                                                                       FILED
                                                                   NOVEMBER 6, 2018
                                                                In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III



            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                          )
                                              )         No. 35419-9-III
                     Respondent,              )
                                              )
       v.                                     )
                                              )
DYMON LEE WILLIAMS,                           )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       KORSMO, J. — Dymon Williams appeals from convictions for first degree

burglary and three counts of felony violation of a protection order (VPO). We affirm the

convictions and remand for the trial court to reconsider Mr. Williams’ ability to repay his

financial obligations.

                                          FACTS

       Mr. Williams was charged in the Yakima County Superior Court with the noted

offenses. The VPO charges all arose from an order of protection that prevented Mr.

Williams from coming within 1,000 feet of Yolanda Caldera or her home. Williams is

the father of two of Ms. Caldera’s three children and had briefly lived at her residence in

the past.

       Despite the protection order, Mr. Williams was present at a birthday party held at

Ms. Caldera’s home on June 23, 2016. He spent the ensuing night with her. Two nights
No. 35419-9-III
State v. Williams


later, around 2:00 a.m., he broke into the house through a bedroom window while Ms.

Caldera was in the bathroom. When she returned to her bedroom, he confronted her about

seeing other men. He took the SIM card out of her telephone so that she could not place a

call. When he left around 7:00 a.m., she was able to call a friend to contact the police.

       The jury returned guilty verdicts on all four charges and also entered special

findings in each case that Williams and Caldera were members of the same household.

The court calculated the offender score at 13 for the burglary and 11 for the VPO counts.

The court imposed an exceptional sentence of 140 months on the burglary count due to

the high offender score resulting in the additional crimes going unpunished.

       Mr. Williams appealed to this court. A panel considered the case without hearing

oral argument.

                                        ANALYSIS

       This appeal challenges the sufficiency of the evidence on the burglary count, the

adequacy of counsel’s representation at trial, the calculation of the offender score, and the

imposition of discretionary legal financial obligations (LFOs). We address the issues in

that order.

       Sufficiency of the Evidence

       Review of this issue is in accord with long settled standards. This court reviews

the appellate record to determine if there was evidence from which the trier of fact could

find each element of the offense proved beyond a reasonable doubt. Jackson v. Virginia,

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State v. Williams


443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Green, 94 Wn.2d

216, 221-222, 616 P.2d 628 (1980). The reviewing court will consider the evidence in a

light most favorable to the prosecution. Id. The appellate court’s focus is on the

evidence actually presented to the jury. State v. Jackson, 82 Wn. App. 594, 608, 918

P.2d 945 (1996). Reviewing courts also must defer to the trier of fact “on issues of

conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence.”

State v. Thomas, 150 Wn.2d 821, 874-875, 83 P.3d 970 (2004). “Credibility

determinations are for the trier of fact and are not subject to review.” Id. at 874.

       As charged in this case, a person commits the crime of first degree burglary if he

enters or remains unlawfully in a building and assaults a person therein. RCW

9A.52.020(1)(b); Clerk’s Papers at 157. Mr. Williams argues that the protection order

did not expressly exclude him from Ms. Caldera’s residence, thereby preventing his entry

from being unlawful. He also claims that he had Ms. Caldera’s implicit permission to be

in the building because of his visit two days earlier.1 However, because the court order

excluded him from the building, she was unable to grant him consent to enter. See State

v. Sanchez, 166 Wn. App. 304, 308, 271 P.3d 264 (2012).




       1
        At trial, defense counsel argued the burglary case on the theory that the State had
not proved its case because Ms. Caldera was not a reliable witness and was biased against
him.

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State v. Williams


         Thus, the only remaining question is whether the protection order excluded Mr.

Williams from the building. It did. The provision in question reads:




Ex. 3.

         The terms of the order expressly prohibit Mr. Williams from coming within 1,000

feet “of the protected person’s residence.” Inside the residence is certainly within 1,000

feet of it. The building also was protected while Ms. Caldera was inside since he also

could not get within 1,000 feet of her. For both reasons, his entry into her home was

unlawful.

         The evidence supported the jury’s verdict.

         Ineffective Assistance of Counsel

         Mr. Williams next contends that his counsel provided ineffective assistance by

failing to object to portions of documents that established his prior convictions for VPO.

He has not established that he was prejudiced by the alleged error.

         The standards governing this claim are equally well settled. Counsel’s failure to

live up to the standards of the profession will require a new trial when the client has been

prejudiced by counsel’s failure. State v. McFarland, 127 Wn.2d 322, 334-335, 899 P.2d

1251 (1995). In evaluating ineffectiveness claims, courts must be highly deferential to

counsel’s decisions. A strategic or tactical decision is not a basis for finding error.


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State v. Williams


Strickland v. Washington, 466 U.S. 668, 689-691, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984). Under Strickland, courts apply a two-prong test: whether or not (1) counsel’s

performance failed to meet a standard of reasonableness and (2) actual prejudice resulted

from counsel’s failures. Id. at 690-692. When a claim can be resolved on one ground, a

reviewing court need not consider both Strickland prongs. Id. at 697; State v. Foster, 140

Wn. App. 266, 273, 166 P.3d 726 (2007).

       In instances, as here, where counsel failed to object to the admission of evidence,

the Strickland standard requires the defendant show that the failure to object fell below

professional norms, that the objection would have been sustained, that counsel was not

acting for tactical reasons, and that the outcome of the trial would have been different.

