FILED
DECEMBER 16, 2021
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. 37750-4-III
)
Respondent, )
)
v. ) PUBLISHED OPINION
)
DAHNDRE KAVAUGN WESTWOOD, )
)
Appellant. )
PENNELL, C.J. — Dahndre Westwood appeals his sentence for attempted rape,
burglary, and assault, arguing the sentencing range was erroneously inflated due to the
trial court’s failure to treat his convictions as the same criminal conduct. At sentencing,
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the court relied on State v. Chenoweth, 185 Wn.2d 218, 370 P.3d 6 (2016) to reject
Mr. Westwood’s same criminal conduct argument. As we explained in a prior
unpublished opinion, 1 Chenoweth’s same criminal conduct test does not apply outside
the narrow context of child rape and incest. In cases such as Mr. Westwood’s, involving
different statutes of conviction, the applicable test is State v. Dunaway, 109 Wn.2d 207,
743 P.2d 1237, 749 P.2d 160 (1987). We again remand for resentencing pursuant to
Dunaway.
FACTS
Dahndre Westwood broke into a home, attempted to rape a woman, and then
assaulted her when she resisted the attack. A jury later convicted Mr. Westwood of
attempted first degree rape, first degree burglary, and first degree assault. 2 At sentencing,
Mr. Westwood requested his three convictions be treated as the same criminal conduct.
Were the court to have granted this request, Mr. Westwood’s final sentence would
have been significantly reduced, based on a lower offender score and a requirement
of concurrent terms of incarceration. Relying on Chenoweth, the trial court denied
1
State v. Westwood, No. 35792-9-III (Wash. Ct. App. Mar. 19, 2020)
(unpublished) (Westwood II), https://www.courts.wa.gov/opinions/pdf/357929_unp.pdf.
2
The jury also convicted Mr. Westwood of second degree assault, but the trial
court dismissed this conviction on double jeopardy grounds. The State agreed with
dismissal.
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Mr. Westwood’s same criminal conduct request. The court ruled that because the three
convictions each carried a different statutory mens rea, they did not qualify for treatment
as same criminal conduct. The court imposed a total sentence of 213 months’
imprisonment, along with a $500 crime victim penalty assessment, a $200 criminal filing
fee, and a $100 DNA (deoxyribonucleic acid) collection fee.
Mr. Westwood appealed his judgment and sentence. In our prior unpublished
opinion, we generally affirmed Mr. Westwood’s convictions, but remanded for
resentencing on the same criminal conduct issue. See State v. Westwood, No. 35792-9-III,
slip op. at 2 (Wash. Ct. App. Mar. 19, 2020) (unpublished) (Westwood II), 3
https://www.courts.wa.gov/opinions/pdf/357929_unp.pdf. Westwood II held Chenoweth’s
same criminal conduct analysis is limited to the crimes of rape and incest. In other
contexts, we explained our Supreme Court’s earlier holding in Dunaway remains binding.
Dunaway held that the mens rea or intent component of the same criminal conduct
analysis is determined not by the statutory elements of the offense, but by whether the
3
Prior to the appeal in Westwood II addressing the same criminal conduct issue,
we issued a published decision, holding the trial court erroneously rejected the parties’
attempt, through a plea agreement, to resolve Mr. Westwood’s case short of trial. State v.
Westwood, 10 Wn. App. 2d 543, 448 P.3d 771 (2019) (Westwood I). We remanded in
Westwood I to allow entry of a plea, but retained jurisdiction to resolve remaining claims
if no valid plea occurred. On remand, Mr. Westwood rejected the State’s proposed plea.
We therefore issued our follow-up decision in Westwood II.
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defendant’s criminal intent, viewed objectively, “changed from one crime to the next.”
109 Wn.2d at 215. 4
Because we remanded the case for resentencing, we did not address the additional
claims of Mr. Westwood that the trial court erroneously imposed various legal financial
obligations (LFOs). Instead, we noted the court could address Mr. Westwood’s objections
to LFOs at resentencing.
After Westwood II but before resentencing, Division Two of this court issued
its decision in State v. Johnson, 12 Wn. App. 2d 201, 460 P.3d 1091 (2020), aff’d on
other grounds, 197 Wn.2d 740, 487 P.3d 893 (2021), which applied Chenoweth to
crimes beyond rape and incest. Johnson, 12 Wn. App. 2d at 211-13. On remand in
Mr. Westwood’s case, the State argued Johnson was binding precedent that effectively
overruled our prior opinion in Westwood II.
