State of Washington v. Bryan Jacob Storms

Court: Court of Appeals of Washington
Date filed: 2018-08-14
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                                                                        FILED
                                                                     AUGUST 14, 2018
                                                                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. 35295-1-III
                     Respondent,              )
                                              )
       v.                                     )
                                              )
BRYAN JACOB STORMS,                           )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       FEARING, J. — This appeal requires us to address the prerogatives of the trial court

when resentencing an offender on directions from the Court of Appeals when an error

occurred in the initial sentence. We hold that the trial court did not engage in

vindictiveness when resentencing appellant Bryan Storms and that Storms’ sentencing

counsel did not engage in ineffective assistance of counsel when advocating during

resentencing. Therefore, we affirm the sentence imposed by the trial court during

remand.

                                          FACTS

       On February 10, 2013, Bryan Storms sped from a pursuing police officer. State v.

Storms, No. 32653-5-III (Wash. Ct. App. Jan. 31, 2017) (unpublished),

http://www.courts.wa.gov/opinions/pdf/326535_unp.pdf. Storms ran through a stop sign

in his Honda Civic, smashed into a pickup truck, and sent the truck into the air before it
No. 35295-1-III
State v. Storms


struck a telephone pole. The driver of the pickup truck died at the scene. Storms’ two

passengers, Ron Martel and Lynn Blumer, suffered injuries. Storms fled the collision

scene on foot.

                                       PROCEDURE

       The State of Washington charged Bryan Storms with vehicular homicide, two

counts of vehicular assault, failure to remain at the scene of an accident-fatality (hit and

run) and third degree driving while license suspended. Vehicular homicide, under RCW

46.61.520, constitutes a three alternative means crime. The State alleged all three

methods of violating the statute: the vehicular homicide occurred (1) while under the

influence of intoxicating liquor or a drug, (2) while recklessly driving, or (3) while

driving in disregard for the safety of others.

       The seriousness level of the offense of vehicular homicide, for purposes of

sentencing, depends on the means by which the offender committed the offense. RCW

9.94A.515 ranks crimes in order of seriousness with the higher the Roman numeral

assigned the more serious the offense. The highest level is XVI. The statute assigns the

following seriousness levels to vehicular homicide:

              XI
              ....
              Vehicular Homicide, by being under the influence of intoxicating
       liquor or any drug (RCW 46.61.520)
              ....
              VIII
              ....

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State v. Storms


              Vehicular Homicide, by the operation of any vehicle in a reckless
       manner (RCW 46.61.520)
              VII
              ....
              Vehicular Homicide, by disregard for the safety of others (RCW
       46.61.520)

Former RCW 9.94A.515 (2012). Note that driving while under the influence warrants

the highest seriousness level for sentencing.

       RCW 46.61.522 also classifies vehicular assaults into the same three means of

driving while under the influence, driving recklessly, and driving with disregard for the

safety of others. In turn, the seriousness of the offense, for purposes of sentencing,

depends on which of the three methods by which the offender committed the crime.

              IV
              ....
              Vehicular Assault, by being under the influence of intoxicating
       liquor or any drug, or by the operation or driving of a vehicle in a reckless
       manner (RCW 46.61.522)
              ....
              III
              ....
              Vehicular Assault, by the operation or driving of a vehicle with
       disregard for the safety of others (RCW 46.61.522).

Former RCW 9.94A.515. The State alleged that Bryan Storms committed each vehicular

assault count in all three ways.

       The State also alleged an aggravating factor for each charge based on Storms’

multiple current offenses and a high offender score resulting from numerous earlier

convictions. Storms suffered twenty-nine prior convictions. Finally, the State alleged the

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No. 35295-1-III
State v. Storms


aggravator that the victim in the second count of vehicular assault, Lynn Blumer, suffered

injuries more substantial than required to establish the crime.

