Opinion
No. 50875-0-I.
Filed: June 1, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of County. Judgment or order under review. Date filed: 11/03/2000. Judge signing: Hon. Joan E DuBuque.
Counsel for Appellant(s), Henry Grisby, W.S.P., D.O.C. 118369, 1313 N. 13th Ave., Walla Walla, WA 98272.
Counsel for Appellant(s), Sheryl Gordon McCloud, Attorney at Law, 1301 5th Ave Ste 3401, Seattle, WA 98101-2605.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/appellate, Unit 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Counsel for Respondent(s), Andrea Ruth Vitalich, King Co Pros Ofc/Appellate Unit, 1850 Key Tower, 700 5th Ave, Seattle, WA 98104.
On remand following review, a trial court may properly exercise its discretion by declining to revisit an issue that was not the subject of review. Such a decision by the trial court does not violate any of the proscriptions that Henry Grisby now argues on appeal. We also hold that the trial court properly applied the correct sentencing laws and that Grisby fails to demonstrate that he received ineffective assistance of counsel. Accordingly, we affirm.
State v. Barberio, 121 Wn.2d 48, 51, 846 P.2d 519 (1993).
In 1978, a jury convicted Grisby, along with his codefendant Robert Frazier, of five counts of murder in the first-degree and one count of first-degree assault. The court sentenced Grisby to life without the possibility of parole on three of the murder counts and life imprisonment on the other three counts. All sentences were to run consecutively.
The transcript of the sentencing hearing indicates that the judge sentenced Grisby to life without the possibility of parole on all of the murder counts and life on the assault count. Report of Proceedings on September 8, 1978, at 150-52. The judgment and sentence, however, imposes the sentences recited above. Clerk's Papers at 214. `[A] written order controls over any apparent inconsistency with the court's earlier oral ruling.' Shellenbarger v. Brigman, 101 Wn. App. 339, 346, 3 P.3d 211 (2000) (citation omitted).
Grisby appealed, arguing that the sentence of life without the possibility of parole under former RCW 9A.32.040 was unconstitutional. He also argued that a jury instruction was erroneous, that the court erroneously excluded his pre-trial polygraph, that the court should have severed the counts at trial, and that the statute defining the aggravating factor of `common scheme or plan' was void for vagueness. He did not challenge his consecutive sentences. Our supreme court affirmed on all issues that were before it.
Grisby then filed a personal restraint petition with this court, renewing his challenge to the sentencing scheme as unconstitutional. Nothing in the petition claimed his consecutive sentences were improper. This court dismissed his PRP and the supreme court granted review. The supreme court rejected his claim that the sentencing scheme was unconstitutional and dismissed the petition.
In 1997, Grisby sought relief in the federal courts by way of a writ of habeas corpus on the constitutionality of the sentencing statute. The Ninth Circuit Court of Appeals concluded that the sentencing scheme was unconstitutional because it reserved the death penalty for those who exercised their constitutional right to trial. The court remanded the case to the superior court for resentencing.
Grisby v. Blodgett, 130 F.3d 365 (9th Cir. 1997).
In September 2000, the state court resentenced Grisby to 300 months for each of 3 counts together with 60 month firearm enhancements, all to run consecutively.
Grisby appeals.
DISCRETION TO DECLINE RECONSIDERATION
Grisby argues that the resentencing court abused its discretion when it declined to revisit the original trial judge's determination that the sentences should run consecutively. He characterizes this refusal as an abuse of discretion by failing to exercise discretion. We disagree. Barberio makes clear that when a case is reversed on appeal, the resentencing court has the discretion not to revisit issues that were not addressed by the appeal. Such a decision not to revisit an issue not the subject of an appeal is a proper exercise of discretion. Here, the consecutive sentence issue was never a part of any of Grisby's reviews or requests for collateral relief. Thus, the resentencing court had the discretion not to revisit the issue. For this reason alone, we reject Grisby's challenge to his consecutive sentences.
Barberio, 121 Wn.2d at 51; RAP 2.5(c)(1).
Barberio, 121 Wn.2d at 51.
Nevertheless, Grisby contends that the federal court mandate for resentencing did not have any language of limitation and he was entitled to a full resentencing on every issue. This argument is not persuasive. Although Grisby is correct that the mandate contained no language of limitation, this does not support the conclusion that the resentencing court was required to consider issues never raised on appeal. The federal rule states, `a district court on remand may take any matter into account and may hear any evidence relevant to sentencing.' This language is permissive and does not require, as Grisby argues, consideration of all possible issues at resentencing. Thus, Grisby's argument that federal law requires a different result here fails.
See Appendix B — Order Regarding Report and Recommendation.
