STATE v. STELLMAN, 24134-0-II (Wash.App. 5-18-2001)

Nos. 24134-0-II (consolidated with) 26422-6-II.The Court of Appeals of Washington, Division Two.
Filed: May 18, 2001. PUBLISHED IN PART.

Appeal from Superior Court of Thurston County, No. 98-1-00461-8, Hon. Gary R. Tabor, November 13, 1998, Judgment or order under review.

Counsel for Appellant(s), Thomas E. Doyle, Attorney At Law, P.O. Box 510, Hansville, WA 98340-0510.

Patricia A. Pethick, Attorney At Law, P.O. Box 111952, Tacoma, WA 98411-1952.

Kathryn A. Russell, Attorney At Law, P.O. Box 30124, Seattle, WA 98103-0124.

Counsel for Petitioner(s), Ronald D. Stellman (Appearing Pro Se), #787229, Mcneil Island Corr Cntr, P.O. Box 881000, Steilacoom, WA 98388K1000.

Counsel for Respondent(s), Jon Tunheim, Thurston Co Deputy Pros Atty, 2000 Lakeridge Drive S.W., Olympia, WA 98502.

CARROLL C. BRIDGEWATER, J.

Ronald D. Stellman appeals his convictions of one count of attempted exploitation of a minor, nine counts of dealing in depictions of minors engaged in sexually explicit conduct, and one count of possession of depictions of minors engaged in sexually explicit conduct. We affirm all convictions and the sentence and hold that the statute defining sexually explicit activity is constitutional and does not criminalize sexually explicit conduct performed by a `simulated’ minor. Stellman also filed a personal restraint petition (PRP), which we deny.

In late 1997, the Thurston County Sheriff’s Office received a citizen’s complaint regarding possible criminal conduct occurring via the Internet. Ronald Stellman became a suspect in the subsequent investigation. The investigation focused on setting up a fictitious Internet identity. In this capacity, Detective Cheryl Stines began an undercover investigation posing as a 14 year old male named `Keven.’ Using this identity, she sent an e-mail to Stellman. Stellman responded with an e-mail that read, `If you in Lacey and only 14 want to meet you bad.’ The message went on to suggest sexual activity by promising, `no rough stuff, real gentle and nice to you and show you true love.’ Clerk’s Papers at 4.

Over the next several weeks, Stellman and Keven sent numerous e-mails to each other. Stellman often attached graphic files to his e-mails depicting persons engaged in sexual activity. Several of the attached graphic files were photographs of minors engaged in sexual activity. Each such photograph depicted a different pornographic image of minors engaged in sexually explicit conduct.

Through the e-mail messages, Stellman arranged a meeting with Keven on March 5, 1998. The trial court found that the `content of the e-mail messages by the defendant made it appear that he was motivated to meet with `Keven’ and participate in as much activity of a sexual nature as he could get away with.’ Clerk’s Papers at 4. In the e-mails, Stellman indicated on several occasions that he would like to photograph him and Keven having sexual contact.

Stellman stated in his e-mails that he would arrive at the Wonderwood Park driving a red Dodge Intrepid, wearing a certain jacket, and that he would bring $30. On March 5, 1998, the police stopped Stellman’s red Dodge Intrepid at Wonderwood Park. The officers found a Polaroid camera, a video camera, condoms, lotions, and $30 in cash in the car. The officers also found a handwritten note with `Keven’ written on it, along with a description of a 14 year old boy and directions to the park.

After the police detained Stellman, they executed a search warrant at Stellman’s residence. In his bedroom, they seized a computer and later found that it contained thousands of graphic files of photographs depicting young people engaged in sexual activity. They also found several notebooks containing numerous photographs of minors engaged in sexual activity. Those photographs appeared to be printouts of the graphic image files found on the computer’s hard drive.

After being advised of his rights, Stellman admitted that he had been communicating with a boy named Keven via e-mail. Stellman admitted sending Keven photographs attached to the e-mails and arranging to meet Keven at the park.

