                                                                     FILED
                                                                  AUGUST 20, 2020
                                                             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. 36859-9-III
                                              )
                     Respondent,              )
                                              )
       v.                                     )         UNPUBLISHED OPINION
                                              )
JASON LEROY DAVIS,                            )
                                              )
                     Appellant.               )

       PENNELL, C.J. — Jason Leroy Davis appeals his convictions for violation of a

no-contact order, residential burglary, and first degree burglary. We vacate the residential

burglary conviction for double jeopardy reasons but otherwise affirm.

                                          FACTS

       Mr. Davis was charged with residential burglary and violation of a no-contact

order based on a confrontation that occurred at the home of his estranged wife. For

several months after arraignment, the parties engaged in discovery and plea negotiations.

Those efforts were not fruitful. The State then successfully moved to amend the

information to add a charge of first degree burglary and a second count of violation of a

no-contact order.

       The case proceeded to a jury trial and Mr. Davis was convicted as charged.
No. 36859-9-III
State v. Davis


       At sentencing, the State argued for a life sentence. It claimed Mr. Davis met

the definition of a “persistent offender” under RCW 9.94A.030(38). According to the

State, Mr. Davis’s two prior violent felonies compelled imposition of a life sentence

for Mr. Davis’s current first degree burglary conviction.

       Mr. Davis’s trial counsel argued a life sentence was not permissible based on lack

of notice. The trial court agreed “there should be some type of notice requirement,” but

it could not “find anything requiring” the formal notice Mr. Davis’s counsel sought.

Report of Proceedings (May 2, 2019) at 332. It determined “there was at least some notice

given” through the State’s certificate accompanying its motion to amend the information.

Id. at 333. The court sentenced Mr. Davis to life imprisonment for his third “most serious

offense,” first degree burglary, and ran his three other sentences concurrent to this

sentence. Clerk’s Papers at 242, 245.

       Mr. Davis timely appeals.

                                        ANALYSIS

Ineffective assistance of counsel

       Mr. Davis contends his conviction should be reversed based on ineffective

assistance of counsel. Specifically, he claims the current record shows his trial counsel

performed deficiently by failing to investigate the possibility of a life sentence and not


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No. 36859-9-III
State v. Davis


advising Mr. Davis of this risk. We disagree.

       The current record fails to support Mr. Davis’s ineffective assistance claim.

Numerous facts in the record suggest Mr. Davis’s attorney was notified that the first

degree burglary charge carried a mandatory life sentence. There is no evidence defense

counsel failed to share this information with Mr. Davis. If Mr. Davis has proof that his

attorney failed to understand the applicable penalty or to advise Mr. Davis accordingly,

those issues are more appropriately raised in a personal restraint petition. State v.

McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Relief on direct appeal is

unwarranted.

Double jeopardy

       Mr. Davis argues his convictions for both first degree burglary and residential

burglary violate double jeopardy. 1 “‘A double jeopardy claim may be raised for the first

time on appeal’” under RAP 2.5(a)(3). State v. Strine, 176 Wn.2d 742, 751, 293 P.3d

1177 (2013) (quoting State v. Jackman, 156 Wn.2d 736, 746, 132 P.3d 136 (2006)). We

review the matter de novo. State v. Hughes, 166 Wn.2d 675, 681, 212 P.3d 558 (2009).

       The State agrees that under State v. Brooks, 113 Wn. App. 397, 400, 53 P.3d 1048

(2002), a defendant cannot be convicted of multiple burglary counts based on one


       1
           U.S. CONST. amend V; WASH. CONST. art. I, § 9.

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No. 36859-9-III
State v. Davis


instance of illegally entering or remaining in a building. We accept this concession. As

charged here, the count of residential burglary was a lesser offense of first degree

burglary. This is because both counts required proof of illegal entry into the same

building, which here happened to be a residence. The first degree burglary charge differed

only in that it also required proof of an assault. Multiple punishments in such

circumstances are unwarranted. We therefore remand to the trial court to vacate the

residential burglary conviction.

           STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW

       In his statement of additional grounds for review (SAG), Mr. Davis argues:

(1) ineffective assistance of appellate counsel, (2) ineffective assistance of trial counsel,

(3) prosecutorial misconduct, (4) admission of his statements in violation of Miranda v.

Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and (5) improper refusal

to instruct the jury on self-defense. None of these claims merit relief under the current

record.

Ineffective assistance of appellate counsel

       Mr. Davis’s criticisms of appellate counsel mostly turn on facts outside the record.

As such, they must be resolved through a personal restraint petition, not a direct appeal.

