                                                                                        FILED
                                                                               COURT OF APPEALS
                                                                                      DIVISION uI
                                                                             2014 DEC -     2 AM 8 59
                                                                              STATE   OF WASHINGTON
      IN THE COURT OF APPEALS OF THE STATE OE                                      ASHA          TON
                                                                                       D•   Uy
                                                DIVISION II

 STATE OF WASHINGTON,                                              Consolidated Nos. 44926 -9 -11
                                                                                        45958 -2 -II
                                     Respondent,


          v.

                                                                    UNPUBLISHED OPINION
 BRADLEY PULLEY KILLIAN, III,


                                     Appellant.


 In Re the Personal Restraint Petition of:


 BRADLEY PULLEY KILLIAN, III,


                                     Petitioner.




         MAxA, J. —     Bradley Killian appeals his convictions following a bench trial for assault in

the   second   degree ( two   counts),   assault in the fourth degree, harassment, and felony harassment

arising from a series of domestic violence incidents with his wife. Killian argues that defense

counsel' s failure to impeach his wife using her contradicting statements on one issue constituted

ineffective assistance of counsel. Killian' s appeal is consolidated with his personal restraint

petition ( PRP),   in which he argues that his convictions for assault and for harassment violated


double jeopardy, his multiple convictions should have been treated as the same criminal conduct

for sentencing purposes, two 1996 convictions should have been treated as the same criminal

conduct for sentencing purposes, and the trial court lacked the authority to impose an exceptional

sentence.
Consol. Nos. 44926 -9 -II / 45958 -2 -II



         We hold that ( 1) even if counsel was ineffective in failing to cross -examine on

inconsistent   statements,    Killian   suffered no prejudice; ( 2)     Killian' s two assault convictions


involved different courses of conduct and his two harassment convictions were for separate acts,

and   therefore   did   not violate   double     jeopardy; ( 3) Killian' s second degree assault and felony

harassment did     not constitute     the   same criminal conduct; ( 4)    Killian presented no evidence or


argument that his two 1996 convictions constituted the same criminal conduct at that time, and


therefore he cannot establish error in counting these convictions separately in his offender score;

and ( 5) the trial court had authority to impose an exceptional sentence based on an aggravating

factor of 40 unscored misdemeanors. Accordingly, we affirm Killian' s convictions and sentence

and deny his PRP.

                                                          FACTS


         Killian and his wife Kierra Henderson were involved in an argument on March 15, 2012.

On March 16 Killian held a hot iron to Henderson' s thigh for roughly ten seconds. On March

17, Killian slapped Henderson, pinned her down, and then held a lit cigarette near her eyes while

threatening    to " burn [ Henderson'       s]   eyes out."   Verbatim Report. of Proceedings ( VRP) ( Feb. 19,


2013) at 229. On March 18, Killian entered the bathroom where Henderson was showering and

held a knife to her throat while he threatened to kill her.

         The State charged Killian with five separate counts based on these events. Count I

alleged Killian committed second degree assault when he pressed a hot iron against Henderson' s


leg on March 16. Counts II and III alleged Killian committed fourth degree assault and

harassment respectively when he struck Henderson and threatened to burn her eyes with a lit

cigarette on March 17. Counts IV and V alleged Killian committed second degree assault and


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felony harassment respectively when he threatened to kill Henderson with a knife while she

showered on March 18. The State' s charges all included domestic violence sentencing

enhancements, and the felony charges included unscored misdemeanor aggravators as well.

           At trial Henderson testified about the burn mark on her leg that Killian caused when he

burned her with the hot iron. One officer who arrested Killian testified that Henderson showed

him the burn at that time.


           The State offered into evidence an iron that officers seized from Killian' s and


Henderson' s residence. But Henderson testified that the iron presented at trial was not the iron


used by Killian to burn her because the setting dial was broken. She testified that she owned

multiple irons because her brother worked for a hotel and would give her irons the hotel no


longer used. Because Henderson testified the iron presented at trial was identical to the iron


Killian used to burn her, the trial court admitted the iron as an illustrative exhibit.


           Killian testified in his own defense and denied that any altercations took place. Killian' s

nephew testified for the defense that Henderson stated she accidentally burned herself with the

iron.


