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

STATE OF WASHINGTON,                      )      No. 72410-0-1                     r-7

                                          )                                         CUT*
                     Respondent,          )
                                          )
       v.                                 )
                                          )
YEMANE TEKLAIWELDESELASE,                 )      UNPUBLISHED OPINION
                                                                                           V.W-
                                          )
                     Appellant.           )      FILED: November 23,2015                   ^
                                          )

      Verellen, A.C.J. — Yemane Weldeselase claims his counsel was ineffective

for failing to argue at sentencing that his first degree burglary, second degree

assault, and felony violation of a court order convictions constituted the same criminal

conduct. We conclude counsel's failure to argue same criminal conduct at

sentencing constituted deficient performance. A reasonable probability exists that,

had counsel so argued, the sentencing court would have determined that his second

degree assault and felony violation of a no-contact order convictions constituted the

same criminal conduct for purposes of calculating Weldeselase's offender score.

      The State concedes that Weldeselase's sentence for felony violation of a court

order exceeds the trial court's sentencing authority under the Sentencing Reform Act,

chapter 9.94A RCW. We accept the State's concession.

       We affirm Weldeselase's convictions, but remand for a new sentencing

hearing.
No. 72410-0-1/2


                                        FACTS

       Weldeselase and his wife Luula Araya have three children together. In

February 2012, Weldeselase and Araya separated when Araya obtained a no-

contact order against Weldeselase.

       In October 2013, Araya returned home late one evening after work. As Araya

exited her car, Weldeselase grabbed her. Weldeselase told Araya that he had a gun

and ordered her to open the front door of the house. Araya refused. Weldeselase

choked Araya and pushed her into the door. Araya's niece heard noise outside and

opened the front door. Weldeselase held Araya's wrist as they entered the home.

       Once inside, Weldeselase took Araya into their daughter's bedroom.

Weldeselase pushed Araya onto their daughter's bed. Their daughter stood in the

corner of the bedroom. Weldeselase grabbed Araya and began punching her in the

face. Weldeselase broke Araya's nose and left bruises on her face. When their

daughter attempted to intervene, Weldeselase hit her.

       The State charged Weldeselase with one count of first degree burglary, two

counts of second degree assault, one count of felony violation of a court order, and

one count of fourth degree assault. The State alleged Weldeselase committed these

offenses against a family or household member and within sight or sound of the

victim's minor child.


       A jury convicted Weldeselase of first degree burglary, two counts of fourth

degree assault, felony violation of a court order, and one count of second degree

assault. The jury found by special verdict that Weldeselase's convictions for first
No. 72410-0-1/3


degree burglary, felony violation of a court order, and second degree assault

constituted an aggravated domestic violence offense.

       At sentencing, the court accepted the State's offender score calculation of

eight points, which was the same for each of Weldeselase's three felony convictions.1

Defense counsel did not argue that the three felonies constituted the same criminal

conduct under RCW 9.94A.589. The court imposed concurrent sentences at the top

of the standard range: 102 months for first degree burglary, 82 months for felony

violation of a court order, and 70 months for second degree assault.

       Weldeselase appeals.

                                      ANALYSIS

                                 Ineffective Assistance

       Weldeselase contends his counsel was ineffective for failing to argue at

sentencing that his first degree burglary, second degree assault, and felony violation

of a court order convictions constituted the same criminal conduct for purposes of

calculating his offender score. We agree as to the second degree assault and felony

violation of a no-contact order convictions.


       We review ineffective assistance claims de novo.2 Both the state and federal

constitutions guarantee criminal defendants the right to effective assistance of




       1 For each felony conviction, four points were assessed for the other two
felony convictions. Weldeselase's convictions for fourth degree assault counted two
points, and his two prior domestic violence convictions counted two points.
       2 State v. Sutherbv. 165 Wn.2d 870, 883, 204 P.3d 916 (2009).
No. 72410-0-1/4


counsel.3 To establish an ineffective assistance claim, a defendant must show

deficient performance and resulting prejudice.4

       Counsel's performance is deficient if it falls "below an objective standard of

reasonableness."5 To establish deficient performance, the defendant must show the

