Opinion
No. 34313-4-II.
May 8, 2007.
Appeal from a judgment of the Superior Court for Mason County, No. 05-1-00374-0, James B. Sawyer II, J., entered January 6, 2006.
Affirmed in part and remanded by unpublished opinion per Penoyar, J., concurred in by Houghton, C.J., and Van Deren, J.
Troy A. Gamber appeals his convictions for indecent exposure with sexual motivation and fourth degree assault with sexual motivation, arguing that (1) there was insufficient evidence to support his indecent exposure conviction; (2) the trial court erred in sentencing him to 60 months, the felony sentence, for indecent exposure; (3) the trial court erred in imposing community custody as a part of Gamber's sentence because he was sentenced to confinement for the statutory maximum sentence for indecent exposure and that the additional community custody term caused his sentence to exceed the statutory maximum; (4) the trial court erred in adding a point to his offender score for committing the crime while being on community placement without a jury finding he was on community placement; and (5) he received ineffective assistance of counsel.
We affirm Gamber's indecent exposure conviction, but remand to the trial court to allow the court to insert language clarifying that Gamber will not serve more than the maximum time allowed by statute.
FACTS
Kelly Lund was employed as a bartender at the Dew Drop Inn. On July 5, 2005, Gamber was a patron at the bar, being served by Lund. Gamber had approximately seven drinks that evening. At one point, Gamber indicated that he "wanted a hug" from Lund. 2 Report of Proceedings (RP) at 31. She reached over the bar, patted Gamber on the back, and he inserted his hands down the back of her pants. Later, after Lund closed the bar, Gamber asked her for another hug. She again patted him on the back and Gamber held onto her arm and attempted to pull her arm toward his "groin area" which was exposed. 2 RP at 32.
Gamber was charged with indecent exposure with sexual motivation (count I), contrary to RCW 9A.88.010, and two counts of fourth degree assault with sexual motivation, contrary to RCW 9A.36.041(1) (counts II and III). He pleaded guilty to count I and a jury convicted him on counts II and III.
He was sentenced to the high end of the standard range for each offense. The court determined that his offender score was 10, which included one point for committing the current offense while on community placement. The judge, not a jury, made the determination that he was on community placement when he committed the crimes. He was sentenced to 60 months for indecent exposure; 0 to 365 days for the fourth degree assault convictions; and 36 to 48 months of community custody for indecent exposure.
ANALYSIS
I. Insufficient Evidence for Indecent Exposure
Gamber asserts there was not sufficient evidence to support his indecent exposure conviction because the State was required to prove beyond a reasonable doubt that Gamber had previously been convicted of a sex offense in order to convict him of felony indecent exposure. Before trial, Gamber signed a stipulation that stated he had previously been convicted of a sex offense but, during trial, he asked to withdraw his name from the stipulation. He argues on appeal that his signature was removed from the stipulation and the stipulation was not valid. He asserts that the State therefore failed to prove a key element of felony indecent exposure. But Gamber pled guilty to the charge waiving the right to challenge his conviction, to argue that the stipulation was invalid, and to argue that insufficient evidence existed to convict him of indecent exposure.
In the plea signed by Gamber, he waived the right to appeal a finding of guilt. The statement reads, "I understand I have the following important rights, and I give them all up by pleading guilty . . . (f) The right to appeal a finding of guilt after a trial." Clerk's Papers (CP) at 19-20. An agreement to waive the right to appeal is a permissible component of a valid plea agreement. State v. Lee, 132 Wn.2d 498, 506, 939 P.2d 1223 (1997). Gamber does not argue that his plea was invalid; he only argues that insufficient evidence supports his conviction for indecent exposure because he removed his signature from the stipulation. He may not make this argument on appeal.
II. Statutory Interpretation of RCW 9A.88.010
Gamber next argues that the trial court erred in sentencing him to 60 months for indecent exposure because indecent exposure is a misdemeanor with a standard range of only 0 to 12 months. Gamber argues that indecent exposure is a felony only if a person under the age of fourteen is involved. The State counters that RCW 9A.88.010(2) allows indecent exposure to be a class C felony if it is committed by an individual with a prior sex offense conviction and that Gamber's 60 month sentence was proper.
Again, under RCW 9A.88.010:
(1) A person is guilty of indecent exposure if he or she intentionally makes any open and obscene exposure of his or her person or the person of another knowing that such conduct is likely to cause reasonable affront or alarm. The act of breastfeeding or expressing breast milk is not indecent exposure.
(2) (a) Except as provided in (b) and (c) of this subsection, indecent exposure is a misdemeanor.
(b) Indecent exposure is a gross misdemeanor on the first offense if the person exposes himself or herself to a person under the age of fourteen years.
