      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                       ]      DIVISION ONE
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              Respondent,                  )      No. 67616-4-1                         —!.CZ

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PERNELL LAMONT FINLEY,                     j      UNPUBLISHED OPINION
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              Appellant.                          FILED: April 1,2013
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       Dwyer, J. — Pemell Finley appeals from his convictions of two counts of

rape in the first degree, one count of felony harassment, and one count of felony

violation of a court order arising from an incident in which he forced his girlfriend

to engage in anal sex at knifepoint. He asserts that the trial court erred, first, by    IGTOHS
                                                                                              UiV
denying his request to proceed pro se and, second, by admitting into evidence a

no-contact order which, he contends, was inapplicable to the conduct for which

he was charged. Finley further asserts that his convictions of felony harassment

and rape in the first degree violate the double jeopardy provisions of the

Washington and United States constitutions. We find these contentions to be

without merit and, accordingly, affirm Finley's convictions.
No. 67616-4-1/2



       In addition, Finley contends that his offender score was miscalculated for

purposes of sentencing. Finley is correct that several of his prior convictions in

Florida are not comparable to Washington felonies. Because these convictions

were improperly included by the trial court when calculating Finley's offender

score, we remand for resentencing.

                                          I


       On March 5, 2010, Monique Lock awoke at approximately 5:30 a.m. and

discovered her former fiancee, Pernell Finley, sitting at her computer. Lock, who

had demanded an end to the relationship, asked Finley when he was going to

leave her home. Finley did not reply. Instead, after Lock returned to bed, Finley

went to the kitchen and obtained a knife. He then followed Lock into the

bedroom.

       Finley told Lock that she had ruined his life and that he was going to kill

her. He told her to be quiet and to lie face-down on the bed. He asked Lock,

"who's in control now?" Still threatening Lock with the knife, Finley forced her to

engage in anal sex. Finley thereafter permitted Lock to go to the bathroom to

clean herself. When Lock returned to the bedroom, however, Finley again forced

her to have anal sex at knifepoint.

       Following the completion of these acts, Finley continued to tell Lock that

he was going to kill her because she had ruined his life. Finley told Lock that he

was also going to kill himself and that they "were both going to be in the papers."

When Finley arose from the bed to open the window, Lock fled from the

apartment. Finley chased after Lock and pushed her, causing her to fall down a

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No. 67616-4-1/3



flight of stairs. Lock then began to scream for help, pounding on the doors of

neighboring apartments.

      Shawn Emerson, who lived in a nearby apartment, heard Lock screaming

outside. Emerson ran out of his apartment and toward the origin of the screams.

He encountered Lock near her apartment, naked and bleeding from her leg. She

was shouting repeatedly that she had been raped.

       Emerson quickly returned to his apartment to retrieve a blanket. Emerson

told his wife, Susan, to call 911. He then returned to Lock, wrapped her in the

blanket, and escorted her to his apartment.

       When Emerson and Lock reached Emerson's apartment, Susan was

speaking to a 911 dispatcher on the telephone. The dispatcher asked to speak
to Lock. Lock told the dispatcher that Finley had tried to kill her, that he was
armed with a knife, and that he made her "have all kind of sex with him." During

this conversation, Lock looked out the window and observed Finley attempting to

flee the scene on a bicycle. She described his appearance and location to the
dispatcher. Based upon this information, the police were able to quickly
apprehend Finley.

       Finley was thereafter charged with two counts of rape in the first degree-
domestic violence and one count of felony harassment domestic violence. In

addition, prosecutors discovered the existence of a no-contact order issued on
 May 29, 2009, prohibiting Finley from coming within 500 feet of Lock's residence,




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No. 67616-4-1/4



school, workplace, or person until May 29, 2011.1 Accordingly, Finley was also
charged with domestic violence felony violation of a court order.

       While in jail awaiting trial, Finley placed a series of telephone calls to Lock.

In these calls, he urged Lock to either avoid appearing at his trial or, in the

alternative, to modify her story and describe her encounter with Finley as

consensual intercourse. Finley further instructed Lock to deny having any

contact with him since his arrest. Based upon the content of these telephone

conversations, Finley was also charged by amended information with one count

of witness tampering domestic violence.

       Ajury trial was held in January 2011. As she had been instructed by
Finley, Lock testified that the sexual intercourse was consensual. Finley, who
testified in his own defense, told the jury that it was Lock who had initiated the

anal intercourse. The jury found Finley guilty as charged on all counts. Finley
was thereafter sentenced to a total of 471 months of incarceration.

        Finley appeals.

                                              II


        Finley first contends that the trial court erred by denying his request-
made just prior to the close of the prosecution's case in chief—to discharge his
attorneys and proceed pro se. We disagree.

        Criminal defendants have a constitutional right to waive the assistance of

counsel and represent themselves at trial. Faretta v. California, 422 U.S. 806,

        1The no-contact order was issued based upon an April 2009 incident in which Finley also
threatened to kill Lock with a knife.
No. 67616-4-1/5



819-20, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); State v. Barker, 75 Wn. App.

236, 238, 881 P.2d 1051 (1994). An unjustified denial of this right requires a new

trial. State v. Madsen, 168 Wn.2d 496, 503, 229 P.3d 714 (2010); State v.

Breedlove, 79 Wn. App. 101, 111, 900 P.2d 586 (1995). The right to self-

representation, however, is not absolute. State v. DeWeese, 117 Wn.2d 369,

375, 816 P.2d 1 (1991). As a threshold matter, the defendant's request to

proceed pro se must be both timely and unequivocal.2 State v. Stenson, 132
Wn.2d 668, 737, 940 P.2d 1239 (1997). Where a defendant's request for self-

representation is untimely, "the right is relinquished and the matter ofthe
defendant's representation is left to the discretion of the trial judge." DeWeese,

117Wn.2dat377.

