Opinion
Nos. 35719-4-II; 35720-8-II.
September 16, 2008.
Appeals from a judgment of the Superior Court for Thurston County, No. 06-1-00971-5, Richard A. Strophy, J., entered December 27, 2006.
UNPUBLISHED OPINION
Paul Vincent Johns, Jr. and James Clinton Faircloth, Jr. were charged with and convicted of first degree murder, first degree kidnapping, and first degree robbery, among other convictions. The jury failed to specify whether it found them guilty of first degree murder based on a premeditated intentional act or based on felony murder. The judgment and sentences list both provisions, RCW 9A.32.030(1)(a) and (c). Johns and Faircloth contend that their convictions of robbery and kidnapping violate their constitutional right against double jeopardy because if the jury found them guilty of first degree murder based on felony murder, then their kidnapping and robbery charges merge into the felony murder charge.
Johns and Faircloth fail to assign error to their felony murder convictions and we therefore decline to conduct an independent review of those convictions. See RAP 10.3(g).
We hold, consistent with the State's concession, that the kidnapping convictions merge with the felony murder convictions if the jury based its convictions on felony murder. But the convictions for robbery do not merge because there were two robberies, neither of which were incidental to the felony murder. We vacate the kidnapping convictions to avoid offending double jeopardy, and we hold that the robbery and first degree murder convictions stand. We do not address the claim of ineffective assistance of counsel (for failing to request special interrogatories to specify either premeditated murder or felony murder) with regard to the kidnapping convictions, but we hold that there was not ineffective assistance with regard to the robbery convictions because the robberies were not incidental to the felony murder.
With regard to Faircloth, we further hold that the State improperly convicted him of an uncharged alternative of second degree unlawful possession of a firearm. And we accept the State's concession that the trial court erred when it entered a lifetime no-contact order against him based on convictions of a class B and class C felonies. Because the trial court may impose a lifetime no-contact order for the class A felony murder, we remand for resentencing as to this provision.
Thus, we reverse and vacate the convictions for kidnapping and Faircloth's conviction for second degree unlawful possession of a firearm. We affirm the robbery and first degree murder convictions and remand for resentencing.
FACTS
In April 2006, Lynn Soeby called Faircloth, her former boyfriend, to ask if she could stop by his apartment to do her laundry and to take a shower. Faircloth agreed. When Soeby arrived, several people were in the apartment, including Johns, Chene Lumsden, Cami Fennel, Robbie Jordan, and Travis Merriott. All of the people in the apartment had either smoked or injected methamphetamine before Soeby arrived.
At some point, Faircloth discovered that his watch was missing. He accused Soeby of stealing it from him. A verbal argument ensued, during which, Johns used a zip-tie to attach his wrist to Soeby's wrist. Johns and Soeby then sat down and Johns dumped Soeby's purse on the floor, looking for the missing watch. Meanwhile, Faircloth noticed Soeby's hand was turning purple and instructed Fennel to cut off the zip-tie.
Soeby again denied taking the watch, got up and brushed past Faircloth, and went to the bathroom to gather her things and leave. Soeby's "disrespect" angered Faircloth. He followed her into the bathroom, where he hit her on the side of her head with a handgun. Faircloth also pointed the gun at Soeby and threatened to shoot her. He then left the bathroom. Soeby's head was bleeding, and Fennel used a towel to clean the wound.
Eventually, someone in the apartment zip-tied Soeby's hands for a second time. Faircloth took Soeby into his bedroom. He removed items from her pockets. He also removed her watch from her wrist. Soeby was crying and saying that she just wanted to go, but Faircloth refused.
Shortly thereafter, Johns and Jordan left the apartment with Soeby, who was still zip-tied. They carried her belongings, including the bloody towel that Fennel had used to clean Soeby's head wound. On their way out, Faircloth handed Johns a handgun.
