Personal Restraint Petition Of Steven Daniel Kravetz ( 2017 )

Filed
Washington State
Court of Appeals
Division Two
December 19, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the Personal Restraint of No. 49491-4-II
STEVEN DANIEL KRAVETZ, UNPUBLISHED OPINION
Petitioner.
LEE, J. — In 2013, Steven Daniel Kravetz was convicted of first degree assault, disarming
a law enforcement officer, and second degree assault. We affirmed his convictions on direct
appeal.1 Kravetz then filed a personal restraint petition (PRP), and we accepted review.
In his PRP, Kravetz argues that (1) his defense counsel at trial was ineffective because he
failed to (a) move for suppression of certain documents found during a search of his mother’s
home, (b) ask the sentencing court to find the crimes of disarming an officer and first degree assault
constitute the same criminal conduct, and (c) raise the issue of double counting in regards to his
exceptional sentence; and (2) the sentencing court erred by (a) refusing to find the mitigating factor
of mental illness and (b) using future dangerousness as a basis for his exceptional sentence.
We hold that (1) defense counsel did not provide ineffective assistance and (2) the
sentencing court did not err. Accordingly, we deny this petition.
1
State v. Kravetz, noted at 185 Wash. App. 1058, review denied, 183 Wash. 2d 1015 (2015).
No. 49491-4-II
FACTS
A. THE INCIDENT
On March 9, 2012, Kravetz went to the Grays Harbor County Courthouse. Kravetz was
standing around and a court administrator became suspicious. The administrator reported Kravetz
to the sheriff’s office.
Sheriff’s Deputy Polly Davin went to the courthouse and contacted Kravetz. She asked
him for his name and identification. Kravetz told her his name was Michael Thomas because he
knew he had an outstanding bench warrant. Deputy Davin then reached for Kravetz’s elbow to
steer the conversation outside. At that point, Kravetz grabbed Deputy Davin, threw her on the
ground, and got on top of her. A judge in the courthouse came downstairs and pushed Kravetz off
the deputy. Kravetz stabbed the judge in the neck. Deputy Davin drew her gun, but Kravetz took
it away from her, took a step back, and shot her in the arm. Kravetz then left the courthouse.
B. THE WARRANT AND SEARCH
The next day, Kravetz’s mother called the police after hearing that they were looking for
her son. Kravetz’s mother told the police where she lived with Kravetz and gave them permission
to search the home.
The police got a search warrant to search the home. Police then went to Kravetz’s home
where they arrested Kravetz and searched the home. The police found the gun, knife, clothes, and
bag in the home. The police also found in some boxes in the garage a brochure with a sketch of
the Grays Harbor County Courthouse and a file marked “master plan” with pictures and
information on Sheriff’s Deputy David Libby. The police collected these items and documents
and put them into evidence.
2
No. 49491-4-II
C. TRIAL
The State charged Kravetz with second degree attempted murder, along with a firearm
sentencing enhancement and an aggravating factor that he knew the victim was a law enforcement
officer performing her official duties (count 1); first degree assault, along with a firearm sentencing
enhancement and an aggravating factor that he knew the victim was a law enforcement officer
performing her official duties (count 2); disarming a law enforcement officer (count 3); and first
degree assault, along with a deadly weapon sentencing enhancement (count 4). Kravetz claimed
diminished capacity.
1. Admission of Sketch, Libby Photograph, and Police Interview
At trial, the sketch and Libby’s photograph were admitted. The recording of Kravetz’s
police interview was also admitted and played for the jury. In his police interview, Kravetz stated
that he believed that there was a conspiracy to cover up an incident between him and the police in
2005 and that there was information the county did not want the public to see. He was trying to
obtain information that would identify and expose the people involved in the 2005 incident where
he claimed he was raped. He admitted that he had been to the courthouse previously as part of a
recognizance trip. He obtained a photograph of and some personal information on Deputy Libby.
Kravetz explained that in 2005, his mother called the police. The police took the call as a
suicide complaint, and Deputy Libby and other officers came to Kravetz’s home. Deputy Libby
frisked Kravetz and took him to the hospital for a mental health evaluation. At the hospital,
Kravetz refused attempts to take his temperature and to provide a urine sample. After he tried to
escape, a rectal thermometer and catheter were used to obtain his temperature and urine sample.
