State v. Larkin

• Decision Date: 03 May 1993
• Docket Number: No. 25761-7-I,25761-7-I
• Citation: 70 Wn.App. 349,853 P.2d 451
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Michael Henry LARKIN, Appellant. Division 1. Date

Page 349

70 Wn.App. 349

853 P.2d 451

STATE of Washington, Respondent, v. Michael Henry LARKIN, Appellant.

No. 25761-7-I.

Court of Appeals of Washington,

Division 1.

Date May 3, 1993.

Publication Ordered June 18, 1993.

Washington Appellate Defender Eric Broman, Seattle, for appellant.

Norm Maleng, King County Pros. Atty., Peter Goldman, Seattle, for respondent.

GROSSE, Judge.

Michael H. Larkin appeals his convictions on two counts of first degree robbery. Larkin claims his convictions violate the double jeopardy clause of the United States and Washington State Constitutions. Larkin contends the two counts must merge for purposes of sentencing. In addition, Larkin challenges the validity of the information charging him with the robbery. The State cross-appeals, claiming that the trial court erroneously calculated the offender score for sentencing by not including Larkin's prior rape conviction. We affirm the conviction and remand for resentencing.

On September 25, 1989, the appellant, Michael H. Larkin, and an accomplice robbed Kermit and Eleanor Abelson in their residence. Larkin and his accomplice roused the Abelsons by pounding on their front door and gained entry to the Abelson residence by stating they had something for the Abelsons' son, Bruce. Mr. Abelson opened the door and the two intruders pushed their way inside, knocking Mr. Abelson down. Larkin was carrying a sawed-off .12 gauge shotgun; his accomplice was disguised with a nylon stocking over his face. Larkin pointed the gun at the Abelsons and ordered the couple to lie on the floor. Mr. Abelson remained on the floor near the door; Mrs. Abelson was on the floor near the kitchen. As Larkin kept the gun trained on the Abelsons, the accomplice demanded the couple's money and guns. The accomplice took cash from Mr. Abelson's wallet in the bedroom and a watch of Mrs. Abelson's that had been given to her by Mr. Abelson. The accomplice also took a small gun collection of Mr. Abelson's. The two men then left the Abelson residence, taking the handset cords from the telephones with them.

Larkin was arrested 3 days later for suspicion of first degree robbery and, after receiving Miranda warnings, Larkin confessed to his participation in the crime. Larkin was charged with two counts of first degree robbery. ¹ Larkin was tried by jury and found guilty of two counts of first degree robbery. By special verdict, the jury found Larkin was armed with a deadly weapon.

At the sentencing hearing, the court reviewed Larkin's criminal history, which included a previous conviction for second degree rape. Although Larkin was 17 when charged with that conviction, the juvenile court declined jurisdiction, and Larkin was tried as an adult. Larkin was convicted of second degree rape, a class B felony, at age 17. The trial court did not factor this previous conviction into Larkin's offender score because the Sentencing Reform Act of 1981 (SRA) discounts juvenile class B or C felonies if the defendant is over 23 at the commission of the current offense. Former RCW 9.94A.360(4). ² The trial court considered the rape conviction as a juvenile offense, and accordingly did not include it in Larkin's criminal history because Larkin was over 23 years of age when the robberies were committed.

In addition, the trial court included both convictions of first degree robbery in computing the offender score. Because first degree robbery is a violent felony, Larkin's offender score increased to 2 for each conviction of robbery. The standard range sentence for first degree robbery with a deadly weapon is 65 to 78 months, based upon an offender score of 2. ³ The trial court sentenced Larkin to 75 months for each count of robbery, to be served concurrently.

Larkin claims his conviction for both counts of robbery violates the double jeopardy clause embodied in the fifth amendment of the United States Constitution and article I, section 9 of the Washington Constitution. The double jeopardy clause of the Fifth Amendment guarantees that no individual shall be "subject for the same offense to be twice put in jeopardy of life or limb". U.S. Const. amend. V. Similarly, the Washington constitution provides: "No person shall be compelled in any criminal case to give evidence against himself, or be twice put in jeopardy for the same offense." Wash. Const. art. I, § 9. The article I, section 9 double jeopardy provision has been construed to provide protection identical to that provided under the federal constitution. State v. Schoel, 54 Wash.2d 388, 391, 341 P.2d 481 (1959).

