State v. Coombes (In re Coombes)

• Decision Date: 10 November 2015
• Docket Number: Nos. 32806–6–III,32903–8–III.,s. 32806–6–III
• Citation: 361 P.3d 270
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Michael Duke COOMBES, Appellant. In the Matter of the Personal Restraint of Michael Duke Coombes, Petitioner.

361 P.3d 270

STATE of Washington, Respondent,

v. Michael Duke COOMBES, Appellant.In the Matter of the Personal Restraint of Michael Duke Coombes, Petitioner.

Nos. 32806–6–III

32903–8–III.

Court of Appeals of Washington, Division 3.

Nov. 10, 2015.

Kristina M. Nichols, Nichols Law Firm, PLLC, Spokane, WA, for Appellant.

Brian Clayton O'Brien, Spokane Co. Pros. Atty., Spokane, WA, Larry D. Steinmetz, Cnty. Prosc. Atty. Ofc., Spokane, WA, for Respondent.

Opinion

LAWRENCE–BERREY, J.

¶ 1 After withdrawing his guilty plea, Michael Coombes was convicted of first degree murder while armed with a firearm. Mr. Coombes appeals, contending (1) the trial court erred in imposing a 36–month term of community custody, (2) the trial court erred by imposing a community custody condition prohibiting Mr. Coombes from having any association or contact with gang members or their associates, and (3) the judgment and sentence improperly omitted the jury's finding that Mr. Coombes used a firearm in the commission of the first degree murder. In his consolidated personal restraint petition (PRP), Mr. Coombes contends that the sentencing court erred in including a conviction for unlawful possession of a firearm in its calculation of his offender score.

¶ 2 We affirm Mr. Coombes's conviction and dismiss his PRP. We remand for the trial court to (1) correct the community custody term to be consistent with the law in effect in 2007, (2) conduct a hearing to consider the gang association prohibition, and (3) include in the judgment and sentence the jury's finding that Mr. Coombes used a firearm in the commission of the first degree murder.

FACTS

¶ 3 In September 2007, the State charged Michael Duke Coombes with first degree murder while armed with a firearm and first degree unlawful possession of a firearm. In June 2008, Mr. Coombes pleaded guilty to first degree murder without a weapon enhancement and to first degree unlawful possession of a firearm. In the plea statement, the State made the following recommendation:

(g) ... 300 months in prison, credit for time served, dismiss weapon enhancement. Dismiss Intimidation of Witness charge, 08–1–00556–0, plead to Unlawful Possession of a Firearm charge on a different day, $500.00 crime victims compensation assessment, $200.00 court costs, $100.00 DNA [deoxyribonucleic acid] collection fee, restitution, 24–48 months community custody.

Clerk's Papers (CP) at 13, 21. On June 16, 2008, the trial court entered a judgment and sentence as to the first degree murder charge and a separate judgment and sentence as to the unlawful possession of a firearm charge.

¶ 4 In April 2009, Mr. Coombes filed a motion for writ of habeas corpus in superior court alleging his plea was invalid. The superior court transferred the writ to this court for consideration as a PRP. In an unpublished opinion filed January 27, 2011,¹this court granted Mr. Coombes's PRP and remanded the case back to the trial court to allow him to withdraw his guilty plea because he was not informed that early release credits were unavailable during the first 240 months of his first degree murder sentence. Mr. Coombes then withdrew his guilty plea and the case was set for a jury trial.

¶ 5 Before trial, Mr. Coombes moved in limine to exclude any mention of his alleged gang affiliation. In response, the State stipulated that it would not elicit testimony from its law enforcement witnesses regarding any gang affiliation but that it wanted to reserve the right to raise gang-related evidence for purposes of impeachment of witnesses related to the witness intimidation charge.

¶ 6 At trial, the State called April Atkinson to testify for purposes of the witness intimidation charge. During her testimony, the State asked Ms. Atkinson whether she recalled Mr. Coombes saying, “ ‘I got Cryps, [sic] Blood, mafia, whatever gangs you can think of after [witness Jamie Hall], so [Ms. Hall] better watch her back[.]’ ” Report of Proceedings (RP) at 420. Ms. Atkinson replied that she did not remember Mr. Coombes making the statement. The State later called Detective Theresa Ferguson to testify regarding her investigation. Detective Ferguson testified that Ms. Atkinson had told her that Mr. Coombes made the above-quoted threat concerning Ms. Hall. Detective Ferguson also testified that Ms. Atkinson had told her that Mr. Coombes believed certain people had “ratted him out.” RP at 586.

¶ 7 The State called Detective Timothy Madsen to testify for purposes of the first degree murder charge. Detective Madsen testified that Mr. Coombes made the following pretrial statements to him about the murder victim:

Q. And what did Mr. Coombes tell you next about Mr. Nichols?

A. He told us that Mr. Nichols, whom he described as Red, had been arguing with Mr. Coombes' nephew, Chris..... During the argument between Chris and Red, or Mr. Nichols, Chris had hit Mr. Nichols in the head after throwing an empty beer can at him.

