In the Matter of the Personal Restraint of: Joseph Russell Pool ( 2020 )

FILED
DECEMBER 15, 2020
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
DIVISION THREE
In re the Matter of the Personal Restraint )
Petition of ) No. 37036-4-III
)
JOSEPH RUSSELL POOL, )
) UNPUBLISHED OPINION
)
)
)
FEARING, J. — In this personal restraint petition, Jeffrey Pool asks this court to
vacate and dismiss his convictions for kidnapping in the first degree under the doctrine of
merger. He also seeks dismissal for his assault convictions. Finally, he challenges the
calculation of his offender score. We grant his request to dismiss assault convictions.
FACTS
Jeffrey Pool’s convictions arise from two armed robberies of Cheney’s Dollar
Tree store. The first robbery occurred on May 30, 2015. Assistant Manager Thomas
Busby and store employee Mikaela Norrish then occupied the store premises. No
customers were present. Pool pointed a gun at Busby and eventually procured
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approximately $2,500 of the store’s money from Busby through the implied threat of
deadly force. By use of the gun, Pool directed the movements of Busby and Norrish
inside the store during the robbery. He forced the victims to discard their cell phones,
marched them from the back office to the front of the store, and directed them where to
look as he exited the store.
On July 9, 2016, Jeffrey Pool returned to the Cheney Dollar Tree and robbed the
store again. Assistant Manager Thomas Busby and employee Sarah Cousins were
present. A brief scuffle arose between Pool and Busby. The scuffle ended when Pool
pressed a gun against Busby’s back. Pool restrained Busby with flex cuffs. When
Cousins approached the two, Pool released Busby from the restraints and substituted
Cousins as a hostage. Pool directed Busby to direct the two remaining customers to leave
the premises. After Busby accomplished the task, Pool directed both employees to move
to the store’s office, discard their cell phones, and hand him the store’s cash. The
employees complied with all demands, and Pool escaped.
PROCEDURE
The State of Washington charged Jeffrey Pool with two counts of robbery in the
first degree, four counts of kidnapping in the first degree, and four counts of second
degree assault. We outline the dates and victims for each of the ten crimes as follows:
 counts II, V, and IX correspond to the May 2015 robbery, assault, and kidnapping
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of Thomas Busby;
 counts VI and X correspond to the May 2015 assault and kidnapping of Mikaela
Norrish;
 counts I, III, and VII correspond to the July 2016 robbery, assault, and kidnapping
of Thomas Busby; and
 counts IV and VIII correspond to the July 2016 assault and kidnapping of Sarah
Cousins.
The State thereby charged: two counts of robbery in the first degree, on two discrete
dates, involving victim Busby; four counts of assault in the second degree, from two
different dates, one each respectively involving victims Cousins and Norrish and two
involving victim Busby; and four counts of kidnapping in the first degree, from two
different dates, involving the same three victims as the crimes of assault.
The jury instructions in Jeffrey Pool’s prosecution named a victim for eight of the
counts consistent with the information. Nevertheless, the to-convict instructions on
robbery omitted naming a victim. During closing argument, the State did not identify the
victim or victims of the robberies. Cf. 5 RP 860 (closing argument).
In 2017, a Spokane County Superior Court jury found Jeffrey Pool guilty on all
counts. During sentencing, the trial court scored the assaults as the same criminal
conduct as the robberies. Jeffrey Pool remains incarcerated pursuant to the ten
convictions.
On direct appeal, Jeffrey Pool challenged his convictions on the grounds of
evidentiary error and prosecutorial misconduct. State v. Pool, No. 35296-0-III, slip op. at
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1 (Wash. Ct. App. October 30, 2018) (Unpublished), http://www.courts.wa.gov.opinions/
pdf/352960_unp.pdf. This court affirmed.
Jeffrey Pool’s sentence became final on issuance of this court’s mandate on March
26, 2019. RCW 10.73.090(3)(b). On September 3, 2019, Pool, acting pro se, filed this
personal restraint petition. Accordingly, Pool timely filed his petition. RCW
10.73.090(1). In his petition, Pool contends that his kidnapping convictions merge with
his robbery convictions, because the kidnappings raised the level in the degree of the
robbery charges. He also contends the sentencing court committed error when assigning
him an offender score.
After preliminary review, this court directed a response from the State.
