State v. Roy, 34078-3-III

• Decision Date: 15 June 2017
• Docket Number: No. 34078-3-III,34078-3-III
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. ZACHARY R. ROY, Appellant.

STATE OF WASHINGTON, Respondent, v. ZACHARY R. ROY, Appellant.

No. 34078-3-III

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

June 15, 2017

COURT OF APPEALS, DIVISION III, STATE OF WASHINGTON

STATE OF WASHINGTON, Respondent,

v.

ZACHARY R. ROY, Appellant,

ORDER WITHDRAWING ORDER DENYING MOTION FOR RECONSIDERATION AND AMENDING OPINION

The court on its own motion finds that the Order Denying Motion for Reconsideration and Amending Opinion filed on September 7, 2017, should be withdrawn. Therefore,

IT IS ORDERED the Order Denying Motion for Reconsideration and Amending Opinion of this court's decision of June 15, 2017, is withdrawn.

PANEL: Judges Lawrence-Berrey, Korsmo, and Fearing.

FOR THE COURT:

/s/_________

GEORGE FEARING

CHIEF JUDGE

COURT OF APPEALS, DIVISION III, STATE OF WASHINGTON

STATE OF WASHINGTON, Respondent,

v.

ZACHARY R. ROY, Appellant,

ORDER DENYING MOTION FOR RECONSIDERATION AND AMENDING OPINION

The court has considered appellant's motion for reconsideration and the response thereto, and is of the opinion the motion should be denied. Therefore,

IT IS ORDERED the motion for reconsideration of this court's decision of June 15, 2017, is denied.

IT IS FURTHER ORDERED that the opinion filed on June 15, 2017, shall be amended as follows:

The paragraph that begins on page 8 with "In the context" and ends on page 9 shall be deleted and the following shall be substituted in its place:

Zachary's argument that his attorney was deficient requires us to charge his attorney with foreknowledge that the trial court would consider the evidence for a purpose other than why Teresa checked her office window. But foreknowledge is not the proper standard for ineffective assistance claims. "'The reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances.'" In re Pers. Restraint of Davis, 152 Wn.2d 647, 673, 101 P.3d 1 (2004) (quoting Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986) (citing Strickland, 466 U.S. at 688-89)). For this reason, Zachary has not established that defense counsel's failure to object constituted deficient performance.

PANEL: Judges Lawrence-Berrey, Korsmo, and Fearing.

BY A MAJORITY:

/s/_________

ROBERT E. LAWRENCE-BERREY

ACTING CHIEF JUDGE

UNPUBLISHED OPINION

LAWRENCE-BERREY, J. — Zachary Roy, a minor, appeals his adjudications for residential burglary and second degree theft. He argues he received ineffective assistance of counsel because his trial counsel failed to object to hearsay. He also argues the trial court erred when it determined it could not enter a suspended disposition. We determine that the alleged hearsay was admissible for a nonhearsay purpose, so defense counsel's failure to object was not deficient performance. The State correctly concedes that the trial court erred when it concluded it lacked authority to suspend the disposition. We therefore affirm the adjudications, but remand for a disposition hearing so the trial court may suspend the remainder of Zachary Roy's sentence if it so desires.

FACTS

Beginning in 2014, Zachary Roy resided with his grandmother, Teresa Roy, and Teresa's mother.¹ Zachary received $5 per week as allowance, and sometimes additional money for extra chores. Teresa estimated she gave her grandson about $240 since he moved in with her, although he usually spent his allowance on small items such as pop. He had no other source of income.

On October 9, 2015, while Zachary was at school, Teresa smelled marijuana coming from Zachary's bedroom. She entered his bedroom and found a marijuana container and Zachary's wallet on his bed. Teresa looked inside her grandson's wallet and found $882.

Teresa maintained a home office for her towing business. She had instructed Zachary not to enter the office without her permission or outside of her presence. After noticing the money in Zachary's wallet, Teresa decided to check her office file cabinet, which was where she stored her money from her business. She discovered multiple hundred dollar bills missing. She also found the office window unlocked and noticed that items in her office had been moved.

Teresa called Asotin County juvenile probation officers and local law enforcement. Deputy Destry Jackson responded to the call. Teresa showed Deputy Jackson the wallet and the marijuana container. She also showed him the file cabinet in her office where she stored her money from her business. She told Deputy Jackson that her grandson had previously taken money from her and she believed he had done so again. She also told him she went over her invoices and bank deposit slips, and the tally showed a significant cash deficit since her last trip to the bank two days prior.