U.S. v. Caterino, 29 F.3d 1390, 1394 (9th Cir. 1994), overruled on other grounds, U.S. v. Scarano, 76 F.3d 1471 (9th Cir. 1996) (emphasis added); see also U.S. v. Pimental, 34 F.3d 799 (9th Cir. 1994), cert. denied, 513 U.S. 1102 (1995) (`the district court is empowered to address all sentencing issues following remand' without words of limitation).
In any event, the trial judge's alternative ruling in the written order indicates that had she chosen to consider the issue, she would still have imposed consecutive sentences.
Assuming that the court upon remand has the discretion to modify or amend the maximum sentences imposed for Counts II, III, and IV with respect to the consecutive sentences imposed on September 8, 1978, the court would still impose consecutive terms based upon the legislative policy set forth in RCW 9.94A.400(2) for serious violent offenses and the nature of the crimes herein.
There was no abuse of discretion as to the resentencing in this case.
Grisby argues in the alternative that to the extent the resentencing judge did exercise her discretion to impose consecutive sentences, she relied on a material error concerning whether Grisby was convicted as an accomplice or a principal. But the resentencing court did not state that this was a factor upon which it relied in reaching its decision. The portion of the record on which Grisby relies was an exchange between the judge and Grisby's counsel concerning the representation that Grisby was an accomplice only. Furthermore, in the Order, the resentencing judge noted that she would impose consecutive sentences because of RCW 9.94A.400(2) and the nature of the crimes. There was no abuse of discretion.
With our conclusion above that the resentencing judge properly exercised her discretion by declining to consider an issue never before raised on appeal, we need not address Grisby's contention that the resentencing judge impermissibly prejudged this matter in violation of Grisby's right to due process, the appearance of fairness doctrine, the Code of Judicial Conduct, or RCW 4.12.040. Grisby's arguments in support of this contention are wholly unpersuasive and do not merit further discussion.
We conclude that the resentencing judge properly exercised her discretion in this case.
RESENTENCING
Grisby argues the trial court should have used pre-SRA statutes to resentence him for his 1978 crimes. We hold that the trial court properly applied the most current ranges under the SRA to resentence him. Washington has two sentencing schemes for felonies. In general, the SRA applies to felonies committed on or after July 1, 1984, but the pre-existing scheme applies to felonies committed before that date. Under the pre-existing scheme, both a maximum and minimum term is set for each person sentenced to prison. In 1986, the Legislature transferred to the sentencing court the responsibility for setting the minimum term in pre-SRA cases in which the offender was committed to prison after July 1, 1986. The ISRB retains the duty to set minimum terms in pre-SRA cases in which the offender was committed to prison before July 1, 1986. Grisby properly concedes that Matter of Stanphill rejected certain challenges to the use of the current version of the SRA for purposes of resentencing for pre-SRA crimes. Nevertheless, Grisby argues that Stanphill does not control because it did not also consider RCW 9.95.011. We hold this distinction does not warrant a different result.
RCW 9.95.009; RCW 9.94A.905; see In re Hunter, 106 Wn.2d 493, 497, 723 P.2d 431 (1986).
State v. Landon, 69 Wn. App. 83, 94-95, 848 P.2d 724 (1993) (citing Laws of 1955, ch. 133, §§ 2, 5).
Landon, 69 Wn. App. at 94-95.
Landon, 69 Wn. App. at 95.
134 Wn.2d 165, 949 P.2d 365 (1998).
There, Stanphill argued that the court should base his minimum sentence on pre-SRA sentencing ranges, and that the use of the SRA violated equal protection and his rights under the ex post facto clause. The court noted that application of SRA sentencing ranges to inmates who committed crimes prior to the SRA's enactment is required by statute. The court concluded that the Board's use of the current SRA sentencing ranges when setting the minimum sentence of a pre-SRA offender did not violate either the ex post facto clauses or equal protection guarantees. The court noted, `the State's use of the current SRA is a deliberate and rational attempt to converge two distinct sentencing schemes, to transition from determinate to indeterminate sentencing, and to set consistent sentences for similar offenders.'
Stanphill, 134 Wn.2d at 168-69.
Stanphill, 134 Wn.2d at 172.
Stanphill, 134 Wn.2d at 176.
Stanphill, 134 Wn.2d at 175-76 (citing RCW 9.94A.010; RCW 9.95.009(2)).
Grisby argues that Stanphill is not controlling here because it failed to consider RCW 9.95.011. But Stanphill does control here.
