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Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                                                               FILED
                                                                           MAY 15, 2012
                                                                    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

STATE OF WASHINGTON,                                      No. 29694-6-III
                                                )
                      Respondent,               )
                                                )
              v.                                )
                                                )
BRAIDEN M. CONNOR,                              )         UNPUBLISHED OPINION
                                                )
                      Appellant.                )
                                                )

       Brown, J. ? Braiden M. Connor appeals his first degree robbery and second 

degree assault convictions, contending the trial court erred by failing to merge the assault 

into the robbery, thus throwing off his offender score and resulting standard range 

sentence.  Additionally, Mr. Connor challenges portions of his restitution order as 

untimely.  We agree with Mr. Connor's merger contention and remand for resentencing.  

Thus, we do not address Mr. Connor's restitution concerns that will again be before the 

trial court at his sentencing.  Accordingly, we vacate Mr. Connor's second degree assault  

No. 29694-6-III
State v. Connor  

conviction, and remand for proceedings consistent with this opinion.  

                                            FACTS  

       In June 2010, Mr. Connor was charged with several counts following his 

involvement in a robbery.  He pleaded guilty on December 6, 2010 to amended charges of

first degree burglary, second degree assault, and first degree robbery.  The prosecutor told 

the court the victim supported the reduced charges based on Mr. Connor's involvement in 

the incident compared to his co-defendants.  The court then went through the statement 

on plea of guilty section by section.  Mr. Connor acknowledged and agreed he had read 

the statement and thoroughly reviewed it with his attorney.  The plea statement listed Mr. 

Connor's offender score as 4.  The charges partly provided:  

       COUNT II: SECOND DEGREE ASSAULT, committed as follows: That 
       the defendant . . . did intentionally assault WILLIAM HANS DAHLEN, 
       and did thereby recklessly inflict substantial bodily harm,

       COUNT III: FIRST DEGREE ROBBERY, committed as follows: That the 
       defendant . . . with the intent to commit theft, did unlawfully take and retain 
       personal property . . . from . . . WILLIAM HANS DAHLEN, against such 
       person's will, by use or threatened use of immediate force, violence or fear 
       of injury to said person or the property of said person . . . and in the 
       commission of and immediate flight therefrom, the defendant inflicted 
       bodily injury upon WILLIAM HANS DAHLEN.  

Clerk's Papers (CP) at 23-24.  

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No. 29694-6-III
State v. Connor  

       Mr. Connor acknowledged that he understood the recommended sentence, that the 

recommended sentence would include restitution, and that the sentencing judge was not 

bound by the recommendation.  Relevant to Mr. Connor's merger arguments, the 

prosecutor recited facts showing the victim:  

       [W]as struck repeatedly about the head, arms and legs by the bats, and two 
       of the suspects were demanding his money, and stated if they didn't get the 
       money, that they would kill him. 
              Mr. Dahlen would have testified that he pointed to his top dresser 
       drawer and told them that his wallet was there.  One of the suspects 
       removed the wallet from the drawer . . . .  At that point, the suspects fled 
       the residence.  

Report of Proceedings at 17.  

       After accepting Mr. Connor's plea, the court allowed the victim to speak relevant 

to Mr. Connor's mitigated sentencing request because the victim indicated he would not 

be at the sentencing hearing.  The court requested the parties brief the issue and 

rescheduled sentencing for January 7, 2011.  Based on the victim's earlier statements 

distinguishing Mr. Connor's role from the other perpetrators, the State questioned 

whether there was a factual basis for the plea.  Counsel for Mr. Connor mentioned 

accomplice liability.  Mr. Connor chose not to make a motion to withdraw his guilty plea.  

Denying Mr. Connor's exceptional sentence request, the court imposed the recommended 

sentence in the plea agreement.  It left the issue of restitution open for a period of 180 

days.  Judgment and Sentence was entered on January 10, 2011.  The restitution order 

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No. 29694-6-III
State v. Connor  

was entered July 20, 2011.  Mr. Connor appealed.  

                                         ANALYSIS  

                               A.  Merger and Offender Score  

       The issue is whether the trial court erred by failing to merge the second degree 

assault into the first degree robbery with the effect of incorrectly elevating Mr. Connor's 

offender score.  