       Before trial on the other charges, Bryan Storms pled guilty to driving while license

suspended. The jury convicted Storms on all remaining charges. Jury interrogatories for

the vehicular homicide count and the two vehicular assault counts indicated the jury’s

unanimous agreement that Storms committed each crime by all three methods alleged in

the charging documents: driving while under the influence of intoxicants, driving in a

reckless manner, and driving with disregard for the safety of others. The jury also found,

in a special verdict, that Lynn Blumer’s injuries for the second count of vehicular assault

substantially exceeded the level of bodily harm necessary to establish the crime.

       At the initial sentencing, the trial court ran the vehicular homicide and the two

vehicular assault convictions consecutive to each other because the Sentencing Reform

Act of 1981, chapter 9.94A RCW, deems each crime a violent crime. The trial court,

however, ordered the hit and run conviction to run concurrent with the other offenses.

The court found substantial and compelling reasons to impose an exceptional sentence

upward of 448 months.

       Bryan Storms appealed his convictions and sentence. He argued that the trial

court should have suppressed as evidence the results of his blood draw and that

insufficient evidence supported the basis for the exceptional sentence. On appeal, this

court concluded that sufficient evidence supported the exceptional sentence but agreed

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No. 35295-1-III
State v. Storms


with Storms that the trial court should have suppressed the blood draw because exigent

circumstances did not excuse the requirement of obtaining a warrant. Therefore, while

this court ruled that sufficient evidence supported the alternative “reckless manner” and

“driving in disregard for the safety of others” prongs of vehicular homicide, this court

ruled that insufficient evidence supported the “under the influence of alcohol or any

drug” prong. Because the seriousness levels of convictions for vehicular homicide and

vehicular assault increase if one drives while intoxicated, this court remanded the case to

the trial court for resentencing on the other two prongs of the two crimes. Former RCW

9.94A.515. The vacation of the convictions based on driving while intoxicated reduced

Storms’ standard range resentence for the vehicular homicide conviction from 210 to 280

months to 108 to 144 months.

       Resentencing proceeded before the original sentencing court. At the resentencing

hearing, defense counsel noted:

              I think we can kind of cut to the chase here. Everything was
       affirmed in this case by the Court of Appeals except that the under the
       influence prong was stricken. You don’t get to ask for the same sentence.
       They didn’t say you can ask for additional time on your aggravators.
              ....
              So what I did I thought was just this is what the Court said. We have
       — we take the sentence that was before. We subtract the difference
       between the vehicular homicide under the influence and reckless driving,
       and there we have our sentencing range.
              If you look at the low end of the reckless driving prong, it’s 144
       months. The 84 months on each of the vehicular assault charges, you get
       312 months. If you use the low end of the sentencing range, 63 months for


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No. 35295-1-III
State v. Storms


       each of the vehicular assault and 108 for the vehicular homicide reckless
       driving.
              I think that’s what the Court said. That’s period. The Court said the
       aggravators are affirmed. The other issues were affirmed. The exceptional
       sentence was affirmed.

Report of Proceedings (RP) at 6-7.

       During resentencing, Bryan Storms spoke to the sentencing court, during which

allocution he took responsibility for his past actions, listed the changes in his behavior,

and touted his ability to beneficially contribute to society if given the chance. Numerous

family members spoke on Storms’ behalf.

       The resentencing court sentenced Bryan Storms to the high end of the range on

each conviction, while finding substantial and compelling reasons to impose an

exceptional sentence. Although the court, at the first sentencing, ran the hit and run

conviction concurrent to the other convictions, on remand the court ran the conviction

consecutive to the other counts, resulting in a total sentence of 432 months, or 36 years,

instead of the original 448 months, or 37.33 years. The sentencing court commented:

               So the Court does stand on its earlier sentence. I lowered the
       sentence because the standard range is lower, but I do believe they should
       all run consecutive based on both of those aggravating factors.

RP at 15.

                                  LAW AND ANALYSIS

       In this second appeal, Bryan Storms attacks his recent sentence on two grounds.

First, his trial counsel performed ineffectively during the resentencing. Second, the trial

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State v. Storms


court acted vindictively during resentencing. We reject both arguments.

