IN RE PERSONAL RESTRAINT OF SMITH, 49241-1-I (Wash.App. 9-23-2002)

In the Matter of the Personal Restraint of CHAD EDWARD SMITH, Petitioner.

No. 49241-1-I.The Court of Appeals of Washington, Division One.
Filed: September 23, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED DECISION.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Date first document (petition, etc) was filed in Court of Appeals: 09/17/2001.

Counsel for Petitioner(s), Chad E. Smith (Appearing Pro Se), Washington State Penitentiary, #772843, 1313 N. 13th Ave., Walla Walla, WA 99362.

Counsel for Respondent(s), Gregory M. Banks, Island County Prosecutor, P.O. Box 5000, Coupeville, WA 98239.

PER CURIAM.

Chad Edward Smith has filed a personal restraint petition challenging his 1997 convictions for attempted second degree murder and first degree assault. In order to obtain collateral relief by means of a personal restraint petition, a petitioner must demonstrate either an error of constitutional magnitude that gives rise to actual prejudice or a nonconstitutional error that inherently results in a “complete miscarriage of justice.”[1] We agree with Smith that his convictions for attempted second degree murder and first degree assault, based on a single assaultive act, violated the constitutional guarantee against double jeopardy. Accordingly, we grant his petition in part and vacate the attempted murder conviction.[2]

Facts
In 1997, a jury found Chad Smith guilty of attempted second degree murder, first degree assault, second degree unlawful possession of a firearm, possession of an unlawful firearm, and seven counts of theft of a firearm.

The charges were based on evidence that petitioner stole guns from his stepfather’s gun cabinet and then gave some of the guns to Thoren Honeycutt. When Honeycutt failed to share the proceeds from the stolen weapons, Smith confronted him with a loaded gun. During the confrontation, the gun went off, injuring Honeycutt. On appeal, this court affirmed petitioner’s convictions, but remanded for resentencing.[3] At resentencing, the sentencing court determined that the attempted second degree murder and first degree assault counts constituted the “same criminal conduct.” The court then imposed concurrent standard-range terms for these convictions.

Decision
Smith argues that his convictions for attempted second degree murder and first degree assault, which the State concedes were based on a single assaultive act, violate the double jeopardy clauses of the state and federal constitutions. We agree that these convictions constituted multiple punishments for the same offense under our recent decision in State v. Valentine.[4]

In Valentine, the defendant stabbed his girlfriend during an argument. The stabbing resulted in separate convictions for first degree assault and attempted second degree murder, and the court sentenced the defendant to concurrent terms. On appeal, this court concluded that although attempted murder and assault had different elements and did not satisfy the “same evidence” test, the two convictions nonetheless violated double jeopardy because the Legislature intended to impose only a single punishment:

[W]e find it unlikely that the Legislature intended to punish the same assaultive act both as assault and attempted murder. There is no reason to conclude that a stabbing should result in only one conviction if the victim dies, but should result in two convictions if the victim survives.[5] Under Valentine, Smith’s convictions for first degree assault and attempted second degree murder constituted a double jeopardy violation. We decline the State’s invitation to reconsider our decision in Valentine.

The State maintains that Smith was not exposed to “any additional punishment or stigma” because the sentencing court found the two counts constituted the “same criminal conduct” and imposed concurrent sentences. But this court rejected a comparable argument in State v. Gohl.[6] In Gohl, the State argued that the defendant’s convictions for attempted first degree murder and first degree assault, which were based on the same acts, did not violate double jeopardy because the sentencing court had not imposed any sentence for the assaults after finding that they encompassed the same criminal conduct. In rejecting the State’s arguments, the court in Gohl noted the consequences that flow from the mere fact of conviction:

The fact of multiple convictions, with the concomitant societal stigma and potential to increase sentence under recidivist statutes for any future offense violated double jeopardy even where, as here, the trial court imposed only one sentence for the two offenses.[7]

Consequently, even though the offenses were not counted separately in calculating his offender score, Smith’s convictions for attempted second degree murder and first degree assault constituted punishment for purposes of double jeopardy.[8]

The appropriate remedy for a double jeopardy violation is vacation of the “lesser” conviction.[9] Smith maintains that first degree assault was the lesser conviction because attempted second degree murder had a higher seriousness level (XIII) than first degree assault (XII). But the standard range for Smith’s first degree assault conviction (189-231 months with enhancement) was greater than the standard range for the attempted second degree murder conviction (183.75 to 224.25 months with enhancement) and the sentencing court imposed the top end of the standard range. Under these circumstances, first degree assault was the more serious offense.[10] We therefore vacate Smith’s conviction for attempted second degree murder.[11]

Smith also asserts that a double jeopardy violation requires vacation of both the attempted murder and assault convictions because each offense required proof of a different intent. Because he could not have had two different intents at the same time, Smith reasons that the jury was not required to decide his actual intent. But Smith has not identified any deficiency in the jury instructions or in the sufficiency of the evidence supporting both convictions. His contentions are therefore without merit.

We grant Smith’s petition solely on the issue of double jeopardy and vacate his conviction for attempted second degree murder.

[1] In re Personal Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 506
(1990).
[2] By separate order, the Acting Chief Judge has dismissed as frivolous the remaining grounds identified by petitioner in support of his petition.
[3] See State v. Smith, 99 Wn. App. 510, 990 P.2d 468, review denied, 141 Wn.2d 1012 (2000).
[4] 108 Wn. App. 24, 29 P.3d 42 (2001), review denied, 145 Wn.2d 1022
(2002).
[5] State v. Valentine, 108 Wn. App. at 28 (citing State v. Read, 100 Wn. App. 776, 998 P.2d 897 (2000)).
[6] 109 Wn. App. 817, 37 P.3d 293, review denied, 146 Wn.2d 1012
(2002).
[7] State v. Gohl, 109 Wn. App. at 822.
[8] See also In re Personal Restraint of Burchfield, 111 Wn. App. 892, 46 P.3d 840 (2002) (Legislature did not intend to punish shooting a victim as both an assault and a homicide).
[9] State v. Portrey, 102 Wn. App. 898, 906-07, 10 P.3d 481
(2000).
[10] See People v. Davis, 122 Mich. App. 597, 333 N.W.2d 99 (1983) (where lesser included offense provided for longer term of incarceration, vacation of “greater” offense was appropriate remedy for double jeopardy violation).
[11] Contrary to the State’s assertion, both first degree assault and attempted second degree murder were class A felonies at the time of Smith’s offense.

RCW 9A.28.020 was amended in 1994 to reclassify attempted second degree murder from a class B to a class A felony. See Laws of 1994, ch. 271, § 101.