Q. What did Mr. Coombes say happened after that?

A. He told us that Red, or Mr. Nichols, had walked over to Mr. Coombes and stated, quote, “You keep that fucker away from me or I'll stab him.”

Q. Stab who?

A. And he was referring to his—that Red was telling Mr. Coombes to keep Chris, Mr. Coombes' nephew, away from Red, or Mr. Nichols.

Q. What did he say next?

A. Mr. Coombes told us that at one point, Red had threatened Mr. Coombes by saying he knew some gypsy jokers that would take care of them, and then he told us he—

MR. COMPTON: Objection. Your Honor, can we approach on this?

THE COURT: Yes. (BENCH CONFERENCE HELD.)

MR. COMPTON: My objection is the next words out of the detective's mouth is going to be about Mr. Coombes' gang affiliation, which he claims to have some Aryan connection.

THE COURT: Is this going to be part of his statements as threats, but not the detective did not write any statements that he—

MR. TREECE: I'm sorry, Your Honor. I thought we went over this in the [CrR] 3.5. This is after he had been [read his Miranda²rights].

THE COURT: Right, but when we specifically talked about gang affiliation, I didn't hear the statement come out at the [CrR] 3.5hearing this was the specific statement. So I would [sustain the objection] because we ruled on that [during the motions in limine].

RP at 603–04.

¶ 8 At the end of trial, the jury found Mr. Coombes guilty of first degree murder while armed with a firearm and of tampering with a witness but not guilty of intimidating a witness. Mr. Coombes appealed the convictions for first degree murder and tampering with a witness. In an unpublished opinion filed June 18, 2013,³this court affirmed the conviction for first degree murder and reversed and remanded the tampering with a witness conviction because of an erroneous jury instruction.

¶ 9 On remand, the trial court resentenced Mr. Coombes on the first degree murder charge, lowering his offender score from a six to a five after removing the conviction for tampering with a witness pursuant to this court's June 2013 decision. In the judgment and sentence entered after resentencing, the trial court imposed a 36–month term of community custody. The trial court also imposed a community custody condition “[t]hat the defendant not be allowed to have any association or contact with known felons or gang members or their associates.” CP at 110. The judgment and sentence does not indicate the jury's finding that Mr. Coombes used a firearm in the commission of the first degree murder.

¶ 10 Mr. Coombes appeals.

ANALYSIS

1. Whether the sentencing court erred in imposing a 36–month term of community custody

¶ 11 Mr. Coombes contends, and the State concedes, that the trial court erred by imposing a 36–month term of community custody under RCW 9.94A.701, where the law in effect at the time of the offense, former RCW 9.94A.715 (2006), provided a variable term of 24 to 48 months of community custody for serious violent crimes.

¶ 12 This court reviews de novo whether the trial court had the requisite statutory authority to impose community custody conditions. State v. Armendariz,160 Wash.2d 106, 110, 156 P.3d 201 (2007). While Mr. Coombes challenges the term of community custody for the first time on appeal, such a challenge is appropriate because courts must correct an erroneous sentence upon discovery.In re Pers. Restraint of Call,144 Wash.2d 315, 331–32, 28 P.3d 709 (2001).

¶ 13 The Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, governs a court's imposition of community custody. The SRA provides that any sentence imposed under its authority must be in accordance with the law in effect when the offense was committed. RCW 9.94A.345. Mr. Coombes's crime occurred between August 30, 2007, and September 2, 2007, so former RCW 9.94A.715 governs. RCW 10.01.040would also support this conclusion, as it provides, “Whenever any criminal or penal statute shall be amended or repealed, all offenses committed ... while it was in force shall be punished or enforced as if it were in force, notwithstanding such amendment or repeal, unless a contrary intention is expressly declared in the amendatory or repealing act.”

¶ 14 This court analyzed a similar issue in State v. Snedden,166 Wash.App. 541, 544–45, 271 P.3d 298 (2012), citing RCW 10.01.040. This court concluded that the legislature had expressed the requisite “contrary intent” in the amendatory act. Id.at 544, 271 P.3d 298. The legislature had directed courts “to apply the provisions of the current community custody law to offenders sentenced after July 1, 2009, but who committed their crime prior to August 1, 2009 to the extent that such application is constitutionally permissible.” Lawsof2008, ch. 231, § 6. Therefore, because Mr. Snedden fit within this category and made “no argument that the application of the current statute is constitutionally impermissible,” this court concluded that the trial court properly relied on RCW 9.94A.701even though it was not in effect when he committed his crime. Snedden,166 Wash.App. at 544, 271 P.3d 298. But, unlike the offender in S...