State v. Kolesnik, 35837-9-II.

CourtCourt of Appeals of Washington
Citation192 P.3d 937,146 Wn. App. 790
Decision Date16 September 2008
Docket NumberNo. 35837-9-II.,35837-9-II.
PartiesSTATE of Washington, Respondent, v. Michael Vasiliy KOLESNIK aka Nichael M. Kolesnik, Appellant.

John A. Hays, Attorney at Law, Longview, WA, for Appellant.

Michael C. Kinnie, Attorney at Law, Vancouver, WA, for Respondent.


¶ 1 Michael Vasiliy Kolesnik1 appeals his conviction for first degree assault and his exceptional sentence of 240 months. In his appellate brief and statement of additional grounds2 (SAG), Kolesnik argues that (1) his trial counsel was ineffective for failing to have him evaluated by a psychiatrist in support of his diminished capacity defense, and for failing to object to propensity evidence; (2) the trial court's exceptional sentence was unlawful, clearly excessive, and contained unlawful community custody conditions; (3) the police unlawfully detained him at the scene; (4) the police failed to advise him of his Miranda3 rights; (5) the State's expert improperly referenced his criminal history in testimony. Kolesnik's arguments lack merit. We affirm.


¶ 2 On December 13, 2005, Kolesnik approached Robert Stover, who was standing by his pick-up truck outside a shopping center in Vancouver, Washington. Kolesnik's bizarre and erratic behavior alarmed Stover. Concerned that Kolesnik was under the influence of drugs and might harm someone, Stover called 911.

¶ 3 Corporal Greg Zimmerman of the Vancouver Police Department responded to the 911 call. Zimmerman was in uniform and driving a marked patrol vehicle when he contacted Kolesnik outside the shopping center. Although Kolesnik matched the caller's description of a "suspicious person" loitering in front of the shopping center and demonstrating bizarre behavior, Zimmerman did not notice that Kolesnik was acting in an erratic manner at that time. 2 Report of Proceedings (RP) at 50. Zimmerman parked his patrol vehicle, approached Kolesnik, and asked to speak with him.

¶ 4 Corporal Zimmerman asked Kolesnik for his identification. Kolesnik replied that he did not have his identification with him. Because the caller had indicated that Kolesnik had been displaying erratic behavior, Zimmerman decided to frisk Kolesnik for weapons before talking with him further and instructed him to turn around. Kolesnik turned and ran from the scene.

¶ 5 After a few steps, Kolesnik slipped and fell to the ground. Kolesnik resisted Corporal Zimmerman's attempts to restrain him and a struggle ensued. As Zimmerman tried to handcuff Kolesnik, he noticed that Kolesnik was holding a long, slender metal object. Kolesnik hit Zimmerman in the head with the metal object several times. Additional officers responded to assist Zimmerman.

¶ 6 Responding officers asked Kolesnik his name, whether and what kind of drugs he had used that morning, and whether he needed medical attention. In response to these questions, Kolesnik provided the name "Vasiliy Davidenko" and stated that he did not need medical attention. 2 RP at 25. Kolesnik also made several statements containing numerous expletives, referenced prior drug use, and made hostile assertions to police officers. The police transported Kolesnik to the police station where they advised him of his Miranda4 rights.

¶ 7 Corporal Zimmerman received medical treatment for several stab wounds and abrasions to his head. One stab wound was within a centimeter of Zimmerman's temporal artery, and another penetrated an inch into his ear canal. According to the treating physician, Zimmerman's wounds were consistent with injuries inflicted by a screwdriver. Officers found a screwdriver at the scene.

¶ 8 The State charged Kolesnik with one count of attempted second degree murder and, in the alternative, one count of first degree assault. Both charges included a deadly weapon enhancement. The State later amended the information to include the law enforcement officer enhancement language of former RCW 9.94A.535(3)(v) (2005).5 Kolesnik asserted defenses of diminished capacity and self-defense.

¶ 9 The trial court entered an order for a competency evaluation before trial.6 The evaluators found Kolesnik competent and reported that he did not exhibit signs of diminished capacity or insanity at the time of the incident. Based on this report, Kolesnik's trial counsel stipulated to competency.

¶ 10 At a CrR 3.5 hearing, Kolesnik moved to suppress statements he made to police immediately following his altercation with Corporal Zimmerman. The trial court ruled that Kolesnik was in custody at the scene and that his voluntary and spontaneous statements were admissible, but it excluded statements Kolesnik made at the scene in response to direct police questioning.