RCW 9.95.011 states that after July 1, 1986, the courts will set the minimum term for an offense committed before July 1, 1984. It directs the court to set the minimum term reasonably consistent with the SRA ranges. The court shall attempt to set the minimum term reasonably consistent with the purposes, standards, and sentencing ranges adopted under *RCW 9.94A.850, but the court is subject to the same limitations as those placed on the board under RCW 9.92.090, 9.95.040 (1) through (4), 9.95.115, 9A.32.040, 9A.44.045, and chapter 69.50 RCW. The court's minimum term decision is subject to review to the same extent as a minimum term decision by the parole board before July 1, 1986.
(Emphasis added.)
Grisby contends that the emphasized language requires that the resentencing court apply pre-1986 law. This language compels no such conclusion, and he cites no authority to support his interpretation. The language in RCW 9.95.011 is not ambiguous. That the court's decision is subject to review in the same way as the parole board's decision prior to 1986 does not mean that the court must apply pre-1986 law. Instead, the language relied on by Grisby merely establishes a consistent standard of review. It does not dictate the applicable law. Grisby's argument is not supported by the language of the statute or case law.
Grisby's contention that under the pre-1986 and pre-SRA law the court could impose concurrent sentences when a criminal defendant's single act caused two or more separate deaths also fails. First, pre-1986 law does not apply. Second, the cases relied on by Grisby are distinguishable because they involved the deaths of multiple people in a single vehicle accident. Third, Grisby's reliance on State v. Edwards for the proposition that crimes with two separate victims might encompass the same criminal conduct if the crimes were sufficiently connected is misplaced because Edwards was later overruled on this point, a fact that Grisby conceded at oral argument. The law in effect at the time of Grisby's resentencing was properly applied and under that law, the crimes for which Grisby was convicted are not the same criminal conduct.
State v. Tuohy, 31 Wn.2d 549, 197 P.2d 1014 (1948); State v. Curran, 116 Wn.2d 174, 804 P.2d 558 (1991).
45 Wn. App. 378, 725 P.2d 442 (1986).
State v. Dunaway, 109 Wn.2d 207, 743 P.2d 1237 (1987) (specifically overruling Edwards and holding `that crimes involving multiple victims must be treated separately.').
See Dunaway, 109 Wn.2d at 215; RCW 9.94A.589.
FIREARM ENHANCEMENT
Grisby contends that the resentencing judge improperly imposed firearm enhancements because under the law applicable at the time of his trial, the jury never found that he was either personally armed or knew that his accomplice was armed. We hold that the jury instructions and verdicts were sufficient to impose firearm enhancements in this case.
An enhancement increases the presumptive or standard sentence and is not an exceptional sentence. Jury instructions are to be read as a whole, and each one is read in the context of all others given. The jury found in special verdicts that Grisby was armed with a deadly weapon, a firearm, during the commission of all charged offenses.
State v. Silva-Baltazar, 125 Wn.2d 472, 475, 886 P.2d 138 (1994) (comparing RCW 9.94A.310 with RCW 9.94A.120).
State v. Deryke, 110 Wn. App. 815, 819-20, 41 P.3d 1225 (2002) (citing State v. Brown, 132 Wn.2d 529, 605, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007 (1998)).
Under the law applicable at the time Grisby was originally sentenced, for a deadly weapon enhancement to apply to an unarmed codefendant, the State had to prove beyond a reasonable doubt that the accused was either personally armed or knew his or her accomplice was armed with a deadly weapon at the time of the commission of the crime.
State v. McKim, 98 Wn.2d 111,118, 653 P.2d 1040 (1982).
Instruction 3 provided that a separate crime is charged against each defendant in each count and the jury must decide the case of each defendant separately. The accomplice instruction, number 10, allowed a codefendant to be found guilty if he solicits or aids in the commission of a crime. Instruction 11 provided that in order to return a guilty verdict to first degree murder against a codefendant under an accomplice theory, the state must prove beyond a reasonable doubt that the codefendant acted as an accomplice and that he either had premeditated intent to cause death or knew at the time he aided and abetted that the person actually committing the offense had premeditated intent. Instruction 19 provided: `if you find a defendant guilty of a crime, you may find that at the time of the commission of the crime, he was armed with a deadly weapon and firearm, even though an accomplice was in actual possession of a deadly weapon and firearm at the time of the commission of the crime.'
The penalty phase instructions reiterated the `separate decision' instruction. Instruction 5 noted that the guilt phase instructions `still apply where applicable.' There was also a supplemental instruction noting that `common scheme or plan' refers to the victims, not the defendants, and that each question must be answered as to each defendant individually.
Instruction
8 described mitigating circumstances, including that `the defendant was an accomplice in a murder committed by another person and the defendant's participation in the homicidal act was relatively minor.'