           The trial court found Killian guilty on all charges except Count IV, one of the second

degree assault charges. The trial court also found that the State proved the domestic violence


sentencing enhancements and unscored misdemeanor aggravators. At sentencing, defense

counsel informed the court that he recently noticed the police report indicated that Henderson

told the   police   that the iron the   officers collected was "   the only iron in the house."      VRP ( May

17, 2013) at 9. Counsel stated that his failure to impeach Henderson with this statement may

have    constituted   ineffective   assistance of counsel.   The trial   court stated, "   I don' t think



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Henderson'   s   contradictory   statement]   probably     would    have   made   any difference."   VRP ( May

17, 2013) at 11.


        The trial   court sentenced   Killian    within   the   standard range    for the two felonies —63


months confinement      for Count I   and   43   months confinement        for Count V - but imposed an


exceptional sentence when it ordered the sentences to be served consecutively. The trial court' s

written findings of fact and conclusions of law identified Killian' s unscored misdemeanor


criminal history as the aggravating factor for the exceptional sentence. Killian appeals.

                                                   ANALYSIS


A.      INEFFECTIVE ASSISTANCE OF COUNSEL


        Henderson testified at trial that the broken iron the State offered into evidence was not


the iron Killian had used to burn her and that she owned several irons. This testimony Was

inconsistent with the statement she made to officers that the iron they collected was the only iron

in the house. Killian argues that his trial counsel' s performance was deficient because his trial


counsel failed to impeach Henderson based on her prior inconsistent statement and that this


failure prejudiced the outcome of his trial. We disagree.


        To prevail on an ineffective assistance of counsel claim, the defendant must show both


that ( 1) defense counsel' s representation was deficient, and ( 2) the deficient representation


prejudiced the defendant. State v. Grier, 171 Wn.2d 17, 32 -33, 246 P. 3d 1260 ( 2011).


Representation is deficient if, after considering all the circumstances, it falls below an objective

standard of reasonableness. Grier, 171 Wn.2d at 34. Prejudice exists if there is a reasonable


probability that except for counsel' s errors, the result of the proceeding would have differed.




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Grier, 171 Wn.2d at 34. Reasonable probability in this context means a probability sufficient to

undermine confidence of the outcome. Grier, 171 Wn.2d at 34.


             Here, even if we assume that defense counsel' s performance was deficient, the record


demonstrates that the failure to impeach Henderson caused no prejudice. This case is somewhat


unique in that defense counsel raised his failure to impeach Henderson using her inconsistent

statement before the trial court that adjudicated Killian' s case. Defense counsel stated that if the

impeachment would have changed the trial court' s decision he was ineffective, but if it would

                                                                          1
not   have    changed    the decision it    was a moot point.                 In   response,   the trial   court stated, "   Whether


the specific iron retrieved and presented was correct or not was not really particularly relevant as

to the   outcome."       VRP ( May 17, 2013)            at   11.   The trial court also noted that the evidence that


Henderson had been burned              by   an   iron   was substantial.           The trial   court concluded, "     I don' t think


it probably      would   have     made   any difference."          VRP ( May 17, 2013) at 11.

             Because this case involved a bench trial, the trial court' s conclusion that the impeachment


would not have affected its decision is significant. Based on the trial court' s indication that use


of the inconsistent statement to impeach Henderson would have had no bearing on the outcome

of the case, we hold that Killian cannot demonstrate prejudice. Therefore, we reject Killian' s


ineffective assistance of counsel claim.




1
    In its   previous oral     ruling the trial    court     stated, "   I am satisfied beyond a reasonable doubt that
    Henderson]     was   being    truthful.... [    T] he photos and the other testimony is consistent with [ her]
testimony as       to   what   happened."        VRP (Feb. 20, 2013) at 359.

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Consol. Nos. 44926 -9 -II / 45958 -2 -II



B.        PERSONAL RESTRAINT PETITION


          Killian collaterally attacks his conviction through a PRP, arguing that the trial court ( 1)

violated his right against double jeopardy by convicting and sentencing him for crimes which

stem   from the   same act of         domestic   violence, (   2) erred by failing to determine that his two

assault convictions and his two harassment convictions constituted the same criminal conduct,


3) erred in failing to treat two 1996 convictions as the same criminal conduct, and ( 4) erred by

imposing an exceptional sentence.

          1.   Standard of Review


          Issues raised for the first time in a PRP must meet a heightened showing before a court

will grant relief.   In   re   Pers. Restraint of Yates, 177 Wn.2d 1, 17, 296 P. 3d 872 ( 2013). For


alleged constitutional errors, a petitioner must show actual prejudice.                        Yates, 177 Wn.2d at 17.