The trial court conducted a hearing at which it heard from the State, defense
counsel, Mr. Westwood, and the victim. The court took the matter under advisement
and subsequently issued a letter opinion, explaining it had decided “not [to] resentence”
Mr. Westwood. Clerk’s Papers at 71, Westwood II, No. 35792-9-III (Wash. Ct. App.).
4
The same criminal conduct analysis is set forth in RCW 9.94A.589(1)(a)
and includes three total components that ask if multiple crimes are the same in
terms of (1) intent/mens rea, (2) time and place, and (3) identity of victim.
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The trial court did not explain whether it agreed with the State that the essence of our
mandate had been overruled by Johnson. But the court also did not follow Westwood II,
which had directed it to look at Dunaway instead of Chenoweth. Rather than clarify
which appellate precedent it deemed binding, the court engaged in an independent
analysis of Chenoweth and determined that, under Chenoweth, it must assess the intent
component of the same criminal conduct analysis according to the legislature’s intent,
not the defendant’s. Id. at 65. Because the legislature had different purposes in punishing
assault, burglary, and rape, the trial court ruled the three offenses did not constitute the
same criminal conduct. Id. at 70.
Because the trial court did not conduct a resentencing hearing, it did not readdress
Mr. Westwood’s LFOs as contemplated by our prior decision.
Mr. Westwood again appeals.
ANALYSIS
Same criminal conduct
“The Sentencing Reform Act of 1981 (SRA)[, chapter 9.94A RCW,] imposes a
regime of structured discretion.” State v. Parker, 132 Wn.2d 182, 186, 937 P.2d 575
(1997). At the heart of the SRA is a sentencing grid, which sets forth a series of standard
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sentencing ranges applicable to all offenses of conviction. 5 The standard range is set by
the seriousness level of the defendant’s offense and the defendant’s offender score.
RCW 9.94A.510, .517. A defendant’s offender score is calculated using both current and
prior convictions. RCW 9.94A.589(1)(a). But not every conviction is included separately.
Convictions encompassing the same criminal conduct count as only one offense. Id.
In addition, current convictions that are considered the same criminal conduct must be
ordered to run concurrently. Id.
The SRA defines “same criminal conduct” as “two or more crimes that require
the same criminal intent, are committed at the same time and place, and involve the same
victim.” Id. The defendant bears the burden of proving multiple crimes constitute the
same criminal conduct. State v. Aldana Graciano, 176 Wn.2d 531, 539-40, 295 P.3d 219
(2013). Because the assessment of whether two crimes constitute the same criminal
conduct is fact intensive, we review a sentencing court’s decision in this context for
abuse of discretion. Id. at 535-36. The court necessarily abuses its discretion if it makes
a mistake of law. Council House, Inc. v. Hawk, 136 Wn. App. 153, 159, 147 P.3d 1305
5
There are actually two sentencing grids. One for most offenses, RCW 9.94A.510,
and one for drug offenses, RCW 9.94A.517.
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(2006). Legal issues are matters we review de novo. State v. Ramirez, 191 Wn.2d 732,
740, 426 P.3d 714 (2018).
The same criminal conduct test evokes the concept of double jeopardy. See
U.S. CONST. amend. V; WASH. CONST. art. I, § 9. Double jeopardy protects against not
only multiple convictions, but also multiple punishments. State v. Hancock, 17 Wn. App.
2d 113, 117, 484 P.3d 514, review denied, 198 Wn.2d 1005, 493 P.3d 739 (2021). This
aspect of double jeopardy is unique in that it does not encompass a freestanding right.
“The State has broad authority to extract multiple punishments for the same conduct.” Id.
“Double jeopardy provides no defense, so long as multiple punishments are consistent
with legislative intent.” Id. Assessing whether a defendant has been subject to multiple
punishments in violation of double jeopardy is “purely a matter of statutory
interpretation.” Id. Our review of a double jeopardy challenge is de novo. State v. Kelly,
168 Wn.2d 72, 76, 226 P.3d 773 (2010). Because double jeopardy is a constitutional
claim, it can be raised for the first time on appeal. Hancock, 17 Wn. App. 2d at 117.