The State charged Stellman with one count of attempted exploitation of a minor, nine counts of dealing in depictions of minors engaged in sexually explicit conduct, one count of possession of depictions of minors engaged in sexually explicit conduct, and one count of attempted third degree rape of a child. Stellman waived a jury trial. The court heard expert testimony on the age of persons depicted in the photographs that formed the basis for the dealing and possession counts. And the trial court found that a person of common experience could easily identify the persons in the photographs as being under age eighteen. The trial judge found Stellman guilty on counts I through XI but acquitted him on count XII, attempted third degree rape of a child. The trial court imposed an exceptional consecutive sentence totaling 132 months.

I. Constitutionality of RCW 9.68A.011(3)
Stellman contends that his convictions must be reversed because the statutory definition of `sexually explicit conduct’ in RCW 9.68A.011(3)(e) is unconstitutionally overbroad and vague. We presume a statute is constitutional and the party challenging the statute has the burden of proving its unconstitutionality. State v. Myers, 133 Wn.2d 26, 31, 941 P.2d 1102 (1997).

A statute is overbroad if it sweeps within its prohibitions constitutionally protected free speech activities. Myers, 133 Wn.2d at 31.

The First Amendment overbreadth doctrine may invalidate a law on its face only if the law is `substantially overbroad.’ In determining overbreadth, `a court’s first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct.’ Criminal statutes require particular scrutiny and may be facially invalid if they `make unlawful a substantial amount of constitutionally protected conduct . . . even if they have legitimate application.’ . . . This standard is very high and speech will be protected “. . . unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” City of Seattle v. Huff, 111 Wn.2d 923, 925, 767 P.2d 572 (1989) (citations omitted).

The Washington statute defining sexually explicit conduct has withstood multiple overbreadth challenges, and our Supreme Court has observed that `the legitimate reach of [RCW 9.68A.011(3)] in prohibiting conduct unprotected by the First Amendment far surpasses whatever impermissible application this statute may reach.’ Myers, 133 Wn.2d at 34; see also State v. Farmer, 116 Wn.2d 414, 805 P.2d 200 (1991); State v. Bohannon, 62 Wn. App. 462, 814 P.2d 694 (1991). Stellman argues that the definition of `sexually explicit conduct’ governing his conviction suffers from the same deficiency that the Ninth Circuit Court of Appeals identified in Free Speech Coalition v. Reno, 198 F.3d 1083 (9th Cir. 1999). In Free Speech Coalition, the court reviewed the Child Pornography Prevention Act of 1996. The court held that to the extent the Act defined `child pornography’ in 18 U.S.C. § 2256(8) as a depiction that `appears to be’ or `conveys the impression’ of a minor engaging in sexually explicit conduct, the statute was unconstitutionally vague and overbroad.

By criminalizing all visual depictions that `appear to be’ or `convey the impression’ of child pornography, even where no child is ever used or harmed in its production, Congress has outlawed the type of depictions explicitly protected by the Supreme Court’s interpretation of the First Amendment. Because the 1996 Act attempts to criminalize disavowed impulses of the mind, manifested in illicit creative acts, we determine that censorship through the enactment of criminal laws intended to control an evil idea cannot satisfy the constitutional requirements of the First Amendment.

. . . .

In short, we find the articulated compelling state interest cannot justify the criminal proscription when no actual children are involved in the illicit images either by production or depiction. Free Speech Coalition, 198 F.3d at 1094-95. The court concluded that the balance of the Child Pornography Prevention Act was constitutional after striking the two contested phrases. Free Speech Coalition, 198 F.3d at 1086.

Here, the State charged Stellman with violating RCW 9.68A.040(1)(b), attempting to exploit a minor; RCW 9.68A.050, dealing in depictions of minors engaged in sexually explicit conduct; and RCW 9.68A.070, possessing depictions of minors engaged in sexually explicit conduct.[1]
These statutes all include the phrase `sexually explicit conduct.’ For example, exploiting a minor requires aiding, inviting, employing, authorizing, or causing a minor to engage in sexually explicit conduct. RCW 9.68A.040(1)(b). And possessing and dealing in child pornography requires the depicted minors to be engaged in sexually explicit conduct. RCW 9.68A.050; RCW 9.68A.070.

