State Of Washington v. Bradley Pulley Killian, Iii ( 2014 )


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  •                                                                                         FILED
    COURT OF APPEALS
    DIVISION uI
    2014 DEC -     2 AM 8 59
    STATE   OF WASHINGTON
    IN THE COURT OF APPEALS OF THE STATE OE                                      ASHA          TON
    D•   Uy
    DIVISION II
    STATE OF WASHINGTON,                                              Consolidated Nos. 44926 -9 -11
    45958 -2 -II
    Respondent,
    v.
    UNPUBLISHED OPINION
    BRADLEY PULLEY KILLIAN, III,
    Appellant.
    In Re the Personal Restraint Petition of:
    BRADLEY PULLEY KILLIAN, III,
    Petitioner.
    MAxA, J. —     Bradley Killian appeals his convictions following a bench trial for assault in
    the   second   degree ( two   counts),   assault in the fourth degree, harassment, and felony harassment
    arising from a series of domestic violence incidents with his wife. Killian argues that defense
    counsel' s failure to impeach his wife using her contradicting statements on one issue constituted
    ineffective assistance of counsel. Killian' s appeal is consolidated with his personal restraint
    petition ( PRP),   in which he argues that his convictions for assault and for harassment violated
    double jeopardy, his multiple convictions should have been treated as the same criminal conduct
    for sentencing purposes, two 1996 convictions should have been treated as the same criminal
    conduct for sentencing purposes, and the trial court lacked the authority to impose an exceptional
    sentence.
    Consol. Nos. 44926 -9 -II / 45958 -2 -II
    We hold that ( 1) even if counsel was ineffective in failing to cross -examine on
    inconsistent   statements,    Killian   suffered no prejudice; ( 2)     Killian' s two assault convictions
    involved different courses of conduct and his two harassment convictions were for separate acts,
    and   therefore   did   not violate   double     jeopardy; ( 3) Killian' s second degree assault and felony
    harassment did     not constitute     the   same criminal conduct; ( 4)    Killian presented no evidence or
    argument that his two 1996 convictions constituted the same criminal conduct at that time, and
    therefore he cannot establish error in counting these convictions separately in his offender score;
    and ( 5) the trial court had authority to impose an exceptional sentence based on an aggravating
    factor of 40 unscored misdemeanors. Accordingly, we affirm Killian' s convictions and sentence
    and deny his PRP.
    FACTS
    Killian and his wife Kierra Henderson were involved in an argument on March 15, 2012.
    On March 16 Killian held a hot iron to Henderson' s thigh for roughly ten seconds. On March
    17, Killian slapped Henderson, pinned her down, and then held a lit cigarette near her eyes while
    threatening    to " burn [ Henderson'       s]   eyes out."   Verbatim Report. of Proceedings ( VRP) ( Feb. 19,
    2013) at 229. On March 18, Killian entered the bathroom where Henderson was showering and
    held a knife to her throat while he threatened to kill her.
    The State charged Killian with five separate counts based on these events. Count I
    alleged Killian committed second degree assault when he pressed a hot iron against Henderson' s
    leg on March 16. Counts II and III alleged Killian committed fourth degree assault and
    harassment respectively when he struck Henderson and threatened to burn her eyes with a lit
    cigarette on March 17. Counts IV and V alleged Killian committed second degree assault and
    2
    Consols Nos. 44926 -9 -I1 / 45958 -2 -I1
    felony harassment respectively when he threatened to kill Henderson with a knife while she
    showered on March 18. The State' s charges all included domestic violence sentencing
    enhancements, and the felony charges included unscored misdemeanor aggravators as well.
    At trial Henderson testified about the burn mark on her leg that Killian caused when he
    burned her with the hot iron. One officer who arrested Killian testified that Henderson showed
    him the burn at that time.
