Personal Restraint Petition Of Veniamin G Rusev ( 2020 )

Filed
Washington State
Court of Appeals
Division Two
February 19, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the Personal Restraint of: No. 52389-2-II
VENIAMIN GEORGE RUSEV,
UNPUBLISHED OPINION
Petitioner.
LEE, J. — Veniamin G. Rusev timely seeks relief from personal restraint imposed following
his convictions for first degree assault and two counts of first degree robbery. The first degree
assault involved Ihor Onishchuk and the first degree robberies involved Ihor1 and Dmytro
Onishchuk. Rusev alleges (1) the trial court erred in not instructing the jury on self-defense and
defense counsel provided ineffective assistance of counsel for not proposing a self-defense jury
instruction; (2) prosecutorial misconduct based on the prosecutor’s closing remarks; (3) the first
degree assault and first degree robbery convictions involving Ihor are the same criminal conduct
and defense counsel provided ineffective assistance of counsel for not arguing this to the trial
court; (4) ineffective assistance of counsel based on counsel’s failure to request an exceptional
sentence below the standard range; and (5) the first degree assault and first degree robbery
convictions involving Ihor violate double jeopardy. We deny Rusev’s petition.
1
For ease of reading, the victims, who share the same last name will be referred to by their first
names, Ihor and Dmytro. We intend no disrespect.
No. 52389-2-II
FACTS2
Ihor sold a Mercedes to his cousin, Oleg Mikhalchuk. Mikhalchuk told Rusev about some
issues he had with the Mercedes not working properly. Rusev said that he did not like people who
cheat other people.
Vitali Alesik, a close friend of Ihor and Dmytro, also knew Rusev. Alesik loaned Rusev
his Volvo to drive for a few months while Rusev worked on it.
On February 23, 2014, Alesik called Ihor and Dmytro, and asked them to pick up his Volvo
from Rusev. The brothers planned to go together, so Ihor could drive his own car and Dmytro
could drive the Volvo to Alesik. Alesik told Rusev over the phone that Ihor and Dmytro would
pick up the car, and reminded Rusev that he had previously met Ihor.
Before the brothers went to pick up the Volvo, Rusev told his friend, Vossler Blesch, that
he did not like that Ihor sold Mikhalchuk a broken car. Rusev told Blesch that he wanted to rob
the brothers and scare them because they cheated their own family. Rusev said he did not trust the
brothers and asked Blesch to stay. Blesch carried a firearm in his waistband, and Rusev told Blesch
to reveal it when the brothers arrived so they would see it and be intimidated.
When the brothers arrived at Rusev’s, they drove into the alleyway behind his garage.
Rusev waited for them, standing in the doorway to the garage.
When Dmytro entered the garage, he saw Blesch with a gun in his waistband. After Ihor
entered the garage, Rusev closed and locked the door. Within seconds, Blesch pulled the gun out
of his waistband and pointed it at the brothers.
2
The following facts rely in part on the facts set forth in this court’s opinion in State v. Rusev,
No. 47762-9-II (Wash. Ct. App. Apr. 18, 2017) (unpublished), http://www.courts.wa.gov/
opinions/pdf/477629.pdf, review denied, 189 Wash. 2d 1005 (2017).
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No. 52389-2-II
Ihor and Dmytro stood approximately five to seven feet away from Blesch and Rusev. The
brothers spoke in Russian with Rusev. Rusev spoke aggressively and cursed. Blesch did not
understand Russian and could not follow the conversation.
Rusev walked back and forth in front of the brothers. Based on instruction from Rusev,
Blesch ejected a bullet out of the chamber of the gun to intimidate the brothers. Rusev then kicked
it out of the way.
Rusev demanded the brothers’ wallets and cell phones, and Dmytro’s watch. Ihor tried to
talk to Rusev in a friendly manner, but Rusev told him to be quiet or he would kill them. Rusev
gestured with his head to Blesch to come closer with the gun. Blesch moved closer to them and
gestured with the gun for the brothers to hand the items over. The brothers obeyed.
Rusev took one wallet and put it on top of the Volvo and gave the other wallet to Blesch.
Rusev then demanded the brothers take off their jackets and shoes. The brothers again obeyed.
Rusev also demanded their car keys, and Ihor handed them to Rusev. Rusev handed the phones
and keys to Blesch, and Blesch put them in his jacket pocket. Rusev finally ordered the brothers
to take off their pants. Ihor refused.
