State Of Washington, Resp. v. James Steven Johnson, App.

STATE OF WASHIHGTO:-'
2Q!131 Wash. 2d 558, 568, 933 P.2d 1019 (1997). We review an
offender score calculation de novo but review a "'determination of what constitutes the
same criminal conduct [for] abuse of discretion or misapplication of the law.'" State v.
Mutch. 171 Wash. 2d 646, 653, 254 P.3d 803 (2011) (alteration in original) (quoting State
v. Tili, 139 Wash. 2d 107, 122, 985 P.2d 365 (1999)). A trial court abuses its discretion if
its decision "(1) adopts a view that no reasonable person would take and is thus
'manifestly unreasonable,' (2) rests on facts unsupported in the record and is thus
based on 'untenable grounds,' or (3) was reached by applying the wrong legal standard
and is thus made 'for untenable reasons.'" State v. Sisouvanh, 175 Wash. 2d 607, 623,
290 P.3d 942 (2012) (quoting State v. Rohrich, 149 Wash. 2d 647, 654, 71 P.3d 638
(2003)).
RCW 9.94A.525(5)(a)(i) explains how a sentencing court scores multiple prior
convictions:
In the case of multiple prior convictions, for the purpose of computing the
offender score, count all convictions separately, except:
(i) Prior offenses which were found, under RCW 9.94A.589(1)(a), to
encompass the same criminal conduct, shall be counted as one offense, the
offense that yields the highest offender score. The current sentencing court shall
determine with respect to other prior adult offenses for which sentences were
served concurrently or prior juvenile offenses for which sentences were served
consecutively, whether those offenses shall be counted as one offense or as
separate offenses using the "same criminal conduct" analysis found in RCW
9.94A.589(1)(a), and ifthe court finds that they shall be counted as one offense,
then the offense that yields the highest offender score shall be used. The current
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sentencing court may presume that such other prior offenses were not the same
criminal conduct from sentences imposed on separate dates, or in separate
counties or jurisdictions, or in separate complaints, indictments, or informations.
This subsection sets out two alternative scoring rules. Under the first sentence,
the current sentencing court is required to treat prior offenses as a single offense if such
offenses "were found, under RCW 9.94A.589(1)(a), to encompass the same criminal
conduct." RCW 9.94A.525(5)(a)(i). If there was no such finding, the second sentence
applies. That sentence requires the current sentencing court to make its own
determination "using the 'same criminal conduct' analysis found in RCW
9.94A.589(1)(a)."1 RCW 9.94A.525(5)(a)(i).
To determine how these provisions apply, we must examine RCW 9.94A.589.
That section sets forth rules for determining whether sentences will be consecutive or
concurrent. Subdivision (1)(a) contains the default rule for multiple current offenses:
Except as provided in (b) or (c) of this subsection, 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: PROVIDED,
That ifthe 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. Sentences imposed under this subsection shall be served
concurrently. Consecutive sentences may only be imposed under the
exceptional sentence provisions of RCW 9.94A.535. "Same criminal conduct,"
as used in this subsection, means two or more crimes that require the same
criminal intent, are committed at the same time and place, and involve the same
victim. This definition applies in cases involving vehicular assault or vehicular
homicide even if the victims occupied the same vehicle.
RCW9.94A.589(1)(a).
1 Even where the prior sentencing court did not explicitly make a finding of same
criminal conduct, if the court ordered that the sentences be served concurrently, the
current sentencing court must independently determine whether the prior convictions
"encompass the same criminal conduct" and, ifthey do, must count them as one
offense. RCW 9.94A.525(5)(a)(i); State v. Torngren, 147 Wash. App. 556, 563, 196 P.3d
742 (2008).
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RCW 9.94A.589(1)(a) only applies "whenever a person is to be sentenced for
two or more current offenses." RCW 9.94A.589(1)(a) (emphasis added). It, thus,
applies only to the original sentencing proceeding. In subsequent proceedings when a
court is determining criminal history, the offender is no longer "to be sentenced for two
or more current offenses." RCW9.94A.589(1)(a). Thus, any subsequent determination
with regard to criminal history is not made "under RCW 9.94A.589(1)(a)." RCW
9.94A.525(5)(a)(i). RCW 9.94A.525(5)(a)(i) distinguishes between same criminal
conduct determinations made "under RCW 9.94A.589(1)(a)" and those made "using the
'same criminal conduct' analysis found in RCW 9.94A.589(1)(a)." RCW
9.94A.525(5)(a)(i).
Johnson claims that RCW 9.94A.525(5)(a)(i) required the trial court to score the
1996 and 1999 convictions the same as the 2001 King County Superior Court did
because its decision estops later sentencing courts from scoring those crimes
differently. Johnson does not dispute that some or all of the three 1996 counts and two
1999 counts were not actually the same criminal conduct; rather, he limits his claim to
the binding effect of the 2001 King County Superior Court judgment and sentence. He
specifically claims, "[l]f a prior trial court has determined that two or more convictions
constitute the same criminal conduct, the current sentencing court is bound by that
determination." Appellant's Br. at 9.
