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Court of Appeals of Washington,Division 2.

STATE of Washington, Respondent, v. Allen L. WINSTON, Appellant.

Nos. 32854-2-II/32989-1-II.

Decided: October 10, 2006

Stephanie C Cunningham, Attorney at Law, Seattle, WA, for Appellant. Kathleen Proctor, Pierce County Prosecuting Atty., Tacoma, WA, for Respondent.


 ¶ 1 Allen L. Winston appeals his convictions for violating a protection order, attempted second degree assault, and first degree burglary.   He argues that, because the jury was never asked to find whether his crimes involved domestic violence, the trial court violated Blakely1 by imposing a domestic violence protection order, ordering a domestic violence evaluation, and imposing a domestic violence fine.   He further claims that he received ineffective assistance of counsel, that the evidence was not sufficient, that the trial court did not properly address a jury question, and that the trial court miscalculated his offender score.   We affirm the convictions and deny the consolidated Personal Restraint Petition (PRP).


I. Background

¶ 2 In July 2003, Winston moved into the house his girlfriend, Melissa Mattingly, was renting.   The couple had been  dating for several years and had two young children in common.   Winston's name was never put on the lease;  he did not contribute to the rental or maintenance costs, nor did he own any of the furniture.

¶ 3 Following an altercation in August 2003, a no-contact order was issued prohibiting Winston from contacting Mattingly or going near her home or work.   Despite the order, Mattingly continued to allow Winston to live with her.

¶ 4 In October 2003, following a heated argument, Mattingly told Winston to leave because she did not want to see him anymore.   Mattingly took his keys, and Winston left with his belongings.

¶ 5 On October 10, Mattingly heard glass breaking and saw Winston crawling in through a bedroom window with help from his cousin.   When Mattingly asked what he was doing, Winston responded, “You must have another guy here.”   1 Report of Proceedings (RP) at 85.   Winston then went to the front door and let in his cousins, Marlon and Bobby Winston.

¶ 6 Winston started searching the house.   He took Mattingly's cell phone and then wrestled her to the floor to try to take her keys from her pocket.   Mattingly started screaming and asked Bobby 2 to help, but he said he did not have anything to do with the incident.   Marlon left to avoid becoming further involved.

¶ 7 Mattingly got up and ran into the kitchen, trying to escape to the outside.   Winston followed her and shut the door to prevent her from leaving.   He then picked up a knife and chased her with it.   She asked, “What are you going to do with that?”   1 RP at 90.   He responded that he was not going to do anything and put the knife on top of the refrigerator.

 ¶ 8 Winston then took Mattingly into their daughter's bedroom and pinned her on her back by straddling her with his knees on her arms and chest.   Mattingly was screaming, and Winston told her to be quiet or the police would come.   Mattingly later testified:

Got strangled a couple times.   One time-I remember him stuffing blankets in my mouth where I was close to my throat, I told him I couldn't breathe.   He said, ‘Yeah, you can breathe because you are talking.’

I remember just getting strangled and choked and I remember him-I remember him shaking me and telling me, “Please wake up.   What's wrong with you,” ․ And I remember [him] slapping me a couple times to make sure I was all right and after that, he just said, ‘I got to go.’

1 RP at 94-95.   After Winston left, Mattingly called the police.

II. Procedural History

¶ 9 The State charged Winston with violating a protection order, attempted second degree assault, and first degree burglary.   The jury convicted Winston as charged.   By special verdicts, the jury found that the conduct constituting a violation of the no contact order was an assault but that Winston was not armed with a deadly weapon when he committed the first degree burglary.

¶ 10 The trial court sentenced Winston to a standard range sentence of 36 months, issued a domestic violence protection order forbidding contact with Mattingly, ordered a domestic violence evaluation and follow up, and ordered Winston to pay a $100 “DV fine” along with other fees and court costs.   Although no argument was presented on the subject at sentencing, the court checked the box on the judgment and sentence saying that the crime involved domestic violence.

