State Of Washington v. Meko D. Jones ( 2015 )

FLED
COURT OF APPEALS
D( b' ON I
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
2015 MAR 10 AM ` 38
DIVISION II
STATE OF • itj l#
STATE OF WASHINGTON, No. 451'
DEPU
Respondent, UNPUBLISHED OPINION
v.
MEKO DEAUNTE JONES,
Appellant.
BJORGEN, A.C. J. — A jury found Meko Jones guilty of, among other offenses, two counts
of second degree assault, one count of first degree kidnapping, and one count of first degree
robbery. Jones appeals, contending that ( 1) his sentences for the assault convictions were unlawful
because the combined term of confinement and community custody for each conviction exceeded
the maximum allowed by statute, ( 2) his assault and robbery convictions merge, as do his
kidnapping and robbery convictions, and ( 3) his counsel rendered ineffective assistance by failing
to argue at sentencing that Jones' s assault, kidnapping, and robbery offenses encompassed the
same criminal conduct. In a pro se statement of additional grounds- (SAG), Jones also alleges
prosecutorial misconduct.
We hold that ( 1) the sentencing court erred in imposing a combined term of confinement
and community custody that exceeded the maximum allowed for each of the second degree assault
convictions, requiring a remand to correct the unlawful sentence, ( 2) none of Jones' s convictions
merge because of the way the State charged and proved each offense, and ( 3) Jones did not receive
ineffective assistance of counsel because his assault, robbery, and kidnapping offenses did not
encompass the same criminal conduct. We decline to address Jones' s prosecutorial misconduct
claim because he invited any error.
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We affirm Jones' s convictions, but remand to the sentencing court to correct his sentence
for each of the second degree assault convictions so that the combined term of confinement and
community custody for each conviction does not exceed the statutory maximum.
FACTS
Kayleigh Littlefield is the mother of Jones' s son. Because of Jones' s behavioral
problems, she cut off his contact with their son around Christmas of 2012.
In early January 2013, Jones arrived at Littlefield' s school and waited for her, carrying a
pistol that he believed would enhance his persuasiveness in demanding to see his son. When
Littlefield arrived, Jones accosted her, aimed his pistol at her, told her that she could not take his
son from him, and demanded that Littlefield go on a walk with him. Littlefield assented, but
when Jones demanded the keys to her car, Littlefield refused. Though the parties disagree on
what exactly happened next, they do agree that the firearm discharged and the bullet struck
Littlefield in the abdomen. 1 Littlefield then gave Jones the keys.
Jones demanded that Littlefield get into her car, and she complied out of fear that Jones
would shoot her again. As Jones drove them toward his mother' s house, he repeatedly struck the
butt of his loaded pistol on Littlefield' s dashboard. Again, Jones and Littlefield dispute exactly
what happened, but they agree that at some point in the car ride the firearm discharged again and
the bullet narrowly missed Littlefield as it flew past her, shattering the passenger side window.2
1 Jones testified that the gun went off when Littlefield attempted to grab it. Littlefield testified
that she could not remember exactly what happened, but that she had told the officer
immediately after the incident that Jones had intentionally shot her.
2 Jones contended that the gun again discharged accidentally when he struck it on the dashboard
of Littlefield' s car. Littlefield testified that she could not remember exactly what happened, but
that the gun was close by her face when fired and that she had told the investigating officer soon
after the shooting that it was intentional.
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Once at Jones' s mother' s house, Jones continued to harangue Littlefield about their son
while they sat outside in Littlefield' s car. Jones eventually asked Littlefield how much money
she had. She replied that she had $ 300 in her bank account. Jones then told Littlefield that he
wanted money to get a shotgun to " shoot [ her] mom." V Verbatim Report of Proceedings ( VRP)
at 43.
Jones then drove Littlefield to .a nearby convenience store where he demanded
Littlefield' s automated teller machine ( ATM) card and her personal identification number (PIN).
Since Jones was still armed with the pistol, Littlefield felt that she had no choice but to comply.
Jones went inside the store and withdrew $200 dollars from Littlefield' s account, watching
Littlefield, who remained in the car, through the store' s window to make sure she did not attempt
to escape.
Jones let Littlefield go after several more hours. She then drove herself to a hospital,
received treatment for the gunshot wound, and survived.
