State v. Rienks

• Decision Date: 14 January 1987
• Docket Number: No. 16932-7-I,16932-7-I
• Citation: 46 Wn.App. 537,731 P.2d 1116
• Parties: STATE of Washington, Respondent, v. Edward A. RIENKS, Appellant, and Mark A. Sedgemore, Defendant.
• Court: Washington Court of Appeals

Page 537

46 Wn.App. 537

731 P.2d 1116

STATE of Washington, Respondent, v. Edward A. RIENKS, Appellant and Mark A. Sedgemore, Defendant.

No. 16932-7-I.

Court of Appeals of Washington,

Division 1.

Jan. 14, 1987.

Mark W. Muenster, Washington Appellate Defender, Seattle, for appellant Edward A. Reinks.

Seth R. Dawson, Snohomish Co. Pros. Atty., Everett, for respondent State of Wash.

PEKELIS, Judge.

Edward A. Rienks appeals his conviction for one count each of first degree assault, first degree burglary, first degree robbery, and second degree assault. The first three counts arise out of an incident occurring on October 18, 1984, in the Lynnwood apartment of a man named Kenny, and the fourth count, the second degree assault, stems from an incident occurring in Kenny's apartment a few days later, on October 23, 1984. Rienks alleges that the trial court erred (1) in failing to merge the first degree assault charge with the first degree robbery charge; (2) in communicating with the jury outside the presence of his trial counsel; and (3) in calculating his standard sentence range under RCW 9.94A, the Sentencing Reform Act of 1981 (SRA). We affirm the trial court in part and reverse in part.

The testimony at trial revealed that on the evening of October 18, 1984, Rienks and Mark Sedgemore were sent to Kenny's apartment to collect money which he owed to a third person. They knocked, and the door was opened by a man named Jeffrey, who was apparently visiting Kenny. Rienks entered, shoved a small caliber pistol into Jeffrey's face and pushed him up against the wall. When Rienks ascertained that Jeffrey was not Kenny, he searched the apartment, eventually finding Kenny in one of the bedrooms. Jeffrey testified that Rienks was in the bedroom for about 5 minutes and then came back into the living room and started taking things out of a briefcase. Still holding the gun, Rienks told the people in the living room to remain there and not to try anything. Before backing out of the door he stated: "I'll be back. Be back for the rest."

On October 23, 1984, several people were once again in Kenny's apartment when Rienks knocked at the door. Sedgemore, who again had accompanied Rienks, testified that although voices and shuffling could be heard inside, nobody would open the door. Rienks stated, "I've got a message from the man. Pay your bills." He then shot a hole through the door just below the lock. A woman named Carlotta who was in the apartment testified that she was standing within a foot of the bullet's path.

The jury found Rienks guilty of all four counts and further found that he was armed with a deadly weapon. On July 29, 1985, the court sentenced Rienks under the SRA. In sentencing him for the first degree assault conviction the court used Rienks' current offenses to calculate his offender score. The court determined that the burglary and robbery convictions encompassed the same criminal conduct, and thus, these two offenses were collapsed into one for purposes of computing criminal history. The second degree assault conviction for the October 23 incident was also counted in calculating his criminal history. The resulting standard sentence range was 93 to 123 months. The court then imposed a 93-month sentence for the first degree assault conviction to run concurrently with the shorter sentences imposed for the three other convictions.

Rienks first contends that the first degree assault charge for pointing a gun in Jeffrey's face before finding and robbing Kenny should have merged into the first degree robbery charge because the assault was merely incidental to the robbery and created no separate or distinct injury. The record does not indicate that Rienks raised the merger issue below. An issue not raised before the trial court need not be considered for the first time on appeal unless it relates to a manifest error affecting a constitutional right. RAP 2.5(a); State v. Portnoy, 43 Wash.App. 455, 465, 718 P.2d 805 (1986).

While merger can involve a constitutional double jeopardy issue, State v. Johnson, 92 Wash.2d 671, 673, 600 P.2d 1249 (1979), cert. dismissed, 446 U.S. 948, 100 S.Ct. 2179, 64 L.Ed.2d 819 (1980), the rule in Washington is that it does not rise to constitutional proportions where, as here, convictions are obtained on all counts but the sentences run concurrently and do not exceed the maximum penalty imposed for any one of the offenses. State v. Johnson, 96 Wash.2d 926, 930-32, 639 P.2d 1332 (1982). Rienks was given concurrent sentences for all four of his convictions, none of which exceeded the sentence imposed for the first degree assault conviction. Since there is no constitutional issue, he is precluded from raising the merger issue for the first time on appeal.