Johns put a black hood over Soeby's head and placed her in the back of Fennel's vehicle. He drove toward Jordan's home. Although Jordan asked to be dropped off at home, Johns refused. Instead, Johns drove out to the end of a gated logging road. He took Soeby out of the car, removed the hood from her head, and had Jordan cut the zip-ties. Johns gave Soeby one last cigarette. The three then walked up the logging road for approximately 15 minutes. Johns then said "this is far enough" and pulled out a gun. 4 RP at 603. He instructed Jordan to take off Soeby's rings, bracelets, necklaces, and earrings. According to Jordan, Soeby removed her jewelry and handed it to Jordan who then handed it to Johns.
The State's theory was that Johns took all of Soeby's "jewelry off of her person." 8 RP at 1265. Johns's theory was that Soeby voluntarily gave her jewelry to Johns and Jordan before she committed suicide.
Then, Johns and Soeby walked into the brush. A few minutes later, Jordan heard a single shot, and Johns walked out of the brush singing "Amazing Grace" followed by Bon Jovi's "Going Out In A Blaze of Glory." 4 RP at 608, 611. Johns told Jordan that he made Soeby sit down under some brush. The two men then returned to the car and subsequently returned to Faircloth's apartment.
On their drive home, Johns instructed Jordan to throw Soeby's belongings out the window. Johns also threw some of Soeby's jewelry out the window. Meanwhile, Johns received a text message from Faircloth instructing him to bring back the bloody towel because it had Soeby's blood and Faircloth's hair on it. Johns complied.
Eventually, Fennel, through her mother, contacted Thurston County Sheriff's Detective Eugene Duprey and told him of the events involving Soeby at Faircloth's apartment. As a result, Detective Duprey contacted Jordon, who led police to the logging road where he and Johns had taken Soeby. On May 23, 2006, law enforcement officers discovered Soeby's decomposing body about 40 yards off of the logging road.
Upon further investigation, the State charged Johns by third amended information with one count of first degree murder based on a premeditated intentional act to cause death and first degree felony murder with predicate crimes of either first degree kidnapping or first degree robbery (count I), one count of first degree kidnapping (count II), one count of first degree robbery (count III), and one count of first degree unlawful possession of a firearm in the first degree (count IV). Counts I-III included a sentence enhancement allegation that Johns committed the crimes while armed with a firearm.
The State charged Faircloth by fourth amended information with one count of first degree murder based on a premeditated intentional act to cause death and first degree felony murder with predicate crimes of either first degree kidnapping or robbery (count I), one count of first degree kidnapping (count II), one count of first degree robbery (count III), two counts of second degree assault (counts IV and V), and one count of second degree unlawful possession of a firearm (count VI). Counts I-V included a sentence enhancement allegation that Faircloth committed the crimes while armed with a firearm.
The State tried Johns and Faircloth in a consolidated trial. The jury found Johns guilty as charged on all four counts and entered special verdicts on counts I-III that he was armed with a firearm during the commission of the crimes. Likewise, the jury found Faircloth guilty as charged for first degree murder, first degree kidnapping, first degree robbery, second degree assault, and second degree unlawful possession of a firearm. As to count V, the jury entered a lesser verdict of unlawful display of a firearm rather than felony assault. And the jury returned special verdicts that Faircloth or an accomplice was armed with a firearm at the time of the murder, kidnapping, robbery, and the assault on Soeby.
Neither Johns's nor Faircloth's counsel requested special interrogatories on the jury's verdict. The trial court sentenced Johns on all convictions to a standard range sentence of 796 months. The trial court sentenced Faircloth on all convictions to the maximum standard range sentence of 672 months. As a part of Faircloth's judgment and sentence, the trial court imposed a lifetime no-contact provision, prohibiting contact with all of the witnesses and members of the Soeby family.
Johns and Faircloth timely appeal. We have consolidated their appeals before this court.