¶ 11 Winston appeals his conviction and sentence.   We consolidated the appeal with his personal restraint petition (PRP).


I. Judicial Finding of Domestic Violence

¶ 12 Winston argues that, to be convicted of a domestic violence offense, the State had to prove beyond a reasonable doubt that he and Mattingly were “family or household members.”   Appellant's Br. at 5. He claims that, because the jury was never asked to determine this, any enhanced penalties for domestic violence are improper because the penalties are not based on facts a jury found.   For this reason, he claims that his sentence violates Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

¶ 13 The specific enhancements he challenges are:  (1) a requirement that he receive a domestic violence evaluation and follow-up treatment;  (2) an additional $100 fine to cover the cost of the evaluation;  and (3) a no contact order that results in reduced earned early release time.3  He asks us to vacate the domestic violence finding and the three penalty enhancements he identifies.

A. Washington's Domestic Violence Statute

¶ 14 In the domestic violence act, chapter 10.99 RCW, the Legislature “recognize[d] the importance of domestic violence as a serious crime against society” and resolved to ensure that domestic violence victims receive the maximum protection authorized by law.  State v. O.P., 103 Wash.App. 889, 891-92, 13 P.3d 1111 (2000).   Finding that “the existing criminal statutes are adequate to provide protection for victims of domestic violence,” the legislature focused instead on implementing procedural requirements designed to enhance enforcement of existing laws.  O.P., 103 Wash.App. at 892, 13 P.3d 1111 (citing RCW 10.99.010).

 ¶ 15 The act therefore “created no new crimes but rather emphasized the need to enforce existing criminal statutes in an evenhanded manner to protect the victim regardless of whether the victim was involved in a relationship with the aggressor.”  Roy v. City of Everett, 118 Wash.2d 352, 358, 823 P.2d 1084 (1992).   This was to combat the problem of crimes occurring between cohabitants being treated differently from the same crimes occurring between strangers.   See RCW 10.99.010.

 ¶ 16 A finding of domestic violence alone does not authorize an exceptional sentence under RCW 9.94A.535(3)(h) 4 and does not impermissibly increase the potential punishment.  State v. Felix, 125 Wash.App. 575, 578, 105 P.3d 427, review denied, 155 Wash.2d 1003, 122 P.3d 185 (2005).

B. Blakely v. Washington

 ¶ 17 The Blakely court applied the rule from Apprendi, that, other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.  Blakely, 542 U.S. at 301, 124 S.Ct. 2531 (citing Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)).   The relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.  Blakely, 542 U.S. at 303-04, 124 S.Ct. 2531.   When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts that the law makes essential to the punishment, and the judge exceeds his proper authority.  Blakely, 542 U.S. at 304, 124 S.Ct. 2531.

C. No-Contact Order

 ¶ 18 We hold that the trial court did not exceed its authority in issuing the no contact order.   Division One recently addressed this issue in State v. Felix.   Felix, 125 Wash.App. at 578, 105 P.3d 427.   As in this case, the appellants in Felix claimed that the trial court's domestic violence finding increased the punishment for their crimes.  Felix, 125 Wash.App. at 578, 105 P.3d 427.   Division One determined that a no-contact order did not constitute punishment for purposes of the constitutional right to a jury trial.  Felix, 125 Wash.App. at 579-80, 105 P.3d 427.   Rather, no-contact orders are civil in nature and designed to protect third parties.   Felix, 125 Wash.App. at 579, 105 P.3d 427 (citing In re the Pers. Restraint of Arseneau, 98 Wash.App. 368, 380, 989 P.2d 1197 (1999)).   We find Felix persuasive.

¶ 19 Furthermore, the trial court had discretion to impose the no-contact order even without the “domestic violence” designation.   See RCW 9.94A.030(13),5 9.94A.505(8).6  RCW 10.99.050 only specifies additional enforcement measures for no-contact orders that may already be issued as a sentencing condition.  RCW 10.99.050 7 ;  Felix, 125 Wash.App. at 580, 105 P.3d 427.   The statute does not  give new grounds for imposing a no-contact order as punishment.   See RCW 10.99.050.