Rusev then made a phone call. While he was on the phone, Ihor told Dmytro that they
needed to “leave this place alive” and needed to get out of there “by any price.” 5 Verbatim Report
of Proceedings (VRP) (May, 26, 2015) at 397-98. When Rusev hung up the phone, he began to
walk behind the brothers. Ihor then grabbed Rusev and held him. Dmytro grabbed Rusev from
behind and tried to push the group towards the door to escape. While Dmytro was “bear hugging”
Rusev, he never at any time “punch[ed]” Rusev or acted “aggressively.” 5 VRP (May, 26, 2015)
at 407. Rusev then cried out, “Voss, help me.” 10 VRP (June 3, 2015) at 995. While Dmytro tried
to open the door, Blesch fired the gun, striking and injuring Ihor. Ihor suffered a gunshot wound
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No. 52389-2-II
to the neck, chest, and arm that caused a significant spinal cord injury, rendering him a partial
quadriplegic.
Rusev seemed surprised that Blesch shot the gun, and he told Blesch to leave. Rusev told
Dmytro that Blesch was not supposed to fire the gun; he was only supposed to scare them. Blesch
turned himself in to the police shortly thereafter. Blesch claimed that he followed Rusev’s lead
throughout the incident. Blesch pled guilty to first degree assault and two counts of first degree
robbery.
The State charged Rusev as an accomplice to first degree assault (Ihor) and two counts of
first degree robbery (Ihor and Dmytro). The State also charged Rusev with firearm enhancements
on each count.
The trial court did not instruct the jury on self-defense nor was a self-defense instruction
requested.
During the prosecutor’s closing remarks, she made the following statement without
objection: “As [Dmytro] held his brother in his arms applying pressure to the gunshot wound,
pleading with [Rusev] to call 911 for help, he was terrified that his brother wasn’t going to make
it.” 17 VRP (June 15, 2015) at 1838. The prosecutor then stated, without objection:
I submit to you that [Rusev’s] account of what occurred when he spoke to
the detectives completely minimized his involvement, completely minimized his
actions, what he did in the robbery and assault of these two.
....
I submit to you that [Blesch’s] testimony, although difficult at times and
back and forth at times, you look at what he told the detective and what he testified
to and what he told you about the actions, yeah, frantic situation, but actively
participated in it, actively participate in at the request of the defendant.
17 VRP (June 15, 2015) at 1846-47.
The prosecutor then stated, without objection:
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No. 52389-2-II
Back to Ihor’s and Dmytro’s testimony, I submit to you that it was credible.
There’s an issue with Ihor. There’s [sic] spots that he doesn’t have a memory of.
He doesn’t have a memory of ever doing anything that was physically aggressive
towards [Rusev] other than pushing him off to the side. I submit to you that it’s not
a matter of his lying to you or being deceptive to you or to the law enforcement
when they came out to talk to him or to defense counsel and myself when we went
to talk to him.
17 VRP (June 15, 2015) at 1848.
As to the first degree robbery charge, the prosecutor stated, without objection, “What’s
[Rusev’s] intent? Standing there with the guy with the gun demanding and insisting on the items.
I submit to you his intent is to commit the theft and it’s to commit it with force." 17 VRP (June
15, 2015) at 1862.
The prosecutor also made the following statements, without objection:
I submit to you the State has proven beyond a reasonable doubt that the
defendant acted with knowledge, that his actions of demanding, of grabbing, of
handing, all of those actions support that we've proven beyond a reasonable doubt
that he acted with knowledge to commit the crime of robbery.
17 VRP (June 15, 2015) at 1863-64.
I submit to you that the State has proven the defendant acted as an
accomplice with [Blesch], and he acted with the general knowledge that his aiding
and facilitating for the crime of robbery, which was then elevated to robbery in the
first degree because of the firearm involved, and he acted with the general
knowledge of aiding and facilitating the simple crime of assault.
17 VRP (June 15, 2015) at 1868-69.
In her rebuttal, the prosecutor stated, without objection, “I submit to you that they did plan
an assault, and I went through several pieces of evidence and testimony that came out on why that
assault was planned.” 17 VRP (June 15, 2015) at 1915. Lastly, the prosecutor stated,
And I submit to you that based on [Rusev’s] actions, his intentional
deliberate actions, it was clear that he wanted to cause fear and intimidate Dmytro
and Ihor. And it’s clear that he acted with the intent to take their property and to
do so with force with [Blesch] behind him.
