### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II STATE OF WASHINGTON, No. 54424

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v. HENRY ANTHONY SADOWSKI, UNPUBLISHED OPINION Appellant.
W ORSWICK , J.

— Henry Sadowski appeals his sentence for bail jumping . He argues the trial court should have counted two prior convictions as the same criminal conduct when calculating his offender score and that his offender score must be recalculated in light of State v. Blake , 197 Wn.2d 170 , 481 P.3d 521 (2021) . Sadowski also seeks reversal of his conviction in a Statement of Additional Grounds (SAG) for Review

. We agree that Blake requires us to remand for resentencing, but otherwise affirm

. FACTS In 2020, Sadowski was convicted of bail jumping and sentenced to 44 months confinement. At sentencing, t he trial court determined that Sadow s ki’s 2009 convictions for second degree robbery and third degree assault did not constitute the same criminal conduct for purposes of calculating his offender score in 2020

. According to the probable cause statement supporting Sadowski’s 2009 arrest , Sadowski and Frank McKinley asked J. Ewing to drive them to a grocery store for beer. On the way back from the store, McKinley grabbed and choked Ewing

. Ewing stopped the car and was forced out Filed Washington State Court of Appeals Division Two May 25, 2021No. 54424

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of it

. Sadowski then threw a beer bottle at Ewing, which hit and cut Ewing’s head. Sadowski and McKinley left in Ewing’s car, which t hey burned and abandoned

. Ewing identified McKinley in a photo montage

. Sheriff’ s deputies found McKinley and Sadowski together in a ca r during a traf fic stop. Both denied being part of a robbery, but Sadowski acknowledged he had been with McKinley the night of the incident , and the deputies arrested both men

. Sadowski was charged with and pleaded guilty to second degree robbery, third de gree assault, and first degree malicious mischief in the Pierce County Superior Court

. The trial court did not find that any of the offenses were the same criminal conduct

. In the instant case , Sadowski was charged with second degree burglary in Thurston
C ounty. He po sted bond and was released after signing document s promising to appear for all scheduled hearing s . Sadowski appeared for a scheduled hearing in July 2018 , but the trial court continued the he aring date to August. Sadowski signed the continuance order , which warned that if he failed to appear at the rescheduled hearing he could be arrest ed and prosecute d for bail jumping. Sadowski failed to appear for the rescheduled August hearing , and the trial court issued a bench warrant for his arrest. A few da ys later, t he State filed an amended information adding a bail jumping charge

. Five months later, Sadowski was arrested on the bench warrant. Sadowski again posted bail, was released, and appeared for all subsequent hearings. Just b efore trial, the Stat e dismiss ed the burglary charge , so the parties proceeded to a bench trial on the bail jumping charge only.No. 54424

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Sadowski testified that he failed to ap pear at the August 2018 hearing because he did not have transportation and was sick

. Sadowski acknowledged , however, that he was not sick the entire five

- mo nth period until his arrest. He also explained that he had to rely on other people or public transportation for rides, but nothing had physically prevented him from going to court. Sadowski conceded that h e had no excuse for not appear ing or turn ing himself in

. In its closing argument, Sadowski’s counsel conceded the State proved that Sadowski was guilty of bail jumping

. 1 Counsel argued that circumstances beyond Sadowski’s control

— illn ess and lack of transportation

— excused his failure to app ear at the August 2018 hearing. But defense counsel acknowledged that Sadowski could not establish the uncontrollable circumstances affirmative defense to bail jumping because there was no evidence that he

“ appeare d or surrendered as soon as the circumstances [preventing his appearance] ceased [ to exist ] .” Verbatim Report of Proceedings (VRP) (Jan. 2, 2020) at 51

- 52; RCW 9A.76.170(2)

. The trial court convicted Sadowski of bail jumping. At sentencing , Sadowski asked the court to find that his 2009 convictions for second degree burglary, third degree assault, and first degree malicious mischief constituted the same criminal conduct for purposes of calculating his offender score. Sadowski a rgued the offenses occu rred at “ the same time, in the same place, involved the same victim, and . . . [his] overall criminal intent remained the same throughout the incident.” Suppl emental Clerk’s Papers ( Supp. CP ) at 53.