McFarland, 127 Wn.2d at 335. The only claim currently ripe for resolution is the


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No. 36859-9-III
State v. Davis


argument that counsel should have asked us to vacate Mr. Davis’s first degree burglary

conviction instead of the residential burglary conviction. This complaint fails on its

merits. Appellate counsel correctly recognized that when one of two convictions must be

vacated for double jeopardy reasons, we strike the lesser conviction. Hughes, 166 Wn.2d

at 686 n.13.

Ineffective assistance of trial counsel

       Mr. Davis brings ineffective assistance claims related to his trial counsel’s failure

to object to evidence, failure to timely request a self-defense jury instruction, and failure

to request a lesser-included offense instruction for first degree burglary. 2 To establish

relief, Mr. Davis must show both deficient performance and prejudice. Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). None of his

contentions meets this standard on the current record.

       Mr. Davis does not establish his trial attorney was ineffective in failing to object to

inadmissible testimony or evidence. Mr. Davis does not show that the testifying officers

would not have been able to lay an adequate foundation for their testimony regarding

bruising had defense counsel objected. He therefore cannot establish prejudice. Nor does


       2
        Mr. Davis also raises the double jeopardy challenge briefed by his appellate
attorney as an ineffective assistance of counsel claim. Because this issue is already
resolved, it need not be addressed further.

                                              5
No. 36859-9-III
State v. Davis


Mr. Davis establish his no-contact order was inadmissible. Mr. Davis’s bald statement

that he believed the order had been withdrawn is insufficient.

       Additionally, the State was entitled to ask Mr. Davis about prior inconsistent

statements made to law enforcement. ER 613(b). The fact that Mr. Davis could not

remember making the inconsistent statements was not a basis for an objection. Contrary

to Mr. Davis’s assertions, the prosecutor was not attempting to compel Mr. Davis to call

the police officers liars. See State v. Suarez-Bravo, 72 Wn. App. 359, 366, 864 P.2d 426

(1994).

       The current record also fails to support Mr. Davis’s claim that counsel was

ineffective in failing to request a self-defense jury instruction. Defense counsel may have

foregone a self-defense instruction because it would not have negated Mr. Davis’s

liability for residential burglary. An all or nothing strategy may have been a reasonable

strategic decision. See State v. Grier, 171 Wn.2d 17, 43, 246 P.3d 1260 (2011). We

cannot decide otherwise on the current record. If Mr. Davis has evidence that his

attorney’s actions were not based on legitimate strategy, those claims are more properly

raised in a personal restraint petition. McFarland, 127 Wn.2d at 335.

       Finally, even assuming fourth degree assault is a lesser included offense, Mr.

Davis also cannot show that his attorney was ineffective for failing to request a fourth


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No. 36859-9-III
State v. Davis


degree assault instruction. The crime of residential burglary is elevated to first degree

burglary when the defendant commits an assault. No particular degree of assault is

required. Given this circumstance, there was no advantage to asking the jury be instructed

on fourth degree assault. So long as the jury found an assault occurred, Mr. Davis’s only

hope for relief would be acquittal on the burglary charges.

Prosecutorial misconduct

       Mr. Davis has not shown that any of the alleged prosecutorial misconduct is “‘so

flagrant and ill-intentioned’” that it would merit relief on direct appeal. In re Pers.

Restraint of Lui, 188 Wn.2d 525, 539, 397 P.3d 90 (2017) (quoting In re Pers. Restraint

of Caldellis, 187 Wn.2d 127, 143, 385 P.3d 135 (2016)). His arguments therefore fail.

Miranda Violation

       Mr. Davis claims that his statements to law enforcement were taken in violation of

his Miranda rights. A CrR 3.5 hearing was held prior to the admission of Mr. Davis’s

statements. After the hearing, the trial court determined Mr. Davis’s statements were not

made in response to interrogation. Mr. Davis does not challenge the trial court’s CrR 3.5

findings on appeal. He therefore lacks a factual basis to challenge evidence of his

statements.




                                              7
No. 36859-9-III
State v. Davis


Refusal to give self-defense jury instruction

       The trial court did not abuse its discretion in refusing to give a self-defense

instruction in response to the jury’s questions. Generally, “proposed instructions shall be

submitted when the case is called for trial.” CR 51(a). Here, the issue of a self-defense

instruction did not come up until after the case had already been submitted to the jury.

At that point, it was too late for the parties to argue the instruction or ask for related

instructions, such as an instruction based on initial aggressor liability. The trial court

therefore had ample reasons not to issue the instruction.

                                       CONCLUSION

       We remand with instructions to vacate Mr. Davis’s conviction for residential

burglary. The judgment is otherwise affirmed.

       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.

                                            _________________________________
                                            Pennell, C.J.
WE CONCUR:



______________________________
Korsmo, J.                                  Siddoway, J.

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