    The State offered into evidence an iron that officers seized from Killian' s and
    Henderson' s residence. But Henderson testified that the iron presented at trial was not the iron
    used by Killian to burn her because the setting dial was broken. She testified that she owned
    multiple irons because her brother worked for a hotel and would give her irons the hotel no
    longer used. Because Henderson testified the iron presented at trial was identical to the iron
    Killian used to burn her, the trial court admitted the iron as an illustrative exhibit.
    Killian testified in his own defense and denied that any altercations took place. Killian' s
    nephew testified for the defense that Henderson stated she accidentally burned herself with the
    iron.
    The trial court found Killian guilty on all charges except Count IV, one of the second
    degree assault charges. The trial court also found that the State proved the domestic violence
    sentencing enhancements and unscored misdemeanor aggravators. At sentencing, defense
    counsel informed the court that he recently noticed the police report indicated that Henderson
    told the   police   that the iron the   officers collected was "   the only iron in the house."      VRP ( May
    17, 2013) at 9. Counsel stated that his failure to impeach Henderson with this statement may
    have    constituted   ineffective   assistance of counsel.   The trial   court stated, "   I don' t think
    3
    Consol. Nos. 44926 -9 -II / 45958 -2 -II
    Henderson'   s   contradictory   statement]   probably     would    have   made   any difference."   VRP ( May
    17, 2013) at 11.
    The trial   court sentenced   Killian    within   the   standard range    for the two felonies —63
    months confinement      for Count I   and   43   months confinement        for Count V - but imposed an
    exceptional sentence when it ordered the sentences to be served consecutively. The trial court' s
    written findings of fact and conclusions of law identified Killian' s unscored misdemeanor
    criminal history as the aggravating factor for the exceptional sentence. Killian appeals.
    ANALYSIS
    A.      INEFFECTIVE ASSISTANCE OF COUNSEL
    Henderson testified at trial that the broken iron the State offered into evidence was not
    the iron Killian had used to burn her and that she owned several irons. This testimony Was
    inconsistent with the statement she made to officers that the iron they collected was the only iron
    in the house. Killian argues that his trial counsel' s performance was deficient because his trial
    counsel failed to impeach Henderson based on her prior inconsistent statement and that this
    failure prejudiced the outcome of his trial. We disagree.
    To prevail on an ineffective assistance of counsel claim, the defendant must show both
    that ( 1) defense counsel' s representation was deficient, and ( 2) the deficient representation
    prejudiced the defendant. State v. Grier, 
    171 Wn.2d 17
    , 32 -33, 
    246 P. 3d 1260
     ( 2011).
    Representation is deficient if, after considering all the circumstances, it falls below an objective
    standard of reasonableness. Grier, 
    171 Wn.2d at 34
    . Prejudice exists if there is a reasonable
    probability that except for counsel' s errors, the result of the proceeding would have differed.
    4
    Consol. Nos. 44926 -9 -II / 45958 -2 -II
    Grier, 
    171 Wn.2d at 34
    . Reasonable probability in this context means a probability sufficient to
    undermine confidence of the outcome. Grier, 
    171 Wn.2d at 34
    .
    Here, even if we assume that defense counsel' s performance was deficient, the record
    demonstrates that the failure to impeach Henderson caused no prejudice. This case is somewhat
    unique in that defense counsel raised his failure to impeach Henderson using her inconsistent
    statement before the trial court that adjudicated Killian' s case. Defense counsel stated that if the
    impeachment would have changed the trial court' s decision he was ineffective, but if it would
    1
    not   have    changed    the decision it    was a moot point.                 In   response,   the trial   court stated, "   Whether
    the specific iron retrieved and presented was correct or not was not really particularly relevant as
    to the   outcome."       VRP ( May 17, 2013)            at   11.   The trial court also noted that the evidence that
    Henderson had been burned              by   an   iron   was substantial.           The trial   court concluded, "     I don' t think
    it probably      would   have     made   any difference."          VRP ( May 17, 2013) at 11.