       A sentencing court acts without statutory authority when it imposes a sentence 

based on a miscalculated offender score.  State v. Roche, 75 Wn. App. 500, 513, 878 P.2d 

497 (1994).  Thus, a challenge to the offender score calculation may be raised for the first 

time on appeal.  Id.  We review a sentencing court's calculation of an offender score de 

novo.  Id.   When calculating an offender score, all other current convictions are counted 

as if they were prior convictions.  RCW 9.94A.589(1).  Mr. Connor argues two of his 

current convictions merged together so his offender score should have been lower.  

       The merger doctrine avoids double punishment by merging a lesser offense "into 

the greater offense when one offense raises the degree of another offense." State v. 

Collicott, 118 Wn.2d 649, 668, 827 P.2d 263 (1992).  Merger is based on the double 

jeopardy clauses of the United States and Washington Constitutions.  State v. Parmelee,

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No. 29694-6-III
State v. Connor  

108 Wn. App. 702, 710, 32 P.3d 1029 (2001).  "The merger doctrine is relevant only 

when a crime is elevated to a higher degree by proof of another crime proscribed 

elsewhere in the criminal code."  Id. When two crimes merge, the trial court convicts the 

defendant only of the one offense into which the other offense merges.  Id. at 711.  

       Specifically, the merger doctrine is triggered when a completed second degree 

assault elevates robbery to the first degree.  RCW 9A.56.200(1)(a)(i)-(ii); RCW 

9A.56.190; RCW 9A.36.021(1)(c); see State v. Kier, 164 Wn.2d 798, 805, 194 P.3d 212 

(2008); State v. Freeman, 153 Wn.2d 765, 780, 108 P.3d 753 (2005) (Freeman II).   "An 

exception to merger applies where the offenses committed in a particular case have 

independent purposes or effects."  State v. Freeman, 118 Wn. App. 365, 371-72, 76 P.3d 

732 (2003) (Freeman I).  As our Supreme Court explained:

       For example, when the defendant struck a victim after completing a 
       robbery, there was a separate injury and intent justifying a separate assault 
       conviction, especially since the assault did not forward the robbery.  

Freeman II, 153 Wn.2d at 779.  

       As a preliminary matter, the State argues Mr. Connor waived his right to appeal 

his sentence, contending he "stipulated" that the first degree robbery and second degree 

assault convictions "constituted separate offenses legally and factually for sentencing 

purposes." Br. of Resp't at 8, 5.  The State claims this "agreement" is in section 6(h) of 

the plea agreement.  See Br. of Resp't at 6.  Actually though, section 6(h) pertains to the 

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No. 29694-6-III
State v. Connor  

judge imposing an exceptional sentence and mentions nothing of separate offenses.  And, 

as Mr. Connor replies, the section of the plea statement that does acknowledge that two 

offenses constitute separate offenses (section 6(z)) has been crossed out.  

       Here, the charging document shows Mr. Connor "inflicted bodily injury" "in the 

commission of and immediate flight" from the robbery.  CP at 24.  The prosecutor's 

factual basis at the plea hearing did not identify any purpose or effect of the assault on the 

victim apart from effectuating the robbery.  

       Although the State argues Mr. Connor's accomplices "intentionally inflicted . . . an 

amount of harm well in excess of that required to facilitate a first degree robbery," Br. of 

Resp't at 11, our Supreme Court has held the independent purpose "exception does not 

apply merely because the defendant used more violence than necessary to accomplish the 

crime."  Freeman II, 153 Wn.2d at 790.  "The test is whether the unnecessary force had a 

purpose or effect independent of the crime."  Id.  Here, the record contains no evidence 

the assault upon Mr. Dahlen was committed for any other purpose than to facilitate the 

robbery.  Given all, we conclude the second degree assault conduct was charged as an 

element of the first degree robbery charge, having the effect of elevating the robbery 

charge.  Thus, the two crimes merge, and the lesser offense should be vacated.  

Therefore, the offender score was miscalculated.  The remedy for a miscalculated 

offender score is remand for resentencing using a correct offender score.  State v. Ford, 

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No. 29694-6-III
State v. Connor  

137 Wn.2d 472, 485, 973 P.2d 452 (1999).  

       Because we remand for resentencing and restitution will again be before the 

sentencing court, we do not address Mr. Connor's obviated restitution concerns.  

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No. 29694-6-III
State v. Connor  

       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.

________________________________
Siddoway, J.

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