       The trial court's discretion to grant or deny a motion to proceed pro se lies

along a continuum that corresponds with the timeliness of the request. State v.
Honton, 85 Wn. App. 415, 420, 932 P.2d 1276 (1997); State v. Fritz, 21 Wn. App.
354, 361, 585 P.2d 173 (1978). If the request is made well before trial, the right
to self-representation exists as a matter of law. Fritz, 21 Wn. App. at 361. If the
request is made as the trial is about to commence, or shortly before, the
existence ofthe right depends upon the facts ofthe case with a measure of
discretion reposing in the trial court. Frjtz, 21 Wn. App. at 361. Finally, if the

        2In addition, because a request to proceed pro se involves the waiver of the
constitutional right to the assistance of counsel, such a request must also be voluntary, knowing,
and intelligent. Madsen, 168 Wn.2d at 504. Thus, where a defendant makes a timely and
unequivocal request for self-representation, the court should ascertain that the defendant
understands "the seriousness ofthe charge, the possible maximum penalty involved, and the
existence oftechnical procedural rules governing the presentation ofhis defense." DeWeese,
117 Wn.2d at 378. Here, because the trial court determined that Finley's request was neither
timely nor unequivocal, it did not reach these issues.
No. 67616-4-1/6



request is made during trial, "the right to proceed pro se rests largely in the

informed discretion of the trial court." Fritz, 21 Wn. App. at 361. In assessing a

request made after the commencement of trial, the trial court should consider

"'[1] the quality of counsel's representation of the defendant, [2] the defendant's

prior proclivity to substitute counsel, [3] the reasons for the request, [4] the length

and stage of the proceedings, and [5] the disruption or delay which might

reasonably be expected to follow the granting of such a motion.'" Fritz, 21 Wn.
App. at 363 (quoting People v. Windham, 19Cal.3d 121, 128-29, 560 P.2d 1187

(1977)).

       Here, the trial court properly denied Finley's untimely motion. The request

was made just prior to the close ofthe State's case; accordingly, Finley's right to
proceed pro se rested "largely in the informed discretion of the trial court." Fritz,
21 Wn. App. at 361. With respect to the first factor identified in Fritz, the trial
court noted that Finley's assigned attorneys had been conducting a skillful
defense of their client. The court explained that "the representation in this case

has been not only adequate but actually very competent." With respect to the
second factor, the absence ofany earlier request by Finley to substitute counsel
also favored denial. Similarly, Finley's asserted reason for the request—an

unsupported accusation that his attorneys were acting as "agents for the State"—
also militated against the granting of Finley's motion. Moreover, the length and
stage of the proceedings—the fourth factor identified in Fritz—also weighed in
favor of denial. The request was made just prior to the close of the prosecution's
case and, as the trial court explained, "We've had a jury sitting now for days

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No. 67616-4-1/7



hearing the evidence in this case." Finally, given Finley's erratic and combative

behavior throughout the proceedings—including frequent outbursts and verbal

sparring with the trial judge—the court reasonably concluded that granting

Finley's motion would cause unwarranted disruption and delay of the trial.

       Under these circumstances, the trial court properly exercised its discretion

by denying Finley's untimely request to proceed pro se.3 There was no error.
                                                Ill


       Finley next asserts that the trial court erred by admitting into evidence a

no-contact order that, Finley contends, was inapplicable to the conduct for which

he was charged. He asserts that the expiration date ofthis order—issued after
Finley assaulted Lock in 2009—must be construed as predating the conduct at
issue in this case. We disagree.

       As an initial matter, Finley did not object to the admission of the no-contact

order at trial. The issue was not raised in a motion to exclude; nor did Finley

object when the order was introduced into evidence. We will not ordinarily review
a claim of error not raised in the trial court. RAP 2.5(a). Nor has Finley pointed

to any exception within the rules of appellate procedure entitling him to such
review. Accordingly, as Finley acknowledges, this claim oferror must be
analyzed pursuant to the ineffective assistance of counsel standard. Defense

        3Finley asserts that the trial court's decision to deny his motion was based solely upon its
determination that his request was equivocal, a determination that, he asserts, was clearly
erroneous. However, contrary to Finley's interpretation ofthe trial court's ruling, the court made
clear that the denial ofFinley's request was based upon the untimeliness ofthat request. This
determination was sufficient to support the trial court's decision to deny the motion and,
accordingly, we need not and do not address Finley's contention that his request to proceed pro
se was unequivocal.
No. 67616-4-1/8



counsel is ineffective where (1) the attorney's performance was deficient and (2)

the deficiency prejudiced the defendant. Strickland v. Washington, 466 U.S. 668,

687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Dispositive here, in order to

satisfy the prejudice prong of the Strickland test, the defendant must establish

that "there is a reasonable probability that, but for counsel's deficient

performance, the outcome ofthe proceedings would have been different." State
v. Kvllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). Here, because Finley does

not demonstrate that the trial court would have erred by admitting the no-contact

order over a timely objection by his attorney, this claim fails.

       A charge of violation of a no-contact order must be based on an

"applicable" order. State v. Miller. 156 Wn.2d 23, 31-32, 123 P.3d 827 (2005).
"An order is not applicable to the charged crime if it is not issued by a competent
court, is not statutorily sufficient, is vague or inadequate on its face, or otherwise
will not support a conviction of violating the order." Miller, 156 Wn.2d at 31. No-
contact orders that are not applicable to the crime are not admissible. Miller. 156

Wn.2dat31.

