STATE v. VANNAUSDLE, 29380-3-II (Wash.App. 1-21-2004)

No. 29380-3-II.The Court of Appeals of Washington, Division Two.
Filed: January 21, 2004. UNPUBLISHED OPINION

Appeal from Superior Court of Pierce County. Docket No. 02-1-00998-2. Judgment or order under review. Date filed: 09/04/2002.

Counsel for Appellant(s), Linda J. King, Attorney at Law, 917 Pacific Ave Ste 415, Tacoma, WA 98402.

Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Ofc Rm 946, 930 Tacoma Ave S, Tacoma, WA 98402-2102.

SEINFELD, P.J.

Mark David Vannausdle appeals his guilty plea convictions of first degree assault and first degree robbery. He asserts that either the prosecutor or defense counsel altered the agreed to sentencing recommendation without his consent and that (1) the prosecutor breached the plea agreement by recommending a sentence consistent with the altered recommendation; and (2) defense counsel’s performance was ineffective because he allowed the alteration. Vannausdle also argues that he received ineffective assistance when his defense counsel agreed to a stipulated offender score that counted the assault and robbery as separate offenses rather than as the same criminal conduct. Finally, Vannausdle argues in a pro se statement of additional grounds for review (SAG)[1] that the trial court erred when it accepted the stipulated offender score without determining whether the assault and robbery constituted the same criminal conduct. Because Vannausdle’s arguments either pertain to matters outside the record or lack merit, we affirm.

Facts
The Declaration for Determination of Probable Cause in support of the charges states that while Vannausdle was riding in a taxi, he told the taxi driver that he was going to `borrow’ the taxi and was going to put the driver in the trunk; he then threatened the driver with a firearm. Clerk’s Papers (CP) at 4. When the driver attempted to escape, Vannausdle shot and injured him and then fled in the taxi.

After a Washington State Patrol trooper apprehended Vannausdle, the State charged him with first degree assault, first degree robbery, and attempted first degree kidnapping, alleging a firearm enhancement for each charge. Pursuant to a plea agreement, Vannausdle agreed to plead guilty to the robbery and assault charges in exchange for the prosecutor dropping the attempted kidnapping charge. In compliance with the agreement, Vannausdle entered a Statement of Defendant on Plea of Guilty in which he admitted to shooting Fernandez and taking the taxi. Vannausdle also stipulated that he had no prior convictions, and that his offender score for each of the current offenses was two.

Section 6(g) of the guilty plea statement originally stated that the prosecutor would recommend a 231 month sentence. But the document had been altered to show a 240 month recommendation.[2] Accompanying notations indicate that the 240 month recommendation was calculated by adding the two consecutive 60 month firearm enhancements to the concurrent sentences of 120 months on the assault charge and 54 months on the robbery charge. The alteration was not initialed but the word `Agreed’ was written in parentheses to the left of the section. CP at 11.

At the entry of guilty plea hearing, Vannausdle’s counsel told the court that he had reviewed the guilty plea statement with Vannausdle and that Vannausdle had read the document. Counsel stated that he had explained the standard ranges and the prosecutor’s recommendation to Vannausdle and that the recommended sentence was `a joint recommendation.’ Report of Proceedings at 3.

Neither defense counsel nor the prosecutor referred to the alteration in section 6(g). Although the trial court verified that Vannausdle understood the standard ranges, the trial court did not ask him about the sentencing recommendation. The trial court accepted Vannausdle’s plea and proceeded to sentencing.

At sentencing, the prosecutor stated that the parties had agreed to recommend a 240 month sentence as described in section 6(g). Defense counsel reiterated that Vannausdle had agreed to the recommended sentence and Vannausdle did not indicate that his counsel’s representations or the prosecutor’s recommendation were incorrect. Again, neither party discussed the alteration in section 6(g). The trial court adopted the recommended 240 month sentence based on the stipulated offender score of two for each offense.

Analysis I. Sentencing Recommendation
Vannausdle first argues that when he agreed to the plea offer, he understood that the prosecutor would recommend a 231 month sentence but that the prosecutor or defense counsel later altered the terms of the agreement without his consent. He contends that this was a breach of the plea agreement, and that if his failure to object below waived this issue, his trial counsel was ineffective for failing to preserve the issue.

The State responds that the record contains no evidence supporting Vannausdle’s assertions that (1) the prosecutor originally agreed to recommend a 231 month sentence; (2) Vannausdle did not agree to or was unaware of the change; or (3) defense counsel or the prosecutor altered the agreement without Vannausdle’s consent. The State is correct.

The record contains no indications as to when section 6 was altered or by whom. But Vannausdle pleaded guilty after the trial court verified that Vannausdle had reviewed the guilty plea statement and after the court stated that the parties had agreed to a 240 month recommendation. Because Vannausdle’s arguments contradict these indications of his agreement to the alteration and depend on matters outside the record, we cannot address these issues on appeal. See State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995) (issues involving matters outside the record must be raised by means of a personal restraint petition).

