                                                               FILED
                                                            JUNE 12, 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. 35146-7-III
                                             )
                    Respondent,              )
                                             )
      v.                                     )         UNPUBLISHED OPINION
                                             )
SCOTT M. ELLIS,                              )
                                             )
                    Appellant.               )

      PENNELL, A.C.J. — Scott Ellis appeals his convictions and sentence for second

degree burglary, first degree vehicle prowling, obstructing a law enforcement officer, and

third degree malicious mischief. We affirm Mr. Ellis’s convictions but remand for

resentencing.

                                         FACTS

      In the middle of a summer night in 2016, police were called to the Valleyway Self

Storage facility in Spokane Valley, Washington. The call was prompted by unusual

sounds and light emanating from a motor home stored at the facility.

      Several officers responded to the scene. The officers approached the motor home

and made contact with the person inside, who identified himself as Scott Ellis. Mr. Ellis

told the police he had blocked the door and would not come out unless his Department of
No. 35146-7-III
State v. Ellis


Corrections officer was present. The police told Mr. Ellis he was under arrest and

ordered him outside. Mr. Ellis refused to comply. The police deployed pepper spray

through the motor home’s vents. That did not work. The officers attempted to breach the

motor home’s door, but could not get through Mr. Ellis’s barricade. Eventually, the

police were able to get inside the motor home by breaking through a window. Mr. Ellis

was found hiding in a rear bedroom. He still refused to leave. Finally, a combination of a

police dog bite and more pepper spray led Mr. Ellis to come out and surrender.

       Mr. Ellis was charged with second degree burglary (for entering/remaining in the

storage facility), first degree vehicle prowling (for entering/remaining in the motor home),

third degree theft (cash alleged to be missing from the motor home), obstructing a law

enforcement officer, and third degree malicious mischief (for damage caused to the motor

home).

       Mr. Ellis testified at trial and offered an explanation for his actions. Mr. Ellis said

he had gotten into an argument with his ex-wife at her home earlier that evening. The ex-

wife’s boyfriend allegedly threatened Mr. Ellis, so he left. After walking approximately

four blocks, Mr. Ellis saw the boyfriend and another man 1 following him in a truck so he


       1
        Mr. Ellis was able to name his ex-wife at trial, but he could not name the ex-
wife’s boyfriend or the other man.


                                              2
No. 35146-7-III
State v. Ellis


began running and tried to lose them by cutting across nearby fields, parking lots, front

yards, etc. Mr. Ellis testified he did not enter one of the nearby restaurants or

supermarkets (at least some of which were open) because he did not want to get anyone

else involved. Mr. Ellis eventually came across Valleyway Self Storage. Believing it was

a safe area, he walked through the front gate and into the storage facility behind a truck

towing a large trailer. Mr. Ellis then entered the second motor home he came across. He

wrapped a seatbelt around the door to keep anyone from entering, and built a barricade

for the same reason. Mr. Ellis then waited to make sure he was no longer being pursued.

While waiting, he noticed some movies and started watching one on a television inside

the motor home.

       Mr. Ellis then testified about what happened when the police arrived. He

explained the police arrived shortly after he turned on the television and immediately

threatened him with a police dog. Mr. Ellis said he was frightened and started reinforcing

his barricade. He testified his goal was to “stay safe.” 2 Report of Proceedings (RP)

(Jan. 24, 2017) at 233. Mr. Ellis testified he “didn’t have any intention of fighting the

police, by any means.” Id. at 235. He further testified he only entered the storage facility

and the motor home to find a safe place, and he built the barricade for the same reason.

On cross-examination, Mr. Ellis agreed he had no lawful reason to be in the storage


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No. 35146-7-III
State v. Ellis


facility or the motor home. He also testified his decisions were the result of “quick action

and thought.” Id. at 245. Mr. Ellis described “quick action” as doing something “without

thought” while acting on “instinct or stupidity.” Id. at 261.

       Prior to the close of evidence, defense counsel indicated there was one more

witness she hoped to call, and the court agreed to recess to give counsel time to find the

witness. The defense rested the following day without calling this witness. There is no

explanation in the record for why the witness was not called, and defense counsel never

identified the witness. During closing, defense counsel argued Mr. Ellis never entered the

storage facility or the motor home with the intent to commit a crime. She acknowledged

Mr. Ellis was at the storage facility unlawfully. However, counsel argued the jury should

convict Mr. Ellis of the lesser included offenses of criminal trespass in the first and

second degree.

       The jury found Mr. Ellis guilty of all charges except third degree theft.

