State of Washington v. Drew Anthony Zissel ( 2015 )

FILED
JULY 21, 2015
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 32324-2-III
)
Respondent, )
) Division Three
v. )
)
DREW ANTHONY ZISSEL, ) UNPUBLISHED OPINION
)
Appellant. )
FEARING, J. - The burglary antimerger statute, RCW 9A.52.050, grants a
sentencing court discretion to punish for burglary even when the burglary and a
concurrent offense encompass the same criminal conduct. State v. Lessley, 118 Wash. 2d
773, 781, 827 P .2d 996 (1992). A jury convicted Drew Anthony Zissel of frrst degree
robbery and first degree burglary. The trial court applied the antimerger statute and
sentenced Zissel to concurrent sentences totaling 54 months. At sentencing, Zisse1 did
not object to the application of the statute.
On appeal, Drew Anthony Zissel contends the trial court erred when failing to
No. 32324-2-111
State v. Zissel
count the two offenses as one crime when calculating his offender score. Zissel also
contends he suffered ineffective assistance of trial counsel because his defense counsel
failed to correct the trial court's sentencing error and the prosecutor's misstatement of the
law. We hold that Zissel did not preserve the challenge of his offender score and does not
show ineffective assistance of counsel. We affirm his sentence.
FACTS
Drew Anthony Zissel crawled through the window of a Yakima County drive-
through coffee stand, assaulted the barista, and stole money from the safe.
PROCEDURE
A jury convicted Drew Zissel of first degree robbery and first degree burglary.
Because first degree robbery and first degree burglary are violent offenses, each counts as
two points in the offender score. RCW 9.94A.030(54)(a)(i); RCW 9.94A.525(8); RCW
9.94A.589(l)(a). Zissel had no prior criminal convictions.
At Drew Anthony Zissel's sentencing hearing, the trial court used an offender
score of two for each conviction, resulting in a presumptive sentence range of 41 to 54
months for the robbery and 26 to 34 months for the burglary. RCW 9.94A.510; RCW
9.94A.515. The State requested the high end of the range on each count. Zissel's counsel
addressed the trial court and showed confusion regarding the sentences for violent crimes:
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State v. Zissel
The Court is probably aware that there's an anti-merger statute there
that is [inaudible on tape-muffled]. These are consecutive sentences and
this-in addition to that the burglary charge is a class A felony and there is
a very small amount of time for good behavior on that, ten percent.
If you think that a forty-one month sentence on the burglary and
twenty-six month sentence consecutive is a substantial and very, very, very
huge amount of time. Obviously Mr. Zissel will have a great deal of time to
think but 1­
THE COURT: Well, I-I don't think that they run consecutively. I
mean, they run concurrently but they count against each other even though
they are the same criminal conduct. Am I correct in that regard [deputy
prosecutor] Ramm?
MR. RAMM: You are correct Your Honor.
THE COURT: Okay.
MR. RAMM: And they're violent offenses as opposed to serious
violent and I don't think they have the same good time limitation of--often
percent that serious violent has.
Report of Proceedings (RP) at 582-83.
During sentencing, the trial court noted the violent nature of the crimes and applied
the burglary antimerger statute:
I am going to impose the top of the range here. As to Count I-fifty­
four months and as to Count II-thirty-four months for a total sentence of
fifty-four months. The burglary anti-merger statute operates in this
particular instance to--although the-under the Sentencing Reform Act
these two convictions would normally be considered the same criminal
conduct and would not count one against the other[,] the burglary anti­
merger statute causes them to count one against the other and consequently
Mr. Zissel's offender score is-is elevated by that-by that arithmetic.
RP at 585.