Among other crimes, the State charged Jones with one count of first degree assault for the
shooting of Littlefield outside her school, one count of first degree assault for the shot fired in
Littlefield' s car, one count of first degree robbery for taking Littlefield' s ATM card and PIN, and
one count of first degree kidnapping. The State alleged that each of these offenses was a
domestic violence offense and that Jones was armed with a firearm during the commission of
each.
After a trial, the jury found Jones guilty of, among other crimes, first degree kidnapping,
first degree robbery, and two counts of the lesser included offense of second degree assault. The
jury also found that ( 1) the assault, kidnapping, and robbery offenses were domestic violence
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offenses because Jones and Littlefield were members of the same household and ( 2) Jones was
armed with a firearm during the commission of the assaults, robbery, and kidnapping.
The sentencing court imposed a high -end standard range sentence for each of Jones' s
convictions, running each sentence concurrently with the sentences for Jones' s other convictions
and consecutively to each of the firearm enhancements, which ran consecutively to each other.
For the two second degree assault convictions, this amounted to a sentence of 84 months of
confinement for each underlying charge and 36 months of confinement for each firearm
enhancement, for a total of 120 months for each conviction. The sentencing court also imposed
an 18 -month term of community custody for each of the second degree assault convictions.
Jones now appeals.
ANALYSIS
I. SENTENCING
Jones first contends that the trial court imposed a sentence in excess of its statutory
authority for each of his second degree assault convictions. Specifically, Jones argues that the
term of confinement and community custody imposed for each conviction exceeds the statutory
maximum for each offense. The State concedes error. We accept the concession and remand for
correction of his sentence.
Thomas' s second degree assault convictions are class B felonies. RCW 9A.36. 021( 2)( a).
The maximum allowed term for a class B felony is 120 months. RCW 9A.20. 021( 1)( b). A
sentencing court " may not impose a sentence providing for a term of confinement or community
custody that exceeds the statutory maximum" prescribed by RCW 9A.20. 021. RCW
9. 94A. 505( 5). If the combined term of confinement and community custody for a standard range
sentence exceeds the statutorily permissible time, the sentencing court must reduce the term of
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community custody to ensure a lawful sentence. RCW 9. 94A.701( 9); In re Pers. Restraint of
McWilliams, _ Wn. 2d , 340 P.3d 223, 225, 2014 WL 7338498 at * 2 ( 2014).
The sentencing court imposed a term of confinement of 120 months for each of Jones' s
second degree assault convictions: a standard range sentence of 84 months of confinement with
36 months for each firearm enhancement. The trial court also imposed a term of community
custody of 18 months for each conviction. The 138 -month total term for each offense exceeded
the 120 -month term permitted by RCW 9A.20. 021( 1)( b). We therefore remand the matter to the
sentencing court to amend Jones' s term of community custody to comply with RCW
9. 94A. 505( 5) and . 701( 9). State v. Boyd, 174 Wash. 2d 470, 473, 275 P.3d 321 ( 2012) ( per
curiam).
II. DOUBLE JEOPARDY
Jones next contends that his sentence violated double jeopardy because several of his
convictions merge together. Specifically, he argues that the assaults and robbery merge because
the assaults were necessary to elevate the robbery to first degree. He argues also that the
kidnapping and robbery merge because the restraint involved in the kidnapping was incidental to
the robbery. We review Jones' s double jeopardy claims de novo, State v. Kelley, 168 Wash. 2d 72,
76, 226 P.3d 773 ( 2010), and hold that none of Jones' s convictions merge.
Both the state and federal constitutions forbid the State from putting a person in jeopardy
twice for the same offense. WASH. CONST. art. I, § 9; U.S. CONST. amend. V.3 These
constitutional provisions are coextensive, State v. Turner, 169 Wash. 2d 448, 454, 238 P.3d 461
3
Article I, section 9 of the Washington Constitution provides that "[ n] o person shall be ... twice
put in jeopardy for the same offense." The Fifth Amendment to the United States Constitution
provides the same guarantee, stating that "[ n] o person shall be ... subject for the same offense to
be twice put in jeopardy of life or limb."
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2010), and offer " three separate constitutional protections." North Carolina v. Pearce, 395 U.S.
