STATE v. FEESER (2007)

PUBLISHED IN PART OPINION

¶ 1 Dwight C. Feeser appeals his conviction and sentence for second degree murder while armed with a deadly weapon.   He argues that (1) the information was insufficient, (2) the instructions improperly relieved the State of its burden of proof because they failed to require the jury to find absence of premeditation as an element of second degree murder, (3) the felony murder statute unconstitutionally violates the separation of powers doctrine because it leaves the courts to provide a definition for the underlying felony “assault,” and (4) the sentencing court should not have used an offender score of 1, based on his 1997 prior felony conviction, because the record does not include his post-1997 misdemeanors, which the State contends prevented this conviction from “washing out” under RCW 9.94A.525(2).   We affirm Feeser's conviction and, based on Cadwallader,¹ vacate his sentence, and remand for resentencing.

FACTS

¶ 2 On May 5, 2005, Dwight Cletus Feeser shot and killed his friend Brian Sheets during an argument.   The shooting occurred at the home of Michael Feeser, Dwight Feeser's nephew, where both Dwight Feeser and Sheets resided.

¶ 3 The State charged Feeser with second degree murder by intentional killing, or in the alternative, second degree felony murder in furtherance of second degree assault.   Feeser did not challenge the sufficiency of the information below.   At trial, Feeser asserted self-defense.

¶ 4 The trial court gave the jury alternative “to convict” instructions for second degree murder:  intentional killing and felony murder by causing death in furtherance of second degree assault.   Feeser did not challenge these instructions.   The jury found Feeser guilty of second degree murder.

¶ 5 At sentencing, the trial court noted that Feeser had four prior felony convictions:  (1) unlawful taking of a motor vehicle in 1969, (2) unlawful taking of a motor vehicle in 1974, (3) grand larceny in 1977, and (4) unlawful possession of a firearm in the second degree in 1997.²  The State conceded that the 1974 unlawful-motor-vehicle-taking conviction and 1977 grand larceny conviction ³ “washed out” under RCW 9.94A.525. The State asserted, and Feeser did not object or request further proof, that Feeser's 1997 firearm possession did not wash out.   Both Feeser and the State determined the same standard range sentence, 134-234 months, which the State, at least, had derived from an offender score of one based on Feeser's 1997 conviction.

¶ 6 Based on this same 1997 felony, the trial court also calculated an offender score of 1, which yielded the same standard sentencing range.   The trial court sentenced Feeser to 234 months confinement for his second degree murder conviction, with an additional 60-month firearm enhancement.

¶ 7 Feeser appeals his conviction and sentence.

ANALYSIS

I. “Without Premeditation” Not an Element of Second Degree Murder

¶ 8 This case involves an issue of first impression.   Feeser challenges the sufficiency of the information and the jury instructions.   He argues that “without premeditation” is an element of second degree murder by intentional killing.   The State counters that “without premeditation” is not an element of this crime under RCW 9A.32.050(1)(a).   We agree with the State.

A. Standard of Review

 ¶ 9 A charging document must allege each essential element of the crime to notify the accused of the nature of the allegation so that he can properly prepare a defense.  State v. Kjorsvik, 117 Wash.2d 93, 97, 102, 812 P.2d 86 (1991);  State v. Leach, 113 Wash.2d 679, 689, 782 P.2d 552 (1989).   If the charging document fails to allege each element, the trial court must dismiss without prejudice.  State v. Vangerpen, 125 Wash.2d 782, 790 n. 16, 888 P.2d 1177 (1995).   Under Kjorsvik, our standard of review depends on when the defendant challenges the sufficiency of the information.   If, as here, the defendant raises the challenge for the first time on appeal, we construe the charging document broadly.  Kjorsvik, 117 Wash.2d at 97, 812 P.2d 86.

