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                                                                                                  FS3               3.




      IN THE COURT OF APPEALS OF THE STATE O

                                                           DIVISION II

STATE OF WASHINGTON,                                                                  No.


                                             Respondent,


        V.



JOHN SCOTT LONERGAN,                                                              UNPUBLISHED OPINION


                                             0


         LEE, J. —         John Scott Lonergan appeals his convictions of second degree assault /domestic

violence     and     felony      harassment ( death threat) /domestic             violence,   arguing that he received

ineffective assistance of counsel when his attorney failed to argue at sentencing that his current

offenses     constituted         the   same       criminal   conduct.    Lonergan argues in a pro se statement of


additional grounds ( SAG) that his trial attorney also was deficient in failing to present an alibi

defense.     Because Lonergan' s trial testimony conflicts with the alibi he now presents, we reject

his   related      claim    of   deficient        performance.     We    affirm   Lonergan'   s   convictions.     However,


because Lonergan' s trial counsel failed to raise the same criminal conduct argument, we agree


with this claim of ineffective assistance of counsel and remand for resentencing.

                                                                 FACTS


         Marisa Cadman and Lonergan had a tumultuous relationship that resulted in Lonergan

moving       out   of   Cadman'        s   home in late 2011.       Shortly after 1: 00 AM on November 17, 2011,

Cadman called 911 to report an altercation with Lonergan. Clark County Deputy Sheriff Richard

Osborne      responded       to the        call   and   found Cadman crying, shaking,     and upset.         She told Osborne
No. 43645 -1 - II


that Lonergan       showed    up   at   her home       sometime around midnight.           After he had been there for


about an hour, she received a text from a male friend, and Lonergan demanded to see the text.

When     she   refused,     a struggle     ensued.         After pushing Cadman down on the couch, Lonergan

began choking her with both hands while threatening to kill her.

         Lonergan         was      arrested      shortly      thereafter       and   charged       with   second     degree


        domestic violence and
assault /                                 felony                                domestic
                                                     harassment ( death threat) /                   violence.   At his trial,


Cadman testified that when she refused to relinquish her phone, Lonergan put his hands around

her   neck and    threatened to         kill her.     He would let go briefly and then choke her again while

                                                       fact that he           saying that, it                        Report
threatening her. She         testified that " the                       was                     was even worse."




of    Proceedings ( June 11, 2012)              at   51.    Cadman gave up and showed Lonergan her phone.

Lonergan read the text message and left when Cadman told him she was calling the police.

Cadman estimated that the altercation lasted 15 minutes.


          Deputy Osborne testified about responding to the 911 call and explained that Cadman

took Lonergan' s threat to kill seriously because he was choking her at the time.

          Lonergan testified that he went over to Cadman' s house on the night in question at her

invitation.     He    got   there before      she    did   and   took   a shower.    When she came home drunk, he


 confronted     her   about     where     she   had been,        pushed   her away,     and     left.   He denied choking

 Cadman or threatening to kill her.

          After the jury found Lonergan guilty as charged, the trial court counted his current
                                                                                                  The trial court imposed
 offenses   separately in calculating his              offender score on each offense.




 concurrent standard range sentences of 75 months on the assault and 51 months on the

 harassment.




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No. 43645- 1- 11



           Lonergan appeals and raises two claims of ineffective assistance of counsel.

                                                       DISCUSSION


A. INEFFECTIVE ASSISTANCE OF COUNSEL

           Lonergan argues that he received ineffective assistance of counsel when his attorney

failed to argue at sentencing that his two current offenses counted as one under the same criminal

conduct rule.




           To prevail on a claim of ineffective assistance of counsel, a defendant must prove that his

counsel' s    performance         was     deficient    and   that    the   deficiency   was   prejudicial.   State   v.


