                                                                            FILED
                                                                          MAR 05, 2013
                                                                  In the Office of the Clerk of Court 

                                                                W A State Court of Appeals, Division III 





         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


STATE OF WASHINGTON,                          )         No.30445-1-III
                                              )
                     Respondent,              )
                                              )
              v.                              )
                                              )
MARK A. MONTGOMERY,                           )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       BROWN, J. - A jury found Mark A. Montgomery guilty of four counts of third

degree rape of a child. He appeals his sentence, arguing his defense attorney was

ineffective for failing to argue that three of his convictions constituted the same criminal

conduct for sentencing purposes. We affinn.

                                          FACTS

       In 2010, 17-year-old L.M. reported her uncle, Mr. Montgomery, sexually abused

her. The first occasion was in June 2007. L.M. alleges she went to a storage facility with

her uncle where Mr. Montgomery forced her to perfonn oral sex.

       The second occasion was in July 2007. L.M. walked in her sister's bedroom and

saw Mr. Montgomery sitting on her sister's bed. L.M. said she sat on the edge ofthe bed

next to Mr. Montgomery, but eventually slid back further onto the bed and sat with her
No.30445-1-III
State v. Montgomery


back against the wall. L.M. claims Mr. Montgomery moved back by her and put his hand

down her pants and touched her vagina, and he eventually put his finger inside of her.

The third occasion occurred when, after touching her vagina, a few minutes later Mr.

Montgomery then forced L.M. onto her stomach, removed her pants and underwear, and

penetrated her anally with his penis. L.M. said she "freaked out," put her clothes on, and

'100k off to the bathroom." Report of Proceedings (RP) (Oct. 20, 2011) at 245. The

fourth occasion occurred upon returning to the room. Mr. Montgomery pulled her back

on to the bed, removed her clothes again, and penetrated her vagina with his penis,

engaging in intercourse until he ejaculated.

       The State charged Mr. Montgomery with four counts of third degree child rape.

The State alleged Mr. Montgomery raped L.M. once in June 2007 and three times in July

2007. A jury found Mr. Montgomery gUilty as charged. The court calculated his

offender score as 9 based on the current offenses (he had no prior felony convictions) and

sentenced him to 60 months. Defense counsel did not raise any same criminal conduct

argument. Mr. Montgomery appealed.

                                       ANALYSIS

       The issue is whether Mr. Montgomery was denied effective assistance of counsel.

He contends his trial counsel was deficient for failing to allege the July 2007 incidents




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No.30445-1-II1
State v. Montgomery


entailed the same criminal conduct for sentencing purposes~ resulting in a higher than

warranted sentence. 1

       To prevail on his ineffective assistance of counsel claim, Mr. Montgomery must

show his counsel's representation fell below an objective standard of reasonableness and

prejudice from that conduct. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984). To establish ineffective assistance of counsel, Mr.

Montgomery must demonstrate both (1) defense counsel's representation fell below an

objective standard of reasonableness and (2) resulting prejudice. State v. McFarland, 127

Wn.2d 322,334-35,899 P.2d 1251 (1995). Ifa defendant fails to establish either prong,

we need not inquire further. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563

(1996).

       We strongly presume trial counsel provided effective assistance. State v. Tilton,

149 Wn.2d 775, 784, 72 P.3d 735 (2003). If defense counsel's trial conduct can be

characterized as legitimate trial strategy or tactics, it cannot provide a basis for a claim of




          1 Wenote an appellant is generally barred from a same criminal conduct claim for
the first time on appeal; but since Mr. Montgomery raises his claim within an ineffective
assistance of counsel claim, this issue is properly before this court. See In re Pers.
Restraint o/Shale, 160 Wn.2d 489,495-96, 158 P.3d 588 (2007) (defendant waived
challenge by agreeing to the offender score without challenging the score computation);
see State v. Greiff, 141 Wn.2d 910,924, 10 P.3d 390 (2000) (a defendant may claim
ineffective assistance of counsel for the first time on appeal because the claim of error is
of constitutional magnitude).

