FILED
APRIL 08, 2014
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. 31389-1-111
)
Respondent, )
)
v. )
)
CARL KEITH MATHENY, ) UNPUBLISHED OPINION
)
Appellant. )
BROWN, J. - Carl K. Matheny appeals his convictions for attempting to elude a
pursuing police vehicle and second degree driving while license suspended or revoked. Mr.
Matheny contends (1) he was denied effective assistance of counsel based on defense
counsel's failure to offer a jury instruction regarding willfulness, and (2) the State failed to
prove Mr. Matheny's 2006 convictions did not wash out. We affirm.
FACTS
Benton County Sheriffs Deputy Mike McDermott observed Mr. Matheny driving a
motorcycle in Kennewick on August 5, 2012, around 1:25 a.m. The deputy was stopped
at an intersection when Mr. Matheny turned in front of him almost striking the deputy's
vehicle. Deputy McDermott was in a marked patrol car with reflective markings, lights,
and siren. He activated his lights and siren, and attempted to stop Mr. Matheny, who
No. 31389-1-111
State v. Matheny
sped away from Deputy McDermott, reaching an estimated speed of 35 to 40 m.p.h. in
a 25 m.p.h. zone. Mr. Matheny failed to stop at two stop signs and continued to
increase his speed, accelerating to 75 to 80 m.p.h. in a residential area. Officers
responding to Deputy McDermott's request for back up approached from the opposite
direction, resulting in Mr. Matheny finally stopping his motorcycle.
The State charged Mr. Matheny with attempting to elude a pursuing police
vehicle and second degree driving while license suspended or revoked.
During trial, Mr. Matheny testified he saw the officer coming into the intersection
as he turned to go around the block. Mr. Matheny did not realize the officer had turned
to follow him. He claims he could not hear the officer's siren due to the motorcycle's
loud exhaust system and because he was wearing a helmet. The court instructed the
jury of the elements of attempting to elude a police vehicle, but did not define the
element of willfulness. The defense did not request such an instruction.
During deliberations, the jury questioned the fourth element of the to-convict
instruction, which included the willfulness element: "In Instruction #8, element #4, does
the phrase 'after being signalled' [sic] imply that both a sign (visual/audible) was sent by
an officer and received by the defendent [sic]?" Clerk's Papers at 36. The trial court
responded that the jury must read the instructions as a whole.
The jury found Mr. Matheny guilty as charged. At sentencing, Mr. Matheny's
attorney stated, "We're not contesting the fact that the offender score is nine, for
2
No. 31389-1-111
State v. Matheny
purposes of moving forward." Report of Proceedings (RP) at 114. Based on an
offender score of 9, the court imposed a standard range sentence of 29 months.
ANALYSIS
A. Ineffective Assistance
Mr. Matheny contends he was denied effective assistance of counsel on the
eluding charge because his attorney failed to propose a jury instruction defining
"willfully," causing him prejudice.
The federal and state constitutions guarantee a defendant effective assistance of
counsel. U.S. CONST. amend. VI.; CONST. art. 1, § 22. To prove ineffective assistance
of counsel, the appellant must show that (1) counsel's performance was deficient, i.e.,
that the representation "fell below an objective standard of reasonableness based on
consideration of all the circumstances" and (2) that deficient performance prejudiced
him, i.e., "there is a reasonable probability that, except for counsel's unprofessional
errors, the result of the proceeding would have been different." State v. McFarland, 127
Wn.2d 322,334-35,899 P.2d 1251 (1995). We determine whether counsel was
competent based upon the entire trial record. Id. at 335. We need not address both
prongs of the ineffective assistance test if the defendant's showing on one prong is
insufficient. Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984).
To prevail on an ineffective assistance of counsel claim for failure to propose a
jury instruction, Mr. Matheny must show that (1) had counsel requested the instruction,
3
No. 31389-1-111
State v. Matheny
the trial court likely would have given it, and (2) defense counsel's failure to request the
instruction was not a legitimate tactical decision. State v. Powell, 150 Wn. App. 139,
154-55,206 P.3d 703 (2009).
To convict a person of eluding a police vehicle, the State must prove that a driver
"willfully fails or refuses to immediately bring his or her vehicle to a stop and who drives
his or her vehicle in a reckless manner while attempting to elude a pursuing police
vehicle." RCW 46.61.024(1).
Defense attorneys often decide not to propose definitional jury instructions
because they assume the common understanding of a term will be in their client's favor.
