult robbery, assault, and theft convictions resulted from a single incident.
Soeun does not dispute the existence of his prior convictions.
1 Soeun does not challenge his conviction for second degree robbery and his same criminal conduct
argument is based on three prior convictions. Therefore, the facts underlying his conviction are
unnecessary for resolving Soeun' s appeal.
No. 45473 -4 -II
At sentencing, the State argued that Soeun' s offender score should be calculated at 6. The
State reached its calculation by counting a half point for each juvenile conviction ( 2 points), 2
points for the first degree robbery conviction, 1 point for the third degree assault, and 1 point for
the first degree theft. Soeun argued that his offender score should be calculated at 4 because the
robbery, assault, and theft convictions were the same criminal conduct and should be counted as 2
points ( scored for the robbery).
Soeun presented the trial court with the information, probable cause statement, jury
instructions, verdict forms, and judgment and sentence for the robbery, assault, and theft charges.
The State presented the trial court with our opinion affirming Soeun' s prior adult robbery, assault,
and theft convictions. In that opinion, we recited the underlying facts of Soeun' s prior robbery,
assault, and theft convictions as follows:
On June 11, 2006, Eli and Carrie Adamson left their residence in a relative' s
truck to buy hardwood flooring at a hardware store. After they left, Chanara Soeun
stole the Adamsons' white Honda Accord parked in their driveway. A neighbor
watched Soeun steal the car and called the Adamsons on their cellular phone. Carrie
Adamson turned the truck around, while Eli Adamson spoke with police on their
cellular phone.
On their way home, the Adamsons passed Soeun driving their Honda
towards them in the opposite lane. Carrie Adamson turned the truck around again,
followed Soeun into a cul -de -sac, and pulled the truck up next to the white Honda
when Soeun parked it in front of his residence. Eli Adamson got out of the truck,
yelled at Soeun to get out of the car, pulled open the driver' s side door, and grabbed
Soeun by his hair. Soeun shifted the Honda into reverse and stepped on the gas
pedal.
The moving Honda pulled Eli Adamson under it and ran over his ankle
while he managed to pull Soeun from the driver' s seat and out of the car. The
Honda made two revolutions in reverse, running over Eli Adamson' s torso and
coming to a stop when it hit a telephone pole. Soeun fled the scene.
State v. Soeun, noted at 146 Wash. App. 1033, 2008 WL 3319819.
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After reviewing all the information, the trial court found that the prior convictions had been
charged as three separate and distinct acts, and that the jury found Soeun guilty of three separate
distinct acts. And, the trial court noted that, without additional information, it could not come to
a different result. The trial court calculated Soeun' s offender score at 6 and imposed a standard
range sentence. Soeun appeals.
ANALYSIS
Soeun argues that the trial court erred by determining that his prior adult robbery, assault,
and theft convictions did not constitute the same criminal conduct, and that the trial court should
have calculated his offender score as 4 rather than 6. We hold that Soeun failed to meet his burden
to prove that his prior convictions were the same criminal conduct. Thus, the trial court did not
abuse its discretion by determining that Soeun' s prior convictions were not the same criminal
conduct.
All of a defendant' s prior convictions are counted separately unless some or all of the prior
convictions are the same criminal conduct. RCW 9. 94A.589( 1)( a). Prior convictions are the same
criminal conduct if the convictions required the same criminal intent, were committed at the same
time and place, and involved the same victim. RCW 9. 94A.589( 1)( a). If a prior sentencing court
found that the convictions were the same criminal conduct, then the current sentencing court must
count them as one offense. State v. Williams, 176 Wn. App. 138, 141, 307 P.3d 819 ( 2013), affd,
181 Wash. 2d 795 ( 2014). However, if a prior sentencing court did not make a same criminal conduct
finding, then the current sentencing court must determine whether the prior convictions are the
same criminal conduct. Williams., 176 Wash. App. at 141. We review the trial court' s same criminal
conduct finding for a ' clear abuse of discretion or misapplication of the law. ' State v. Haddock,
No. 45473 -4 -II
141 Wash. 2d 103, 110, 3 P.3d 733 ( 2000) ( quoting State v. Elliott, 114 Wash. 2d 6, 17, 785 P.2d 440,
cert. denied, 498 U.S. 838 ( 1990)).