ANALYSIS I. Effective Assistance of Counsel and Merger
To prove ineffective assistance of counsel, Johns and Faircloth must show that (1) counsel's performance was deficient; and (2) the deficient performance prejudiced them. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). They must overcome a strong presumption that their counsels' representation was adequate and effective. McFarland, 127 Wn.2d at 335. 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), cert denied, 532 U.S. 1008 (1998). To show prejudice, Johns and Faircloth must establish "there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different." McFarland, 127 Wn.2d at 335.
Here, Johns and Faircloth contend that they were denied effective assistance because their counsel failed to request special interrogatories to clarify whether count I, first degree murder, was based on a premeditated intentional act or based on felony murder and, if so, which underlying felony (kidnapping or robbery) the jury based its verdict on. They argue that if the jury based their first degree murder convictions on felony murder, double jeopardy would have barred their convictions for first degree kidnapping and/or first degree robbery.
The constitutional guarantee against double jeopardy protects against multiple punishments for the same offense. State v. Calle, 125 Wn.2d 769, 776, 888 P.2d 155 (1995). But a trial court's imposition of more than one punishment for a criminal act that violates more than one criminal statute is not necessarily multiple punishments for a single offense. See Calle, 125 Wn.2d at 776. The fundamental issue is whether the legislature intended to authorize multiple punishments for criminal conduct that violates more than one statute. Calle, 125 Wn.2d at 776.
Washington courts utilize a three-prong analysis to determine whether the legislature intended to authorize multiple punishments for criminal conduct that violates more than one statute. In re Pers. Restraint of Burchfield, 111 Wn. App. 892, 895, 46 P.3d 840 (2002) (citing Calle, 125 Wn.2d at 776). First, we look to the statutory language to determine whether the legislature specifically authorized separate punishments. Burchfield, 111 Wn. App. at 895-96. Second, if the statute is silent as to whether the legislature intended specific punishments, we apply the "same evidence" rule of construction to determine whether each legislatively-defined offense has an element not contained in the other. Burchfield, 111 Wn. App. at 896. In other words, if the evidence to prove one crime would also completely prove a second crime, the two crimes are the same in law and fact. In re Pers. Restraint of Orange, 152 Wn.2d 795, 820, 100 P.3d 291 (2004). Third, if each offense contains a separate element, we look for evidence of legislative intent to treat the crimes as one offense for double jeopardy purposes. Burchfield, 111 Wn. App. at 896. We also apply the merger doctrine to determine whether the legislature intended to treat crimes as one offense for double jeopardy purposes. State v. Frohs, 83 Wn. App. 803, 811-12, 924 P.2d 384 (1996).
The "same evidence" test is similar to the rule set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932). In re Pers. Restraint of Orange, 152 Wn.2d 795, 816, 100 P.3d 291 (2004).
Under the merger doctrine, crimes merge when proof of one is necessary to prove an element or the degree of another crime. State v. Vladovic, 99 Wn.2d 413, 419, 662 P.2d 853 (1983). Thus, merger applies only where the legislature has clearly indicated that in order to prove a particular degree of a crime (e.g., first degree murder), the State must prove not only that the defendant committed that crime (e.g., murder) but that the crime was accompanied by an act that is defined as a crime elsewhere in the criminal statutes (e.g., kidnapping or robbery). Vladovic, 99 Wn.2d at 421. Stated another way, if a defendant is convicted of two crimes, the second conviction will stand if that conviction is based on "some injury to the person or property of the victim or others, which is separate and distinct from and not merely incidental to the crime of which it forms an element." State v. Johnson, 92 Wn.2d 671, 680, 600 P.2d 1249 (1979) (emphasis added), cert. dismissed, 446 U.S. 948 (1980), overruled in part by State v. Sweet, 138 Wn.2d 466, 477, 980 P.2d 1223 (1999); see also State v. Freeman, 153 Wn.2d 765, 778, 108 P.3d 753 (2005).
Here, Johns and Faircloth make three separate double jeopardy arguments, focusing on the merger doctrine. They contend that their first degree murder convictions bar their first degree kidnapping convictions; their first degree robbery convictions merge into their first degree kidnapping convictions; and their first degree murder convictions bar their first degree robbery convictions.
