State of Washington v. Yuriy Leonidovich Gulchuk ( 2019 )

FILED
APRIL 23, 2019
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 36006-7-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
YURIY LEONIDOVICH GULCHUK, )
)
Appellant. )
LAWRENCE-BERREY, C.J. — Yuriy Gulchuk appeals after he pleaded guilty to
attempted child molestation in the second degree and communication with a minor for
immoral purposes. He argues (1) the trial court erred by finding him guilty because there
was insufficient evidence he took a substantial step toward committing child molestation,
and (2) pursuant to Ramirez,1 remand is required to strike the criminal filing fee and the
deoxyribonucleic acid (DNA) collection fee. In a statement of additional grounds for
review (SAG), Mr. Gulchuk argues he received ineffective assistance of counsel because
1
State v. Ramirez, 191 Wn.2d 732, 426 P.3d 714 (2018).
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his offenses constituted the same criminal conduct and should not have counted against
each other in his offender score calculation. We conclude that Mr. Gulchuk’s sufficiency
challenge is not appealable and his offender score was correctly calculated, but that
remand is appropriate for the trial court to strike the challenged fees.
FACTS
On July 9, 2017, Mr. Gulchuk responded to an online Craigslist ad placed by an
undercover detective entitled, “‘young looking for older daddy—w4m.’” Clerk’s Papers
(CP) at 3. Mr. Gulchuk and the detective, posing as a 13-year-old girl, began messaging
back and forth. Mr. Gulchuk discussed having oral sex and sexual intercourse with her.
She said she wanted a gift of money and asked Mr. Gulchuk if he had condoms. He said
he would bring condoms and that he would give her a donation after sex, but that the
donation amount depended on how good she was. He asked if there was a store close to
her. He then followed her instructions directing him to a car wash. Once there, she then
sent Mr. Gulchuk the address of her apartment. He went to the apartment complex and
drove around it for several minutes before texting her, “‘I have bad feelings’” and
leaving. CP at 109. Police then detained and arrested Mr. Gulchuk. A search of his
person showed he did not have money or condoms. Mr. Gulchuk later said he saw police
as he drove around the complex.
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No. 36006-7-III
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The State originally charged Mr. Gulchuk with attempted rape of a child in the
second degree. Mr. Gulchuk filed a Knapstad2 motion. He argued that his actions did not
constitute an attempt—a substantial step toward committing the charged crime—because
he abandoned any plan to have sex with the fictitious girl. The State responded that Mr.
Gulchuk did take a substantial step toward committing the charged crime because he
followed the fictitious girl’s directions to two predetermined spots, and he did not
abandon his attempt until he saw police. Mr. Gulchuk replied that his actions constituted
mere preparations, not a substantial step, because he never went to the apartment where
the girl was supposed to be and because he did not bring money or condoms with him.
The trial court denied Mr. Gulchuk’s motion and explained:
I don’t believe that an individual not doing some of the things that they say,
bringing some of the items that are requested . . . defeats on Knapstad the
ability to find a substantial step; nor does, shall we say either cold feet or a
concern of discovery under Knapstad defeat substantial step evidence.
Report of Proceedings (RP) (Jan. 17, 2018) at 16.
Mr. Gulchuk filed a motion for reconsideration and cited authorities he believed to
be contrary to the trial court’s decision. The trial court issued a written decision denying
Mr. Gulchuk’s motion. It explained that whether Mr. Gulchuk’s actions constituted a
substantial step was a question of fact.
2
State v. Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986).
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No. 36006-7-III
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The State then amended the charges to attempted child molestation in the second
degree and communication with a minor for immoral purposes. Mr. Gulchuk pleaded
guilty to both counts. The judgment and sentence presented to the trial court showed Mr.
Gulchuk’s offender score as a 3, with a standard range of 23.25-30.75 months for count 1,
and 9-12 months for count 2. In accordance with the plea agreement, the trial court
sentenced Mr. Gulchuk to 30.75 months on count 1 and to 9 months on count 2, with both
sentences to run concurrent.
Mr. Gulchuk timely appealed.
ANALYSIS
A. SUFFICIENCY OF THE EVIDENCE
Mr. Gulchuk contends the trial court erred by finding him guilty because there was
insufficient evidence that he took a substantial step toward committing child molestation
in the second degree. We conclude that his argument is not appealable.
Generally, a defendant waives the right to appeal by pleading guilty. State v.
DeRosia, 124 Wn. App. 138, 143, 100 P.3d 331 (2004). “[A] counseled plea of guilty is
an admission of factual guilt so reliable that, where voluntary and intelligent, it quite
validly removes the issue of factual guilt from the case.” Menna v. New York, 423 U.S.
61, 62 n.2, 96 S. Ct. 241, 46 L. Ed. 2d 195 (1975). A guilty plea thus provides a
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sufficient and independent factual basis for conviction. In re Pers. Restraint of Bybee,
142 Wn. App. 260, 268, 175 P.3d 589 (2007). A voluntary guilty plea waives a
defendant’s right to appeal the sufficiency of the evidence. Id. Therefore, Mr. Gulchuk
cannot challenge the sufficiency of the evidence on appeal.3
B. RAMIREZ MOTION
Citing Ramirez, Mr. Gulchuk asks that we strike two legal financial obligations
(LFOs)—the criminal filing fee and the DNA collection fee.