For   alleged nonconstitutional errors,          the    petitioner " `   must show a fundamental defect resulting

in   a complete miscarriage of justice.'          "    Yates, 177 Wn.2d at 17 ( quoting In re Pers. Restraint of

Elmore, 162 Wn.2d 236, 251, 172 P. 3d 335 ( 2007)).                      The petitioner must make these showings


by a preponderance of the evidence. Yates, 177 Wn.2d at 17.

          When reviewing         a    PRP,   a court   may: ( 1) dismiss the    petition, ( 2)      transfer the petition for


a   full determination    on    the   merits or a reference     hearing,    or ( 3)   grant   the   petition.   Yates, 177


Wn.2d at 17. A court must dismiss a petition that fails to make a prima facie showing of actual

prejudice for alleged constitutional errors or a fundamental defect resulting in a complete

miscarriage of justice         for   alleged nonconstitutional errors.         Yates, 177 Wn.2d at 17.




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           2.      Double Jeopardy

           A defendant' s constitutional right against double jeopardy precludes multiple

punishments for the same offense. State v. Villanueva -Gonzalez, 180 Wn.2d 975, 980, 329 P. 3d

78 ( 2014). We           review      double       jeopardy    claims   de   novo.   Villanueva- Gonzalez, 180 Wn.2d at


979 -80.


                   a.        Second and Fourth Degree Assault Convictions


           Killian argues his second degree assault and fourth degree assault convictions violated


double jeopardy. We disagree.

           When, as here, a defendant is convicted of two crimes under two different statutes, we

                               Blockburger2
generally apply the                                  test.    Villanueva -Gonzalez, 180 Wn.2d        at   981.   This test asks


whether the convictions were the same in law and in fact.3 When a defendant has two

convictions under             the   same statute, we          generally apply the    unit of prosecution     test.   Villanueva -


Gonzalez, 180 Wn. 2d                 at   980 -81.   This test focuses on the specific act or course of conduct the


statute    defines      as   the    punishable act.          Villanueva -Gonzalez, 180 Wn.2d        at   980 -81. However, our


Supreme Court in Villanueva- Gonzalez held that the unit of prosecution test, not the same


evidence        test,   applies     to    convictions   for different degrees       of assault.   180 Wn.2d at 981 -82.


Therefore, we must apply the unit of prosecution test to evaluate Killian' s double jeopardy claim.

           The court in Villanueva -Gonzalez also held that assault should be treated as a course of

conduct crime.            180 Wn.2d          at   984 -85.    Therefore, the question in applying the unit of



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

3 The Blockburger test also is referred to as the same evidence test. State v. Hughes, 166 Wn.2d
675, 682 n. 6, 212 P. 3d 558 ( 2009).

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Consol. Nos. 44926 -9 -II / 45958 -2 -II



prosecution test to assault convictions is whether multiple assault acts constitute one or more


than   one course of conduct.         Villanueva -Gonzalez, 180 Wn.2d at 985. The court identified the


following factors for making           this determination, ( 1) the length of time over which the assaultive


acts took   place, (   2)   whether   the   assaultive acts    took      place   in the   same   location, ( 3) the


defendant'   s   intent   or motivation     for the different         assaultive acts, (   4) whether the acts were


uninterrupted, or if there were any intervening acts or events, and ( 5) whether there was an

opportunity for the defendant to            reconsider   his   actions.       Villanueva -Gonzalez, 180 Wn.2d at 985.


No one factor is dispositive, and the ultimate determination of whether multiple assaultive acts


constitute one course of conduct             depends   on   the   totality    of   the   circumstances.    Villanueva -


Gonzalez, 180 Wn.2d at 985.


         Killian' s second degree assault conviction arose from burning Henderson with an iron in

the early afternoon on March 16. After Killian burned Henderson, the two picked up

Henderson' s daughter from school with Killian' s mother, went grocery shopping, and then went

to sleep later that evening. On March 17, Killian slapped Henderson, which gave rise to

Killian' s fourth degree assault charge. The acts were on separate days and were interrupted by

routine daily events which allowed Killian to reconsider his assaultive conduct.

         Considering the totality of the circumstances, we hold that Killian' s act of burning

Henderson and slapping Henderson did not stem from the same course of conduct. Therefore,

the two assault convictions do not violate Killian' s constitutional right against double jeopardy.

                 b.    Harassment and Felony Harassment Convictions

         Killian also argues that his convictions for both harassment and felony harassment violate

double jeopardy. We disagree.