                       Insufficiency of Trial Counsel Representation

       On appeal, Bryan Storms argues his trial counsel performed ineffectively when

failing to oppose the resentencing court’s running of the sentence for the conviction for

hit and run consecutively with his convictions for vehicular homicide and the vehicular

assaults. He also relatedly contends that his trial counsel failed in his representation by

omitting to reference, for the court, In re Personal Restraint of Mulholland, 161 Wn.2d

322, 166 P.3d 677 (2007) in order to inform the court of its ability to exercise discretion

in imposing an exceptional downward sentence. To review Storms’ claims of ineffective

assistance of counsel, we must first review the relevant sentencing law.

       Under RCW 9.94A.535(2) the sentencing court may impose an exceptional

sentence upward, even without a jury finding, under certain listed circumstances,

including an offender score above the grid, such as the score of Bryan Storms. That

subsection reads:

              Aggravating Circumstances—Considered and Imposed by the Court
              The trial court may impose an aggravated exceptional sentence
       without a finding of fact by a jury under the following circumstances:
              ....
              (c) The defendant has committed multiple current offenses and the
       defendant’s high offender score results in some of the current offenses
       going unpunished.




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No. 35295-1-III
State v. Storms


Under RCW 9.94A.535 the sentencing court may impose an exceptional sentence

upward, with a jury finding, under certain listed circumstances, including excessive

injury to a victim. That statutory provision declares:

              (3) Aggravating Circumstances—Considered by a Jury—Imposed
       by the Court
              Except for circumstances listed in subsection (2) of this section, the
       following circumstances are an exclusive list of factors that can support a
       sentence above the standard range. Such facts should be determined by
       procedures specified in RCW 9.94A.537.
              ....
              (y) The victim’s injuries substantially exceed the level of bodily
       harm necessary to satisfy the elements of the offense. This aggravator is
       not an exception to RCW 9.94A.530(2).

       RCW 9.94A.589, a section of the Sentencing Reform Act, addresses consecutive

and concurrent sentences when the sentencing court sentences the offender to more than

one conviction.

              Consecutive or concurrent sentences.
              (1)(a) Except as provided in (b), (c), or (d) of this subsection,
       whenever a person is to be sentenced for two or more current offenses, the
       sentence range for each current offense shall be determined by using all
       other current and prior convictions as if they were prior convictions for the
       purpose of the offender score. . . .
              ....
               (b) Whenever a person is convicted of two or more serious violent
       offenses arising from separate and distinct criminal conduct, the standard
       sentence range for the offense with the highest seriousness level under
       RCW 9.94A.515 shall be determined using the offender’s prior convictions
       and other current convictions that are not serious violent offenses in the
       offender score and the standard sentence range for other serious violent
       offenses shall be determined by using an offender score of zero. The
       standard sentence range for any offenses that are not serious violent
       offenses shall be determined according to (a) of this subsection. All

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No. 35295-1-III
State v. Storms


       sentences imposed under this subsection (1)(b) shall be served
       consecutively to each other and concurrently with sentences imposed under
       (a) of this subsection.

       Bryan Storms first contends that trial counsel was ineffective in not opposing the

trial court’s act of running the hit and run conviction sentence consecutive to the sentence

on the other convictions. Remember that the sentencing court ran the hit and run

sentence concurrent with the vehicular homicide and vehicular assault convictions during

the initial sentencing, but then changed its mind on resentencing.

       We disagree that trial counsel failed to argue that the hit and run sentence should

continue to run concurrent with the other convictions. Counsel told the resentencing

court to take the same sentence as initially meted and subtract the difference between the

vehicular homicide seriousness level for the under the influence prong from the reckless

driving prong. Although counsel did not expressly tell the court to run the hit and run

sentence concurrently, counsel strongly implied such with her comments. The trial court

knew that Bryan Storms wanted a concurrent sentence. The trial court obviously knew it

could impose a concurrent sentence because it did so before and this appellate court never

reversed that part of the sentencing.