711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 ( 1969), overruled on other grounds by Alabama v.
Smith, 490 U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d 865 ( 1989). They protect against ( 1) a
second prosecution for the same offense after an acquittal, ( 2) a second prosecution for the same
offense after conviction, and ( 3) multiple punishments for the same offense. Pearce, 395 U.S. at
717; Turner, 169 Wash. 2d at 454. Jones claims that his sentence violated the third protection
offered by the prohibition on double jeopardy, because he received multiple punishments for the
same offense by virtue of his separate convictions for assault, kidnapping, and robbery.
The legislature may, without offending the prohibition against double jeopardy, authorize
cumulative punishments for acts that violate multiple criminal statutes. State v. Freeman, 153
Wash. 2d 765, 771, 108 P.3d 753 ( 2005). Consequently, " the Double Jeopardy Clause does no
more than prevent the sentencing court from prescribing greater punishment than the legislature
intended." Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 74 L. Ed. 2d 535 ( 1983).
Thus, the resolution of Jones' s claims require us to examine the legislature' s intent.
We review de novo whether the legislature intended to permit multiple punishments
using a three -part test. State v. Kier, 164 Wash. 2d 798, 804, 194 P.3d 212 ( 2008). " We first
consider express or implicit legislative intent based on the criminal statutes involved." Kier, 164
Wash. 2d at 804. Where the legislature' s intent remains unclear, we apply the " same evidence" test
announced in Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306
1932). Kier, 164 Wash. 2d at 804 ( citations omitted). That test examines whether the crimes are
the same in law and in fact." Kier, 164 Wash. 2d at 804. Finally, where applicable, we use the
merger doctrine as a means of ascertaining legislative intent regarding multiple punishments
where the degree of one offense is elevated by conduct constituting a separate offense." Kier,
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164 Wash. 2d at 804. Jones concedes that the first two parts of this test show no double jeopardy
violation. Therefore, like Jones, we limit our analysis to the question of whether his offenses
merge. State v. Knight, 176 Wash. App. 936, 953 n. 17, 309 P.3d 776 ( 2013), review denied, 179
Wash. 2d 1021 ( 2014).
In State v. Berg, Wn.2d , 337 P.3d 310, 314 ( 2014), our Supreme Court
summarized the merger doctrine in the following terms:
Essentially, the merger doctrine states that where crime A and crime B are charged
separately and completion of crime A is also an element of crime B, crime A will
definitely merge into crime B if crime A was incidental to the commission of
crime B. If crime A was not incidental but rather had an independent purpose .
courts may impose separate punishment. Thus, the incidental nature of the
crime is relevant to the application of an exception to the general merger
doctrine.
We examine Jones' s merger claims under this test.
1. Assault and Robbery
Jones first contends that his two assault convictions merge into his robbery conviction
because they " provided the force necessary to elevate the robbery to first degree." Br. of
Appellant at 14. Jones' s argument fails under Berg._
The legislature has provided that the infliction of bodily injury during the commission of
a robbery elevates the robbery to first degree. RCW 9A.56. 200( 1)( a)( iii). To determine whether
either of Jones' s assaults merges with the robbery, we look to " the information, instructions,
testimony and jury argument" to determine whether the State charged and proved that Jones
committed first degree robbery because he inflicted bodily injury on Littlefield during
commission of the robbery. State v. Noltie, 116 Wash. 2d 831, 848 -49, 809 P.2d 190 ( 1991).
The record before us shows conclusively that the State did not charge and prove first
degree robbery by the infliction of bodily injury during the robbery. Instead, the record shows
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that the State charged Jones with first degree robbery because he deprived Littlefield of personal
property by use or threatened use of force and was armed with a deadly weapon when he did so.
The evidence presented by the State at trial was consistent with this election. Littlefield testified
that Jones committed the assaults some time before he robbed her. She testified also that she
complied with Jones' s demands for her ATM card and PIN, not because he assaulted her, but
because he was armed with a firearm when he made the demands. Consistently with that
evidence, the trial court instructed the jury that Jones committed first degree robbery if he
deprived Littlefield of personal property while armed with a firearm. Significantly, the trial
court did not instruct the jurors that the infliction of bodily injury during the robbery would
elevate the robbery to first degree.