RCW 9.68A.011(3)(e) provides in part the definition at issue:

(3) `Sexually explicit conduct’ means actual or simulated:

(e) Exhibition of the genitals or unclothed pubic or rectal areas of any minor, or the unclothed breast of a female minor, for the purpose of sexual stimulation of the viewer[.]

Stellman argues that this definition is overbroad because the adjectives `actual’ and `simulated’ modify not only `exhibition,’ but also modify `minor’ in the subsequent prepositional phrases. Division One recently addressed this specific argument in State v. D.H., 102 Wn. App. 620, 9 P.3d 253 (2000). In D.H., the defendant argued that the adjective `simulated’ modified all the subsequent nouns, including the objects of all subsequent prepositional phrases in RCW 9.68A.011(3)(e). The defendant reasoned that the definition therefore encompasses not only conduct by `actual’ minors, but also the `exhibition of parts of a simulated minor.’ The defendant concluded that, like Free Speech Coalition, the statute was unconstitutional. D.H., 102 Wn. App. at 625. But the Court of Appeals held `any attempt to force RCW 9.68A.011(3)(e) into the Free Speech Coalition analytical scheme is defeated by a plain reading of the statute’s clear language.’ D.H., 102 Wn. App. at 625. The court further reasoned:

The phrase `actual or simulated’ unambiguously modifies only the noun `exhibition.’ The two subsequent prepositional phrases — `of any minor’ and `of a female minor’ — can be construed as modifying only the specified areas of the body that may not be exhibited. The unambiguous meaning of `minor’ in RCW 9.68A.011(3)(e) is underscored by both RCW 9.68A.040(1)(b), which defines the offense of sexual exploitation of a minor to require sexually explicit conduct that is performed by `a minor,’ and RCW 9.68A.011(4), which defines `minor’ for purposes of RCW 9.68A as `any person under eighteen years of age.’

In summary, the statutory provisions defining sexual exploitation of a minor do not criminalize sexually explicit conduct that is performed by a `simulated’ minor. Consequently, the Ninth Circuit’s analysis in Free Speech Coalition has no application to the circumstances of this case. D.H. has not identified any relevant authority to support his unpersuasive reading of RCW 9.68A.011(3)(e). D.H., 102 Wn. App. at 625-26
(emphasis added).

We agree with the sound reasoning of our brethren in D.H. and hold that the statute is not unconstitutionally overbroad or vague. Stellman’s additional argument, that he received ineffective assistance of counsel when his trial attorney did not object to the statute on these grounds, fails because the statute is constitutional and no prejudice resulted. See State v. McFarland, 127 Wn.2d 322, 899 P.2d 1251 (1995).

A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

II. Sufficiency of the Information
Stellman contends that his information was defective because it did not define `sexually explicit conduct’ as set forth in RCW 9.68A.011(3).[2]
The information charged that Stellman `did knowingly duplicate, publish, print, disseminate, or exchange visual or printed matter depicting a minor engaged in sexually explicit conduct as defined by RCW 9.68A.011(3).’ Clerk’s Papers at 19. The other counts likewise alleged the phrase `sexually explicit conduct as defined by RCW 9.68A.011(3).’ Clerk’s Papers at 19-21. Both the Washington Constitution, art. 1, § 22, amend. 10, and the Sixth Amendment to the United States Constitution require that all essential elements of a crime, statutory or otherwise, be included in a charging document in order to give notice to an accused of the nature and cause of the accusation. State v. Kjorsvik, 117 Wn.2d 93, 97, 812 P.2d 86 (1991). CrR 2.1(a)(1) provides in part that `the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.’