       Here, the no-contact order—imposed as a condition of Finley's sentence

following his conviction of fourth degree assault—was issued on May 29, 2009.
The order contained two provisions. The first provision prohibited Finley from
having any contact, other than by telephone, with Lock. The expiration date for
this prohibition was listed as May 29, 2009, the same date that the order was




                                          -8
No. 67616-4-1/9



issued.4 The second provision of the order prohibited Finley from coming within

500 feet of Lock's "residence, school, workplace, and person." In contrast to the

first provision, the expiration date of the second provision was listed as May 29,

2011.

        As Finley correctly points out, where a no-contact order's expiration date

is ambiguous, we have relied on principles of statutory construction to resolve the

ambiguity. City of Seattle v. Edwards. 87 Wn. App. 305, 309, 941 P.2d 697

(1997), overruled on other grounds by State v. Miller. 156 Wn.2d 23, 123 P.3d

827 (2005). In Edwards, the order in question—typed upon a standard pre

printed form—stated:

        THIS ORDER FOR PROTECTION WILL BE EFFECTIVE UNTIL
        ONE YEAR FROM TODAY.
                                                OR


        [ ] until                         (date) or [ ] until further order of the
        court.

87 Wn. App. 308. The second option—"until further order of the court"—was

selected, indicating, the City asserted, that the no-contact order would remain in

effect, notfor one year from the date of issuance, but until such time as another

order was entered by the trial court. Edwards. 87 Wn. App. at 309.

        This court disagreed. Rather, we explained, it was ambiguous "whether

'until further order of the court' was meant to provide a means for modifying the

explicit one-year duration of the order or was meant to extend the duration
beyond one year and until another order was entered." Edwards. 87 Wn. App. at

        4The State contends that this expiration date, which itcharacterizes as "nonsensical,"
was due to a scrivener's error.
No. 67616-4-1/10



309. Applying both the rule of lenity and the general rule that the interpretation of

an ambiguous order should "render no word superfluous," we determined that the

phrase "until further order of the court" could not be reasonably interpreted to

extend the effect of the order beyond the one-year period specified in the first line

of the order. Edwards. 87 Wn. App. at 309. Instead, this phrase did no more

than give notice that the duration of the order was subject to alteration by a court.

Edwards. 87 Wn. App. at 309.

       Here, Finley asserts that, as in Edwards, the differing expiration dates

listed in the two provisions of the no-contact order render the expiration date of
the order ambiguous. He contends that the rule of lenity requires that the order
be construed as having expired in its entirety on May 29, 2009, thus rendering it
inapplicable to his conduct on March 5, 2010. However, unlike the order
considered in Edwards, the no-contact order at issue in this case contains no

ambiguity. Although the expiration dates of the two provisions of the order differ,
these provisions—each addressed at separate and distinct conduct by Finley—
are independent of one another and, accordingly, no rule of statutory
construction is required to harmonize them. Instead, the second provision ofthe
order explicitly prohibits Finley from coming within 500 feet of Lock's residence
and person until May 29, 2011. Because this second provision of the order—
which remained in force on March 5, 2010—was clearly applicable to the conduct

for which Finley was charged, the trial court did not err by admitting the order into
evidence. Any objection by Finley's attorney would have been properly
overruled.

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No. 67616-4-1/11



       Because there is no merit to Finley's contention that the trial court should

have excluded the no-contact order from evidence due to its inapplicability,

Finley can demonstrate no prejudice resulting from his attorney's failure to object

to the admission of the order and, thus, Finley's claim of ineffective assistance of

counsel fails.

                                              IV

       Finley next contends that his convictions of felony harassment and rape in

the first degree violate the state and federal double jeopardy clauses because,

he asserts, the evidence of the threat to kill necessary to prove the forcible

compulsion element of rape in the first degree was also sufficient to prove the

count of felony harassment. We disagree.

       The double jeopardy clauses of the United States and Washington

constitutions protect a defendant against multiple punishments for the same

offense.5 Wash. Const, art. I, § 9; U.S. Const, amend. V; State v. Calle. 125

Wn.2d 769, 772, 888 P.2d 155 (1995). Although the State may bring multiple

charges arising from the same criminal conduct, "'[wjhere a defendant's act

supports charges under two criminal statutes, a court weighing a double jeopardy

challenge must determine whether, in light of legislative intent, the charged

crimes constitute the same offense.'" State v. Freeman. 153 Wn.2d 765, 771,

108 P.3d 753 (2005) (quoting In re Pers. Restraint of Orange. 152 Wn.2d 795,


       5The Washington double jeopardy provision, Wash. Const, art. I, § 9, is interpreted to be
coextensive with the Fifth Amendment as interpreted by the United States Supreme Court. State
v. Gocken, 127 Wn.2d 95, 107, 896 P.2d 1267(1995). We review claims of double jeopardy de
novo. State v. Freeman. 153 Wn.2d 765, 770, 108 P.3d 753 (2005).

                                            -11 -
No. 67616-4-1/12



815, 100 P.3d 291 (2004)). "Ifthe legislature authorized cumulative punishments

for both crimes, then double jeopardy is not offended." Freeman. 153 Wn.2d at

771.


       We employ a three-part test when determining whether the legislature

intended multiple punishments arising from the same criminal conduct. State v.

Kier. 164 Wn.2d 798, 804, 194 P.3d 212 (2008) (citing Calle. 125 Wn.2d at 776).