See State v. Pottorff, 138 Wn. App. 343, 349-50, 156 P .3d 955 (2007) ("The ordinary
use of the term 'necessary' is less complicated than the statutory definition. It is
possible defense counsel thought it would be easier for the jury to find Mr. Pottorff's
actions were necessary without the legal definition. This tactical decision does not
amount to deficient performance."). "Willfully" has many possible definitions. In the
common law, it was often used as a standard higher than knowledge. Estate of
Kissinger v. Hoge, 142 Wn. App. 76, 80, 173 P.3d 956 (2007). Mr. Matheny's attorney
may have believed it was better to gamble that the jury would use a commonplace
definition, rather than affixing the legal standard. Accordingly, we cannot conclude his
attorney's decision was not a legitimate trial tactic.
4
No. 31389-1-111
State v. Matheny
Because Mr. Matheny has not demonstrated that counsel was deficient in not
offering a jury instruction defining "willfully," we do not address prejudice. Mr. Matheny
fails to show he was denied effective assistance of counsel.
B. Offender Score
The issue is whether the sentencing court erred in imposing a standard range
sentence based on an offender score of nine. For the first time on appeal, Mr. Matheny
contends two convictions from 2006 washed out and, thus, should not have been
included in his offender score.
The law is well-settled that generally a defendant cannot appeal a standard
range sentence. RCW 9.94A.585(1); State v. Williams, 149 Wn.2d 143, 146,65 P.3d
1214 (2003). Nevertheless, a defendant can appeal a standard range sentence if the
sentencing court failed to follow proper procedures, including offender score calculation
procedures. State v. Autrey, 136 Wn. App. 460, 469, 150 P.3d 580 (2006). A
sentencing court's offender score calculation is reviewed de novo. State v. Wilson, 113
Wn. App. 122, 136,52 P.3d 545 (2002).
In establishing the defendant's criminal history for sentencing purposes, the State
must prove by a preponderance of the evidence that a prior conviction exists. State v.
Ammons, 105 Wn.2d 175, 186,713 P.2d 719 (1986). But, the trial court may rely on a
defendant's stipulation or acknowledgment of prior convictions without further proof. In
re Pers. Restraint of Cadwallader, 155 Wn.2d 867, 873-74, 123 P.3d 456 (2005).
5
No. 31389-1-111
State v. Matheny
Under RCW 9.94A.525(2)(c), "class C prior felony convictions other than sex
offenses shall not be included in the offender score if, since the last date of release from
confinement ... the offender had spent five consecutive years in the community without
committing any crime that subsequently results in a conviction."
Mr. Matheny was sentenced in 2006 to two class C felonies. He argues the
State failed to prove these felonies have not washed out; thus, the court erred by
including them in his offender score. But, Mr. Matheny relieved the State's burden to
prove the existence of those convictions by agreeing to his criminal history and offender
score calculation.
When a defendant affirmatively acknowledges at the sentencing hearing that the
State's criminal history and offender score calculations were correct, this affirmative
acknowledgement satisfies the Sentencing Reform Act of 1981 requirements, chapter
9.94A RCW, no further proof of these convictions is required. State v. Bergstrom, 162
Wn.2d 87, 94,169 P.3d 816 (2007); see also State v. Ross, 152 Wn.2d 220,233,95
P.3d 1225 (2004) (citing State v. Ford, 137 Wn.2d 472, 482-83, 973 P.2d 452 (1999)).
The Bergstrom court stated, "[IJf the State alleges the existence of prior
convictions and the defense not only fails to specifically object but agrees with the
State's depiction of the defendant's criminal history, then the defendant waives the right
to challenge the criminal history after sentence is imposed." Id. at 94. Sentencing
courts can rely on defense acknowledgment of prior convictions without further proof. In
re Pers. Restraint of Cadwallader, 155 Wn.2d at 873.
I
I
6
No. 31389-1-111
State ~. Matheny
During the sentencing hearing, Mr. Matheny's attorney agreed with the offender
score as calculated: "We're not contesting the fact that the offender score is nine, for
purposes of moving forward." RP at 114. Mr. Matheny signed an acknowledgement of
the criminal history and the points calculation, admitting that his offender score was
nine. Neither Mr. Matheny nor his attorney challenged the inclusion of any of the crimes
listed in Mr. Matheny's criminal history or offender score. Under Bergstrom, Mr.
Matheny waived the right to challenge his criminal history. Thus, the court did not err in
imposing a standard range sentence based on an offender score of nine.
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:
Lawrence-Berrey, J.
7