A. Kidnapping Merges Into Felony Murder
Significantly, the State concedes that Johns's and Faircloth's first degree kidnapping convictions merge into the first degree murder conviction if the jury based its first degree murder conviction on felony murder. It reasons that kidnapping Soeby was merely incidental to the murder:
While the kidnapping was not necessary to the killing (Johns could have shot her at Faircloth's apartment), in fact he did tie the victim's hands, put a hood over her head, and force her into a car. After driving some distance, he then forced her to walk up a logging road and sit in a particular position before shooting her in the head.
Br. of Resp't at 6.
We agree and hold that the kidnapping convictions merge with felony murder. In light of this holding, we do not address the ineffective assistance of counsel claims with specific regard to merger of the kidnapping and felony murder convictions. Because we have no finding whether felony murder or premeditated murder was the basis of the first degree murder convictions, we vacate Johns's and Faircloth's first degree kidnapping convictions in order to preserve their constitutional rights against double jeopardy.
B. Robbery Does Not Merge Into the Kidnapping
Johns and Faircloth also contend that their first degree robbery convictions merge into their kidnapping convictions. They therefore conclude that double jeopardy bars their first degree robbery convictions.
In In re Personal Restraint of Fletcher, 113 Wn.2d 42, 776 P.2d 114 (1989), the Washington Supreme Court addressed this issue, holding that first degree robbery does not merge into first degree kidnapping. Fletcher, 113 Wn.2d at 52-53. In rendering its decision, the Supreme Court reasoned that kidnapping "only requires proof of intent to commit various acts, some of which are defined as crimes elsewhere in the criminal code. It does not require that the acts actually be committed." Fletcher, 113 Wn.2d at 52 (citing RCW 9A.40.020).
Since Fletcher, the legislature has not changed either statute in any significant way. Thus, the legislature has not indicated that a defendant must commit robbery before she can be found guilty of first degree kidnapping. State v. Louis, 155 Wn.2d 563, 571, 120 P.3d 936 (2005). Therefore, applying Fletcher here, Johns's and Faircloth's first degree robbery convictions do not merge into their first degree kidnapping convictions. It follows that Johns's and Faircloth's counsel's performance did not fall below an objective standard of reasonableness for failing to argue that the kidnapping and robbery charges should merge.
C. Robbery Does Not Merge Into Felony Murder
Finally, Johns and Faircloth contend that their first degree robbery convictions merge into their first degree murder convictions because the robbery was incidental to the murder. They focus solely on the merger doctrine to support their contention.
Two offenses merge if, to prove a particular degree of crime, the State must prove that the crime "was accompanied by an act which is defined as a crime elsewhere in the criminal statutes." Vladovic, 99 Wn.2d at 421. We look to the statutory elements of each crime to determine whether the legislature intended to impose a single punishment for a homicide committed in furtherance of or in immediate flight from an armed robbery. Vladovic, 99 Wn.2d at 419. The offenses merge if the essential elements of the homicide include all the elements of the robbery, such that the facts establishing one necessarily also establish the other. Vladovic, 99 Wn.2d at 420-21.
Here, Johns and Faircloth were convicted of first degree murder as defined by RCW 9A.32.030(1)(a) and (c), which states in pertinent part:
(1) A person is guilty of murder in the first degree when:
(a) With a premeditated intent to cause the death of another person, he or she causes the death of such person or of a third person; or . . .
. . .
(c) He or she commits or attempts to commit the crime of either (1) robbery in the first or second degree . . . or (5) kidnapping in the first or second degree, and in the course of or in furtherance of such crime or in immediate flight therefrom, he or she, or another participant, causes the death of a person other than one of the participants.
RCW 9A.32.030. To convict Johns and Faircloth of first degree murder under RCW 9A.32.030(1)(c), the jury had to find them guilty of either first degree robbery or first degree kidnapping and the killing of Soeby in the course of or in furtherance of or in immediate flight from those crimes. RCW 9A.32.030(1)(c)(1) (5). A separate conviction for the predicate crime is, therefore, contrary to the legislative intent and the offenses merge. Vladovic, 99 Wn.2d at 421.