The charges, the evidence, and the jury instructions all show, therefore, that the assaults
were not elements of the robbery and that the assaults had an independent purpose from that of
the robbery. With that, these crimes do not merge under the characterization of merger in Berg,
337 P.3d at 314.
2. Kidnapping and Robbery
Jones next contends that the first degree kidnapping conviction merged into the first
degree robbery conviction because the kidnapping was incidental to the robbery. As our
Supreme Court stated in Berg, "[ t] he law is now settled that just as kidnapping can never merge
into robbery, neither can robbery merge into kidnapping." Berg, 337 P.3d 310, 314 ( citing State
v. Louis, 155 Wash. 2d 563, 571 120 P.3d 936 ( 2005)). In light of this settled law, Jones' s claim is
without merit.
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III. INEFFECTIVE ASSISTANCE OF COUNSEL
Finally, Jones contends that his counsel rendered ineffective assistance by failing to argue
at sentencing that the two assaults, robbery, and kidnapping convictions all encompassed the
same criminal conduct. We review Jones' s claim de novo. State v. Sutherby, 165 Wash. 2d 870,
883, 204 P.3d 916 ( 2009). Because none of Jones' s offenses occurred at the same time or in the
same place as the others, and because many of them involved different criminal intents, Jones' s
crimes do not encompass the same criminal conduct. We therefore reject Jones' s claim, since
counsel cannot have performed deficiently by declining to make a meritless argument. State v.
Brown, 159 Wash. App. 1, 17, 248 P.3d 518 ( 2010).
Both the state and federal constitutions guarantee criminal defendants the right to
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effective assistance of counsel. State v. Grier, 171 Wash. 2d 17, 32, 246 P.3d 1260 ( 2011), cert.
denied, 135 S. Ct. 153 ( 2014). A claim of ineffective assistance requires the defendant to show
that counsel performed deficiently and that this deficient performance prejudiced the defendant.
Grier, 171 Wash. 2d at 32 -33 ( quoting State v. Thomas, 109 Wash. 2d 222, 225 -26, 743 P.2d 816
1987) ( quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
1984))). The deficient performance and prejudice showings are conjunctive, and we may
resolve an ineffective assistance claim against a defendant failing to make the necessary showing
on either. State v. Kyllo, 166 Wash. 2d 856, 862, 215 P.3d 177 ( 2009).
In deciding whether counsel' s performance was deficient, we " strong[ ly] presume[ e] that
counsel " provided proper, professional assistance" and " will not find deficient representation if
4
Article I, section 22 of the Washington Constitution states that "[ i] n all criminal prosecutions
the accused shall have the right to appear and defend in person, or by counsel." The Sixth
Amendment of the United States Constitution states that "[ i]n all criminal prosecutions, the
accused shall enjoy the right ... to have the assistance of counsel for his defense."
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counsel' s actions were tied to a legitimate strategic or tactical rationale." State v. Saunders, 120
Wn. App. 800, 819, 86 P.3d 232 ( 2004) ( citing State v. Lord, 117 Wash. 2d 829, 883, 822 P.2d 117
1991)). The failure to argue that several crimes encompass the same criminal conduct can
constitute deficient performance. Saunders, 120 Wash. App. at 824 -25.
Offenses " encompass the same criminal conduct" for sentencing purposes where they
require the same criminal intent, are committed at the same time and place, and involve the
same victim." RCW 9. 94A. 589( 1)( a). We interpret the " same criminal conduct" language of
RCW 9. 94A. 589( 1)( a) " narrowly to disallow most claims that multiple offenses constitute the
same criminal act." State v. Porter, 133 Wash. 2d 177, 181, 942 P.2d 974 ( 1997). Accordingly, a
defendant' s failure to show that offenses involved the same criminal intent, same place and time
of commission, and same victim " prevents a finding of same criminal conduct." Porter, 133
Wash. 2d at 181.
The " same criminal intent" prong of RCW 9. 94A. 589( 1)( a) " focus[ es] on the extent to
which the criminal intent, as objectively viewed, changed from one crime to the next." State v.