Kravetz was then taken to jail where he said he was strip searched and shot with a stun gun after
3
No. 49491-4-II
refusing to comply. This experience traumatized Kravetz. Kravetz believed he was raped and
wanted to identify the people involved.
Kravetz further explained that he was at the courthouse on March 9 to find and take the
files for two cases he had been involved in. He wanted to get the case files to expose the county
even though he knew it would be illegal. Kravetz acknowledged that his actions were not legally
justified and morally wrong.
2. Doctors’ Testimony on Kravetz’s Mental Health
Dr. David Dixon diagnosed Kravetz with delusional disorder and paranoid personality. He
believed that Kravetz was preoccupied by a delusion that he had been raped in 2005, and the
delusion “was interrupting, constricting his life, dominat[ing] his insight, comprehension and
judgment.” 5 Verbatim Report of Proceedings (VRP) at 438. Dr. Dixon stated that Kravetz’s
contact with the sheriff’s deputy at the courthouse triggered his fear of being apprehended and
assaulted. Dr. Dixon opined that although Kravetz was driven by a delusional system and
impaired, he had the capacity to act with intent. And Kravetz was able to “form purpose,” had the
ability to perform “purposeful goal oriented behaviors,” and knew right from wrong. 5 VRP at
426, 462.
Dr. Brett Trowbridge diagnosed Kravetz with delusional paranoid disorder. Dr.
Trowbridge stated that Kravetz’s previous interactions with police led him to fear that any contact
with a sheriff’s deputy would lead to rape because he viewed a normal search as some sort of
sexual assault. Dr. Trowbridge believed that Kravetz knew right from wrong, could appreciate the
quality of his acts, and knew his actions were legally wrong. Dr. Trowbridge also stated that
Kravetz could act intentionally and was not impaired in that area, and that his actions were goal
oriented but based on a delusion that Grays Harbor County was trying to rape him.
4
No. 49491-4-II
Dr. Marilyn Ronnei diagnosed Kravetz with a psychotic disorder, most likely paranoid
schizophrenia. Dr. Ronnei stated that Kravetz had a delusion that stemmed from a 2005 incident,
Kravetz likely spent seven years ruminating daily over the incident, and Kravetz was still
preoccupied with the incident during his evaluation. Dr. Ronnei opined that Kravetz could act
intentionally with the purpose to accomplish a result despite his persecutory delusions. Kravetz’s
capacity to form intent was not impaired.
D. VERDICT AND SENTENCING
The jury found Kravetz not guilty of second degree attempted murder (count 1). But the
jury found Kravetz guilty of first degree assault on Deputy Davin (count 2), disarming a law
enforcement officer (count 3), and second degree assault on the judge (count 4). For first degree
assault, the jury also found that Kravetz was armed with a firearm during the commission of the
offense, the offense was committed against a law enforcement officer who was performing her
official duties, and Kravetz knew when he committed the offense that the victim was a law
enforcement officer. And for second degree assault, the jury found that Kravetz was armed with
a deadly weapon during the commission of the offense.
Before sentencing, the State presented a report stating that for the first degree assault
conviction (count 2), Kravetz had an offender score of 4, which resulted in a standard range
sentence of 129 to 171 months. The jury’s firearm enhancement finding added 60 months to the
standard range sentence for the first degree assault conviction. And the sentencing court could
impose an exceptional sentence for the first degree assault conviction based on the jury’s findings
that the crime was committed against a law enforcement officer performing her official duties and
that the defendant knew the victim was a law enforcement officer. For unlawfully disarming a law
enforcement officer (count 3), an unranked offense, the standard range sentence was 0 to 365 days.
5
No. 49491-4-II
For second degree assault (count 4), the standard range sentence with an offender score of 4 was
l5 to 20 months. The jury’s deadly weapon enhancement finding added 12 months to the standard
range sentence for the second degree assault conviction.
At sentencing, defense counsel asked the sentencing court to find that mitigating
circumstances existed and to impose an exceptional sentence below the standard range.
Specifically, defense counsel asked the court to find that Kravetz could not appreciate the
wrongfulness of his conduct or that his ability to conform his conduct to the requirements of the
law were significantly impaired. Defense counsel asserted that Kravetz had a severe mental
disorder that justified an exceptional sentence downward. Defense counsel pointed out that all the
doctors testified that Kravetz suffered from severe delusions.
