Opinion
Nos. 24315-0-III; 24316-8-III; 24883-6-III; 24884-4-III.
November 2, 2006.
Appeals from judgments of the Superior Court for Grant County, Nos. 04-1-00767-7 and 04-1-00776-6, Evan E. Sperline, J., entered June 27, 2005, together with petitions for relief from personal restraint. Judgements affirmed in part and remanded and petitions denied by unpublished opinion per Brown, J., concurred in by Schultheis, A.C.J., and Kato, J.
County, Nos. 04-1-00767-7 and 04-1-00776-6, Evan E. Sperline, J., entered June 27, 2005, together with petitions for relief from personal restraint.
Counsel for Appellant(s), Paul J. Wasson II, Attorney at Law, 2521 W Longfellow Ave, Spokane, WA, 99205-1548.
Counsel for Respondent(s), Carolyn Jones Fair, Law and Justice Center, Po Box 37, Ephrata, WA, 98823-0037.
Teresa Jeanne Chen, Grant County Prosecutors Office, Po Box 37, Ephrata, WA, 98823-0037.
After consolidated jury trials, Jacob I. Dorfman was found guilty of second degree possession of stolen property, unlawful possession of a dangerous weapon, first degree burglary, second degree assault and attempted first degree robbery. The State concedes a sentencing error. We accept the concession because we agree the second degree assault merges into the attempted first degree robbery. We also agree the judgment and sentence should be corrected to show the correct felony classification for the attempted first degree robbery conviction. We reject the other multiple reversal issues raised in these consolidated matters and detailed below. Accordingly, we affirm the convictions, but remand to the trial court for hearings necessary to correct the judgment and sentence.
FACTS
On November 17, 2004, Mr. Dorfman knocked on Richard Karas' door. Mr. Karas sleeps in a one room, out building behind the home of his father, Frank. According to Sonda Safford, who was inside Mr. Karas' room and witnessed the altercation, Mr. Karas opened the door and then unsuccessfully attempted to shut it. While standing in the doorway, Mr. Dorfman accused Mr. Karas of stealing his truck and sleeping with his wife. He then punched Mr. Karas in the face, breaking his nose. When Mr. Karas stepped back from the force of the punch, Mr. Dorfman entered the residence uninvited.
We use Frank Karas' first name to avoid confusion.
According to Mr. Karas, Mr. Dorfman pulled out a pocketknife and then punched and kicked him repeatedly. Mr. Dorfman demanded $180. Mr. Karas told Mr. Dorfman he did not have any money, so Mr. Dorfman punched and kicked him again. Mr. Karas went inside his father's home and apparently called 911. Mr. Dorfman was gone when the police arrived. Mr. Karas was transported to the hospital, where he stayed for two days with a broken nose and a closed head injury.
"[T]he going rate on the streets today for a quarter ounce of cocaine." Report of Proceedings (RP) (April 7, 2005) at 17.
Days later, a Vista Quick Stop employee contacted the police about fraudulent use of a gas card issued to Frank's fencing business where Mr. Karas is a supervisor. Mr. Dorfman was identified as the suspect on the store's surveillance camera.
On November 24, 2004, a Sun Mart employee reported an attempt to use the stolen credit card. The employee notified the police and the suspect fled in a white Ford Tempo. When officers stopped the car, Mr. Dorfman was the driver. A police search produced a check belonging to Christina M. Taylor, a crack pipe, and a butterfly knife.
In cause number 04-1-00767-7, the State charged Mr. Dorfman with second degree possession of stolen property, unlawful possession of a dangerous weapon, and use of drug paraphernalia. In cause number 04-1-00776-6, the State charged Mr. Dorfman with first degree burglary and second degree assault for the November 17 incident. The court later permitted the State to add attempted first degree robbery. Without defense objection, the cases were joined for trial.
At trial, Frank testified his drivers would use the business gas cards and then return them to him at the end of the day. If a driver forgot to return a card to Frank, the card would be given to the person's supervisor. Frank testified he thought he received a statement in early November with unauthorized charges on it.