 ¶ 10 A similar strict principle applies to fatally defective jury instructions:  To obtain and to sustain a conviction, the State must prove every essential element of a crime beyond a reasonable doubt.  State v. Cronin, 142 Wash.2d 568, 580, 14 P.3d 752 (2000).  “[A] conviction cannot stand if the jury was instructed in a manner that would relieve the State of this burden.”  Id.

 ¶ 11 Whether second degree murder by intentional killing, RCW 9A.32.050(1)(a), includes the absence of premeditation as an essential element requires us to engage in statutory construction.   Thus, we review the trial court's decision de novo.  State v. Ammons, 136 Wash.2d 453, 456, 963 P.2d 812 (1998).

B. “Without Premeditation”

 ¶ 12 RCW 9A.32.050(1)(a) provides:  “A person is guilty of murder in the second degree when ․ [w]ith the intent to cause death of another person but without premeditation, he or she causes the death of such person or of a third person.”  (Emphasis added.)   Thus, premeditation is the element that distinguishes first degree murder, RCW 9A.32.020,⁴ FROM INTENTIONAL SECOND DEGREE MURDER, RCW 9A.32.050(1)(a).⁵  state v. brooks, 97 wash.2D 873, 876, 651 P.2D 217 (1982) (citing State v. Shirley, 60 Wash.2d 277, 278, 373 P.2d 777 (1962));  State v. Rutten, 13 Wash. 203, 212, 43 P. 30 (1895).

¶ 13 But contrary to Feeser's argument, lack of premeditation is not an additional element that the State must demonstrate in order to prove second degree murder beyond a reasonable doubt.   Although no Washington appellate court has specifically considered Feeser's argument, Washington's body of homicide, and other felony, case law is instructive.

¶ 14 Recently, our Supreme Court addressed an analogous issue in State v. Tinker, 155 Wash.2d 219, 118 P.3d 885 (2005).   Tinker alleged that the third degree theft statute required the State to prove the value of the property taken as an essential element of the crime.  Id. at 220, 118 P.3d 885.   Considering the plain language of the statute as a whole, the Court reasoned that (1) property value was not necessary to establish the illegality of the theft behavior, Id. at 221-22, 118 P.3d 885;  (2) the property's value serves simply to distinguish among the several degrees of theft;  and (3) therefore, the value of the stolen property is not part of the criminal behavior that is the essence of theft.  Id. at 222, 118 P.3d 885.

¶ 15 Similarly, in State v. Ward, 148 Wash.2d 803, 64 P.3d 640 (2003), our Supreme Court rejected defense arguments that the State must prove that the predicate assault in a felony violation of a no contact order “does not amount to assault in the first or second degree.” ⁶  Id. at 806, 64 P.3d 640.   The Court recognized the language “does not amount to” as the Legislature's mechanism for elevating no-contact-order violations from a misdemeanor to a felony when the violator also assaults the victim.  Id. at 812, 64 P.3d 640.

 ¶ 16 An “essential element is one whose specification is necessary to establish the very illegality of the behavior” charged. State v. Johnson, 119 Wash.2d 143, 147, 829 P.2d 1078 (1992).   The language of RCW 9A.32.050(1)(a) provides that “[a] person is guilty of murder in the second degree when ․ [w]ith the intent to cause the death of another person but without premeditation, he or she causes the death of such person or of a third person.”   Both first and second degree murder contain an essential element of intent, although the type of intent varies with the degree of murder charged.   As with the various degrees of theft in Tinker and the elevation of a no contact order from misdemeanor to felony in Ward, RCW 9A.32.050(1)(a)'s language “but without premeditation” similarly serves to distinguish second degree murder from first degree murder, which contains an essential element of premeditation, an element that second degree murder does not include.

¶ 17 We hold, therefore, that “but without premeditation” does not function as an essential element of second degree murder under RCW 9A.32.050(1)(a).   Rather it serves merely to distinguish second degree murder from first degree murder, which requires a showing of premeditation.   Therefore, the State need not prove the absence of premeditation in order to prove second degree murder beyond a reasonable doubt under RCW 9A.32.050(1)(a).