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Consol. Nos. 44926 -9 -II / 45958 -2 -II




          As noted above, we generally apply the Blockburger test, also called the same evidence

test,   when a   defendant is     convicted of         two   crimes under     two different     statutes.   Villanueva -


Gonzalez, 180 Wn. 2d         at   981. The question is whether the offenses are identical in law and fact.


Villanueva- Gonzalez, 180 Wn.2d                at   981.     We apply this test to Killian' s harassment convictions.

          Here, Killian' s harassment and felony harassment convictions were not the same in fact

nor the same in law. Felony harassment requires additional proof, such as a threat to kill another

person, which      is   not required     to   support a      harassment     conviction.      RCW 9A. 46. 020( 2)( b). The


additional proof required elevates the defendant' s conduct from a gross misdemeanor to a class C


felony.    See RCW 9A.46. 020( 2)(            a), (   b). This difference in proof between misdemeanor and


felony harassment demonstrates that the two crimes were different in law.

          Moreover, the State used different evidence to prove the separate charges, rendering the

charges different in fact. Killian' s felony harassment conviction arose from Killian threatening

to kill his wife while he held a knife to her neck as she showered on Sunday evening. By

contrast, Killian' s harassment conviction arose from his threat to burn Henderson' s eyes out with


his cigarette right after midnight on Sunday morning. Therefore, the convictions were not the

same in fact. We hold that Killian' s two harassment convictions do not violate double jeopardy.

          3.     Same Criminal Conduct Analysis

          Killian argues that the trial court erred in failing to perform a same criminal conduct

analysis on counts        II, III, IV,   and   V    which resulted     in   an   incorrect   offender score.   We hold that
Consol. Nos. 44926 -9 -II / 45958 -2 -II




count I and count V clearly did not constitute the same criminal conduct. Counts II and III were

misdemeanors not included in the offender score, and Killian was not convicted of count IV.4

           An appellate court reviews offender score calculations de novo while reviewing a same

criminal conduct analysis for abuse of discretion or misapplication of the law. State v. Johnson,


180 Wn.      App. 92, 100,        320 P. 3d 197,   review    denied, 181 Wn.2d 1003 ( 2014). A trial court


abuses     its discretion   where     the   court: (   1) adopts a view no reasonable person would take and is


manifestly        unreasonable; (    2) rests on facts unsupported in the record and is therefore based on


untenable grounds; or (3) was reached by applying the wrong legal standard and is made for

untenable reasons. Johnson, 180 Wn. App. at 100.

           When calculating an offender' s score, a court must count all convictions separately

except offenses which encompass the same criminal conduct. RCW 9. 94A. 525( 5)( a)( i),


589( 1)(    a).   Offenses which constitute the same criminal conduct are counted as one offense.


RCW 9. 94A. 525( 5)(        a)(   i). " ` Same   criminal conduct...'   means two or more crimes that require


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


victim."     RCW 9. 94A. 589( 1)(       a).    If any element of the same criminal conduct analysis is

missing, a trial court must count the offenses separately when calculating the offender score.

State v. Walker, 143 Wn. App. 880, 890, 181 P. 3d 31 ( 2008).




4
    Under RCW 9. 94A. 525( 21),             these misdemeanors arguably should have been counted when
calculating Killian' s offender score because the State proved the domestic violence
enhancements. See State v. Rodriguez,        Wn. App. ,      335 P. 3d 448, 454 ( 2014).              However,
the State did not argue this issue below or cross appeal, so we need not address it.

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Consol. Nos. 44926 -9 -II / 45958 -2 -II



        The defendant bears the burden of proving current offenses encompass the same criminal

conduct.     State   v.   Aldana Graciano, 176 Wn.2d 531, 540,        295    P. 3d 219 ( 2013).   The same


criminal conduct statute is " construed narrowly to disallow most claims that multiple offenses

constitute   the   same criminal act."   Aldana Graciano, 176 Wn.2d at 540 ( quoting State v. Porter,

133 Wn.2d 177, 181, 942 P. 2d 974 ( 1997)).


        Count II (fourth degree       assault), count   III (harassment), and count IV (second degree


assault) do not factor in this analysis. Killian was acquitted on count IV and the trial court did


not use this charge to determine his offender score. Counts II and III were not counted for


purposes of determining his offender score. Therefore, a same criminal conduct analysis is

relevant only to count I ( second degree assault) and count V (felony harassment).

