State v. Statler, 28195–7–III.

CourtCourt of Appeals of Washington
Citation248 P.3d 165,160 Wash.App. 622
Decision Date15 March 2011
Docket NumberNo. 28195–7–III.,28195–7–III.
PartiesSTATE of Washington, Respondent and Cross–Appellant,v.Paul E. STATLER, Appellant.

160 Wash.App. 622
248 P.3d 165

STATE of Washington, Respondent and Cross–Appellant,
v.
Paul E. STATLER, Appellant.

No. 28195–7–III.

Court of Appeals of Washington, Division 3.

March 15, 2011.


[248 P.3d 168]

David L. Donnan, Lila Jane Silverstein, Washington Appellate Project, Seattle, WA, for Appellant.Mark Erik Lindsey, Spokane County Prosecuting Attorneys, Spokane, WA, for Respondent and Cross–Appellant.Jacqueline McMurtrie, UW Law Clinic–Innocence Project NW, Seattle, WA, Michael L. Cook, Karen S. Park, Mark J. Arnot, Schulte, Roth & Zabel, LLP, New York, NY, for Amicus Curiae on behalf of the Innocence Network.BROWN, J.

[160 Wash.App. 628] ¶ 1 Paul Statler appeals his convictions for first degree robbery, two counts of first degree assault and two counts of drive-by shooting stemming from an April 17, 2008 drug-buy incident, one in a series of Spokane Valley robberies around that date. A witness who admitted his participation in the April 17 incident provided evidence against Mr. Statler at trial. Following conviction, the trial court denied Mr. Statler's request for a new trial based on newly discovered evidence from a different participating witness who claimed he could provide exculpating evidence.

¶ 2 Mr. Statler contends the trial court erred by denying his new-trial request, ineffective assistance of counsel, State misconduct in threatening the exculpating witness, and double jeopardy. The State cross-appeals, contending the court erred in imposing a mitigated exceptional sentence in its concurrent sentencing. And, in his pro se statement of additional grounds for review (SAG), Mr. Statler adds his concerns over amending the crime date, the effectiveness of his counsel, and due process.

¶ 3 We affirm.

FACTS

¶ 4 In April 2008, Clifford Berger and Joni Jeffries arranged with Eric Weskamp to purchase oxycontin from Anthony Kongchunji. At about 10:00 p.m. on April 17, Mr. [160 Wash.App. 629] Kongchunji and several other men arrived at the Berger–Jeffries' home in a truck. Mr. Kongchunji instructed Mr. Weskamp to come outside with the money. Mr. Weskamp got into the truck with Mr. Kongchunji and the driver, Matthew Dunham, a juvenile. He was immediately “confronted by a bunch of people in bandannas and masks.” Report of Proceedings (RP) at 222.

¶ 5 The unidentified men beat Mr. Weskamp with a shotgun and a pistol, stole Mr. Berger and Ms. Jeffries' money, and left in the truck. Mr. Berger and a friend attempted to follow the men in the friend's car, but stopped when the men started firing at the car.

[248 P.3d 169]

¶ 6 Police later arrested Mr. Dunham on a separate oxycontin-related robbery and he identified individuals, including Mr. Statler, involved in the incident at the Berger–Jeffries' home in exchange for a lesser sentence.

¶ 7 The State charged Mr. Statler (and trial codefendants, Tyler Gassman and Robert Larson) with first degree robbery; two counts of attempted first degree murder, or alternatively first degree assault; and two counts of drive-by shooting. The information stated the events occurred “on or about April 15, 2008.” Clerk's Papers (CP) at 1–2. It stated each crime, except the drive-by shootings, occurred while “the defendants, as actors and/or accomplices, being at said time armed with a firearm.” CP 1–3.

¶ 8 After receiving police reports in late 2008 that indicated the offense date was probably April 17, the State successfully requested to amend the information on January 20, 2009, changing the date of the occurrence from April 15, 2008 to April 17, 2008. The court imposed $8,000 in sanctions against the State ($2,000 per defense attorney) for the late amendment and continued the trial date to February 2, 2009.

¶ 9 Mr. Dunham and Mr. Kongchunji both pleaded guilty to their involvement in the April 17 incident. During the plea, Mr. Kongchunji acknowledged Mr. Statler's participation as part of the factual basis for his plea. Mr. Dunham [160 Wash.App. 630] was sentenced to 18 months and Mr. Kongchunji was sentenced to over 14 years. While Mr. Kongchunji originally implicated Mr. Statler, he began to change his story and point the finger at Mr. Dunham's brother and friend. Mr. Statler's defense counsel interviewed Mr. Kongchunji and then listed him as a witness. Mr. Kongchunji was not called as a trial witness.

¶ 10 On February 17, 2009, a jury found Mr. Statler guilty of first degree robbery, two counts of first degree assault, and two counts of drive-by shooting. The jury specially found he was armed with a deadly weapon at the time of the robbery and the assaults.