House Bill 1783, which became effective June 7, 2018, prohibits trial courts from
imposing discretionary LFOs on defendants who are indigent at the time of sentencing.
LAWS OF 2018, ch. 269, § 6(3); Ramirez, 191 Wn.2d at 746. This change to the criminal
filing fee statute is now codified in RCW 36.18.020(2)(h). As held in Ramirez, changes
to the criminal filing fee statute apply prospectively to cases pending on direct appeal
prior to June 7, 2018. Ramirez, 191 Wn.2d at 738. Accordingly, the change in law
applies to Mr. Gulchuk’s case. Because Mr. Gulchuk is indigent, the criminal filing fee
must be struck pursuant to Ramirez.
3
We note that a defendant can challenge the factual basis of a guilty plea. But Mr.
Gulchuk does not raise this challenge. Nonetheless, his challenge to the factual basis
would have been unsuccessful for the reasons discussed in the State’s responsive brief.
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The change in law also prohibits the collection of a DNA fee when the State has
previously collected the offender’s DNA as a result of a prior conviction. LAWS OF 2018,
ch. 269, § 18. The uncontested record establishes this fact. Mr. Gulchuk has two
Washington State felonies since 1990. Since that time, Washington law has required
defendants with a felony conviction to provide a DNA sample. LAWS OF 1989, ch. 350,
§ 4; RCW 43.43.754. Given the uncontested record, we presume that a DNA sample has
been collected from Mr. Gulchuk prior to the current judgment and sentence. We,
therefore, direct the trial court to also strike the DNA collection fee.
SAG: INEFFECTIVE ASSISTANCE OF COUNSEL
In his SAG, Mr. Gulchuk argues he received ineffective assistance of counsel
because his trial counsel did not object to his offender score calculation.
To protect a defendant’s right to counsel, a defendant has the right to receive
effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984). An allegation of ineffective assistance of counsel is a
mixed question of law and fact that we review de novo. Id. at 698. To determine whether
counsel provided effective assistance we apply a two-pronged test: (1) whether counsel’s
performance was deficient, and (2) whether that deficient performance prejudiced the
defendant to an extent that changed the result of the trial. Id. at 687. To determine
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No. 36006-7-III
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whether counsel’s performance was deficient, the defendant has the burden to show that
counsel’s performance fell below an objective standard of reasonableness. State v.
McFarland, 127 Wn.2d 322, 332-35, 899 P.2d 1251 (1995).
Mr. Gulchuk’s ineffective assistance of counsel claim is dependent on convincing
us that his two offenses encompass the same criminal conduct. We are not convinced.
A trial court’s determination of whether convictions constitute the same criminal
conduct is reviewed for an abuse of discretion or misapplication of law. State v.
Graciano, 176 Wn.2d 531, 535, 295 P.3d 219 (2013). “An abuse of discretion occurs
only when the decision of the court is ‘manifestly unreasonable, or exercised on untenable
grounds, or for untenable reasons.’” State v. McCormick, 166 Wn.2d 689, 706, 213 P.3d
32 (2009) (quoting State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775(1971)). “A court abuses its discretion when the record supports only one conclusion on
whether the crimes constitute the same criminal conduct.” State v. Latham, 3 Wn. App.
2d 468, 479, 416 P.3d 725, review denied, 191 Wn.2d 1014, 426 P.3d 738 (2018). When
either conclusion is adequately supported by the record, the decision is within the trial
court’s discretion. Graciano, 176 Wn.2d at 538. If the court finds “that some or all of
the current offenses encompass the same criminal conduct then those current offenses
shall be counted as one crime.” RCW 9.94A.589(1)(a).
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The Sentencing Reform Act of 1981, chapter 9.94A RCW, defines “same criminal
conduct” as “two or more crimes that require the same criminal intent, are committed at
the same time and place, and involve the same victim.” RCW 9.94A.589(1)(a). Here, the
two crimes were not committed at the same time or place. Mr. Gulchuk committed the
crime of communicating with a minor for immoral purposes when he sent sexually
explicit texts to a detective posing as a 13-year-old girl. However, he did not commit the
crime of attempted molestation of a child in the second degree until he actually attempted
to meet her and have sex. Mr. Gulchuk drove to two separate meeting places they agreed
on. Because each of the crimes happened at a different time and place, they do not
qualify as same criminal conduct. Because the record supports the conclusion that the
two convictions were not the same offense, the trial court did not abuse its discretion.
We conclude that Mr. Gulchuk did not receive ineffective assistance because his
offender score was correctly calculated. Moreover, Mr. Gulchuk’s offender score and
sentence range is what he agreed to in the plea agreement.
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Affirmed, but remanded to strike the criminal filing fee and DNA collection fee.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
1
Lawrence-Beirey, C.J.
WE CONCUR:
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