Hendrickson, 129 Wn.2d 61, 77 -78, 917 P. 2d 563 ( 1996).                     Counsel' s performance is deficient if


it falls below an objective standard of reasonableness and is not based on a legitimate strategic or

tactical   decision. State       v.   McFarland, 127 Wn.2d 322, 334 -36, 899 P. 2d 1251 ( 1995).             Prejudice


is established if a defendant can show that but for the deficient performance, the outcome would

have differed. State        v.   Thomas, 109 Wn.2d 222, 226, 743 P. 2d 816 ( 1987).              The failure to make


a same criminal conduct argument is prejudicial if the defendant shows that with the argument,

the   sentence would        have differed.      State -v. Beasley, 126 Wn. App. 670, 686, 109 P. 3d 849,

review denied, 155 Wn.2d 1020 ( 2005).


           Offenses are the same criminal conduct if they require the same criminal intent, are

committed       at   the   same   time    and place,   and   involve the     same victim.     RCW 9. 94A.589( 1)( a).


 Courts narrowly construe the same criminal conduct rule, and if any of the three elements is

 missing,    each conviction must count          separately.        State v. Porter, 133 Wn.2d 177, 181, 942 P. 2d


 974 ( 1997).




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No. 43645 -1 - II



         Here, there is no dispute that Lonergan committed assault and felony harassment at the

same    time    and   place    and   against        the   same     victim.       The only issue is whether Lonergan

committed his crimes with the same criminal intent.

         In this   context,   intent does         not mean   the   particular mens rea required    for the   crime.'    State


v.   Davis, 174 Wn.      App.       623, 642, 300 P. 3d 465,               review    denied, 178 Wn.2d 1012 ( 2013).


Rather, it    means   the defendant'       s "`   objective criminal purpose         in committing the   crime. "'     Davis,


174 Wn. App. at 642 ( quoting 'State v. Adame, 56 Wn. App. 803, 811, 785 P.2d 1144, review
denied, 114 Wn.2d 1030 ( 1990));                  see State v. Dunaway, 109 Wn.2d 207, 217, 743 P.2d 1237,

749 P. 2d 160 ( 1987) (       kidnapping          and   robbery    convictions shared same      criminal   intent); Davis,


174 Wn. App. at 642 ( assault and attempted murder convictions shared same criminal intent);
State   v.   Phuong,   174 Wn.       App.         494, 548, 299 P. 3d 37 ( 2013) (        finding ineffective assistance

where counsel did not argue that attempted rape and unlawful imprisonment offenses shared

same criminal       intent); State    v.   Saunders, 120 Wn.              App.   800, 825, 86 P. 3d 232 ( 2004) (    finding

ineffective assistance where counsel did not argue that rape and kidnapping convictions shared

same criminal       intent); State   v.    Davis, 90 Wn.           App.   776, 782, 954 P. 2d 325 ( 1998) (    assault and




burglary convictions shared same criminal intent).

             In determining whether two or more crimes share the same criminal intent, courts

 consider how intimately related the crimes are, whether the nature of the criminal objective




     The crimes of second degree assault by strangulation and felony harassment have different
 statutory intents. The intent for second degree assault as charged is to                       assault by strangulation,
 and the intent for felony harassment is to knowingly threaten to kill.                          RCW 9A.36. 021( 1)( g);
 RCW 9A.46. 020( 1), (        2).



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No. 43645 -1 - II


                   changed    between the      crimes, and whether one crime          furthered the   other.   Phuong,
substantially


174 Wn.                    546 -47 ( citing State          Burns, 114 Wn.24 314, 318, 788 P. 2d 531 ( 1990)).
               App.   at                              v.




Crimes may involve the same criminal intent if they were part of a continuing, uninterrupted

sequence of conduct. Porter, 133 Wn.2d at 186.