RCW 9.94A.525(5)(a)(i) does not support Johnson's position. Johnson relies on
the sentence, "Prior offenses which were found, under RCW 9.94A.589(1)(a), to
encompass the same criminal conduct, shall be counted as one offense, the offense
that yields the highest offender score." But his argument ignores the circumstances
when a trial court makes this determination under RCW 9.94A.589(1)(a). As explained
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above, this latter statute applies only to a trial court finding for current offenses for which
a defendant is being sentenced. This means that a court considering whether multiple
prior convictions constitute the same criminal conduct is bound by a decision of the trial
court that convicted the defendant of the prior offenses. This may reflect the
legislature's determination that the court convicting a defendant of a crime has the most
complete information about the facts and circumstances of that crime. However,
because decisions made later by other courts in the context of deciding whether prior
convictions constitute the same criminal conduct are not made under RCW
9.94A.589(1)(a), the first sentence of RCW 9.94A.525(5)(a)(i) does not apply here.
That sentence would apply only if the trial court in Snohomish County causes
95-1-01648-5 and 97-1-01472-1 had found that the offenses on which it sentenced
Johnson constituted the same criminal conduct.2
2Statutory history supports this analysis. See In re Troxel, 87 Wash. App. 131,
136, 940 P.2d 698 (1997) (analyzing statutory history to support court's reading of a
statute's limitations). For purposes of calculating the offender score, the Sentencing
Reform Act counted all prior adult convictions served concurrently as one offense.
Laws of 1983, ch. 115, § 7(8); Laws of 1984, ch. 209, § 19(11). In 1986, the legislature
expanded the number of prior convictions that would count toward the offender score:
In the case of multiple prior convictions, for the purpose of computing the
offender score, count all convictions separately, except:
(a) Prior adult offenses which were found, under RCW 9.94A.400(1)(a), to
encompass the same criminal conduct, shall be counted as one offense, the
offense that yields the highest offender score. The current sentencing court shall
determine with respect to other prior adult offenses for which sentences were
served concurrently whether those offenses shall be counted as one offense or
as separate offenses ....
Laws of 1986, ch. 257, § 25(5). At the same time, the legislature amended RCW
9.94A.400(1)(a) to create a "same criminal conduct" standard for multiple current
offenses. Laws of 1986, ch. 257, § 28. RCW 9.94A.400(1)(a) is the predecessor of
RCW 9.94A.589.
Under the 1986 amendments, the reference to a finding "under RCW
9.94A.400(1)(a)" clearly referred to a finding by the original sentencing court because
the statute did not provide for any other court to make any such determination. The
1986 statute was viewed as conferring unrestricted discretion on subsequent
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Here, the trial court acted properly under a correct interpretation of RCW
9.94A.525(5)(a). There has been no prior determination under RCW 9.94A.589(1)(a)
that any of Johnson's prior convictions constituted the same criminal conduct.
Consequently, the current sentencing court was required to decide whether to count
those crimes separately "using the 'same criminal conduct' analysis found in RCW
9.94A.589(1)(a)." RCW 9.94A.525(5)(a)(i). The legislature intended the phrase "same
criminal conduct" to be construed narrowly. State v. Flake, 76 Wash. App. 174, 180, 883
P.2d 341 (1994). If any one of the factors is missing, the multiple offenses do not
encompass the same criminal conduct. State v. Lesslev, 118Wn.2d 773, 778, 827
sentencing courts to decide what crimes would be included in criminal history whenever
the defendant had served concurrent sentences for crimes that had not been found by
the original sentencing court to encompass the same criminal conduct. See State v.
McCraw, 127 Wash. 2d 281, 287-88, 898 P.2d 838 (1995), superseded bv statute as
stated in State v. Bolar, 129 Wash. 2d 361, 917 P.2d 125 (1996). The 1995 legislature
limited subsequent courts' discretion by adding the underlined language:
Prior adult offenses which were found, under RCW 9.94A.400(1)(a), to
encompass the same criminal conduct, shall be counted as one offense, the
offense that yields the highest offender score. The current sentencing court shall
determine with respect to other prior adult offenses for which sentences were
served concurrently whether those offenses shall be counted as one offense or
as separate offenses using the "same criminal conduct" analysis found in RCW
9.94A.400(1)(a) . . . .
Laws of 1995, ch. 316, § 1(6)(a)(i).
The 1995 Senate Bill Report for this amendment states, "When counting prior
offenses that were served concurrently, the offenses count as one if thev were
specifically found bv the sentencing court to encompass the same criminal conduct.
Otherwise, the court has discretion whether to count the offenses separately oras one."