But under the exception to the merger doctrine, the robbery would not merge if it was separate and distinct and not merely incidental to the felony murder. Vladovic, 99 Wn.2d at 421.
Johns and Faircloth cite to the recent case, State v. Womac, 160 Wn.2d 643, 160 P.3d 40 (2007), to support their argument that their first degree robbery convictions were not merely incidental to their first degree murder convictions.
In Womac, Womac's four-month-old son died of head injuries. Womac, 160 Wn.2d at 647. The State charged Womac with homicide by abuse, second degree felony murder, and first degree assault, as separate crimes rather than in the alternative. Womac, 160 Wn.2d at 647-48. The trial court convicted him of all three charges. Womac, 160 Wn.2d at 648. The Washington Supreme Court eventually vacated Womac's felony murder and first degree assault convictions. Womac, 160 Wn.2d at 656. It held that Womac's convictions for first degree assault and homicide by abuse constituted the same criminal conduct in that the offenses involved the same victim and occurred at the same place and time. Womac, 160 Wn.2d at 656. The Supreme Court also noted that Womac could not have committed second degree felony murder without committing first degree assault. Womac, 160 Wn.2d at 656. Because all three convictions constituted the same criminal conduct, the Supreme Court vacated Womac's convictions for second degree felony murder and first degree assault in order to avoid offending double jeopardy. Womac, 160 Wn.2d at 656.
The State, in Womac, conceded that first degree assault and homicide by abuse constituted the same criminal conduct. Womac, 160 Wn.2d at 656.
In State v. Saunders, 120 Wn. App. 800, 86 P.3d 232 (2004), however, we reached a contrary conclusion. In Saunders, the victim had given Williams a ride home to the residence she shared with Saunders. Saunders, 120 Wn. App. at 806. Once there, the victim accepted Williams' invitation to go inside to consume alcohol. Saunders, 120 Wn. App. at 806. When Williams and Saunders asked the victim to engage in a sexual threesome, the victim refused. Saunders, 120 Wn. App. at 807. Williams then beat the victim, while Saunders obtained handcuffs and shackles that they used to restrain her. Saunders, 120 Wn. App. at 807. Saunders tried to force the victim to perform oral sex on him, but the victim refused. Saunders, 120 Wn. App. at 807. Saunders then retrieved a knife from the kitchen. When he returned, he found Williams raping the victim anally with a television antenna. Saunders then stabbed the victim and either he or Williams contemporaneously strangled her. Saunders, 120 Wn. App. 807. The police later picked up Saunders and Williams separately; Williams was wearing the victim's watch at the time. Saunders, 120 Wn. App. 807.
We declined to merge the underlying felonies into the felony murder conviction. Saunders, 120 Wn. App. at 822. We held that although the robbery and the murder took place in close proximity of time and place, Saunders and Williams committed the robbery after the felony murder and not to facilitate the felony murder. Saunders, 120 Wn. App. at 822. We held that because the kidnapping had a purpose and injury separate from the murder, they did not merge with felony murder. Saunders, 120 Wn. App. at 823. Specifically, Saunders and Williams restrained the victim to humiliate her and retaliate against her for refusing to participate in the sexual acts. Saunders, 120 Wn. App. at 823. Finally, we held that the rape crimes were not merely incidental to the murder because, although the crimes took place in close proximity in time and place, the "harm exceed[ed] that necessary to commit the murder." Saunders, 120 Wn. App. at 823. Therefore, we held that the felony murder, in addition to the first degree robbery, first degree kidnapping, and first degree rape convictions must stand. Saunders, 120 Wn. App. at 824.