       At sentencing, defense counsel asked for an exceptional sentence downward on the

burglary charge due to the unique circumstances of the offense and Mr. Ellis’s chemical

addiction and posttraumatic stress disorder (PTSD). In the alternative, counsel asked for

a prison-based drug offender sentencing alternative. In support of Mr. Ellis’s request for

leniency, defense counsel presented a testimonial from one of Mr. Ellis’s friends, Jessica


                                              4
No. 35146-7-III
State v. Ellis


Johnson, who spoke to Mr. Ellis’s addiction, mental health problems, and conflicts with

his ex-wife.

       The sentencing judge addressed several of Mr. Ellis’s concerns. The judge found

chemical dependency likely contributed to Mr. Ellis’s offenses. The judge also

questioned defense counsel about facts surrounding Mr. Ellis’s purported PTSD diagnosis

and military service. Defense counsel explained she had not been able to obtain

applicable documentation. The judge ultimately stated she lacked sufficient evidence to

impose a treatment-based sentence or an exceptional sentence downward. The judge

noted that if additional information had been available, the outcome might have been

different. The judge thereafter imposed a standard range sentence.

                                       ANALYSIS

Jury unanimity—burglary and vehicle prowling

       Mr. Ellis argues his right to a unanimous jury verdict was violated because no

unanimity instruction was given for the second degree burglary and first degree vehicle

prowling charges. He asserts there is insufficient evidence he unlawfully entered the

storage facility or the motor home with intent to commit a crime.

       The Washington Constitution guarantees criminal defendants the right to a

unanimous jury verdict. State v. Woodlyn, 188 Wn.2d 157, 162, 392 P.3d 1062 (2017);


                                            5
No. 35146-7-III
State v. Ellis


see also WASH. CONST. art. I, § 21. But a particular analysis is called for when the

charged offense is an alternative means crime. Woodlyn, 188 Wn.2d at 163-64. A

defendant does not have an absolute right to express unanimity in the context of an

alternative means crime. Id. at 164. So long as all of a crime’s alternative means are

supported by sufficient evidence, a general guilty verdict is constitutionally sufficient. Id.

       Mr. Ellis claims second degree burglary and vehicle prowling are both alternative

means crimes. Specifically, both offenses require the State to prove the defendant entered

or remained in a specified location with intent to commit a crime. Mr. Ellis concedes the

State presented sufficient evidence that he illegally remained in both a building (the

storage facility) and a vehicle (the motor home). However, because Mr. Ellis was fleeing

perceived danger from his ex-wife’s boyfriend at the time of entry, Mr. Ellis claims the

State has failed to present sufficient evidence of illegal entry. Because the jury was never

asked to make a unanimous finding as to illegal entry versus illegally remaining, Mr. Ellis

argues both his burglary and vehicle prowling convictions must be reversed.

       Mr. Ellis’s argument fails because sufficient evidence supports finding Mr. Ellis

illegally entered and remained on the premises. Contrary to the defense position, the jury

was not required to believe Mr. Ellis’s explanation that he sought refuge in the storage

facility and motor home in order to escape a violent pursuit. The test for sufficiency


                                              6
No. 35146-7-III
State v. Ellis


requires the evidence be reviewed in the light most favorable to the State, not the defense.

State v. Owens, 180 Wn.2d 90, 99, 323 P.3d 1030 (2014). The jury easily could have

rejected Mr. Ellis’s claim about trying to escape a violent pursuit given his refusal to seek

help from alternate sources such as the nearby restaurants and stores. Mr. Ellis’s conduct,

including his surreptitious entry and destruction of property, provided the jury sufficient

evidence from which to conclude Mr. Ellis harbored criminal intent both when he entered

the storage facility and motor home and over the course of time that he remained on the

premises.

Ineffective assistance of counsel

       Mr. Ellis argues defense counsel was ineffective for: (1) failing to request jury

instructions on a necessity defense, (2) not calling Ms. Johnson as a defense witness

during trial, (3) not investigating a diminished capacity defense, and (4) not requesting a

bill of particulars to specify the underlying crimes on the burglary and vehicle prowling

charges.

       A claim of ineffective assistance of counsel implicates a defendant’s constitutional

rights and may be considered for the first time on appeal. State v. Kyllo, 166 Wn.2d 856,

862, 215 P.3d 177 (2009). To establish ineffective assistance, a defendant must show

both deficient performance and prejudice. State v. McFarland, 127 Wn.2d 322, 334-35,


                                              7
No. 35146-7-III
State v. Ellis


899 P.2d 1251 (1995). Counsel’s performance will not be considered deficient if it can

be characterized as legitimate trial strategy. Kyllo, 166 Wn.2d at 863. With respect to

prejudice, a defendant must show “there is a reasonable probability that, but for counsel’s

deficient performance, the outcome of the proceedings would have been different.” Id. at

862.