        Count I (second degree assault) and count V (felony harassment) clearly do not constitute

the same offense under a same criminal conduct analysis because the acts giving rise to those

convictions were not " committed at        the   same   time   and place."   RCW 9. 94A. 589( 1)(   a).   Count I


arose from when Killian burned Henderson with an iron on March 16 in the early afternoon. By

contrast, Count V arose from Killian' s threat to kill Henderson with a knife on the evening of

March 18.     Therefore, we hold that the second degree assault and felony harassment did not

constitute the same criminal conduct.


        4.      1996 Convictions


        Killian argues the trial court erred by counting his two assault convictions from 1996

separately in his offender score because the prior sentencing court imposed a concurrent

sentence. We disagree.




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Consol. Nos. 44926 -9 -II / 45958 -2 -II



        For purposes of computing an offender score using prior offenses, a sentencing court

must defer to the prior sentencing court' s determination that multiple offenses constitute the

same criminal conduct.      RCW 9. 94A. 525( 5)(        a)(   i),   If the prior sentencing court did not make

such a determination but imposed concurrent sentences for multiple offenses, the current


sentencing court must independently determine whether the prior offenses were one offense or

separate offenses under a same criminal conduct analysis.                  RCW 9. 94A. 525( 5)(   a)(   i);   see also




Johnson, 180 Wn. App. at 101.

        Here, the 1996 sentencing court did not expressly find that the two convictions

constituted the same criminal conduct, but imposed concurrent sentences. Therefore the trial


court sentencing Killian in 2013 was required to perform a same criminal conduct analysis.

However, Killian does not provide any evidence or even an argument that his 1996 assault

convictions constitute the same criminal conduct. Nowhere in Killian' s PRP or in his reply does

he affirmatively argue that the two assaults involved the same criminal intent, were committed at

the same time and place, or involved the same victim. As a result, he has not shown actual

prejudice, which   is   required   to   sustain a   PRP. Yates, 177 Wn.2d at 17.


        Killian cannot establish that the trial court erred in failing to treat his two 1996 offenses

as the same criminal conduct and counting these convictions separately in his offender score.

Therefore, we reject Killian' s same criminal conduct argument regarding his two 1996

convictions.




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          5.     Exceptional Sentence


          Killian argues the trial court lacked the authority to impose an exceptional sentence.

Specifically, he claims that " absent the courts [ sic] written findings of fact and conclusions of

law the   court   lacked the authority to impose the        exceptional sentence."    PRP at 14 -15.


          To reverse an exceptional sentence, the appellate court must find that ( 1) the reasons


supplied by the sentencing court are not supported by the record when reviewed under a clearly

erroneous standard, (       2) the supplied reasons do not justify a sentence outside the standard range

when reviewed using a de novo standard, and ( 3) the sentence imposed was clearly excessive

when reviewed under an abuse of             discretion   standard.   RCW 9. 94A. 585( 4), State v. Alvarado,


164 Wn.2d 556, 560 -61, 192 P. 3d 345 ( 2008).


          Here, the trial court imposed an exceptional sentence, ordering that the sentences for

second degree assault and felony harassment be served consecutively. The trial court based the

exceptional sentence on Killian' s " prior unscored misdemeanor or foreign criminal history" as

evidenced      by " 40 prior unscored misdemeanors."             Clerk' s Papers at 362. This unscored criminal


history   is   a proper   basis for   an exceptional sentence under     former RCW 9. 94A.535( 2)( b) ( 2011).     5

And contrary to Killian' s contention, the trial court did provide written findings of fact for the

exceptional sentence and thereby satisfied the writing requirement of former RCW 9. 94A.535.




5
    RCW 9. 94A.535        was amended on      three occasions     in 2013. However, none of these
amendments affects         the subsection cited. LAWS OF 2013, ch. 84, § 26; ch. 256, § 2;       2nd sp. s., ch.
35, § 37.


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        Because Killian' s extensive criminal history is supported by the record, Killian fails to

provide adequate evidence for us to reverse his exceptional sentence. Therefore, we hold that the


trial court did not err in imposing an exceptional sentence.

        We affirm Killian' s convictions and sentence and deny his PRP.

        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 pursuant to RCW 2. 06. 040, it is

so ordered.




 We concur:




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