State v. Westwood
| Decision Date | 16 December 2021 |
| Docket Number | No. 37750-4-III,37750-4-III |
| Citation | 500 P.3d 182 |
| Parties | STATE of Washington, Respondent, v. Dahndre Kavaugn WESTWOOD, Appellant. |
| Court | Washington Court of Appeals |
Jill Shumaker Reuter, Eastern Washington Appellate Law, PLLC, P.O. Box 8302, Spokane, WA, 99203-0302, for Appellant.
Garth Louis Dano, Grant County Prosecuting Attorney's Office, 35 C St. Nw, P.O. Box 37, Ephrata, WA, 98823-1685, Kevin James McCrae, Grant County Prosecuting Attorney's Office, 35 C St. Nw, P.O. Box 37, Ephrata, WA, 98823-0037, for Respondent.
PUBLISHED OPINION
¶1 Dahndre Westwood appeals his sentence for attempted rape, burglary, and assault, arguing the sentencing range was erroneously inflated due to the trial court's failure to treat his convictions as the same criminal conduct. At sentencing, the court relied on State v. Chenoweth , 185 Wash.2d 218, 370 P.3d 6 (2016) to reject Mr. Westwood's same criminal conduct argument. As we explained in a prior unpublished opinion,1 Chenoweth 's same criminal conduct test does not apply outside the narrow context of child rape and incest. In cases such as Mr. Westwood's, involving different statutes of conviction, the applicable test is State v. Dunaway , 109 Wash.2d 207, 743 P.2d 1237, 749 P.2d 160 (1987). We again remand for resentencing pursuant to Dunaway.
¶2 Dahndre Westwood broke into a home, attempted to rape a woman, and then assaulted her when she resisted the attack. A jury later convicted Mr. Westwood of attempted first degree rape, first degree burglary, and first degree assault.2 At sentencing, Mr. Westwood requested his three convictions be treated as the same criminal conduct. Were the court to have granted this request, Mr. Westwood's final sentence would have been significantly reduced, based on a lower offender score and a requirement of concurrent terms of incarceration. Relying on Chenoweth , the trial court denied Mr. Westwood's same criminal conduct request. The court ruled that because the three convictions each carried a different statutory mens rea, they did not qualify for treatment as same criminal conduct. The court imposed a total sentence of 213 months' imprisonment, along with a $500 crime victim penalty assessment, a $200 criminal filing fee, and a $100 DNA (deoxyribonucleic acid) collection fee.
¶3 Mr. Westwood appealed his judgment and sentence. In our prior unpublished opinion, we generally affirmed Mr. Westwood's convictions, but remanded for resentencing on the same criminal conduct issue. See State v. Westwood , No. 35792-9-III, slip op. at 2 (Wash. Ct. App. Mar. 19, 2020) (unpublished) ( Westwood II),3 https://www.courts.wa.gov/opinions/pdf/357929_unp.pdf. Westwood II held Chenoweth 's same criminal conduct analysis is limited to the crimes of rape and incest. In other contexts, we explained our Supreme Court's earlier holding in Dunaway remains binding. Dunaway held that the mens rea or intent component of the same criminal conduct analysis is determined not by the statutory elements of the offense, but by whether the defendant's criminal intent, viewed objectively, "changed from one crime to the next." 109 Wash.2d at 215, 743 P.2d 1237, 749 P.2d 160.4
¶4 Because we remanded the case for resentencing, we did not address the additional claims of Mr. Westwood that the trial court erroneously imposed various legal financial obligations (LFOs). Instead, we noted the court could address Mr. Westwood's objections to LFOs at resentencing.
¶5 After Westwood II but before resentencing, Division Two of this court issued its decision in State v. Johnson , 12 Wash. App. 2d 201, 460 P.3d 1091 (2020), aff'd on other grounds , 197 Wash.2d 740, 487 P.3d 893 (2021), which applied Chenoweth to crimes beyond rape and incest. Johnson , 12 Wash. App. 2d at 211-13. On remand in Mr. Westwood's case, the State argued Johnson was binding precedent that effectively overruled our prior opinion in Westwood II.
¶6 The trial court conducted a hearing at which it heard from the State, defense counsel, Mr. Westwood, and the victim. The court took the matter under advisement and subsequently issued a letter opinion, explaining it had decided "not [to] resentence" Mr. Westwood. Clerk's Papers at 71, Westwood II, No. 35792-9-III (Wash. Ct. App.). The trial court did not explain whether it agreed with the State that the essence of our mandate had been overruled by Johnson. But the court also did not follow Westwood II, which had directed it to look at Dunaway instead of Chenoweth. Rather than clarify which appellate precedent it deemed binding, the court engaged in an independent analysis of Chenoweth and determined that, under Chenoweth , it must assess the intent component of the same criminal conduct analysis according to the legislature's intent, not the defendant's. Id. at 65. Because the legislature had different purposes in punishing assault, burglary, and rape, the trial court ruled the three offenses did not constitute the same criminal conduct. Id. at 70.