While the same criminal conduct analysis brings to mind the concept of double
jeopardy, the two doctrines are distinct and require “a separate analysis.” State v. French,
157 Wn.2d 593, 611, 141 P.3d 54 (2006). Unlike a double jeopardy challenge, a same
criminal conduct claim is purely statutory and must be preserved in the trial court in order
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to generate a right of appeal. See In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 875,
50 P.3d 618 (2002). The essence of a same criminal conduct challenge is factual, not
legal. Aldana Graciano, 176 Wn.2d at 539-40. Thus, unlike what is true in the double
jeopardy context, our review is for abuse of discretion. Id. at 537. The Washington
Supreme Court has emphatically rejected a de novo standard in this context. Id.
For decades, the leading case in the same criminal conduct arena has been our
Supreme Court’s 1987 decision in Dunaway. 6 The Dunaway court adopted the analysis in
recent Court of Appeals decisions and held the “same criminal conduct” test turns on
whether the defendant’s objective manifestation of intent changed from one crime to the
next. 109 Wn.2d at 214-15. Although Dunaway used the word “intent” it did not do so in
a formalistic way, as one would do when discussing elements of an offense. See State v.
Adame, 56 Wn. App. 803, 810-11, 785 P.2d 1144 (1990) (“Intent, in this context, is not
the particular mens rea element of the particular crime, but rather is the offender’s
objective criminal purpose in committing the crime.”). We look to the objective purpose
6
The Supreme Court has repeatedly identified Dunaway as setting forth the
same criminal conduct analysis. See In re Pers. Restraint of Connick, 144 Wn.2d 442,
459, 28 P.3d 729 (2001), overruled in part on other grounds by In re Pers. Restraint
of Goodwin, 146 Wn.2d 861, 873-74, 50 P.3d 618 (2002); State v. Haddock, 141 Wn.2d
103, 112-13, 3 P.3d 733 (2000); State v. Garza-Villarreal, 123 Wn.2d 42, 46-47, 864
P.2d 1378 (1993); State v. Elliott, 114 Wn.2d 6, 16-17, 785 P.2d 440 (1990).
8
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of the defendant’s crime (e.g., to steal money or to kill another) to discern whether the
“same criminal conduct” test was met. See id.; Dunaway, 109 Wn.2d at 214-15.
The fact-intensive nature of Dunaway’s test has meant the same criminal conduct
analysis does not always yield an obvious result. Courts may look at “whether one crime
furthers the other or whether the offenses were part of a recognized plan or scheme” in
assessing intent. State v. Kloepper, 179 Wn. App. 343, 357, 317 P.3d 1088 (2014). The
various ways a trial court may assess intent under the same criminal conduct standard
does not mean there is a defect in the approach, it just means different finders of fact
might see things differently. This is fully consistent with the abuse of discretion standard
of review. A trial court does not abuse its discretion “where the record adequately
supports” a conclusion either for or against finding the same criminal conduct. Aldana
Graciano, 176 Wn.2d at 537-38.
In its 2016 decision in Chenoweth, our Supreme Court departed from the Dunaway
standard without specifically mentioning Dunaway. Chenoweth addressed the specific
issue of “whether the crimes of rape of a child and incest based on a single act are, as a
matter of law, considered the ‘same criminal conduct’ under the [SRA].” 185 Wn.2d at
219. Mr. Chenoweth was convicted of six counts of third degree child rape and six counts
of first degree incest. The victim was his daughter. The convictions were based on six
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separate incidents, with each incident being assigned both a rape and incest charge.
Mr. Chenoweth argued “that child rape and incest, based on a single act, as a matter
of law constitute the same criminal conduct.” Id. at 221. The Supreme Court disagreed,
recognizing the legislature indicated its intent that rape and incest be treated separately
by virtue of adopting distinct mens rea elements for each of the offenses.