Over a defense objection, a Vista Quick Stop employee testified for the State that Mr. Dorfman's stepson, Christopher Gonzalez, had used one of Frank's gas cards at her store on or about November 23, 2004 to make several non-fuel purchases.
Mr. Dorfman's wife testified Mr. Dorfman did not bounce checks and the two were not in financial trouble. She, however, admitted times when Mr. Dorfman did not comply with a restraining order. And, "he was incarcerated and got out and he got the Tempo." RP (April 11, 2005) at 63.
In rebuttal, and over a defense objection, the State called Ms. Taylor, who worked at the motel where Mr. Dorfman stayed in November 2004. Ms. Taylor testified she did drugs with Mr. Dorfman and Mr. Gonzalez; and frequently cashed checks for him that bounced. Danielle Garza, the motel's front desk manager, testified Mr. Dorfman did not pay his bill there and was locked out.
Mr. Dorfman employed a self-defense theory. Mr. Gonzalez, said he witnessed Mr. Karas first threaten Mr. Dorfman with a screwdriver.
On April 13, 2005, the jury found Mr. Dorfman guilty of second degree possession of stolen property, unlawful possession of a dangerous weapon, first degree burglary, but not while armed with a deadly weapon, second degree assault and attempted first degree robbery; and, not guilty of use of drug paraphernalia.
Sentencing occurred 75 days later, on June 27, 2005. Before sentence scheduling, the State expressed its concern in timely gathering Mr. Dorfman's criminal history from California. The court initially set sentencing for May 16. Continuances followed to allow the State to obtain Mr. Dorfman's California criminal history. At sentencing, the State presented a certified printout from the California Youth Authority showing four juvenile felonies and one juvenile misdemeanor.
The court calculated Mr. Dorfman's offender score at 9 or above for all convictions, except the misdemeanor dangerous weapon possession conviction. His criminal history included four California juvenile felony offenses. The court found the crimes encompassed the same conduct and ordered 114 months for first degree burglary, 102 months for second degree assault, 72 months for attempted first degree robbery, 24 months for second degree possession of stolen property, and 30 days for possession of a dangerous weapon. The sentences for the first degree burglary, second degree assault, and attempted first degree robbery convictions were to be served concurrently, for a total confinement of 114 months. The 24 months and 30 days sentences were to be served consecutively to each other and to the 114 months.
Mr. Dorfman appealed. We consolidated associated personal restraint petitions.
ANALYSIS A. Evidence Sufficiency
The issue is whether sufficient evidence supports Mr. Dorfman's attempted first degree robbery and first degree burglary convictions. Mr. Dorfman contends no substantial step toward theft of personal property with a deadly weapon is shown to support the attempted robbery conviction; and, no unlawful entry is shown to support the first degree burglary conviction.
Evidence is sufficient for conviction if, viewed in the light most favorable to the State, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." Id. Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We leave credibility determinations to the trier of fact. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Atsbeha, 142 Wn.2d 904, 925, 16 P.3d 626 (2001).
To convict on attempted first degree robbery, the State was required to prove Mr. Dorfman (1) intended to take Mr. Karas' personal property against his will, (2) while being armed with a deadly weapon, displaying what appeared to be a deadly weapon, or inflicting bodily injury, and (3) took a substantial step toward the commission of the act. RCW 9A.56.190 (robbery), RCW 9A.56.200(1)(a)(i)-(iii) (robbery in the first degree); RCW 9A.28.020(1) (attempt).
Here, Mr. Karas and Ms. Safford testified Mr. Dorfman punched Mr. Karas in the face, demanded $180, and then continued to punch and kick him. Thus, any rational trier of fact could find Mr. Dorfman inflicted bodily injury in an attempt to rob Mr. Karas of $180 (not the gas card) beyond a reasonable doubt.
To convict on first degree burglary conviction, the State was required to prove Mr. Dorfman, (1) with intent to commit a crime, (2) entered or remained unlawfully in a building and (3) in entering or in immediate flight therefrom, he was armed with a deadly weapon, or assaulted another person. RCW 9A.52.020(1)(a)(b).