The sentencing court imposed an exceptional sentence of 240 months for the first degree
assault conviction, along with an additional 60 months for the firearm enhancement. The
sentencing court also found that an exceptional sentence upward was justified because the jury
found that Kravetz committed the crime against a law enforcement officer performing her official
duties and knew that she was a law enforcement officer when committing the crime. For the
unlawfully disarming a law enforcement officer conviction, the sentencing court imposed a
standard range sentence of 364 days. For the second degree assault conviction, the sentencing
court imposed a standard range sentence of 20 months, along with an additional 12 months for the
deadly weapon enhancement. In doing so, the sentencing court orally stated,
[Defense counsel] says, well, you’ve got all kinds of mental issues. I will
grant you that the testimony was that you have a number of mental issues. I also
think you are delusional. I also think that you are obsessive, because that clearly
came through in the testimony that was presented. But, unfortunately, Mr. Kravetz,
you are also very dangerous, because there’s no doubt in my mind that were you
not before the Court today in handcuffs and in a situation where law enforcement
is here to keep you from acting out, that you would easily act out again.
6
No. 49491-4-II
I suspect if you were out in the public, given an opportunity to do something
like this, you would clearly do it again. . . . As far as I’m concerned, it’s not going
to happen.
....
Quite frankly, I think all of the requests made by the prosecuting attorney
have merit. I think under the circumstances, Mr. Kravetz, one of the things this
Court needs to do is to put you in a position where you are not going to be capable
of hurting anybody for a very long period of time.
I also think that if and when you do see the light of day as a free man again
it’s under circumstances where you are so old and feeble that you can’t possibly do
something like this over again. This was an attack, as far as I am concerned, on the
public, on the citizens of Grays Harbor County.
VRP (May 17, 2013) at 40-42. In its findings of fact and conclusions of law, the sentencing court
ruled that it imposed an exceptional sentence because (1) the jury unanimously and beyond a
reasonable doubt found as an aggravating circumstance that the first degree assault charged in
count 2 was committed against a law enforcement officer who was performing her official duties
at the time of the offense, the offender knew that the victim was a law enforcement officer, and
the victim’s status as a law enforcement officer was not an element of the crime of first degree
assault; and (2) the jury’s finding was supported by evidence beyond a reasonable doubt.
ANALYSIS
A. PERSONAL RESTRAINT PETITION
We may grant relief on a PRP only if the petitioner is under unlawful restraint as defined
by RAP 16.4(c). In re Pers. Restraint of Yates, 177 Wash. 2d 1, 16, 296 P.3d 872 (2013). The
collateral relief afforded under such a petition is limited and requires the petitioner to show that he
was prejudiced by the error in the trial court. In re Pers. Restraint of Hagler, 97 Wash. 2d 818, 819,
650 P.2d 1103 (1982). There is no presumption of prejudice on collateral review. Id. at 823.
A personal restraint petitioner must show either a constitutional error that caused actual
prejudice or a nonconstitutional error that results in a complete miscarriage of justice. In re Pers.
7
No. 49491-4-II
Restraint of Stockwell, 161 Wash. App. 329, 334, 254 P.3d 899 (2011), aff’d, 179 Wash. 2d 588, 316
P.3d 1007 (2014); In re Pers. Restraint of Cook, 114 Wash. 2d 802, 813, 792 P.2d 506 (1990).
Without either showing, we must dismiss the petition. Cook, 114 Wash. 2d at 810-11. A personal
restraint petitioner alleging a violation of his constitutional right to effective representation meets
his burden to show actual and substantial prejudice when he makes a successful ineffective
assistance of counsel showing. In re Pers. Restraint of Crace, 174 Wash. 2d 835, 842, 280 P.3d 1102
(2012).
B. INEFFECTIVE ASSISTANCE OF COUNSEL
Kravetz argues that he received ineffective assistance of counsel at trial because defense
counsel failed to (1) move to suppress the documents found in some boxes in the garage, (2) ask
the sentencing court to find that disarming an officer and first degree assault constituted the same
criminal conduct, and (3) raise the issue of double counting in regards to imposing an exceptional
sentence. We disagree.