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No. 52389-2-II
17 VRP (June 15, 2015) at 1923.
During defense counsel’s closing remarks, he argued that Rusev was not an accomplice to
Ihor’s assault because Rusev never intended for Blesch to “shoot [the gun].” 17 VRP (June 15,
2015) at 1903. Defense counsel then stated, “I’d submit to you this is an indication of, whether it
was justifiable force or not, a fight that was ongoing.” 17 VRP (June 15, 2015) at 1903. The
prosecutor objected, stating, “This is not a self-defense case.” Id. Defense counsel responded,
“I’m not suggesting it is.” Id.
The jury found Rusev guilty of first degree assault (Ihor) and two counts of first degree
robbery (Ihor and Dmytro). By special verdict, the jury found Rusev, or the person with whom he
acted as an accomplice, was armed with a firearm at the time of each of the three counts.
Rusev’s standard sentence range was 129 to 171 months. The prosecutor requested a
sentence at the top of the standard range. Defense counsel requested a sentence at the bottom of
the standard range. The trial court sentenced Rusev to 155 months, the middle of the standard
sentencing range, plus three 60-month firearm enhancements for a total sentence of 335 months.
Rusev appealed. We affirmed his convictions, but remanded for the sentencing court to
strike a mandatory minimum sentence imposed on the assault charge. Rusev now challenges his
convictions and sentence with this personal restraint petition (PRP).
ANALYSIS
A. PRP LEGAL PRINCIPLES
“Relief by way of a collateral challenge to a conviction is extraordinary, and the petitioner
must meet a high standard before this court will disturb an otherwise settled judgment.” In re Pers.
Restraint of Coats, 173 Wash. 2d 123, 132, 267 P.3d 324 (2011) (citing In re Pers. Restraint of Cook,
114 Wash. 2d 802, 810-12, 792 P.2d 506 (1990)). To be entitled to relief on a PRP, a petitioner must
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No. 52389-2-II
show (1) actual and substantial prejudice by a constitutional error, or (2) “a fundamental defect of
a nonconstitutional nature that inherently resulted in a complete miscarriage of justice.” In re Pers.
Restraint of Finstad, 177 Wash. 2d 501, 506, 301 P.3d 450 (2013).
In reviewing a PRP, we have three available options: (1) deny the petition, (2) grant the
petition, or (3) transfer the petition to the superior court for a reference hearing. In re Pers.
Restraint of Yates, 177 Wash. 2d 1, 17, 296 P.3d 872 (2013); In re Pers. Restraint of Schreiber, 189
Wash. App. 110, 113, 357 P.3d 668 (2015). “Bald assertions and conclusory allegations” are
inadequate to justify relief. In re Pers. Restraint of Rice, 118 Wash. 2d 876, 886, 828 P.2d 1086,
cert. denied, 506 U.S. 958 (1992).
B. SELF-DEFENSE JURY INSTRUCTION
Rusev argues that the trial court failed to properly instruct the jury regarding self-defense
on the assault charge and that defense counsel provided ineffective assistance by failing to propose
a self-defense jury instruction. We disagree.
1. Legal Principles
Jury instructions are generally sufficient where they are supported by substantial evidence,
properly state the law, and allow the parties an opportunity to satisfactorily argue their theories of
the case. State v. Clausing, 147 Wash. 2d 620, 626, 56 P.3d 550 (2002). The adequacy of jury
instructions is reviewed de novo. Id. A defendant is entitled to an instruction on his theory of the
case if there is evidence to support that instruction. State v. Werner, 170 Wash. 2d 333, 336, 241
P.3d 410 (2010).
Self-defense may be asserted as a complete defense to assault. State v. Camara, 113 Wash. 2d
631, 639, 781 P.2d 483 (1989). To raise the claim of self-defense, a defendant must first offer
credible evidence tending to prove self-defense. State v. Walden, 131 Wash. 2d 469, 473-74, 932
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No. 52389-2-II
P.2d 1237 (1997). The burden then shifts to the State to prove the absence of self-defense beyond
a reasonable doubt. Id.
The use of force is lawful when a person reasonably believes he or she is about to be
injured, or by another lawfully aiding him or her, in preventing or attempting to prevent an offense
against the person and when the force is not more than necessary. RCW 9A.16.020. A defendant
who is the aggressor cannot invoke self-defense. State v. George, 161 Wash. App. 86, 96, 249 P.3d
202, review denied, 172 Wash. 2d 1007 (2011).
2. Sua Sponte Jury Instruction
Rusev first argues that the trial court erred in failing to give a self-defense jury instruction
sua sponte. He argues that a self-defense jury instruction was needed to provide a “complete
definition of assault” to the jury. PRP at 14. We disagree.