    Because this case involved a bench trial, the trial court' s conclusion that the impeachment
    would not have affected its decision is significant. Based on the trial court' s indication that use
    of the inconsistent statement to impeach Henderson would have had no bearing on the outcome
    of the case, we hold that Killian cannot demonstrate prejudice. Therefore, we reject Killian' s
    ineffective assistance of counsel claim.
    1
    In its   previous oral     ruling the trial    court     stated, "   I am satisfied beyond a reasonable doubt that
    Henderson]     was   being    truthful.... [    T] he photos and the other testimony is consistent with [ her]
    testimony as       to   what   happened."        VRP (Feb. 20, 2013) at 359.
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    Consol. Nos. 44926 -9 -II / 45958 -2 -II
    B.        PERSONAL RESTRAINT PETITION
    Killian collaterally attacks his conviction through a PRP, arguing that the trial court ( 1)
    violated his right against double jeopardy by convicting and sentencing him for crimes which
    stem   from the   same act of         domestic   violence, (   2) erred by failing to determine that his two
    assault convictions and his two harassment convictions constituted the same criminal conduct,
    3) erred in failing to treat two 1996 convictions as the same criminal conduct, and ( 4) erred by
    imposing an exceptional sentence.
    1.   Standard of Review
    Issues raised for the first time in a PRP must meet a heightened showing before a court
    will grant relief.   In   re   Pers. Restraint of Yates, 
    177 Wn.2d 1
    , 17, 
    296 P. 3d 872
     ( 2013). For
    alleged constitutional errors, a petitioner must show actual prejudice.                        Yates, 
    177 Wn.2d at 17
    .
    For   alleged nonconstitutional errors,          the    petitioner " ``   must show a fundamental defect resulting
    in   a complete miscarriage of justice.'          "    Yates, 
    177 Wn.2d at 17
     ( quoting In re Pers. Restraint of
    Elmore, 
    162 Wn.2d 236
    , 251, 
    172 P. 3d 335
     ( 2007)).                      The petitioner must make these showings
    by a preponderance of the evidence. Yates, 
    177 Wn.2d at 17
    .
    When reviewing         a    PRP,   a court   may: ( 1) dismiss the    petition, ( 2)      transfer the petition for
    a   full determination    on    the   merits or a reference     hearing,    or ( 3)   grant   the   petition.   Yates, 
    177 Wn.2d at 17
    . A court must dismiss a petition that fails to make a prima facie showing of actual
    prejudice for alleged constitutional errors or a fundamental defect resulting in a complete
    miscarriage of justice         for   alleged nonconstitutional errors.         Yates, 
    177 Wn.2d at 17
    .
    6
    Consol. Nos. 44926 -9 -II / 45958 -2 -II
    2.      Double Jeopardy
    A defendant' s constitutional right against double jeopardy precludes multiple
    punishments for the same offense. State v. Villanueva -Gonzalez, 
    180 Wn.2d 975
    , 980, 
    329 P. 3d 78
     ( 2014). We           review      double       jeopardy    claims   de   novo.   Villanueva- Gonzalez, 180 Wn.2d at
    979 -80.
    a.        Second and Fourth Degree Assault Convictions
    Killian argues his second degree assault and fourth degree assault convictions violated
    double jeopardy. We disagree.
    When, as here, a defendant is convicted of two crimes under two different statutes, we
    Blockburger2
    generally apply the                                  test.    Villanueva -Gonzalez, 180 Wn.2d        at   981.   This test asks
    whether the convictions were the same in law and in fact.3 When a defendant has two
    convictions under             the   same statute, we          generally apply the    unit of prosecution     test.   Villanueva -
    Gonzalez, 180 Wn. 2d                 at   980 -81.   This test focuses on the specific act or course of conduct the
    statute    defines      as   the    punishable act.          Villanueva -Gonzalez, 180 Wn.2d        at   980 -81. However, our
    Supreme Court in Villanueva- Gonzalez held that the unit of prosecution test, not the same
    evidence        test,   applies     to    convictions   for different degrees       of assault.   180 Wn.2d at 981 -82.