The right to effective assistance of counsel is afforded criminal defendants by the Sixth
Amendment to the United States Constitution and article I, section 22 of the Washington
Constitution. State v. Thomas, 109 Wash. 2d 222, 229, 743 P.2d 816 (1987). To establish ineffective
assistance of counsel, Kravetz must show both deficient performance and resulting prejudice.
State v. McFarland, 127 Wash. 2d 322, 334-35, 899 P.2d 1251 (1995). If Kravetz fails to establish
either prong of the test, we need not inquire further. State v. Foster, 140 Wash. App. 266, 273, 166
P.3d 726 (2007).
Deficient performance occurs when counsel’s performance falls below an objective
standard of reasonableness. State v. Stenson, 132 Wash. 2d 668, 705, 940 P.2d 1239 (1997). There
is a strong presumption of effective assistance, and Kravetz bears the burden of rebutting that
8
No. 49491-4-II
presumption by showing the lack of a legitimate strategic or tactical reason for the challenged
conduct. McFarland, 127 Wash. 2d at 336. Resulting prejudice must also occur, and Kravetz must
demonstrate there is a reasonable probability that, but for counsel’s deficient performance, the
result of the proceeding would have been different. Id. at 335.
1. Failure to Move to Suppress Documents
Kravetz argues that defense counsel provided ineffective assistance because he failed to
move to suppress the documents found in some boxes in the garage because the warrant was
partially overbroad and the documents were outside the scope of the warrant. Assuming without
deciding that defense counsel was deficient, we hold that Kravetz fails to show the requisite
prejudice.
Kravetz argues that admission of the sketch and Libby’s photograph prejudiced him
because the prosecutor used both the sketch and photograph to argue that he had the ability to form
the intent to inflict great bodily harm on Deputy Davin. Kravetz also relies on the fact that the
State used the sketch to argue that Kravetz did not have a mental illness that prevented him from
forming the intent required to commit the charged crimes.
But Kravetz fails to show that there is a reasonable probability that, but for counsel’s
deficient performance, the result of the proceeding would have been different. At trial, a multitude
of other evidence was presented to show that Kravetz had the capacity to form the requisite intent.
Dr. Dixon, Dr. Trowbridge, and Dr. Ronnei all testified that Kravetz had the ability to act with
intent. They also believed that Kravetz knew right from wrong, could make purposeful decisions,
and appreciated the quality of his acts.
Kravetz himself provided evidence that he had the capacity to form intent. He explained
in his police interview that the number one thing in his life was to resolve what happened to him.
9
No. 49491-4-II
Kravetz told police how he believed he was raped in 2005, wanted to identify the people that were
involved in that incident, suspected the county had information and files about the incident it did
not want people to see, and conducted recognizance on the courthouse where he thought such
information and files were located. Kravetz knew what he planned was illegal.
Kravetz also explained that he went to the courthouse with the intention of sneaking into
the offices to find and take the case files with information concerning the 2005 incident. When
Kravetz was there, Deputy Davin questioned him and he told her his name was Michael Thomas;
he knew he had a bench warrant against him and was worried that she would find out. Kravetz
then wrestled Deputy Davin to the ground because he wanted to physically stop her from
continuing her questioning. He also swung a knife at Deputy Davin because he wanted to hurt her
enough temporarily to stop her from pursuing him. And when Deputy Davin pulled out a gun,
Kravetz did not want her to shoot him, so he took it from her; he then fired two shots so that he
could stun her and escape. This evidence showed that Kravetz had the ability to form intent. Given
the evidence presented at trial, Kravetz fails to show how the outcome of the trial would have been
different even if defense counsel had successfully moved to suppress the sketch and the Libby
photograph.
2. Same Criminal Conduct
Kravetz argues that defense counsel provided ineffective assistance because he failed to
ask the sentencing court to find that unlawfully disarming a law enforcement officer and first
degree assault constituted the same criminal conduct. We disagree.
10
No. 49491-4-II
Under RCW 9.94A.589(1)(a),2 “whenever a person is to be sentenced for two or more
current offenses, the sentence range for each current offense shall be determined by using all other
current and prior convictions as if they were prior convictions for the purpose of the offender score.