Dunaway, 109 Wash. 2d 207, 215, 743 P.2d 1237 ( 1987). Whether a defendant' s criminal intent
changed, in turn, depends, in part, on " whether one crime furthered the other." Dunaway, 109
Wash. 2d at 215. The fact that Jones' s conduct as a whole may have been motivated by a desire to
see his son is beside the point. We examine instead how Jones' s intent, objectively viewed, may
have changed from one specific crime to the next. Dunaway, 109 Wash. 2d at 215.
The " same time and place" prong of RCW 9. 94A.589( 1)( a) requires that offenses
completely overlap in terms of their times and places of commission in order to constitute the
same criminal conduct. State v. Lessley, 118 Wash. 2d 773, 778, 827 P.2d 996 ( 1992). For
example, in Lessley the defendant broke into his ex- girlfriend' s parent' s house and then
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kidnapped her and her mother. 118 Wash. 2d at 775. Lessley forced the ex- girlfriend to drive him
to different places over the course of the kidnapping. Lessley, 118 Wash. 2d at 775. On appeal,
Washington' s Supreme Court held that Lessley' s burglary and kidnapping offenses did not
encompass the same criminal conduct because they had different criminal intents, did not occur
at the same time or in the same place, and involved different victims. Lessley, 118 Wash. 2d at 778.
The court noted that the burglary was complete at the ex- girlfriend' s parent' s house, but that the
kidnapping " was carried out over several hours' time" in numerous places. Lessley, 118 Wash. 2d
at 778. Accordingly, the court held that "[ t] he burglary and the kidnapping were not confined to
the same time and place." Lessley, 118 Wash. 2d at 778.
A. The Assaults Do Not Encompass the Same Criminal Conduct
Generally, " there is one clear category of cases where two crimes will encompass the
same criminal conduct— ` the repeated commission of the same crime against the same victim
over a short period of time. "' Porter, 133 Wash. 2d at 181 ( quoting 13A SETH A. FINE,
WASHINGTON PRACTICE § 2810, at 112 ( Supp. 1996)) ( emphasis omitted). That rule is not
absolute, however, and repeated commission of the same completed crime against the same
victim in a short period of time does not necessarily encompass the same criminal conduct. State
v. Grantham, 84 Wash. App. 854, 858 -60, 932 P.2d 657 ( 1997).
In Grantham, the defendant raped his victim twice in rapid succession. 84 Wash. App. at
856. The State charged Grantham with two counts of second degree' rape for the offenses, a jury
convicted him, and the trial court found that the two offenses did not encompass the same
criminal conduct for sentencing purposes. Grantham, 84 Wash. App. at 857. We affirmed the trial
court' s findings because, after completing the first rape, Grantham " had the time and opportunity
to pause, reflect, and either cease his criminal activity or proceed to commit a further criminal
No. 45143 -3 -II
act." Grantham, 84 Wash. App. at 859. Because Grantham " chose the latter" option, he formed a
new intent to commit a criminal act. Grantham, 84 Wash. App. at 859.
In light of Grantham, Jones' s two assaults on Littlefield involved different criminal
intents. Jones committed the first assault when he shot Littlefield. After shooting her, Jones
obtained her car keys, ordered her into the car, drove off toward his mother' s house, and
continued to berate Littlefield loudly and violently for cutting off his access to his son. Jones
had time to pause, reflect, and cease his criminal activity. He did not do so. Instead, he formed
the criminal intent to assault Littlefield again. Under Grantham, the two assaults involved
different criminal intents.
Jones' s two assaults also did not occur at the same time or place. The first assault
occurred around 7: 00 a.m., when Jones shot Littlefield somewhere near her school. The second
occurred sometime later in Littlefield' s car after Jones drove her away from the school.
Because Jones' s assaults involved different criminal intents, occurred at different times,
and occurred in different places, they do not constitute the same criminal conduct. Porter, 133
Wash. 2d at 181; RCW 9. 94A.589( 1)( a).
The Assaults and the Kidnapping Do Not Encompass the Same Criminal Conduct
Even if we were to assume that both assaults shared the same criminal intent with the
kidnapping, 5 the assaults did not occur at the same time and in the same place as the kidnapping.