First, we examine the "express or implicit legislative intent based on the criminal

statutes involved." Kier, 164 Wn.2d at 804. Second, if the legislative intent is

unclear, we may then turn to the "same evidence" test, which asks ifthe crimes

are the same in law and in fact. Calle, 125 Wn.2d at 777-78 (citing Blockburger

v. United States. 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932)). Third,

in instances where the degree of one offense is elevated by conduct constituting

a separate offense, "the merger doctrine may help determine legislative intent."6

        6The merger doctrine, relied upon by Finley in his briefing, is not applicable to the crimes
of felony harassment and rape in the first degree. Under the merger doctrine, "when the degree
of one offense is raised by conduct separately criminalized by the legislature," a presumption
arises that "the legislature intended to punish both offenses through a greater sentence for the
greater crime." Freeman. 153 Wn.2d at 772-73 (citing State v. Vladovic. 99 Wn.2d 413, 419, 662
P.2d 853 (1983)). Application of this doctrine is appropriate, however, "only when a crime is
elevated to a higher degree by proof of another crime proscribed elsewhere in the criminal code."
State v. Parmelee. 108 Wn. App. 702, 710, 32 P.3d 1029 (2001).
        This court has long held that the crimes of felony harassment and rape in the first degree
are not subject to the merger doctrine. State v. Eaton. 82 Wn. App. 723, 731, 919 P.2d 116
(1996), overruled on other grounds by State v. Frohs, 83 Wn. App. 803, 924 P.2d 384 (1996).
Addressing the same argument that Finley makes herein, the court in Eaton explained:
         [T]he type of conduct that establishes felony harassment does not elevate rape
        from second to first degree. On the contrary, forcible compulsion is an element
         of both first degree rape and one of the alternative means of proving second
         degree rape. See RCW 9A.44.040 (defining first degree rape) and RCW
         9A.44.050 (defining second degree rape). As an element that can be shared by
         first and second degree rape, it is, by definition, not an additional element
         required to elevate the crime to a higher degree. In Vladovic the Supreme Court
         clearly held that the merger doctrine does not apply in this type of situation. 99
         Wn.2d at 421. It applies only where the State must prove both an underlying

                                               -12-
No. 67616-4-1/13



Kier. 164 Wn.2d at 804 (citing State v. Vladovic. 99 Wn.2d 413, 419, 662 P.2d

853 (1983)). Finally, even where two convictions would appear to merge on an

abstract level under this analysis, "they may be punished separately ifthe

defendant's particular conduct demonstrates an independent purpose or effect of

each." Kier, 164 Wn.2d at 804; see also State v. Johnson. 92 Wn.2d 671, 680,

600P.2d 1249(1979).

       The language of the statutes defining felony harassment and first degree
rape does not specifically authorize multiple punishments for conduct that
supports charges under both statutes.7 See State v. Nvsta. 168 Wn. App. 30, 48,
275 P.3d 1162 (2012) (comparing felony harassment and rape statutes). In such
circumstances, "the test to be applied to determine whether there are two

offenses or only one, is whether each provision requires proof of a fact which the
other does not." Blockburger. 284 U.S. at 304. As our Supreme Court has

explained,"'[i]f there is an element in each offense which is not included in the
other, and proof of one offense would not necessarily also prove the other, the
offenses are not constitutionally the same and the double jeopardy clause does
not prevent convictions for both offenses.'" Calle. 125 Wn.2d at 777 (quoting
Vladovic. 99 Wn.2d at 423). The elements of the relevant provisions are to be


        crime and an accompanying crime to prove a particular degree ofcrime. Felony
        harassment does not meet that requirement, and the merger doctrine does not
        apply.
82 Wn. App. at 730-32. Accordingly, as this court again recently recognized in State v. Nysta,
because "it is not necessary to prove felony harassment to prove a particular degree of rape," the
merger doctrine (and its accompanying presumption) is not applicable to these crimes. 168 Wn.
App. 30, 48 n.6, 275 P.3d 1162 (2012).                                               .
       7This is in contrast to statutes such as RCW 9A.52.050, which expressly authorizes
 cumulative punishment for crimes committed during the commission of a burglary.

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No. 67616-4-1/14



considered as they were "charged and proved" and not in the abstract. Freeman.

153Wn.2dat777.

       Here, the offense of felony harassment required proof that Finley

knowingly threatened to kill Lock and that Finley's words or conduct placed Lock

"in reasonable fear that the threat [would] be carried out." RCW

9A.46.020(1)(a)(i), (b), (2)(b)(ii). In order to convict Finley of this crime, the jury
was required to determine not only that Lock was subjectively in fear, but also
that her fear was reasonable. State v. Alvarez. 74 Wn. App. 250, 260-61, 872

P.2d 1123(1994), affd, 128Wn.2d 1, 904 P.2d 754 (1995).
       By contrast, the offense of rape in the first degree required proof that
Finley engaged in sexual intercourse with Lock by forcible compulsion and that
Finley used or threatened to use a deadly weapon. RCW 9A.44.040(1)(a).
"Forcible compulsion" may be proved by evidence of "a threat, express or

implied, that places a person in fear of death or physical injury to herself or
himself or another person." RCW 9A.44.010(6). Unlike the felony harassment
statute, however, the rape statute does not require that the victim's fear of death
or injury be reasonable; so long as a threat is communicated by the perpetrator,
evidence ofthe victim's subjective fear is sufficient for conviction. See State v.
Weisberg. 65 Wn. App. 721, 725-26, 829 P.2d 252 (1992) (noting that in addition
to evidence of victim's subjective fear, evidence of a "threat" must also be

adduced in order to prove forcible compulsion).