absence of any conceivable legitimate tactic supporting counsel's action.6 We

strongly presume that counsel's performance was reasonable.7 But failure to argue

that several crimes encompass the same criminal conduct can constitute deficient

performance.8

       To establish prejudice, the defendant must show there is a reasonable

probability that, but for the deficient performance, the outcome would have been

different.9 "A reasonable probability is a probability sufficient to undermine

confidence in the outcome."10

       The trial court generally counts multiple current offenses separately for

offender score purposes unless the offenses encompass the same criminal



       3 State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260(2011).
      4 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984); State v. Nichols, 161 Wn.2d 1, 8, 162 P.3d 1122 (2007).
       5 State v. Townsend. 142 Wn.2d 838, 843-44, 15 P.3d 145 (2001).
       6 Grier, 171 Wn.2d at 33.
      7 Strickland, 466 U.S. at 690; State v. McFarland, 127 Wn.2d 322, 335, 899
P.2d 1251 (1995).
      8 State v. Saunders, 120 Wn. App. 800, 824-25, 86 P.3d 232 (2004) (defense
counsel's decision not to argue same criminal conduct as to the defendant's rape and
kidnapping offenses constituted ineffective assistance).
       9 Nichols, 161 Wn.2dat8.
       10 Strickland, 466 U.S. at 694; State v. Jones, 183 Wn.2d 327, 339, 352 P.3d
776 (2015) ("'reasonable probability'" means "by less than a more likely than not
standard").
No. 72410-0-1/5


conduct.11 Offenses that are considered the same criminal conduct are scored as

one offense.12 Current offenses involve the same criminal conduct when they

"require the same criminal intent, are committed at the same time and place, and

involve the same victim."13 "If any element is missing, the crimes do not constitute

the same criminal conduct."14 We construe same criminal conduct "narrowly to

disallow most claims that multiple offenses constitute the same criminal act."15

       Weldeselase's offenses occurred within a limited time period and at the same

place. In State v. Davis, the defendant was convicted of attempted first degree

murder and first degree assault.16 The assault occurred on a cabin's deck and along

an adjacent beach. The attempted murder occurred inside the cabin and on the

beach. The Davis court determined that where "the different physical locations are

adjacent and within a short distance of each other," the offenses involve the same

place for same criminal conduct purposes.17 As in Davis, Weldeselase's offenses

occurred within a short distance of each other. The felony violation of a court order

initially occurred in the driveway as Araya exited her car, the burglary initially

occurred as Weldeselase pulled Araya through the front door of the home while

holding her wrist, and the second degree assault occurred in the daughter's

bedroom.



       11 RCW9.94A.589(1)(a).
       12 id,
       13 id
       14 State v. Wright. 183 Wn. App. 719, 732-33, 334 P.3d 22 (2014).
       15 State v. Graciano. 176 Wn.2d 531, 540, 295 P.3d 219 (2013).
       16 174 Wn. App. 623, 628, 300 P.3d 465 (2013).
       17 Id. at 644.
No. 72410-0-1/6


       The second degree assault and felony violation of a court order offenses

involved the same victim, Araya, but Weldeselase's burglary offense did not. In State

v. Lesslev. the defendant was convicted of, among other crimes, first degree burglary

and first degree kidnapping.18 On appeal, Lessley argued his burglary and

kidnapping offenses were the same criminal conduct.19 The Lesslev court

determined the offenses did not involve the same victim.20 Although the kidnapping

conviction involved one victim, the burglary "victimized" several victims who "were

asleep in their home when Lessley pounded on the door in the middle of the night,

and . . . were present when he barged in brandishing a revolver."21 Because the

burglary involved more than one victim, the Lesslev court concluded the offenses did

not constitute the same criminal conduct.22

      As in Lesslev, the burglary victimized both Araya and her daughter. Araya's

daughter was awake in the home when Weldeselase pulled Araya through the front

door by the wrist. She was also present in the bedroom when Weldeselase

assaulted Araya. Because the burglary involved more than one victim, it was not the

same criminal conduct as the other offenses.

      Weldeselase committed the second degree assault and the felony violation of

a court order at the same time and place and against the same victim. The only




      18 118 Wn.2d 773, 776, 827 P.2d 996 (1992).
      19 id,
      20 Id, at 779.
      21 id
      22 Id.
No. 72410-0-1/7


issue is whether Weldeselase committed these offenses with the same criminal

intent.