Likewise, in State v. Peyton, 29 Wn. App. 701, 630 P.2d 1362, review denied, 96 Wn.2d 1024 (1981), we analyzed a similar issue. In Peyton, after completing a bank robbery, the robbers fled in one vehicle, abandoned it, fled again in another vehicle, and eventually shot a law enforcement officer during the course of a gunfight. Peyton, 29 Wn. App. at 704-05. We held that the robbery did not merge with the homicide because it was disconnected in time, place, and circumstances. Peyton, 29 Wn. App. at 720. Notably, we upheld the felony murder conviction, even though it was based on the bank robbery. Peyton, 29 Wn. App. at 720.
Similar to Peyton and Saunders, Faircloth did not commit the robbery of Soeby's watch and belongings at the house in order to facilitate the murder. And before shooting Soeby, Johns took her jewelry from her; this taking was not incidental to the murder. Although the robbery in the car took place in close proximity of time and place to the murder, taking Soeby's jewelry was unnecessary to accomplish the murder. This conclusion comports with Womac, where the assault was the cause of death against a single victim and the defendant was convicted of two separate homicide crimes. Here, the robberies were distinct and separate crimes, not merely incidental to the first degree murder. Thus, the robberies do not merge into the felony murder. Saunders, 120 Wn. App. at 823; Peyton, 29 Wn. App. at 720.
To conclude, Johns's and Faircloth's first degree robbery convictions and first degree kidnapping convictions do not merge. Nor do their first degree robbery convictions merge with their first degree murder convictions. But, Johns's and Faircloth's first degree kidnapping convictions merge into their felony murder convictions. Further, because their judgment and sentences list both RCW 9A.32.030(1)(a) and (c), we cannot tell whether the jury convicted Johns and Faircloth of first degree murder based on a premeditated intentional act (RCW 9A.32.030(1)(a)) or felony murder (RCW 9A.32.030(1)(c)).
Accordingly, Johns and Faircloth received effective assistance of counsel with regard to their robbery convictions because the robbery convictions would not merge with the felony murder. Requesting a special interrogatory could have led to the jury finding that premeditated murder had been committed, in which case punishment for both kidnapping and robbery would have not violated double jeopardy. Certainly then, it was tactically practical not to request a special interrogatory. But the kidnapping convictions must be vacated because they did merge with the felony murder.
II. Charging Document
Next, Faircloth contends that the trial court improperly convicted him of an uncharged alternative of second degree unlawful possession of a firearm. Specifically, he argues that the fourth amended information failed to specify under which alternative the State was charging him under RCW 9.41.040. The information under which he was convicted charged that he had previously been convicted of a felony. The fourth amended information stated in pertinent part:
COUNT VI: UNLAWFUL POSSESSION OF A FIREARM IN THE SECOND DEGREE, RCW 9.41.040 (2)(a)(I); CLASS C FELONY:
In that the defendant, JAMES CLINTON FAIRCLOTH, JR[.], in the State of Washington, on or about April 13, 2006, did knowingly have in his possession or in his control a firearm, after having previously been convicted of a felony.
CP (Faircloth) at 15.
But the jury was instructed in the to-convict instruction and the jury found that he had been convicted of "Assault in the Fourth Degree — Domestic Violence," a gross misdemeanor, not a felony as charged. CP (Faircloth) at 83. This was, therefore, an uncharged alternative under RCW 9.41.040(2)(i) and it was error for the court to instruct and for the jury to consider it. State v. Bray, 52 Wn. App. 30, 34, 756 P.2d 1332 (1988).
Accordingly we vacate this conviction.
III. Lifetime No-Contact Order
Finally, Faircloth contends that the trial court lacked authority to impose a lifetime no-contact order for his second degree assault conviction, a class B felony, and second degree unlawful possession of a firearm conviction, a class C felony. The State concedes this point.
As part of a sentence, a trial court may impose crime-related prohibitions, such as an order prohibiting conduct that directly relates to the circumstances of a crime. A trial court may impose such an order for any period up to the maximum sentence of a crime. State v. Armendariz, 160 Wn.2d 106, 120, 156 P.3d 201 (2007). But while a trial court may impose a lifetime condition of sentence for class A felonies with a statutory maximum of life, it lacks authority to impose a lifetime conditional sentence for class B and class C felonies with statutory maximum sentences of less than life. See Armendariz, 150 Wn.2d at 119.