. . . [I]f the court enters a finding that some or all of the current offenses encompass the same
criminal conduct then those current offenses shall be counted as one crime.” Crimes constitute the
same criminal conduct when 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). Courts narrowly construe
RCW 9.94A.589(1)(a) to disallow most assertions of same criminal conduct. State v. Graciano,
176 Wash. 2d 531, 540, 295 P.3d 219 (2013).
When a defendant commits two crimes involving the same victim at the same place within
a limited period of time, the determinative question is whether each crime required the same
criminal intent. State v. Saunders, 120 Wash. App. 800, 824, 86 P.3d 232 (2004). To determine
whether two crimes require the same criminal intent, we look objectively at whether one crime
furthered the other, or whether there was a substantial change in the nature of the criminal
objective. Id. Crimes may involve the same criminal intent if they were a part of a continuing,
uninterrupted sequence of conduct. State v. Munoz-Rivera, 190 Wash. App. 870, 889, 361 P.3d 182
(2015). “But when an offender has time to ‘pause, reflect, and either cease his criminal activity or
proceed to commit a further criminal act,’ and makes the decision to proceed, he or she has formed
a new intent to commit the second act.” Id. (quoting State v. Grantham, 84 Wash. App. 854, 859,
932 P.2d 657 (1997)).
2
The legislature amended RCW 9.9A.589 in 2015. LAWS OF 2015, 2d Spec. Sess, ch. 14, § 13.
The amendments did not alter the statute in any way relevant to this case; accordingly, we cite the
current version of the statute.
11
No. 49491-4-II
Here, the parties do not dispute that the crimes were committed at the same time and place,
and against the same victim. The only issue in dispute, and for which argument is provided, is
whether the crimes of disarming a law enforcement officer and first degree assault involved the
same criminal intent.3
Kravetz argues that the two crimes constituted the same criminal conduct because he had
a singular intent of assaulting Deputy Davin, the two crimes were intimately related, and the
disarming crime furthered the assault crime. In doing so, Kravetz cites to State v. Anderson, 72
Wash. App. 453, 864 P.2d 1001 (1994), and State v. Miller, 92 Wash. App. 693, 964 P.2d 196 (1998).
In Anderson, while being transported from jail to the hospital, the defendant slammed into
the officer and tried to take the officer’s gun. 72 Wash. App. at 456. After a struggle, the officer
regained control of his gun, but the defendant escaped. Id. at 457. The defendant was later
recaptured and convicted of first degree assault and first degree escape. Id. On appeal, the court
held that the two offenses constituted the same criminal conduct because “[o]bjectively viewed,
[the defendant’s] criminal intent was the same from one offense to the other: a desire to escape
[the officer’s] custody.” Id. at 464.
Here, in contrast to Anderson, Kravetz did not reach for Deputy Davin’s weapon until she
drew it. While Kravetz also had the goal of escaping the courthouse, his intent at the time he
committed the disarming crime was to avoid getting shot. It was not until he gained control of the
3
Under RCW 9A.76.025, a “person who commits another crime during the commission of the
crime of disarming a law enforcement or corrections officer may be punished for the other crime
as well as for disarming a law enforcement officer and may be prosecuted separately for each
crime.”
12
No. 49491-4-II
weapon that he formed the intent to assault Deputy Davin with the firearm to stun her enough to
allow him to escape.
In Miller, the defendant was convicted of attempted theft of a firearm and third degree
assault based on a struggle with an officer. 92 Wash. App. at 697-99. During the struggle, the officer
attempted to handcuff the defendant and the defendant struggled for the officer’s gun. Id. at 697.
The officer struggled to keep the gun holstered. Id. The defendant had a hand on the officer’s gun
during the entire struggle and “pretty much the whole time was trying to get the gun.” Id. at 708.
The court held that the two offenses constituted the same criminal conduct because “the evidence
shows that Miller intended throughout to deprive the officer of his weapon.” Id.
Here, unlike the attempted theft and assault in Miller, Kravetz’s act of disarming a law
enforcement officer and then assaulting the officer was not based on the same act. Kravetz first
took the gun from Deputy Davin because he was afraid he was going to be shot. Kravetz then took
a step back and fired at Deputy Davin. Kravetz even had time to think about where he was going
to shoot Deputy Davin. While Kravetz argues that throughout the two crimes he had the same
intent to escape, the record shows otherwise. Kravetz first intended to avoid getting shot and then
intended to shoot Deputy Davin. Thus, Kravetz had different criminal intents for each crime.