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No.30445-I-III
State v. Montgomery


ineffective assistance of counsel. State v. Aha, 137 Wn.2d 736, 745-46, 975 P.2d 512

(1999).

       RCW 9.94A.589(l)(a) states,

              [W]henever a person is to be sentenced for two or more
              current offenses, the sentence range for each current offense
              shall be determined by using all other current and prior
              convictions as if they were prior convictions for the purpose
              of the offender score: PROVIDED, That if 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(l)(a) defines "same criminal conduct" as "two or more crimes that

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

the same victim." Absent any definitional element, multiple offenses are not the same

criminal conduct and each conviction must be counted separately in calculating an

offender score. State v. Lessley, 118 Wn.2d 773, 778, 827 P.2d 996 (1992).

       When considering if crimes encompass the same criminal intent, courts focus on

the extent to which the criminal intent, viewed objectively, changed from one crime to

the next. State v. Dunaway, 109 Wn.2d 207,215,743 P.2d 1237,749 P.2d 160 (1987).

"This analysis may include, but is not limited to, the extent to which one crime furthered

the other, whether they were part of the same scheme or plan and whether the criminal

objectives changed." State v. Calvert, 79 Wn. App. 569, 578, 903 P.2d 1003 (1995).

Crimes may involve the same intent if they were part of a continuous transaction or


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No.30445-1-II1
State v. Montgomery


involved a single, uninterrupted criminal episode. State v. Deharo, 136 Wn.2d 856, 858­

59,966 P.2d 1269 (1998). Crimes do not, however, involve the same intent when there

are "'sequential'" instead of."'simultaneous or continuous'" events. State v. Tili, 139

Wn.2d 107,124,985 P.2d 365 (1999) (quoting State v. Grantham, 84 Wn. App. 854,

857,932 P.2d 657 (1997)).

       L.M. testified that in July 2007 she was on her sister's bed and Mr. Montgomery

positioned himself by her and put his hand down her pants and touched her vagina and

eventually put his finger inside of her. After touching her vagina, Mr. Montgomery

changed positions and forced L.M. onto her stomach, removed her pants and underwear,

and penetrated her an ally with his penis. L.M. then "freaked out," put her clothes on, and

"took off to the bathroom." RP (Oct. 20, 2011) at 245. Upon returning to the room, Mr.

Montgomery pulled her back on the bed, removed her clothes again, and penetrated her

vagina with his penis and engaged in intercourse until he ejaculated.

       Given the short breaks between the different counts, Mr. Montgomery had time to

pause, reflect, and either cease or continue. He objectively could have been found by the

jury to have formed new criminal intent to penetrate L.M. in three different ways at three

different times. Thus, the crimes do not encompass the same criminal conduct.

       Since a same criminal conduct argument likely would not have been successful,

counsel's performance was not deficient. Additionally, Mr. Montgomery cannot

establish prejudice. The two crimes most closely related in time would be the digital

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No. 30445-1-111
State v. Montgomery


penetration and the anal penetration. Even assuming those crimes would be counted as

one, Mr. Montgomery would still have an offender score of six. See RCW

9.94A.525(17) (count three points for each prior sex offense); RCW 9.94A.589(1)(a)

(count all other current convictions as if they are prior convictions for the purposes ofthe

offender score). Because third degree child rape has a seriousness level of VII, Mr.

Montgomery's sentence range would be between 46 and 61 months with an offender

score of six. RCW 9.94A.510. He received a 60-month sentence. Thus, it cannot be said

that "the proceeding would have been different but for counsel's deficient

representation." State v. McFarland, 127 Wn.2d 322,334-35, 899 P.2d 1251 (1995).

Given all, Mr. Montgomery's ineffective assistance of counsel claim fails.

       Affirmed.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.


                                                  Brown, J.

WE CONCUR: 




Korsmo, C.J.




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