D. Reduced Opportunity for Early Release

 ¶ 20 We also reject Winston's claim that the “domestic violence” designation violates Blakely because it will reduce his early release time.   The jury convicted Winston of violating a court order and of first degree burglary.  RCW 9.94A.411(2)(a) defines both these offenses as “crimes against persons.”   Under RCW 9.94A.728(1)(b)(ii)(B)(III), a defendant may earn up to 50 percent early release time unless the defendant is confined for committing “[a] crime against persons.”   Therefore, Winston's ineligibility for earned early release time is based on the jury's verdict.

¶ 21 Even if the “domestic violence” designation had affected Winston's eligibility for early release time, such an effect does not implicate the jury requirement under Blakely because early release time does not increase a defendant's penalty above the statutory maximum.   Rather, the correctional agency grants early release discretionarily based on the offender's good behavior and good performance while incarcerated.  RCW 9.94A.728(1).

E. Domestic Violence Evaluation and Treatment

¶ 22 We also hold that the trial court's order requiring Winston to obtain domestic violence evaluation and treatment was not an impermissible increase in the sentence that violates Blakely.   Rather, the order was within the court's discretion based on the jury's conviction of  Winston for crimes against persons.   See RCW 9.94A.411(2), 9.94A.715(1).8

¶ 23 When a court sentences a person to the custody of the Department of Corrections for a crime against persons, it is required to sentence the offender to community custody.  RCW 9.94A.715(1).   The conditions of community custody may include an order that the offender not have direct or indirect contact with the crime victim or a requirement that the offender participate in crime related treatment or counseling services.  RCW 9.94A.715(2)(a),9 9.94A.700(5)(b), (c).10  In addition, “[t]he court may also order the offender to participate in rehabilitative programs or otherwise perform affirmative conduct reasonably related to the circumstances of the offense, the offender's risk of reoffending, or the safety of the community․” RCW 9.94A.715(2)(a).

 ¶ 24 Because the trial court had discretion to order Winston to participate in rehabilitative programs reasonably related to the circumstances of the offense, we hold that Winston was not sentenced outside the statutory maximum for the crimes the jury found he committed.11

 F. Fines

¶ 25 We hold that Winston's fines do not violate Blakely because they do not exceed the statutory maximum based on the facts the jury found.   The jury found that Winston violated a protection order with conduct that constituted an assault, that he attempted second degree assault, and that he committed first degree burglary.

¶ 26 Violation of a protection order is a class C felony when that violation is an assault.  RCW 26.50.110(4).   Attempted second degree assault is also a class C felony.  RCW 9A.36.021(2)(a); 12  RCW 9A.28.020(3)(c).13  The statutory maximum fine that a court can impose for a class C felony is $10,000. RCW 9A.20.021(1)(c).  First degree burglary is a class A felony with a statutory maximum fine of $50,000.  RCW 9A.52.020(2);  RCW 9A.20.021(1)(a).

 ¶ 27 Because the $100 “DV fine” did not exceed the statutory maximum for the crimes for which Winston was convicted, Blakely is not implicated.   Furthermore, our conclusion should not be interpreted to mean that Blakely necessarily applies to monetary fines.   That issue is not before us and we do not address it.   The exceptional sentence statute and sentencing guidelines at issue in Blakely addressed only a defendant's jail time, not his fines.   See Blakely, 542 U.S. at 299-300, 124 S.Ct. 2531.

¶ 28 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. Ineffective Assistance of Counsel

¶ 29 In order to show ineffective assistance of counsel, the defendant must show both that counsel's performance was deficient and that the deficient performance prejudiced him.  State v. Cienfuegos, 144 Wash.2d 222, 226-27, 25 P.3d 1011 (2001).   To show deficient performance, the defendant must establish that his lawyer failed to exercise the customary skills and diligence that a reasonably competent attorney would exercise under similar circumstances.  State v. Visitacion, 55 Wash.App. 166, 173, 776 P.2d 986 (1989).  “Deficient performance is not shown by matters that go to trial strategy or tactics.”  Cienfuegos, 144 Wash.2d at 227, 25 P.3d 1011 (quoting State v. Hendrickson, 129 Wash.2d 61, 77-78, 917 P.2d 563 (1996)).