When an information is challenged before the verdict, we apply a strict standard: all the elements of the crime must be present on the face of the document. State v. Ibsen, 98 Wn. App. 215, 989 P.2d 1184 (1999). But if first challenged after the verdict or on appeal, we liberally construe the information. Kjorsvik, 117 Wn.2d at 105-06. When the issue is first raised after the verdict or on appeal, the court asks: (1) do the necessary facts appear in any form, or by fair construction can they be found, in the charging document; and if so, (2) can the defendant nonetheless show that the inartful language caused actual prejudice. Kjorsvik, 117 Wn.2d at 105-06. When a liberal interpretation of an information does not uphold its validity, a defendant need not show prejudice. See Kjorsvik, 117 Wn.2d at 105-06. A correct jury instruction cannot cure a defective information. State v. Vangerpen, 125 Wn.2d 782, 788, 888 P.2d 1177 (1995).

Notably, Stellman does not contend that a specific element is missing from the information; instead he unpersuasively argues that the information should have listed all the different types of sexually explicit conduct that are listed in RCW 9.68A.011(3). The question here is whether the nature of the sexually explicit conduct and the list of acts that RCW 9.68A.011(3) names are elements of the offenses charged.

The Washington State Supreme Court has described an `essential element’ as one `whose specification is necessary to establish the very illegality of the behavior.’ Johnson, 119 Wn.2d at 147 (quoting United States v. Cina, 699 F.2d 853, 859 (7th Cir. 1983)). The term `elements’ has also been defined as `those facts the prosecution must prove beyond a reasonable doubt to establish that the defendant committed the offense.’ State v. Franklin, 116 N.M. 565, 570, 865 P.2d 1209, 1214 (1993). State v. Johnstone, 96 Wn. App. 839, 844, 982 P.2d 119 (1999).[3]

Stellman argues that because the information does not define `sexually explicit conduct’ it is defective and, consequently, this court must reverse his conviction and dismiss the charges. See State v. Kitchen, 61 Wn. App. 915, 918, 812 P.2d 888, review denied, 117 Wn.2d 1019
(1991). The State argues that the definition of `sexually explicit conduct’ is not an element of the offense and that Stellman was made sufficiently aware of his charge with the information.

In Kjorsvik, the Supreme Court said that `it has never been necessary to use the exact words of a statute in a charging document; it is sufficient if words conveying the same meaning and import are used.’ Kjorsvik, 117 Wn.2d at 108. The court also said, `Words in a charging document are read as a whole, construed according to common sense, and include facts which are necessarily implied.’ Kjorsvik, 117 Wn.2d at 109.

In State v. Rhode, 63 Wn. App. 630, 636, 821 P.2d 492 (1991), review denied, 118 Wn.2d 1022 (1992), we held that the use of the word `attempt’ in an information charging attempted first degree murder was sufficient to encompass the statutory definition of criminal attempt, including the Ssubstantial step’ requirement. In so ruling, we noted that `it is sufficient to charge in the language of the statute if the statute defines the crime sufficiently to apprise an accused person with reasonable certainty of the nature of the accusation.’ Rhode, 63 Wn. App. at 634 (citing State v. Leach, 113 Wn.2d 679, 686, 782 P.2d 552
(1989)).

RCW 9.68A.011(3) defines `sexually explicit conduct’ as the phrase is used in Stellman’s charged violations of RCW 9.68A.040(1)(b), RCW 9.68A.050, and RCW 9.68A.070. It is exactly what it purports to be — a definitional subsection. In the statutory definition, the legislature listed the types of acts that are understood to be sexually explicit and possibly expanded the class of acts that persons are prohibited from having minors engage in, but it did not create a new element. By defining `sexually explicit conduct’ as that phrase is used in the statutes, the legislature was not creating alternative elements to the crimes; it was merely defining an element of the crime. See State v. Garvin, 28 Wn. App. 82, 85, 621 P.2d 215 (1980) (by defining `threat’ as that word is used in the extortion statute, `the legislature was not creating alternative elements to, but merely defining an element of, the crime’), review denied, 95 Wn.2d 1017 (1981).