       Bryan Storms next argues that trial counsel at resentencing performed

ineffectively when failing to inform the sentencing court that it held discretion to

consider imposing concurrent sentences. In making this argument, Storms relies on In re

Personal Restraint of Mulholland, 161 Wn.2d 322 (2007). In Mulholland, the jury

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No. 35295-1-III
State v. Storms


convicted Daniel Mulholland of six counts of first degree assault and one count of drive-

by shooting, all “serious violent offenses” under RCW 9.94A.589(1)(b). The statutory

subsection states that sentences for multiple serious violent offenses shall be served

consecutively. The sentencing court concluded it lacked discretion to run any of the

sentences concurrently and so the court ran all of the sentences on the convictions

consecutively. The state high court held the trial court committed error when refusing to

consider running serious violent offenses sentences concurrently as an exceptional

sentence if it found mitigating factors justify such a downward sentence.

       This appeal differs from In re Personal Restraint of Mulholland. Most notably,

Bryan Storms’ hit and run charge is not a serious violent offense. Storms’ vehicular

homicide and vehicular assault charges are violent offenses. RCW 9.94A.030(55)(xiii),

(xiv). Hit and run, death resulting, is a nonviolent offense. RCW 9.94A.030(34).

Whereas in Mulholland, the statutory presumption ran charges consecutively, here, the

statutory presumption runs violent and nonviolent offenses concurrently. RCW

9.94A.589(1)(a) provides in part, “[s]entences imposed under this subsection shall be

served concurrently. Consecutive sentences may only be imposed under the exceptional

sentence provisions of RCW 9.94A.535.” Thus, counsel did not need to rely on

Mulholland to advise the court that it had discretion to impose a concurrent sentence

because the statute already dictated such a result. Furthermore, the sentencing judge

originally ordered the hit and run count four to run concurrently which shows the court

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No. 35295-1-III
State v. Storms


was aware of its ability to impose such a sentence. On remand, the court simply chose

not to do so. Counsel cannot be faulted for this change.

       The Sixth Amendment to the United States Constitution guarantees an accused the

right to legal counsel in criminal trials. Strickland v. Washington, 466 U.S. 668, 685-86,

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Washington’s Constitution also grants an

accused in a criminal prosecution the right to appear by counsel. WASH. CONST. art. I, §

22. To meaningfully protect an accused’s right to counsel, an accused is entitled to

effective assistance of counsel. Strickland v. Washington, 466 U.S. at 686.

       To establish ineffective assistance of counsel on resentencing, Storms must show

that (1) his counsel’s performance was deficient, and (2) the deficient performance

prejudiced him. State v. Calhoun, 163 Wn. App. 153, 168, 257 P.3d 693 (2011);

Strickland v. Washington, 466 U.S. at 687. Deficient performance is performance falling

below an objective standard of reasonableness based on consideration of all the

circumstances. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).

Reasonable conduct for an attorney includes carrying out the duty to research the relevant

law. Strickland v. Washington, 466 U.S. at 690-91. Prejudice occurs when, but for

counsel’s deficient performance, there is a reasonable probability that the sentence would

have differed. State v. Calhoun, 163 Wn. App. at 168. An accused’s failure to establish

either prong defeats an ineffective assistance of counsel claim. Strickland v. Washington,

466 U.S. at 687.

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No. 35295-1-III
State v. Storms


       We conclude that Bryan Storms’ trial counsel did not perform ineffectively. We

also conclude that the trial court’s decision would not have changed had counsel taken

the steps suggested by Storms. Therefore, Storms shows no prejudice.

       Bryan Storms also states the trial court’s sentencing violated the provisions of

RCW 9.94A.589. Storms fails to explain, however, how the court ran afoul of the statute.

As noted above, the statute provides that multiple sentences for violent and nonviolent

offenses are to be served concurrently unless the sentence is an exceptional one pursuant

to RCW 9.94A.535. RCW 9.94A.589(1)(a). In this case, the State of Washington

alleged multiple aggravating factors that support an exceptional sentence. The sentencing

court relied on the presence of those factors when rendering its resentencing decision.

The court declared: “I do believe they should all run consecutive based on both of those

aggravating factors.” RP at 15. Thus, the court used RCW 9.94A.535 to impose an

exceptional sentence as RCW 9.94A.589 acknowledges.