Because a same criminal conduct finding lowers the defendant' s presumed offender score,
the defendant bears the burden to prove that his prior convictions are the same criminal conduct.
State v. Graciano, 176 Wash. 2d 531, 540, 295 P.3d 219 ( 2013). If the defendant fails to prove any
of the three statutory elements, the defendant has failed to meet his burden to prove his prior
convictions are the same criminal conduct. Graciano, 176 Wash. 2d at 540. If the record before the
sentencing court " supports only one conclusion on whether crimes constitute the `` same criminal
conduct,' a sentencing court abuses its discretion in arriving at a contrary result." Graciano, 176
Wash. 2d at 537 -38. However, when the record supports either result or the record is unclear, the
trial court does not abuse its discretion by refusing to enter a same criminal conduct finding.
Graciano, 176 Wash. 2d at 538, 541.
Here, the court that sentenced Soeun on the prior adult robbery, assault, and theft
convictions did not make a same criminal conduct finding; therefore, the current trial court
properly conducted a determination of whether Soeun' s prior convictions were the same criminal
conduct. The only evidence the trial court had regarding the facts of the prior case was the
statement of facts from our opinion and the probable cause statement from the original charging
document, both of which were consistent. The trial court noted that it did not have the trial record
to make a more accurate determination. Based on the information before it, the trial court
determined that the prior convictions were based on acts that were separate and distinct. Soeun
argues to the contrary. However, the record before the trial court can support either conclusion
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No. 45473 -4 -II
under the same criminal conduct analysis. Therefore, the trial court did not abuse its discretion by
not making a same criminal conduct finding.
A theft becomes a robbery if force is used while effectuating escape because the taking of
property is considered ongoing until the defendant has completed his escape. State v. Truong, 168
Wn. App. 529, 535 -36, 277 P.3d 74, review denied, 175 Wash. 2d 1020 ( 2012); see also State v.
Handburgh, 119 Wash. 2d 284, 293, 830 P.2d 641 ( 1992) ( using force against the property owner to
retain property initially taken outside the property owner' s presence is robbery). The facts of the
prior convictions before the trial court can support a determination that the theft was completed
when Soeun parked the car in front of his residence. Soeun stole the car, obtained exclusive
possession, drove it away, and parked the car in front of his house. The facts of the prior
convictions also can support a determination that after Soeun completed the theft by parking the
car in front of his own residence, Adamson approached the car, pulled Soeun by the hair, and
Soeun used force to retain possession of the car. Therefore, because the facts of the prior
convictions before the trial court can support either conclusion —that the convictions were based
on separate acts or were the same criminal conduct— the trial court did not abuse its discretion by
not making a same criminal conduct finding.
In addition, the record is unclear whether the prior convictions support the conclusion that
the robbery and assault involved the same criminal intent. The underlying facts before the trial
court show that Soeun attempted to retain possession of the car by shifting the car in reverse and
stepping on the gas pedal. The underlying facts in the record also show that a struggle ensued
between Adamson and Soeun and that Soeun was pulled out of the car by Adamson. However,
the record is unclear whether the car ran over Adamson while Soeun was still in the car trying to
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No. 45473 -4 -II
escape from Adamson or whether the car ran over Adamson after Soeun had been pulled out of
the car. Because the record is unclear, the trial court did not abuse its discretion by finding Soeun' s
adult robbery and assault convictions did not constitute the same criminal conduct.
Here, the record before the trial court is unclear. At best, the facts before the trial court
could support either result under a same criminal conduct analysis. Therefore, we hold that Soeun
did not meet his burden to prove same criminal conduct, and the trial court did not abuse its
discretion by not making a same criminal conduct finding. Because the trial court did not abuse
its discretion by not entering a same criminal conduct finding, the trial court correctly calculated
Soeun' s offender score at 6. Soeun' s challenge to the calculation of his offender score fails.
We affirm.
A majority of the panel determining that this opinion will not be published in the
Washington Appellate Report, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
We concur:
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