State v. Nitsch

• Decision Date: 24 April 2000
• Docket Number: No. 42577-3-I.,42577-3-I.
• Citation: 997 P.2d 1000,100 Wash.App. 512
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Anthony J. NITSCH, Jr., Appellant.

997 P.2d 1000

100 Wash.App. 512

STATE of Washington, Respondent, v. Anthony J. NITSCH, Jr., Appellant.

No. 42577-3-I.

Court of Appeals of Washington, Division 1.

April 24, 2000.

Wayne Clark Fricke, Lance M. Hester, Tacoma, for Appellant.

Catherine D. Shaffer, Lee Davis Yates, Sr. Deputy Pros. Atty, for Respondent.

ELLINGTON, J.

After a violent assault on his former girlfriend, Anthony Nitsch pleaded guilty to first degree burglary and first degree assault. The parties agreed to the calculation of the standard range, and the court sentenced Nitsch to the high end of the standard range on both counts, to run concurrently. The court also imposed two firearm enhancements, to run consecutive to each other. For the first time on appeal, Nitsch argues his offender score was erroneously calculated because the court failed to determine whether the burglary and assault constituted the same criminal conduct. We hold Nitsch waived review of this issue when he agreed to the calculation of the standard range. And even if Nitsch had preserved the same criminal conduct issue for review, we find no error. We remand for resentencing as to the firearm enhancements, however, because as the State correctly concedes, the enhancements cannot be imposed to run consecutively.

FACTS

The following is a summary of the Certification for Determination of Probable Cause and the State's argument at sentencing. Nitsch's denials are noted.

Anthony Nitsch and Elizabeth Reed dated in August and September 1996. Reed became uncomfortable with Nitsch's apparent alcohol problem and stopped taking his telephone calls. In October 1996, Nitsch angrily told Reed that he wanted to end the relationship. Reed agreed. Nitsch mentioned a prior girlfriend who had similarly not wanted to talk to him, and that he had broken into her home. After that conversation, Nitsch returned by mail a gift Reed had given to him, in a package addressed to "Ms. Reed." Reed never used that title and no one addressed her as "Ms. Reed." Included in the package was an angry, abusive letter.

On January 19, 1997, when Reed arrived home, her house was very cold. She discovered that a fuse to her heat pump had been disconnected. Near the pump, Reed noticed human feces. Suddenly, a person of Nitsch's height and weight stood up from behind a nearby bush. The person threw beer at her, then fled. The police found a roll of toilet paper, a bag of Fritos, and a bottle of beer where the incident occurred. Nitsch denies that he committed this offense.

Based on police advice, Reed installed an alarm system in her house, obtained a .9-mm handgun, and changed her locks.

Harassment of Reed continued. She received numerous hang-up calls. When she changed her number, the calls stopped. She received two more packages in the mail addressed to "Ms. Reed." One package contained a sexual device and the other contained a dead skunk. Nitsch's coworker recalls Nitsch talking about how one should "send a dead skunk in the mail to a woman who does this to you." Nitsch denies he "mailed the package with the animal in it."

Reed found beer bottles, empty packages of Fritos, and golf tees in her yard. She rarely drinks, does not consume Fritos, and does not play golf, although Nitsch does. On occasion she found signs that her house had been entered.

On March 31, 1997, Nitsch purchased a.40-caliber handgun.

On April 21, 1997, at about 2:00 a.m. Reed was at home in bed. She heard someone outside her bathroom window. She grabbed her gun, and shouted that she was armed and would shoot. She heard Nitsch's laugh and the sound of his departure. The police found pry marks on her bathroom and garage windows. Nitsch denies he committed this offense. At about 8 p.m. on June 2, 1997, Reed received a telephone call from her alarm company. She went home and found her front door and a rear window ajar.

When she came home later that evening, she had her gun with her. The front porch light was out, although she had changed the bulb the day before. On the "Welcome" mat outside her door was human feces. Nitsch later confirmed to the presentence investigator that he left the deposit.

At that point, Nitsch crashed through a window into Reed's house. He was carrying his .40-caliber handgun. It is unclear who fired first. Reed fired repeatedly at Nitsch, emptying her gun. Nitsch fired once.

Reed began walking backwards, tripped, and fell. Nitsch came after her. He yelled, "Do you remember me, bitch? I am going to kill you, bitch!" Then he hit her with something metallic and broke her nose. Reed believed Nitsch was going to murder her. She kicked at him, knocking him into her closet doors. Nitsch began groping for something on the floor. Reed fled past him to her front door. She believes she heard the sound of gunfire. As she ran across the street, she fell and cut her knee. She told her neighbors what had happened and they called 911.

