FILED
OCTOBER 16,2014
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. 32160-6-111
Respondent, )
)
v. )
)
JOHN LEE BURNS, ) UNPUBLISHED OPINION
)
Appellant. )
SIDDOWAY, C.J. - John Lee Bums, having partially succeeded in appealing the
results of his 2010 criminal trial, now appeals the results of his resentencing. He
contends that the resentencing court, while lenient in applying the low end of the
applicable sentencing ranges and running several fIrearm enhancements concurrently,
erred by failing to exercise its discretion under the burglary anti merger statute to treat his
burglary and robbery convictions as encompassing the same criminal conduct.
It is more accurate to say that the sentencing court did not explain on the record its
consideration of same criminal conduct and the burglary anti merger statute. Mr. Bums
does not demonstrate that the trial court failed to exercise its discretion. And the State
correctly points out that Mr. Burns's crimes would not qualify as same criminal conduct
in any event. We affIrm.
No. 32160-6-II1
State v. Burns
FACTS AND PROCEDURAL BACKGROUND
John Lee Bums was convicted following a 2010 trial of one count of first degree
burglary, three counts of first degree kidnapping, and four counts of first degree robbery
for his role in a December 2009 home invasion robbery. The jury found by special
verdict that he had committed all of the offenses while armed with a firearm.
Three of the robbery counts against Mr. Bums and his codefendant, Jessup
Tillmon, were reversed on appeal. State v. Burns, noted at 167 Wn. App. 1032,2012 WL
1203822, at *1, review denied, 175 Wn.2d 1007 (2012). As explained in the parties'
sentencing memoranda and the decision in the initial appeal, several men broke into a
home at approximately 4:00 a.m. and forced the seven people present in the home to
gather in the dining room while the robbers ransacked other parts of the home. Although
the robbers stole property from many rooms in the home, only one victim was robbed
before being forced into the dining room. Yet at trial, the to-convict robbery instruction
identified only one means for committing first degree robbery: that the defendant or an
accomplice unlawfully took personal property" 'from the person ofanother.'" Id. at *2.
For three of the victims, the State's evidence established only that the robbers had
unlawfully taken personal property "'in the presence'" of another. Id. at *3.
Under the law of the case doctrine, the State bore the burden of proving that Mr.
Bums committed robbery by the means stated in the jury instruction. Id. Given
insufficient evidence in light of the incomplete jury instructions, Division Two of our
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No. 32160-6-III
State v. Burns
court vacated the two defendants' convictions of three of the robbery counts along with
the associated firearm enhancements. It remanded to the trial court with instructions to
dismiss those counts and to resentence the two men on the one burglary, one robbery, and
three kidnapping counts that remained.
Neither Mr. Bums nor Mr. Tillmon had any prior criminal history that counted
toward their offender scores. The State conceded that Mr. Bums and Mr. Tillmon
appeared to have been less culpable than the other individual or individuals involved in
the crimes. The break-in was of short duration, no one was injured, and the crime
appears to have been drug related, since the robbers stated they were looking for "weed"
during the course of the robbery, and left the home with a half pound of marijuana.
Report of Proceedings (Nov. 2, 2012) at 16.
In sentencing the two men in 2010, the trial court applied the low end of the
standard range for each count. It also imposed an exceptional downward sentence on
both men by running some of the firearm enhancements concurrently, although in this
connection, it treated Mr. Tillmon, who had called 911 and turned himself in after the
robbery, more favorably. It provided that all of Mr. Tillmon's 60-month firearm
enhancements would run concurrently. Mr. Bums had been tracked by a K-9 unit after
the robbery and arrested, and the court provided that three of his firearm enhancements-
those associated with the kidnapping counts-would run consecutively.
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No. 32160-6-111
State v. Burns
The two defendants' resentencing took place in 2012 and was conducted by a
different judge. At resentencing the State asked, for the counts that remained, that the
sentencing court treat each defendant as the trial court had, thereby continuing to treat Mr.
Bums more harshly. Mr. Bums's lawyer asked the trial court to treat both men equally, as
did both individual defendants when invited to speak. The court was persuaded to treat
Mr. Burns more like Mr. Tillmon, applying the low end of the sentencing range and this
time running only two of the 60-month firearm enhancements consecutively.
At no point in the 25-page transcript of the resentencing hearing is there mention
by any party or the sentencing court of the burglary antimerger statute or same criminal
conduct. Mr. Bums timely appealed.
ANALYSIS
The only assignment of error raised by Mr. Bums following the resentencing is
that the sentencing court erred ''when it calculated the defendant's offender score without
first exercising its discretion in determining the application of the burglary anti-merger
statute." Br. of Appellant at 1.
The three kidnappings were serious violent offenses involving different victims
and would be served consecutively to each other and concurrently with the other
sentences imposed for Mr. Bums's current offenses. RCW 9.94A.589(l)(b). The
standard sentence range for Mr. Bums's most serious crime--in this case, one of the
kidnapping offenses-was determined using Mr. Bums's prior convictions and other
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No. 32160-6-III
State v. Burns
current convictions that were not serious violent offenses in the offender score, while the
sentence range for the other serious violent offenses were determined by using an
offender score of zero. Id. Applying the low end of the standard range, Mr. Bums's
aggregate term of confinement for the three kidnapping counts and two 60-month firearm
enhancements exceeded the term of confinement for the sentences for current offenses
that would run concurrently, and amounted to 294 months (72 + 51 + 51 + 60 + 60).