(c) Indecent exposure is a class C felony if the person has previously been convicted under this section or of a sex offense as defined in RCW 9.94A.030.
Gamber asserts that subsection (2)(b) and (2)(c) are linked and that both must be satisfied in order for indecent exposure to be a class C felony. Gamber argues that, in order to be convicted and sentenced under RCW 9A.88.010(2)(c), the requirements of subsection (2)(b) must also be met. In other words, Gamber asserts that a victim under the age of fourteen must be involved in order for indecent exposure to be a felony.
We review questions of law, including statutory construction, de novo. Pasco v. Pub. Employment Relations Comm'n, 119 Wn.2d 504, 507, 833 P.2d 381 (1992). We look to the statute's plain language in order to give effect to legislative intent. Lacey Nursing Ctr., Inc. v. Dep't of Revenue, 128 Wn.2d 40, 53, 905 P.2d 338 (1995). If a statute is unambiguous, we derive the legislature's intent from the plain language alone. Waste Mgmt. of Seattle, Inc., v. Util. Transp. Comm'n, 123 Wn.2d 621, 629, 869 P.2d 1034 (1994). If a statute is ambiguous, we will resort to principles of statutory construction, legislative history, and relevant case law to assist in interpretation. Yousoufian v. Office of King County Executive, 152 Wn.2d 421, 434, 98 P.3d 463 (2004) (citing State v. Watson, 146 Wn.2d 947, 955, 51 P.3d 66 (2002)). A statute is ambiguous if it can reasonably be interpreted more than one way. Yousoufian, 152 Wn.2d at 433-34 (quoting Vashon Island Comm. for Self-Gov't v. Wash. State Boundary Review Bd., 127 Wn.2d 759, 771, 903 P.2d 953 (1995)).
No case appears to deal with whether RCW 9A.88.010(2)(b) and (2)(c) are two independent classes of indecent exposure or if the two subsections are linked. No case addresses whether the Legislature intended the crime to only be a felony if it involved a victim under the age of fourteen.
In RCW 9.94A.515, the Legislature presented a table indicating the seriousness level for crimes. In this table, it states that "Indecent Exposure to Person Under Age Fourteen (subsequent sex offense)" is a level IV offense. RCW 9.94A.515. Because the Legislature included the subsequent sex offense language in parenthesis in this table, it may have intended subsection (2)(b) (which deals with a person under the age of fourteen) and subsection (2)(c) (which deals with prior sex offense) to be linked.
The statute's plain language is not ambiguous and can only be interpreted that a victim under the age of fourteen need not be involved in order for indecent exposure to be a class C felony. RCW 9A.88.010. Section (1) of the statute defines the crime of indecent exposure ("A person is guilty of indecent exposure if he or she intentionally makes any open and obscene exposure of his or her person or the person of another knowing that such conduct is likely to cause reasonable affront or alarm. The act of breastfeeding or expressing breast milk is not indecent exposure."). RCW 9A.88.010(1). And section (2) defines the three punishment levels for the crime. RCW 9A.88.010(2). Section (2)(a) explains when indecent exposure is a misdemeanor; section (2)(b) explains when it is a gross misdemeanor; and section (2)(c) explains when it is a felony. RCW 9A.88.010(2)(a)-(c). There is no reason to interpret that these sections are linked or dependant on each other. Each subsection is an independent clause and not connected to the other sections by punctuation or conjunctions. We hold that the trial court did not err in convicting Gamber of felony indecent exposure. Although his crime did not involve a victim under the age of fourteen, he was previously convicted of a sex offense and meets the requirements of subsection (2)(c) for felony indecent exposure.
III. Community Placement
Gamber also argues that his sentence exceeds the statutory maximum for indecent exposure because the court imposed 36 to 48 months of community custody, in addition to his 60 month sentence, which was the statutory maximum. Relying on State v. Sloan, 121 Wn. App. 220, 87 P.3d 1214 (2004), the State asserts that the trial court did not err in imposing community custody. But the State concedes that, under Sloan, we should remand for the trial court to clarify that the total of incarceration and community custody cannot exceed the maximum sentence.
The State is correct and Sloan is dispositive on this issue. The maximum punishment for every offense is set by the legislature. Sloan, 121 Wn. App. at 221. The total punishment, including imprisonment and community custody, may not exceed the statutory maximum for a particular offense. Sloan, 121 Wn. App. at 221. Where a defendant is sentenced to the statutory maximum, and also sentenced to community custody, the judgment and sentence should set forth the statutory maximum and clarify that the term of community custody cannot exceed that maximum. Sloan, 121 Wn. App. at 221.