When liberally construed, the phrase `sexually explicit conduct’ adequately conveys its meaning with respect to Stellman’s charges, and further definition of this term in the information is not required to understand the crime charged. Accordingly, the information sufficiently alleged the elements of the crimes charged.

III. Finding of Sexual Motivation
The State charged Stellman with committing each of the offenses for the purpose of `sexual motivation.’ `In a criminal case wherein there has been a special allegation the state shall prove beyond a reasonable doubt that the accused committed the crime with a sexual motivation.’ RCW 9.94A.127(2).[4] `Sexual motivation’ means that one of the defendant’s purposes in committing the crime was for sexual gratification. RCW 9.94A.030(37) (previously RCW 9.94A.030(34) (1998)).

In essence, Stellman’s challenge here is to the sufficiency of the evidence of the trial court’s findings. The trial court made a specific finding of sexual motivation for each count on the record.[5]
Throughout his contact with the undercover officer, Stellman used sexual language in his e-mail messages by asking about Keven’s genitals and requesting sexual activity as depicted in the attached pornographic photographs. The evidence supports the conclusion that Stellman agreed to meet Keven in the park for sexual contact. Further, each count of `dealing’ referred to a photograph depicting minors engaged in sexually explicit conduct that Stellman e-mailed to Keven supporting the inference that Stellman was using the photographs to sexually stimulate Keven and groom him for sexual activity. Although the last sentence of the finding concerning Count XI on possession may have been inartfully worded, it was obvious to the trial court that the binders containing child pornography found at Stellman’s residence, which included several of the photos that Stellman had e-mailed to Keven, were maintained for sexual purposes. The trial court was correct in finding that Stellman e-mailed these images to Keven with a sexual motivation.

There was substantial evidence of sexual motivation for each count.

IV. Exceptional Sentence
Under the Sentencing Reform Act of 1981, a trial court must impose a sentence within the standard range unless it finds substantial and compelling reasons to justify a departure. RCW 9.94A.120(2); State v. Grewe, 117 Wn.2d 211, 214, 813 P.2d 1238 (1991). RCW 9.94A.210(4), which governs appellate review of an exceptional sentence, provides:

To reverse a sentence which is outside the standard sentence range, the reviewing court must find: (a) Either that the reasons supplied by the sentencing judge are not supported by the record which was before the judge or that those reasons do not justify a sentence outside the standard sentence range for that offense; or (b) that the sentence imposed was clearly excessive or clearly too lenient.

See also State v. Johnson, 124 Wn.2d 57, 66, 873 P.2d 514 (1994). We may affirm an exceptional sentence even if some of the justifications for its imposition were improper, so long as we are confident the trial court would impose the same sentence on remand. State v. Farmer, 116 Wn.2d 414, 432, 805 P.2d 200 (1991). Stated in another way: `A remand is not mandated when the reviewing court is confident that the trial court would impose the same sentence when it considers only valid reasons.’ State v. Ross, 71 Wn. App. 556, 567, 861 P.2d 473 (1993) (citing State v. Pryor, 115 Wn.2d 445, 456, 799 P.2d 244 (1990)), review denied, 123 Wn.2d 1019
(1994). If the sentencing court indicates that it would have imposed the same exceptional sentence for any of the reasons standing alone, remand is not required as long as at least one of the factors is valid. See State v. Negrete, 72 Wn. App. 62, 71, 863 P.2d 137 (1993), review denied, 123 Wn.2d 1030 (1994). In this case the court found several aggravating factors, including the multiple offense policy. In regard to each, the court indicated the following:

I am indicating that I believe that any single aggravating factor of those three is sufficient to have allowed this Court to impose the sentence that I have imposed, and I would have done so had that been the only aggravating factor found in each case.

Report of Proceedings at 358.

The trial court found that the standard range for counts I through X was 60 months each and 0-12 months for count XI. Under RCW 9.94A.400, the trial court should impose the sentences for these counts concurrently unless the trial court imposed an exceptional sentence under RCW 9.94A.120 and 9.94A.390(2)(i). Here, the trial court ran counts II through X, all nine counts of dealing with sexually explicit depictions of minors, concurrently. The trial court ran the remaining sentences, count I, exploitation of a minor; and count XI, possession of depictions of minors engaged in sexually explicit conduct, consecutively. Thus, Stellman received 60 months for counts II through X, another 60 months for count I, and 12 months for count XI, totaling a 132 month sentence.