The State concedes that instructions 10 and 19, when read in isolation, are insufficient to support a deadly weapon enhancement under McKim because they allow the jury to conclude Grisby was armed if his codefendant was armed. But the State argues that other instructions, when viewed together, reveal that the jury did conclude that Grisby was personally armed and not merely the accomplice to someone who was. This argument is persuasive.
As noted above, the jury was instructed that in order to find the accomplice guilty for first degree murder, it would have to conclude that Grisby either had premeditated intent to kill or knew of Frazier's premeditated intent. In this case, where death was by shooting, the proof of premeditation was the possession of one or more guns. Even assuming Frazier was the only armed one, the fact that the jury found Grisby guilty of first degree murder, even as an accomplice, meant that the jury concluded that Grisby knew of Frazier's premeditated intent to kill. Knowledge of that premeditated intent to kill would necessarily have to come from Grisby's knowledge that Frazier was armed. And Grisby testified that he procured one weapon, a .38, for Frazier the day before the murders following Frazier's complaints about bad drugs that he received from the victims.
Furthermore, the jury's response to the sentencing verdict concerning aggravating and mitigating circumstances compels the conclusion that the jury believed Grisby to be an active participant in the murders. As to the counts before the court on resentencing, the jury answered that the State had proven beyond a reasonable doubt the presence of the aggravating circumstance of common scheme or plan and that there were no mitigating circumstances to merit leniency. Thus, the jury necessarily found that Grisby was an active participant in the murders because one of the mitigating circumstances was that the defendant was an accomplice to someone else who had committed the murders and the defendant's role was relatively minor. The jury was specifically instructed to determine the aggravating and mitigating circumstances for each defendant individually.
We conclude that under the controlling law, the resentencing court did not err in imposing firearm enhancements.
Finally, Grisby argues that the firearm enhancements cannot run consecutively under the reasoning of In re Post Sentencing Review of Charles. But Charles is distinguishable. It addressed an ambiguity in sentencing when multiple concurrent sentences with sentencing enhancements were involved. Grisby's sentences are consecutive and no ambiguity exists. Furthermore, as noted by the State, former RCW 9.94A.310(3)(e), now RCW 9.94A.510, has superceded the reasoning in Charles. The statute states: `Notwithstanding any other provision of law, all firearm enhancements under this section are mandatory, shall be served in total confinement, and shall run consecutively to all other sentencing provisions, including other firearm or deadly weapon enhancements, for all offenses sentenced under this chapter.'
135 Wn.2d 239, 955 P.2d 798 (1998).
See also State v. Flett, 98 Wn. App. 799, 992 P.2d 1028, review denied, 141 Wn.2d 1002 (2000).
See State v. Thomas, 150 Wn.2d 666, 672, 80 P.3d 168 (2003).
We conclude that the resentencing court did not err in imposing firearm enhancements and running them consecutively.
EFFECTIVE ASSISTANCE OF COUNSEL
Grisby argues that his trial counsel provided ineffective assistance at the resentencing. We again disagree.
To prevail on his claim of ineffective assistance of counsel, Grisby must meet both prongs of a two-prong test. He must first establish that his counsel's representation was deficient. To show deficient performance, he has the `heavy burden of showing that his attorney `made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment.' ` He may meet this burden by establishing that, given all the facts and circumstances, his attorney's conduct failed to meet an objective standard of reasonableness. Deficient performance is not shown by matters that go to trial strategy or tactics.
See State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996).
State v. Howland, 66 Wn. App. 586, 594, 832 P.2d 1339 (1992) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)), review denied, 121 Wn.2d 1006 (1993).
State v. Huddleston, 80 Wn. App. 916, 926, 912 P.2d 1068, review denied, 130 Wn.2d 1008 (1996).
Hendrickson, 129 Wn.2d at 77-78.
Grisby must also show that the deficient performance resulted in prejudice such that `there is a reasonable probability that, but for counsel's errors, the result of the trial would have been different.' This court employs a strong presumption that counsel's representation was effective.
Hendrickson, 129 Wn.2d at 78.
McFarland, 127 Wn.2d at 335.
Grisby contends that his counsel at resentencing was ineffective because he failed to raise the issues presented here. Because the issues he raises are not meritorious, there was neither deficient performance nor prejudice in counsel below not raising such issues.
Grisby also points to his counsel's failure to calculate independently his standard range under the SRA. But Grisby conceded in his brief before this court that the calculation under the SRA was correct. We conclude that Grisby fails to demonstrate that his counsel at trail was ineffective.
We affirm the Order Modifying Judgment and Sentences for Counts II, III and IV and Setting Minimum Terms.
APPELWICK, R. AGID, JJ., concur.