                                                                                                             F11- ED
                                                                                                      00 ' ? T OF ,
                                                                                                                    PPc-AL

                                                                                                  2013 DEC 17 AM 8: 49
       IN THE COURT OF APPEALS OF THE STATE OF W

                                             DIVISION II

STATE OF WASHINGTON,                                                         2.   A'
                                                                                         i



                                    Respondent,


         V.



RONALD DELESTER BURKE,                                               UNPUBLISHED OPINION


                                    0

         PENOYAR, J. —      Ronald Burke appeals his convictions for attempted second degree rape


and second degree assault, arguing that the convictions should have merged and that his counsel

was ineffective for failing to argue same criminal conduct at sentencing. The attempted rape and

the   assault   had independent   criminal purposes;   therefore, merger      does     not   apply.   Additionally,

under these facts, the crimes are not the same criminal conduct and counsel was not ineffective

for failing to make that argument at sentencing. We affirm.

                                                  FACTS


         A.H. approached Burke around midnight on October 20, 2010, looking for a place to stay

the   night.    Burke and A.H. began walking together, eventually entering an alley so Burke could

retrieve   something from his     car.   Once they were in the alley, Burke grabbed A.H. by her hair

and    threw her to the   ground,   placing his knee   on   her   stomach   to hold her down.         Burke forced


A.H. to take off her pants and then attempted to sexually assault her. A.H. began screaming, and

Burke grabbed and cut her tongue with his nails, slammed her head into the ground, and choked

her.
42912 -8 -II



        A     neighbor      heard A.H.' s      screams and     drove to the alley.             When he entered the alley, he

saw   Burke     on   top   of a   struggling,   half -
                                                     dressed       woman.        The neighbor reversed out of the alley

and called 911.

        The     neighbor' s car startled        Burke,   and   A.H.      was able      to   escape.   She ran to another alley,

near an apartment with             lights   on, and yelled   for   help. Burke followed A.H. and kicked her legs

out   from    under   her.       He then tried to convince A.H. to collect her clothes from the first alley

When    she refused,        he    pinned    her down   again and choked            her.     Police arrived and found Burke


kneeling     over    A.H.    They also found blood and A.H.' s pants, shoes, coat, and purse about 250

feet away from Burke and A.H. Police arrested Burke at the scene.

         The State         charged    Burke    with second      degree      rape and second           degree   assault.   The jury

found him guilty of attempted second degree rape and second degree assault. Using an offender

score of     four, the trial      court sentenced     Burke to     a    total   confinement of        96   months   to life. Burke



appeals.



                                                            ANALYSIS


I.       DOUBLE JEOPARDY


         Burke first argues that his convictions for both attempted rape and assault violated double

jeopardy because           the   assault should      have   merged with          the   attempted rape.         The crimes do not


merge here where there were two assaults, the second of which had a purpose independent of the

rape.




         We     review an alleged           double   jeopardy   violation        de    novo.   State v. Freeman, 153 Wn.2d


765, 770, 108 P. 3d 753 ( 2005).                 State and federal constitutional double jeopardy protections

prohibit multiple punishments for the same offense. State v. Kier, 164 Wn.2d 798, 803, 194 P. 3d



                                                                   0)
42912 -8 - II




212 ( 2008); WASH. CONST.                art.   I, §   9; U.S. CONST. amend V. Double jeopardy is not offended if

the legislature authorized cumulative punishments for both crimes. Freeman, 153 Wn.2d at 771.

          We     use   a   three -part test for double          jeopardy          claims.    Freeman, 153 Wn.2d at 771 -72.


First, we consider express or implicit legislative intent based on the criminal statutes at issue.

                                                                                                                       Blockburgerl

Kier, 164 Wn.2d            at   804.     Second, if legislative intent is               unclear, we      turn to the


 same evidence" test, which asks if the crimes are the same in law and fact. Kier, 164 Wn.2d at

804.      Third,   we use         the   merger     doctrine if      applicable.         Kier, 164 Wn.2d        at   804.   Under the


merger doctrine, where one offense is raised in degree by conduct separately criminalized by the

legislature, we presume the legislature intended to punish both offenses through a greater

sentence    for the        greater crime.        Freeman, 153 Wn.2d                at   772 773.   But, even if two convictions


appear to merge on an abstract level, they may still be punished separately if there is an

independent purpose or effect for each. Freeman, 153 Wn.2d at 773.