             As Cadman and the deputy testified, Lonergan choked and threatened her simultaneously

so    that   she   would relinquish      her   cell   phone.    The trial court could conclude that Lonergan' s


criminal      objective    in committing these         offenses was     the   same:   to force Cadman to yield her


phone. The trial court could also determine that choking Cadman both legitimized and furthered

the    threat,     particularly when there was no temporal break between the assault and the

harassment. This is not a case where one crime was completed before the other was committed

or a case where the defendant had the opportunity to pause and reflect after completing one

offense and to form a new intent before committing another. See State v. Wilson, 136 Wn. App.

 596, 615, 150 P. 3d 144 ( 2007) ( where, defendant              had time to complete an assault and form a new

 intent to threaten the victim, the crimes of assault and felony harassment had different objective

 intents     and were not     the   same criminal conduct);         State v.- Grantham, 84 Wn. App. 854, 859, 932

 P. 2d 657 ( 1997) ( defendant had time after first rape to form intent to commit the second, so the


 two rapes counted separately).


             Thus, given the facts of this case, there is a reasonable probability that had counsel

 argued same criminal conduct, the trial court could have found that the second degree assault and

 the felony harassment offenses encompassed the same criminal conduct. Furthermore, there was

 no legitimate reason for defense counsel not to have asked the court to find that Lonergan' s

 second degree assault and felony harassment convictions were the same criminal conduct.



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No. 43645 -1 - II



Consequently, we must find that defense counsel was deficient in failing to make the same

criminal conduct argument at sentencing. Saunders, 120 Wn. App. at 825.

           When two or more crimes constitute the same criminal conduct, the sentencing court

must       count    them     as    one   offense      in   computing     the   defendant'   s   offender    score.   RCW


9. 94A. 589( 1)(     a).   Here, counting each of Lonergan' s current offenses separately resulted in an

offender score of 10 for the assault, which included two points for the felony harassment because

it   was    a   domestic    violence     offense.      RCW 9. 94A. 525( 21)(      a).   With that offender score, the


standard range was           63 -84   months.    RCW 9. 94A.510,. 515.            Lonergan received a sentence of 75


months on          the   assault   conviction.      Had the current offenses counted as one under the same


criminal conduct rule, Lonergan' s offender score on the assault would have been 8, with a

standard range of 53 -70 months, and a standard sentence of 75 months would not have been

permissible.       2 RCW 9. 94A.510. Therefore, because Lonergan' s sentence for assault likely would

have differed had the trial court agreed with the same criminal conduct analysis, the prejudice


prong      of   the ineffective     assistance of counsel      test is   satisfied..    Beasley, 126 Wn. App. at 686.

Accordingly, a remand for resentencing is required.

B. ALIBI DEFENSE


            Lonergan argues in his pro se SAG that his counsel was ineffective for failing to pursue

an alibi defense stemming from his detention on other charges in Portland early on November

 17, the date of the alleged altercation.




 2 For the felony harassment, Lonergan' s. standard range was 51 -68 months with a score of 10 and
 43 -57    months with a score of         8. RCW 9. 94A. 510,. 515.            Consequently, his 51 -month sentence
 for the harassment did            not exceed   the   standard range     corresponding to the lower        score.
No. 43645 -1 - II



        The record shows that the trial court granted Lonergan' s pretrial motion to exclude any

references   to his   unrelated   traffic stop   on   November 17   as   irrelevant. Lonergan argues now that


his stop in the " early morning hours" of November 17 would have provided him with an alibi


defense.     SAG    at   2.   Cadman called 911 at 1: 13 AM on November 17 to report the altercation.


Thus, Lonergan' s early morning traffic stop and arrest in Portland does not undermine Cadman' s

allegations.     Moreover, Lonergan testified that .he was in Cadman' s home on the night in

question.      We see no deficient performance in defense counsel' s failure to pursue an alibi

defense and reject this claim of ineffective assistance of counsel.

        We affirm Lonergan' s convictions, but remand for resentencing where defense counsel

can argue same criminal conduct.




        A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW .

2. 06. 040, it is so ordered.




                                                                                   Lee, J.




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