IN RE PERSONAL RESTRAINT PETITION OF RUDNER, 161 Wn. App. 1013 (2011)

No. 66642-8-I.The Court of Appeals of Washington, Division One.
Filed: April 18, 2011.

Petition for relief from personal restraint.

Denied by unpublished opinion per Spearman, J., concurred in by Ellington and Appelwick, JJ.

SPEARMAN, J.

Robert Rudner has filed this personal restraint petition challenging his judgment and sentence for first degree assault, second degree assault, first degree robbery, first degree burglary, unlawful possession of a firearm, possession of a stolen firearm, residential burglary, and unlawful possession of a controlled substance, as well as multiple firearm sentence enhancements. Rudner claims that entry of judgment on the second degree assault violates double jeopardy, the jury’s special verdicts do not support the firearm enhancements, and he received ineffective assistance of counsel. Because Rudner fails to demonstrate that he is entitled to the relief he seeks, we deny the petition.

FACTS
In Rudner’s direct appeal, Division Two recited the following facts:

On August 6, 2004, Desmond Berry2 asked Autumn Arnestad to help him rob his acquaintance, Brian Faranda, by taking the keys to Faranda’s Ford Mustang.3 That night, Arnestad entered Faranda’s home through the sliding glass door on the second floor balcony. Arnestad then let Berry and
Rudner in through the front door. Faranda and his girlfriend, Kimberly Riley, were sleeping on the couch. Arnestad had in her possession a .9 millimeter Beretta that she stole earlier that day, which she gave to Rudner along with clips loaded with ammunition. Rudner pointed the gun at Riley and asked for the keys to Faranda’s Mustang. Meanwhile, Arnestad ordered Faranda to get on his knees, putting his hands behind his head as she went through his pockets. Rudner turned the gun to Faranda’s head and aggressively repeated his demand for the keys to the Mustang.
Riley saw Rudner pull the trigger on the gun while aiming it at Faranda’s head. Faranda, who is familiar with guns, heard a “click” that sounded like either an “accidental trigger pull or a de-cock mechanism.” Riley screamed that she and Faranda would not get killed without a fight, and jumped on Arnestad. Faranda tried to get the gun away from Rudner, but Rudner hit him in the face with it, and “kept swinging, swinging away with the pistol.” Arnestad stole Riley’s purse and fled, while Faranda was able to subdue Rudner. As a result of the altercations, Riley sustained a gash on her eye while Faranda suffered a broken nose and received two stitches in his eye and six on his forehead.
At trial, the court instructed the jury that it could find Rudner guilty of first degree assault if it determined that he intended to inflict great bodily harm upon both Faranda and Riley beyond a reasonable doubt.4 Rudner did not object to the instruction. The jury found Rudner guilty on all charges, and concluded he was armed with a firearm during the commission of the two counts of first degree assault. The court sentenced Rudner to 573 months.
2 Though it appears that Desmond Berry’s involvement is undisputed, Berry was not charged with this crime, nor did he appear as a witness at Rudner’s trial.
3 Faranda did not actually own a Ford Mustang. Berry mistook Faranda’s Thunderbird for a Mustang.
4 Rudner does not dispute any other jury instructions on appeal.

On appeal, Rudner argued that the State failed to produce sufficient evidence to support the two convictions for first degree assault. Division Two affirmed the conviction for first degree assault of Faranda, but vacated the conviction involving Riley and remanded for entry of a guilty verdict for second degree assault involving Riley and remanded for resentencing. The court also rejected Rudner’s claim that he was deprived of a unanimous jury verdict because the State presented evidence of several acts that could constitute assault but did not obtain a unanimity instruction. Upon remand, the trial court imposed a standard range sentence with firearm enhancements and Rudner did not appeal.

DISCUSSION
In order to obtain collateral relief by means of a personal restraint petition, Rudner 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.” In re Pers. Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990).