RAP 16.8.1(d). The State responded and Jeffrey Pool replied. After further
consideration, the court determined that the petition was not frivolous and appointed
counsel to file a supplemental brief. RAP 16.11(b), RCW 10.73.150(4). Appointed
counsel filed a supplemental brief and concurrently filed a motion to raise new issues.
Counsel for petitioner Jeffrey Pool asserts at least three propositions in addition to
Pool’s challenges. First, assuming the kidnapping and robbery convictions do not merge,
the two violate double jeopardy under the Blockburger test. Blockburger v. United
States¸ 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). Second, if the assault and
robbery convictions do not merge, any assault convictions violate double jeopardy under
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the Blockburger test. Third, if convictions for assaulting the two female employees do
not merge with the kidnapping convictions, the assault convictions still violate double
jeopardy under the Blockburger test. We deny counsel’s motion to raise additional issues
not raised by the petitioner, and also deny counsel’s motion to file a supplemental reply
brief. We otherwise review Pool’s arguments of merger and miscalculation of his
offender score.
LAW AND ANALYSIS
To obtain relief in a personal restraint petition, the petitioner must show actual and
substantial prejudice resulting from alleged constitutional errors or, for alleged
nonconstitutional errors, a fundamental defect that inherently results in a complete
miscarriage of justice. In re Personal Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d
506 (1990). To avoid dismissal of the petition, the petitioner must support claims with
facts and not merely bald or conclusory allegations. In re Personal Restraint of Cook,
114 Wn.2d at 813-14. The supporting evidence must be based on “more than
speculation, conjecture, or inadmissible hearsay.” In re Personal Restraint of Rice, 118
Wn.2d 876, 886, 828 P.2d 1086 (1992). This court will dismiss a petition if it “fails to
present an arguable basis for relief in law or in fact, given the constraints of the personal
restraint petition vehicle.” In re Personal Restraint of Khan, 184 Wn.2d 679, 686-87,
363 P.3d 577 (2015) (plurality opinion).
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Issue 1: Do the kidnapping convictions merge with the robbery convictions?
Answer 1: No.
Jeffrey Pool argues that insufficient evidence proved that he acted with intent to
“abduct” or “restrain” any of his victims in any manner beyond the action he took to
complete the robberies. Although Pool frames his contention as one of sufficiency of
evidence, the argument poses the question of whether any convictions for kidnapping
should merge with convictions for robbery.
Courts use the merger doctrine to determine whether the legislature intended
multiple punishments to apply to particular offenses. State v. Saunders, 120 Wn. App.
800, 820, 86 P.3d 232 (2004). Merger applies only when a crime is elevated to a higher
degree by proof of another crime proscribed elsewhere in the criminal code. State v.
Saunders, 120 Wn. App. at 820. When proof of one offense is a necessary element of
another offense, the less serious offense will generally merge into the more serious
offense and the court may not punish the lesser offense separately. State v. Saunders, 120
Wn. App. at 821.
To establish that his kidnapping convictions merge with his robbery convictions,
Jeffrey Pool relies on State v. Green, 94 Wn.2d 216, 616 P.2d 628 (1980) (lead opinion
of Stafford, J.), 235 (concurring opinion of Utter, C.J.). In Green, the Washington State
Supreme Court held that the mere incidental restraint of the movement of a victim, which
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might occur during the course of a homicide, does not standing alone establish “a true
kidnapping.” State v. Green, 94 Wn.2d at 227. Accordingly, the Supreme Court ordered
the defendant’s first degree murder conviction, which the State premised on the purported
kidnapping, vacated. Pool asks this court to extend the reasoning of Green to robberies
and vacate his kidnapping convictions because the kidnappings were incidental to the
robberies.
After State v. Green, the Washington Supreme Court decided State v. Berg, 181
Wn.2d 857, 337 P.3d 310 (2014). In Berg, the Supreme Court held that, when the State
charges kidnapping and robbery separately, the kidnapping activity is not incidental to
the robbery if the State presents sufficient evidence to convict the accused of kidnapping.
State v. Berg, 181 Wn.2d at 860. The court reasoned that Green’s ruling and the merger
doctrine apply only when one crime is an element of another crime. Kidnapping and
robbery are not required elements of each other, and therefore never merge. Based on
this holding, the Supreme Court ordered that the defendant’s kidnapping convictions be
reinstated.