S.B. Rep. on Substitute H.B. 1140, 54th Leg., Reg. Sess. (Wash. 1995) (emphasis
added). It continues, "When scoring prior concurrently served offenses that the prior
sentencing judge did not specifically determine encompassed the same criminal
conduct, the currentsentencing judge must determine whetherthe offenses count as
one orseparately by applying the 'same criminal conduct' analysis." S.B. Rep. on
Substitute H.B. 1140, 54th Leg., Reg. Sess (Wash. 1995) (emphasis added). This
language confirms that "same criminal conduct" determinations are binding only if made
by the original sentencing court.
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P.2d 996 (1992). Moreover, because a finding by the sentencing court of same criminal
conduct always favors the defendant, "it is the defendant who must establish [that] the
crimes constitute the same criminal conduct." State v. Graciano, 176 Wash. 2d 531, 539,
295 P.3d 219 (2013).
Under the above analysis, the 1996 prescription forgery convictions were not the
same criminal conduct because Johnson committed the crimes on completely different
and nonconsecutive days. The 1999 forgery and possession of stolen property
offenses were not the same criminal conduct because they were committed against
different victims.3 Johnson does not argue that these crimes factually constituted the
same criminal conduct—his only argument is that the current sentencing court was
bound by the 2001 King County Superior Court's ruling in that regard. We conclude that
the trial court properly counted Johnson's 1996 and 1999 convictions separately and,
thus, properly declined to follow the 2001 court's "same criminal conduct" determination.
The 1996 and 1999 sentences support applying the State's recommendation to score
the crimes as separate offenses, rather than the same criminal conduct.
Ineffective Assistance of Counsel
In his appellate brief and his pro se statement of additional grounds, Johnson
argues he received ineffective assistance of counsel at sentencing. He alleges two
areas of ineffectiveness: (1) counsel stipulated to the offender score and (2) "despite
Johnson's clearly expressed desire to seek a low-end standard range sentence,
[counsel] inexplicably concurred with the prosecutor's recommendation for the harshest
3As described above, Talia Bowie was the only victim of the possession of stolen
property count. Multiple victims existed for the forgery count (including the cab driver
and the credit card company). Two crimes cannot be the same criminal conduct if one
crime involves only one victim and the other involves multiple victims. State v. Davis.
90 Wash. App. 776, 782, 954 P.2d 325 (1998).
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sentence possible." Appellant's Br. at 10. To establish ineffective assistance of
counsel, a defendant must show both deficient performance and resulting prejudice.
State v. McFarland. 127 Wash. 2d 322, 334-35, 899 P.2d 1251 (1995). Prejudice requires
"'a reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different.'" State v. Thomas. 109 Wash. 2d 222, 226, 743
P.2d 816 (1987) (quoting Strickland v. Washington. 466 U.S. 668, 694, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984)). If one of the two prongs of the test is absent, we need not
inquire further. State v. Hendrickson. 129Wn.2d 61, 78, 917 P.2d 563 (1996).
The first alleged deficiency is immaterial. The State concedes that Johnson can
challenge the computation of Johnson's offender score on appeal notwithstanding
counsel's stipulation at trial. And as discussed above, the State correctly computed
Johnson's offender score in its sentencing memorandum. Defense counsel's stipulation
to the correct offender score was neither deficient performance nor prejudicial.
Regarding the second alleged deficiency, even assuming defense counsel's
performance was deficient for seeking a sentence at the top ofthe range,4 Johnson fails
to show prejudice. As Division Three of this court noted:
[A]n allegedly unsuccessful or poor quality sentencing argument alone is unlikely
to result in demonstrable prejudice because of the near impossibility of showing a
nexus between the argument and the eventual sentence. We must be
persuaded the result would have been different. [State v.] McNeal, 145 Wn.2d
[352,] 362, 37 P.3d 280 [2002]. A standard range sentence is a matter of broad
trial court discretion. Argument merely attempts to influence the court's exercise
of its sentencing discretion.
State v. Goldberg, 123 Wash. App. 848, 853, 99 P.3d 924 (2004). Here, the court treated
the defense recommendation as one for 48 months, the low end of the standard range.
4The State admits that it "cannot. . . suggest any valid tactical reason in this
case for seeking a sentence at the top of the range." Resp't's Br. at 16.
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The court "focus[ed]... on the things that [defense counsel] has pointed to as justifying
something less than the high end." RP (Aug. 24, 2012) at 180. The court considered
factors supporting a lenient sentence, as well as factors supporting a more severe
sentence. The court's 58-month sentence was slightly less than the 60-month statutory
maximum. Given the court's careful analysis and exercise of its discretion, Johnson
fails to show a reasonable probability that any defective performance affected his
sentence—and, thus, he fails to show prejudice.
CONCLUSION
Because the trial court correctly computed Johnson's offender score and
Johnson fails to establish ineffective assistance of counsel, we affirm his conviction and
sentence.
WE CONCUR:
VYX 1
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