Here, the jury convicted Faircloth of three class A felonies, one class B felony, second degree assault, and one class C felony, second degree unlawful possession of a firearm. The trial court, however, failed to specify which charge or charges on which it based the lifetime no-contact order. Again, the State concedes this error. Accordingly, we remand to provide the trial court the opportunity to amend Faircloth's judgment and sentence to reflect that it based the lifetime no-contact order on Faircloth's class A convictions. See Armendariz, 150 Wn.2d at 119.
In conclusion, we affirm the convictions for robbery and first degree murder but vacate Johns's and Faircloth's convictions for first degree kidnapping. Also, we reverse and vacate Faircloth's conviction for second degree possession of a firearm, and we remand for resentencing consistent with this opinion.
Affirmed in part, reversed and vacated in part, and remanded for resentencing.
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.
I concur:
Houghton, PJ.
In light of the State's concession and the parties' decision to not request a special verdict, I concur with the majority's holding. I write separately, however, to distinguish the merger doctrine from the statutory doctrine of same criminal conduct embodied in RCW 9.94A.589(1)(a).
I note that it is possible to establish first degree felony murder, RCW 9A.32.030(1)(c), with proof of an attempted kidnapping and that, arguably, the evidence presented here was sufficient to establish a completed kidnapping followed by and intertwined with a premeditated first degree murder. See RCW 9A.32.030(1)(a) (premeditated murder); RCW 9A.40.020-.030 (kidnapping).
The parties and majority use the merger doctrine interchangeably with the doctrine of same criminal conduct, relying on cases from the later doctrine as authority for the former. Although the analysis is somewhat similar and such a melding of the two doctrines is commonplace, the doctrines are unique and should be treated as such. See State v. French, 157 Wn.2d 593, 611, 141 P.3d 54 (2006) (holding that "[a] double jeopardy violation claim is distinct from a `same criminal conduct' claim and requires a separate analysis").
As relevant here, the double jeopardy clause prohibits sentencing judges from entering more than one conviction for the "same offense." State v. Calle, 125 Wn.2d 769, 776, 888 P.2d 155 (1995). The legislature is entrusted to define offenses and authorize criminal sentences. Calle, 125 Wn.2d at 776. It may do so as it wishes and does not offend double jeopardy even if it specifies that one act should be punished with multiple convictions or that one crime may not merge into another. The legislature's decisions in this arena do not, as a matter of law, implicate double jeopardy. In Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977), our nation's highest court held that the double jeopardy clause "serves principally as a restraint on courts and prosecutors." The Court further held that "[t]he legislature remains free under the Double Jeopardy Clause to define crimes and fix punishments." Brown, 432 U.S. at 165.
State v. Bonds, 98 Wn.2d 1, 15-16, 653 P.2d 1024 (1982) (holding that merger doctrine does not apply because burglary anti-merger statute clearly expressed legislature's intent to punish a single act with multiple convictions and doing so did not violate double jeopardy), cert. denied, 464 U.S. 831 (1983); Phyllis Maza Parker, Constitutional Law — Second Circuit Extends Double Jeopardy Clause to Prohibit Prosecution of Criminal Conduct Used Previously to Enhance Sentence, 67 Temp. L. Rev. 1387, 1390-95 (1994) (surveying United States Supreme Court decisions upholding legislature's authority to impose multiple convictions for single act).
The proper inquiry in double jeopardy analysis, therefore, is what the legislature intended. Calle, 125 Wn.2d at 776. Sometimes the legislature's intent is abundantly clear, as with the burglary anti-merger statute, and we need only apply the statute that explains the legislature's intent. RCW 9A.52.050; see State v. Bonds, 98 Wn.2d 1, 15-16, 653 P.2d 1024 (1982), cert. denied, 464 U.S. 831 (1983) (declining to apply merger doctrine to burglary conviction because legislature made its intent clear by enacting burglary anti-merger doctrine).