       We reject Mr. Ellis’s claim that defense counsel unreasonably failed to pursue a

necessity defense. This is not a case where the defense failed to pursue a coherent

strategy. The defense reasonably attempted to obtain convictions for the lesser included

crime of trespass based on Mr. Ellis’s denial of criminal intent. It was not unreasonable

for defense counsel to focus on this approach instead of simultaneously pursuing a

necessity defense. Necessity requires the defense to proffer facts tending to show the

defendant did not have any reasonable alternative to breaking the law. State v. Kurtz,

178 Wn.2d 466, 478, 309 P.3d 472 (2013); State v. Jeffrey, 77 Wn. App. 222, 225,

889 P.2d 956 (1995). Here, Mr. Ellis admitted that he opted not to seek refuge from

nearby restaurants and stores because he did not want to get anyone else involved. While

Mr. Ellis’s admission did not preclude defense counsel from arguing Mr. Ellis lacked

criminal intent (and therefore should be convicted of trespass), his testimony was

inconsistent with a defense of necessity. Given this circumstance, counsel’s defense


                                             8
No. 35146-7-III
State v. Ellis


strategy to focus on a credible trespass defense, as opposed to a problematic defense of

necessity, was entirely reasonable.

       With respect to Mr. Ellis’s second and third claims, pertaining to defense counsel’s

failure to present and investigate trial evidence, the record is insufficient to establish

deficient representation. We lack any evidence about what steps defense counsel took to

procure Ms. Johnson’s trial testimony or information regarding Mr. Ellis’s PTSD. In

addition, the record does not establish that Ms. Johnson’s testimony or further PTSD

investigation would have been helpful to Mr. Ellis. Although Ms. Johnson’s statements at

sentencing suggest she was aware of conflict between Mr. Ellis and his ex-wife, it is not

clear that Ms. Johnson had admissible testimony regarding the conflict between Mr. Ellis

and his ex-wife on the date of the offense conduct. In addition, because many facts

regarding Mr. Ellis’s alleged PTSD are unknown, we cannot assess whether additional

evidence could have supported a diminished capacity defense or altered the outcome of

Mr. Ellis’s case. Accordingly, Mr. Ellis’s claims regarding counsel’s failure to present

evidence and witnesses cannot be resolved on direct appeal. Instead, Mr. Ellis’s recourse

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

       Mr. Ellis last argues counsel was ineffective for not requesting a bill of particulars

to specify what crime the State alleged he intended to commit in the storage facility or the


                                               9
No. 35146-7-III
State v. Ellis


motor home. This claim fails for lack of prejudice. The purpose of a bill of particulars is

to “amplify or clarify particular matters essential to the defense.” State v. Holt, 104

Wn.2d 315, 321, 704 P.2d 1189 (1985). The ultimate decision about whether to grant a

bill of particulars lies in the sound discretion of the trial court. State v. Noltie, 116 Wn.2d

831, 844-45, 809 P.2d 190 (1991). Mr. Ellis fails to show the trial court would have

exercised its discretion to grant a bill of particulars had a motion been filed. The criminal

information disclosed the State’s theory that Mr. Ellis committed the crimes of theft and

malicious mischief. Given this circumstance, defense counsel would have been hard

pressed to establish further clarification was warranted. Mr. Ellis has therefore failed to

show defense counsel provided ineffective assistance by failing to file a pretrial motion

for a bill of particulars.

Sentencing errors

       Mr. Ellis alleges several errors occurred during sentencing. Because we agree with

Mr. Ellis that the sentencing court erroneously failed to order a chemical dependency

screening and presentence report, we limit our review to those contentions.

       While a standard range sentence is generally not appealable, an exception exists if

the appellant can show the trial court failed to consider information mandated by

RCW 9.94A.500. See State v. Watson, 120 Wn. App. 521, 527, 86 P.3d 158 (2004).


                                              10
No. 35146-7-III
State v. Ellis


Relevant here, the statute provides:

              Unless specifically waived by the court, the court shall order the
       department to complete a chemical dependency screening report before
       imposing a sentence upon a defendant who has been convicted of . . . any
       felony where the court finds that the offender has a chemical dependency
       that has contributed to his or her offense. . . . If the court determines that
       the defendant may be a mentally ill person as defined in RCW 71.24.025,
       although the defendant has not established that at the time of the crime he or
       she lacked the capacity to commit the crime, was incompetent to commit the
       crime, or was insane at the time of the crime, the court shall order the
       department to complete a presentence report before imposing a sentence.”

