Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                                                               FILED

                                                                           JAN 26, 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

STATE OF WASHINGTON,                           )       No. 29091-3-III
                                               )
                      Respondent,              )
                                               )
                      v.                       )       Division Three
                                               )
JOHN LEWIS EBERLY, JR.,                        )
                                               )
                      Appellant.               )       UNPUBLISHED OPINION

       Korsmo, J.  --  John Eberly Jr. challenges the trial court's determination that his 

convictions for first degree burglary and second degree assault did not constitute the same 

criminal conduct.  The trial court did not abuse its discretion.  We affirm.

                                            FACTS

       Mr. Eberly engaged in a heated argument with his neighbor, Muriel Vermillion, 

about a gate that Ms. Vermillion believed blocked access to her property.  Later that day 

Ms. Vermillion returned home and saw Mr. Eberly's truck behind some trees.  She 

hurried into her house and locked the door.  Mr. Eberly followed; she yelled for him to 

leave. Instead, he came on the porch and shook the door while yelling at her. 

No. 29091-3-III
State v. Eberly

       Ms. Vermillion heard a gunshot and looked through the living room window.  She 

saw Mr. Eberly on the porch with a pistol in his hand.  A second shot shattered the 

window and struck Ms. Vermillion in the hip.  Mr. Eberly then forced open the front door 

and fell into the living room, still holding his gun.  Ms. Vermillion described him as 

highly intoxicated.  She believed he was trying to kill her.

       A fight ensued.  The two eventually landed on the floor with Ms. Vermillion on 

top.  He lost control of the gun.  She grabbed a hatchet and hit him on the foot with the 

blunt end, causing him to scream in pain.  She ran upstairs to call for aid, but found that 

there was no dial tone.  Mr. Eberly eventually left.  Ms. Vermillion drove to a neighbor's 

house and summoned aid.

       The prosecutor filed charges of attempted first degree murder, first degree 

burglary, and first degree assault.  Mr. Eberly testified that he went to Ms. Vermillion's 

house to give her a key to the gate and instead had to defend himself against attack.  He 

was not intoxicated at that time, but did drink heavily to deal with the pain of the hatchet 

injury.  Counsel argued the case on a theory of self-defense.

       The jury was unable to reach a verdict on the attempted murder count.  It did find 

Mr. Eberly guilty of first degree burglary and of the inferior degree offense of second 

degree assault.  The jury also concluded both crimes were committed with a firearm. 

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No. 29091-3-III
State v. Eberly

       At sentencing, the trial court determined that the two crimes did not constitute the 

same criminal conduct.  The State sought an exceptional sentence, but the trial court 

imposed concurrent high-end standard range sentences.

       Mr. Eberly timely appealed to this court.

                                         ANALYSIS

       The sole issue presented by this appeal, although argued in two separate manners, 
is whether the two crimes constituted the same criminal conduct for scoring purposes.1

We conclude that the trial court did not abuse its discretion in finding the two offenses 

did not constitute the same criminal conduct.

       Except in the circumstance of serious violent crimes, the Sentencing Reform Act 

of 1981 (SRA), chapter 9.94A RCW, directs a trial judge to count the other crimes being 

sentenced as part of the offender score for each other crime, but then have the sentences 

for the crimes run concurrently with each other.  RCW 9.94A.589(1).  This requirement 

is generally referred to as the "multiple offense policy." State v. Batista, 116 Wn.2d 777, 

786-787, 808 P.2d 1141 (1991).  An exception to the requirement that each crime be 

       1 Mr. Eberly has filed a lengthy, neatly written Statement of Additional Grounds.  
The document largely reiterates his version of the events.  However, he has presented no 
legal argument and no authority to suggest what errors he believes occurred at trial.  
Under the circumstance, there is nothing for us to review.  RAP 10.10(c); Accord, RAP 
10.3(a)(6); Ang v. Martin, 154 Wn.2d 477, 486-487, 114 P.3d 637 (2005). 
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No. 29091-3-III
State v. Eberly

added to the offender score exists if a trial judge finds multiple current offenses 

constituted the "same criminal conduct." In that instance, the multiple offenses are to be 

treated as one crime for scoring purposes.  RCW 9.94A.589(1)(a).  "'Same criminal 

conduct' as used in this subsection, means two or more crimes that require the same 

criminal intent, are committed at the same time and place, and involve the same victim."  

Id. Crimes have the same criminal intent if, objectively viewed, one crime furthered the 

other.  State v. Lessley, 118 Wn.2d 773, 777, 827 P.2d 996 (1992).