          To determine whether multiple offenses share the same criminal intent, we

consider "how intimately related the crimes committed are,"23 whether "the criminal

intent, when viewed objectively, changed from one crime to the next,"24 and "'whether

one crime furthered the other.'"25 We may also consider whether the crimes were

part of the same scheme or plan and whether the defendant's criminal objectives

changed.26 Crimes may also involve the same criminal intent if they were part of a

continuing, uninterrupted sequence of conduct.27

          We conclude there is a reasonable probability that the sentencing court would

determine the offenses were committed with the same criminal intent. The felony

violation of a court order and the second degree assault were part of a continuing,

uninterrupted sequence of conduct.28 A reasonable probability exists that the court

would conclude Weldeselase's objective criminal purpose was to assault Araya: he

grabbed her the moment she exited the car, pulled her by the wrist into the home,

and struck her several times in the face.29 There is a reasonable probability that the




          23 State v. Burns, 114 Wn.2d 314, 318, 788 P.2d 531 (1990).
          24 Wright, 183 Wn. App. at 734.
          25 id, (quoting State v. Vike. 125 Wn.2d 407, 411, 885 P.2d 824 (1994)).
          26 State v. Calvert. 79 Wn. App. 569, 578, 903 P.2d 1003 (1995).
          27 State v. Porter, 133 Wn.2d 177, 186, 942 P.2d 974 (1997).
          28 See id, at 185-86 (defendant's drug sales "occurred in a continuing,
uninterrupted sequence of conduct as part of a recognizable scheme to sell drugs").
          29 See State v. Adame, 56 Wn. App. 803, 810-11, 785 P.2d 1144 (1990).
No. 72410-0-1/8


court would determine the felony violation of a court order furthered the offense of

second degree assault.30

       We conclude counsel's failure to argue same criminal conduct at sentencing

constituted deficient performance. There is a reasonable probability that, had

counsel so argued, the court would have found that the second degree assault and

felony violation of a court order offenses encompassed the same criminal conduct.

Therefore, we must remand for a new sentencing hearing. On remand, the trial court

has full discretion to determine if Weldeselase's offenses constitute the same criminal

conduct.


                     Sentence for Felony Violation of Court Order

       Weldeselase contends, and the State concedes, that his sentence for felony

violation of a court order exceeds the statutory maximum. We agree that the trial

court exceeded its sentencing authority and accept the State's concession.

       We review whether a "trial court has exceeded its statutory authority" under

the Sentencing Reform Act de novo.31 "A trial court may only impose a statutorily

authorized sentence."32 "If the trial court exceeds its sentencing authority, its actions

are void."33




       30 See State v. Phuong, 174 Wn. App. 494, 548, 299 P.3d 37 (2013) (where
defendant dragged the victim from her car, through the garage, and upstairs to his
bedroom, the court could determine that defendant's convictions for unlawful
imprisonment and attempted rape constituted the same criminal intent).
       31 State v. Murray, 118 Wn. App. 518, 521, 77 P.2d 1188 (2003).
       32 State v. Paulson, 131 Wn. App. 579, 588, 128 P.3d 133 (2006).
       33 Id.
No. 72410-0-1/9


         Felony violation of a court order carries a statutory maximum sentence of five

years' imprisonment.34 Weldeselase's sentence for his felony violation of a court

order conviction was 82 months, exceeding the statutory maximum by more than two

years.


                                      CONCLUSION


         We conclude Weldeselase's counsel rendered ineffective assistance by failing

to argue same criminal conduct at sentencing. Because Weldeselase received

ineffective assistance, we remand for resentencing, where counsel can argue that the

second degree assault and felony violation of a court order offenses encompass the

same criminal conduct. On remand, the sentence for felony violation of a court order

shall be corrected to not exceed the statutory maximum.

         We affirm Weldeselase's convictions, but remand for a new sentencing

hearing.




WE CONCUR:




 "j7\cAev/y ^J



         34
              RCW 26.50.110(4); RCW 9A.20.021 (1)(c).