          Here, the relevant statutes do not explicitly authorize separate punishments and neither

parry   argues    that     they do. See RCW 9A.44. 050( 1)(                 a);   RCW 9A.36. 021( 1)( g).           Additionally, the

crimes    are not      the   same under         the Blockburger           same evidence        test. "   If 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.           State v. Padovic, 99 Wn.2d 413, 423,


662 P. 2d 853 ( 1983).            Here, the second degree rape statute requires sexual intercourse by forcible

compulsion.        RCW 9A. 44. 050( 1)(            a).   The second degree assault statute Burke was charged under


requires    an assault       by   strangulation.         RCW 9A. 36. 021( 1)( g).            Each offense includes an element


that is   not required       in the     other —sexual       intercourse is not an element of assault and strangulation



1 Blockburger v. United States, 284 U. S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 ( 1932).
                                                                      3
42912 -8 -II




is   not a   necessary       element of rape.            Accordingly, we turn to the merger doctrine to determine

whether Burke' s convictions violated double jeopardy.

             T] he merger doctrine is a rule of statutory construction [ that] only applies where
         the Legislature has clearly indicated that in order to prove a particular degree of
         crime ( e.     g., first degree          rape)    the State must prove not only that a defendant
         committed           that   crime ( e.    g.,   rape) but that the crime was accompanied by an act
         which      is defined        as   a crime       elsewhere       in the   criminal   statutes ( e.   g.,   assault   or


         kidnapping).

Hadovic, 99 Wn.2d              at   420 -21.      Burke argues that the second degree assault was used to satisfy

the forcible     compulsion element of                  the   attempted second       degree    rape.    Because the facts show


that there were two assaults and the second assault had an independent purpose other than


furthering the attempted rape, the second assault may be punished separately.

         Burke twice           choked      A. H. —once         during the attempted rape and once after A.H. briefly

escaped and began yelling for help. The purpose of the second assault was to quiet A.H. and not

to further the      attempted rape.               The second assault occurred after A.H. had escaped from the

attempted       rape    and    while       she    was    yelling for     help.     Burke caught up with her and tried to

convince       her to   go   back    and collect        her   clothes.   When she would not comply, he began choking

her.    Burke did       not    attempt      to.   rape   her   during    this    second   assault.    The second assault had a


purpose independent of the attempted rape; therefore, the crimes do not merge.


II.          INEFFECTIVE ASSISTANCE


             Burke next argues that his counsel was ineffective for not arguing at sentencing that the

attempted       rape    and    second degree            assault were      the    same   criminal     conduct.      Because Burke' s


criminal objective changed between the two crimes, the trial court would not have found that


they were the same criminal conduct and counsel was not ineffective for failing to argue same

criminal conduct at           sentencing.
42912 -8 -II




        At sentencing, a defendant' s current offenses shall be counted as one crime if the court

finds that the    offenses encompass            the   same criminal          conduct.      RCW 9. 94A. 589( 1)(     a). "   Same


criminal    conduct"      is defined      as    crimes      that ( 1)   require      the    same    criminal   intent, ( 2)   are




committed at      the   same    time   and place, and (       3) involve the        same victim.      RCW 9. 94A.589( 1)( a).


In determining whether multiple crimes constitute the same criminal conduct, courts consider

how related the crimes are, whether the nature of defendant' s criminal objective changed

between the    crimes, and whether one crime                  furthered      another.      State v. Burns, 114 Wn.2d 314,


318, 788 P. 2d 531 ( 1990).

                         Strickland2
        Under the                         test, the defendant must show that counsel' s performance was


deficient   and   that this deficient      performance prejudiced              him. State v. Thomas, 109 Wn.2d 222,


225 -26, 743 P. 2d 816 ( 1987).                Performance is deficient only if it " fell below an objective


standard of reasonableness."             Strickland, 466 U. S.          at   688.   Deficient performance is prejudicial


only if the defendant           shows     that "`     there is a reasonable probability that, but for counsel' s

unprofessional        errors,   the   result   of   the proceeding       would       have been different.         A reasonable


probability is    a   probability      sufficient     to   undermine confidence            in the   outcome. "'   Thomas, 109


Wn.2d at 226 ( quoting Strickland, 466 U.S. at 694).

        Burke fails to prove ineffective assistance of counsel because he cannot show prejudice.

Even if counsel had argued that the attempted rape ,and assault were the same criminal conduct,

this argument would not have been successful. Although the attempted rape and assault involved

the same victim, there was a gap in time between the two crimes and Burke' s criminal objective

changed between the two crimes. His objective during the first assault and attempted rape was to

rape A.H. The attempted rape ended when A.H. broke free and ran to another alley. Burke then


2 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984).
                                                                  5
42912 -8 - II



formed    a new objective —quieting    A.H. —during the   second assault.   Additionally, the second

assault did not further the attempted rape, which was completed before the second assault

occurred.       Therefore, the trial court would not have found that the attempted rape and assault


were the same criminal conduct and counsel was not ineffective for failing to argue that they

were.




         We affirm. '


         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.




                                                               Penoy- .

We concur:




         Maxa, J.




                                 U .

         S   farman,   J.




                                                    rel
