STATE v. JARA, 132 Wn. App. 1028 (2006)

STATE OF WASHINGTON, Respondent, v. IMAM ADDLEHE JARA, Appellant.

No. 33009-1-II.The Court of Appeals of Washington, Division Two.
Filed: April 11, 2006.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

UNPUBLISHED OPINION
[EDITORS’ NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from Superior Court of Pierce County. Docket No: 04-1-02193-8. Judgment or order under review. Date filed: 02/09/2005. Judge signing: Hon. Thomas J. Felnagle.

Counsel for Appellant(s), Rebecca Wold Bouchey, Attorney at Law, PO Box 1401, Mercer Island, WA 98040-1401.

Counsel for Respondent(s), Michelle Luna-Green, Pierce Co Pros Attorney, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2171.

HOUGHTON, P.J.

Imam Addlehe Jara appeals his sentence following his convictions of felony harassment and second degree assault. He argues that his trial counsel was ineffective for advising him to stipulate to an offender score counting his current offenses as separate offenses rather than arguing at sentencing that the two offenses were same criminal conduct. We reverse his sentence and remand for resentencing.

Facts
The State charged Jara with second degree rape,[1] felony harassment,[2] and second degree assault.[3] The case proceeded to a jury trial.

According to the State’s evidence, the victim and Jara were on their way to purchase or use drugs when Jara forced the victim into an alley and raped her. The victim eventually broke away, and Jara pursued her approximately 20 to 30 feet.

The victim stopped at a garbage can, grabbed a bottle, and told Jara to leave her alone. Jara knocked the bottle out of her hand, and it broke on the ground. The victim then picked up a piece the broken bottle and told Jara she would stab him if he came after her. Jara told her that he had a gun or knife, reached into his pants, and approached her. The victim cut Jara’s face with the broken glass.

The victim then attempted to run to a nearby apartment building. When she reached the stairs to the entryway, Jara grabbed her from behind and started assaulting her. During the assault, which was observed by people inside the apartment building, he repeatedly stated that he was going to kill her.[4] Eventually, the people inside the apartment building came to the victim’s assistance.

In contrast, Jara testified[5] that the victim had stolen drugs from him and that she attacked him with the broken bottle when he tried to recover the drugs. He admitted that he was angry when the victim attacked him, that he had called her a bitch, and that he hit her, but he denied raping or threatening her.

The jury acquitted Jara on the rape charge but convicted him on the remaining charges. The jury also found by special verdict that Jara committed the harassment by threatening to kill the victim.

At sentencing, Jara’s counsel did not argue that the current offenses were same criminal conduct. Instead, Jara stipulated to an offender score counting the two offenses as separate offenses. Because Jara’s prior criminal history consisted of a South Dakota misdemeanor conviction for disorderly conduct and a Washington misdemeanor conviction for driving under the influence, his offender score was 1 point for each current offense.

The trial court imposed standard range sentences for each offense. Jara appeals his sentence.

DISCUSSION
Jara claims that he received ineffective assistance of counsel because his counsel advised him to stipulate that his current offenses were separate offenses and failed to argue the current offenses were same criminal conduct.[6] We agree.

To establish ineffective assistance of counsel, Jara must show that (1) his trial counsel’s performance fell below an objective standard of reasonableness and (2) he was prejudiced by this deficient performance, i.e., that there was a reasonable probability that but for the deficient performance the results of the proceedings would have been different. In re Personal Restraint of Fleming, 142 Wn.2d 853, 865, 16 P.3d 610 (2001) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). To establish deficient performance or prejudice in this case, Jara must show that there was a reasonable probability that the trial court would have found his current offenses to be same criminal conduct.

To be considered same criminal conduct for sentencing purposes, the crimes must involve the same victim and same criminal intent, and they must take place at the same time and place. RCW 9.94A.589(1)(a). Courts narrowly construe this rule to disallow most assertions of same criminal conduct. State v. Price, 103 Wn. App. 845, 855, 14 P.3d 841 (2000) (citing State v. Palmer, 95 Wn. App. 187, 190-91, 975 P.2d 1038
(1999)), review denied 143 Wn.2d 1014 (2001). In this case, there is no question that the assault and harassment involved the same victim or that they were committed at the same time and place.[7] Thus, the dispositive question is whether they also involved the same criminal intent.

