State Of Washington v. John Lonergan

2-
FS3 3.
IN THE COURT OF APPEALS OF THE STATE O
DIVISION II
STATE OF WASHINGTON, No.
Respondent,
V.
JOHN SCOTT LONERGAN, UNPUBLISHED OPINION
0
LEE, J. — John Scott Lonergan appeals his convictions of second degree assault /domestic
violence and felony harassment ( death threat) /domestic violence, arguing that he received
ineffective assistance of counsel when his attorney failed to argue at sentencing that his current
offenses constituted the same criminal conduct. Lonergan argues in a pro se statement of
additional grounds ( SAG) that his trial attorney also was deficient in failing to present an alibi
defense. Because Lonergan' s trial testimony conflicts with the alibi he now presents, we reject
his related claim of deficient performance. We affirm Lonergan' s convictions. However,
because Lonergan' s trial counsel failed to raise the same criminal conduct argument, we agree
with this claim of ineffective assistance of counsel and remand for resentencing.
FACTS
Marisa Cadman and Lonergan had a tumultuous relationship that resulted in Lonergan
moving out of Cadman' s home in late 2011. Shortly after 1: 00 AM on November 17, 2011,
Cadman called 911 to report an altercation with Lonergan. Clark County Deputy Sheriff Richard
Osborne responded to the call and found Cadman crying, shaking, and upset. She told Osborne
No. 43645 -1 - II
that Lonergan showed up at her home sometime around midnight. After he had been there for
about an hour, she received a text from a male friend, and Lonergan demanded to see the text.
When she refused, a struggle ensued. After pushing Cadman down on the couch, Lonergan
began choking her with both hands while threatening to kill her.
Lonergan was arrested shortly thereafter and charged with second degree
domestic violence and
assault / felony domestic
harassment ( death threat) / violence. At his trial,
Cadman testified that when she refused to relinquish her phone, Lonergan put his hands around
her neck and threatened to kill her. He would let go briefly and then choke her again while
fact that he saying that, it Report
threatening her. She testified that " the was was even worse."
of Proceedings ( June 11, 2012) at 51. Cadman gave up and showed Lonergan her phone.
Lonergan read the text message and left when Cadman told him she was calling the police.
Cadman estimated that the altercation lasted 15 minutes.
Deputy Osborne testified about responding to the 911 call and explained that Cadman
took Lonergan' s threat to kill seriously because he was choking her at the time.
Lonergan testified that he went over to Cadman' s house on the night in question at her
invitation. He got there before she did and took a shower. When she came home drunk, he
confronted her about where she had been, pushed her away, and left. He denied choking
Cadman or threatening to kill her.
After the jury found Lonergan guilty as charged, the trial court counted his current
The trial court imposed
offenses separately in calculating his offender score on each offense.
concurrent standard range sentences of 75 months on the assault and 51 months on the
harassment.
2
No. 43645- 1- 11
Lonergan appeals and raises two claims of ineffective assistance of counsel.
DISCUSSION
A. INEFFECTIVE ASSISTANCE OF COUNSEL
Lonergan argues that he received ineffective assistance of counsel when his attorney
failed to argue at sentencing that his two current offenses counted as one under the same criminal
conduct rule.
To prevail on a claim of ineffective assistance of counsel, a defendant must prove that his
counsel' s performance was deficient and that the deficiency was prejudicial. State v.
Hendrickson, 129 Wash. 2d 61, 77 -78, 917 P.2d 563 ( 1996). Counsel' s performance is deficient if
it falls below an objective standard of reasonableness and is not based on a legitimate strategic or
tactical decision. State v. McFarland, 127 Wash. 2d 322, 334 -36, 899 P.2d 1251 ( 1995). Prejudice
is established if a defendant can show that but for the deficient performance, the outcome would
have differed. State v. Thomas, 109 Wash. 2d 222, 226, 743 P.2d 816 ( 1987). The failure to make
a same criminal conduct argument is prejudicial if the defendant shows that with the argument,
the sentence would have differed. State -v. Beasley, 126 Wash. App. 670, 686, 109 P.3d 849,
review denied, 155 Wash. 2d 1020 ( 2005).
Offenses are the same criminal conduct if 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 the same criminal conduct rule, and if any of the three elements is
missing, each conviction must count separately. State v. Porter, 133 Wash. 2d 177, 181, 942 P.2d
974 ( 1997).
3
No. 43645 -1 - II
Here, there is no dispute that Lonergan committed assault and felony harassment at the
same time and place and against the same victim. The only issue is whether Lonergan
committed his crimes with the same criminal intent.
In this context, intent does not mean the particular mens rea required for the crime.' State
v. Davis, 174 Wn. App. 623, 642, 300 P.3d 465, review denied, 178 Wash. 2d 1012 ( 2013).