The State relies on State v. Wilson, 136 Wash. App. 596, 150 P.3d 144 (2007). In Wilson,
the defendant went to his girlfriend’s house, forced open the door, splintering some wood, grabbed
his girlfriend by her hair, and pulled her out of bed. 136 Wash. App. at 601. The defendant then left
to speak with a friend and came back with a piece of wood and threatened to kill his girlfriend. Id.
The defendant was convicted of assault and harassment, and the sentencing court found the two
offenses constituted the same criminal conduct. Id. at 603. On appeal, the court reversed the same
criminal conduct finding because the defendant had different criminal intents for each crime,
13
No. 49491-4-II
reasoning that the two acts for each crime “were separated in time, providing opportunity for
completion of the assault and ending [the defendant’s] assaultive intent, followed by a period of
reflection and formation of a new, objective intent upon reentering the house to threaten [his
girlfriend] and to harass her.” Id. at 615.
Here, like in Wilson, Kravetz had the opportunity to complete his disarming offense, ending
his defensive intent, and then formed a new intent to assault Deputy Davin. While the disarming
crime allowed Kravetz to assault Deputy Davin, the evidence also showed that Kravetz had time
to pause and reflect, and decide to cease his criminal activity or proceed to commit the second act.
Munoz-Rivera, 190 Wash. App. at 889. Kravetz told the police that he took the gun, took a step back
and stood away because he thought Deputy Davin had a stun gun, and then fired. And Dr. Ronnei
testified that Kravetz told her he shot Deputy Davin in an area that he thought would likely hit a
bullet proof vest. This showed that Kravetz had time to reflect on his decision to shoot. Kravetz’s
crimes of disarming a law enforcement officer and first degree assault did not constitute the same
criminal conduct. Therefore, we hold that defense counsel’s performance was not deficient and
he did not provide ineffective assistance when he failed to ask the sentencing court to find that the
disarming a law enforcement officer and first degree assault convictions constituted the same
criminal conduct.
3. Consideration for Exceptional Sentence
Kravetz next argues that defense counsel provided ineffective assistance because he failed
to raise the issue of double counting in regards to the determination of his exceptional sentence for
first degree assault. Specifically, Kravetz argues that because his disarming a law enforcement
officer conviction was taken into consideration when calculating his offender score for his first
degree assault conviction, every fact underlying the disarming conviction, including the fact that
14
No. 49491-4-II
he knew Deputy Davin was a law enforcement officer when he committed the offense, was already
considered and cannot be the basis for his exceptional sentence. We disagree.
a. Double counting for exceptional sentence
Under the Sentencing Reform Act of 1981 (SRA), ch. 9.94A RCW, “[t]he court may
impose a sentence outside the standard sentence range for an offense if it finds, considering the
purpose of this chapter, that there are substantial and compelling reasons justifying an exceptional
sentence.” RCW 9.94A.535.4 An aggravating circumstance can support a sentence above the
standard range if “[t]he offense was committed against a law enforcement officer who was
performing his or her official duties at the time of the offense, the offender knew that the victim
was a law enforcement officer, and the victim’s status as a law enforcement officer [was] not an
element of the offense.” RCW 9.94A.535(3)(v). “The facts supporting aggravating circumstances
shall be proved to a jury beyond a reasonable doubt.” RCW 9.94A.537(3).
The Washington Supreme Court has held that “[a] reason offered to justify an exceptional
sentence can be considered only if it takes into account factors other than those which are used in
computing the standard range sentence for the offense.” State v. Gore, 143 Wash. 2d 288, 315-16,
21 P.3d 262 (2001), overruled on other grounds by State v. Hughes, 154 Wash. 2d 118, 110 P.3d 192
(2005), abrogated by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466
(2006). Thus, a sentencing court “may not list the offender’s criminal history as a reason to justify
an exceptional sentence since criminal history is one of the two components (the other being the
seriousness of the offense) used to compute the presumptive [sentencing] range.” State v. Nordby,
4
The legislature amended RCW 9.9A.535 in 2011, 2013 and 2016. LAWS OF 2011, ch. 87 § 1;
LAWS OF 2013, ch. 84, § 26; LAWS OF 2013, ch. 256, § 2, LAWS OF 2013, 2d Spec. Sess. ch. 35, §
37 and LAWS OF 2016, ch. 6, § 2. The amendments did not alter the statute in any way relevant to
this case; accordingly, we cite the current version of the statute.