In a pro se reply memorandum, Jeffrey Pool may seek to transform his merger
claim into a challenge to the sufficiency of the evidence of his kidnapping. But he
bootstraps merger arguments about the kidnapping being incidental to the robbery into
his sufficiency analysis. If Pool’s reply raises a true sufficiency claim, the law bars the
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claim as being raised for the first time in a reply. In re Personal Restraint of Peterson, 99
Wn. App. 673, 681, 995 P.2d 83 (2000); In re Personal Restraint of Rhem, 188 Wn.2d
321, 327, 394 P.3d 367 (2017).
Any test to the sufficiency of evidence also fails because of inadequate briefing
due to Jeffrey Pool’s confusion of two distinct legal doctrines and failure to argue the
appropriate standards for reversal. The petitioner should not place the appellate court
into the role of crafting issues. In re Personal Restraint of Rhem, 188 Wn.2d 321, 328
(2017). We hold pro se petitioners to the same pleading standards as attorneys. In re
Personal Restraint of Rhem, 188 Wn.2d at 328
Jeffrey Pool’s appointed counsel raises a true insufficiency of evidence claim.
The crime of kidnapping as charged had two separate mens rea elements: intent to abduct
and intent to facilitate commission of a felony. RCW 9A.40.020(1)(b). Pool, through
counsel, asserts that the State only proved intent to facilitate a felony.
Because Jeffrey Pool failed to adequately raise the issue himself, we previously
entered an order declining a motion by counsel to add a new issue. We do not entertain
counsel’s attempt to raise new issues when petitioner could have earlier raised the issue,
but failed to adequately address the issue. In re Personal Restraint of Rhem, 188 Wn.2d
at 327.
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We would also reject the challenge to the sufficiency of evidence because of the
failure to adequately analyze the challenge. Counsel’s supplemental brief merely asserts,
without analysis, the State failed to present evidence of an intent to abduct. Such
conclusory allegations do not merit judicial review on direct appeal, let alone during a
collateral attack. In a personal restraint petition, the petitioner must analyze the issue and
apply the facts to the law. In re Personal Restraint of Cook, 114 Wn.2d 802, 813-14
(1990). Counsel cites to the applicable standard of review—that the evidence is viewed
in the light most favorable to the State—but does not attempt to apply the facts. Counsel
cites to an inapplicable nonkidnapping decision, wherein the trial court erroneously
instructed the jury on knowledge and intent. Counsel does not cite to any decision
wherein the State proved only one of the two mens rea for kidnapping.
Finally, we would reject the challenge to the evidence on the merits. Intent means
to “act[] with the objective or purpose to accomplish a result which constitutes a crime.”
RCW 9A.08.010(1)(a). Under this definition, purposefully pointing a gun at someone in
order to coerce submission and direct his or her movement in order to use that person to
unlawfully take cash from a business constitutes an intentional abduction and also
illustrates the intent to facilitate commission of a felony. When the abduction is
intentionally accomplished through the use or threat of deadly force, it will always
overlap with the intentional use or threat of force required to prove robbery.
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Issue 2: Do the assault convictions merge with the robbery convictions?
Answer 2: Yes, as to the two assaults of Thomas Busby. No, as to the assaults of
Mikaela Norrish and Sara Cousins.
Case law supports merging the assaults against Thomas Busby into the robberies,
but does not support merger of the two assault against the two women employees. The
State nobly concedes the error and agrees to remand this prosecution to the superior court
to vacate the two convictions based on the assaults of Busby.
The State convicted Jeffrey Pool of assault in the second degree, which level of
assault entails use of a deadly weapon. In State v. Freeman, 153 Wn.2d 765, 108 P.3d
753 (2005), the Supreme Court held that second degree assault merges with robbery in
the first degree because the act of assaulting someone with a deadly weapon elevates
robbery in the second degree to the first degree. The information alleged and evidence
supported Thomas Busby being the victim of both robberies and the victim of two
assaults stemming from the robberies. Therefore, those assault convictions merge with
the robbery convictions.
The State did not allege in the information that Sara Cousins and Mikaela Norrish
were victims of the robbery. Nevertheless, the doctrine of merger does not limit its
application to allegations in the information, but also extends to the presentation to the
jury. State v. Kier, 164 Wn.2d 798, 808, 194 P.3d 212 (2008).