Here, the record viewed favorably for the State shows Mr. Dorfman knocked on the door before Mr. Karas opened it. Then, Mr. Karas unsuccessfully attempted to shut the door. Mr. Dorfman accused Mr. Karas of stealing his truck and sleeping with his wife. Mr. Dorfman then punched Mr. Karas in the face, forcing Mr. Karas to retreat. Mr. Dorfman then entered without invitation and holding a knife demanded money. Mr. Dorfman repeatedly punched and kicked Mr. Karas and then apparently left while waiting for Mr. Karas to get money in the main house. Given all, any rational trier of fact could find the essential elements of first degree burglary beyond a reasonable doubt.
B. Joinder
The issue is whether the trial court erred in joining cause numbers 04-1-00767-7 and 04-1-00776-6 for trial. Mr. Dorfman contends he was prejudiced by the joinder because the charges were unrelated. In response, the State argues this issue is waived because Mr. Dorfman did not object below.
We have discretion to review an issue raised for the first time on appeal if it involves a "manifest error affecting a constitutional right." RAP 2.5(a). The joinder of offenses is not of constitutional magnitude. See State v. Young, 87 Wn.2d 129, 132, 550 P.2d 1 (1976) (an appellate court is not in a position to review whether cases should have been tried separately when the issue was not raised below). "The appellate courts will not sanction a party's failure to point out at trial an error which the trial court, if given the opportunity, might have been able to correct to avoid an appeal and a consequent new trial." State v. Scott, 110 Wn.2d 682, 685, 757 P.2d 492 (1988).
Even so, Mr. Dorfman has additionally failed to establish an abuse of discretion. A trial court's decision to join matters for trial is reviewed for an abuse of discretion. State v. Bythrow, 114 Wn.2d 713, 717, 790 P.2d 154 (1990). A defendant must be able to point to specific prejudice in opposing joinder. Id. at 718. Under CrR 4.3, offenses may be joined for trial if two or more offenses: "(1) Are of the same or similar character, even if not part of a single scheme or plan; or (2) Are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan." Joinder, however, may not be used if it is unduly prejudicial to the defendant. State v. Russell, 125 Wn.2d 24, 62, 882 P.2d 747 (1994).
Mr. Dorfman was identified as a suspect for the November 17 occurrence. He was later identified using a stolen gas card belonging to Mr. Karas' father. When he was captured, he was arrested and searched. The gas card, drug paraphernalia, and an illegal knife were found on Mr. Dorfman. Mr. Dorfman engaged in a series of acts connected together. The crimes were related. The court properly joined the cases.
C. Evidentiary Rulings
The issue is whether the testimony regarding Mr. Dorfman's and his stepson's prior bad acts should have been excluded. Mr. Dorfman contends the court improperly allowed irrelevant testimony regarding Mr. Dorfman's bad checks, non-payment of his motel bill, restraining order violation, and his stepson's improper gas card usage.
We review the trial court's evidentiary rulings for abuse of discretion. State v. Pirtle, 127 Wn.2d 628, 648, 904 P.2d 245 (1995). A trial court abuses its discretion when its "`decision is manifestly unreasonable, or is exercised on untenable grounds or for untenable reasons.'" State v. Michielli, 132 Wn.2d 229, 240, 937 P.2d 587 (1997) (quoting State v. Blackwell, 120 Wn.2d 822, 830, 845 P.2d 1017 (1993)).
Evidence is relevant if it has any tendency to make any consequential fact more or less likely than without the evidence. ER 401. Relevant evidence is admissible unless its probative value is outweighed by prejudice or has a tendency to confuse the issues, mislead the jury, cause undue delay, or is an unnecessary presentation of cumulative evidence. ER 403. "The long-standing rule in this state is that a criminal defendant who places his character in issue by testifying as to his own past good behavior may be cross-examined as to specific acts of misconduct unrelated to the crime charged." State v. Brush, 32 Wn. App. 445, 448, 648 P.2d 897 (1982).
Ms. Dorfman testified to her husband's good character and their lack of financial trouble. The court then allowed rebuttal evidence by Ms. Taylor and Ms. Garza that Mr. Dorfman wrote bad checks and did not pay his motel bill. Since the defense opened the door, the trial court had a tenable basis to allow the rebuttal evidence. The defense did not object to the restraining order testimony. Specific objection at trial is required to preserve an evidentiary issue for appellate review. State v. Perez-Cervantes, 141 Wn.2d 468, 482, 6 P.3d 1160 (2000). Lastly, regarding the stepson's unauthorized use of the gas card, this testimony was relevant because it related to the second degree possession of stolen property charge. The trial court did not abuse its discretion.
D. Sentencing
Initially, we accept the State's concession that the second degree assault merged with the attempted robbery conviction and do not reach double jeopardy. We analyze merger issues as questions of law, reviewed de novo. State v. Zumwalt, 119 Wn. App. 126, 129, 82 P.3d 672 (2003), aff'd sub nom. State v. Freeman, 153 Wn.2d 765, 108 P.3d 753 (2005). Freeman well illustrates the merger doctrine application here. Remand is required to correct Mr. Dorfman's judgment and sentence. Because Mr. Dorfman's offender score was well above 9 on all offenses, and the sentences were concurrent, no reversible error occurred.
The next issue is whether Mr. Dorfman's sentence should be reversed because he was sentenced 75 days after conviction, outside the statutory 40-day requirement.
RCW 9.94A.500(1) provides a "sentencing hearing shall be held within forty court days following conviction." Upon motion by either party for good cause, however, a trial court may extend the sentencing time period. A court has broad discretion in determining if there is good cause to postpone sentencing. State v. Roberts, 77 Wn. App. 678, 684-85, 894 P.2d 1340 (1995). Additionally, it may extend the sentencing determination on its own motion.
"[R]eversal of sentence is not an automatic remedy" for a violation of the 40-day time limit. State v. Anderson, 92 Wn. App. 54, 60, 960 P.2d 975 (1998). Rather, a defendant must show he has been prejudiced by a violation of the statute. Id. at 60-61.
The delay in Mr. Dorfman's sentencing was due to motions for good cause to obtain his California criminal history. The prosecutor notified the court after conviction that the process in obtaining Mr. Dorfman's criminal record may be time consuming. Mr. Dorfman fails to show how he was prejudiced by the delay. Accordingly, Mr. Dorfman's statutory right to timely sentencing was not violated.
Next, Mr. Dorfman contends the trial court miscalculated his offender score. He argues the sentencing court lacked the proper supporting evidence to count several of Mr. Dorfman's juvenile offenses from California and the court improperly counted previous concurrent convictions as separate offenses. This last argument lacks legal analysis and is considered abandoned. Even so, we review offender score calculations de novo. State v. Tili, 148 Wn.2d 350, 358, 60 P.3d 1192 (2003).
In State v. Ammons, 105 Wn.2d 175, 186, 713 P.2d 719 (1986), our Supreme Court held the use of a prior conviction as a basis for sentencing under the SRA is constitutionally permissible if the State proves the existence of the prior conviction by a preponderance of the evidence. A certified copy of the judgment and sentence is the best evidence of a prior conviction. State v. Cabrera, 73 Wn. App. 165, 168, 868 P.2d 179 (1994). If the State cannot obtain a certified copy of the judgment and sentence, it may also introduce other comparable documents of record or transcripts of prior proceedings to establish criminal history. Id.
Here, the State offered a certified printout from the California Youth Authority showing four delinquency court juvenile felonies and one juvenile misdemeanor. The certified copies satisfy the State's preponderance burden as contemplated in Ammons. The prosecutor explained three juvenile courts exist in California — delinquency, truancy, and traffic — criminal matters were handled in delinquency court.
E. Counsel Assistance
The issue is whether Mr. Dorfman was denied a fair trial based on ineffective assistance of counsel. Mr. Dorfman contends defense counsel was deficient because he did not request merger of the second degree assault and attempted first degree robbery counts, he failed to object to the joinder of the two cases, and he did not object to the State's rebuttal evidence. Pro se, Mr. Dorfman contends defense counsel was not qualified to try class A felonies.
A criminal defendant is constitutionally entitled to effective assistance of counsel. U.S. Const. amend. VI; Wash. Const. art. I, § 22 (amend. 10); Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To reverse on this ground, a defendant bears the burden of showing his attorney's performance fell below an objective standard of reasonableness and the deficiency prejudiced him. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). We strongly presume adequate performance. Id. at 335. Competency is not measured by the result. State v. Early, 70 Wn. App. 452, 461, 853 P.2d 964 (1993). The defendant is required to demonstrate from the record the absence of legitimate strategic or tactical reasons to support counsel's challenged conduct. McFarland, 127 Wn.2d at 336.
Here, the record shows defense counsel convinced the sentencing court that the attempted robbery, burglary, and assault charges "encompass." Further, counsel repeatedly, and often successfully, objected to testimony from the State's rebuttal witnesses. As explained above, an objection to joinder would likely have been fruitless.
Given all, counsel's performance was not deficient. His decisions can be considered tactical and thus, legitimate. Mr. Dorfman was acquitted on one charge. Moreover, Mr. Dorfman fails to show how any of his alleged errors prejudiced him.
Lastly, Mr. Dorfman, pro se, generally asserts, without explanation, that defense counsel was unqualified to try class A felonies. No specific standards exist for trying felonies except in death penalty cases. Otherwise, an active bar member is considered qualified to handle all levels of defense work. Again, no specific prejudice is shown.
F. Additional Grounds
In Mr. Dorfman's pro se additional grounds for review, he presents 13 concerns why his convictions and/or sentences should be reversed. Most concerns are analyzed above. Remaining are: (a) if the trial judge should have recused himself; (b) if the court should have only imposed one sentence because his cases were joined; (c) whether the court improperly permitted the State to amend the information to include attempted first degree robbery; (d) if Mr. Dorfman was denied a fair trial based on prosecutorial misconduct; (e) if jury instructions Nos. 13 and 14 improperly instructed the jury regarding attempted first degree robbery; and (f) if the court incorrectly classified the attempted robbery conviction as a class A felony.
Recusal. Mr. Dorfman argues for the first time on appeal that the trial judge should have recused himself because he already exercised discretion before trial. Generally, "[a] litigant who proceeds to a trial or hearing before a judge despite knowing of a reason for potential disqualification of the judge waives the objection and cannot challenge the court's qualifications on appeal." Buckley v. Snapper Power Equip. Co., 61 Wn. App. 932, 939, 813 P.2d 125 (1991). The State unsuccessfully requested recusal. Mr. Dorfman has waived his objection.
Amendment. Next, Mr. Dorfman argues the State improperly amended the information in cause no. 04-1-00-776-6 to add attempted first degree robbery approximately two weeks before trial. We review for abuse of discretion. State v. James, 108 Wn.2d 483, 490, 739 P.2d 699 (1987).
CrR 2.1(d) provides that the court may permit an information "to be amended at any time before verdict or finding if substantial rights of the defendant are not prejudiced." The defendant has the burden of showing prejudice. State v. Brown, 74 Wn.2d 799, 801, 447 P.2d 82 (1968). The fact that the defendant did not request a continuance is persuasive of lack of surprise and prejudice. Id. at 801.
Here, the defense had time to prepare for the new charge. Counsel cross-examined the State's witnesses and presented his own witnesses, enabling counsel to present his theories to the jury. No prejudice is shown. The trial court did not err.
Misconduct. When prosecutorial misconduct is alleged, "the defendant bears the burden of establishing that the conduct complained of was both improper and prejudicial." State v. Stenson, 132 Wn.2d 668, 718, 940 P.2d 1239 (1997). If misconduct is shown, it will not constitute prejudicial error unless the appellate court determines there is a substantial likelihood the misconduct affected the jury's verdict. State v. Brett, 126 Wn. 2d 136, 175, 892 P.2d 29 (1995).
Mr. Dorfman first argues the prosecutor violated CrR 4.7 in failing to disclose a witness' juvenile conviction for third degree theft. CrR 4.7(a)(1)(vi) requires the prosecutor to disclose to the defendant "any record or prior criminal convictions known to the prosecuting attorney . . . of persons whom the prosecuting attorney intends to call as witnesses at the hearing or trial." This argument was rejected below because the court reasoned it would not have allowed evidence of the witness' prior conviction at trial. Thus, no prejudice is shown.
Without authority or reasoned argument, Mr. Dorfman next seems to argue that prosecutors cannot collaborate or substitute on criminal matters. Multiple prosecutors often work on State cases. Further, Mr. Dorfman fails to show prejudice.
Lastly, Mr. Dorfman argues the prosecutor improperly stated at sentencing that a petition to unseal Mr. Dorfman's juvenile records had been granted by a California court. But, this statement was immediately corrected by defense counsel. Mr. Dorfman fails to show how this corrected misstatement affected his sentence.
Instruction. Mr. Dorfman asserts "two convict" Jury Instructions no. 13 and no. 14 in cause no. 04-1-00-776-6 should not have been given because just one charge existed. But because separate charges were concerned, first degree robbery and the attempt, no error is shown.
Felony Class. Mr. Dorfman correctly argues the attempted first degree robbery is incorrectly shown as a class A felony, not a class B felony. RCW 9A.28.020(3)(b). The maximum sentence on a class B felony is 10 years. RCW 9A.20.021(1)(b). The judgment and sentence should be corrected to show the proper classification.
Mr. Dorfman argues the community placement portion of his sentence for attempted robbery is in error because it extends his sentence beyond the maximum 10 years. He overlooks the same concurrent term for community placement was imposed on the first degree burglary conviction, which is a class A felony and carries a maximum of life. There is no prejudicial error in sentencing him to concurrent community placement on both the attempted robbery and burglary convictions.
Consecutive Sentences. Lastly, Mr. Dorfman argues solely one sentence is proper since the cases were joined. Joinder does merge the charges. The convictions under the two cause numbers are separate.
G. Personal Restraint Petitions
The first issue presented in Mr. Dorfman's consolidated PRPs is whether the charge of attempted first degree robbery is a chargeable crime. He contends the charge should have been "criminal attempt" because the crime "attempted first degree robbery" is not listed in the Revised Code of Washington (RCW).
Attempt is charged when the State determines a defendant has taken a substantial step toward the commission of a crime. RCW 9A.28.020(1). This statute, combined with the statute of the crime attempted, defines the chargeable crime. The legislature is not required to specify each attempted crime. Accordingly, no error is shown in charging Mr. Dorfman with attempted first degree robbery even though that specific crime is not listed in the RCWs.
Mr. Dorfman's remaining PRP concerns raise the issues analyzed on direct appeal through appellate counsel and through Mr. Dorfman in his statement of additional grounds for review. "[W]e ordinarily will not review issues previously raised and resolved on direct review." In re Pers. Restraint of Gentry, 137 Wn.2d 378, 388, 972 P.2d 1250 (1999). "We take seriously the view that a collateral attack by PRP on a criminal conviction and sentence should not simply be reiteration of issues finally resolved at trial and direct review, but rather should raise new points of fact and law that were not or could not have been raised in the principal action." Id. at 388-89.
The issues raised in Mr. Dorfman's PRPs have been reviewed and decided adversely to him above. Accordingly, no basis exists to grant Mr. Dorfman's PRPs. Furthermore, he has failed to show the necessary prejudice. See In re PRP of Lord, 123 Wn.2d 296, 303, 868 P.2d 835 (1994) ("To obtain relief with respect to either constitutional or nonconstitutional claims, the petitioner must show that he was actually and substantially prejudiced by the error."). Mr. Dorfman's PRPs are denied.
Affirmed, but remanded for proceedings consistent with this opinion.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SCHULTHEIS, A.C.J. and KATO, J., concur.