¶ 30 To demonstrate prejudice, Winston must show that, but for the ineffective assistance, there is a reasonable probability that the outcome would have been different Cienfuegos, 144 Wash.2d at 227, 25 P.3d 1011 (citing Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).   Courts maintain a strong presumption that counsel's representation was reasonable.  State v. Thomas, 109 Wash.2d 222, 226, 743 P.2d 816 (1987).

A. Failure to Pursue Pretrial Hearings

¶ 31 Winston claims his counsel's ineffectiveness is “supported in record by petitioner not recieving [sic] any of the following:  omnibus hearing, [evidentiary] hearing, and/or 3.5 suppression hearing.”   PRP at 3;  Statement of Additional Grounds (SAG) at 1.

1. Omnibus Hearing

At an omnibus hearing, the trial court shall:

(i) ensure that standards regarding provision of counsel have been complied with;

(ii) ascertain whether the parties have completed discovery and, if not, make orders appropriate to expedite completion;

(iii) make rulings on any motions, other requests then pending, and ascertain whether any additional motions, or requests will be made at the hearing or continued portions thereof;

(iv) ascertain whether there are any procedural or constitutional issues which should be considered;

(v) upon agreement of counsel, or upon a finding that the trial is likely to be protracted or otherwise unusually complicated, set a time for a pretrial conference;  and

(vi) permit defendant to change his plea.

CrR 4.5(c).

¶ 32 At a pretrial hearing the day before trial, the court noted that Winston probably never had an omnibus hearing.   However, at that same hearing, defense counsel and the State resolved a number of pretrial matters.   Winston was represented by counsel, and the court issued rulings to expedite discovery and prepare for trial. Specifically, the State agreed to give Winston a copy of the 911 tape and the criminal history for the State's only non law enforcement witness.   Winston informed the State that he intended to argue self defense.   There was no need for another pretrial conference, and Winston showed no desire to change his plea.

¶ 33 Because the purposes for the omnibus hearing were fulfilled, we hold that Winston has not shown deficient performance or prejudice by his counsel's failure to insist on such a hearing.

2. Evidentiary Hearing/ CrR 3.5 Suppression Hearing

¶ 34 The exhibits the State admitted at trial consisted of the August 2003 no-contact order, the knife that Winston used to threaten Mattingly, and photographs of Mattingly's injuries.   Winston does not explain why these should have been excluded, and nothing in the record indicates that they were improperly admitted.   Therefore, Winston has not demonstrated ineffective assistance in this respect.

¶ 35 At the pretrial hearing, the court asked if any statements were being offered and if a CrR 3.5 14 hearing was necessary.   The State responded that it was not offering any statements;  neither of the law enforcement witnesses testified to statements Winston made.   Therefore, a CrR 3.5 hearing was not necessary, and we hold that counsel was not ineffective for failing to request one.

B. Failure to Interview Witnesses or to Obtain a Private Investigator

¶ 36 Winston claims, “defense counsel failed to address court for a private investigator, or to interview witnesses prior to trial named Bobby Winston and Marlon Winston.”   SAG at 1;  See PRP at 3. Winston cites to State v. Visitacion, a case in which counsel's performance was deficient because he failed to contact or interview witnesses before trial.  State v. Visitacion, 55 Wash.App. 166, 174, 776 P.2d 986 (1989).

1. Interviewing Witnesses

¶ 37 In Visitacion, the attorney evaluated the witnesses' potential testimony based on their police statements.  Visitacion, 55 Wash.App. at 174, 776 P.2d 986.   The witnesses did not testify at trial and later changed their stories in written statements that corroborated the defendant's version of events.  Visitacion, 55 Wash.App. at 174, 776 P.2d 986.   The court held that the failure to investigate the witnesses' potential testimony fell below prevailing professional norms.  Visitacion, 55 Wash.App. at 174, 776 P.2d 986.