    Therefore, we must apply the unit of prosecution test to evaluate Killian' s double jeopardy claim.
    The court in Villanueva -Gonzalez also held that assault should be treated as a course of
    conduct crime.            180 Wn.2d          at   984 -85.    Therefore, the question in applying the unit of
    2 Blockburger v. United States, 
    284 U. S. 299
    , 304, 
    52 S. Ct. 180
    , 
    76 L. Ed. 306
     ( 1932).
    3 The Blockburger test also is referred to as the same evidence test. State v. Hughes, 
    166 Wn.2d 675
    , 682 n. 6, 
    212 P. 3d 558
     ( 2009).
    7
    Consol. Nos. 44926 -9 -II / 45958 -2 -II
    prosecution test to assault convictions is whether multiple assault acts constitute one or more
    than   one course of conduct.         Villanueva -Gonzalez, 180 Wn.2d at 985. The court identified the
    following factors for making           this determination, ( 1) the length of time over which the assaultive
    acts took   place, (   2)   whether   the   assaultive acts    took      place   in the   same   location, ( 3) the
    defendant'   s   intent   or motivation     for the different         assaultive acts, (   4) whether the acts were
    uninterrupted, or if there were any intervening acts or events, and ( 5) whether there was an
    opportunity for the defendant to            reconsider   his   actions.       Villanueva -Gonzalez, 180 Wn.2d at 985.
    No one factor is dispositive, and the ultimate determination of whether multiple assaultive acts
    constitute one course of conduct             depends   on   the   totality    of   the   circumstances.    Villanueva -
    Gonzalez, 180 Wn.2d at 985.
    Killian' s second degree assault conviction arose from burning Henderson with an iron in
    the early afternoon on March 16. After Killian burned Henderson, the two picked up
    Henderson' s daughter from school with Killian' s mother, went grocery shopping, and then went
    to sleep later that evening. On March 17, Killian slapped Henderson, which gave rise to
    Killian' s fourth degree assault charge. The acts were on separate days and were interrupted by
    routine daily events which allowed Killian to reconsider his assaultive conduct.
    Considering the totality of the circumstances, we hold that Killian' s act of burning
    Henderson and slapping Henderson did not stem from the same course of conduct. Therefore,
    the two assault convictions do not violate Killian' s constitutional right against double jeopardy.
    b.    Harassment and Felony Harassment Convictions
    Killian also argues that his convictions for both harassment and felony harassment violate
    double jeopardy. We disagree.
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    Consol. Nos. 44926 -9 -II / 45958 -2 -II
    As noted above, we generally apply the Blockburger test, also called the same evidence
    test,   when a   defendant is     convicted of         two   crimes under     two different     statutes.   Villanueva -
    Gonzalez, 180 Wn. 2d         at   981. The question is whether the offenses are identical in law and fact.
    Villanueva- Gonzalez, 180 Wn.2d                at   981.     We apply this test to Killian' s harassment convictions.
    Here, Killian' s harassment and felony harassment convictions were not the same in fact
    nor the same in law. Felony harassment requires additional proof, such as a threat to kill another
    person, which      is   not required     to   support a      harassment     conviction.      RCW 9A. 46. 020( 2)( b). The
    additional proof required elevates the defendant' s conduct from a gross misdemeanor to a class C
    felony.    See RCW 9A.46. 020( 2)(            a), (   b). This difference in proof between misdemeanor and
    felony harassment demonstrates that the two crimes were different in law.
    Moreover, the State used different evidence to prove the separate charges, rendering the
    charges different in fact. Killian' s felony harassment conviction arose from Killian threatening
    to kill his wife while he held a knife to her neck as she showered on Sunday evening. By
    contrast, Killian' s harassment conviction arose from his threat to burn Henderson' s eyes out with
    his cigarette right after midnight on Sunday morning. Therefore, the convictions were not the
    same in fact. We hold that Killian' s two harassment convictions do not violate double jeopardy.