The double jeopardy clause provides 3-fold protection against: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). The Supreme Court indicated in Albernaz v. United States, 450 U.S. 333, 344, 101 S.Ct. 1137, 1144, 67 L.Ed.2d 275 (1981), that the legislature has the authority to determine punishment, and accordingly may permit multiple punishments: "[T]he question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed." Albernaz, 450 U.S. at 344, 101 S.Ct. at 1145. The Court again emphasized the importance of legislative intent in Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983): "[T]he Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Hunter, 459 U.S. at 366, 103 S.Ct. at 678. Absent specific expression of legislative intent, in order to determine whether the legislature intended to allow multiple convictions and punishments for a course of conduct, the Supreme Court has set forth a rule of statutory construction. This "same evidence" test examines " 'whether each provision requires proof of a fact which the other does not.' " Albernaz v. United States, 450 U.S. at 339, 101 S.Ct. at 1142 (quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932)). Similarly, the Washington Supreme Court has stated that two offenses are the "same offense" under the double jeopardy clause if the offenses are

the same in law and in fact. If there is an element in each offense which is not included in the other, and proof of one offense would not necessarily also prove the other, the offenses are not constitutionally the same and the double jeopardy clause does not prevent convictions for both offenses.

In re Fletcher, 113 Wash.2d 42, 47, 776 P.2d 114 (1989) (citing State v. Vladovic, 99 Wash.2d 413, 423, 662 P.2d 853 (1983)).

As an initial matter, this court must determine if Larkin was indeed subjected to multiple punishments. If the sentences for multiple convictions run concurrently and do not exceed the maximum penalty for the most serious crime, no violation of double jeopardy exists. State v. Johnson, 96 Wash.2d 926, 932, 639 P.2d 1332 (1982), In re Sauve, 103 Wash.2d 322, 330, 692 P.2d 818 (1985). In the case at hand, the sentences are concurrent; however, the second conviction is factored into the offender score underlying each robbery sentence. Consequently, the 75-month sentence exceeds the maximum penalty for one robbery conviction based upon an offender score of zero, which would have been 65 months. ⁴ Therefore, if both robbery convictions are based upon the same offense, Larkin is being subjected to multiple punishments for the same offense in violation of the prohibition against double jeopardy.

The question of whether the double jeopardy clause prohibits the conviction of multiple counts of robbery based upon the number of victims is addressed in State v. Rupe, 101 Wash.2d 664, 683 P.2d 571 (1984). The Rupe court found that the elements of robbery ⁵ included (1) the taking of property, and (2) the use or threat of force on the victim. Rupe, 101 Wash.2d at 693, 683 P.2d 571. In that case, the defendant had taken money from two different bank tellers during the course of a single bank robbery. The defendant charged that because the bank owned the property, only one robbery had taken place. The court disagreed, reasoning it was not necessary for the victim to own the property taken; possession or custody was sufficient to satisfy the robbery statute. Therefore, because each teller had separate control and possession of the money, which was taken by force, thedefendant's conviction on two counts of robbery did not place him in double jeopardy. ⁶

Larkin argues Rupe is inapposite, contending that this case is controlled by State v. Johnson, 48 Wash.App. 531, 740 P.2d 337, review denied, 109 Wash.2d 1011 (1987). In Johnson this court held that a video store robber could not be convicted of two counts of robbery without violating the prohibition against double jeopardy. In that case, the robber had not taken any money directly from the two store clerks, but took only items the clerks had joint responsibility for. Because the same evidence was used to prove each conviction, the court reasoned that only one robbery had occurred. Johnson, 48 Wash.App. at 535, 740 P.2d 337. ⁷

Johnson is distinguishable, however. Johnson addresses the robbery of a commercial establishment in which no personal property was taken and no business property was taken directly from either clerk. In a case factually similar to the present case, State v. Turner, 31 Wash.App. 843, 644 P.2d 1224, review denied, 97 Wash.2d 1029 (1982), the court found no double jeopardy when a defendant was convicted on two counts of robbery after robbing Mr. and Mrs. Sackman in their home. The defendant took cash from Mr. Sackman's wallet, which was in another room, Mrs. Sackman's purse, jewelry from Mrs. Sackman's hand, ammunition, and a coin collection. The court found the circumstances of the robbery supported...