State v. Sexsmith, 138 Wn. App. 497, 509, 157 P.3d 901 (2007). The first three portions

of that test address the question of whether counsel erred, while the fourth addresses the

question of actual prejudice.

       At issue are portions of Exhibits 4, 5 and 6, complaints filed in the Yakima

Municipal Court and accompanying fingerprint records from jail booking in those cases.

One of the complaints alleged a count of malicious mischief that was dismissed and a

violation of a protection order that was proved. Ex. 5. The fingerprint records reflect the

arrest on the two charges and on a different VPO charge. Ex. 6.

       The exhibits were admissible to prove prior convictions for violation of the

protection order, one of the elements of the felony VPO charges. The fingerprint records

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No. 35419-9-III
State v. Williams


were admitted, in conjunction with the testimony of a fingerprint expert, to prove the

identity of Mr. Williams as the person who committed the prior offense. This evidence

was necessary and clearly was admissible to prove elements of the charges against Mr.

Williams. The parties agreed to the admission of redacted copies of the documents that

removed references to most other arrests and charges.

       Nonetheless, appellant now argues that the references to the malicious mischief

charge and other offenses were extremely prejudicial and would have been removed if his

attorney had objected at trial. That last point is difficult to determine, just as it is

impossible on this record to determine what defense counsel’s thinking may have been.

The reference to the malicious mischief charge was clearly harmless since the jury was

told by the judgment and sentence that the charge was dismissed. The only other offense

listed anywhere was a criminal trespass charge mentioned on the fingerprint sheet. Since

that charge was in the first position and its removal would have been obvious, it is quite

possible that it was left on so that the jury did not speculate that some more significant

charge might have been the basis for the arrest.

       For those reasons, we do not believe that Mr. Williams has established that his

counsel was not acting strategically, let alone shown that counsel erred. He also does not

persuasively argue that the reference to two misdemeanor charges, one of which was

shown to have been dismissed, was so significantly prejudicial that his right to a fair trial

was abridged.

                                                6
No. 35419-9-III
State v. Williams


       Mr. Williams has not established that his counsel performed ineffectively.

       Same Criminal Conduct

       Mr. Williams argues that the trial court erred by treating the burglary and VPO

charges as separate offenses for scoring. The trial court did not abuse its discretion.

       The governing principle is found in RCW 9.94A.589(1)(a). When imposing

sentence under that subsection, courts are required to include each other current offense

in the offender score unless one or more of those offenses constitute the same criminal

conduct, in which case they shall be “counted as one crime.” The statute then defines

that particular exception to the scoring rule: “‘Same criminal conduct,’ as used in this

subsection, means two or more crimes that require the same criminal intent, are

committed at the same time and place, and involve the same victim.” Id.

       It is the defendant’s burden to establish that offenses constitute the same criminal

conduct. State v. Graciano, 176 Wn.2d 531, 540-541, 295 P.3d 219 (2013). We review

the trial court’s ruling on this issue for abuse of discretion. Id. at 541. An additional

factor at play in this computation is the burglary anti-merger statute. RCW 9A.52.050.

This statute gives trial courts the authority to treat burglary offenses separately even

when the underlying crime would otherwise constitute the same criminal conduct. State

v. Lessley, 118 Wn.2d 773, 781-782, 827 P.2d 996 (1992).

       Although defense counsel argued that the two offenses should be treated as one,

primarily arguing that the assaultive behavior was common to both the burglary and VPO

                                              7
No. 35419-9-III
State v. Williams


charges, the trial court declined to do so. The court did not explain its reasoning, but

several reasons suggest themselves.

       First, as the prosecutor argued, the VPO charge was based on the two prior

convictions rather than the assaultive behavior. Second, the anti-merger statute gave the

court discretion to score the offenses separately even if they otherwise constituted the

same criminal conduct. Third, the VPO was established before the burglary was even

committed. Mr. Williams only needed to be within 1,000 feet of Ms. Caldera to establish

the VPO charge.

       For all of those reasons, Mr. Williams cannot establish that the trial court acted on

untenable grounds or for untenable reasons. Accordingly, he has not established that the

trial court erred in computing his offender score.

       Legal Financial Obligations

       Lastly, Mr. Williams contends that the trial court erred in considering his ability to

pay discretionary court costs. We agree and remand for a new sentencing hearing in

accordance with State v. Ramirez, ___ Wn.2d ___, 426 P.3d 714 (2018).

       The trial court imposed a $250 cap on jail incarceration costs, although it did not

check the box on the judgment and sentence form that expressly imposed the costs. The

court also imposed the mandatory $500 crime victim penalty assessment and the $100

DNA collection fee.



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State v. Williams


       After the appeal was filed, the Washington Supreme Court released Ramirez.

Among its holdings, the court concluded that the 2018 amendments governing LFO

obligations were retroactive to any case still pending on direct appeal. Id. at 722. The

court also expanded upon the necessary questions the trial court needed to ask in order to

afford a proper understanding of the defendant's ability to pay discretionary LFOs. Id. at

722-723.

       Here, Mr. Williams challenged the sufficiency of the court's inquiry in his initial

brief. After Ramirez, we agree that the trial court's inquiry was insufficient. Accordingly,

we remand for additional consideration of Mr. Williams' ability to pay incarceration costs

and, potentially, the DNA fee. If the court determines it should strike the fees in

accordance with its previous ruling, there need not be a new sentencing hearing.

       The convictions are affirmed. The case is remanded for consideration of the

discretionary LFOs.

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.



WE CONCUR:



      Fearing,.                                         Pennell, A.CJ.

                                             9