¶ 11 The court sentenced Mr. Statler to 87 months on count I, 138 months on count II, 93 months on count III, and 41 months on counts IV and V. In addition, the court imposed 360 months for firearm enhancements on counts I, II, and III; the court doubled the mandatory firearm enhancements because Mr. Statler had a prior first degree robbery conviction, which included a deadly weapon enhancement. Mr. Statler withdrew his claim of error concerning the doubling of his sentence before argument. The court ran all sentences, except the 360–month firearm enhancements, concurrently, which resulted in a mitigated exceptional sentence of 498 months. The court justified the sentence based on, “the age of Mr. Statler, the amount of time Mr. Statler was receiving in comparison to the two co-defendants, and the fact that no victims were seriously injured in the crime.” CP at 315.

¶ 12 On February 26, 2009, Mr. Statler requested arrest of judgment under CrR 7.4 or a new trial under CrR 7.5, and on April 10, 2008, he amended his motion to request relief from judgment under CrR 7.8; all motions alleged that newly discovered testimony from Mr. Kongchunji could exonerate him. Mr. Statler offered a letter from Mr. Kongchunji to a codefendant's father stating that Mr. Statler was “not involved with any of the alleged incidents and the reason I know this is because I was involved.” CP at 106. Mr. Kongchunji went on to explain the details of an [160 Wash.App. 631] unrelated April 21, 2008 robbery. In the letter, Mr. Kongchunji explained he refused to testify at a separate trial relating to another incident because he was threatened with additional charges if he changed his story from the one he previously told to police. Mr. Statler offered Mr. Kongchunji's testimony from another trial that resulted in an acquittal where Mr. Kongchunji testified that he and Mr. Dunham had devised a plan while in jail together to pin the robberies on Mr. Statler in order to protect Mr. Dunham's brother and their friend. Mr. Kongchunji did not specifically mention the April 17 incident.

¶ 13 Defense counsel filed a posttrial declaration, stating that he did not call Mr. Kongchunji because he threatened to claim his Fifth Amendment privilege against self-incrimination.

[248 P.3d 170]

¶ 14 The trial court denied Mr. Statler's motions for relief from judgment, a new trial, or arrest of judgment, finding Mr. Kongchunji's testimony was not newly discovered evidence because he was available to testify before trial.

¶ 15 Mr. Statler appealed. The State cross-appealed the mitigated sentence.

ANALYSIS
A. New Trial Motion

¶ 16 The issue is whether the trial court erred by abusing its discretion in denying Mr. Statler's request for a new trial under CrR 7.5 or relief from judgment under CrR 7.8. Mr. Statler contends newly discovered evidence warrants relief under either of those rules.

¶ 17 While Mr. Statler originally requested relief under CrR 7.4, CrR 7.5 and CrR 7.8, he singles out rules CrR 7.5 and CrR 7.8 on appeal. Nonetheless, rulings involving all three rules are reviewed for abuse of discretion. See State v. Wilson, 113 Wash.App. 122, 135, 52 P.3d 545 (2002) (pertaining to CrR 7.4); State v. Thach, 126 Wash.App. 297, 318, 106 P.3d 782 (2005) (pertaining to CrR 7.5); [160 Wash.App. 632] State v. Swan, 114 Wash.2d 613, 642, 790 P.2d 610 (1990) (pertaining to CrR 7.8). The court abuses its discretion when it bases its decisions on untenable or unreasonable grounds. State v. Partee, 141 Wash.App. 355, 361, 170 P.3d 60 (2007).

¶ 18 A trial court will not grant a new trial on the basis of newly discovered evidence unless the moving party demonstrates that the evidence “(1) will probably change the result of the trial; (2) was discovered since the trial; (3) could not have been discovered before trial by the exercise of due diligence; (4) is material; and (5) is not merely cumulative or impeaching.” State v. Williams, 96 Wash.2d 215, 223, 634 P.2d 868 (1981). The absence of any one of these factors is grounds to deny a new trial. Id. Here, Mr. Statler fails to meet his burden.

¶ 19 When considering whether newly discovered evidence will probably change the trial's outcome, the trial court considers the credibility, significance, and cogency of the proffered evidence. State v. Barry, 25 Wash.App. 751, 758, 611 P.2d 1262 (1980). Significantly, the standard is “probably change,” not just possibly change the outcome. Williams, 96 Wash.2d at 223, 634 P.2d 868. “[D]efendants seeking postconviction relief face a heavy burden and are in a significantly different situation than a person facing trial.” State v. Riofta, 166 Wash.2d 358, 369, 209 P.3d 467 (2009).

¶ 20 Mr. Kongchunji's letter and testimony from a different trial do not specifically exonerate Mr. Statler from the charges here. Mr. Kongchunji mentioned in his letter and affidavit that Mr. Statler was not involved in the incident, but Mr. Kongchunji solely discussed an April 21, 2008 incident in his letter and did not mention the Berger–Jeffries incident in his later trial testimony. Notably, if Mr. Kongchunji had testified, then the State would have been permitted to impeach him with his conflicting prior statements, including his factual acknowledgment incriminating Mr. Statler at his plea hearing, rendering his testimony less credible. “[I]n evaluating probative force of newly presented evidence ‘the court...

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