While a trial court must inform the jury of the elements of an offense and allow counsel to
argue their theories of the case, the trial court is not required to instruct a jury in a more detailed
fashion absent a request to do so. State v. Marohl, 151 Wash. App. 469, 477, 213 P.3d 49 (2009),
rev’d on other grounds, 170 Wash. 2d 691 (2010). Courts have noted that a defendant’s right to
present a full defense and to jury instructions on the defense theory of the case run in tandem with
the defendant’s constitutional right to control that defense. See State v. Jones, 99 Wash. 2d 735, 740-
41, 664 P.2d 1216 (1983) (“a defendant has a constitutional right to at least broadly control his
own defense.”); State v. McSorley, 128 Wash. App. 598, 604, 116 P.3d 431 (2005) (the court may
not compel a defendant to raise an affirmative defense he has not advanced). Accordingly, courts
may not force a defense on a criminal defendant where the defendant neither advances nor
evidences a desire to raise such a defense.
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No. 52389-2-II
Here, defense counsel specifically stated that Rusev was not advancing a self-defense
theory. Therefore, the trial court did not err in failing to give a self-defense jury instruction sua
sponte.
3. Ineffective Assistance of Counsel
Rusev next argues that he was denied effective assistance of counsel because defense
counsel did not propose a self-defense jury instruction. We disagree.
We review ineffective assistance of counsel claims de novo. State v. Sutherby, 165 Wash. 2d
870, 883, 204 P.3d 916 (2009). To prevail on an ineffective assistance of counsel claim, the
defendant must show both that defense counsel’s representation was deficient and the deficient
representation prejudiced the defendant. State v. Grier, 171 Wash. 2d 17, 32-33, 246 P.3d 1260
(2011), cert. denied, 135 S. Ct. 153 (2014).
Counsel’s performance is deficient if it falls below an objective standard of reasonableness.
Id. at 33. We engage in a strong presumption that counsel’s performance was reasonable. State
v. Kyllo, 166 Wash. 2d 856, 862, 215 P.3d 177 (2009). A defendant may overcome this presumption
by showing that “‘there is no conceivable legitimate tactic explaining counsel’s performance.’”
Grier, 171 Wash. 2d at 33 (quoting State v. Reichenbach, 153 Wash. 2d 126, 130, 101 P.3d 80 (2004)).
To establish prejudice, the defendant must “prove that there is a reasonable probability that, but
for counsel’s deficient performance, the outcome of the proceedings would have been different.”
Kyllo, 166 Wash. 2d at 862. A petitioner who presents a successful ineffective assistance of counsel
claim necessarily establishes actual and substantial prejudice for purposes of collateral relief. In
re Pers. Restraint of Crace, 174 Wash. 2d 835, 846-47, 280 P.3d 1102 (2012).
Where the claim of ineffective assistance is based upon counsel’s failure to request a
particular jury instruction, the petitioner must first show he or she was entitled to the instruction.
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No. 52389-2-II
State v. Thompson, 169 Wash. App. 436, 495, 290 P.3d 996 (2012), review denied, 176 Wash. 2d 1023
(2013).
Here, Rusev did not like Ihor and Dmytro, and wanted to rob them. He asked Blesch to
help by revealing Blesch’s gun when the brothers arrived. When the brothers arrived, Rusev was
waiting for them. Dmytro entered the garage and saw Blesch with a gun in his waistband. After
Ihor entered the garage, Rusev closed and locked the door. Within seconds, Blesch pulled the gun
out of his waistband and pointed it at the brothers. Rusev spoke aggressively and paced in front
of the brothers. He then told Blesch to eject a bullet out of the chamber of the gun to intimidate
the brothers.
Next, Rusev demanded the brothers’ wallets and cell phones, and Dmytro’s watch. Ihor
tried to talk to Rusev in a friendly manner, but Rusev told him to be quiet or he would kill them.
Rusev gestured with his head to Blesch to come closer with the gun. Blesch moved closer and
gestured with the gun for the brothers to hand the items over. The brothers obeyed. Rusev then
made a phone call. When he hung up, he began to walk behind the brothers. Ihor grabbed Rusev
and held him. Dmytro joined in and tried to push the group towards the door to escape. While
Dmytro was “bear hugging” Rusev, he never at any time tried to “punch” Rusev or acted
“aggressively.” 5 VRP (May, 26, 2015) at 407. Rusev cried out, “Voss, help me.” 10 VRP (June
3, 2015) at 995. While Dmytro tried to open the door, Blesch fired the gun, striking and injuring
Ihor.