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The jury instructions for the two counts of robbery, in Jeffrey Pool’s prosecution,
omitted naming a victim. During closing argument, the prosecuting attorney did not
identify the alleged victim or victims for the robbery. When the jury lacks an identified
victim, the Supreme Court has applied the rule of lenity to hold that second degree assault
merges with first degree robbery. State v. Kier, 164 Wn.2d at 814. Based on the Kier
holding, Pool argues that the other two assault convictions should also merge with the
robbery convictions.
We distinguish State v. Kier, 164 Wn.2d 798 (2008). The State did not separate
the victims in Kier into multiple assault counts either in the information or the jury
instructions. A single assault count named two victims and a single robbery count named
the same two victims. Thus, the prosecution presented only one count for purposes of
merger into the other one count.
We contrast State v. Chesnokov, 175 Wn. App. 345, 305 P.3d 1103 (2013) with
State v. Kier. In State v. Chesnokov, the State charged a separate assault count for each
victim and named the victim and a single robbery count without specifying a victim. The
court held that one of the assaults merged into the robbery. The court, however, refused
to merge each assault into the robbery because only one assault was necessary to elevate
robbery in the second degree to robbery in the first degree.
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We deem the reasoning behind State v. Chesnokov persuasive because the merger
doctrine seeks to prevent the same crimes from being punished twice. In turn, four
assault convictions do not merge with each other when each conviction had a separate
victim. State v. Larkin, 70 Wn. App. 349, 358, 853 P.2d 451 (1993). Crimes against
multiple victims do not merge. State v. Larkin, 70 Wn. App. at 358. If the State charges
assaults against varying victims separately and convictions for those assaults do not
merge with each other, it follows that only one assault from each incident would be
needed to elevate each robbery to a higher degree.
Because the sentencing court scored the assault convictions with the robbery
convictions on the theory that the convictions involved the same criminal conduct, we
question whether Jeffrey Pool suffered the prejudice needed to succeed in a personal
restraint petition. In re Personal Restraint of Brockie, 178 Wn.2d 532, 539, 309 P.3d 498(2013). Nevertheless, because the State agrees to remand the case for vacation of two of
the assault convictions, we grant Pool relief as to the two assault convictions based on
Thomas Busby being the victim.
Issue 3: Did the trial court incorrectly calculate Mr. Pool’s offender score?
Answer 3: No, but the judgment and sentence contains a scrivener’s error.
Jeffrey Pool contends his offender score for count VII, kidnapping of Thomas
Busby on in July 2016, should be 0, per RCW 9.94A.589(1)(b), a provision that
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addresses scoring of multiple “serious violent offenses.” Pool argues that, because
“violent offenses” are the same criminal conduct with the kidnapping count, no other
current offenses should be scored against count VII.
We conclude that the judgment and sentence contains two errors, but not as argued
by Jeffrey Pool. Following is the sentencing table that appeared in Pool’s judgment and
sentence. We highlight the errors and changes needed to conform to our merger doctrine
ruling.
2.3 Sentencing Data:
Coun Offender Serious Standard Plus Total Standard Maximu
t Score -ness Range (not Enhancements Range m Term
No. Level including * (including
enhanceme enhancements)
nts)
I 6 IX 77 – 102 N/A 77 – 102 Life
months months
II 6 IX 77 – 102 N/A 77 – 102 Life
months months
III 6 IV 33 – 43 N/A 33 – 43 months 10 years
months
IV 6 IV 33 – 43 N/A 33 – 43 months 10 years
months
V 6 IV 33 – 43 N/A 33 – 43 months 10 years
months
VI 6 IV 33 – 43 N/A 33 – 43 months 10 years
months
VII 6 X 98 – 130 N/A 98 – 130 Life
months months
VIII 6 X 51 – 68 N/A 51 – 68 months Life
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months
IX 6 X 51 – 68 N/A 51 – 68 months Life
months
X 6 X 51 – 68 N/A 51 – 68 months Life
months
At sentencing, the trial court found that counts 1 (robbery), 3 (assault), and 7
(kidnapping) encompassed a single criminal act, that counts 2 (robbery), 5 (assault), and
9 (kidnapping) encompassed a second criminal act, that counts 6 (assault) and 10
(kidnapping) encompassed a third criminal act, and that counts 4 (assault) and 8
(kidnapping) encompassed a fourth criminal act. The trial court’s ruling deemed all
criminal acts against each of the victims on the respective dates to constitute one criminal
act.