    3.     Same Criminal Conduct Analysis
    Killian argues that the trial court erred in failing to perform a same criminal conduct
    analysis on counts        II, III, IV,   and   V    which resulted     in   an   incorrect   offender score.   We hold that
    Consol. Nos. 44926 -9 -II / 45958 -2 -II
    count I and count V clearly did not constitute the same criminal conduct. Counts II and III were
    misdemeanors not included in the offender score, and Killian was not convicted of count IV.4
    An appellate court reviews offender score calculations de novo while reviewing a same
    criminal conduct analysis for abuse of discretion or misapplication of the law. State v. Johnson,
    
    180 Wn. App. 92
    , 100,        
    320 P. 3d 197
    ,   review    denied, 
    181 Wn.2d 1003
     ( 2014). A trial court
    abuses     its discretion   where     the   court: (   1) adopts a view no reasonable person would take and is
    manifestly        unreasonable; (    2) rests on facts unsupported in the record and is therefore based on
    untenable grounds; or (3) was reached by applying the wrong legal standard and is made for
    untenable reasons. Johnson, 180 Wn. App. at 100.
    When calculating an offender' s score, a court must count all convictions separately
    except offenses which encompass the same criminal conduct. RCW 9. 94A. 525( 5)( a)( i),
    589( 1)(    a).   Offenses which constitute the same criminal conduct are counted as one offense.
    RCW 9. 94A. 525( 5)(        a)(   i). " `` Same   criminal conduct...'   means 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).    If any element of the same criminal conduct analysis is
    missing, a trial court must count the offenses separately when calculating the offender score.
    State v. Walker, 
    143 Wn. App. 880
    , 890, 
    181 P. 3d 31
     ( 2008).
    4
    Under RCW 9. 94A. 525( 21),             these misdemeanors arguably should have been counted when
    calculating Killian' s offender score because the State proved the domestic violence
    enhancements. See State v. Rodriguez,        Wn. App. ,      
    335 P. 3d 448
    , 454 ( 2014).              However,
    the State did not argue this issue below or cross appeal, so we need not address it.
    10
    Consol. Nos. 44926 -9 -II / 45958 -2 -II
    The defendant bears the burden of proving current offenses encompass the same criminal
    conduct.     State   v.   Aldana Graciano, 
    176 Wn.2d 531
    , 540,        
    295 P. 3d 219
     ( 2013).   The same
    criminal conduct statute is " construed narrowly to disallow most claims that multiple offenses
    constitute   the   same criminal act."   Aldana Graciano, 
    176 Wn.2d at 540
     ( quoting State v. Porter,
    
    133 Wn.2d 177
    , 181, 
    942 P. 2d 974
     ( 1997)).
    Count II (fourth degree       assault), count   III (harassment), and count IV (second degree
    assault) do not factor in this analysis. Killian was acquitted on count IV and the trial court did
    not use this charge to determine his offender score. Counts II and III were not counted for
    purposes of determining his offender score. Therefore, a same criminal conduct analysis is
    relevant only to count I ( second degree assault) and count V (felony harassment).
    Count I (second degree assault) and count V (felony harassment) clearly do not constitute
    the same offense under a same criminal conduct analysis because the acts giving rise to those
    convictions were not " committed at        the   same   time   and place."   RCW 9. 94A. 589( 1)(   a).   Count I
    arose from when Killian burned Henderson with an iron on March 16 in the early afternoon. By
    contrast, Count V arose from Killian' s threat to kill Henderson with a knife on the evening of
    March 18.     Therefore, we hold that the second degree assault and felony harassment did not
    constitute the same criminal conduct.