1 Sadowski’s counsel explained at sentencing that he chose to concede guilt to lay the groundwork for seeking an exceptional downward sentence at the penalty phase. The transcript indicates Sadowski “nod [ ded ] affirmatively” to this explanation. Verbatim Report of Proceedings ( VRP ) (Jan. 16, 2020) at 64.No. 54424

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Sadow s ki also requested an exceptional sentence below t he standard range , asserting that

a standard range sentence would be excessive punishment for missing a single hearing

. Sadowski included a declaration from a p retrial services employee, Kelley McIntosh, showing his compliance history, including that he called p retrial services on the date of the missed hearing to explain that he had no transportation

. In response, the State countered that the 2009 offenses did not constitute the same criminal conduct pri marily because they did not occur at the same time. Relevant to this appeal, the State argued Sadowski “had already thrown [Ewing] out of the vehicle and committed the robbery” before assaulting him with the bottle. Suppl. CP at 73. The trial court agreed with the State , concluding that Sadowski did not meet his burden of showing that any of the 2009 offenses constituted the same criminal conduct. Sadowski ’s criminal history included a prior conviction for possession of a controlled substance, which added one point to his offender score. Based on an 8 point offender score, the trial court sentenced him to 44 months, the low end of the 43

- 57 month standard range.
A fter Sadowski was sentenced, our Supreme Court decided State v. Blake , holding that Washington’s strict liability drug possession statute, RCW 69.50.4013(1), violates state and federal due process clauses , and therefore is void. 197 Wn.2d at 195. Sadowski appeals his sentence . He also seeks reversal of his conviction in a SAG.No. 54424

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. O FFEN DER S CORE A. Same Criminal C onduct Principles and Standard of Review A trial court calculating an offender score must address whether any prior offenses constitute the same criminal conduct. State v. Valencia , 2 Wn. App. 2d 121 , 125, 416 P.3d 1275 (2018). “ [F] or . . . prior adult offenses for which sentences were served concurrently, the current

s entencing court must determine ‘ whether those offenses shall be counted as one offense or as separate offenses ’ ” under RCW 9.94A.589( 1)(a)’s same criminal conduct analysis

. Id. at 125

- 26 (quoting RCW 9.94A.525(5)(a)(i)).

“ [ T ] wo o r more offenses constitute the ‘same criminal conduct’ when they ‘ require the same criminal intent, are committed at the same time and plac e, and involve the s ame victim.’ ” Id. at 125 (quoting State v. Aldana Graciano , 176 Wn .2 d 531, 540, 295 P.3d 219 (2013)); RCW 9.94A.525(5)(a)(i)). The defendant bears the burden of proving that two or more offenses constitute the same criminal conduct. Valencia , 2 Wn. App. 2d at 125. If the defendant fails to show any one of the elements , the offenses will be deemed separate criminal conduct. Aldana
Graciano , 176 Wn .2d at 540

. And the same criminal conduct “ ‘ statute is generally construed narrowly to disallow most claims that multiple offenses co nstitute the same criminal act.’” State
v. Hatt , 11 Wn. App. 2d 113, 142, 452 P.3d 577 (2019) (quoting State v. Porter , 133 Wn.2d 177, 181, 942 P.2d 974 (199 7 )). We review de novo the trial court’s offender score calculation but r eview underlying factual determinations for an abuse of discretion

. State v. Johnson , 180 Wn. App. 92, 100, 320 P.3d 197 (2014)

. We, thus , review the trial court’s same criminal conduct determination forNo. 54424

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abuse of discretion. Aldana Graciano , 176 Wn .2d at 53 6

. A trial court abuses its discretion i n this context “ when the record supports only one conclusion on whether crimes constitute the ‘same criminal conduct.’” Id . at 537

- 38. But “w here the record adequately supports either conclusio n, the matter lies in the court’ s discretion. ” Id. at 538. If an offender score error “affects the applicable sentencing range, resentencing is required.” State v. Kilgore , 167 Wn.2d 28, 41, 216 P.3d 393 (2009).
1

. Whether the Robbery and Assault Occurred at the Same Time According to Sadowski, the trial court abused its discretion because under Washington’s “transactional” view of robbery, the robbery was not complete when Sadowski and McKinley threw Ewing out of the car

. Br. of Appellant at 5. Sadowski claims that t hrowing the bottle at Ewing was the force that complete d the robbery because it helped them effect their escape

. We disagree.