Rather, it means the defendant' s "` objective criminal purpose in committing the crime. "' Davis,
174 Wash. App. at 642 ( quoting 'State v. Adame, 56 Wash. App. 803, 811, 785 P.2d 1144, review
denied, 114 Wash. 2d 1030 ( 1990)); see State v. Dunaway, 109 Wash. 2d 207, 217, 743 P.2d 1237,
749 P.2d 160 ( 1987) ( kidnapping and robbery convictions shared same criminal intent); Davis,
174 Wash. App. at 642 ( assault and attempted murder convictions shared same criminal intent);
State v. Phuong, 174 Wn. App. 494, 548, 299 P.3d 37 ( 2013) ( finding ineffective assistance
where counsel did not argue that attempted rape and unlawful imprisonment offenses shared
same criminal intent); State v. Saunders, 120 Wn. App. 800, 825, 86 P.3d 232 ( 2004) ( finding
ineffective assistance where counsel did not argue that rape and kidnapping convictions shared
same criminal intent); State v. Davis, 90 Wn. App. 776, 782, 954 P.2d 325 ( 1998) ( assault and
burglary convictions shared same criminal intent).
In determining whether two or more crimes share the same criminal intent, courts
consider how intimately related the crimes are, whether the nature of the criminal objective
The crimes of second degree assault by strangulation and felony harassment have different
statutory intents. The intent for second degree assault as charged is to assault by strangulation,
and the intent for felony harassment is to knowingly threaten to kill. RCW 9A.36. 021( 1)( g);
RCW 9A.46. 020( 1), ( 2).
0
No. 43645 -1 - II
changed between the crimes, and whether one crime furthered the other. Phuong,
substantially
174 Wash. 546 -47 ( citing State Burns, 114 Wn.24 314, 318, 788 P.2d 531 ( 1990)).
App. at v.
Crimes may involve the same criminal intent if they were part of a continuing, uninterrupted
sequence of conduct. Porter, 133 Wash. 2d at 186.
As Cadman and the deputy testified, Lonergan choked and threatened her simultaneously
so that she would relinquish her cell phone. The trial court could conclude that Lonergan' s
criminal objective in committing these offenses was the same: to force Cadman to yield her
phone. The trial court could also determine that choking Cadman both legitimized and furthered
the threat, particularly when there was no temporal break between the assault and the
harassment. This is not a case where one crime was completed before the other was committed
or a case where the defendant had the opportunity to pause and reflect after completing one
offense and to form a new intent before committing another. See State v. Wilson, 136 Wash. App.
596, 615, 150 P.3d 144 ( 2007) ( where, defendant had time to complete an assault and form a new
intent to threaten the victim, the crimes of assault and felony harassment had different objective
intents and were not the same criminal conduct); State v.- Grantham, 84 Wash. App. 854, 859, 932
P.2d 657 ( 1997) ( defendant had time after first rape to form intent to commit the second, so the
two rapes counted separately).
Thus, given the facts of this case, there is a reasonable probability that had counsel
argued same criminal conduct, the trial court could have found that the second degree assault and
the felony harassment offenses encompassed the same criminal conduct. Furthermore, there was
no legitimate reason for defense counsel not to have asked the court to find that Lonergan' s
second degree assault and felony harassment convictions were the same criminal conduct.
5
No. 43645 -1 - II
Consequently, we must find that defense counsel was deficient in failing to make the same
criminal conduct argument at sentencing. Saunders, 120 Wash. App. at 825.
When two or more crimes constitute the same criminal conduct, the sentencing court
must count them as one offense in computing the defendant' s offender score. RCW
9. 94A. 589( 1)( a). Here, counting each of Lonergan' s current offenses separately resulted in an
offender score of 10 for the assault, which included two points for the felony harassment because
it was a domestic violence offense. RCW 9. 94A. 525( 21)( a). With that offender score, the
standard range was 63 -84 months. RCW 9. 94A.510,. 515. Lonergan received a sentence of 75
months on the assault conviction. Had the current offenses counted as one under the same
criminal conduct rule, Lonergan' s offender score on the assault would have been 8, with a
standard range of 53 -70 months, and a standard sentence of 75 months would not have been
permissible. 2 RCW 9. 94A.510. Therefore, because Lonergan' s sentence for assault likely would
have differed had the trial court agreed with the same criminal conduct analysis, the prejudice
prong of the ineffective assistance of counsel test is satisfied.. Beasley, 126 Wash. App. at 686.
Accordingly, a remand for resentencing is required.
B. ALIBI DEFENSE
Lonergan argues in his pro se SAG that his counsel was ineffective for failing to pursue
an alibi defense stemming from his detention on other charges in Portland early on November
17, the date of the alleged altercation.
2 For the felony harassment, Lonergan' s. standard range was 51 -68 months with a score of 10 and
43 -57 months with a score of 8. RCW 9. 94A. 510,. 515. Consequently, his 51 -month sentence
for the harassment did not exceed the standard range corresponding to the lower score.
No. 43645 -1 - II
The record shows that the trial court granted Lonergan' s pretrial motion to exclude any
references to his unrelated traffic stop on November 17 as irrelevant. Lonergan argues now that
his stop in the " early morning hours" of November 17 would have provided him with an alibi
defense. SAG at 2. Cadman called 911 at 1: 13 AM on November 17 to report the altercation.
Thus, Lonergan' s early morning traffic stop and arrest in Portland does not undermine Cadman' s
allegations. Moreover, Lonergan testified that .he was in Cadman' s home on the night in
question. We see no deficient performance in defense counsel' s failure to pursue an alibi
defense and reject this claim of ineffective assistance of counsel.
We affirm Lonergan' s convictions, but remand for resentencing where defense counsel
can argue same criminal conduct.
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.
7