No. 47515-1-I.The Court of Appeals of Washington, Division One.
Filed: March 11, 2002. UNPUBLISHED OPINION.
Appeal from Superior Court of King County, No. 99-1-06587-1, Hon. Patricia H. Aitken, September 11, 2000, Judgment or order under review
Counsel for Appellant(s), David H. Gehrke, Attorney At Law, 506 2nd Ave #2800, Seattle, WA 98104.
James S. Burnell, 506 2nd Ave Fl 28, Ste 200, Seattle, WA 98014.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/Appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Heather M. Jensen, W554, 516 3rd Ave, Seattle, WA 98104.
PER CURIAM.
Ildefonso Aboy appeals his convictions for five counts of rape of a child and one count of child molestation, contending he received ineffective assistance of counsel during trial. Alternatively, he urges this court to reduce his four concurrent 480-month exceptional sentences. Finding no error, we affirm.
FACTS
Ildefonso Aboy began sexually molesting his two daughters when they were aged 6 and 8. After about 3 years, one of the girls reported the acts but then recanted. Shortly thereafter, Aboy began raping each girl two to three times per week. After enduring nearly 7 additional years of abuse from Aboy, the girls reported the acts. Aboy was arrested and charged with one count of first degree rape of a child, two counts of second degree rape of a child, two counts of third degree rape of a child, and one count of first degree child molestation. His first trial resulted in a hung jury. During his second trial, the State disclosed for the first time a police interview with a potential witness. In that interview, the witness claimed to have seen Aboy on top of his younger daughter, who was crying with her shirt pulled up. The State maintained that it only learned of the details of the interview the night before it disclosed, though it was aware that an interview had taken place. Aboy, however, had no prior knowledge of the interview. Aboy’s trial attorneys moved for dismissal of the case based on governmental misconduct. The trial court noted the seriousness of the State’s failure to disclose the evidence, but determined that Aboy suffered no resulting prejudice. It ultimately decided to suppress the evidence contained in the interview. Aboy’s trial attorneys ultimately conceded that they could show no prejudice.
A jury found Aboy guilty on all counts. The trial court sentenced him to an exceptional sentence of 480 months on four of the counts and 60 months on two of the counts, to run concurrently. The aggravating factors were abuse of trust and ongoing pattern of sexual abuse. Aboy appeals.
ANALYSIS
Aboy urges us to reverse his convictions because he received ineffective assistance of counsel during trial and because cumulative errors deprived him of a fair trial. In the alternative, he contends that his exceptional sentence must be reduced.
I. Ineffective Assistance of Counsel
On appeal, Aboy contends that he received ineffective assistance of counsel because his trial attorneys failed (1) to interview potential witnesses and present certain documentary evidence during trial; (2) to push for dismissal of the case following the State’s late disclosure of an interview with a potential witness; (3) to object or move for a mistrial after the prosecutor referred to his first trial; and (4) to object to potential juror misconduct. Appellate courts “strongly presume that counsel’s representation was effective.” State v. Studd, 137 Wn.2d 533, 551, 973 P.2d 1049 (1999). To prevail on an ineffective assistance of counsel claim, the appellant must show that his or her counsel’s performance was deficient and that he or she was prejudiced by the deficiency:
Studd, 137 Wn.2d at 551 (quoting State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995)). In doing so, the appellant must demonstrate the absence of legitimate strategic or tactical reasons supporting the challenged conduct. McFarland, 127 Wn.2d at 335
A. Witnesses and Evidence Not Presented During Trial
Aboy alleges that there exist witnesses and documentary evidence that his trial attorneys should have presented during trial We do not consider matters outside of the record. McFarland, 127 Wn.2d at 338. Even if we did, Aboy failed to demonstrate the absence of legitimate strategic or tactical reasons supporting these alleged omissions. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). Thus, Aboy did not establish deficient performance on these bases.
B. CrR 8.3 Dismissal
Aboy also alleges that his trial attorneys should have pushed for dismissal following the State’s late disclosure of the witness interview, rather than concede that there was no prejudice Under CrR 8.3(b), “[t]he court may . . . dismiss any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused’s right to a fair trial.” Dismissal is limited to “truly egregious cases of mismanagement or misconduct by the prosecutor.” State v. Koerber, 85 Wn. App. 1, 4-5, 931 P.2d 904 (1996). Indeed, dismissal is unwarranted in cases where suppression of evidence may eliminate whatever prejudice is caused by governmental misconduct. Koerber, 85 Wn. App. at 3-4 On appeal, the only argument Aboy raises regarding prejudice is that he was forced to choose between a speedy trial and a continuance, citing State v. Price, 94 Wn.2d 810, 620 P.2d 994 (1980). That cases states:
Price, 94 Wn.2d at 814.
In this case, the trial court prevented new facts from being interjected into the case when it suppressed the evidence contained in the interview. Consequently, Aboy was not compelled to choose between rights. The trial court’s decision to suppress the inculpatory evidence properly eliminated any prejudice resulting from the State’s late disclosure. In light of Aboy’s inability to show prejudice on appeal, it cannot be said that Aboy’s trial attorneys’ inability to show prejudice during trial constitutes deficient performance.
C. Mention of Earlier Trial
Aboy contends that his trial attorneys’ performance was deficient because they failed to object or move for a mistrial after the prosecutor repeatedly made references to similar testimony that was presented during his first trial.
On the first day of Aboy’s second trial, the prosecutor brought a motion to refer to testimony presented during the first trial as “testimony in open court of a prior proceeding” so the jury would not be aware there was a prior trial. One of Aboy’s trial attorneys suggested the term “previous hearing.” The prosecutor and the trial court agreed. During a sidebar,[1] the trial court expressed some concern that the numerous references to the previous hearing suggested that it was a trial instead of a hearing Before questioning additional witnesses, the prosecutor asked the trial court how to ask questions about testimony from the first trial.
