                                                                           FILED 

                                                                       OCTOBER 16,2014 

                                                                   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. 32160-6-111
                      Respondent,               )
                                                )
       v.                                       )
                                                )
JOHN LEE BURNS,                                 )         UNPUBLISHED OPINION
                                                )
                      Appellant.                )

       SIDDOWAY, C.J. -     John Lee Bums, having partially succeeded in appealing the

results of his 2010 criminal trial, now appeals the results of his resentencing. He

contends that the resentencing court, while lenient in applying the low end of the

applicable sentencing ranges and running several fIrearm enhancements concurrently,

erred by failing to exercise its discretion under the burglary anti merger statute to treat his

burglary and robbery convictions as encompassing the same criminal conduct.

       It is more accurate to say that the sentencing court did not explain on the record its

consideration of same criminal conduct and the burglary anti merger statute. Mr. Bums

does not demonstrate that the trial court failed to exercise its discretion. And the State

correctly points out that Mr. Burns's crimes would not qualify as same criminal conduct

in any event. We affIrm.
No. 32160-6-II1
State v. Burns


                    FACTS AND PROCEDURAL BACKGROUND

       John Lee Bums was convicted following a 2010 trial of one count of first degree

burglary, three counts of first degree kidnapping, and four counts of first degree robbery

for his role in a December 2009 home invasion robbery. The jury found by special

verdict that he had committed all of the offenses while armed with a firearm.

       Three of the robbery counts against Mr. Bums and his codefendant, Jessup

Tillmon, were reversed on appeal. State v. Burns, noted at 167 Wn. App. 1032,2012 WL

1203822, at *1, review denied, 175 Wn.2d 1007 (2012). As explained in the parties'

sentencing memoranda and the decision in the initial appeal, several men broke into a

home at approximately 4:00 a.m. and forced the seven people present in the home to

gather in the dining room while the robbers ransacked other parts of the home. Although

the robbers stole property from many rooms in the home, only one victim was robbed

before being forced into the dining room. Yet at trial, the to-convict robbery instruction

identified only one means for committing first degree robbery: that the defendant or an

accomplice unlawfully took personal property" 'from the person ofanother.'" Id. at *2.

For three of the victims, the State's evidence established only that the robbers had

unlawfully taken personal property "'in the presence'" of another. Id. at *3.

       Under the law of the case doctrine, the State bore the burden of proving that Mr.

Bums committed robbery by the means stated in the jury instruction. Id. Given

insufficient evidence in light of the incomplete jury instructions, Division Two of our

                                             2

No. 32160-6-III
State v. Burns


court vacated the two defendants' convictions of three of the robbery counts along with

the associated firearm enhancements. It remanded to the trial court with instructions to

dismiss those counts and to resentence the two men on the one burglary, one robbery, and

three kidnapping counts that remained.

      Neither Mr. Bums nor Mr. Tillmon had any prior criminal history that counted

toward their offender scores. The State conceded that Mr. Bums and Mr. Tillmon

appeared to have been less culpable than the other individual or individuals involved in

the crimes. The break-in was of short duration, no one was injured, and the crime

appears to have been drug related, since the robbers stated they were looking for "weed"

during the course of the robbery, and left the home with a half pound of marijuana.

Report of Proceedings (Nov. 2, 2012) at 16.

      In sentencing the two men in 2010, the trial court applied the low end of the

standard range for each count. It also imposed an exceptional downward sentence on

both men by running some of the firearm enhancements concurrently, although in this

connection, it treated Mr. Tillmon, who had called 911 and turned himself in after the

robbery, more favorably. It provided that all of Mr. Tillmon's 60-month firearm

enhancements would run concurrently. Mr. Bums had been tracked by a K-9 unit after

the robbery and arrested, and the court provided that three of his firearm enhancements-

those associated with the kidnapping counts-would run consecutively.




                                              3

No. 32160-6-111
State v. Burns


       The two defendants' resentencing took place in 2012 and was conducted by a

different judge. At resentencing the State asked, for the counts that remained, that the

sentencing court treat each defendant as the trial court had, thereby continuing to treat Mr.

Bums more harshly. Mr. Bums's lawyer asked the trial court to treat both men equally, as

did both individual defendants when invited to speak. The court was persuaded to treat

Mr. Burns more like Mr. Tillmon, applying the low end of the sentencing range and this

time running only two of the 60-month firearm enhancements consecutively.

       At no point in the 25-page transcript of the resentencing hearing is there mention

by any party or the sentencing court of the burglary antimerger statute or same criminal

conduct. Mr. Bums timely appealed.

                                        ANALYSIS

       The only assignment of error raised by Mr. Bums following the resentencing is

that the sentencing court erred ''when it calculated the defendant's offender score without

first exercising its discretion in determining the application of the burglary anti-merger

statute." Br. of Appellant at 1.

       The three kidnappings were serious violent offenses involving different victims

and would be served consecutively to each other and concurrently with the other

sentences imposed for Mr. Bums's current offenses. RCW 9.94A.589(l)(b). The

standard sentence range for Mr. Bums's most serious crime--in this case, one of the

kidnapping offenses-was determined using Mr. Bums's prior convictions and other

                                             4

No. 32160-6-III
State v. Burns


current convictions that were not serious violent offenses in the offender score, while the

sentence range for the other serious violent offenses were determined by using an

offender score of zero. Id. Applying the low end of the standard range, Mr. Bums's

aggregate term of confinement for the three kidnapping counts and two 60-month firearm

enhancements exceeded the term of confinement for the sentences for current offenses

that would run concurrently, and amounted to 294 months (72 + 51 + 51 + 60 + 60).