¶ 38 In contrast to Visitacion, here Winston provides no statements from the witnesses saying what their testimony at trial would have been.   Additionally, contrary to Winston's allegation on appeal, the record contains testimony from Winston's aunt that defense counsel contacted her son, Bobby Winston, and spoke with him.

¶ 39 We hold that Winston has not met his burden of showing his counsel's deficient performance.   He has not presented evidence to refute his aunt's testimony, nor has he established what Bobby and Marlon would have said at trial had they been called as witnesses.

2. Private Investigator

¶ 40 Winston has also failed to demonstrate how the failure to seek the appointment of an investigator was deficient or how it prejudiced him.   See In re the Pers. Restraint of Brett, 142 Wash.2d 868, 882-83, 16 P.3d 601 (2001).   In Brett, the court cited numerous reasons why counsel's performance was deficient, including failure to seek the appointment of co-counsel, failure to investigate relevant mental health issues, and failure to seek a timely appointment of investigators.  Brett, 142 Wash.2d at 882, 16 P.3d 601.   The court said that while the failure to perform one of these actions alone was insufficient to establish ineffective assistance of counsel, the failure to perform all of these actions, along with other failings, established that defense counsel's actions in Brett's trial were not reasonable.  Brett, 142 Wash.2d at 882-83, 16 P.3d 601.

¶ 41 Here, Winston has not met his burden because he does not explain why the failure to obtain an investigator was in and of itself unreasonable or how the result at trial would have differed.

C. Misinformation about the State's Plea Offer

¶ 42 Winston states in his PRP, without elaboration, that “counsel misinformed petitioner about the States [sic] plea offer.”   PRP at 3. An attorney's conduct falls below reasonable professional norms when the attorney fails to adequately inform a client about a plea offer and its consequences.   See In re the Pers. Restraint of McCready, 100 Wash.App. 259, 263, 996 P.2d 658 (2000).

¶ 43 However, Winston provides no evidence of the offer's terms nor does he explain how counsel “misinformed” him about it.   Without this showing, Winston has not met his burden of demonstrating deficient performance or prejudice.

III. Sufficient Evidence

¶ 44 Winston claims that the trial court “errored [sic] to rule due to lack of facts of elements to support conviction.”   PRP at 3. We will analyze this as a claim that the evidence at trial was insufficient.

¶ 45 The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt.   State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992).   When the sufficiency of the evidence is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant.  Salinas, 119 Wash.2d at 201, 829 P.2d 1068.   A claim of insufficiency admits the truth of the State's evidence and all reasonable inferences drawn from it.  Salinas, 119 Wash.2d at 201, 829 P.2d 1068.

¶ 46 Credibility determinations are for the trier of fact and are not subject to review.  State v. Camarillo, 115 Wash.2d 60, 71, 794 P.2d 850 (1990).   We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence.  State v. Thomas, 150 Wash.2d 821, 874-75, 83 P.3d 970 (2004).   Circumstantial evidence is accorded equal weight with direct evidence.  State v. Delmarter, 94 Wash.2d 634, 638, 618 P.2d 99 (1980).

¶ 47 On the charge of violating the no-contact order, the State had to prove that Winston (1) willfully contacted Mattingly, and (2) knew of the existence of a no-contact order prohibiting that contact.   The jury had the no-contact order itself with Winston's signature and Mattingly's testimony about the contact.   Therefore, the evidence was sufficient.

¶ 48 To prove attempted second degree assault, the State had to prove that Winston took a substantial step toward intentionally inflicting substantial bodily harm on Mattingly.   When viewed in the light most favorable to the State, Mattingly's testimony (that Winston attacked her with a knife) supports the guilty verdict.