II. Stipulated Offender Score and Same Criminal Conduct A. Trial Court Error
In his SAG, Vannausdle argues the trial court erred when it failed to find that the assault and robbery constituted the same criminal conduct. But because Vannausdle stipulated to an offender score calculated on the basis of the two offenses being separate and distinct criminal conduct and failed to assert that these offenses were same criminal conduct at the sentencing hearing, he waived this issue. State v. Hickman, 116 Wn. App. 902, 907-08, 68 P.3d 1156 (2003) (discussing In re Personal Restraint of Goodwin, 146 Wn.2d 861, 50 P.3d 618 (2002); State v. Nitsch, 100 Wn. App. 512, 521-22, 997 P.2d 1000 (2000)).

B. Ineffective Assistance of Counsel
Alternatively, Vannausdle argues that his defense counsel was ineffective because he stipulated to the offender score and did not argue that the assault and robbery constituted the same criminal conduct. He asserts, both through appellate counsel and in his SAG, that had defense counsel argued that the assault and robbery constituted the same criminal conduct (1) the standard sentencing range for the offenses would have been lower; and (2) the trial court would have been compelled to run the firearm enhancements concurrently to one another. In effect, he is arguing that if he had known that the assault and robbery could be considered the same criminal conduct and of the resulting significant reduction in the length of his sentence, he would not have agreed to plead guilty.

1. Standard of Review
To establish ineffective assistance of counsel in the context of a guilty plea, Vannausdle must show that his defense counsel failed to assist him in deciding whether to plead guilty and that but for counsel’s failure, he would not have pleaded guilty. State v. McCollum, 88 Wn. App. 977, 982, 947 P.2d 1235 (1997). There is a strong presumption that counsel’s performance was within the broad range of reasonable professional assistance. McCollum, 88 Wn. App. at 982.

2. Same Criminal Conduct
Even assuming, arguendo, that defense counsel could have shown that the assault and robbery were the same criminal conduct, the record lacks any indication that the prosecutor would have agreed to a plea that resulted in a lesser sentence. Further, even if Vannausdle’s offender score were reduced to zero, the 120 month sentence for first degree assault would still have been within the standard sentencing range.[3] Thus, advising Vannausdle to accept the prosecutor’s offer was a reasonable strategic move that allowed Vannausdle to avoid a possible conviction on the attempted kidnapping charge and its accompanying firearm enhancement, regardless of whether the offender score was zero or two. Because Vannausdle has not shown that defense counsel’s stipulation to an offender score of two was deficient or that Vannausdle would not have agreed to plead guilty had his counsel chosen to assert that the offenses constituted the same criminal conduct, he has failed to establish that he received ineffective assistance of counsel in this regard.

C. Firearm Enhancements
Finally, Vannausdle argues that former RCW 9.94A.310(3)(e) (2000)[4]
(recodified as RCW 9.94A.510, Laws of 2001, ch. 10, sec. 6) is ambiguous as to whether firearm enhancements related to offenses that constitute same criminal conduct under RCW 9.94A.589(1)(a)[5] must run consecutively or concurrently.[6] Consequently, under the rule of lenity, the court would have to order that they run concurrently. Vannausdle asserts that defense counsel’s failure to advise him of this possibility was inadequate. We disagree.

First, there is a sound legal argument that defeats Vannausdle’s assertion of statutory ambiguity. It is reasonable to construe RCW 9.94A.589(1)(a), the same criminal conduct provision, as applying only to computation of a defendants’ offender score and not to read it as a statement that the defendant committed only a single offense. And former RCW 9.94A.310(3)(e) plainly states that the offender must serve firearm enhancement time for each offense consecutively, `[n]otwithstanding any other provision of law;’ the court must give the plain statutory language its full effect. State v. Pope, 100 Wn. App. 624, 628, 999 P.2d 51
(2000).

Nor is Vannausdles further argument about double jeopardy persuasive. The double jeopardy clauses of article I, section 9 of the Washington Constitution and the fifth amendment to the United States Constitution prevent greater punishment for a single offense than the legislature intended. State v. Pentland, 43 Wn. App. 808, 811, 719 P.2d 605 (1986). But here, where former RCW 9.94A.310(3)(e) makes it mandatory that firearm enhancements apply to all felonies and run consecutively to all other sentencing provisions, including other firearm or deadly weapon enhancements, legislative intent is clear. Thus, it does not violate protections against double jeopardy to run enhancements for multiple offenses consecutively even if those offenses are treated as the same criminal conduct for purposes of calculating the offender score.

Given the weak and speculative nature of the argument for consecutive firearm enhancements, Vannausdle’s counsel was not deficient in failing to advance this theory. McCollum, 88 Wn. App. at 982 (we presume the decision within broad range of reasonable professional assistance was not deficient). For the same reason, Vannausdle cannot show prejudice. Thus, Vannausdle’s ineffective assistance of counsel claim fails.

We affirm.

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.

BRIDGEWATER, J. and ARMSTRONG, J., concur.