       A judge's ruling with respect to a "same criminal conduct" determination is 

reviewed for abuse of discretion.  State v. Elliott, 114 Wn.2d 6, 17, 785 P.2d 440, cert. 

denied, 498 U.S. 838 (1990).  Discretion is abused if it is exercised on untenable grounds 

or for untenable reasons.  State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 

(1971).  Discretion exercised in violation of a statute is untenable and amounts to an 

abuse of discretion.  Council House, Inc. v. Hawk, 136 Wn. App. 153, 159, 147 P.3d 

1305 (2006); State v. Rundquist, 79 Wn. App. 786, 793, 905 P.2d 922 (1995), review 

denied, 129 Wn.2d 1003 (1996).  

       Typically, the failure to challenge an offender score calculation waives the issue 

"where the alleged error involves an agreement to facts, later disputed, or where the

alleged error involves a matter of trial court discretion."  State v. Wilson, 170 Wn.2d 682, 

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No. 29091-3-III
State v. Eberly

689, 244 P.3d 950 (2010) (quoting In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 

874, 50 P.3d 618 (2002)).  Because he did not object or argue the ruling in the trial court, 

Mr. Eberly has waived a direct challenge to the ruling.  Nonetheless, we will address the 

claim because he has alternatively argued that his counsel was ineffective for failing to 

object to the ruling.

       Effectiveness of counsel is judged by the two prong standard of Strickland v. 

Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).  That test is whether or 

not (1) counsel's performance failed to meet a standard of reasonableness, and (2) actual

prejudice resulted from counsel's failures.  Id. at 690-692.  In evaluating ineffectiveness 

claims, courts must be highly deferential to counsel's decisions and there is a strong 

presumption that counsel performed adequately.  Id. at 689-691.  When a claim can be 

disposed of on one ground, a reviewing court need not consider both Strickland prongs.  

State v. Foster, 140 Wn. App. 266, 273, 166 P.3d 726, review denied, 162 Wn.2d 1007 

(2007).

       Whether or not appellant has satisfied the first Strickland prong is dependent on 

whether or not the court had to find the two crimes constituted the same criminal conduct.  

The answer to that question is "no" for two reasons.  The first is the existence of RCW 

9A.52.050.  That statute provides:

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No. 29091-3-III
State v. Eberly

       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.

       This statute was applied in the context of a "same criminal conduct analysis" in 

Lessley.  The court concluded that it gives the trial court authority to punish two crimes 

separately even if they would otherwise encompass the same criminal conduct.  118 

Wn.2d at 782-783.

       The second reason that the same criminal conduct argument fails is found in the

definition of the phrase: the crimes must be committed at the same time and place, 

involve the same victim, and have the same intent -- i.e., they further one another.  RCW 

9.94A.589(1)(a); Lessley, 118 Wn.2d at 777.  While these crimes shared the same victim 

and location, they did not satisfy the other elements of the same criminal conduct test.

       First, the crimes did not occur at the same time.  Instead, they were sequential.  

Ms. Vermillion was assaulted by the gunshot into the living room window.  Mr. Eberly 

then committed the burglary by smashing the front door and unlawfully entering the 

living room.  The time element was not the same.  Instructive in this regard is Lessley.  

There the defendant broke into a house at gunpoint and kidnapped a woman inside.  The 

Washington Supreme Court confirmed that the burglary and kidnapping offenses did not 

constitute the same criminal conduct.  118 Wn.2d at 778.  One reason was that the two 

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No. 29091-3-III
State v. Eberly

offenses were in different locations at different times.  The burglary was accomplished in 

the home, but the kidnapping only began there and continued through the various 

locations where the defendant took the victim over the next several hours.  Id. While

here the two offenses occurred close in time one after the other, they were not co-

temporal.

       The sequential nature of the offenses also helps explain why they did not share the 

same intent.  The assault was completed before the burglary occurred.  Ms. Vermillion 

was over at the window, not the front door, when she was shot.  The wounding did not 

assist in the forced entry that constituted the burglary.  Similarly, the burglary, committed 

after the assault was complete, did not further the assault.  If anything, the burglary 

furthered the attempted murder count, but that charge was never proven to the jury's 

satisfaction.  Neither crime furthered the commission of the other offense.  Accordingly, 

they did not share the same criminal intent.

       Counsel understandably did not make a same criminal conduct argument because 

it would have been unavailing under the facts of the case.  Mr. Eberly has not established 

that his counsel failed to perform to the standard of the profession.  Because he has failed 

to establish the first Strickland prong, we need not consider the second prong.  Foster, 

140 Wn. App. at 273.  The ineffective assistance claim is without merit.

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No. 29091-3-III
State v. Eberly

       Affirm.

       A majority of the panel has determined this opinion will not be printed in the 

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No. 29091-3-III
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Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040.

                                            _________________________________
                                                           Korsmo, J.

WE CONCUR:

______________________________
       Kulik, C.J.

______________________________
       Sweeney, J.

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