¶ 49 To convict Winston of first degree burglary, the jury had to find that Winston entered or remained unlawfully in the house with the intent to commit a crime against a person or property therein, and that, in the course of the burglary, Winston was either armed with a deadly weapon or assaulted Mattingly.   Again, Mattingly's testimony provides sufficient evidence to support all these elements.   Photographs of the broken window also support the finding that Winston entered unlawfully.   Although the jury did not find that Winston was armed with a deadly weapon, the photographic evidence of Mattingly's injuries and the trial testimony were sufficient to show that he assaulted Mattingly.

¶ 50 The jury, therefore, had sufficient evidence to convict Winston on all counts.   His appeal on these grounds fails.

IV. Instructions and Juror Question

¶ 51 Winston also claims in his PRP that the trial court erred “by failing to readdress instructions and answer properly questions raised at trial by jurrors [sic].”   PRP at 3.

¶ 52 The record only shows the jury submitting one question:  “The jury would like to have the portion of Melissa Mattingly testimony [sic] regarding her dropping off of Allen at his's [sic] sister's house in Tacoma on or about 10-9-03 to be read back.”   1 Clerk's Papers (CP) at 47.   The court responded by saying, “The jury is instructed to re-read the instructions.”  1 CP at 46;  3 RP at 280.   The jury instructions contained the sentence, “You will not be provided with a written copy of testimony during your deliberations.”  1 CP at 54, Instr. 1.

¶ 53 We review for an abuse of discretion the trial court's decision whether to allow the jury to reread transcripts of trial testimony.  State v. Koontz, 145 Wash.2d 650, 658, 41 P.3d 475 (2002).   In general, reading back testimony during deliberations is disfavored.  Koontz, 145 Wash.2d at 654, 41 P.3d 475 (citing United States v. Portac, Inc., 869 F.2d 1288, 1295 (9th Cir.1989)).   Whether a jury should reread transcripts is dependent upon the particular facts and circumstances of the case and must be weighed against the danger that the jury may place undue emphasis on testimony considered a second time at such a late stage of the trial.  Koontz, 145 Wash.2d at 654, 41 P.3d 475.

¶ 54 In this case, Winston does not explain why he believes that the trial court erred.   Therefore, he has not demonstrated that the trial court abused its discretion in refusing to depart from the general practice.

V. Illegal Sentence

¶ 55 Winston claims that his sentence is illegal, stating:  “Excessive sentence beyond authorized standard range is without statutory authority, upheld by U.S. v. Blakely [sic].   As well as miscalculation of offender score, in that current charges are [encompassed] as provisions of same criminal conduct.”   SAG at 1;  PRP at 3.

¶ 56 We have addressed the Blakely issues in Part I above.

A. Offender Score Calculation

¶ 57 Although Winston's criminal history included a long list of misdemeanors, none counted toward his offender score.   For violation of a court order, his offender score was two;  for the attempted assault and the burglary his score was three.   The burglary carried the longest sentence, with a range of 31-41 months.   The court sentenced him to a total of 36 months, with all sentences running concurrently.

B. Offenses that Encompass the Same Criminal Conduct

¶ 58 A defendant's current offenses must be counted separately in determining the offender score unless the trial court finds that some or all of the current offenses “encompass the same criminal conduct.”  RCW 9.94A.589(1)(a);  State v. Anderson, 92 Wash.App. 54, 61, 960 P.2d 975 (1998).  “Same criminal conduct” is indicated when two or more crimes that require the same criminal intent are committed at the same time and place and involve the same victim.   RCW 9.94A.589(1)(a).   The absence of any of these elements precludes a finding of “same criminal conduct.”  State v. Vike, 125 Wash.2d 407, 410, 885 P.2d 824 (1994).

¶ 59 The Legislature intended that we construe the phrase, “same criminal conduct,” narrowly.  State v. Grantham, 84 Wash.App. 854, 858, 932 P.2d 657 (1997).   To determine if two crimes share a criminal intent, we focus on whether the defendant's intent, viewed objectively, changed from one crime to the next.  State v. Dunaway, 109 Wash.2d 207, 215, 743 P.2d 1237 (1987).   We also consider whether one crime furthered the other.  State v. Lessley, 118 Wash.2d 773, 778, 827 P.2d 996 (1992).

