IN RE RIDLEY, 47372-7-I (Wash.App. 4-15-2002)

In the Matter of the Personal Restraint of: BRIAN RIDLEY, Petitioner.

No. 47372-7-IThe Court of Appeals of Washington, Division One.
Filed: April 15, 2002 UNPUBLISHED OPINION

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Date first document (petition, etc) was filed in Court of Appeals: 09/21/2000

Counsel for Petitioner(s), Brian S. Ridley (Appearing Pro Se), S.C.C.C., D.O.C. #971988, 191 Constantinte Wy., Aberdeen, WA 98520.

David B. Koch, Nielsen Broman Koch Pllc, 810 3rd Ave Ste 320, Seattle, WA 98104.

Counsel for Respondent(s), Seth A. Fine, Snohomish Co. Prosecutor’s Office, Snohomish Co Pros Office, 3000 Rockefeller, Everett, WA 98201.

PER CURIAM.

Brian Ridley has filed a personal restraint petition challenging the sentence imposed following his 1993 convictions for first degree assault, attempted second degree murder, and first degree robbery.[1]
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.”[2]
We agree with Ridley that his convictions for first degree assault and attempted second degree murder, based on a single stabbing, violated the constitutional guarantee against double jeopardy. Accordingly, we grant Ridley’s petition and vacate the attempted murder conviction.[3]

Facts
In 1993, a jury found Brian Ridley guilty of first degree assault, attempted second degree murder, and first degree robbery after he beat and stabbed the victim during the course of a robbery. It is undisputed that the assault and attempted murder convictions were both based on the stabbing.

Under the law governing Ridley’s sentence, first degree assault was a Class A felony, with a maximum term of life imprisonment; attempted second degree murder was a Class B felony, with a maximum term of 10 years.[4] With Ridley’s offender score, the standard range for the first degree assault conviction was 162 to 216 months. The standard range for the attempted murder conviction would have been 146.25 to 195 months. But because attempted second degree murder was a Class B felony, the standard range was 120 months, the statutory maximum.[5] In 1994, after Ridley’s sentencing, the Legislature amended RCW 9A.28.020 to include attempted second degree murder as a Class A felony.[6] At Ridley’s sentencing, the parties agreed that the convictions for attempted second degree murder and first degree assault “merged.” The court imposed concurrent terms of 216 months and 126 months for the assault and robbery convictions, both terms at the top of the standard range. The court imposed no separate sentence for the attempted murder conviction, which remained listed on the judgment and sentence. This court affirmed Ridley’s convictions, rejecting, among other things, his contention that the attempted murder and assault convictions violated double jeopardy.[7]

Decision
Ridley argues that his convictions for assault and attempted murder, based on a single stabbing, violate the double jeopardy clauses of the state and federal constitutions. We agree with Ridley that this issue is controlled by our recent decision in State v. Valentine[8] and that the convictions constituted multiple punishments for the same offense.

In Valentine, the defendant stabbed his girlfriend during an argument. The stabbing provided the basis for 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.[9] Under Valentine, Ridley’s convictions violated double jeopardy. We decline the State’s invitation to revisit our decision in Valentine.

The State also contends that Valentine is distinguishable because the court in that case imposed concurrent sentences.[10] The State argues that Ridley’s convictions did not constitute multiple punishments because the sentencing court imposed no separate sentence for attempted murder after determining that the convictions “merged.” But the concept of punishment for purposes of double jeopardy encompasses both the imposition of a sentence and the fact of conviction.[11] In State v. Gohl,[12]
the defendant’s convictions for attempted first degree murder and first degree assault were based on the same acts. The State argued that the convictions 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.[13]
Consequently, Ridley’s conviction for attempted murder constituted punishment for purposes of double jeopardy, even though no separate sentence was imposed.

The appropriate remedy for a double jeopardy violation is vacation of the “lesser” conviction.[14] Ridley argues that first degree assault was the lesser conviction because attempted murder has a more “culpable” mens rea and because it had a higher seriousness level (XIII) than first degree assault (XII).[15] He maintains that this court should therefore vacate the assault conviction, a Class A felony, and order resentencing for the “more serious” offense of attempted second degree murder, a Class B felony.

If we were to accept Ridley’s argument, resentencing for the “more serious” offense would require a reduction of his sentence from 216 months, the top end of the standard range for first degree assault, to 120 months, the standard range and statutory maximum for attempted second degree murder. Ridley has not cited any authority or legal principle that would support such an anomalous result. Under the circumstances of this case, first degree assault was the more serious offense.[16]
Accordingly, we vacate Ridley’s conviction for attempted second degree murder.

Ridley’s reliance on State v. Valentine for the proposition that assault is the lesser offense is misplaced. Although the Valentine court vacated the assault conviction, the crimes had been committed at a time when both first degree assault and attempted second degree murder were Class A felonies. Moreover, the sentencing court had imposed identical concurrent sentences of 240 months for each offense. Consequently, the Valentine court had no occasion to address circumstances comparable to those at Ridley’s sentencing.

We grant Ridley’s petition and vacate his conviction for attempted second degree murder; Ridley’s conviction for first degree assault and the remainder of his sentence are affirmed.[17]

[1] Ridley’s motion to correct judgment, originally filed in Superior Court, was transferred for consideration as a personal restraint petition. See CrR 7.8(2)(c).
[2] In re Personal Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 506
(1990).
[3] Because it is based solely on the contention that his conviction was barred by double jeopardy, Ridley’s collateral attack is not subject to the one-year time bar. See RCW 10.73.100(3). We also find that the ends of justice will be served by permitting Ridley to raise the double jeopardy issue, even though it was rejected in his direct appeal. See In re Personal Restraint of Vandervlugt, 120 Wn.2d 427, 432, 842 P.2d 950
(1992).
[4] See former RCW 9A.28.020(3) (attempt to commit a crime is a Class B felony when the crime attempted is a Class A felony other than first degree murder or first degree arson).
[5] See RCW 9.94A.420.
[6] See RCW 9A.28.020(3)(a).
[7] State v. Ridley, No. 33320-8-I, June 24, 1996, unp. decision noted at 82 Wn. App. 1021 (1996), review denied, 130 Wn.2d 1028 (1997).
[8] 108 Wn. App. 24, 29 P.3d 42 (2001), review denied, 41 P.3d 483 (2002).
[9] State v. Valentine, 108 Wn. App. at 28 (citing State v. Read, 100 Wn. App. 776, 998 P.2d 897 (2000)).
[10] See State v. Calle, 125 Wn.2d 769, 775, 888 P.2d 155 (1995) (double jeopardy may be implicated even if concurrent sentences are imposed).
[11] See State v. Calle, 125 Wn.2d at 774.
[12] Wn. App., 37 P.3d 293, pet. for review filed, (2001).
[13] State v. Gohl, 37 P.3d at 295.
[14] State v. Portrey, 102 Wn. App. 898, 906-07, 10 P.3d 481
(2000).
[15] Ridley also points to the fact that the Legislature amended RCW 9A.28.020 in 1994 to include attempted second degree murder as a Class A felony.
[16] See State v. Hinz, 22 Wn. App. 906, 912, 594 P.2d 1350 (1979) (for purposes of double jeopardy, court vacated Class C felony rather than Class B felony); 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).
[17] Ridley has abandoned his challenge to the inclusion of a prior conviction for taking a motor vehicle in his offender score.