       Mr. Bums focuses on appeal on the fact that the 72-month term imposed for the

first kidnapping count was based on an offender score of four, which was in tum based

on attributing two points each to his current burglary and robbery convictions. Yet if the

resentencing court had treated the burglary and robbery as encompassing the same

criminal conduct, he argues, the burglary and robbery would have been counted as one

crime, his offender score would have been two, and the low end of the standard range

would have been 62 months, reducing his total term of confinement by 10 months. Br. of

Appellant at 9.

       '" Same criminal conduct,' ... means two or more crimes that require the same

criminal intent, are committed at the same time and place, and involve the same victim."

RCW 9.94A.589(l)(a). Under Washington's Sentencing Reform Act of 1981, "[I]fthe

court enters a finding that some or all of the current offenses encompass the same

criminal conduct then those current offenses shall be counted as one crime." Id. The

same-criminal conduct test focuses on the extent to which a defendant's criminal intent,

                                             5

No. 32160-6-III
State v. Burns


as objectively viewed, changes from one crime to the next. State v. Lessley, 118 Wn.2d

773, 777, 827 P .2d 996 (1992). The defendant bears the burden of proving that his

offenses encompass the same criminal conduct. State v. Williams, 176 Wn. App. 138,

142,307 P.3d 819 (2013), review granted, 180 Wn.2d 1001 (2014).1

       Yet the burglary antimerger statute provides:

       Every person who, in the commission of a burglary shall commit any other
       crime, may be punished therefor as well as for the burglary, and may be
       prosecuted for each crime separately.

RCW 9A.52.050. The statute gives a trial judge discretion to punish a burglary

separately, even where the burglary and another crime encompassed the same criminal

conduct. State v. Knight, 176 Wn. App. 936, 962, 309 P.3d 776 (2013) (citing Lessley,

118 Wn.2d at 781-82), review denied, 179 Wn.2d 1021 (2014).

       Mr. Bums concedes that it was "well within the trial court's discretion under the

burglary anti-merger statute to treat the burglary as a separate offense," but "it was not

within the court's discretion to simply ignore the issue." Br. of Appellant at 9. He argues

that "by failing to address this issue, the trial court abused its·discretion to either apply or

not apply the burglary anti-merger statute." ld. Mr. Bums cites State v. Grayson, 154



       1 The State makes a threshold argument that RAP 2.5(a) precludes appellate
review because Mr. Bums did not argue at resentencing that the court should exercise its
discretion under the burglary antimerger statute to treat the burglary and the robbery as
the same criminal conduct. Since we intend to address the challenge on the merits, we
will not analyze whether we could refuse to review it under RAP 2.5(a).

                                               6

No. 32160-6-III
State v. Burns


Wn.2d 333,341-42, 111 P.3d 1183 (2005) for the well settled principle that a sentencing

court abuses its discretion when it "categorically refuses" to exercise discretion; it is

similarly well settled that a sentencing court'sfailure to recognize its discretion is

appealable error. See, e.g., In re Pers. Restraint ofMulholland, 161 Wn.2d 322, 333, 166

P.3d 677 (2007). But here, unlike in Grayson or Mulholland, there is nothing in the

record to suggest that the resentencing court misunderstood its discretion or categorically

refused to exercise it.

       A sentencing court does not have an obligation to issue findings of fact or

conclusions oflaw when sentencing under RCW 9.94A.589 or RCW 9A.52.050. See

State v. Kern, 55 Wn. App. 803, 806, 780 P.2d 916 (1989). Because the court was not

required to make findings, its silence on this possible sentencing issue is not appealable.

And Mr. Bums fails to demonstrate any error or abuse of discretion.

       While that suffices to resolve the appeal, the State also argues persuasively that

"[w ]hile the burglary and robbery appear to have had the same objective criminal intent

and occurred at the same time and place, nevertheless they did not involve the same

victims." Br. ofResp't at 5. The victims of a burglary include the occupants of a

residence and their guests-in this case, a total of seven people. State v. Davison, 56 Wn.

App. 554, 559-60, 784 P.2d 1268 (1990). Even the State's information charged Mr.

Bums with robbery of only four people and, of course, three of his convictions for

robbery were vacated and dismissed as a result of the initial appeal. Both Davison and

                                              7

No. 32160-6-111
State v. Burns


State v. Davis, 90 Wn. App. 776, 954 P.2d 325 (1998) hold that a burglary of a home in

which more than one person is present does not have the same victims for "same criminal

conduct" purposes as an assault against one of the persons present in the course of the

burglary. The same is true of a burglary having seven victims and a robbery during the

course of the burglary having only one victim, or even four. The trial court could not

have found that the burglary and the robbery were the same criminal conduct. 2

       Affirmed.

       A majority of the panel has determined that 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:

~\(j
       2In a pro se statement of additional grounds for review (SAG), Mr. Bums
contends that the trial court erred in not providing the jurors with a special verdict form
requiring them to specify which robbery the jurors relied upon in finding him guilty of
kidnapping "with the intent to facilitate commission of any felony or flight thereafter."
SAG at 1. The general rule is that a defendant is prohibited from raising issues on a
second appeal that were or could have been raised on the first appeal. State v. Sauve, 100
Wn.2d 84, 87,666 P.2d 894 (1983); State v. Jacobsen, 78 Wn.2d 491,493,477 P.2d 1
(1970). Mr. Bums challenged the sufficiency of evidence to sustain his robbery
convictions in his initial appeal and could have raised this related issue at that time as
well. The convictions for kidnapping are final and his challenge will not be considered
on appeal of his resentencing.

                                             8