“ Multiple offenses will be treated as occurring at the same time if the y are ‘ part of a continuous, uninterrupted sequence of co nduct ove r a very short period of time.’” Valencia , 2
Wn. A pp. 2d at 126 (quoting Porter , 133 Wn .2 d at 183 ). And multiple offenses do not occur at the same time where one offense was complete before the next began. See State v. Knight , 176 Wn. App. 936, 96 1

- 6 2, 309 P.3d 776 (2013). Sadowski is correct that Washington courts “ have adopted a ‘transactional’ analysis of robbery, whereby the force or threat of force need not pre cisely coincide with the taking” and “[t] he taking is ongoing until the assailant has effected an escape .” State v. Truong , 168 Wn.
A pp. 529, 535

- 36, 277 P.3d 74 (2012 )

. Accordingly, “The definition of ‘ robbe ry’ . . . includes

‘ violence during flight imm ediately following the taking.’” State v. Thomas , 192 Wn . App. 721,No. 54424

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725, 371 P.3d 58 (2016) (quoting State v. Manchester , 57 Wn

. App. 765, 770, 790 P.2d 217 (1990) ); see also RCW 9A.56.190 , 210.
In Knight , this court held that a robbery and assault did not occur at the same time for purposes of the same criminal conduct test where the defendant took the victim’s ring at gunpoint and had not yet fled the victim’s h ome when an accomplice assaulted the victim.
176 Wn. App. at 96 1

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. “ Knight removed the ring from Charlene’ s finger while [ an accomplice ] held the firearm

. ” Id. at 961. Then, another accomplice demanded Charlene tell them where the family’s safe was located, and “kick[ed] Charlene in the head in an attempt to get the safe

. ” Id. This court adopted the trial court’s reasoning that “‘[T]he robbery . . . of the ring

.

. . was completed before the assault[]

. . . occurred. Therefore . . . [the robbery and assault did] not occur at the same time

. ’ ” Id. at 960 (quoting report of proceedings ) (emphasis in original)

. The trial court did not abuse it s discretion by concluding that here, as in Knight , the robbery was complete before the assault

. 176 Wn. App. at 962

. U nder the transactional view of robbery, t he record supports the conclusion that choking Ewing met the force requirement and forcing Ewing out of the car met the taking requirement. See Truong , 168 Wn. A pp. at 535

- 36. And although Sad owski claims that throwing the bottle was part of the ongoing robbery offense because it was an act of force that helped Sadowski and McKinley escape, the record also supports the inference that Ewing’s ejection from the car while Sadowski and McKinley remained inside effectively clinched their escape. These facts support a conclusion that the robbery was complete and the defendants poised to escape before Sadowski thr ew the bottle at Ewing’s head.No. 54424

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E ven if the record equally supports the conclusion that the assault and robbery occurred at the same time, that would not be sufficient for reversal

. See Aldana Graciano , 1 76 Wn.2d at
537

- 38. Sadowski has not met his burden of establishing that the only supportable conclusion is that the offenses occurred at the same time. We therefore affirm the trial court’s conclusion that the robbery was complete before the assault and the two offenses did not occur at the same time

. Because we conclude that the trial court did not abuse its discretion by finding that the offenses did not take place at the same time, we do not consider the other statutory elements of same criminal conduct

. Id. at 540.
We hold that Sadowski has not shown that the trial court erred when it ruled that the 1990 robbery and assault convictions did not constitute same criminal conduct.
II. S TATE V B LAKE After Sadowski was sentenced , our Supreme Court decided Blake , holding that Washington’s strict liability drug possession statute, RCW 69.50.4013(1), violates state and federal due process clauses and therefore is void. 197 Wn.2d at 195. A defendant cannot be convicted based on a void statute. See State v. Rice , 17 4 Wn.2d 884, 893, 279 P.3d 849 (2012); see also State v. Carnahan , 130 Wn. App. 159, 164, 122 P.3d 187 (2005). “ Moreover, a sentence that is based upon an incorrect offender score is a fundamental defect that inherently results in a miscarriage of justice. ” In re Goodwin , 146 Wn.2d 861, 868, 50 P.3d 618 (2002)