¶ 18 Accordingly, we find no error in the information's “failure” to allege that Feeser acted “without premeditation” and in the to-convict jury instruction's “failure” to include as an element of second degree murder that Feeser acted “without premeditation.”   We affirm.

¶ 19 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

II. Separation of Powers:  Common Law Definition of “Assault”

¶ 20 Feeser next argues that RCW 9A.32.050(1)(b), which defines second degree felony murder, is unconstitutional under the separation of powers doctrine because (1) the statute fails to define “assault,” (2) thus requiring the trial court to define “assault,” (3) thereby encroaching on core legislative functions.   We recently rejected this argument in State v. David, 134 Wash.App. 470, 480-83, 141 P.3d 646 (2006).   Feeser asserts no reason to deviate from this precedent.   Thus, we do not further consider this issue.

¶ 21 Accordingly, we adhere to our analysis in David and its holding that RCW 9A.32.050(1)(b) is not unconstitutional under the separation of powers doctrine.

III. Offender Score Calculation

¶ 22 Lastly, Feeser challenges the trial court's computation of his offender score:  He asserts that his offender score should be zero, instead of one, for several reasons:  First, the trial court should not have included his 1997 firearm conviction in his offender score because it had occurred over five years earlier and there was no evidence before the trial court that he had other convictions since 1997, in particular the two misdemeanor convictions the State notes on appeal.   Second, based on the evidence before the sentencing court, namely the absence of evidence of his two post-1997 misdemeanor convictions, his 1997 firearm conviction had “washed out,” contrary to the State's unchallenged assertion that this conviction had not washed out.   Third, Feeser alternatively contends that he received ineffective assistance when his trial counsel failed to assert his correct offender score of zero during his sentencing.   Feeser asks us to vacate his sentence and to remand for recalculation of his offender score and resentencing.

¶ 23 The State argues that the trial court correctly calculated Feeser's offender score because (1) Feeser was convicted of two misdemeanors less than five years before his current offense, and (2) Feeser's failure to object to the trial court's inclusion of his 1997 firearm conviction in his offender score implies his acceptance of the State's implicit assertion that, unlike his other prior convictions, his 1997 firearm conviction did not wash out.   The State, however, neither alleged nor proved these two prior misdemeanors at sentencing, nor are they included in the record on appeal.7  We know about them only because the State notes their existence in their brief and asks us to allow them to supplement the record.   It appears to us, however, that In re Pers. Restraint of Cadwallader, 155 Wash.2d 867, 874, 123 P.3d 456 (2005), is dispositive and prevents such supplementation.

A. Calculation of Offender Score

¶ 24 Under the Sentencing Reform Act (SRA), the sentencing court calculates the defendant's offender score based on his criminal history to determine the standard sentencing range.   Former RCW 9.94A.525(3) (2004);  State v. Ford, 137 Wash.2d 472, 479, 973 P.2d 452 (1999).  RCW 9.94A.525, in pertinent part, instructs a sentencing court to determine a defendant's offender score as follows:

Class C prior felony convictions other than sex offenses shall not be included in the offender score if, since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender had spent five consecutive years in the community without committing any crime that subsequently results in a conviction.

RCW 9.94A.525(2) (2004).   In determining a defendant's offender score, a trial court may rely on only the information contained in any plea agreement, or admitted, acknowledged or proved in trial or at the time of sentencing.  RCW 9.94A.530(2).8

¶ 25 At Feeser's sentencing, the State presented evidence of four prior felony convictions.   The State asserted that two of Feeser's prior felony convictions “washed out,” 9 and that only the 1997 firearm possession conviction did not wash out.   It was silent about the fourth prior felony.   Feeser neither objected to the State's assertions about his prior convictions nor challenged the State to demonstrate the basis for its conclusion that the 1997 firearm conviction did not wash out;  thus, the State did not produce evidence of Feeser's two post-1997 misdemeanor convictions within the five years preceding his current offense, which the State now asserts on appeal prevented Feeser's 1997 felony from washing out.