                                      Vindictiveness

       Bryan Storms next argues that the trial court engaged in vindictiveness when

resentencing him. According to Storms, the change by the resentencing court of the

concurrent to consecutive sentence deprived him of the reduction of the standard range

imprisonment term for his vehicular homicide sentence and thereby robbed him of the

benefit of his successful appeal. Because the aggregate resentence fell lower than the

original sentence, we disagree.

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State v. Storms


       When the same trial judge presides over two or more trials and the last sentence is

more severe than the earlier one, a rebuttable presumption of trial court vindictiveness

applies. State v. Ameline, 118 Wn. App. 128, 133, 75 P.3d 589 (2003). The due process

clause of the Fourteenth Amendment prohibits a judge from vindictively imposing an

increased sentence to punish a defendant for successfully exercising his constitutional

right to appeal. State v. Ameline, 118 Wn. App. at 132-33. Thus, the presumption guards

against vindictiveness in the resentencing process. Alabama v. Smith, 490 U.S. 794, 799,

109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989); Chaffin v. Stynchcombe, 412 U.S. 17, 25, 93

S. Ct. 1977, 36 L. Ed. 2d 714 (1973). Application of the presumption is limited to

circumstances when there is a reasonable likelihood that an unexplained increase in

sentencing is the product of actual vindictiveness on the part of the sentencing authority.

Alabama v. Smith, 490 U.S. at 799. When no such reasonable likelihood exists, a

defendant has the burden of proving actual vindictiveness without aid of the presumption.

Alabama v. Smith, 490 U.S. at 799-800.

       We deem State v. Larson, 56 Wn. App. 323, 324, 783 P.2d 1093 (1989)

controlling. A jury convicted Lawrence Larson of first degree murder, second degree

rape, and first degree arson. The court sentenced Larson to consecutive sentences of 281

months for the murder, 41 months for the rape, and 41 months for the arson, all within the

standard range for the crimes. The total aggregate sentence was 363 months, or thirty

years and three months. The court, however, made the sentence exceptional by ordering

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No. 35295-1-III
State v. Storms


the sentences to be served consecutively. The sentencing court failed to enter findings to

support an exceptional sentence so the appellate court remanded for resentencing.

       On remand, in State v. Larson, the trial court stated that it originally intended to

sentence Larson to a thirty-year sentence and that the consecutive sentences achieved that

end. Ultimately, the court resentenced Larson to 360 months for the murder with the

other two charges concurrent for an aggregate sentence of 360 months or thirty years.

Lawrence Larson appealed again and argued that the trial court wrought vindictiveness

when the court increased his murder sentence from 281 months to 360 months. This

court rejected the argument on two grounds. First, Larson was not entitled to the

presumption of vindictiveness because, even though the court increased the murder

sentence, Laron’s revised aggregate sentence was less severe than the original sentence.

Second, the trial court explained the increase in the murder sentence when annunciating

its original sentencing intent. This court cited numerous federal decisions for the

proposition that the presumption of trial court vindictiveness never arises when the

aggregate period of incarceration remains the same or is reduced on remand. See United

States v. Cochran, 883 F.2d 1012 (11th Cir. 1989); United States v. Pimienta-Redondo,

874 F.2d 9 (1st Cir. 1989); United States v. Gray, 852 F.2d 136 (4th Cir. 1988); United

States v. Bentley, 850 F.2d 327 (7th Cir. 1988); United States v. Diaz, 834 F.2d 287 (2d

Cir. 1987); United States v. Cataldo, 832 F.2d 869 (5th Cir. 1987); United States v.

Hagler, 709 F.2d 578 (9th Cir. 1983).

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No. 35295-1-111
State v. Storms


       Bryan Storms' original sentence was 448 months' confinement. Storms' sentence

on resentencing is 432 months. Since the revised sentence is lower than the first, the

presumption of trial court vindictiveness does not apply. Storms does not point to any

other indicia of vindictiveness.

                                     CONCLUSION

       We affirm the trial court's resentencing of Bryan Storms.

       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.




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