The prosecutor suggested that the references be to testimony presented before under oath. The trial court agreed that was appropriate. During questioning of witnesses, the prosecutor made several references to the earlier testimony.
At the close of testimony, the prosecutor asked the trial court to order the jury to disregard any references to the prior hearing Aboy’s trial attorney responded, “I would suggest we just leave it alone, Your Honor.” The trial court told the attorneys not to refer to Aboy’s first trial during closing arguments. The trial judge, however, said: “If they haven’t figured it out by now, I’d be very much surprised.”
“The decision of when or whether to object is a classic example of trial tactics. Only in egregious circumstances, on testimony central to the State’s case, will the failure to object constitute incompetence of counsel justifying reversal.” State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989). Similarly, regarding a trial attorney’s decision not to move for a mistrial based on allegedly inappropriate conduct by the prosecutor, this court has explained as follows:
[T]here may, indeed, be sound tactical reasons not to request a mistrial even when the defendant is entitled thereto. The State’s case may have weaknesses that the State could cure in the event of a retrial, or defense counsel may think the prosecuting attorney’s misconduct might backfire and actually operate to the defendant’s advantage.State v. Dickerson, 69 Wn. App. 744, 748, 850 P.2d 1366 (1993). Again, Aboy failed to demonstrate the absence of legitimate strategic or tactical reasons supporting his trial attorneys’ decisions. Indeed, it was the prosecutor who was highly concerned with keeping the fact that there was a prior trial from the jury. The prosecutor took initiatives to request guidance and made efforts to handle use of testimony in the first trial in the least damaging way. It cannot be said that mere mention of testimony given under oath on the same subject matter was improper or that Aboy was prejudiced. If the jury knew that another jury heard the evidence and did not find him guilty, there is an inference that there were problems with the State’s case against him. Therefore, Aboy’s attorneys’ decisions not to object or move for a mistrial do not constitute deficient performance.
D. Potential Juror Misconduct
Mid-trial, the trial court excused one of the jurors. Later that day, the excused juror was seen talking to the other jurors Because there was no indication that the excused juror questioned the other jurors about Aboy’s trial, the trial judge opined that the incident did not warrant questioning of the jurors The judge asked the prosecutors and Aboy’s trial attorneys if they thought more should be done. Everyone agreed to simply disregard the incident rather than escalate it.
On appeal, Aboy contends that his trial attorneys should have objected and attempted to discover what was discussed with the excused juror. As discussed above, a trial attorney’s decision not to object is generally a tactical decision. Madison, 53 Wn. App. at 763. Under these circumstances, electing not to draw attention to the incident is a reasonable resolution.
In sum, Aboy failed to show that his trial attorneys’ performance was deficient. Consequently, we presume that his representation was effective.[2]
II. Exceptional Sentence
The trial court imposed an exceptional sentence on four of the six counts based on Aboy’s abuse of trust and the fact that the current offenses were part of an ongoing pattern of abuse Aboy received exceptional sentences on one count of first degree rape of a child (480 months), two counts of second degree rape of a child (480 months each), and one count of first degree child molestation (480 months). He received standard range sentences for the two counts of third degree rape of a child of 60 months each.[3] The trial court ordered all the sentences to run concurrently Aboy urges this court to reduce his exceptional sentences because the reasons given are not sufficient and because they are excessive for a first time offender.
A sentencing court may impose an exceptional sentence outside the standard range if it finds “that there are substantial and compelling reasons justifying an exceptional sentence.” Former RCW 9.94A.120(2) (2000) (recodified as RCW 9.94A.505 by Laws 2001, ch. 10, § 6); State v. Mulligan, 87 Wn. App. 261, 264, 941 P.2d 694 (1997). This court reviews under the clearly erroneous standard of review whether the reasons given to support an exceptional sentence are supported by substantial evidence in the record Former RCW 9.94A.210(4) (2000) (recodified as RCW 9.94A.585 by Laws 2001, ch. 10, § 6); State v. Jeannotte, 133 Wn.2d 847, 856, 947 P.2d 1192, (1997).
In this case, Aboy was the father of his victims. As such, he was in a position of trust. See State v. Overvold, 64 Wn. App. 440, 447, 825 P.2d 729 (1992). The record reflects that he used that position to facilitate the rapes and molestation at issue in this case.
Addressing the second factor, ongoing pattern of abuse, the record contains evidence of multiple incidents per count to satisfy this factor. See State v. Quigg, 72 Wn. App. 828, 840, 866 P.2d 655
(1994). Thus, the reasons given by the trial court are not clearly erroneous.
This court reviews under the abuse of discretion standard of review whether “the sentence imposed was clearly excessive or clearly too lenient.” Former RCW 9.94A.210(4); Jeannotte, 133 Wn.2d at 856. A `sentence is excessive only if its length, in light of the record, `shocks the conscience.” State v. Vaughn, 83 Wn. App. 669, 681, 924 P.2d 27 (1996) (quoting State v. Ritchie, 126 Wn.2d 388, 396, 894 P.2d 1308 (1995)). The only limit to the trial court’s discretion is that the sentence must remain within the statutory maximum State v. Creekmore, 55 Wn. App. 852, 866, 783 P.2d 1068 (1989).
The 480-month exceptional sentences on the remaining first and second degree rape of a child counts fall within the statutory maximum of life, notwithstanding the criminal history of the offender. RCW 9A.44.073(2). In light of the record in this case, the length of Aboy’s sentence does not shock the conscience. Accordingly, the trial court was within its discretion when it imposed Aboy’s exceptional sentences.
In sum, we affirm Aboy’s convictions and his exceptional sentences.