Mr. Bums focuses on appeal on the fact that the 72-month term imposed for the
first kidnapping count was based on an offender score of four, which was in tum based
on attributing two points each to his current burglary and robbery convictions. Yet if the
resentencing court had treated the burglary and robbery as encompassing the same
criminal conduct, he argues, the burglary and robbery would have been counted as one
crime, his offender score would have been two, and the low end of the standard range
would have been 62 months, reducing his total term of confinement by 10 months. Br. of
Appellant at 9.
'" Same criminal conduct,' ... means two or more crimes that require the same
criminal intent, are committed at the same time and place, and involve the same victim."
RCW 9.94A.589(l)(a). Under Washington's Sentencing Reform Act of 1981, "[I]fthe
court enters a finding that some or all of the current offenses encompass the same
criminal conduct then those current offenses shall be counted as one crime." Id. The
same-criminal conduct test focuses on the extent to which a defendant's criminal intent,
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No. 32160-6-III
State v. Burns
as objectively viewed, changes from one crime to the next. State v. Lessley, 118 Wn.2d
773, 777, 827 P .2d 996 (1992). The defendant bears the burden of proving that his
offenses encompass the same criminal conduct. State v. Williams, 176 Wn. App. 138,
142,307 P.3d 819 (2013), review granted, 180 Wn.2d 1001 (2014).1
Yet the burglary antimerger statute provides:
Every 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. The statute gives a trial judge discretion to punish a burglary
separately, even where the burglary and another crime encompassed the same criminal
conduct. State v. Knight, 176 Wn. App. 936, 962, 309 P.3d 776 (2013) (citing Lessley,
118 Wn.2d at 781-82), review denied, 179 Wn.2d 1021 (2014).
Mr. Bums concedes that it was "well within the trial court's discretion under the
burglary anti-merger statute to treat the burglary as a separate offense," but "it was not
within the court's discretion to simply ignore the issue." Br. of Appellant at 9. He argues
that "by failing to address this issue, the trial court abused its·discretion to either apply or
not apply the burglary anti-merger statute." ld. Mr. Bums cites State v. Grayson, 154
1 The State makes a threshold argument that RAP 2.5(a) precludes appellate
review because Mr. Bums did not argue at resentencing that the court should exercise its
discretion under the burglary antimerger statute to treat the burglary and the robbery as
the same criminal conduct. Since we intend to address the challenge on the merits, we
will not analyze whether we could refuse to review it under RAP 2.5(a).
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No. 32160-6-III
State v. Burns
Wn.2d 333,341-42, 111 P.3d 1183 (2005) for the well settled principle that a sentencing
court abuses its discretion when it "categorically refuses" to exercise discretion; it is
similarly well settled that a sentencing court'sfailure to recognize its discretion is
appealable error. See, e.g., In re Pers. Restraint ofMulholland, 161 Wn.2d 322, 333, 166
P.3d 677 (2007). But here, unlike in Grayson or Mulholland, there is nothing in the
record to suggest that the resentencing court misunderstood its discretion or categorically
refused to exercise it.
A sentencing court does not have an obligation to issue findings of fact or
conclusions oflaw when sentencing under RCW 9.94A.589 or RCW 9A.52.050. See
State v. Kern, 55 Wn. App. 803, 806, 780 P.2d 916 (1989). Because the court was not
required to make findings, its silence on this possible sentencing issue is not appealable.
And Mr. Bums fails to demonstrate any error or abuse of discretion.
While that suffices to resolve the appeal, the State also argues persuasively that
"[w ]hile the burglary and robbery appear to have had the same objective criminal intent
and occurred at the same time and place, nevertheless they did not involve the same
victims." Br. ofResp't at 5. The victims of a burglary include the occupants of a
residence and their guests-in this case, a total of seven people. State v. Davison, 56 Wn.
App. 554, 559-60, 784 P.2d 1268 (1990). Even the State's information charged Mr.
Bums with robbery of only four people and, of course, three of his convictions for
robbery were vacated and dismissed as a result of the initial appeal. Both Davison and
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No. 32160-6-111
State v. Burns
State v. Davis, 90 Wn. App. 776, 954 P.2d 325 (1998) hold that a burglary of a home in
which more than one person is present does not have the same victims for "same criminal
conduct" purposes as an assault against one of the persons present in the course of the
burglary. The same is true of a burglary having seven victims and a robbery during the
course of the burglary having only one victim, or even four. The trial court could not
have found that the burglary and the robbery were the same criminal conduct. 2
Affirmed.
A majority of the panel has determined 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:
~\(j
2In a pro se statement of additional grounds for review (SAG), Mr. Bums
contends that the trial court erred in not providing the jurors with a special verdict form
requiring them to specify which robbery the jurors relied upon in finding him guilty of
kidnapping "with the intent to facilitate commission of any felony or flight thereafter."
SAG at 1. The general rule is that a defendant is prohibited from raising issues on a
second appeal that were or could have been raised on the first appeal. State v. Sauve, 100
Wn.2d 84, 87,666 P.2d 894 (1983); State v. Jacobsen, 78 Wn.2d 491,493,477 P.2d 1
(1970). Mr. Bums challenged the sufficiency of evidence to sustain his robbery
convictions in his initial appeal and could have raised this related issue at that time as
well. The convictions for kidnapping are final and his challenge will not be considered
on appeal of his resentencing.
8