Based on these facts, the defense theory was that Rusev was not an accomplice to the
assault because he never intended for an assault to occur and he was shocked by Blesch’s actions.
(17 VRP 1885) A self-defense jury instruction would contradict the defense’s theory. See State
v. Pottorff, 138 Wash. App. 343, 348, 156 P.3d 955 (2007) (a defendant asserting self-defense is
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No. 52389-2-II
ordinarily required to admit he or she committed an assault). Therefore, defense counsel’s decision
not to propose a self-defense jury instruction was tactical. Because there is a “‘conceivable
legitimate tactic explaining counsel’s performance,’” Rusev cannot establish deficient
performance to prove an ineffective assistance of counsel claim. Grier, 171 Wash. 2d at 33 (quoting
Reichenbach, 153 Wash. 2d at 130).
Even assuming he establishes deficient performance, Rusev fails to show prejudice because
he has not shown that he was entitled to a self-defense instruction. As set forth above, a defendant
who is the aggressor cannot invoke self-defense. George, 161 Wash. App. at 96. Here, there is
overwhelming evidence that Rusev was the first aggressor, making it unlikely that the trial court
would have found Rusev was entitled to a self-defense instruction. Therefore, we conclude that
Rusev fails to show he received ineffective assistance of counsel.
C. PROSECUTORIAL MISCONDUCT
Rusev next argues that the prosecutor committed misconduct during closing remarks by
appealing to the passions of the jury and asserting her personal beliefs regarding the credibility of
the witnesses. We disagree.
A defendant alleging prosecutorial misconduct must prove (1) the conduct was improper
and (2) he or she was prejudiced. State v. Emery, 174 Wash. 2d 741, 760-61, 278 P.3d 653 (2012).
“[T]o prevail as a personal restraint petitioner on [a] prosecutorial misconduct claim, [the
petitioner] must prove the alleged misconduct was either a constitutional error that resulted in
actual and substantial prejudice or a fundamental defect that resulted in a complete miscarriage of
justice.” In re Pers. Restraint of Lui, 188 Wash. 2d 525, 539, 397 P.3d 90 (2017). Additionally,
because Rusev did not object to the misconduct at trial, “his claim is considered waived unless the
misconduct is ‘so flagrant and ill-intentioned that it caused an enduring and resulting prejudice
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No. 52389-2-II
that could not have been neutralized by a curative instruction.’” Id. (quoting In re Pers. Restraint
of Caldellis, 187 Wash. 2d 127, 143, 385 P.3d 135 (2016)).
We look at each statement in the context of the entire record and trial circumstances. State
v. Thorgerson, 172 Wash. 2d 438, 442, 258 P.3d 43 (2011). A prosecutor has “wide latitude to argue
reasonable inferences from the evidence, including evidence respecting the credibility of
witnesses.” Id. at 448. However, a prosecutor has a duty to seek verdicts free from appeals to the
jury’s passions or prejudices. State v. Perez-Mejia, 134 Wash. App. 907, 915, 143 P.3d 838 (2006).
During the prosecutor’s closing remarks, she stated, without objection, “As [Dmytro] held
his brother in his arms applying pressure to the gunshot wound, pleading with [Rusev] to call 911
for help, he was terrified that his brother wasn’t going to make it.” 17 VRP (June 15, 2015) at
1838. Rusev argues this was an improper appeal to the jury’s passions, but fails to explain how
this statement is so flagrant and ill intentioned that it caused an enduring and resulting prejudice
that could not have been neutralized by a curative instruction. This statement was based on the
evidence, went to the events after Blesch shot Ihor, and are not so flagrant and ill intentioned that
it caused an enduring and resulting prejudice that could not have been neutralized by a curative
instruction. Accordingly, we considers Rusev’s contention waived. Lui, 188 Wash. 2d at 539.
The prosecutor also made several remarks proceeded by the statement “I submit to you.”
17 VRP (June 15, 2015) at 1846-48, 1862-64, 1868, 1915, 1923. Rusev argues that the
prosecutor’s repeated use of the words, “I submit to you” was a “first person endorsement of the
credibility of her witnesses.” PRP at 28-29. However, a prosecutor may freely comment on
witness credibility based on the evidence. Thorgerson, 172 Wash. 2d at 448. All of the prosecutor’s
statements are based on the evidence.