Given Chenoweth did not address or analyze the standard recognized in Dunaway,
we cannot conclude Chenoweth implicitly overruled Dunaway. A later holding of the
Supreme Court will only overrule “a prior holding sub silentio when it directly contradicts
the earlier rule of law.” Lunsford v. Saberhagen Holdings, Inc., 166 Wn.2d 264, 280,
208 P.3d 1092 (2009). Here, there is no direct contradiction. Chenoweth specifically
addressed the limited issue of how a trial court should treat the simultaneous commission
of child rape and incest. Both parties asserted there was no discretion as to whether the
two offenses could be classified as one offense or two. According to the defense, the
two offenses must be treated the same; the State argued they had to be treated differently.
The Supreme Court sided with the State. We agree with Division One of this court that
Chenoweth is a narrow decision that must be limited to its specific statutory context.
State v. Hatt, 11 Wn. App. 2d 113, 143, 452 P.3d 577 (2019), review denied, 195 Wn.2d
1011, 460 P.3d 176 (2020). We respectfully disagree with Division Two’s application of
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Chenoweth outside of the context of child rape and incest. See Johnson, 12 Wn. App. 2d
at 211-13; State v. Smith, No. 50397-2-II, slip op. (unpublished portion) at 18-20
(Wash. Ct. App. Jan. 23, 2019), https://www.courts.wa.gov/opinions/pdf/D2%2050397-2-
II%20Published%20Opinion.pdf. 7
Turning to Mr. Westwood’s case, the sentencing court committed legal error (and
thereby necessarily abused its discretion) when, on remand, it analyzed Mr. Westwood’s
same criminal conduct argument under Chenoweth instead of Dunaway. 8 Given this error,
we again remand for resentencing pursuant to Dunaway. On remand, the trial court shall
exercise its discretion in determining whether, as a factual matter, Mr. Westwood’s
various offenses constitute the same criminal conduct. This exercise of discretion must
7
We are not bound by decisions issued by other divisions of the Court of Appeals.
In re Pers. Restraint of Arnold, 190 Wn.2d 136, 154, 410 P.3d 1133 (2018); In re
Marriage of Snider, 6 Wn. App. 2d 310, 315, 430 P.3d 726 (2018). “[P]rior Court of
Appeals decisions constitute persuasive, not binding authority.” Arnold, 190 Wn.2d at
150-51. Contrary to what was advanced by the State in the trial court, “one panel of the
Court of Appeals does not ‘overrule’ a decision of a previous panel.” Grisby v. Herzog,
190 Wn. App. 786, 808, 362 P.3d 763 (2015). “[O]nly the Supreme Court can overrule a
Court of Appeals decision.” Id. at 808-09.
8
Although the trial court’s overall decision regarding same criminal conduct is
reviewed for abuse of discretion, “discretion is abused” if it is “rooted in legal error.”
In re Petition for Order for Prot. of K.G.T., 16 Wn. App. 2d 787, 791, 483 P.3d 808
(2021).
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take place through the resentencing process, not simply through issuance of a written
order. See State v. McFarland, 18 Wn. App. 2d 528, 492 P.3d 829, 830, 833 (2021). 9
LFOs
In addition to challenging his sentence, Mr. Westwood contends the trial court
erroneously imposed a $200 criminal filing fee and $100 DNA collection fee. Under
2018 amendments to Washington’s LFO statutes, criminal filing fees cannot be imposed
on defendants who meet the statutory definition of indigence. RCW 36.18.020(2)(h).
In addition, DNA collection fees may no longer be imposed on individuals who have
previously submitted DNA samples. RCW 43.43.7541. The State concedes Mr.
Westwood is entitled to have the sentencing court assess imposition of LFOs under
the current statutory framework. We direct this matter be addressed on remand at
resentencing.
CONCLUSION
We reverse the trial court’s order on resentencing and remand for resentencing
consistent with the terms of this decision. At resentencing, the trial court shall exercise
9
In addition, the trial court calculated Mr. Westwood’s prior offender score to be
one and one-half, including a juvenile conviction for possession of methamphetamine.
Such convictions are now constitutionally invalid. State v. Blake, 197 Wn.2d 170, 195,
481 P.3d 521 (2021). Resentencing shall take into account the impact of Blake.
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its discretion to decide whether Mr. Westwood’s current convictions involved the same
criminal conduct. The trial court shall also determine the applicability of LFOs, based on
the recent changes to the LFO laws, and the impact of Blake on Mr. Westwood’s offender
score.
_________________________________
Pennell, C.J.
WE CONCUR:
____________________________
Siddoway, J.
Staab, J.
13