    4.      1996 Convictions
    Killian argues the trial court erred by counting his two assault convictions from 1996
    separately in his offender score because the prior sentencing court imposed a concurrent
    sentence. We disagree.
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    Consol. Nos. 44926 -9 -II / 45958 -2 -II
    For purposes of computing an offender score using prior offenses, a sentencing court
    must defer to the prior sentencing court' s determination that multiple offenses constitute the
    same criminal conduct.      RCW 9. 94A. 525( 5)(        a)(   i),   If the prior sentencing court did not make
    such a determination but imposed concurrent sentences for multiple offenses, the current
    sentencing court must independently determine whether the prior offenses were one offense or
    separate offenses under a same criminal conduct analysis.                  RCW 9. 94A. 525( 5)(   a)(   i);   see also
    Johnson, 180 Wn. App. at 101.
    Here, the 1996 sentencing court did not expressly find that the two convictions
    constituted the same criminal conduct, but imposed concurrent sentences. Therefore the trial
    court sentencing Killian in 2013 was required to perform a same criminal conduct analysis.
    However, Killian does not provide any evidence or even an argument that his 1996 assault
    convictions constitute the same criminal conduct. Nowhere in Killian' s PRP or in his reply does
    he affirmatively argue that the two assaults involved the same criminal intent, were committed at
    the same time and place, or involved the same victim. As a result, he has not shown actual
    prejudice, which   is   required   to   sustain a   PRP. Yates, 
    177 Wn.2d at 17
    .
    Killian cannot establish that the trial court erred in failing to treat his two 1996 offenses
    as the same criminal conduct and counting these convictions separately in his offender score.
    Therefore, we reject Killian' s same criminal conduct argument regarding his two 1996
    convictions.
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    Consol. Nos. 44926 -9 -II / 45958 -2 -II
    5.     Exceptional Sentence
    Killian argues the trial court lacked the authority to impose an exceptional sentence.
    Specifically, he claims that " absent the courts [ sic] written findings of fact and conclusions of
    law the   court   lacked the authority to impose the        exceptional sentence."    PRP at 14 -15.
    To reverse an exceptional sentence, the appellate court must find that ( 1) the reasons
    supplied by the sentencing court are not supported by the record when reviewed under a clearly
    erroneous standard, (       2) the supplied reasons do not justify a sentence outside the standard range
    when reviewed using a de novo standard, and ( 3) the sentence imposed was clearly excessive
    when reviewed under an abuse of             discretion   standard.   RCW 9. 94A. 585( 4), State v. Alvarado,
    
    164 Wn.2d 556
    , 560 -61, 
    192 P. 3d 345
     ( 2008).
    Here, the trial court imposed an exceptional sentence, ordering that the sentences for
    second degree assault and felony harassment be served consecutively. The trial court based the
    exceptional sentence on Killian' s " prior unscored misdemeanor or foreign criminal history" as
    evidenced      by " 40 prior unscored misdemeanors."             Clerk' s Papers at 362. This unscored criminal
    history   is   a proper   basis for   an exceptional sentence under     former RCW 9. 94A.535( 2)( b) ( 2011).     5
    And contrary to Killian' s contention, the trial court did provide written findings of fact for the
    exceptional sentence and thereby satisfied the writing requirement of former RCW 9. 94A.535.
    5
    RCW 9. 94A.535        was amended on      three occasions     in 2013. However, none of these
    amendments affects         the subsection cited. LAWS OF 2013, ch. 84, § 26; ch. 256, § 2;       2nd sp. s., ch.
    35, § 37.
    13
    Consol. Nos. 44926 -9 -II / 45958 -2 -II
    Because Killian' s extensive criminal history is supported by the record, Killian fails to
    provide adequate evidence for us to reverse his exceptional sentence. Therefore, we hold that the
    trial court did not err in imposing an exceptional sentence.
    We affirm Killian' s convictions and sentence and deny his PRP.
    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.
    We concur:
    14