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No. 52389-2-II
Even assuming they were improper, Rusev does not show how these statements were so
flagrant and ill intentioned that it caused an enduring and resulting prejudice that could not have
been neutralized by a curative instruction. Accordingly, we consider Rusev’s objection to the
above statements as waived. Lui, 188 Wash. 2d at 539.
D. SAME CRIMINAL CONDUCT
1. Trial Court Challenge
Rusev next argues that the trial court erred when it failed to consider his first degree assault
and first degree robbery convictions involving Ihor as the same criminal conduct for the purpose
of calculating his offender score. We disagree.
A trial court calculates a defendant’s offender score for sentencing purposes by counting
current offenses and past convictions. RCW 9.94A.589(1)(a). The offender score for a given
current offense includes all other current offenses unless the trial court finds “that some or all of
the current offenses encompass the same criminal conduct.” Id. Offenses constitute the same
criminal conduct if they “require the same criminal intent, are committed at the same time and
place, and involve the same victim.” Id. A defendant has the burden to “establish [what] crimes
constitute the same criminal conduct.” State v. Aldana Graciano, 176 Wash. 2d 531, 539, 295 P.3d
219 (2013).
“Deciding whether crimes involve the same time, place, and victim often involves
determinations of fact,” and it is well settled that “a court’s determination of same criminal conduct
will not be disturbed unless the sentencing court abuses its discretion or misapplies the law.” State
v. Chenoweth, 185 Wash. 2d 218, 220-21, 370 P.3d 6 (2016). For issues that involve discretion, a
failure to raise the issue in the trial court operates as a waiver. In re Pers. Restraint of Goodwin,
146 Wash. 2d 861, 874, 50 P.3d 618 (2002). A trial court is not required to undertake a same criminal
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No. 52389-2-II
conduct analysis sua sponte. State v. Nitsch, 100 Wash. App. 512, 524-25, 997 P.2d 1000, review
denied, 141 Wash. 2d 1030 (2000).
Because the question of whether Rusev’s convictions were based on the same criminal
conduct presents a factual determination and involves the exercise of discretion, it may not be
raised for the first time on appeal. Nitsch, 100 Wash. App. at 523; RAP 2.5(a). Accordingly, we
will not entertain Rusev’s unpreserved challenge to the trial court’s calculation of his offender
score.
2. Ineffective Assistance of Counsel Challenge
Alternatively, Rusev argues that his defense counsel’s failure to request a finding of same
criminal conduct constituted ineffective assistance of counsel. We disagree.
a. Legal principles
Ineffective assistance of counsel is a manifest error affecting a constitutional right and can
be raised for the first time on appeal. State v. Brown, 159 Wash. App. 1, 17, 248 P.3d 518 (2010),
review denied, 171 Wash. 2d 1015 (2011). As discussed above, to prevail on an ineffective assistance
of counsel claim, the defendant must show both that defense counsel’s representation was deficient
and the deficient representation prejudiced the defendant. Grier, 171 Wash. 2d at 32-33. We need
“not address both prongs of the ineffective assistance test if the defendant’s showing on one prong
is insufficient.” State v. Foster, 140 Wash. App. 266, 273, 166 P.3d 726, review denied, 162 Wash. 2d
1007 (2007).
Rusev relies in part on State v. Phuong, 174 Wash. App. 494, 547-48, 299 P.3d 37 (2013),
review denied, 182 Wash. 2d 1022 (2015), which held that ineffective assistance of counsel is shown
when a defendant demonstrates a reasonable possibility that a sentencing court would have found
that the offenses constituted the same criminal conduct if his or her lawyer had so argued. In
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No. 52389-2-II
Phuong, the court held that the offenses at issue, attempted second degree rape and unlawful
imprisonment, entailed the same criminal conduct. At issue in Phuong was whether the two
offenses had the same criminal intent. The court held that because the “unlawful imprisonment
furthered the offense of attempted rape in the second degree,” defense counsel’s failure to argue
same criminal conduct at sentencing constituted deficient performance. 174 Wash. App. at 548.