The Sentencing Reform Act (SRA), chapter 9.94A RCW, requires community custody for most sex offenders:
When a court sentences a person to the custody of the department [of corrections] for a sex offense not sentenced under RCW 9.94A.712, . . . the court shall in addition to the other terms of the sentence, sentence the offender to community custody for the community custody range established by RCW 9.94A.850 or up to the period of earned release awarded pursuant to RCW 9.94A.728 (1) and (2), whichever is longer.
RCW 9.94A.715(1). Except as relates to collection of restitution, a sentence may not exceed the statutory maximum term set by the legislature. RCW 9.94A.505(5).
The facts in Sloan are very similar to this case. In Sloan, the defendant was sentenced to the statutory maximum of 60 months confinement and the court imposed 36 to 48 months community custody. The court reasoned that, although the defendant was sentenced to the statutory maximum, she may earn early release credits and transfer to community custody before serving the entire term. Sloan, 121 Wn. App. at 223 (citing RCW 9.94A.728(1) (2)). The court explained that, in that event, the defendant would remain in community custody for up to the statutory range of 36 to 48 months, but no longer than the 60-month maximum term. Sloan, 121 Wn. App. at 223. The court held that her total punishment did not exceed the statutory maximum and did not violate RCW 9.94A.505 (5). Unlike this case, in Sloan, the judgment and sentence included a qualification that "Defendant is not to be incarcerated for any violations as upon her release she will have served the maximum time allowed." Sloan, 121 Wn. App. at 222.
Gamber was sentenced to the statutory maximum of 60 months, and the court also imposed 36 to 48 months community custody. But Gamber's judgment and sentence does not clarify that his term of confinement and community custody cannot exceed the maximum term set by the legislature and does not set forth the statutory maximum. The State concedes that we should remand. We remand with directions to the trial court to insert the language suggested in Sloan, setting forth the maximum sentence and clarifying that the combined term of community confinement and custody cannot exceed that maximum.
IV. Calculating Offender Score
Gamber next argues that the trial court erred in calculating his offender score because it included one point based on the contention that Gamber was on community placement at the time he committed the crimes. Gamber argues that a jury, not a judge, must make the determination that a defendant was on community placement at the time of his crime. This issue was decided in a recent State Supreme Court case which held that this determination must be made by a judge, not a jury. State v. Jones, 159 Wn.2d 231, 239, 149 P.3d 636 (2006). Gamber's argument fails.
V. Ineffective Assistance of Counsel
Gamber finally argues that he received ineffective assistance of counsel for each of his substantive arguments. He argues that he received ineffective assistance of counsel:
(a) when his counsel failed to move to dismiss the indecent exposure count and allowed Gamber to enter into a guilty plea for indecent exposure.
(b) when his counsel failed to object to his 60 month sentence for indecent exposure,
(c) when his counsel failed to object to his sentence because he was sentenced to the statutory maximum confinement in addition to 36 to 48 months of community custody; and
(d) when his counsel failed to object to the trial court not allowing a jury to find that Gamber was on community placement at the time of the current offense.
Effective assistance of counsel is guaranteed under the federal and state constitutions. See U.S. Const. amend VI; Wash. Const. art. I, § 22. To prove ineffective assistance of counsel, appellant must show deficient performance and prejudice. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). Counsel's performance is deficient when it falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997). Prejudice occurs when, but for the deficient performance, there is a reasonable probability that the outcome would have differed. In the Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). We give great judicial deference to trial counsel's performance and begin our analysis with a strong presumption that counsel was effective. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
To prove that failure to object rendered counsel ineffective, Petitioner must show that not objecting fell below prevailing professional norms, State v. Townsend, 142 Wn.2d 838, 847, 15 P.3d 145 (2001), that the proposed objection would likely have been sustained, McFarland, 127 Wn.2d at 337 n. 4, and that the result of the trial would have been different if the evidence had not been admitted. State v. Hendrickson, 129 Wn.2d at 80. To prevail on this issue, Petitioner must rebut the presumption that counsel's failure to object "can be characterized as legitimate trial strategy or tactics." State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002) (emphasis added). Although deliberate tactical choices may constitute ineffective assistance of counsel if they fall outside the wide range of professionally competent assistance, "exceptional deference must be given when evaluating counsel's strategic decisions." McNeal, 145 Wn.2d at 362.
Gamber does not rebut the strong deference given to trial counsel's strategic decisions during trial. The outcome at trial would not have differed if Gamber's trial counsel would have made the objections he now advances. We hold that he did not receive ineffective assistance of counsel.
We affirm Gamber's convictions and sentence but remand to allow the trial court to correct the sentence to clarify that the combined term of confinement and community custody shall not exceed 60 months.
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.
We concur:
HOUGHTON, C.J.
VAN DEREN, J.