15
No. 49491-4-II
106 Wash. 2d 514, 518 n.4, 723 P.2d 1117 (1986). In analyzing whether a factor has already been
considered in determining the standard range, the focus is on the elements of the crime being
sentenced and not the elements of other current offenses. See State v. Pappas, 176 Wash. 2d 188,
196, 289 P.3d 634 (2012) (noting that the aggravating factor at issue was not necessary to commit
the offense being sentenced).
Here, the jury found Kravetz guilty of unlawfully disarming a law enforcement officer.5
And by special verdict the jury found that the crime of first degree assault was committed against
a law enforcement officer who was performing her official duties and that Kravetz knew the victim
was a law enforcement officer. Kravetz argues that the aggravating factors the sentencing court
used were elements of the disarming a law enforcement officer offense and already considered in
convicting him for such offense.
However, the sentencing court did not use the disarming a law enforcement officer
conviction to impose an exceptional sentence. Rather, the sentencing court used the jury’s special
verdict findings relating to Kravetz’s first degree assault conviction to impose the exceptional
sentence.
Also, the sentencing court did not consider the elements of the disarming a law enforcement
officer offense in computing the standard range for Kravetz’s first degree assault conviction. The
sentencing court merely considered the disarming a law enforcement officer conviction as a current
5
A person is guilty of disarming a law enforcement officer if (1) with intent to interfere with the
performance of the officer’s duties, (2) the person knowingly removes a firearm or weapon from
the person of a law enforcement officer or corrections officer or deprives a law enforcement officer
or corrections officer of the use of a firearm or weapon, (3) when the officer is acting within the
scope of the officer’s duties, (4) the officer does not consent to the removal, and (5) the person has
reasonable cause to know or knows that the individual is a law enforcement or corrections officer.
RCW 9A.76.023.
16
No. 49491-4-II
felony offense that added a point to Kravetz’s offender score. See RCW 9.94A.525(7), .589(1)(a).
The elements of the current conviction for disarming a law enforcement officer did not matter; the
disarming a law enforcement officer conviction was merely another current conviction in
calculating the presumptive sentence for the first degree assault conviction.
Kravetz relies on Nordby and State v. Fisher, 108 Wash. 2d 419, 739 P.2d 683 (1987), for
support. However, these cases are distinguishable. Both cases involved the imposition of an
exceptional sentence based on facts that were necessary to establish the elements of the single
conviction at issue. Because the facts were already considered in determining guilt, they were
necessarily considered in determining the standard range for the offense. See Nordby, 106 Wash. 2d
at 519; see also Fisher, 108 Wash. 2d at 425-26.
Here, Kravetz had multiple convictions. The fact that the first degree assault was
committed against a law enforcement officer performing her official duties and the fact that
Kravetz knew the victim was a law enforcement officer were not considered in determining the
standard range for his first degree assault conviction. The sentencing court did not consider the
elements of the disarming a law enforcement officer conviction; rather, the sentencing court only
considered that crime as a current felony conviction. Therefore, we hold that defense counsel’s
performance was not deficient and he did not provide ineffective assistance when he failed to raise
this issue regarding the exceptional sentence imposed on Kravetz’s first degree assault conviction.
C. CONSIDERATION OF MITIGATING FACTOR
Kravetz argues that the sentencing court erred when it refused to find the mitigating factor
of mental illness. We disagree.
Generally, the sentencing court must impose a sentence within the standard sentencing
range under the SRA. State v. Graham, 181 Wash. 2d 878, 882, 337 P.3d 319 (2014). However, the
17
No. 49491-4-II
sentencing court may exercise its discretion by imposing a sentence below the standard range if
“substantial and compelling reasons” justify an exceptional sentence. RCW 9.94A.535. The
sentencing court must find that mitigating circumstances justifying a sentence below the standard
range are established by a preponderance of the evidence. RCW 9.94A.535(1). One of these
mitigating circumstances is that the “defendant’s capacity to appreciate the wrongfulness of his or
her conduct, or to conform his or her conduct to the requirements of the law, was significantly
impaired.” RCW 9.94A.535(1)(e).