In his petition, Rudner first claimed that the imposition of punishment for convictions for crimes that required proof of a firearm as well as for firearm enhancements violates double jeopardy and equal protection. In his reply brief, Rudner concedes that our Supreme Court rejected such arguments in State v. Kelley, 168 Wn.2d 72, 226 P.3d 773 (2010).

Rudner next contends that his conviction for second-degree assault of Riley merges with the first-degree robbery. Relying on State v. Zumwalt, 119 Wn. App. 126, 132, 82 P.3d 672 (2003) and State v. Freeman, 153 Wn.2d 765, 771, 108 P.3d 753 (2005), Rudner contends that the assault merges with the robbery because the only facts elevating simple robbery to first degree robbery are the same facts underlying the assault charge and the assault facilitated the robbery.

Although the State may bring multiple charges arising out of the same criminal conduct, courts may not enter multiple convictions for the same criminal offense without violating double jeopardy. Id. at 770. To determine whether the legislature intended two offenses to be punished separately such that double jeopardy rights are not offended, reviewing courts consider (1) any express or implicit representations of legislative intent, (2) the Blockburger[1] test to determine whether offenses are the same in law and in fact, and (3) the merger doctrine. Freeman, 153 Wn.2d at 771-72. Merger is a doctrine of statutory interpretation applied when, in order to prove an element or degree of a crime, the State must prove an additional crime. State v. Vladovic, 99 Wn.2d 413, 418-20, 662 P.2d 853 (1983). An exception to the merger doctrine applies if the offenses committed in a particular case have independent purposes or effects. Id. at 421.

In Freeman, the Supreme Court held that first degree robbery and first degree assault do not merge, but the question of whether a second degree assault merges with a first degree robbery requires “a hard look at each case” to determine how the two crimes are charged and proved. Freeman, 153 Wn.2d at 774.

Here, the State charged Rudner with first degree robbery under RCW 9A.56.200(1)(a)(i) for being armed with a deadly weapon in the commission of, or immediate flight from, a robbery against Faranda “and/or” Riley. The trial court instructed the jury that the first degree robbery charge required the State to prove that Rudner or an accomplice, while intending to commit theft, took property from a person against the person’s will by use or threatened use of immediate force, violence or fear of injury to that person or another, and during these acts, Rudner or an accomplice was armed with a deadly weapon, displayed what appeared to be a firearm or inflicted bodily injury.

The State presented evidence that Rudner intended to steal Faranda’s car keys, pointed the gun at both Faranda and Riley while demanding the keys, held the gun to Faranda’s head and clicked it while Arnestad searched Faranda’s pockets, and then repeatedly struck Faranda in the face with the gun. Meanwhile, Arnestad grappled with Riley, struck Riley in the eye causing injury and profuse bleeding, and ripped Riley’s necklace off her neck. Arnestad then fled the apartment with Riley’s purse, which contained Riley’s wallet, cell phones, and Faranda’s car keys. Faranda testified that after the incident, he removed a fuse from his car because he was afraid Arnestad would return with his stolen keys and steal his car. Given the evidence presented that both Faranda and Riley were victims of the robbery and the jury’s verdict regarding the first degree assault involving Faranda, the State was not required to prove an additional second degree assault against Riley in order to prove the first degree robbery as charged and described in the court’s instructions to the jury. In other words, as charged and proved, even without conduct amounting to a second degree assault of Riley, Rudner would still be guilty of first degree robbery based on the first degree assault of Faranda. Cf., Freeman, 153 Wn.2d at 778 (without contrary legislative intent or application of an exception, merger applies where “[a]s charged and proved, without the conduct amounting to assault, each would be guilty of only second degree robbery”); State v. Kier, 164 Wn.2d 798, 807, 194 P.3d 212 (2008) (where State charged defendant with first degree robbery involving two victims and second degree assault of one of the victims, “[t]he fact remains that the completed assault was necessary to elevate the completed robbery to first degree.”); In re Pers. Restraint of Francis, 170 Wn.2d 517, 524, 242 P.3d 866 (2010) (merger applied where “[t]he State expressly used the second degree assault conduct to elevate Francis’ attempted robbery charge to the first degree.”). Under these circumstances, Rudner fails to establish that he is entitled to the relief he seeks, that is, dismissal of the second degree assault involving Riley, based on a double jeopardy violation under the merger doctrine.