The essential elements of second degree assault include a specific intent to touch or strike the victim in a harmful or offensive manner, thereby recklessly inflicting substantial bodily harm. RCW 9A.36.021(1)(a); State v. Thomas, 98 Wn. App. 422, 424, 989 P.2d 612 (1999) (citing State v. Garcia, 20 Wn. App. 401, 403, 579 P.2d 1034 (1978)), review denied 140 Wn.2d 1020 (2000). Felony harassment requires proof that the defendant knowingly communicated a threat of intent to kill. RCW 9A.46.020(1)(a)(i), (2)(b)(ii); State v. J.M., 144 Wn.2d 472, 481, 28 P.3d 720 (2001). Because these mental elements arguably intersect, we must examine how closely related the crimes are, whether the nature of the criminal objective changed between crimes, and whether one crime furthered the other. See State v. Burns, 114 Wn.2d 314, 318, 788 P.2d 531
(1990).

Although a threat followed by an assault can be separate offenses if the evidence demonstrates that the threat was intended to frighten the victim and that the assault was intended to cause physical harm, the facts here, viewed objectively, do not suggest that scenario. Instead, the facts demonstrate that Jara intended to inflict physical harm and that in threatening the victim he was merely announcing his intent to do so rather than intending to frighten the victim. Because the facts show that Jara’s intent was the same during the commission of both offenses, Jara establishes a reasonable probability that the trial court would have found that the two offenses were same criminal intent had he not entered the stipulation. Accordingly, his counsel’s performance was deficient when he advised Jara to enter the stipulation. Additionally, based on this record,[8] because a same criminal conduct finding would have reduced Jara’s offender score and standard ranges,[9] Jara also establishes prejudice and he is entitled to relief.

We reverse Jara’s sentences and remand for resentencing.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

ARMSTRONG, J. and PENOYAR, J., concur.

[1] RCW 9A.44.050(1)(a).

[2] RCW 9A.46.020(1)(a)(i), (1)(b), (2)(b)(ii).

[3] RCW 9A.36.021(1)(a).

[4] Witnesses who spoke to the victim soon after the incident testified that the victim also stated that Jara had threatened to kill her after she cut his face but before she ran toward the apartment building. The victim testified that before she cut his face, Jara stated he was going to `beat the shit out of’ her, IV Report of Proceedings at 284, but she did not testify that he threatened to kill her before the assault occurred.

[5] Jara testified through an interpreter.

[6] The State argues that Jara waived his right to challenge his offender score in any manner by entering the stipulation. Although the stipulation arguably precludes Jara from directly challenging his offender score, it does not preclude a challenge based on ineffective assistance of counsel.

[7] We note that although the nurse who examined the victim after the incident testified that the victim told her Jara also threatened to kill her if she did not have sex with him, the victim did not testify that Jara threatened to kill her at the time of the alleged rape; she testified only that she was scared because she believed she had seen a gun in Jara’s waistband and that she complied because she did not want to be shot. Additionally, in closing argument, although the State mentioned that Jara may have threatened to use a knife or a gun to facilitate the alleged rape, both parties focused on the threats made at the time of the assault when discussing the harassment charge.

[8] The State argues that defense counsel’s recommendation that Jara sign the stipulation could have been a strategic decision designed to avoid having the State investigate Jara’s prior convictions, a South Dakota disorderly conduct and a Pierce County driving while under the influence conviction, that were listed as misdemeanor offenses. But we must determine prejudice based on the record, and there is nothing before this court suggesting that these two convictions were not in fact misdemeanor offenses.

[9] With an offender score of zero, the standard range for the harassment conviction would have been one to three months and the standard range for the assault would have been three to nine months. RCW 9.94A.510. With an offender score of one, the standard range for the harassment was three to eight months and the standard range on the assault was six to twelve months. RCW 9.94A.510; see also CP 82.

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