State v. Hunley

• Decision Date: 02 June 2011
• Docket Number: No. 39676–9.,39676–9.
• Citation: 253 P.3d 448,161 Wash.App. 919
• Parties: STATE of Washington, Respondent,v.Monte W. HUNLEY, Appellant.
• Court: Washington Court of Appeals

161 Wash.App. 919

253 P.3d 448

STATE of Washington, Respondent,

v.Monte W. HUNLEY, Appellant.

No. 39676–9.

Court of Appeals of Washington, Division 2.

May 17, 2011.As Amended June 2, 2011.

OPINION TEXT STARTS HEREWest CodenotesHeld UnconstitutionalWest's RCWA 9.94A.530(2)Unconstitutional as AppliedWest's RCWA 9.94A.500(1) Manek R. Mistry, Jodi R. Backlund, Backlund & Mistry, Olympia, WA, for Appellant.Gerald R. Fuller, James Garnet Baker, Grays Harbor Co. Pros. Ofc., Montesano, WA, for Respondent.WORSWICK, A.C.J.

[161 Wash.App. 922] ¶ 1 A jury found Monte Hunley guilty of attempting to elude a police vehicle. Hunley appeals, arguing (1) that defense counsel rendered ineffective assistance by failing to request a lesser included offense instruction for reckless driving, and (2) that provisions of the Sentencing Reform Act ¹ (SRA) unconstitutionally relieve the State of its burden of proof at sentencing. Holding that reckless driving is not a lesser included offense in attempting to elude a police vehicle and that the challenged SRA provisions violate due process, we affirm Hunley's conviction and remand for resentencing, allowing the State an opportunity to prove the defendant's criminal history.

FACTS

¶ 2 On April 18, 2009, Washington State Trooper Ben Blankenship was working stationary radar duty off of Highway 12. He was in full uniform in a marked police car equipped with a light bar and siren. A black Mitsubishi Eclipse with a male driver sped past, and Trooper Blankenship used radar to measure its speed as 87 miles per hour in a 55–mile per hour zone. Trooper Blankenship followed the Eclipse, activating his lights and sirens. The Eclipse did not stop, but turned onto a two lane “rural residential” road with a posted speed limit of 30 miles per hour. Verbatim Report of Proceedings (VRP) (June 30, 2009) at 10. Trooper Blankenship estimated that the Eclipse was traveling at 70 miles per hour along this road.

¶ 3 The Eclipse sped through two stop signs and continued along two-lane roads, traveling approximately 60 miles per hour in 30– or 35–mile per hour zones. The Eclipse then turned off onto a dirt road. When Trooper Blankenship caught up to the Eclipse, it was abandoned. More officers arrived, including an officer with a tracking dog. The officers used the dog to track the car's occupants, finding Hunley nearby just below a riverbank, along with a female who had been in the car with him. Hunley admitted to being the Eclipse's driver.

¶ 4 The State charged Hunley with attempting to elude a police vehicle under RCW 46.61.024. The State also filed a special allegation under RCW 9.94A.834, alleging that one or more persons other than the defendant or the pursuing officer were threatened by Hunley's attempt to elude a police vehicle. A jury found Hunley guilty of attempting to elude a police vehicle, and returned a special verdict in the affirmative on the special allegation. At sentencing, the State offered a statement of prosecuting attorney listing Hunley's prior convictions for sentencing purposes.² Hunley did not acknowledge his criminal history, but did not object to the statement or dispute its accuracy. Based on the statement of prosecuting attorney, the trial court calculated Hunley's offender score as a five and sentenced Hunley to the top of that standard sentencing range.

ANALYSIS

I. Ineffective Assistance of Counsel

¶ 5 Hunley first argues that he was denied effective assistance of counsel at trial. He claims that because reckless driving is a lesser included offense in attempting to elude a police vehicle, defense counsel rendered ineffective assistance by failing to request a lesser included offense instruction. The State responds that pursuant to a 2003 amendment to RCW 46.61.024, reckless driving is no longer an included offense of attempting to elude a police vehicle. The State is correct.

¶ 6 The Sixth Amendment to the United States Constitution and article I, § 22 of the Washington State Constitution guarantee effective assistance of counsel. In re Pers. Restraint of Riley, 122 Wash.2d 772, 779, 863 P.2d 554 (1993); State v. Sardinia, 42 Wash.App. 533, 538, 713 P.2d 122 (1986). Denial of effective assistance is manifest error affecting a constitutional right, reviewable for the first time on appeal. See State v. Holley, 75 Wash.App. 191, 196–97, 876 P.2d 973 (1994); RAP 2.5(a). Appellate courts review ineffective assistance claims de novo. State v. Cross, 156 Wash.2d 580, 605, 132 P.3d 80 (2006).