        Finley contends that the same evidence of a threat to kill used to prove
forcible compulsion was also used to prove the crime of felony harassment and
                                          -14-
No. 67616-4-1/15



that, accordingly, the "same offense" served as the basis for these two

convictions.8 However, as a comparison of the elements of the two crimes
makes clear, felony harassment and rape in the first degree are not the same in

law or in fact. Although it is true that—as these crimes were "charged and

proved," Freeman, 153 Wn.2d at 777—evidence of a threat to kill by Finley was

necessary to prove both felony harassment and rape in the first degree, each

provision also required "proof of a fact which the other d[id] not." Blockburqer.

284 U.S. at 304. Proof of felony harassment, unlike rape in the first degree, did

not, of course, require proof of sexual intercourse. Proof of first degree rape,

unlike felony harassment, did not require proof that Lock was placed in

"reasonable fear" that Finley's threat to kill would be carried out. Instead, in order

to prove the rapes, the prosecution was required to demonstrate only that Lock
was placed in subjective fear of death or physical injury. Weisberg. 65 Wn. App.

at 725-26.

        Accordingly, at trial, in order to prove the crime offelony harassment, the
prosecution pointed to several pieces ofevidence relating to the reasonableness

        8The State asserts that Finley's convictions of felony harassment and rape in the first
degree were, in fact, based upon separate and distinct threats to kill. The State contends that,
because there was evidence that Finley continued to make death threats to Lock after the rapes
were completed, these independent acts were sufficient to support Finley's conviction offelony
harassment and that, accordingly, Finley's double jeopardy argumentshould be rejected.
         Because felony harassment and rape in the first degree are not the same in law or in fact,
we need not address this argument. We note, however, that where a potential double jeopardy
violation has occurred, the mere existence of independent evidenceto support both convictions
does not obviate the violation. Instead, a reviewing court must examine the entire record when
considering a double jeopardy claim. "Considering the evidence, arguments, and instructions, if it
is not clear that itwas 'manifestly apparent to the jury that the State [was] not seeking to impose
multiple punishments for the same offense' and thateach count was based on a separate act,
there is a double jeopardy violation." State v. Mutch. 171 Wn.2d 646, 664-65, 254 P.3d 803
(2011) (alteration in original) (quoting SJatev1_Berg, 147 Wn. App. 923, 931, 198P.3d529
(2008)). The State makes no effort to apply this standard.

                                               -15-
No. 67616-4-1/16



of Lock's fear. In closing argument, the prosecutor argued to the jury that

Finley's use of a knife, his prior conviction of assault against Lock in 2009, and

his erratic behavior preceding the threat to kill, all indicated the reasonableness

of Lock's belief that Finley's threat would be carried out. As the prosecutor

explained, given these circumstances, "[ajnyone would have been scared of
that." On the other hand, such evidence was unnecessary to secure a conviction

of rape in the first degree. Thus, in discussing the elements of rape, the

prosecutor noted only that Lock had testified that she believed she would be
killed. Nothing further was required to demonstrate forcible compulsion.
       Because the crimes of felony harassment and rape in the first degree, as

charged and proved, each require proof of a fact that the other does not, these
crimes are not the same in law or in fact. Accordingly, "'the offenses are not

constitutionally the same and the double jeopardy clause does not prevent
convictions for both offenses.'" Calle. 125 Wn.2d at 777 (quoting Vladovic, 99

Wn.2d at 423). The trial court did not err by declining to merge these crimes.
                                          V


       Finley next contends that the trial court incorrectly calculated his offender
score for purposes of sentencing because, he asserts, the court wrongly
determined that several of his prior out-of-state convictions were comparable to
Washington crimes. With respect to Finley's out-of-state convictions of burglary
and escape, we agree.

       Under the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, a
defendant's offender score establishes the range within which he or she must be

                                        -16-
No. 67616-4-1/17



sentenced. RCW 9.94A.530. Where the defendant's criminal history includes an

out-of-state conviction that is "comparable" to a Washington felony, the out-of-

state conviction counts toward the defendant's offender score as if it were the

equivalent Washington offense. State v. Morlev. 134 Wn.2d 588, 606, 952 P.2d

167 (1998). The State bears the burden of proving both the existence and the

comparability of the out-of-state conviction.9 State v. Ford. 137 Wn.2d 472, 480,
973 P.2d 452 (1999).

          Atwo-part test is utilized to determine whether an out-of-state conviction is
comparable to a Washington felony conviction. State v. Larkins. 147 Wn. App
858, 862-63, 199 P.3d 441 (2008). "A court must first query whether the foreign

offense is legally comparable—that is, whether the elements ofthe foreign
offense are substantially similar to the elements ofthe Washington offense."
State v. Thiefault. 160 Wn.2d 409, 415, 158 P.3d 580 (2007). If the answer is

yes, the analysis is complete, and the court may properly count the defendant's
out-of-state conviction as an equivalent Washington conviction. Morlev. 134

Wn.2d at 606. If, however, the elements of the foreign offense are different or

broader, the sentencing court must then determine whether the conviction is
factually comparable—that is, whether the undisputed facts regarding the
conduct underlying the out-of-state conviction would satisfy the elements of the
comparable Washington crime. Thiefault. 160Wn.2d at415.


       9We review de novo a challenge to the classification ofan out-of-state conviction. State
v Labarbera. 128 Wn. App. 343, 348, 115 P.3d 1038 (2005). Atrial court's calculation ofan
offender score is also reviewed de novo. State v. Berastrom. 162 Wn.2d 87, 92, 169 P.3d 816
(2007).

