State of Washington v. Mark Earl Kieffer ( 2024 )

FILED
MAY 14, 2024
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. 39131-1-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
MARK EARL KIEFFER, )
)
Appellant. )
LAWRENCE-BERREY, C.J. — Mark Kieffer appeals after a jury convicted him of
one count of residential burglary, one count of harassment, and seven counts of violation
of a no contact order—all alleged to have been committed against an intimate partner.
Mr. Kieffer challenges the sufficiency of the information, the calculation of his offender
score, and the $500 victim penalty assessment. We disagree with his first two challenges,
but agree with his third.
In addition, Mr. Kieffer raises approximately 150 contentions in his statement of
additional grounds for review. We decline to address those challenges because most are
insufficiently argued, and we do not want to prejudice his ability to raise one or more
possibly valid claims later, in a personal restraint petition.
FACTS
In 2021, a trial court imposed a no contact order against Mark Kieffer prohibiting
him from contacting his estranged wife, Shalena Kieffer. The order arose out of Mr.
No. 39131-1-III
State v. Kieffer
Kieffer’s attempt to break into Ms. Kieffer’s home while Ms. Kieffer and the couple’s
children were present. With Ms. Kieffer and the Kieffer children sheltered in their house,
Mr. Kieffer had broken through the door to the home’s screened porch and attempted to
break through the door into the living room. While attempting this, Mr. Kieffer had
threatened to kill Ms. Kieffer.
Despite the no contact order, Mr. Kieffer in the ensuing months attempted on nine
occasions to contact Ms. Kieffer, whether in person or over the phone. On one occasion,
Mr. Kieffer again broke into the home. As a result—and as a result of the original violent
encounter—the State charged Mr. Kieffer by amended information with the following:
• Harassment (one count, with an intimate partner allegation)
• Violation of a no contact order (seven counts, with intimate partner allegations)
• Residential burglary (three counts, with intimate partner allegations)
See Clerk’s Papers at 143-45. As to the seven no contact order violations, the charging
information stated (1) the dates of the offenses, (2) the statutes under which the State
intended to charge Mr. Kieffer, (3) the cause number under which the trial court had
imposed the no contact order, (4) the allegation that Mr. Kieffer, in the state of
Washington, had violated provisions of the order knowingly, and (5) the allegation that
Ms. Kieffer was Mr. Kieffer’s intimate partner. Mr. Kieffer did not object to the
charging information.
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State v. Kieffer
After several continuances, the State tried Mr. Kieffer. The jury convicted Mr.
Kieffer on all counts, except two residential burglary counts, and found that Ms. Kieffer
was Mr. Kieffer’s intimate partner. The trial court calculated Mr. Kieffer’s offender
score on his residential burglary conviction as an 8, and sentenced him to a standard
range sentence of 61.5 months of confinement. The trial court also imposed a $500
victim penalty assessment fee, despite finding Mr. Kieffer indigent.
Mr. Kieffer timely appeals his judgment and sentence.
ANALYSIS
SUFFICIENCY OF INFORMATION
For the first time on review, Mr. Kieffer argues the State’s amended information
was constitutionally deficient because it did not identify the party the no contact order
protected. Because the information passed constitutional muster without stating this
information, we disagree.
Standard of review
An information is constitutionally sufficient where it alleges all essential elements
of a charged offense. State v. Kjorsvik, 117 Wn.2d 93, 105, 812 P.2d 86 (1991). A
defendant challenging an information for the first time on appeal must show both that the
information was deficient and that the deficiency resulted in prejudice. Id.3
No. 39131-1-III
State v. Kieffer
Sufficiency
Mr. Kieffer argues the information charging him with violations of a no contact
order was deficient where it failed to state the name of the person protected by the
violated order.1 However, the name of the person protected by an order is not an
essential element of the offense of violating that order. State v. Clowes, 104 Wn.
App. 935, 944, 18 P.3d 596 (2001). Instead, the essential elements of that offense are
(1) willful contact with another where (2) a valid no contact order prohibits such contact
and (3) the defendant is aware of the order. Id. Additionally, for jurisdictional reasons,
the offense must have occurred in Washington.
Here, the information alleged knowing2 contact in Washington with a party
protected by a no contact order, and further alleged Mr. Kieffer’s knowledge of that
order. Accordingly, the information was sufficient.
OFFENDER SCORE
Mr. Kieffer argues the trial court erred in calculating his offender score because
his harassment conviction and his no contact order convictions all are misdemeanors and
1
Mr. Kieffer also alleges the information was deficient where it failed to identify
predicate felony convictions for the purposes of calculating an offender score. However,
because the offender score the trial court calculated did not depend on predicate felony
convictions, we need not address this contention.
2
RCW 9A.08.010(4) provides: “A requirement that an offense be committed
wilfully is satisfied if a person acts knowingly with respect to the material elements of the
offense, unless a purpose to impose further requirements plainly appears.”