¶ 7 Washington follows the ineffective assistance of counsel test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In re Pers. Restraint of Stenson, 142 Wash.2d 710, 720, 16 P.3d 1 (2001). In order to show that he received ineffective assistance of counsel, a defendant must show (1) that defense counsel's conduct was deficient, and (2) that the deficient performance resulted in prejudice. State v. Reichenbach, 153 Wash.2d 126, 130, 101 P.3d 80 (2004). Because both prongs must be met, a failure to show either prong will end the inquiry. See State v. Fredrick, 45 Wash.App. 916, 923, 729 P.2d 56 (1986).

¶ 8 Under the Workman³ test, a party is entitled to a lesser included offense instruction where “(1) each element of the lesser offense is a necessary element of the greater offense charged (the legal prong) and (2) the evidence in the case supports an inference that only the lesser crime was committed (the factual prong).” State v. Meneses, 169 Wash.2d 586, 595, 238 P.3d 495 (2010); In re Pers. Restraint of Crace, 157 Wash.App. 81, 106, 236 P.3d 914 (2010). Under the legal prong, an offense is not included in a crime when it is possible to commit the greater offense without committing the lesser offense. State v. Turner, 143 Wash.2d 715, 729, 23 P.3d 499 (2001) (quoting State v. Roybal, 82 Wash.2d 577, 583, 512 P.2d 718 (1973)). Under the factual prong, the evidence must support an inference that the defendant committed only the proposed lesser included offense. State v. Prado, 144 Wash.App. 227, 241–42, 181 P.3d 901 (2008) (quoting State v. Karp, 69 Wash.App. 369, 376, 848 P.2d 1304 (1993)).

¶ 9 Hunley's claim cannot satisfy the legal prong of the Workman test because it is possible to attempt to elude a police vehicle without committing reckless driving. A person is guilty of reckless driving when that person drives a vehicle in willful or wanton disregard for the safety of persons or property. RCW 46.61.500(1). In contrast, a person is guilty of attempting to elude a police vehicle when (1) a uniformed police officer signals the person to stop by hand, voice, emergency light, or siren; (2) the police officer is in a vehicle equipped with lights and sirens; (3) the defendant willfully fails or refuses to immediately bring the vehicle to a stop after being signaled to stop; and (4) the defendant drives his or her vehicle in a reckless manner. See RCW 46.61.024(1).

¶ 10 It is well settled that “in a reckless manner” means “driving in a rash or heedless manner, indifferent to the consequences.” State v. Roggenkamp, 153 Wash.2d 614, 621–22, 106 P.3d 196 (2005). This is a lower mental state than the “willful or wanton” mental state required for reckless driving. State v. Ridgley, 141 Wash.App. 771, 782, 174 P.3d 105 (2007). Because one can drive “in a reckless manner” without “willful or wanton disregard for the safety of persons or property,” one can be guilty of attempting to elude a police vehicle without being guilty of reckless driving. Consequently, reckless driving is not a lesser included offense in attempting to elude a police vehicle and Hunley was not entitled to a lesser included offense instruction under the legal prong of the Workman test.⁴

¶ 11 Because Hunley was not entitled to a lesser included offense instruction, any claim to that effect at trial would have failed. Hunley has therefore failed to demonstrate that his trial counsel's performance prejudiced him, and his ineffective assistance claim fails.

II. Burden of Proof at Sentencing

¶ 12 Hunley also contends the 2008 amendments to RCW 9.94A.500 and .530 violate due process.⁵ He argues that these sections of the SRA unconstitutionally relieve the State of its burden to prove prior convictions. We agree.

¶ 13 Our Supreme Court has consistently held that the State meets its constitutional burden to prove prior convictions at sentencing when it proves such convictions by a preponderance of the evidence. See State v. Ford, 137 Wash.2d 472, 479–80, 973 P.2d 452 (1999). In Ford, the court held that the State's “bare assertions, unsupported by evidence” are insufficient to prove a defendant's prior convictions. 137 Wash.2d at 482, 973 P.2d 452. The Ford court held that, under the basic principles of due process, the facts relied on in sentencing must have some basis in the record. 137 Wash.2d at 482, 973 P.2d 452 (quoting State v. Bresolin, 13 Wash.App. 386, 396, 534 P.2d 1394 (1975)). The court further held that the prosecutor's assertions are neither facts nor evidence, but merely argument. Ford, 137 Wash.2d at 483 n. 3, 973 P.2d 452. In its analysis, the court noted the critical importance of due process at sentencing, quoting the ABA Standards for Criminal Justice:

The meaning of appropriate due process at sentencing is not ascertainable in strictly utilitarian terms. There is an important symbolic aspect to the requirement of due process. Our concept of the dignity of individuals and our respect for the law itself suffer when inadequate attention is given to a decision critically affecting the public interest, the interests of victims, and the interests of the persons being sentenced. Even if informal, seemingly casual, sentencing determinations reach the same results that would have been reached in more formal and regular proceedings, the manner of such proceedings does not entitle them to the respect that ought to attend this exercise of a fundamental state power to impose criminal...