Rienks next contends that the trial court erred in calculating his standard sentence range. Specifically, he assigns error to the calculation of his criminal history, relying on RCW 9.94A.400(1)(a) which provides:

Except as provided in (b) of this subsection, whenever a person is convicted of two or more offenses, the sentence range for each offense shall be determined by using all other current and prior convictions as criminal history. All sentences so determined shall be served concurrently . Separate crimes encompassing the same criminal conduct shall be counted as one crime in determining criminal history.

(Emphasis added.) Rienks argues that the first degree assault committed against Jeffrey encompassed the same criminal conduct as the first degree robbery committed against Kenny. While the sentencing judge did rule that the first degree burglary encompassed the same criminal conduct as the first degree robbery, and thus the two were counted as only one crime in determining criminal history, the judge would not agree that the first degree assault also encompassed the same criminal conduct as the burglary and robbery.

Citing State v. Ammons, 105 Wash.2d 175, 713 P.2d 719, 718 P.2d 796 (1986), the State first contends that the sentence is not reviewable because the 93-month term imposed was not only within the standard sentence range as found by the sentencing judge, but would also have been within the applicable standard sentence range of 77-102 months had the court determined that the first degree assault, first degree burglary, and first degree robbery all encompassed the same criminal conduct. Second, the State argues that even if reviewable, Rienks' contention must be rejected because the "encompassing the same criminal conduct" provision is not applicable where, as here, the assault was perpetrated on a victim different from the victim of the robbery.

We first hold that the issue is reviewable. Ammons, at 182-83, 713 P.2d 719, states that RCW 9.94A.210(1) precludes appellate review of challenges to sentences imposed within the standard range, but does not preclude challenges to the procedure by which a sentence within the standard range is imposed. Here, Rienks challenges the procedure by which the court arrived at the standard sentence range.

Thus, we now address Rienks' substantive claim. In the recent case of State v. Edwards, 45 Wash.App. 378, 725 P.2d 442 (1986), this court had its first opportunity to interpret the phrase "encompassing the same criminal conduct" as contained in former RCW 9.94A.400(1)(a). In Edwards, while the defendant was in the car of his former supervisor, he pulled a gun and pointed it at her. When she eventually drove into a fire station in an attempt to get help, a paramedic approached the car and Edwards waved the gun at him. Edwards was charged with and pleaded guilty to second degree assault for waving the gun and second degree kidnapping for the abduction. The sentencing court determined that the two crimes did not encompass the same criminal conduct. Edwards, at 379, 725 P.2d 442. On appeal, this court disagreed and reversed the sentencing determination, holding that:

The kidnapping of the supervisor and the assault on the paramedic were intimately related; there was no substantial change in the nature of the criminal objective. The kidnapping was continuing and still in progress at the time the assault occurred. Moreover, the assault was committed in furtherance of the kidnapping.

Edwards, at 382, 725 P.2d 442. The case sub judice differs from Edwards in that the assault occurred before the robbery, and thus the primary crime was not continuing and still in progress when the secondary crime occurred. However, this difference does not detract from the major focus of Edwards or from the relevance of its analysis to the situation here.

In analyzing the meaning of the phrase "encompassing the same criminal conduct," the court in Edwards relied in large part on State v. Adcock, 36 Wash.App. 699, 676 P.2d 1040 (1984), and State v. Calloway, 42 Wash.App. 420, 711 P.2d 382 (1985), both of which interpreted the phrase "same course of conduct" as set forth in RCW 13.40.020(6)(a), a subsection of the Juvenile Justice Act of 1977 addressing criminal history. These cases are instructive under the facts presented here.

Adcock defined course of conduct as conduct that is "committed as part of any ordered or continuing sequence or under any recognizable scheme or plan." Adcock, 36 Wash.App. at 706, 676 P.2d 1040. Citing State v. Erickson, 22 Wash.App. 38, 44, 587 P.2d 613 (1978), the court also stated that "[a] criminal event which is intimately related or connected to another criminal event is held to arise out of the same criminal conduct." Adcock, 36 Wash.App. at 706, 676 P.2d 1040. The court found that three crimes committed during a 2-day period did not amount to the same course of conduct because they were committed at different locations and at...