Rudner next contends that the trial court erred by imposing firearm enhancements because the State sought and obtained only “deadly weapon” special verdicts. Rudner’s reliance on cases involving deficient charging language, instructions failing to define “firearm,” or special verdict forms finding use of a “deadly weapon” is misplaced. See, In re Pers. Restraint of Delgado, 149 Wn. App. 223, 229, 204 P.3d 936 (2009) (information charged that defendants committed crimes “while `armed with a deadly weapon. . . .'” and did not cite specific statute authorizing firearm enhancement, instructions did not define firearm); State v. Williams-Walker, 167 Wn.2d 889, 225 P.3d 913 (2010) (special verdict forms asked jury whether defendants were armed with “deadly weapon”); State v. Recuenco, 163 Wn.2d 428, 440, 180 P.3d 1276 (2008) (only deadly weapon enhancement had been charged by State or authorized by jury).

Here, the information alleged that Rudner or an accomplice was armed with a firearm during the commission of each of four counts and cited the appropriate statute authorizing enhancements for use of a firearm. Although the special verdict instruction required the State to prove that Rudner or an accomplice was armed with a “deadly weapon,” it also stated that “A firearm is a deadly weapon” and the instructions defined “firearm” as “a weapon or device from which a projectile may be fired by an explosive such as gunpowder.” And each of the special verdict forms asked whether Rudner was “armed with a firearm at the time of the commission of the crime” alleged in each of four counts and includes the jury’s answer of “yes.” Because the jury found that Rudner was armed with a firearm, the sentencing court properly applied the firearm enhancement.

As the Supreme Court explained in Williams-Walker,

The problem arises from the statutory definition of “deadly weapon” as including a firearm. Former RCW 9.94A.602. Because of this definition, the only way to determine the applicable sentence enhancement is to look to the jury’s findings. Quite simply, only three options exist: First, if the jury makes no finding, no sentence enhancement may be imposed. Second, where the jury finds the use of a deadly weapon (even if a firearm), then the deadly weapon enhancement is authorized. Finally, where the jury finds the use of a firearm, then the firearm enhancement applies. Critically, the sentencing judge can know which (if any) enhancement applies only by looking to the jury’s special findings. Where the jury makes such a finding, the sentencing judge is bound by that finding.

167 Wn.2d at 901-02.

In the alternative, Rudner claims that the special verdict jury instruction was deficient because it directed a verdict, commented on the evidence, and failed to require proof of operability of the firearm. Not only did Rudner fail to challenge this instruction at trial or on appeal, he also fails to acknowledge that these claims are subject to harmless error analysis. In re Pers. Restraint of Rivera, 152 Wn. App. 794, 804, 218 P.3d 638 (2009) (failure to instruct jury on firearm allegation is subject to harmless error analysis). The case did not involve any other weapon and did not necessarily require proof that the firearm was operable. Id. The instructions properly defined firearm and placed the burden on the State to prove a nexus between the weapon, Rudner, and the crime. The jury was asked to determine whether Rudner or an accomplice was armed with a firearm and returned a special verdict finding use of a firearm. Under these circumstances, any error in the special verdict instruction was harmless beyond a reasonable doubt. Delgado, 149 Wn. App. at 237 (error in special verdict instruction would have been harmless, but for failure to charge defendants with firearm enhancement). Rudner fails to establish grounds for relief.

Finally, Rudner claims that his attorney provided ineffective assistance. To establish ineffective assistance, Rudner must show that counsel’s performance was deficient and that prejudice resulted from the deficiency. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674
(1984); State v. Thomas, 109 Wn.2d 222, 225, 743 P.2d 816
(1987). To demonstrate prejudice, Rudner must show that there is a reasonable probability that the result of the proceeding would have been different but for counsel’s errors. Thomas, 109 Wn.2d at 226.