                                             -17-
No. 67616-4-1/18



       Here, the State introduced evidence of seven prior convictions in Florida.

These included two convictions of first degree robbery, one conviction of second

degree robbery, one conviction of burglary, one conviction of possession of

cocaine, and two convictions of escape. The sentencing court determined that

these out-of-state convictions were comparable to Washington felony convictions

and, accordingly, included the Florida convictions when calculating Finley's

offender score.

       Finley contends, first, that because Florida's robbery statute does not

include the term "immediate force," the crime of robbery in Florida is not

comparable to the crime of robbery in Washington.10 This is so, Finley asserts,
because absent a requirement of "immediate force," the Florida statute permits a

conviction even where the use of force has occurred after the taking of the

property has been completed, a state of affairs, Finley contends, that the
Washington robbery statute does not contemplate. Instead, Finley asserts that
the Washington robbery statute allows a conviction only when "the force orfear
. . . takes place before or during the taking, rather than afterthe taking has been

completed."

        Finley's contention, however, is contrary to the plain language of our

state's robbery statute. The statute states:


        10 The Florida statute defines robbery as "the taking of money or other property which
may be the subject oflarceny from the person orcustody ofanother, with intent to either
permanently ortemporarily deprive the person orthe owner of the money orother property, when
in the course ofthe taking there is the use offorce, violence, assault, or putting in fear." Former
Fla. Stat. § 812.13 (1987). An actshall be deemed "in the course ofthe taking" if it occurs "either
prior to, contemporaneous with, or subsequent to the taking of the property and if it and the act of
taking constitute a continuous series of acts or events." Former Fla. Stat. § 812.13(3)(b) (1987).

                                                 18
No. 67616-4-1/19



         A person commits robbery when he unlawfully takes personal
         property from the person of another or in his presence against his
         will by the use or threatened use of immediate force, violence, or
         fear of injury to that person .... Such force or fear must be used to
         obtain or retain possession of the property, or to prevent or
         overcome resistance to the taking; in either of which cases the
         degree of force is immaterial.

Former RCW 9A.56.190 (1975) (emphasis added). Applying the plain language

of the statute, we have long held that where a defendant has used force after the

taking in order to retain stolen property, those "actions fall squarely within the

provisions of the statute." State v. Manchester. 57 Wn. App. 765, 769, 790 P.2d

217 (1990). Accordingly, both the Florida and Washington robbery statutes

permit convictions where the use offorce occurs after the taking is complete.
Finley's contention to the contrary provides no basis for reversing the sentencing
court's inclusion of Finley's robbery convictions when determining his offender

score.


         Nevertheless, in his reply brief, Finley shifts his argument to suggest that

these crimes are not legally comparable because the Florida statute does not
require that the force used in the course of the robbery be employed in order to
obtain or retain possession of the property. This, he asserts, is in contrast to the
Washington statute, which requires a "nexus" between the use of force and the
taking or retaining of the stolen property. This argument, however, is raised for
the first time by Finley in his reply brief, and the State has had no opportunity to
address Finley's contention. We do not consider an issue raised for the first time
in a reply brief. State v. White. 123 Wn. App. 106, 114 n.1, 97 P.3d 34 (2004).
Moreover, as even a cursory review of Florida case law reveals, that state's

                                          -19-
No. 67616-4-1/20



robbery statute, like that of Washington's, requires that the taking or retaining of

the property be accomplished by the use of force or putting in fear. See Owens

v. State. 787 So.2d 143, 143-44 (Fla. App. 2001) ("To sustain a conviction for

robbery, the State must prove that the theft was accomplished by force, violence,

assault, or putting in fear." (emphasis added) (internal quotation marks

omitted)).11
       Accordingly, there is no merit to Finley's untimely attempt to differentiate

the two statutes. The sentencing court did not err by including Finley's prior

robbery convictions when calculating his offender score.

       Finley next contends that his conviction of burglary in Florida is not

comparable to the crime of burglary in Washington. This is so, Finley asserts,
because the legal elements of the two crimes are not the same, and it cannot be
determined, given the undisputed facts in the record, whether the conduct that
supported his conviction in Florida would satisfy the elements of the crime of
burglary in Washington. We agree.

        In 1991, the year of Finley's conviction, the Florida burglary statute
stipulated that "'burglary' means entering or remaining in a structure or a
conveyance with the intent to commit an offense therein" Former Fla. Stat. §
810.02 (1983) (emphasis added). By contrast, the Washington burglary statute
in effect at that time stated, in pertinent part, that "[a] person is guilty of burglary

        11 The charging documents for the robbery convictions are consistent with this
requirement of Florida law. The complaint in Finley's 1991 conviction for first degree robbery
alleged that Finley had taken money or other property "by force, violence, assault or putting Judy
Lee in fear." Finley's 1996 conviction was similarly based upon the taking ofproperty or money
"by force, violence, assault or putting Christopher Rivera and/or Tamika Walker in fear."

                                              -20-
No. 67616-4-1/21



in the first degree if, with intent to commit a crime against a person or property

therein, he enters or remains unlawfully in a dwelling." Former RCW 9A.52.020

(1975) (emphasis added). Thus, the language of the Washington statute

requires the intent to commit a crime against a person or property, whereas

Florida's robbery statute does not.