¶ 60 At Winston's judgment and sentence, the trial court did not find that any of the offenses encompassed the same criminal conduct for purposes of the offender score.   Neither Winston nor the State raised the issue at sentencing, so the court did not address it specifically.

C. Raised for the First Time on Appeal

¶ 61 Generally, issues not raised in the trial court may not be raised for the first time on appeal.   See RAP 2.5(a).   In the context of sentencing, the general rule is that “[a] sentence within the standard sentence range ․ for an offense shall not be appealed.”  RCW 9.94A.585(1).   Illegal or erroneous sentences, however, may be challenged for the first time on appeal.  State v. Nitsch, 100 Wash.App. 512, 519, 997 P.2d 1000 (2000).

¶ 62 In a case where the defendant did not ask the trial court at his sentencing hearing for a finding of same criminal conduct, Division One decided that the defendant could raise the issue for the first time on appeal.   Anderson, 92 Wash.App. at 61, 960 P.2d 975. Allowing the appeal would conform with the existing sentencing statutes and avoid permitting widely varying sentences to stand only because counsel did not object in the trial court.  Anderson, 92 Wash.App. at 61, 960 P.2d 975.

¶ 63 A sentencing court acts without statutory authority when it imposes a sentence based on a miscalculated offender score.   In re the Pers. Restraint of Goodwin, 146 Wash.2d 861, 868, 50 P.3d 618 (2002).   Therefore, a defendant generally cannot waive a challenge to a miscalculated offender score.   Goodwin, 146 Wash.2d at 874, 50 P.3d 618.   However, while waiver does not apply where the alleged sentencing error is a legal error leading to an excessive sentence, waiver can be found where the alleged error involves a matter of trial court discretion.  Goodwin, 146 Wash.2d at 874, 50 P.3d 618.

D. Standard of Review

¶ 64 We review a trial court's finding that the offenses did not constitute the same criminal conduct for abuse of discretion. State v. Maxfield, 125 Wash.2d 378, 402, 886 P.2d 123 (1994).   Because we do not make factual findings, we will treat the trial court's calculation of Winston's offender score as an implicit determination that his offenses did not constitute the same criminal conduct.  Anderson, 92 Wash.App. at 62, 960 P.2d 975.   We will not disturb this implicit determination absent an abuse of discretion.   Anderson, 92 Wash.App. at 62, 960 P.2d 975.

E. Analysis

¶ 65 The record indicates that the trial court reasonably could have found that Winston did not have the same criminal intent for each offense.   Immediately after breaking into the house, Winston began looking around and asking if another man was there.   That he did not attack Mattingly immediately supports the implicit finding that his intent when he first committed burglary differed from his intent when he later attempted the assault.

¶ 66 Furthermore, Winston violated the no-contact order by entering Mattingly's home and contacting her.   Yet the trial court could reasonably have found that this violation was not the same conduct as the burglary or the assault.   Winston initially looked for another man, then tried to take Mattingly's keys and telephone, then later attempted to assault her after she protested.   Therefore, the trial court had evidence that Winston initially intended a crime against another person or against property and that knowingly contacting Mattingly was a separate offense.

¶ 67 Even though the jury found that the conduct violating the protection order was an assault, the record still supports the trial court's implicit determination that Winston's intent differed between when he violated the protection order and when he attempted to assault Mattingly.   Winston violated the protection order by entering Mattingly's house on the night of the incident.   He did not try to attack her until an argument ensued several minutes later and this indicates that attempted assault was not his initial intent when he came to the house.

¶ 68 Because the trial court did not abuse its discretion in finding that Winston's three offenses were not the same criminal conduct, we uphold the offender score for each of the current convictions.   We affirm the convictions and deny the PRP.