The first assault began and was completed outside of her school. The second assault began and
was completed in Littlefield' s car between the school and Jones' s mother' s house. The
5 The first assault, objectively viewed, may have furthered the kidnapping because Jones shot
Littlefield to prevent her from resisting the abduction. See State v. Edwards, 45 Wash. App. 378,
382 -83, 725 P.2d 442 ( 1986), overruled on other grounds by Dunaway, 109 Wash. 2d at 215. Jones
makes no substantial argument as to how the second assault did the same, and since Jones had
Littlefield secured in her car and was driving away, such an argument could not be accepted.
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kidnapping began outside the school and continued for six hours, in places as diverse as inside
Littlefield' s car, outside Jones' s mother' s house, in a convenience store parking lot, inside
Jones' s mother' s house, inside Littlefield' s car again, outside a pawn shop, in the alley where
Jones met an acquaintance, and back at Jones' s mother' s house, where the kidnapping ended.
The complete overlap in space and time necessary for a finding that the assaults and kidnapping
encompassed the same criminal conduct was simply not present here. Porter, 133 Wash. 2d at 181;
Lessley, 118 Wash. 2d at 778; RCW 9. 94A.589( 1)( a).
C. The Assaults Do Not Encompass the Same Criminal Conduct as the Robbery
The assaults and the robbery had different criminal intents. Objectively viewed, Jones
assaulted Littlefield to force her to comply with his commands to come with him or to instill fear
in her. Objectively viewed, Jones committed robbery to " acquire property." Dunaway, 109
Wash. 2d at 216.
Further, Jones' s assaults and the robbery did not occur in the same place or at the same
time. As noted above, the first assault took place at her school, the second happened later in
Littlefield' s car while Jones drove her to his mother' s house, and the robbery occurred at some
later time in a convenience store parking lot. None of the offenses occurred at the same time or
in the same place as the others. Lessley, 118 Wash. 2d at 778. For each of these reasons, the
assault and robbery offenses did not encompass the same criminal conduct. Porter, 133 Wash. 2d
at 181; Lessley, 118 Wash. 2d at 778; RCW 9. 94A.589( 1)( a).
D. The Kidnapping Does Not Encompass the Same Criminal Conduct as the Robbery
In State v. Larry, we held that a continuing kidnapping which shared some temporal
overlap with a robbery did not require the same criminal intent or occur in the same place or at
the same time as the robbery. 108 Wash. App. 894, 34 P.3d 241 ( 2001). In Larry, two men
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kidnapped a restaurant manager, robbed him, returned to the restaurant and forced the manager
to open its safe, which they looted. Larry, 108 Wash. App. at 899. The two men then took the
manager to various locations before shooting him and leaving him for dead. Larry, 108 Wn.
App. at 899. We held that the kidnapping and robbery involved different criminal intents.
Larry, 108 Wash. App. at 916. We also held that the robbery and the kidnapping did not occur at
the same place or time because " the kidnapping occurred over a period of time and in several
locations, whereas the robbery occurred at a single time and place." Larry, 108 Wash. App. at 916.
Here, as in Larry, Jones' s kidnapping and robbery offenses involved different criminal
intents. As in Larry, the kidnapping began before the robbery and continued long after it,
continuing in places where the robbery did not occur. The different intents, places, and times
prevent a finding that the kidnapping and robbery encompassed the same criminal conduct.
Porter, 133 Wash. 2d at 181; Lessley, 118 Wash. 2d at 778; Larry, 108 Wash. App. at 916; RCW
9. 94A. 589( 1)( a).
IV. PROSECUTORIAL MISCONDUCT
In his SAG, Jones alleges that the prosecutor committed misconduct by ordering
Littlefield and a police detective not to testify that Jones " was on a crack cocain[ e] b[ i]nge for
day[ s] [ leading] up to the inc[ i] dent." SAG at 2. The prosecutor told Littlefield and the detective
not to mention Jones' s drug use in order to comply with the trial court' s order on a motion in
limine. Jones moved for that order. Jones thus set up the error he now complains of, and we
decline to review his claim under the invited error doctrine. City ofSeattle v. Patu, 147 Wash. 2d
717, 720, 58 P.3d 273 ( 2002).
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CONCLUSION
We affirm Jones' s convictions, but remand to the sentencing court to correct his sentence
for each of the second degree assault convictions so that the combined term of confinement and
community custody for each conviction does not exceed the statutory maximum.
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 in accordance with RCW
2. 06. 040, it is so ordered.
We concur:
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