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No. 39131-1-III
State v. Kieffer
thus do not add to his offender score. Because the trial court properly counted these
misdemeanor convictions as repetitive domestic violence offenses when calculating his
offender score for his residential burglary conviction, we disagree.
Standard of review
Because offender score calculations amount to statutory interpretation, this court
reviews a trial court’s offender score calculation de novo. State v. Moeurn, 170 Wn.2d
169, 172, 240 P.3d 1158 (2010).
Offender score calculation
Where a defendant’s present conviction is for a felony domestic violence offense,
each adult prior conviction for a repetitive domestic violence offense counts against
the defendant’s offender score, provided the prior offenses were pleaded and proved
after August 1, 2011. Former RCW 9.94A.525(21)(d) (2017). Where a trial court
sentences a defendant for multiple current offenses, each qualifying concurrent offense
counts toward the offender score for every offense as if the concurrent offense were prior.
RCW 9.94A.589(1)(a).
Here, one of Mr. Kieffer’s current convictions is for residential burglary-domestic
violence (DV), which is a felony domestic violence offense. RCW 10.99.020(4)(xxi).
Accordingly, he falls within the statutory parameters outlined above. Because violation
of a no contact order-DV and harassment-DV qualify as repetitive domestic violence
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No. 39131-1-III
State v. Kieffer
offenses even where they are misdemeanors, Mr. Kieffer’s convictions on those eight
charges count as points on his offender score. RCW 9.94A.030(42)(a)(ii), (iv). For these
reasons, the trial court properly calculated Mr. Kieffer’s offender score as an 8.
VICTIM PENALTY ASSESSMENT
Mr. Kieffer contends the $500 victim penalty assessment must be struck because
of a change in law and because the trial court found he was indigent. We agree.
In 2023, the legislature amended RCW 7.68.035 to prohibit the imposition of
victim penalty assessments where the defendant is indigent. LAWS OF 2023, ch. 449, § 1
(effective July 1, 2023). Because a “newly enacted statute or court rule generally applies
to all cases pending on direct appeal and not yet final,” and because Mr. Kieffer is
indigent, the victim penalty assessment in this case is improper. State v. Jefferson, 192
Wn.2d 225, 246, 429 P.3d 467 (2018).
ADDITIONAL GROUNDS FOR REVIEW
On direct review, a criminal defendant may file a pro se statement of additional
grounds for review (SAG) to identify and discuss matters they believe have not been
adequately addressed by appellate counsel. RAP 10.10(a). Although references to the
record and citations to authorities are not required, a court will not consider grounds that
do not inform the court of the nature and occurrence of alleged errors. RAP 10.10(c).
Similarly, passing treatment of an issue or lack of reasoned argument are insufficient to
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No. 39131-1-III
State v. Kieffer
merit judicial consideration. Joy v. Dep’t of Lab. & Indus., 170 Wn. App. 614, 629, 285
P.3d 187 (2012).
In a 51-page SAG, Mr. Kieffer raises approximately 150 contentions. Many are
opinions rather than legal arguments, some relate to the length of delay before trial, and
some relate to trial counsel’s performance. Due to the sheer number of contentions, the
vast majority are insufficiently analyzed to merit consideration.3 Also, were we to
resolve a few of the poorly argued issues against Mr. Kieffer here, on direct review, he
likely would be precluded from having them later reviewed in a personal restraint petition
(PRP). See In re Pers. Restraint of Gentry, 137 Wn.2d 378, 388, 972 P.2d 1250 (1999)
3
By way of example, we quote the following paragraphs:
Another reason I violated the [no contact order] was because
after my wife and prosecutor, it was made clear that I never threatened
anyone . . . .
. . . I believe he did me dirty, honestly. I believe my wife became a
professional victim, so she could feel good about divorcing me and getting
everything, including no visitation with my children.
I feel I was not properly represented, or true justice would have
prevailed, and I would have been found not guilty on all counts, in my
opinion.
I honestly wonder how all crimes have a DV attachment when there
was never evidence. I don’t feel this was the intent of the law for this to be
used as multiple points like this.
I was never offered a first-time felony sentence, which I believe the
Judge should have done as well. They attach seven misdemeanors (DV)
convictions to be 7 of the 8 points? It really doesn’t seem fair to me.
SAG at 10-11.
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No. 39131-1-III
State v. Kieffer
("In PRPs, we ordinarily will not review issues previously raised and resolved on direct
review."). For these reasons, we decline to address the issues Mr. Kieffer raises in his
SAG.
Affirmed, but remanded to strike the VPA.
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.
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Lawrence-Berrey, C.J. ~ ~
WE CONCUR:
2
Pennell, J.
J1._ ,Q- Cooney, J.
8