Rudner first claims that his attorney provided misleading advice causing him to waive his right to testify at trial. In particular, Rudner claims that his attorney led him to believe that if he testified, the State would be allowed to introduce all the facts of all his prior crimes and argue that he was guilty because he was a criminal. He claims that if he had known of limits regarding such evidence, he would have testified. In particular, he claims that he would have testified:

[T]hat I committed a number of crimes that I was charged with, but that I did not ever intend to commit serious bodily harm or worse. I went to do a robbery. I was willing to use force and the threat of force to accomplish the robbery. However, I was not willing and did not hold a gun to anyone’s head and pull the trigger. In fact, the gun did not even have a clip in it when I had it.

But even if Rudner could demonstrate that his attorney prevented him from testifying, that is, “refused to allow him to testify in the face of [his] unequivocal demands that he be allowed to do so,” he must prove that “his testimony would have a “reasonable probability” of affecting a different outcome” of the trial in order to demonstrate prejudice. State v. Robinson, 138 Wn.2d 753, 764, 769, 982 P.2d 590 (1999) (rejecting presumption of prejudice where attorney prevents defendant from testifying). Rudner fails to explain or establish how it is reasonably probable that his proposed testimony would have changed the outcome of the trial. Arnestad, Faranda and Riley testified that Rudner pointed the gun at Faranda’s head and Faranda and Riley testified that they heard a click from the gun. Faranda testified that he thought the click was a trigger pull or a “de-cock mechanism,” and Riley testified that she thought Rudner pulled the trigger. And Riley testified that she was afraid for her life, that she was concerned about her child sleeping in the bedroom, and that she thought they “were all going to die that night,” as Rudner was pointing the gun at them. Rudner does not deny that he intended to commit a robbery, that he pointed the gun at Faranda and Riley and threatened them, or that Riley reacted to a clicking sound from the gun. Rudner does not claim that there was no clicking sound from the gun or that Faranda or Riley knew or had any reason to know that the gun had no clip. And Rudner does not deny that he repeatedly struck Faranda in the face with the gun. Given the overwhelming evidence presented at trial and Rudner’s limited denials, he cannot demonstrate a reasonable probability that his testimony would have affected any part of the jury’s verdict.

Rudner also claims that his attorney failed to explain to him the total sentence he faced if convicted at trial or to engage in any plea-bargaining. In his declaration, Rudner states, “[a]t no point during my case did any attorney tell me how much time I was facing, whether and what plea offers were made, and/or what plea offers I was willing to accept.” But as the State points out, Rudner signed and initialed a pretrial status conference order indicating that the State had made a plea offer, that he had been informed of the offer, and that he had declined the offer. Rudner contends that this dispute over the facts requires remand for a factual determination under In re Pers. Restraint of Rice, 118 Wn.2d 876, 828 P.2d 1086 (1992). But only the existence of material disputed issues of fact will justify a hearing. Rice, 118 Wn.2d at 886-87. As our United States Supreme Court observed in Scott v. Harris, 550 U.S. 372, 127 S. Ct. 1769, 1776, 167 L.Ed.2d 686 (2007) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)), a version of events “which is blatantly contradicted by the record” does not raise a genuine issue of material fact. In light of the evidence in the record, Rudner’s self-serving statement in his declaration is not sufficient to raise a prima facie claim of ineffective assistance of counsel.

Rudner also claims that counsel’s failure to object to the calculation of his offender score including certain juvenile offenses constituted ineffective assistance. He contends that the proper calculation of his score would have been 1.5 or 2 points lower. But Rudner agreed to an offender score of more than 9 points based on prior convictions. Even if the proper score for his prior offenses was 2 points lower as he contends, Rudner fails to argue or demonstrate that his offender score would be less than 9 on any conviction after counting other current offenses. Thus, Rudner fails to demonstrate grounds for relief. His personal restraint petition is therefore denied.

WE CONCUR: