Opinion
No. 36639-8-II.
March 31, 2009.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-1-02286-8, Frederick W Fleming, J., entered July 20, 2007.
Affirmed in part and remanded by unpublished opinion per Van Deren, C.J., concurred in by Houghton and Hunt, JJ.
UNPUBLISHED OPINION
Van Deren, C.J. — Larry Allen Day argues that the evidence was insufficient to (1) convict him of attempted second degree assault, (2) establish that the attempted second degree assault was a crime of domestic violence, and (3) establish that the reckless burning was a crime of domestic violence. He also argues that (4) his sentence was clearly excessive, (5) the trial court violated his due process rights, (6) the trial court improperly entered a lifetime no-contact order, (7) his counsel was ineffective, and (8) the police violated his Fourth Amendment rights against unreasonable search and seizure. We affirm his convictions but remand to correct a clerical error and the community custody term.
FACTS
On May 19, 2006, shortly before 1:00 am, a Bonney Lake homeowner called police to report a suspicious vehicle. She reported seeing a small, older vehicle drive into a cul-de-sac with its headlights off. The car then proceeded down an overgrown path near the caller's house. When Sergeant Thomas Longtine and Officer Anthony Rice of the Bonney Lake Police Department investigated, they found a shotgun leaning against a bush along the overgrown path. Scott and Melissa Cleary and Melissa's mother, Elizabeth Johnson — who was staying with them at the time, lived in the house next to the bushes. Elizabeth Johnson and Day were married and had lived together for approximately 25 years until their recent separation. Johnson's personal belongings remained at the Johnson-Day house.
Because Scott and Melissa Cleary share the same last name, we refer to them by their first names. We mean no disrespect.
The officers asked Scott if he knew who would put a shotgun outside his home. Scott explained that the family had been having problems with Day and a protection order had been issued against Day to protect Johnson. The Clearys had even gone out of town with Johnson because they were concerned for their well-being. Longtine confirmed that Day was served with the protection order the prior day, May 18, 2006. The order related to a domestic violence incident between Day and Johnson that occurred on May 9, 2006.
Longtine and Rice, along with Bonney Lake Police Department Officers Ryan Boyle and Todd Morrow, went to the Johnson-Day house where they found an older, smaller Honda Prelude that matched the description of the vehicle seen by the Clearys' neighbor. The vehicle was parked under a carport awning and its hood was still warm to the touch. The officers knocked on the front door but received no response. Longtine opened the door and called in, seeking a response from Day. He immediately smelled the odor of petroleum products. The house had been ransacked; furniture and other items were piled together in the middle of the living room and covered in what appeared to be gasoline or motor oil. A garden sprayer filled with liquid that smelled like gasoline sat inside the entrance to the house. As the officers searched the house for Day, they found the entire house in disarray.
After leaving the house, the officers searched a garage and shed on the property. The garage smelled the same as the house and gasoline and motor oil covered piles of books, clothing, and other items. The officers found a loaded shotgun and two loaded rifles in the garage. While the officers searched the property, Day made two telephone calls to Johnson. Johnson let the calls go through to her voicemail; Day's messages said "that he had destroyed all of [Johnson's] memories." Report of Proceedings (RP) at 546.
Concerned about the danger the petroleum and oil posed, the officers called the fire department to come and ventilate the property. But just as the fire department arrived, the house ignited. East Pierce County Fire and Rescue Deputy Chief John McDonald testified that accelerants had been used and that the fire was started by a lighter and a flammable liquid and this evidence "was consistent with statements by []Day that he started the fire." RP at 441. The accelerants made the fire more dangerous than normal.
Police found Day outside the burned house with two cable ties around his neck. The officers informed Day of his Miranda rights and then questioned him. He admitted to driving to the Clearys' house and leaving the shotgun in the bushes. According to Day, he had planned to approach Johnson with the shotgun shortly before dawn when she would regularly go outside the Clearys' house to smoke a cigarette. He planned "to use the shotgun to get his wife's attention." RP at 685. He believed she would stay and listen to him if he pointed the shotgun at her. Day, however, could not explain why the shotgun was loaded.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Day also admitted to returning on foot to the Clearys' house after leaving his car at his house. But when he returned, he "found that the shotgun was gone, and that the police were there." RP at 686. Day told officers that, at that point, "he knew he was [discover]ed and . . . might as well make fireworks." RP at 687.
Longtine asked Day if he had gone back into the Johnson-Day house and started the fire after the officers had searched it. Day nodded affirmatively. He said that he "snapped" when he received the protection order. "There was no way he was going to be kicked to the curb after being with Johnson for 25 years." RP at 683.
After he was served with the protection order, Day piled all of Johnson's "personal belongings and stuff that was important to her," including her family heirlooms, "in a pile in the living room." RP at 684. He dropped off his shotgun at the Clearys' house. When he realized the shotgun was gone, he returned to the Johnson-Day house, spread a large quantity of gas and oil throughout the house, and, after seeing the police inspect the property, he lit the house on fire with a barbecue lighter. He said that he smelled like gas because he had "dumped five gallons of gas in the damn house." RP at 633. When asked why he had done these things, Day replied that he "did not want [Johnson] to have anything so she was not going to get it." RP at 634.
After starting the fire, Day left the house and stretched out on the ground to watch the house burn. While watching the fire, Day called Johnson again. He told her that he was "watching the house go up in flames." RP at 689. Police found a lighter, minicassette recorder, cellular telephone, and shotgun shells in Day's possession. Day's truck, loaded with furniture, was at his neighbor's house.
The Clearys went to the house to salvage Johnson's possessions once the fire department extinguished the flames. Scott noted that there were several missing items, including Johnson's computer, digital versatile discs, and televisions. They could not find Day's generators, fishing equipment, tools, or other personal items. Melissa found only one or two of her mother's collectible dolls.
The State charged Day with three counts of attempted first degree murder (counts I-III), one count of first degree arson (count IV), one count of second degree attempted assault (count V), and charged firearm enhancements on the attempted murder counts and attempted assault count. The State amended the charges later to add domestic violence as an aggravating circumstance to all five counts and to add one count of violation of a protection order (count VI).
Day moved to suppress testimonial and physical evidence resulting from the police search of his house, clothing, and car because, he argued, it constituted "fruit of the poisonous tree." Clerk's Papers (CP) at 18. The trial court suppressed the contents of the minicassette recorder found on Day but not the contents of the minicassettes found in his car or the loaded firearms police found in the garage. The State amended the charges a second time to remove the domestic violence enhancements from the two attempted murder counts involving the Clearys and to correct the domestic violence aggravating circumstances language. After the jury trial began, the State filed another amended information which the trial court rejected as prejudicial to Day. Day unsuccessfully moved to have the domestic violence aggravating circumstances enhancements dismissed at the close of the State's case.
The jury found Day not guilty on all three counts of attempted murder, attempted second degree murder, and first degree arson. It found him guilty of the lesser included crime of first degree reckless burning and second degree attempted assault while armed with a firearm. The jury returned special verdicts that the reckless burning and attempted assault were crimes of domestic violence. Finally, the jury found Day guilty of violating the protection order.
The standard range sentences, based on Day's offender score of 1, were up to 90 days on the reckless burning charge and between four and one half and nine months on the attempted assault charge, plus 18 months flat time for the firearm enhancement; the violation of the protection order was a gross misdemeanor with a maximum sentence of one year. The statutory maximum on each felony count was five years. The trial court sentenced Day to five years on the reckless burning charge and five years on the attempted assault charge, with the sentences to run consecutively. The court ran the sentence on the protection order conviction concurrently with the felony counts. The trial court ordered that Day was to have no contact with Elizabeth Johnson, Scott Cleary, Melissa Cleary, or Johnson's other family members — Sean Snyder and Tiffany White — for the rest of his life.
Day appeals.
ANALYSIS
I. Sufficiency of Evidence
Day argues that the evidence is insufficient to (1) convict him of attempted second degree assault, (2) establish that the attempted second degree assault was a crime of domestic violence, and (3) establish that the reckless burning was a crime of domestic violence. We disagree.
"Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt." State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004). A party claiming insufficiency of the evidence "`admits the truth of the State's evidence' and all reasonable inferences." State v. Brown, 162 Wn.2d 422, 428, 173 P.3d 245 (2007) (quoting State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)). We view both circumstantial and direct evidence as equally reliable and we "defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence." Thomas, 150 Wn.2d at 874-75.
A. Attempted Second Degree Assault
Day first contends that his conviction for attempted second degree assault must be reversed because sufficient evidence does not support it. Specifically, he argues that the act of placing the shotgun next to the Clearys' residence does not constitute a "substantial step" towards committing the assault because it is "mere preparation to commit the crime." Br. of Appellant at 12.
Second degree assault is the act of intentionally assaulting another person and recklessly inflicting substantial bodily harm or assaulting another with a deadly weapon, not amounting to first degree assault. See former RCW 9A.36.021(1)(a), (c) (2006). A "[d]eadly weapon . . . is any weapon, device, instrument, article, or substance[that] is used, attempted to be used, or threatened to be used[that] is "readily capable of causing death or substantial bodily harm." RCW 9A.04.110(6).
"A person is guilty of an attempt to commit a crime if, with intent to commit a specific crime, he or she does any act which is a substantial step toward the commission of that crime." RCW 9A.28.020(1). Criminal intent "may be inferred from all the facts and circumstances." State v. Bencivenga, 137 Wn.2d 703, 709, 974 P.2d 832 (1999). "A `substantial step' is conduct strongly corroborative of the actor's criminal purpose." In re Pers. Restraint of Borrero, 161 Wn.2d 532, 539, 167 P.3d 1106 (2007), cert. denied ___ U.S. ___, 128 S. Ct. 1098, 169 L. Ed. 2d 832 (2008) (internal quotation marks omitted) (quoting State v. Townsend, 147 Wn.2d 666, 679, 57 P.3d 255 (2002)). It must be more than mere preparation to commit a crime. Townsend, 147 Wn.2d at 679. But "[a]ny slight act done in furtherance of a crime constitutes an attempt if it clearly shows the design of the individual to commit the crime." State v. Price, 103 Wn. App. 845, 852, 14 P.3d 841 (2000). "[A]n attempt conviction does not depend on the ultimate harm that results or on whether the crime was actually completed." State v. Luther, 157 Wn.2d 63, 73, 134 P.3d 205 (2006).
Here, when viewed in the light most favorable to the State, Day took a "substantial step" toward assaulting Johnson by traveling to her home with a loaded shotgun. First, Day approached the house in a stealthy manner, obviously intending to conceal his approach by driving with his headlights off on an overgrown path. He then left the loaded shotgun in the bushes where he could retrieve it later to confront his wife He returned on foot to wait for his opportunity to take up the shotgun and confront his wife but he found that police had already arrived and foiled his plan.
Day argues that, because he did not have the opportunity to aim the gun at his wife, his act of placing the gun near the house was "mere preparation" for a later assault, rather than a "substantial step" toward an assault. Therefore, the central question is whether surreptitiously placing the shotgun where he intended to use it to confront his wife and returning to the scene with that same intention is a direct but ineffectual act done toward commission of the crime or otherwise "conduct strongly corroborative of the actor's criminal purpose." Borrero, 161 Wn.2d at 539. In our view, it is.
Neither of the parties could point to factually similar cases, but we hold that if a person admittedly travels to the home of an intended victim planning to point a loaded shotgun at her several hours later, places the gun where he intends to retrieve it to carry out the confrontation, and then returns with that purpose in mind, it is strongly corroborative of the actor's criminal purpose. The earlier acts of loading the shotgun, driving to the intended victim's house under cover of darkness with headlights extinguished, and driving down a neglected path to the hiding place may count as mere preparation to commit a crime. But exiting the car with the loaded shotgun, placing it near the intended victim's house, and returning shortly thereafter to carry out the planned confrontation are strongly corroborative of Day's intended purpose. That police foiled his plan does not render his actions mere preparation. The jury, therefore, had sufficient evidence to convict Day of attempted second degree assault.
B. Crime of Domestic Violence
Day argues that the evidence was insufficient to prove that he committed domestic violence against Johnson. The jury found that Day's attempted second degree assault and reckless burning were crimes of domestic violence. Day disputes whether the State presented sufficient evidence to establish these findings.
For a court to impose a sentence above the standard range, a jury must consider whether aggravating circumstances existed, including domestic violence. RCW 9.94A.535(3)(h). "Domestic violence" means crimes "committed by one family or household member against another." RCW 10.99.020(5). For domestic violence to be an aggravating circumstance, a jury must find that at least one of three circumstances was involved in a crime, two of which are relevant here: (1) that "[t]he offense was part of an ongoing pattern of psychological, physical, or sexual abuse of the victim manifested by multiple incidents over a prolonged period of time" or (2) that the defendant's "conduct during the commission of the current offense manifested deliberate cruelty or intimidation of the victim." RCW 9.94A.535(3)(h)(i), (iii).
1. Attempted Second Degree Assault
Day argues that the evidence did not meet the legal definition of a "pattern of abuse," as set forth in State v. Barnett, on his attempted assault conviction. Barnett states that a "`pattern of abuse' requires multiple incidents over a substantial period of time — more than two weeks." 104 Wn. App. 191, 203, 16 P.3d 74 (2001) (citation omitted). Day argues that there must be consistency to the defendant's abuse, in addition to a prolonged period of time, to constitute a pattern of abuse. But neither statutory language nor case law requires consistency of the abuse, only that the defendant must engage in "multiple incidents over a prolonged period of time." RCW 9.94A.535(3)(h), (i). Before finding a "pattern" over a "prolonged period," Barnett only required that abuse occur for longer than two weeks. 104 Wn. App. at 203.
In State v. Atkinson, 113 Wn. App. 661, 672, 54 P.3d 702 (2002), Division Three of this court held that three incidents of abuse "for a period of of 7 to 10 months" constituted a pattern over a prolonged period justifying an exceptional sentence but it did not state that consistency of the abuse must be proven. Division Three also upheld an exceptional sentence in State v. Bell, 116 Wn. App. 678, 684, 67 P.3d 527 (2003), because the defendant abused his girlfriend over a period of as many as 10 months. Again, there was no requirement that the defendant's abuse be constant or occur regularly during that time period. See Bell, 116 Wn. App. at 684.
Here, Johnson testified that Day first began abusing her in 1995. At the time, Day grew angry at Johnson's daughter for failing to promptly shut off an alarm clock. Day became intoxicated and started waving a handgun around, threatening to kill himself. After Day passed out, Johnson took the gun to a neighbor's house. When Day awoke, he was angry and pinned Johnson to the floor. For a time, Day refused to release her and Johnson feared for her safety.
Johnson also testified that in April 2006 she was diagnosed with breast cancer. The diagnosis made her realize that she did not want to spend the rest of her life "fighting and arguing" with Day. RP at 523. Following Johnson's diagnosis, Day did not support her and often became angry because he believed she was keeping secrets from him about her prognosis. She felt she had to turn to other family members for support.
On May 9, 2006, Day again accused Johnson of keeping secrets about her breast cancer. He also accused her of an unwillingness to help him mend his relationship with his step-daughter and her husband. Specifically, Day was angry that he was not invited on a Mother's Day trip with them. After arguing for over an hour, Johnson decided not to go on the trip and left the room to call her daughter. Day would not let her place the call.
A short time later, she walked into the bathroom, still holding the telephone. While she was in the bathroom, Day "barged in and told [her] that he wasn't going to go to jail and to give him the telephone[because she] wasn't going to call anybody." RP at 536. When she refused, he grabbed her by her throat, threw the telephone out of the bathroom, and kicked the door shut. He screamed that he would kill her and her girls. She escaped but Day grabbed her by the throat again and slammed her into the towel bar, still screaming that he was going to kill her. Day finally released her and she promised that she would not leave him or tell anyone what had happened. She suffered bruises and swelling from the attack. Johnson stated that she was afraid for her life and the lives of her daughters. The next morning she dressed for work, left the house, and moved in with her daughter. She did not take anything from the house with her.
The third incident of domestic violence involved the incident of May 19, 2006, that led to Day's arrest and the present appeal.
When considering only the evidence of abuse in 1995 and the violent incidents in May 2006 in the light most favorable to the State, the jury had sufficient evidence to find multiple incidents of domestic abuse spanning years. This evidence was sufficient to support the jury's finding that Day was a controlling, violent man within the domestic sphere and that Johnson was his repeated victim under RCW 9.94A.535(3)(h)(i).
Day nevertheless argues that the evidence was insufficient to also show that his attempted second degree assault was a crime committed with "manifested deliberate cruelty or intimidation of the victim" under RCW 9.94A.535(3)(h)(iii). Day argues that the statute's wording cannot be reconciled with an inchoate assault conviction because the victim did not actually suffer any pain. But the jury need only find one applicable circumstance to warrant an exceptional sentence for the attempted second degree assault and we need not review whether it also had sufficient evidence to find deliberate cruelty to support the second degree assault conviction. RCW 9.94A.535(3)(h).
2. Reckless Burning
Day also contends that the record does not support a finding that, in burning Johnson's possessions and their house — the basis of the reckless burning conviction, he exhibited deliberate cruelty because "Johnson was not present when the house was burned and her property would have been burned if the house caught on fire regardless of the manner in which the house was set on fire." Br. of Appellant at 24.
A jury may find a domestic violence aggravator if the defendant's "conduct during the commission of the current offense manifested deliberate cruelty or intimidation of the victim." RCW 9.94A.535(3)(h)(iii). Deliberate cruelty is "`gratuitous violence, or other conduct which inflicts physical, psychological, or emotional pain as an end in itself.'" State v. Copeland, 130 Wn.2d 244, 296, 922 P.2d 1304 (1996) (quoting State v. Scott, 72 Wn. App. 207, 214, 866 P.2d 1258 (1993)). "The conduct must be significantly more serious or egregious than typical in order to support an exceptional sentence. It must involve cruelty of a kind not usually associated with the commission of the offense in question." State v. Faagata, 147 Wn. App. 236, 249, 193 P.3d 1132 (2008) (citations omitted).
In State v. Goodman, 108 Wn. App. 355, 364, 30 P.3d 516 (2001) we held there was sufficient evidence that the defendant's arson manifested deliberately cruelty or intimidation of the victim. Goodman not only burned down the house he shared with his wife but he also purposefully killed her dog in the process. We concluded that "Goodman did more than destroy community property. Intending to cause emotional harm, he destroyed her home and killed her pet." Goodman, 108 Wn. App. at 361.
In State v. Pockert, 53 Wn. App. 491, 493, 768 P.2d 504 (1989), Division Three reversed an exceptional sentence imposed on a defendant who burned his ex-girlfriend's house shortly after they separated. Although the trial court found he manifested deliberate cruelty in part because he was "extremely agitated because of the breakup of the relationship and was getting even with [the victim]," Pockert, 53 Wn. App. at 497 (internal quotation marks omitted), Division Three held that Pockert's vengefulness was not deliberately cruel, given that arson has an element of malice covering "`an evil intent, wish, or design to vex, annoy, or injure another person.'" Pockert, 53 Wn. App. at 497 (quoting RCW 9A.04.110(12)). We distinguish this case from Pockert because Day deliberately destroyed Johnson's precious heirlooms and possessions as well as the house he knew she cherished. He then called her to gloat about his destruction of her home and possessions as the house burned beyond salvage. This conduct was clearly intended to inflict psychological and emotional pain on Johnson.
Here, Day's conduct is akin to Goodman's. Before setting ablaze the house he and Johnson had shared, he removed some expensive items belonging to them both and most of his own possessions. He then ransacked the house, moving from room to room. He piled up her personal belongings, furniture, and family heirlooms which included: a doll collection, bell collection, and Johnson's mother's china and silver and covered them with petroleum products to ensure their destruction. Although Day did not kill any pets, as in Goodman, after Day set fire to the house, he reclined in the yard to watch the blaze and called Johnson several times to gloat that he had destroyed all of her memories. At trial, she testified that she had spent years improving that house. Her son-in-law had even laid tile in the entryway as a Mother's Day present. She treasured that house and Day destroyed it for that very reason.
We hold that this evidence is sufficient for a jury to find that Day manifested deliberate cruelty toward Johnson in burning her prized possessions with the intent to purposely deprive her of her memories as well as those possessions.
II. Exceptional Sentence
Day challenges his exceptional sentence of 120 months. He contends that the evidence does "not support the findings of fact used to justify [his] exceptional sentence." Br. of Appellant at 26. He further contends that no factual finding "constituted a substantial and compelling reason to depart from the standard range sentence" as a matter of law. Br. of Appellant at 27. He argues that "[t]he trial court abused its discretion by relying on an aggravating factor not supported by the facts"; therefore, he argues, the sentence imposed was clearly excessive and shocks the conscience. Br. of Appellant at 27.
When we review an exceptional sentence under the Sentencing Reform Act of 1981 [], ch[apter] 9.94A RCW, we ask (1) are the sentencing court's reasons for an exceptional sentence supported by the record, (2) do those reasons justify a sentence outside the standard range, and (3) was the sentence clearly excessive? We apply a clearly erroneous standard to the first question[relating to the] sentencing court's reasons; a de novo standard to the second[query of whether the trial court's reason] justif[ies] a sentence outside the standard range; and an abuse of discretion standard to the third[issue of whether the sentence was] clearly excessive.
RCW 9.94A.585(4) 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 court are not supported by the record which was before the judge or that those reasons do not justify a sentence outside the standard range for that offense; or (b) that the sentence imposed was clearly excessive or clearly too lenient.
RCW 9.94A.585(4) 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 court are not supported by the record which was before the judge or that those reasons do not justify a sentence outside the standard range for that offense; or (b) that the sentence imposed was clearly excessive or clearly too lenient.
State v. Kolesnik, 146 Wn. App. 790, 802-03, 192 P.3d 937 (2008) (citations omitted).
A. Sufficient Facts Support Findings of Fact Justifying an Exceptional Sentence
Day argues, and the State agrees, that the findings of fact are erroneous in stating that the jury convicted him of a firearm enhancement on the reckless burning charge. Day contends that the facts do not support this finding and, therefore, cannot justify an exceptional sentence. But the State argues that this mistake was merely a scrivener's error that the trial court did not consider during the sentencing.
To determine whether there is a clerical error under CrR 7.8, we look at
"whether the judgment, as amended, embodies the trial court's intention as expressed in the record at trial." Presidential [ Estates Apartment Assocs. v. Barrett], 129 Wn.2d [320,] 326[, 917 P.2d 100 (1996)]. If it does, then the amended judgment merely corrects the language to reflect the court's intention or adds the language the court inadvertently omitted. If it does not, then the error is judicial and the court cannot amend the judgment and sentence.
State v. Rooth, 129 Wn. App. 761, 770, 121 P.3d 755 (2005).
In In re Pers. Restraint of Mayer, 128 Wn. App. 694, 700-01, 117 P.3d 353 (2005), Division Three held that an obvious scrivener's error does not render an Alford plea invalid. The remedy in Mayer was to "remand to the trial court for correction of the clerical/scrivener error in the judgment and sentence." 128 Wn. App. at 701.
North Carolina v. Alford, 400 U.S. 25, 36-37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970) ( Alford plea allows the accused to enter a guilty plea to settle a criminal proceeding while denying guilt).
Here, finding of fact IV states, "The jury unanimously found that the defendant was armed with a firearm at the time of the crime [of reckless burning] and answered the domestic violence questions in the affirmative." CP at 551. But after reviewing the specific jury findings, the trial court did not mention this erroneous finding during sentencing. Although the finding is clearly erroneous, it is also clear that the trial court did not rely on it or even consider it before imposing its sentence. We, therefore, remand only to correct this clerical error.
B. Factual Findings Warranted Departure from the Standard Range
Day argues, without citation to authority, that a sentence imposing the statutory maximum of five years for both crimes to be served consecutively was not warranted by the facts because "[t]he only physical harm which came from [] Day's action was purely property damage." Br. of Appellant at 27.
But Day's summary mischaracterizes the facts. The evidence was sufficient to show that Day purposefully, intentionally, and gratuitously inflicted emotional and psychological harm on Johnson, in addition to destroying her possessions, as he carefully selected those possessions she most prized and that had sentimental value to her. He watched the burning and called Johnson to gloat that he was destroying her memories. The jury recognized as much by finding that both the attempted assault and the reckless burning convictions were crimes of domestic violence. Moreover, Day attempted to assault his wife while armed with a shotgun. The trial court "conclude[d] that these aggravating circumstances justif[ied] exceptional sentences above the standard range." CP at 552. The trial court did not err by imposing an exceptional sentence.
C. The Sentence Was Not Clearly Excessive
Day argues that regardless of his "low offender score and the very short standard range sentences, the trial court imposed a total sentence of 10 years. Had the jury not found that the crimes were crimes of domestic violence, the trial court would have lacked a basis to impose both exceptional sentences and consecutive sentences." Br. of Appellant at 28-29 (citation omitted). Day asserts that the trial court must have considered letters from the public requesting a harsh sentence because of the "unusually Draconian sentence," in violation of former RCW 9.94A.537(2) (2006), which requires that facts used to support an exceptional sentence be proven beyond a reasonable doubt. Br. of Appellant at 30. The State argues that the trial court, based on its remarks at sentencing, did not consider any letters but instead it based its sentence on the jury's verdict. We agree with the State.
"The sentencing court may exercise its discretion to determine the precise length of the exceptional sentence appropriate on a determination of substantial and compelling reasons supported by the jury's aggravating factor finding." Kolesnik, 146 Wn. App. at 805. "A `clearly excessive' sentence is one that is clearly unreasonable, ` i.e., exercised on untenable grounds or for untenable reasons, or an action that no reasonable person would have taken.'" Kolesnik, 146 Wn. App. at 805 (internal quotation marks omitted) (quoting State v. Ritchie, 126 Wn.2d 388, 393, 894 P.2d 1308 (1995)). "When a sentencing court does not base its sentence on improper reasons, we will find a sentence excessive only if its length, in light of the record, `shocks the conscience.'" Kolesnik, 146 Wn. App. at 805 (internal quotation marks omitted) (quoting Ritchie, 126 Wn.2d at 396).
Although Day argues that the trial court improperly considered letters from the public, the record does not support this claim. According to the sentencing court:
This decision is going to be made in a detached, unemotional way about what a fair sentence should be under these circumstances.
And I'm going to say I'm not impressed with people trying to tell me something to pressure [this] court one way or another, because in this courtroom it doesn't fly.
RP at 990.
Here, Day brought a loaded shotgun to his step-daughter's house to aim at his estranged wife. When police successfully foiled that plan, he went back to their shared home, where he had dumped petroleum products throughout the house, set the house ablaze, and called her to gloat. On this record, the sentence of five years for each crime, to be served consecutively, is neither unreasonable nor shocking. A sentence of five years for each count is not unconscionable or excessive. Thus, the trial court did not abuse its discretion when it sentenced Day to an exceptional sentence totaling 10 years.
III. Statement of Additional Grounds for Review
A. Due Process Violation
Day argues in his statement of additional grounds for review (SAG), that the trial court denied him due process of law by "giving [r]etroactive application to 1995 amendments of RCW 9.94A.525." SAG (Add. Ground 1) at 1. He argues that the trial court erred by counting his "[w]ashed out" 1995 conviction for fourth degree assault as a point. SAG (Add. Ground 1) at 2.
RAP 10.10.
But Washington courts may consider "washed out" convictions as an aggravating factor when sentencing a defendant. State v. Oksoktaruk, 70 Wn. App. 768, 773-74, 856 P.2d 1099 (1993). As such, his argument is without merit.
B. No-Contact Order
Day next argues the trial court abused its discretion by ordering a no-contact order against Day for the rest of his life. We agree.
A defendant may raise objections to community custody conditions for the first time on appeal. State v. Jones, 118 Wn. App. 199, 204, 76 P.3d 258 (2003). Although we generally review crime-related prohibitions for an abuse of court discretion, "the key question in this case is not whether the trial court abused its discretion in exercising admittedly existing authority, but rather whether the trial court had any authority under the S[entencing]R[eform]A[ct] to impose the no-contact order at issue" and we review the trial court's decision de novo. State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007). A crime-related prohibition, such as a no-contact order, may not exceed the statutory maximum for the underlying offense. Armendariz, 160 Wn.2d at 118-19.
A jury convicted Day of two class C felonies, with domestic violence aggravators, carrying maximum sentences of five years each. RCW 9A.28.020(3)(c); RCW 9A.48.040(2); former RCW 9A.36.021(2)(a) (2006). Therefore, the trial court erred by ordering a lifetime no-contact order against Day under these convictions and we remand to the trial court to amend the community custody provision of Day's judgment and sentence.
C. Ineffective Assistance of Counsel
Day argues that his trial counsel provided ineffective assistance by failing to call a witness who "would have testified to matters having a [c]onnection to and with the consequential facts of the case." SAG (Add. Ground 3) at 1. He contends that this witness would have countered Melissa's testimony that she did not know about Day's guns.
To establish ineffective assistance of counsel, "a defendant must show that counsel's conduct was deficient and that the deficient performance resulted in prejudice." State v. Nichols, 161 Wn.2d 1, 8, 162 P.3d 1122 (2007); Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Counsel's performance is deficient if it falls below an objective standard of reasonableness based on a consideration of all the circumstances. To prove prejudice, a defendant must show that, but for the deficient performance, there is a reasonable probability that the outcome would have differed. We give deference to a trial counsel's performance and begin our analysis with a strong presumption that counsel was effective. Nichols, 161 Wn.2d at 8. Conduct that can be characterized as legitimate strategy or tactics at trial cannot serve as a basis for an ineffective counsel claim. State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002). We review de novo a defendant's claim of ineffective assistance of counsel. State v. Shaver, 116 Wn. App. 375, 382, 65 P.3d 688 (2003).
The Sixth Amendment of the federal constitution and article I, section 22 of the Washington State Constitution both guarantee criminal defendants the right to have assistance of counsel. This right includes the right to effective assistance of counsel. State v. Mierz, 127 Wn.2d 460, 471, 901 P.2d 286 (1995).
Here, Day cannot show ineffective assistance of counsel. His attorney's decision not to call a witness to counter Melissa's testimony was likely a legitimate strategy because it avoided highlighting Day's gun collection. Furthermore, Day's challenge refers to facts outside the record on appeal. We do not review matters for which the record is inadequate. Bich v. Gen. Elec. Co., 27 Wn. App. 25, 34, 614 P.2d 1323 (1980). We note, however, that it is also unlikely that Day can show prejudice. The testimony he hoped to elicit would have had minimal effect on the case because whether Melissa knew of his guns is wholly irrelevant to his criminal charges. Thus, Day's argument fails.
D. Unreasonable Search and Seizure
Finally, Day contends that the weapons found at his house constituted "fruit of the poisonous tree" and that the trial court erred by denying his motion to suppress. Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963) (holding that, under the "fruit of the poisonous tree" doctrine, trial courts must suppress derivative evidence if it was discovered by exploiting an illegal search).
We apply harmless error analysis when the trial court admits evidence that is a product of a warrantless search. See, e.g., State v. Guloy, 104 Wn.2d 412, 426, 705 P.2d 1182 (1985); State v. Garcia, 140 Wn. App. 609, 627, 166 P.3d 848 (2007); State v. Gocken, 71 Wn. App. 267, 279 n. 10, 857 P.2d (1993). Assuming, without holding, that there was error here, we are convinced beyond a reasonable doubt that the trial court's refusal to suppress evidence of the firearms in Day's garage was harmless because the untainted evidence is "so overwhelming that it necessarily leads to a finding of guilt." Guloy, 104 Wn.2d at 426. "Under these circumstances, that evidence was inconsequential." Gocken, 71 Wn. App. at 279 n. 10.
We affirm his convictions but remand for correction of the clerical error in the findings and for correction of the community custody provision for a no-contact order against Day for the rest of his life.
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.
HOUGHTON, J. and HUNT, J., concur.