¶ 11 At trial, Dr. Margaret Dean testified that she interviewed Kolesnik in June 2006. According to Dean's testimony, Kolesnik suffered from several substance abuse issues, an amphetamine-induced psychotic disorder in remission, as well as antisocial personality disorder. Dean explained that antisocial personality disorder is a diagnosis common to individuals who exhibit a pattern of being inconsiderate of the rights and safety of others, harming others, feeling no remorse for their actions, as well as individuals who have difficulty following the law. In reaching her conclusion, Dean said one of the sources she relied on was Kolesnik's criminal history.

¶ 12 Kolesnik's trial counsel objected to any reference of Kolesnik's prior criminal history. Kolesnik's trial counsel clarified that he did not object to most of Dr. Dean's testimony because it supported his client's diminished capacity defense, but he sought to exclude any reference to Kolesnik's criminal history. Kolesnik stated on the record that he agreed with his trial counsel's strategy.

¶ 13 The trial court sustained defense counsel's objection and instructed the jury to disregard any reference-to Kolesnik's criminal history. Dr. Dean concluded that Kolesnik may have experienced methamphetamine-induced psychotic symptoms at the time of the incident, but she opined that he was still capable of acting intentionally and was likely aware that Corporal Zimmerman was a police officer.

¶ 14 In addition to the charged offenses (attempted second degree murder and first degree assault), the trial court instructed the jury on the lesser included offenses of second and third degree assault. The jury found Kolesnik guilty of first degree assault, and found that Kolesnik (1) had used a deadly weapon in the commission of the crime and (2) knew that his victim was a law enforcement officer engaged in his official duties at the time he assaulted him.

¶ 15 Based on Kolesnik's offender score,7 the standard range for the crime of first degree assault was 111 to 147 months confinement. With a 24-month deadly weapon enhancement, the standard range increased to 135 to 171 months.8 Based on the jury's finding of the aggravating factor that Kolesnik knew the victim was a police officer engaged in official police duties at the time of the offense, the trial court found that substantial and compelling reasons existed justifying an exceptional sentence above the standard range for Count I and imposed an exceptional sentence of 240 months confinement. In addition, the trial court imposed 36 to 48 months community custody with related conditions.9 Kolesnik timely appeals.


¶ 16 Kolesnik first contends that he received ineffective assistance of counsel. The federal and state constitutions guarantee a defendant the right to effective assistance of counsel. U.S. CONST. amend VI; WASH. CONST. art. I, § 22; Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail on an ineffective assistance of counsel claim, Kolesnik must show that (1) his trial counsel's performance was deficient and (2) the deficiency prejudiced him. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Deficient performance is that which falls below an objective standard of reasonableness. Strickland, 466 U.S. at 688, 104 S.Ct. 2052. To demonstrate prejudice, he must show that his trial counsel's performance was so inadequate that there is a reasonable probability that the result at trial would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. A failure to prove either element defeats his claim. Strickland, 466 U.S. at 700, 104 S.Ct. 2052.

¶ 17 Furthermore, we review trial counsel's performance in the context of the entire record below. State v. McFarland, 127 Wash.2d 322, 335, 899 P.2d 1251 (1995). And we strongly presume that counsel's representation was not deficient. McFarland, 127 Wash.2d at 335, 899 P.2d 1251. When the challenged action is a legitimate trial strategy, counsel is not ineffective. State v. Garrett, 124 Wash.2d 504, 520, 881 P.2d 185 (1994). Because the decision not to object constituted a tactical and expressly acknowledged trial strategy in support of Kolesnik's diminished capacity defense, Kolesnik's trial counsel was not ineffective.


¶ 18 Kolesnik argues that his trial counsel was ineffective because he failed to object to Dr. Dean's testimony that Kolesnik (1) suffered from antisocial personality disorder and (2) was the type of person who repeatedly harms others and feels no remorse for his actions. Specifically, Kolesnik argues that this testimony had little probative value and permitted the jury to convict Kolesnik based on his propensity to commit first degree assault. Because the record shows that trial counsel's decision not to object was part of a legitimate trial strategy that supported Kolesnik's diminished capacity defense, Kolesnik's trial counsel was not deficient.

¶ 19 There is no claim for ineffective assistance of counsel when the challenged action goes to a legitimate trial strategy or tactic. Garrett, 124 Wash.2d at 520, 881 P.2d 185. The decision whether to object is a classic example of trial...

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