Nitsch pursued Reed outside. A neighbor saw him kneeling in her driveway. Nitsch then went back inside Reed's house where he knocked over her computer, kicked in the door of a spare bedroom, and kicked in her pet door. He sat down on her couch, put his feet up on the coffee table, and put his gun between his feet.

Nitsch refused to surrender, and police were forced to storm the house. They apprehended Nitsch on Reed's couch. They seized his gun, which had five rounds in it. Nitsch had gunshot wounds in his arms, ankle, knee, and chest. Nitsch admitted he entered Reed's home with a gun. He explained that he "was armed because she was armed." He stated that she fired first, shooting him several times. He admitted to firing once.

The police recovered Reed's gun in the driveway. They noticed apparent blood splatters near the gun and on the walkway leading to the front door. Nitsch's gun had blood and hair on it. Police found numerous.9-mm casings and one .40-caliber casing in the entryway.

A car registered to Nitsch's parents was parked across the street and to the east of Reed's house. Inside the car, police found a large dress, a wig, and something "that would make the dress look a lot more feminine if a man wore it under the dress." There also was beer and "equipment" in the car. Outside Reed's house, police found a hat. Police also discovered that the telephone line to Reed's home had been disconnected and her porch light had been unscrewed.

The morning after the incident, Reed's next-door neighbor found a black bag on his property. The bag contained a six-pack of beer with a receipt dated June 2, 1997 at about 9:00 p.m., a single can of beer, a bottle containing sugar, lipstick, binoculars, a .40caliber bullet, a fully-loaded clip of .40-caliber ammunition, a pair of latex surgical gloves, a roll of packing tape, and a knife with a seven-inch blade. Next to the bag was a roll of toilet paper. Nitsch told the presentence investigator that the packing tape was to tie up Reed if necessary.

Procedural History

Nitsch entered an Alford¹ plea of guilty to first degree burglary and first degree assault.² Both charges included a firearm allegation. At sentencing, both parties represented to the court that Nitsch's standard range was 111-147 months on Count I and 26-34 months on Count II. The State requested the high end of the standard range, 267 months for assault and 154 months for burglary (which includes a 120-month firearm enhancement on each count), to run concurrently. The standard range was based on an offender score of two, arrived at by counting each offense as an "other current offense." Because each counts two points, the score for each offense is two.³ The defense requested an exceptional sentence downward of 28 months for the assault and 28 months for the burglary, to run concurrently, based upon Nitsch's allegedly impaired capacity to appreciate the wrongfulness of his conduct.

In rejecting Nitsch's request and sentencing him to the high end of the range, the trial court stated, "In this case there is substantial evidence that [the crimes] were committed with some careful planning and were not spontaneous. There is also substantial evidence of injury and damage, both physical and psychological[,] over some period of time that the victim suffered." The court sentenced Nitsch to 147 months for assault and 34 months for burglary, to run concurrently, plus consecutive 120-month firearm enhancements.

This court issued an unpublished opinion in this matter on March 29, 1999. Following the Supreme Court's decisions in State v. Ford⁴ and State v. Sweet⁵ that opinion was withdrawn, and we asked the parties for additional briefing and set the matter for oral argument.

DISCUSSION

Challenge to Offender Score Calculation

Nitsch argues his offender score was miscalculated because his two crimes encompassed the same criminal conduct and should have counted as one crime under RCW 9.94A.400(1)(a), giving him an offender score of zero and a standard range of 93-123 months on the assault and 15-20 months on the burglary.⁶ The State responds that because Nitsch not only failed to raise this issue below but affirmatively agreed to the standard range on both counts based on an offender score of two, he is not entitled to raise this issue for the first time in this court. We agree with the State.

Generally, issues not raised in the trial court may not be raised for the first time on appeal.⁷ This rule is not an absolute bar to review.⁸ In the context of sentencing, the general rule is that "[a] sentence within the standard range for the offense shall not be appealed."⁹ Illegal or erroneous sentences, however, may be challenged for the first time on appeal.¹⁰

The Washington Supreme Court recently considered whether a challenge to the classification of out-of-state convictions for sentencing purposes could be raised for the first time on appeal.¹¹ Under the Sentencing Reform Act, "Out-of-state convictions for offenses shall be classified according to the comparable offense...