Stellman challenges this exceptional sentence on several grounds, but because we find that violation of the multiple offense policy is a sufficiently valid reason for this exceptional sentence, we do not address his other challenges.[6] But, we do address whether the nine convictions of dealing in depictions of minors engaged in sexually explicit conduct is the same criminal conduct because it affects our analysis of the multiple offense policy.

A. Same Criminal Conduct
Stellman contends that the trial court erred by not treating all nine convictions of dealing in depictions of minors engaged in sexually explicit conduct as a single offense under RCW 9.94A.400(1)(a).

`RCW 9.94A.400(1)(a) requires multiple current offenses encompassing the same criminal conduct to be counted as one crime in determining the defendant’s offender score.’ State v. Tili, 139 Wn.2d 107, 118, 985 P.2d 365 (1999). For this subsection, `same criminal conduct’ is defined as `two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim.’ RCW 9.94A.400(1)(a). A trial court’s determination of whether two or more charges amount to the same criminal conduct for purposes of determining a defendant’s offender score will not be disturbed on appeal absent abuse of discretion or misapplication of law. State v. Burns, 114 Wn.2d 314, 317, 788 P.2d 531 (1990).

Here, Stellman’s convictions do not meet the criteria for same criminal conduct under RCW 9.94A.400(1)(a). Assuming that the nine convictions of dealing in depictions of minors engaged in sexually explicit conduct involved the same criminal intent, the same place from Stellman’s computer, and in each Keven and the society at large was the victim, it is clear that he did not commit the crimes at the same time. Stellman sent most of the pornographic images on different days over a period of a month, and he attached a different pornographic image to separate e-mails, each with a different message. This precludes Stellman’s `same criminal conduct’ argument because, according to RCW 9.94A.400(1), the acts must have occurred at the same time to qualify as the same conduct. State v. Knutson, 64 Wn. App. 76, 82, 823 P.2d 513 (1991).[7]
Therefore, the nine counts of dealing in depictions of minors engaged in sexually explicit conduct are not the same criminal conduct, and the court properly computed Stellman’s offender score for these convictions. The trial court did not err.

B. Multiple Offense Policy
The court found that Stellman’s number of current offenses, combined with the SRA’s multiple offense policy resulted in standard ranges that were clearly too lenient. See RCW 9.94A.390(2)(i).[8]

This factor applies when the combination of a defendant’s high offender score and multiple current offenses would result in `free crimes’ absent departure from the standard range. State v. Smith, 123 Wn.2d 51, 56, 864 P.2d 1371 (1993). `It is proper to rely on this aggravating factor when there is some extraordinarily serious harm or culpability resulting from multiple offenses which would not otherwise be accounted for in determining the presumptive sentencing range.’ State v. Fisher, 108 Wn.2d 419, 428, 739 P.2d 683 (1987). This is the case whenever the defendant has committed a number of crimes and his high offender score does not result in any greater penalty than if he had committed only one. State v. Stephens, 116 Wn.2d 238, 244-45, 803 P.2d 319 (1991). Allowing a court to impose an exceptional sentence under these circumstances prevents an offender from avoiding punishment for his additional crimes. See Stephens, 116 Wn.2d at 245.