¶ 26 In his own sentencing recommendation, Feeser recited the same standard range sentence, 134 to 234 months confinement, that the State had calculated in its sentencing recommendation, derived by using an offender score of one based on his non-washed-out 1997 prior conviction.   Consistent with both parties' sentencing recommendations,10 the trial court counted Feeser's firearm violation as one prior felony conviction, which resulted in an offender score of one and the same standard range sentence of 134 to 234 months confinement.

¶ 27 In spite of Feeser's apparent agreement below to the State's determination of his standard range sentence, based on an offender score of one, he nonetheless asks us on appeal to vacate his sentence and to remand for resentencing based on an offender score of zero.   He argues that, based on the evidence the state submitted at sentencing, the sentencing court should not have counted the 1997 firearm violation because it occurred over five years earlier and the record before the trial court showed no additional convictions since that time.   The Supreme Court's decision in Cadwallader appears to support Feeser's position.

¶ 28 At sentencing, the State bears the burden of proving by a preponderance of the evidence the existence of prior convictions used to determine the defendant's offender score.  Cadwallader, 155 Wash.2d at 876, 123 P.3d 456.   The defendant is not required to challenge prior convictions that the State presents and uses to calculate his offender score.   Instead, a defendant may challenge an erroneous sentence based on a miscalculated offender score at any time.  Id. at 874-75, 123 P.3d 456.

B. Remedy For Miscalculation of Offender Score

¶ 29 If the defendant does not challenge the State's representation of his prior convictions at sentencing and instead challenges his offender score for the first time on appeal, we generally remand for an evidentiary hearing.   Ford, 137 Wash.2d at 485, 973 P.2d 452.   But if the defendant does challenge the State's representation of his prior convictions at sentencing and “the disputed issues have been fully argued at sentencing, the State will be held to the existing record, the unlawful portion of the sentence will be excised, and the case will be remanded for resentencing without allowing the State to produce further evidence.”  Cadwallader, 155 Wash.2d at 878, 123 P.3d 456.   Cadwallader appears to have changed this general rule, at least insofar as it applies here, where Feeser did not challenge his offender score calculation during his sentencing hearing.

¶ 30 In Cadwallader, the State listed several prior convictions in Cadwallader's criminal record and selected two to use as prior strike offenses for purposes of establishing that he was a persistent offender, subject to life imprisonment without possibility of release.   The State did not include in Cadwallader's criminal record a prior theft conviction from Kansas.   Cadwallader later challenged his POAA sentence on appeal and in a personal restraint petition;  but by this time, changes in case law disqualified a prior offense that had previously prevented washing out one of his two strike offenses.

¶ 31 In the meantime, however, the State had discovered the Kansas conviction, which it contended Cadwallader had kept secret.   The State argued on appeal that because Cadwallader had failed to object at sentencing that there was defect that needed to be litigated, i.e., whether the 1978 rape conviction washed out, under Ford, 137 Wash.2d at 479-80, 973 P.2d 452, the State must be given the opportunity to present further evidence at resentencing on remand, namely Cadwallader's prior Kansas theft, to show that his prior strike offense had not actually washed out.   The Court of Appeals agreed.   The Supreme Court, however, did not.   Precluding the State from presenting Cadwallader's prior Kansas conviction at a resentencing hearing, the Court reasoned:

Given that Cadwallader had no obligation to disclose his criminal history, it follows that he had no obligation to object to the State's failure to include the 1985 Kansas theft conviction in his criminal history.   Regardless of whether it appeared necessary to present the Kansas conviction at the time of sentencing, it was the State's burden to present criminal history, not Cadwallader's.

Cadwallader, 155 Wash.2d at 876, 123 P.3d 456.