RCW 9.94A.500(1) (emphasis added).

       The language of this statute is “mandatory and unambiguous.” State v. Brown,

178 Wn. App. 70, 79, 312 P.3d 1017 (2013). It therefore controls our assessment of

Mr. Ellis’s case. In her oral ruling, the sentencing judge specifically found that “chemical

dependency likely contributed to” Mr. Ellis’s offenses. 3 RP (Feb. 17, 2017) at 412.

Given this finding, a chemical dependency screening report was required. In addition,

the judge expressed concern that Mr. Ellis may well have suffered from mental illness

due to his military service. The judge lamented the absence of additional information.

Based on the judge’s reasonable concern that Mr. Ellis might be a mentally ill person, the

judge was required to order a presentence report.

       Although the information regarding Mr. Ellis’s chemical dependency and mental

illness did not come to the judge’s attention until the time of sentencing, this does not

                                             11
No. 35146-7-III
State v. Ellis


alter our analysis. RCW 9.94A.500(1) requires the court order a chemical dependency

screening report and presentence report if the relevant information comes to light

“[b]efore imposing a sentence.” A sentence is not imposed until it is ordered by

the court at a sentencing hearing. Thus, contrary to what is urged by the dissent,

RCW 9.94A.500(1) is not limited to the presentencing context. Instead, the statute

creates a continuing obligation on the sentencing court to order reports, if factually

appropriate, up until the moment a sentence is announced. Given the mandatory language

used in the statute, a court cannot proceed with imposing a sentence if a report is required.

Instead, the court’s only option is to continue the sentencing hearing pursuant to

RCW 9.94A.500(1) (permitting a court to continue a sentencing hearing on its own

motion for good cause).

       Because Mr. Ellis’s sentence was imposed without the benefit of a chemical

dependency screening report or presentence report as required by RCW 9.94A.500(1),

Mr. Ellis’s sentence must be reversed and this matter must be remanded for resentencing

after preparation and consideration of the two reports. The court on remand is free to

select a sentence different from the one originally imposed, if factually and legally

warranted. We do not prejudge whether the information contained in a chemical

dependency screening report or presentence report might justify a different sentence.


                                             12
No. 35146-7-111
State v. Ellis


                                     CONCLUSION

       We affirm Mr. Ellis's convictions, but remand for resentencing. As there was no

substantially prevailing party on review, no action is necessary on Mr. Ellis's motion to

deny appellate costs.

       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, A.CJ.
I CONCUR:




Fearing,~\




                                            13
                                      No. 35146-7-III

       KORSMO, J. (dissenting) — The majority reads RCW 9.94A.500 out of context.

This is a presentencing procedural statute, telling trial judges when they can order

presentence investigations (PSI) or chemical dependency evaluations. It stands the

purpose of the statute on its head to order an evaluation after sentencing, since the

purpose of the evaluation is to help inform the sentencing decision. The trial judge

correctly understood the purpose of the statute and declined to continue sentencing for

the purpose of obtaining more mental health records because it was time to conclude the

case. 3 Report of Proceedings (RP) (Feb. 17, 2017) at 411. Moreover, the defense did

not seek an exceptional sentence for any of the reasons mentioned by the majority since

they are not legally available reasons for a mitigated sentence and was not prejudiced by

the alleged error. For both reasons, I dissent.

       The title of the statute is: “Sentencing hearing—Presentencing procedures—

Disclosure of mental health services information.” This indicates the purpose of the

statute is to govern the sentencing hearing and the procedures leading up to it. The first

paragraph of § 500(1) tells the court when to conduct a sentencing hearing and empowers

the court to continue the hearing. The decision whether or not to continue a sentencing

hearing is within the discretion of the trial judge. E.g., State v. Roberts, 77 Wn. App.
No. 35146-7-III
State v. Ellis—Dissent


678, 685, 894 P.2d 1340 (1995). The remaining provisions of § 500 address procedures

prior to the hearing and what is done with the assembled information at and after

sentencing.

       Some of the procedures specified in the statute expressly indicate that the actions

authorized by § 500 are conducted prior to sentencing—or not at all. For instance, the

second paragraph of § 500(1) directs trial courts to order risk assessments in some

situations, prohibits them in others, and grants discretionary authority to order them in the

remaining cases. The paragraph then concludes with the following sentence: “If

available before sentencing, the report shall be provided to the court.” Thus, if the

mandatory risk assessment is not timely reported to the trial court, it will not be

considered at sentencing. Similarly, the third paragraph expressly states that “at the time

of plea or conviction,” the court shall order a PSI for a convicted sex offender.