Sometimes the legislature's intent is unclear, as in this case, and we must discern it. To discern legislative intent, we turn to aids such as the Blockburger test and the merger doctrine. Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932); State v. Freeman, 153 Wn.2d 765, 772, 108 P.3d 753 (2005). Our United States Supreme Court has made it abundantly clear that these are rules of statutory construction, nothing more. Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983). As with all questions of statutory construction, our review is de novo. State v. Womac, 160 Wn.2d 643, 649, 160 P.3d 40 (2007); State v. Watson, 146 Wn.2d 947, 954, 51 P.3d 66 (2002).
The same criminal conduct clause in RCW 9.94A.589(1)(a) is a clear expression of our legislature's intent. It allows judgment on multiple convictions while prohibiting sentencing courts from imposing multiple punishments on criminal acts requiring the same objective criminal intent, which were committed at the same time and place, and involved the same victim. RCW 9.94A.589(1)(a). The doctrines crafted to discern the legislature's ambiguous intent, such as merger, are irrelevant to same criminal conduct analysis because our legislature's intent regarding multiple punishments is clear from the statute's face. Bonds, 98 Wn.2d 15-16. Thus, the sole inquiry in the vast majority of "same criminal conduct" cases is whether the trial court clearly abused its discretion or misapplied the law. State v. Elliott, 114 Wn.2d 6, 17, 785 P.2d 440, cert. denied, 498 U.S. 838 (1990).
That statute reads, in relevant part:
[I]f the court enters a finding that some or all of the current offenses encompass the same criminal conduct then those current offenses shall be counted as one crime. Sentences imposed under this subsection shall be served concurrently. Consecutive sentences may only be imposed under the exceptional sentence provisions of RCW 9.94A.535. "Same criminal conduct," as used in this subsection, means two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim. This definition applies in cases involving vehicular assault or vehicular homicide even if the victims occupied the same vehicle.
RCW 9.94A.589(1)(a).
Nevertheless, practitioners and courts often treat the doctrines of merger and same criminal conduct as if they were one and the same, disregarding the vastly different standards of review and analytical frameworks. Such confusion has persisted for quite some time, perhaps aided by the lack of distinct terminology. It is time for Washington courts to reserve the term "merger" for the double jeopardy analysis and purge the phrase "same criminal conduct" from double jeopardy analysis. In my opinion, we must henceforth make it abundantly clear that same criminal conduct is a matter of statutory application and not statutory construction.
To further the confusion between the two doctrines of merger and same criminal conduct, it is theoretically accurate to say that a sentence imposed in violation of the same criminal conduct doctrine also violates double jeopardy because any duplicative sentence that contravenes our legislature's intent violates double jeopardy. Calle, 125 Wn.2d at 776. But the statement proves too much. Entry of any sentence that is not authorized by the legislature is void as a matter of law — sentencing courts have no power to enter sentences that the legislature did not authorize. In re Pet. of Rivard, ___ Wn. App. ___, 183 P.3d 1115, 1117 (2008). Further, Washington courts should refrain from invoking constitutional principles when the matter may be resolved on non-constitutional grounds. State v. Tingdale, 117 Wn.2d 595, 599, 817 P.2d 850 (1991). Because the same criminal conduct doctrine is a plain matter of statutory application, courts should invoke the double jeopardy clause in this context in only exceedingly rare situations, if at all.
In light of the State's concession, I concur with the result of this case but write separately to distinguish the doctrine of double jeopardy from application of same criminal conduct sentencing limits under RCW 9.94A.589(1)(a). These doctrines are vastly different and require application of very different standards of review.
For this reason, I respectfully object to the majority's use of case law from one doctrine as authority for the other and urge future courts to strive to analyze these doctrines distinctly, as our Supreme Court mandated in French, 157 Wn.2d at 611.