After Zachary came home from school he played with his friends in the basement. When they left, Zachary went into his room and then left his room upset. Teresa told Zachary she knew he had taken her money. Zachary denied the accusation.

PROCEDURE

The State charged Zachary Roy with second degree theft and residential burglary. As with all juvenile adjudications, the parties tried their case to the bench.

The State called two witnesses: Teresa Roy and Deputy Destry Jackson, the responding officer. In addition to the facts set forth above, Teresa testified:

Q And, did you notice anything else about the condition of your room?

A Yeah. I checked—I went around and tried to figure out—because my mother had said he'd been going around the outside of the house, to figure out how he would have got in. And, that's when I found that thewindow looked locked but it wasn't. So,—I have since put a stick in that window, too.

Report of Proceedings (RP) (Feb. 5, 2016) at 24 (emphasis added). Defense counsel did not object to the italicized portion of Teresa's answer.

Zachary testified in his own defense. According to Zachary, he questioned his grandmother about taking the money from his wallet, but she did not address his question directly. He did not report the missing money to law enforcement due to his prior experience with the justice system and his concern that law enforcement would not believe him. He explained that the large amount of cash in his wallet was from selling his gaming system for about $150 and saving his allowance. He testified he converted the small bills he received as allowance into larger bills. Zachary denied that he sold marijuana as the source for the cash.

The parties gave their closing arguments. The State argued the evidence of the large amount of money in Zachary's wallet and the large amount of money missing from Teresa's file cabinet was strong circumstantial evidence of Zachary's guilt. The State also argued that Zachary's explanation that he saved the money and sold his gaming system did not add up to the amount of money found in his wallet. The State did not argue that Teresa's mother saw Zachary going around outside the house the day of the theft or any other day.

The trial court found Zachary guilty as charged. In its oral ruling, the trial court noted that its verdict was based on circumstantial evidence, and that no one piece of evidence was sufficient. The trial court further noted, "when I tie all these things together to make a nice little rope of evidence, so to speak, I do find that it all adds to concluding that there . . . is no reasonable doubt that [Zachary] committed theft in the second degree and residential burglary." RP (Feb. 5, 2016) at 68. In its ruling, the trial court emphasized four pieces of circumstantial evidence. First, the amount of money Zachary could have saved from his allowance, $240, in addition to the amount he testified he received from selling his gaming system, $150, was far short of $882. Second, Teresa's mother saw Zachary outside of the window the day the money went missing.² Third, the number of $100 bills found in Zachary's wallet compared to the number of $100 bills missing from his grandmother's file cabinet. Fourth, Zachary did not report to the police that his grandmother took his money. These oral findings were later formalized into written findings.

During the disposition hearing, defense counsel asked the trial court to consider a suspended sentence under "Option B" of the juvenile sentencing statute. In response, the State argued:

MR. LEHMAN: And your Honor . . . I would note the court specifically to section (3) of . . . Option B . . . which [says] an offender is ineligible for a suspended disposition under the section if the offender is . . . 14 years of age or older and is adjudicated on [one] or . . . more [of the] following offenses—I would note that the defendant was born in May of 2000, this offense was in October 2015 so he would have been—15 at that point . . . and turn down to section (3) where it lists [several offenses including] residential burglary. He was specifically found to [have] committed the [offense] of residential burglary. It's specifically listed in the statute as an ineligible offense . . . for an Option B.

RP (Feb. 10, 2016) at 8.

The trial court agreed, and concluded as a matter of law that under RCW 13.40.0357(3)(b)(iii), Zachary's residential burglary adjudication rendered him ineligible for the Option B alternative. The court sentenced Zachary to 52 to 65 weeks of confinement for burglary, plus 15 to 36 weeks of confinement for theft, to be served consecutively.

LAW AND ANALYSIS

A. CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL

Zachary argues he received ineffective assistance of counsel because his attorney failed to object to his grandmother's statement that her mother said she saw Zachary going around the outside of the house.

The Sixth Amendment to the United States Constitution guarantees defendants the right to legal counsel in criminal trials. Like the federal constitution, Washington'sConstitution also grants an accused, in a criminal prosecution, the right to appear by counsel. CONST. art. I, § 22. The right to counsel under the...