       This distinction is not without consequences. Although a person intending

to commit a drug crime would be guilty of burglary in Florida, similar proof would

not support a burglary conviction in Washington. See P.D.T. v. State. 996 So.2d
919, 920 (Fla. App. 2008) (noting that evidence that juvenile entered home with
intent to drink beer—"a crime for a minor"—would be sufficient to support robbery

conviction). We have previously determined, in identical circumstances, that an
out-of-state burglary conviction is not legally comparable to a conviction of
burglary in Washington. Larkins. 147 Wn. App. at 863-64. In Larkins. we
considered the comparability ofthe crime of burglary in Ohio to the crime of
burglary in Washington. 147 Wn. App. at 864-65. Because, as in Florida, the
Ohio statute permitted "a crime other than one against a person or property as an
element of burglary," we determined that the elements of the two crimes were not
comparable as a legal matter. Larkins, 147Wn. App. at 864.
       The situation presented here is indistinguishable from that addressed in
Larkins; because the Florida burglary statute permits a burglary conviction even

where the intended crime was not a "crime against a person or property," this

offense is not legally comparable to the crime of burglary in Washington.
        Nevertheless, the State asserts that even if the two crimes are not legally

                                        -21 -
No. 67616-4-1/22



comparable, inclusion of this burglary conviction in Finley's offender score was

proper because the two crimes are factually comparable. This is so, the State

contends, because Finley's concurrent 1991 conviction for robbery in Florida—

committed on the same day as the burglary and against the owner of the same

home that he unlawfully entered—was a "crime against persons or property" that

would support a conviction of burglary under Washington law. The State notes

that although there is no direct evidence that this robbery was the intended crime

used to support Finley's burglary conviction, because Finley was armed with "a

piece of lumber" during the commission of both crimes,

       [i]t would appear to be an eminently reasonable conclusion—and
       one the trial court should be allowed to make—that Finley did not
       carry a piece of lumber all day, choosing to victimize Lee at two
       distant points in time using the same weapon, but that he equipped
       himself with a piece of wood and then unlawfully entered Lee's
       home with the intent to deprive her of her purse and her money, a
       crime he then completed.

       In Larkins, however, we explained that in determining whether an out-of-

state conviction is factually comparable to a Washington crime, a sentencing
judge cannot rely on inferences unless those inferences "inevitably follow from
the admitted facts." Larkins. 147 Wn. App. at 866. As it does here, in Larkins,

the State argued that the defendant's concurrent conviction of assault against the
homeowner was the intended crime which supported the burglary conviction.

However, because there was no direct evidence so indicating, we determined
that in finding that the defendant had intended a crime against a person or
property, the sentencing court had necessarily drawn a factual inference.
 Because this inference did not "follow inevitably" from the admitted evidence, it

                                        -22-
No. 67616-4-1/23



constituted impermissible judicial fact-finding, and we therefore reversed the

sentencing court's decision to include this prior out-of-state conviction when

calculating the defendant's offender score. Larkins. 147 Wn. App. at 866.
       Here, as in Larkins. in order to determine that Finley's burglary conviction

in Florida was factually comparable to the crime of burglary in Washington, the

sentencing court impermissibly relied upon a factual inference that does not

follow inevitably from the undisputed facts ofthat prior conviction. Although both
the robbery and the burglary involved the same victim, the same day, and even

the same weapon, it does not follow that both convictions arose from a single
interaction. As Finley points out, it remains possible that "Finley was homeless,
carried the piece of lumber for protection, unlawfully entered Judy Lee's home to
consume illegal drugs, and encountered Judy Lee only after vacating the

premises."

       Because, absent reliance upon an impermissible inference, it cannot be

determined whether Finley's conduct underlying his Florida burglary conviction
would support a conviction under Washington law, the Florida conviction is not
comparable to the Washington crime, and the trial court erred by including this
conviction when calculating Finley's offender score.

       Finally, the State concedes that Finley's convictions of escape in Florida
are not comparable to convictions of first degree escape in Washington. As the
State correctly notes, the elements of the two crimes differ. In Washington, only
a person "detained pursuant to a conviction of a felony or an equivalent juvenile
offense" may be convicted of escape in the first degree. RCW 9A.76.110. By
                                        -23-
No. 67616-4-1/24



contrast, in Florida, the reasons for the detention are irrelevant. Former Fla. Stat.

§ 944.40 (1971). Moreover, because the documents introduced at sentencing do

not describe with specificity the crime for which Finley was in custody, it is

impossible to determine if Finley's conduct in Florida would support a conviction

under the Washington first degree escape statute. Accordingly, as the State

properly concedes, the sentencing court erred by concluding that the crimes

were equivalent and that Finley's Florida convictions for escape should be

included in the calculation of his offender score.

       Because the exclusion of the out-of-state burglary and escape convictions

results in reduced offender scoring as compared to that utilized by the trial court

in determining the appropriate sentences on the various counts, we remand to
the trial court for resentencing. The trial court retains complete discretion to

determine Finley's sentences within the appropriate standard ranges.

                                          VI


       Finley next asserts several claims of ineffective assistance of counsel
based upon his attorney's failure to argue that his current offenses of rape in the
first degree, felony harassment, and felony violation of a court order constituted
the "same criminal conduct" for purposes of sentencing. In addition, Finley

contends that his attorney should have argued at sentencing that his 1991
convictions of burglary and robbery in Florida also constituted the same criminal
conduct. We disagree on all counts.

       A determination of "same criminal conduct" at sentencing affects the

standard range sentence by altering the offender score. RCW 9.94A.589(1). "[I]f
                                        -24-
No. 67616-4-1/25



the 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." RCW 9.94A.589(1). With respect to prior convictions, even where the

prior sentencing court did not explicitly make a finding of same criminal conduct,

if the court ordered that the sentences be served concurrently, the current

sentencing court must independently determine whether the prior convictions

"encompass the same criminal conduct" and, if they do, must count them as one

offense. RCW 9.94A.525(5)(a)(i); State v. Torngren. 147 Wn. App. 556, 563, 196

P.3d 742 (2008).