No defendant is entitled to an exceptional sentence below the standard range, but “every
defendant is entitled to ask the trial court to consider such a sentence and to have the alternative
actually considered.” State v. Grayson, 154 Wash. 2d 333, 342, 111 P.3d 1183 (2005). Where a
defendant has requested an exceptional sentence below the standard range, review is limited to
circumstances where the court has refused to exercise discretion at all or has relied on an
impermissible basis for refusing to impose an exceptional sentence below the standard range. State
v. Garcia-Martinez, 88 Wash. App. 322, 330, 944 P.2d 1104 (1997).
Here, the sentencing court considered Kravetz’s mental health condition in sentencing him.
The sentencing court acknowledged defense counsel’s argument that Kravetz had “all kinds of
mental issues.” VRP (May 17, 2013) at 40. The sentencing court even said that it thought Kravetz
was delusional and obsessive. But the sentencing court rejected defense counsel’s argument. The
sentencing court said that Kravetz “very well knew what [he] was doing.” VRP (May 17, 2013)
at 39.
The sentencing court has discretion to impose a sentence below the standard range and here
it considered Kravetz’s argument. The sentencing court decided the mitigating factor did not
support a sentence below the standard range, and its decision is supported by the evidence.
18
No. 49491-4-II
Kravetz’s own statements showed that he knew his actions were not legally justified and were
morally wrong. And the testimony of the doctors showed that Kravetz knew right from wrong,
could make purposeful decisions, and appreciated the quality of his acts. Therefore, we hold that
the sentencing court did not abuse its discretion.
D. FUTURE DANGEROUSNESS AND EXCEPTIONAL SENTENCE
Kravetz argues that the sentencing court erred when it used future dangerousness as a
reason for imposing an exceptional sentence upward. This claim is factually meritless.
A “trial court is always entitled to change views expressed in an oral opinion upon
presentation of the findings of fact.” State v. Smith, 68 Wash. App. 201, 206, 842 P.2d 494 (1992).
“‘A trial court’s oral or memorandum opinion is no more than an expression of its informal opinion
at the time it is rendered. It has no final or binding effect unless formally incorporated into the
findings, conclusions, and judgment.’” State v. Friedlund, 182 Wash. 2d 388, 394-95, 341 P.3d 280
(2015) (quoting State v. Mallory, 69 Wash. 2d 532, 533-34, 419 P.2d 324 (1966)). “A written
judgment and sentence, by contrast, is a final order subject to appeal.” Id. at 395.
Here, the sentencing court orally stated during Kravetz’s sentencing hearing that it believed
that Kravetz was very dangerous, if given the opportunity he would do something like this again,
the court needed to put him in a position where he was not capable of hurting anybody for a long
time, and when he was released he would be so feeble that he could not do something like this
again. However, the sentencing court did not enter written findings to such effect.
In its written findings of fact and conclusions of law, the sentencing court relied on only
its findings that (1) the jury found as an aggravating circumstance that the first degree assault
charged in count 2 was committed against a law enforcement officer who was performing her
official duties at the time of the offense, the offender knew that the victim was a law enforcement
19
No. 49491-4-II
officer, and the victim’s status as a law enforcement officer was not an element of the crime of
first degree assault; (2) the jury found that Kravetz was armed and/or used a firearm during the
commission of the crime; and (3) the jury’s special verdict findings were supported by evidence
beyond a reasonable doubt. The sentencing court concluded that the jury’s unanimous finding on
the aggravating factor provided a substantial and compelling reason justifying an exceptional
sentence above the standard range. The sentencing court also concluded that the standard range
sentence with the firearm enhancement was clearly too lenient and not proportionate to the
seriousness of the offense. The sentencing court’s written findings and conclusions do not rely on
future dangerousness as a reason for imposing an exceptional sentence upward.
Kravetz’s argument about the trial court’s reliance on Kravetz’s future dangerousness is
without merit. Therefore, we hold that this claim fails.
We deny Kravetz’s petition.
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.
Lee, J.
We concur:
Johanson, P.J.
Melnick, J.
20