       The remainder of the statute implicitly stands for the same proposition—the

powers granted trial courts (or the directives to them) are to be exercised at the time of

conviction, not at the time of sentencing. The “finding” that the trial court entered at

sentencing was simply an acknowledgement that Mr. Ellis used methamphetamine and

that it was a contributing factor to his crime. 1 It should not operate to undo the



       1
         I understand based on anecdotal evidence that this finding is useful during intake
screening at the Department of Corrections, but I have been unable to locate any
regulations or policies that address the topic.

                                              2
No. 35146-7-III
State v. Ellis—Dissent


sentencing and require that the process be done over. If it was intended to have that

effect, the legislature would have prohibited the court from acting without the report.

       The second reason I dissent is that a remand for the reasons stated by the majority

is absolutely useless because the trial court would be unable to act on the theories offered.

Neither a mental health condition nor a drug dependency are bases for an exceptional

sentence, with the latter having been prohibited by the legislature since the very

enactment of the SRA (Sentencing Reform Act of 1981, ch. 9.94A RCW). 2 RCW

9.94A.535(1)(e) (voluntary use of drugs or alcohol not a mitigating factor); LAWS OF

1983, ch. 115, §10 (same); State v. Hutsell, 120 Wn.2d 913, 845 P.2d 1325 (1993)

(cocaine dependence); State v. Allert, 117 Wn.2d 156, 815 P.2d 752 (1991) (alcoholism);

State v. Pennington, 112 Wn.2d 606, 772 P.2d 1009 (1989) (need for treatment not

mitigating factor). 3 The only basis for imposing a mitigated exceptional sentence is if the

facts of the case demonstrate that the crime is less egregious than typical for the offense;

the offender’s personal characteristics are not relevant. 4 See State v. Law, 154 Wn.2d 85,




       2
         This is consistent with the longstanding legislative policy that alcohol or drug
use do not constitute a defense to criminal activity. RCW 9A.16.090.
       3
         The opinion concluded: “we hold, as a matter of law, that a drug or alcohol
problem in and of itself is not a substantial or compelling reason justifying imposition of
an exceptional sentence.” Pennington, 112 Wn.2d at 611.
       4
         A constitutionally required exception to this policy involves youthful offenders
whose crimes demonstrate the hallmarks of immaturity. State v. Houston-Sconiers, 188
Wn.2d 1, 391 P.3d 409 (2017).

                                              3
No. 35146-7-III
State v. Ellis—Dissent


89, 101-104, 110 P.3d 717 (2005); State v. Fowler, 145 Wn.2d 400, 411, 38 P.3d 335

(2002).

       Indeed, defense counsel correctly understood that her client’s mental health and

addiction problems were not valid bases for an exceptional sentence and told the judge

that at sentencing and in her presentence briefing. RP at 397-398; Clerk’s Papers at 86-

87. She, instead, quite properly directed her argument to a contention that the facts of

this crime were less egregious than typical. That is the only basis on which an

exceptional sentence can be based. Law, 154 Wn.2d at 89. However, given that few

burglars barricade themselves inside someone else’s home and then help destroy it, the

trial court understandably rejected this argument. RP at 411-412. While the majority

notes that the trial judge expressed sympathy for the defendant and indicated an interest

in having his problems addressed, that does not mean the trial judge could have acted

along the lines suggested by the majority, even if Mr. Ellis had asked the court to do so. 5




       5
         Indeed, this court has previously reversed the same trial judge for imposing an
exceptional sentence on those same grounds. See State v. Galindo, noted at 160 Wn.
App. 1033 (2011). On remand, the trial court imposed a standard range sentence. State
v. Galindo, No. 30547-3-III (Wash. Ct. App. Mar. 19, 2013) (unpublished), http://www
.courts.wa.gov/opinions/pdf/305473.pdf.




                                              4
No. 35146-7-III
State v. Ellis-Dissent


        If the trial court on remand imposes an exceptional sentence 6 based on either of

these grounds, this court would be forced to reverse the sentence under Pennington and

its many progeny. Remanding this case for an evaluation of an uncontested fact and

possible imposition of an improper exceptional sentence is a waste of resources. The

legislature intended the evaluation to assist in sentencing, not as a basis for overturning a

sentence. The only lesson of this case is that sentencing judges should not make

gratuitous findings. They only result is additional work for everyone involved in the

case.

        I would affirm.




        6
        Nor would the missing evaluation have assisted with the decision whether or not
to impose a prison-based DOSA sentence. RCW 9.94A.660, .662. The trial court
expressly rejected the DOSA proposal as being insufficient under the facts of the case
and because the defendant had recently failed to take advantage of another inpatient
treatment program. RP at 411-413.

                                              5