¶ 32 The Court went on to note:

Ford does not control, contrary to the State's contention.   In Ford the State alleged the out-of-state convictions used to determine the defendant's offender score.   In contrast, here the State did not even allege the 1985 Kansas conviction, much less present proof of it.   A “defendant is simply not obligated to disprove the State's position, at least insofar as the State has failed to meet its primary burden of proof.”  [Ford, 137 Wash.2d] at 482, 973 P.2d 452.   And, absent the 1985 Kansas conviction, Cadwallader's criminal history, listed in both his statement on plea of guilty and the judgment and sentence, shows that his 1978 rape conviction washed out.

Cadwallader, 155 Wash.2d at 877, 123 P.3d 456.   Similarly, here, when presenting Feeser's criminal history at sentencing, the State did not mention his prior misdemeanors, which it now attempts to introduce for the first time on appeal.

¶ 33 We find compelling the State's reason for not including these misdemeanors below, especially in light of Feeser's apparent tacit agreement to an offender score of one.   Nevertheless, we are bound by the holding in Cadwallader, in which our Supreme Court rejected the argument the State makes here:

The State maintains that because Cadwallader did not object to inclusion of the 1978 rape conviction as part of his criminal history ․, the State is not foreclosed from now proving the Kansas conviction.   Cadwallader contends, on the other hand, that where the prosecution does even less than in Lopez, i.e., it does not even allege a necessary prior conviction, here the 1985 Kansas theft conviction necessary to show that the 1978 rape conviction did not wash out, the defendant has no obligation to object and the State should not be allowed the remedy of an evidentiary hearing to correct its failure.   We agree.   At sentencing, unlike in both Ford and Lopez, the State failed even to allege the out-of-state conviction.

Id. at 878, 123 P.3d 456.

¶ 34 Similarly, here, the State did not allege Feeser's prior misdemeanors at sentencing to show that his 1997 felony did not wash out.   Thus, Cadwallader prevents the State from introducing them at a resentencing hearing on remand, in spite of Feeser's failure to give notice of the alleged defect at the time and his apparent acquiescence.   As the Court held in Cadwallader,

[T]he State failed to allege a 1985 Kansas conviction that was factually necessary to show the 1978 predicate strike offense did not wash out.   Because Cadwallader did not plead guilty pursuant to a plea agreement, he had no obligation ․ to complain about the State's failure to allege [the 1985 Kansas conviction] at sentencing. Thus, Cadwallader did not waive any challenge to use of the 1978 rape conviction as a predicate offense.

Id. at 880, 123 P.3d 456.

¶ 35 Accordingly, Cadwallader compels us to vacate Feeser's sentence and to remand for resentencing without allowing the State to present additional evidence that his prior 1997 felony did not wash out.

B. Ineffective Assistance of Counsel

¶ 36 Alternatively, Feeser claims ineffective assistance based on trial counsel's failure to challenge the State's representation at sentencing that his 1997 firearm conviction did not wash out.   Because we reverse Feeser's sentence based on Cadwallader, we need not address his ineffective assistance of counsel argument.

¶ 37 Accordingly, we affirm Feeser's conviction, vacate his sentence, and remand for resentencing without counting his 1997 conviction as a prior offense for purposes of calculating his offender score.

FOOTNOTES

1.   In re Pers. Restraint of Cadwallader, 155 Wash.2d 867, 123 P.3d 456 (2005).

2.   In its Brief of Respondent, the State notes and attaches copies of Feeser's two prior misdemeanor convictions, which occurred within five years of his 1997 firearm conviction and, therefore, served as the basis for the State's unchallenged assertion that Feeser's 1997 firearm conviction did not wash out under RCW 9.94A.525(2).   These misdemeanor convictions, however, are not part of the record on appeal;  nor, apparently, were they part of the record in the trial court.

3.   Although not expressly mentioned in the record, the parties presumed that the 1977 grand larceny “washed out” because Feeser committed no crimes during the five years after that conviction.   See the Judgment and Sentence, which does not note whether the 1977 conviction “washed out.”