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State v. Zissel
LAW AND ANALYSIS
Offender Score
For the first time on appeal, Drew Anthony Zissel argues that the trial court erred
in counting the robbery in the offender score after allegedly finding that the robbery and
burglary encompassed the same criminal conduct. Generally an issue that was not raised
at trial may not be raised for the first time on appeal. State v. Nitsch, 100 Wash. App. 512,
519,997 P.2d 1000 (2000); RAP 2.5(a). Because a sentencing court acts without
statutory authority when it bases a sentence on a miscalculated offender score, however, a
challenge of the offender score calculation may be allowable for the first time on appeal.
In re Pers. Restraint ofGoodwin, 146 Wash. 2d 861, 873-74, 50 P.3d 618 (2002); State v.
Ross, 152 Wash. 2d 220, 229, 95 P.3d 1225 (2004). The critical question is whether the
alleged error is a legal error or whether it involves disputed facts or a matter of trial court
discretion. Goodwin, 146 Wash. 2d at 874.
When an offender has multiple current offenses, the sentence range for each
current offense generally is determined by counting all other current and prior convictions
as if they were prior convictions. RCW 9.94A.52S(S)(a); RCW 9.94A.589(1)(a). Under
RCW 9.94A.S89(1)(a), if, however, some or all of the current offenses encompass the
same criminal conduct, those offenses are counted as one crime in the offender score.
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No. 32324-2-111
State v. Zissel
RCW 9.94A.589(1)(a), in tum, yields to the burglary antimerger statute, which states that
"[e]very person who, in the commission of a burglary shall commit any other crime, may
be punished therefor as well as for the burglary, and may be prosecuted for each crime
separately." RCW 9A.52.050; State v. Williams, 181 Wn.2d 795,799,336 P.3d 1152
(2014).
A trial court's decision whether or not to apply the burglary anti merger statute
involves an exercise of discretion. State v. Lessley, 118 Wash. 2d at 781 (1992). Likewise,
application of the same criminal conduct statute involves factual determinations and the
exercise ofjudicial discretion. Nitsch, 100 Wash. App. at 523. Here, defense counsel
apparently accepted the fact that the burglary antimerger statute applied and did not object
to the trial court's decision to treat the two crimes separately under the antimerger statute
even though they encompassed the same criminal conduct. Because the trial court's
decision involved factual determinations and the exercise of discretion, defense counsel's
failure to object did not preserve the alleged error for appeal. Goodwin, 146 Wash. 2d at
874-75; Nitsch, 100 Wash. App. at 523.
EFFECTIVENESS OF COUNSEL
Drew Anthony Zissel next contends his trial counsel was ineffective because
counsel did not correct the trial court's alleged sentencing error and did not challenge the
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No. 32324-2-111
State v. Zissel
prosecutor's agreement with the trial court's alleged misstatement of the law.
To prevail on a claim of ineffective assistance of counsel, Drew Zissel must show
that his counsel's performance was deficient and that the deficiency prejudiced him.
State v. Kyllo, 166 Wash. 2d 856, 862, 215 P.3d d 177 (2009); Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). We presume counsel is
effective, and Zissel must show there was no legitimate reason for his attorney's actions.
State v. Sutherby, 165 Wash. 2d 870, 883, 204 P.3d 916 (2009). He proves neither deficient
performance nor prejudice.
According to Drew Zissel, the trial court erred in treating the burglary and robbery
separately after finding that they encompassed the same criminal conduct. Zissel also
contends the prosecutor erroneously agreed with the judge that the current convictions
would count against each other. These assertions are incorrect. The trial court exercised
its discretion within the law when he applied the burglary antimerger statute to punish
each crime separately even though the offenses encompassed the same criminal conduct.
RCW 9A.52.050; Lessley, 118 Wash. 2d at 781. Defense counsel had no legitimate reason
to challenge the trial court or the prosecutor, and any challenge would have failed. Thus,
Zissel's claim of ineffective assistance of counsel fails.
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No. 32324-2-111
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CONCLUSION
We affinn Drew Anthony Zissel' s sentence.
A majority of the panel has detennined that 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.
WE CONCUR:
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