1.   Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

2.   We use first names where necessary to avoid confusion.   We intend no disrespect.

3.   Under RCW 9.94A.728(1)(b)(ii)(B)(III), (IV), an offender is qualified to earn up to fifty percent of aggregate earned release time if he is not confined pursuant to a sentence for a crime against persons as defined in RCW 9.94A.411 or a felony that is domestic violence as defined in RCW 10.99.020.

4.   RCW 9.9A.535(3)(h) states:(3) Aggravating Circumstances․(h) The current offense involved domestic violence, as defined in RCW 10.99.020, and one or more of the following was present:(i) The offense was part of an ongoing pattern of psychological, physical, or sexual abuse of the victim manifested by multiple incidents over a prolonged period of time;(ii) The offense occurred within sight or sound of the victim's or the offender's minor children under the age of eighteen years;  or(iii) The offender's conduct during the commission of the current offense manifested deliberate cruelty or intimidation of the victim.

5.   RCW 9.94A.030(13) states:‘Crime-related prohibition’ means an order of a court prohibiting conduct that directly relates to the circumstances of the crime for which the offender has been convicted, and shall not be construed to mean orders directing an offender affirmatively to participate in rehabilitative programs or to otherwise perform affirmative conduct.   However, affirmative acts necessary to monitor compliance with the order of a court may be required by the department.

6.   “As a part of any sentence, the court may impose and enforce crime-related prohibitions and affirmative conditions as provided in this chapter.”  RCW 9.94A.505(8).

7.   RCW 10.99.050 states:(1) When a defendant is found guilty of a crime and a condition of the sentence restricts the defendant's ability to have contact with the victim, such condition shall be recorded and a written certified copy of that order shall be provided to the victim.(2) (a) Willful violation of a court order issued under this section is punishable under RCW 26.50.110.(b) The written order shall contain the court's directives and shall bear the legend:  Violation of this order is a criminal offense under chapter 26.50 RCW and will subject a violator to arrest;  any assault, drive-by shooting, or reckless endangerment that is a violation of this order is a felony.

8.   RCW 9.94A.715(1) states:When a court sentences a person to the custody of the department for ․ any crime against persons under RCW 9.94A.411(2) ․ the court shall in addition to the other terms of the sentence, sentence the offender to community custody for the community custody range established under RCW 9.94A.850 or up to the period of earned release awarded pursuant to RCW 9.94A.728 (1) and (2), whichever is longer.

9.   “[T]he conditions of community custody ․ may also include those provided for in RCW 9.94A.700(5).”  RCW 9.94A.715(2)(a).

10.   RCW 9.94A.700(5) states:As a part of any terms of community placement imposed under this section, the court may also order one or more of the following special conditions:․(b) The offender shall not have direct or indirect contact with the victim of the crime or a specified class of individuals;(c) The offender shall participate in crime-related treatment or counseling services.

11.   It makes no difference that on the judgment and sentence form, the court listed the domestic violence evaluation as part of the sentence and not as part of Winston's community custody.  RCW 9.94A.715(2)(a) authorizes the court to “order the offender to participate in rehabilitative programs or otherwise perform affirmative conduct reasonably related to the circumstances of the offense․” We do not read this to mean that the court can order rehabilitative programs or other affirmative conduct only as part of a community custody term.   The judgment and sentence is a single order and we read it as a whole.   Where a statute authorizes a court to impose community custody, the statute also authorizes the court to impose other conditions, such as participation in rehabilitative programs, calculated to maximize an offender's chances of successful reintegration into the community after he has served his sentence.

12.   “[A]ssault in the second degree is a class B felony.”  RCW 9A.36.021(2)(a).

13.   “An attempt to commit a crime is a:  ․ (c) Class C felony when the crime attempted is a class B felony.”  RCW 9A.28.020(3)(c).

14.   “When a statement of the accused is to be offered in evidence, the judge ․ shall hold or set the time for a hearing, if not previously held, for the purpose of determining whether the statement is admissible.”  CrR 3.5(a).


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