Our Supreme Court has held that determining whether crimes involved the same criminal
intent under RCW 9.94A.589(1)(a) requires examining the statutory criminal intent required for
each crime. Chenoweth, 185 Wash. 2d at 223. If an otherwise single act comprises separate and
distinct statutory criminal intents, it does not meet the statute’s definition of “same criminal
conduct.” Id. In determining whether two crimes share the same criminal intent, the court focuses
on whether the defendant’s intent, viewed objectively, changed from one crime to the next and
whether commission of one crime furthered the other. State v. Dunaway, 109 Wash. 2d 207, 215,
743 P.2d 1237, 749 P.2d 160 (1987).
Here, the parties agree the crimes involve the same place and victim, but they dispute
whether the crimes occurred at the same time and with the same criminal intent. We focus on
whether the crimes occurred with the same criminal intent because that issue is dispositive. See
Aldana Graciano, 176 Wash. 2d at 539 (the defendant has the burden of proving offenses occurred
at the same time and same place, had the same victim, and have the same criminal intent; if the
defendant does not meet his or her burden, the offenses do not encompass the same criminal
conduct.)
b. Criminal intent
A person is guilty of first degree robbery when he or she unlawfully takes personal property
from another and is armed with a deadly weapon or displays what appears to be a firearm. RCW
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No. 52389-2-II
9A.56.190; RCW 9A.56.200(1)(a)(i)-(ii). A person is guilty of first degree assault if he or she,
with intent to inflict great bodily harm, assaults another with a firearm. RCW 9A.36.011(1)(a).
The intent required for first degree robbery is the intent to deprive the victim of property,
while the intent required for first degree assault is the intent to inflict great bodily harm. RCW
9A.56.190, .200; RCW 9A.36.011(1). The two offense are not the same criminal conduct when
the assault is an “afterthought” to the robbery. State v. Freeman, 118 Wash. App. 365, 378, 76 P.3d
732 (2003), aff’d, 153 Wash. 2d 765 (2005).
Here, Rusev told Blesch he wanted to rob Ihor and Dmytro. He asked Blesch to reveal his
firearm to intimidate them. After the brothers arrived, Rusev closed the door behind them, and
Blesch pulled the gun out of his waistband and pointed it at the brothers. Rusev spoke
aggressively, cursing and pacing in front of the brothers. Rusev then told Blesch to eject a bullet
out of the chamber of the gun to intimidate the brothers. Next, Rusev demanded the brothers’
wallets and cell phones, and Dmytro’s watch. Rusev also demanded that the brothers take off their
jackets and shoes, and that they give Rusev their phones and car keys. Rusev then made a phone
call. After he got off the phone, the brothers grabbed Rusev and pushed toward the door to escape.
Rusev then cried out, “Voss, help me.” 10 VRP (June 3, 2015) at 995. While Dmytro tried to open
the door, Blesch fired the gun, striking and injuring Ihor. Ihor suffered a gunshot wound to the
neck, chest, and arm that caused a significant spinal cord injury, rendering him a partial
quadriplegic.
In this case, neither crime furthered the commission of the other. The robbery occurred,
Rusev made a phone call, Ihor and Dmytro tried to escape, and then the assault occurred. The
assault was committed in an effort to help free Rusev from Ihor and Dmytro’s hold on him. The
assault did not further the ultimate goal of the robbery, which was completed before the assault.
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No. 52389-2-II
See Dunaway, 109 Wash. 2d at 217 (finding that murders committed after robberies completed did
not constitute the same criminal conduct). Because the robbery was completed before the assault
occurred, the first degree robbery and first degree assault do not share the same criminal intent.
Because Rusev’s criminal intent changed from one offense to the other, the first degree
robbery and first degree assault did not constitute the same criminal conduct. We conclude that
Rusev fails to establish that his attorney’s conduct fell below an objective standard of
reasonableness because the trial court would have rejected a same criminal conduct argument.
Thus, Rusev’s ineffective assistance of counsel claim fails.
E. INEFFECTIVE ASSISTANCE OF COUNSEL/SENTENCE BELOW STANDARD RANGE
Rusev next argues that he was denied effective assistance of counsel because defense
counsel did not request a sentence below the standard sentencing range. We disagree.
As discussed above, to prevail on an ineffective assistance of counsel claim, the defendant
must show both that defense counsel’s representation was deficient and the deficient representation
prejudiced the defendant. Grier, 171 Wash. 2d at 32-33. We need “not address both prongs of the
ineffective assistance test if the defendant’s showing on one prong is insufficient.” Foster, 140
Wash. App. at 273.
A trial court “may impose an exceptional sentence below the standard range if it finds that
mitigating circumstances are established by a preponderance of the evidence.” RCW
9.94A.535(1). Relying on State v. McFarland, 189 Wash. 2d 47, 399 P.3d 1106 (2017), Rusev argues
that defense counsel should have argued for a sentence below the standard sentencing range
because his mandatory firearm enhancements created a clearly excessive sentence.
In McFarland, a jury found Cecily Zorada McFarland guilty of first degree burglary, 10
counts of theft of a firearm, and 3 counts of unlawful possession of a firearm. 189 Wash. 2d at 49.