      Crimes constitute the "same criminal conduct" when they "require the

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

same victim." RCW 9.94A.589(1). The legislature intended the phrase "same

criminal conduct" to be construed narrowly, State v. Flake. 76 Wn. App. 174, 180,

883 P.2d 341 (1994); ifany one of the factors is missing, the multiple offenses do

not encompass the same criminal conduct. State v. Lesslev, 118 Wn.2d 773,

778, 827 P.2d 996 (1992). Moreover, because a finding by the sentencing court

of same criminal conduct always favors the defendant, "it is the defendant who

must establish [that] the crimes constitute the same criminal conduct." State v.

Graciano       Wn.2d       , 295 P.3d 219, 223 (2013).

       Finley asserts that he received ineffective assistance of counsel, first,

when his lawyer did not argue that his prior convictions of burglary and robbery in

Florida—committed on the same day and involving the same victim—constituted

the same criminal conduct. Finley's lawyer instead chose to argue that these

                                        -25-
No. 67616-4-1/26



crimes were not comparable to crimes in Washington, a strategy potentially

furthered by a decision not to introduce evidence of the underlying facts of those

cases. Because such evidence would have been required for the sentencing

court to make a same criminal conduct determination, Finley's lawyer's decision

to refrain from making this argument constitutes a legitimate trial tactic and, thus,

is not subject to an ineffective assistance of counsel claim. See State v. Aho,

137 Wn.2d 736, 745-46, 975 P.2d 512 (1999). Moreover, because we have

determined that Finley's conviction of burglary is neither legally nor factually

comparable to the crime of burglary in Washington, only the robbery conviction

will be counted toward Finley's offender score at resentencing. Thus, Finley's

claim, regardless of merit, is moot.

       With regard to the crimes of felony harassment and rape in the first

degree, Finley fails to demonstrate that any argument by defense counsel would
have had a reasonable probability of affecting the outcome of his sentencing.

See Strickland. 466 U.S. at 693. In declining to merge these crimes, the

sentencing court explained that the acts supporting the felony harassment and

the rapes had "occurred over a period of time" and that there was evidence

supporting the harassment that was not "necessaryto prove the rape." Thus, the
sentencing court clearly believed that these crimes occurred at different times.
Given the court's view of the evidence underlying the two convictions, and in light

of the defendant's burden to demonstrate same criminal conduct, Graciano. 295

P.3d at 223, it is highly improbable that such an argument, had it been made,

would have been successful. Accordingly, Finley's second ineffective assistance

                                        -26-
No. 67616-4-1/27



of counsel claim also fails.

        Finley's remaining claim also fails for similar reasons. Finley asserts that,

because both the rapes and the felony violation of the court order involved the

same intent, the same victim, and the same time and place, these crimes

encompass the same criminal conduct and, thus, should have been counted as a

single crime for purposes of sentencing. He asserts that his attorney should

have so argued. However, as we have previously explained, "[t]he legislature

[has] recognized that violation of a no-contact order is a crime against the court

and punishable as contempt of court." State v. Moreno, 132 Wn. App. 663, 671,

132 P.3d 1137 (2006) (citing RCW 26.50.110(3)) (emphasis added).

Accordingly, because these crimes do not involve the same victim, they do not

encompass the same criminal conduct. Such an argument by Finley's attorney

would have failed and, consequently, so must his claim for ineffective assistance

of counsel.12


        12 In a lengthy statementof additional grounds, Finley asserts a multitude of additional
ineffective assistance of counsel claims. These claims, which simply reflect Finley's
disagreement with his lawyer's strategic decisions during trial, do not have merit. There is "'a
strong presumption thatcounsel's performance was reasonable,'" State v. Grier, 171 Wn.2d 17,
33, 246 P.3d 1260 (2011) (quoting Kvllo. 166 Wn.2d at 862), and matters of legitimate trial
strategy are, ofcourse, not subject to ineffective assistance claims. Aho, 137Wn.2d at 745.
"[T]he defendant bears the burden ofestablishing the absence of any 'conceivable legitimate
tactic explaining counsel's performance.'" Grier, 171 Wn.2d at 42 (quoting State v. Reichenbach,
153 Wn.2d 126, 130, 101 P.3d 80 (2004)).
        Here, in what is perhaps his most cogent claim, Finley asserts that itwas deficient for his
counsel to note during closing argument that the evidence supporting the felony harassment
charge was essentially uncontradicted. This admission, however, was made in the context ofan
argument thatthe charges of rape in the first degree—carrying far greater potential
punishments—remained unproved. Thus, in context, it is clearthat counsel's argument was
aimed at securing an acquittal for her client on the most severe of the charges against him.
       In addition, Finley asserts that he received ineffective assistance when his lawyer told the
jury that it need not memorize all ofits instructions, that certain claims could be more easily
decided than others, that the system was geared to assume that Finley was a "bad guy," and that
Lock was angry with Finley, not because she had been raped, but because she had been pushed

                                               -27-
No. 67616-4-1/28



        We affirm Finley's convictions of rape in the first degree, felony

harassment, and felony violation of a court order. We remand to the trial court

for resentencing.




We concur:




down the stairs. He further asserts that defense counsel conducted an inadequate cross-
examination of Lock and thatshe misrepresented the meaning of Finley's cryptic statement to the
prosecutor that, "I am your best witness."
         Because, however, each ofthese actions by Finley's attorney fell well within the bounds
of legitimate trial strategy, Finley's claims fail.

                                                      -28-