The table recreated above declares that Jeffrey Pool garnered an offender score of
6 for each crime. For counts 1-7, the table lists the standard range for an offender score
of 6. But, for counts 8, 9, and 10, the table lists the standard range for an offender score
of 0, despite listing an offender score of 6. The listed ranges are correct, but the listed
offender score of counts 8-10 requires correction because of the application of
RCW 9.94A.589(1)(b) to scoring of multiple serious violent offenses. We deem the error
to be a scrivener’s error. Scrivener’s errors need not survive the personal restraint
petition standard of proof of prejudice because such errors may be corrected at any time
on identification. CrR 7.8(a).
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On the same ground, Jeffrey Pool argues that his offender score on count 7 should
also be 0. We disagree. Under RCW 9.94A.589(1)(b), when a court sentences the
offender for multiple current “serious violent offenses,” the court should only score the
first of the offenses. Kidnapping in the first degree is a serious violent offense.
RCW 9.94A.030(46)(vi). Thus, one of Mr. Pool’s kidnapping convictions, count 7, is
scored normally and the other kidnapping convictions are scored as a 0 and run
consecutive to each other. RCW 9.94A.589(1)(b).
The scored “serious violent offense” also includes all other current “violent” and
nonviolent offenses, but not the other current “serious violent offenses.”
RCW 9.94A.589(1)(b). Current and prior “violent offenses” are scored at two points
each. RCW 9.94A.525(9). The other offenses in Jeffrey Pool’s prosecution, robbery and
assault, are all “violent offenses.” RCW 9.94A.030(55). Because three of those “violent
offenses” are separate and distinct from the scored kidnapping conviction, the offender
score for count 7 is 6.
Jeffrey Pool counters that each of the separate and distinct “violent offenses” are
also the same criminal conduct with a nonscored “serious violent offense,” and so none
of the “violent offenses” should be scored. In essence, he argues that kidnappings
subsume the robberies and assaults not just for purposes of concurrent or consecutive
sentences, but also for purposes of an offender score.
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We agree that, if RCW 9.94A.589 stood alone, we would rule in favor of Jeffrey
Pool because we must resolve an ambiguity in the statute in favor of him under the rule
of lenity. But Pool ignores another statute. Under RCW 9.94A.525(5)(a)(i), when
multiple offenses constitute the same criminal conduct, we use the offense with the
highest offender score in calculating other offenses’ offender scores. Although
RCW 9.94A.525(5)(a)(i) is phrased in terms of scoring prior offenses, the law scores
current convictions “as if they were prior convictions for the purpose of the offender
score.” RCW 9.94A.589(1)(a). Because counting the “violent offenses” yields a higher
offender score, we use the violent offenses to calculate the offender score for count 7
instead of the other kidnapping convictions.
With the exception of the scrivener’s errors and the merged offenses, the offender
score and sentencing data initially assigned by the sentencing court for Jeffrey Pool
remain correct. Because the merged offenses were already found to be the same criminal
conduct with other offenses, the offender scores remain unchanged and standard ranges
remain unchanged.
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With the corrections, Jeffrey Pool’s sentencing table follows:
2.3 Sentencing Data:
Count Offender Serious Standard Plus Total Standard Maximu
No. Score -ness Range (not Enhancements Range m Term
Level including * (including
enhanceme enhancements)
nts)
I 6 IX 77 – 102 N/A 77 – 102 Life
months months
II 6 IX 77 – 102 N/A 77 – 102 Life
months months
III Dismisse N/A N/A N/A N/A
d
IV 6 IV 33 – 43 N/A 33 – 43 months 10 years
months
V Dismisse N/A N/A N/A N/A
d
VI 6 IV 33 – 43 N/A 33 – 43 months 10 years
months
VII 6 X 98 – 130 N/A 98 – 130 Life
months months
VIII 0 X 51 – 68 N/A 51 – 68 months Life
months
IX 0 X 51 – 68 N/A 51 – 68 months Life
months
X 0 X 51 – 68 N/A 51 – 68 months Life
months
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CONCLUSION
We remand to the superior court to vacate Jeffrey Pool’s two convictions for
assault of Thomas Busby. We also remand to correct Pool’s judgment and sentence
consistent with our opinion.
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.
_________________________________
Fearing, J.
WE CONCUR:
______________________________
Siddoway, J.
______________________________
Pennell, C.J.
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