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No. 52389-2-II
The sentencing court imposed standard range sentences on each count and ordered that the firearm-
related sentences be served concurrently as to the burglary sentence but consecutively as to each
other. Id. This resulted in a total sentence of 237 months. Id. McFarland appealed, arguing that
the sentencing court failed to recognize its discretion to impose an exceptional mitigated sentence
by running the firearm-related sentences concurrently. Our Supreme Court agreed, holding that a
sentencing court retains discretion to impose concurrent sentences “for firearm-related
convictions” as part of an exceptional mitigated sentence if it finds that the presumptive concurrent
sentences are clearly excessive under RCW 9.94A.535(1)(g). McFarland, 189 Wash. 2d at 55.
Here, Rusev was not convicted of multiple firearm-related offenses. Rather, a jury found
he was armed with a firearm during the commission of each of his three offenses; thus, Rusev was
convicted on firearm enhancements. Under RCW 9.94A.533(3)(e), “all firearm enhancements
under this section are mandatory, shall be served in total confinement, and shall run consecutively
to all other sentencing provisions, including other firearm or deadly weapon enhancements.” Our
Supreme Court has held that this statutory language deprives sentencing courts of the discretion to
impose an exceptional sentence with regard to firearm enhancements. State v. Brown, 139 Wash. 2d
20, 21, 29, 983 P.2d 608 (1999), overruled in part by State v. Houston-Sconiers, 188 Wash. 2d 1, 391
P.3d 409 (2017) (relating to juveniles).
Rusev’s standard sentence range was 129 to 171 months. The prosecutor requested a
sentence at the top of the standard range. Defense counsel requested a sentence at the bottom of
the standard range. The trial court sentenced Rusev to 155 months, the middle of the standard
range, plus three 60-month firearm enhancements for a total sentence of 335 months. The
consecutive firearm enhancements are mandatory. RCW 9.94A.533(3)(e). Based on the record,
Rusev fails to show that defense counsel’s conduct in not arguing for a mitigated exceptional
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No. 52389-2-II
sentence downward based on the mandatory firearm enhancements amounted to deficient
performance. Accordingly, Rusev fails to show he received ineffective assistance of counsel.
F. DOUBLE JEOPARDY
Rusev lastly argues that his first degree robbery and first degree assault convictions
involving Ihor violate double jeopardy. We disagree.
Double jeopardy and same criminal conduct analyses are distinct and separate inquiries.
Chenoweth, 185 Wash. 2d at 222 (citing State v. French, 157 Wash. 2d 593, 611-12, 141 P.3d 54
(2006)). The double jeopardy clauses of the Fifth Amendment to the United States Constitution
and article I, section 9 of the Washington Constitution prohibit the imposition of multiple
punishments for a single offense. French, 157 Wash. 2d at 612. “A ‘defendant’s double jeopardy
rights are violated if he or she is convicted of offenses that are identical both in fact and in law.’”
State v. Peña Fuentes, 179 Wash. 2d 808, 824, 318 P.3d 257 (2014) (quoting State v. Calle, 125
Wash. 2d 769, 777, 888 P.2d 155 (1995)). If the legislature authorized cumulative punishments for
both crimes, then double jeopardy is not offended. State v. Freeman, 153 Wash. 2d 765, 772, 108
P.3d 753 (2005).
In Freeman, our Supreme Court recognized that “[s]ometimes, there is sufficient evidence
of legislative intent that we are confident concluding that the legislature intended to punish two
offenses . . . separately without more analysis.” 153 Wash. 2d at 772 (citing Calle, 125 Wash. 2d at
777-78) (emphasis added). The Supreme Court then concluded that “the legislature did intend to
punish first degree assault and first degree robbery separately.” Freeman, 153 Wash. 2d at 779-80.
Here, because the legislature intended to punish first degree assault and first degree robbery
separately, we conclude that Rusev’s first degree assault and first degree robbery convictions do
not violate double jeopardy.
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No. 52389-2-II
CONCLUSION
Rusev does not meet the high standard necessary for us to disturb his judgment and
sentence in this collateral challenge to his convictions. He does not show actual and substantial
prejudice by a constitutional error, or a fundamental defect of a nonconstitutional nature that
inherently resulted in a complete miscarriage of justice. Accordingly, we deny Rusev’s 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 in accordance with RCW 2.06.040,
it is so ordered.
Lee, J.
We concur:
Maxa, C.J.
Sutton, J.
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