4.   RCW 9A.32.030 defines first degree murder as follows:(1) A person is guilty of murder in the first degree when:(a) With a premeditated intent to cause the death of another person, he or she causes the death of such person or of a third person;  or(b) Under circumstances manifesting an extreme indifference to human life, he or she engages in conduct which creates a grave risk of death to any person, and thereby causes the death of a person;  or(c) He or she commits or attempts to commit the crime of either (1) robbery in the first or second degree, (2) rape in the first or second degree, (3) burglary in the first degree, (4) arson in the first or second degree, or (5) kidnapping in the first or second degree, and in the course of or in furtherance of such crime or in immediate flight therefrom, he or she, or another participant, causes the death of a person other than one of the participants:  Except that in any prosecution under this subdivision (1)(c) in which the defendant was not the only participant in the underlying crime, if established by the defendant by a preponderance of the evidence, it is a defense that the defendant:(i) Did not commit the homicidal act or in any way solicit, request, command, importune, cause, or aid the commission thereof;  and(ii) Was not armed with a deadly weapon, or any instrument, article, or substance readily capable of causing death or serious physical injury;  and(iii) Had no reasonable grounds to believe that any other participant was armed with such a weapon, instrument, article, or substance;  and(iv) Had no reasonable grounds to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.(2) Murder in the first degree is a class A felony.

5.   For over 30 years, the Washington statute criminalizing second degree murder has included the words “but without premeditation” to differentiate second degree murder from first degree murder.   See RCW 9.48.040 (1974);  RCW 9A.32.050 (1988);  RCW 9A.32.050 (2006).   But Washington courts have never held that lack of premeditation is an element of second degree murder.

6.   The Court held that the statutory provision defining the crime as involving an assault other than first or second degree assaultis not an essential element of felony violation of a no-contact order.   The State is required to prove that the predicate assault “does not amount to assault in the first or second degree” only when the State additionally charges the defendant with first or second degree assault.Ward, 148 Wash.2d at 806, 64 P.3d 640 (emphasis added).   Such is not the case here.

FN7.  In his Reply Brief, Feeser correctly notes that we cannot consider on appeal evidence outside the trial court record..  FN7.  In his Reply Brief, Feeser correctly notes that we cannot consider on appeal evidence outside the trial court record.

FN8. RCW 9.94A.530(2) provides:In determining any sentence other than a sentence above the standard range, the trial court may rely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing, or proven pursuant to RCW 9.94A.537 [Aggravating circumstances-Sentences above standard range].   Acknowledgement includes not objecting to information stated in the presentence reports.   Where the defendant disputes material facts, the court must either not consider the fact or grant an evidentiary hearing on the point.   The facts shall be deemed proved at the hearing by a preponderance of the evidence, except as otherwise specified in RCW 9.94A.537..  FN8. RCW 9.94A.530(2) provides:In determining any sentence other than a sentence above the standard range, the trial court may rely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing, or proven pursuant to RCW 9.94A.537 [Aggravating circumstances-Sentences above standard range].   Acknowledgement includes not objecting to information stated in the presentence reports.   Where the defendant disputes material facts, the court must either not consider the fact or grant an evidentiary hearing on the point.   The facts shall be deemed proved at the hearing by a preponderance of the evidence, except as otherwise specified in RCW 9.94A.537.

FN9.  The term “wash out” in this context means that a defendant's prior conviction will not factor into his offender score under the terms of RCW 9.94A.525..  FN9.  The term “wash out” in this context means that a defendant's prior conviction will not factor into his offender score under the terms of RCW 9.94A.525.

FN10.  The record does not contain a presentence report from the Department of Corrections.   Thus, Feeser's failure to object does not function as an “acknowledgment” of prior convictions contained in the presentence report under RCW 9.94A.530(2).   See supra, n. 9..  FN10.  The record does not contain a presentence report from the Department of Corrections.   Thus, Feeser's failure to object does not function as an “acknowledgment” of prior convictions contained in the presentence report under RCW 9.94A.530(2).   See supra, n. 9.

HUNT, J.