¶7 Because the trial court did not conduct a resentencing hearing, it did not readdress Mr. Westwood's LFOs as contemplated by our prior decision.
¶8 Mr. Westwood again appeals.
Same criminal conduct
¶9 "The Sentencing Reform Act of 1981 (SRA)[, chapter 9.94A RCW,] imposes a regime of structured discretion." State v. Parker , 132 Wash.2d 182, 186, 937 P.2d 575 (1997). At the heart of the SRA is a sentencing grid, which sets forth a series of standard sentencing ranges applicable to all offenses of conviction.5 The standard range is set by the seriousness level of the defendant's offense and the defendant's offender score. RCW 9.94A.510, .517. A defendant's offender score is calculated using both current and prior convictions. RCW 9.94A.589(1)(a). But not every conviction is included separately. Convictions encompassing the same criminal conduct count as only one offense. Id. In addition, current convictions that are considered the same criminal conduct must be ordered to run concurrently. Id.
¶10 The SRA defines "same criminal conduct" as "two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim." Id. The defendant bears the burden of proving multiple crimes constitute the same criminal conduct. State v. Aldana Graciano , 176 Wash.2d 531, 539-40, 295 P.3d 219 (2013). Because the assessment of whether two crimes constitute the same criminal conduct is fact intensive, we review a sentencing court's decision in this context for abuse of discretion. Id. at 535-36, 295 P.3d 219. The court necessarily abuses its discretion if it makes a mistake of law. Council House, Inc. v. Hawk , 136 Wash. App. 153, 159, 147 P.3d 1305 (2006). Legal issues are matters we review de novo. State v. Ramirez , 191 Wash.2d 732, 740, 426 P.3d 714 (2018).
¶11 The same criminal conduct test evokes the concept of double jeopardy. See U.S. CONST. amend. V ; WASH. CONST. art. I, § 9. Double jeopardy protects against not only multiple convictions, but also multiple punishments. State v. Hancock , 17 Wash. App. 2d 113, 117, 484 P.3d 514, review denied , 198 Wash.2d 1005, 493 P.3d 739 (2021). This aspect of double jeopardy is unique in that it does not encompass a freestanding right. "The State has broad authority to extract multiple punishments for the same conduct." Id. "Double jeopardy provides no defense, so long as multiple punishments are consistent with legislative intent." Id. Assessing whether a defendant has been subject to multiple punishments in violation of double jeopardy is "purely a matter of statutory interpretation." Id. Our review of a double jeopardy challenge is de novo. State v. Kelley , 168 Wash.2d 72, 76, 226 P.3d 773 (2010). Because double jeopardy is a constitutional claim, it can be raised for the first time on appeal. Hancock , 17 Wash. App. 2d at 117, 484 P.3d 514.
¶12 While the same criminal conduct analysis brings to mind the concept of double jeopardy, the two doctrines are distinct and require "a separate analysis." State v. French , 157 Wash.2d 593, 611, 141 P.3d 54 (2006). Unlike a double jeopardy challenge, a same criminal conduct claim is purely statutory and must be preserved in the trial court in order to generate a right of appeal. See In re Pers. Restraint of Goodwin , 146 Wash.2d 861, 875, 50 P.3d 618 (2002). The essence of a same criminal conduct challenge is factual, not legal. Aldana Graciano , 176 Wash.2d at 539-40, 295 P.3d 219. Thus, unlike what is true in the double jeopardy context, our review is for abuse of discretion. Id. at 537, 295 P.3d 219. The Washington Supreme Court has emphatically rejected a de novo standard in this context. Id.
¶13 For decades, the leading case in the same criminal conduct arena has been our Supreme Court's 1987 decision in Dunaway.6 The Dunaway court adopted the analysis in recent Court of Appeals decisions and held the "same criminal conduct" test turns on whether the defendant's objective manifestation of intent changed from one crime to the next. 109 Wash.2d at 214-15, 743 P.2d 1237, 749 P.2d 160. Although Dunaway used the word "intent" it did not do so in a formalistic way, as one would do when discussing elements of an offense. See State v. Adame , 56 Wash. App. 803, 810-11, 785 P.2d 1144 (1990) (). We look to the objective purpose of the defendant's crime (e.g., to steal money or to kill another) to discern whether the "same criminal conduct" test was met. See id. ; Dunaway , 109 Wash.2d at 214-15, 743 P.2d 1237, 749 P.2d 160.
¶14 The fact-intensive nature of Dunaway 's test has meant the same criminal conduct analysis does not always yield an obvious result. Courts may look at "whether one crime furthers the other or whether the offenses were part of a recognized plan or scheme" in assessing intent. State v....
To continue reading
Request your trial