Stellman was convicted of one count of attempted exploitation of a minor, nine counts of dealing in depictions of minors engaged in sexually explicit conduct, and one count of possessing depictions of minors engaged in sexually explicit conduct. The last count of possession, count XI, is not ranked and has a standard range of 0 to 12 months. The presumptive sentence for count I, attempted exploitation, is 129 to 171 months based on Stellman’s offender score of 30 points, which places him in the `9 or more’ points category; however, the statutory maximum he can receive is only 60 months, which is reached after 4 points on the sentencing grid. The presumptive sentence for counts II to X on dealing is 87 to 116 months based on Stellman’s offender score of 30, which again places him in the `9 or more’ points category for each count; however, the maximum he can receive is also 60 months and is reached after only 6 points. Former RCW 9.94A.310 (1998). Although Stellman committed ten other current offenses with multipliers,[9] his high offender score of 30 does not result in any greater penalty than if he had committed only a few crimes. Under the sentencing grid and with the operation of statutory maximum sentences, Stellman’s presumptive sentence would have been the same if he had committed substantially fewer crimes. It is obvious that not all of Stellman’s current offenses have been accounted for in the standard sentence.

The trial court found that Stellman’s presumptive sentence was clearly too lenient and consequently enhanced it. When the operation of RCW 9.94A.420, which provides that presumptive sentences are capped at the statutory maximum sentence, causes a defendant’s presumptive sentence to be the same for the commission of numerous crimes, the multiple offense policy is an appropriate factor for an exceptional sentence. State v. Stewart, 125 Wn.2d 893, 899, 890 P.2d 457 (1995). In addition, when a defendant commits numerous current crimes resulting in an offender score that far exceeds the `9 or more’ category on the sentencing grid, the multiple offense policy is an appropriate factor. See Stephens, 116 Wn.2d at 244. Stellman’s presumptive ranges with his high offender score of 30 exceeded the statutory maximum of 60 months for counts I through X and far surpassed the highest category of `9 or more’ points in the statutory sentence grid. Thus, the trial court did not err by relying on the multiple offense policy as a factor.

Further, with this factor, the trial court properly imposed consecutive sentences as a part of the exceptional sentence. RCW 9.94A.400. The trial court stated that `Count I shall be consecutive to Counts II-X and those consecutive to Count XI’ and sentenced Stellman to 132 months. Clerk’s Papers at 12. The trial court did not indicate that it was imposing two exceptional sentences. It only acknowledged that it was calculating the sentence by placing count I consecutive to counts II through X and that consecutive to count XI. Contrary to Stellman’s contentions, this does not indicate two separate exceptional sentences. There was no error.

V. Personal Restraint Petition
`To obtain relief in [a] personal restraint petition, the defendant must show he was actually and substantially prejudiced either by a violation of his constitutional rights or by a fundamental error of law.’ In re Personal Restraint of Davis, 142 Wn.2d 165, 170-71, 12 P.3d 603
(2000) (quoting In re Personal Restraint of Benn, 134 Wn.2d 868, 884-85, 952 P.2d 116 (1998)).

Stellman asserts that the trial court erred in imposing his sentence because the court did not meet the constitutional requirements under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
(2000), for increasing a penalty beyond the statutory maximum. In Apprendi, the United States Supreme Court reviewed an enhanced sentence where a trial judge increased the penalty above the statutory maximum based on the judge’s finding that the crime was racially motivated. The Supreme Court reversed the sentence because the racial motivation enhancement was not submitted to the jury. The court held that the constitution requires any fact, other than the fact of a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Apprendi, 120 S.Ct. 2362-63.

Apprendi does not apply here because the trial court did not impose a sentence above the statutory maximum. Stellman was convicted of ten counts with a statutory maximum of 60 months and one count with a maximum of 12 months. If all of Stellman’s convictions were consecutive, his sentence would be 612 months and would not exceed the statutory maximum until the sentence exceeded 612 months. Stellman provided no argument or authority that Apprendi applies to this case where the sentence imposed is within the statutory maximum. Thus, his reliance on Apprendi is inappropriate. Stellman makes other challenges in his personal restraint petition including claims of ineffective assistance of counsel, that there was no victim in this case, and that the trial court imposed an improper sentence. But Stellman provides no authority or reasoned arguments for any of his contentions. Passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial consideration. State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992). We do not address these other arguments.

We find Stellman’s arguments without merit.

Judgment and sentence affirmed; PRP denied.

WE CONCUR: HOUGHTON, J., ARMSTRONG, C.J.