. Sadowski’s criminal history includes a conviction for possession of a controlled
substance that increased his offender score. That conviction is now void under Blake , and cannot be included in his offender score. Because Sadowski was sentenced under an incorrect offender score, he must be resentenced.No. 54424

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9 III. S TATEMENT OF A DDITIONAL G ROUNDS A. Matters Outside the Record Sadowski asserts that the State engaged in selective prosecution because it broug ht the bail jumping charge after dismissing the burglary charge. According to Sadowski, the State hoped he would miss a hearing so it could bring the bail jumping charge. Under State v. McFarland , “if a defendant wishes to raise issues on appeal that requ ire evidence or facts not in the existing trial record, the appropriate means of doing so is through a personal restraint petition .” 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Sadowski points to no facts or evidence in the record that he was treated diffe rently than other similarly situated defendants or that the State had an improper motivation, both of which he would need to prevail on a selective prosecution claim. State v. Terrovonia , 64 Wn. App. 417, 422, 824 P.2d 537 (1992). Sadowski could raise th is claim in a personal restraint petition, but we do not further consider this argument here.
B. Other Arguments
1. Ineffective Assistance of Counsel Sadowski contends that his trial counsel provided ineffective assistance by failing to argue that Sadowski satisfied the uncontrollable circumstances affirmative defense

. Sadowski maintains his counsel should have argue d that he completely fulfilled his responsibility “ to be in contact with the court” by calling p retrial services and stating that he w as unable to appear in
court for the August 2018 hearing. SAG at 3. The Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution guarantee effective assistance of counsel. See Strickland v.No. 54424

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Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984) ; State v. Grier , 171 Wn.2d 17, 32, 246 P.3d 1260 (2011). Ineffective assistance of counsel is a two

- prong ed inquiry. Grier , 171 Wn.2d at 32. To prevail, Sadowski must show that his counse l ’ s performance was deficient, and that counsel ’ s defi cient performance prejudiced him

. Id. at 32

- 33. A failure to prove either prong ends our inquiry. State v. Hendrickson , 129 Wn .2d 61, 78, 917 P.2d 563 (1996). Appellate courts apply “exceptional def erence” when “ evaluating counsel’s strategic decisions,” and “ [ i ] f trial counsel ’ s conduct can be characterized as legitimate trial strategy or tactics, it cannot serve as a basis for a claim

. . . [of] ineffective assistance. ” State v. McNeal , 145 Wn.2d 352, 362, 37 P.3d 280 (2002)

. C alling pretrial services does not discharge a defendant’s duty to appear after missing a hearing. RCW 9A.76.170(2). Because Sadowski’ s suggested argument had no legal merit,

c ounsel strategic ally decided not to pursue a nonmeritorious defense and there was no deficient performance

. McNeal , 145 Wn.2d at 362

. This ineffective assistance of counsel claim fails.
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. Affirmative Defense Sadowski asserts that he should not have been convicted of bail jumping because he qualified for the uncontrollable circumstances affirmative defense. Sadowski emphasizes that he attended all the other hearings and intended to abide by the order to appear. The affirmative defense to bail jumping only applies where “ the pers on appeared or surrendered as soon as [the uncontrollable] circumstances ceased to exist .” RCW 9A.76.170(2). Sadowski admitted that he did not do so. The trial court thus properly convicted Sadowski of bail jumping , and this claim fails

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3 . McIntosh’s Testimony Sadowski suggests that his conviction must be reversed because the State should have presented the testimony of McIntosh, who worked for p retrial services and spoke with Sadowski on the phone when he called to explain his absence from the hearing

. But the State was under no obligation to introduce at trial evidence that would have helped Sadowski’ s defense . And to the extent Sadowski’s argument can be construed as an ineffective assistance of counsel claim on the grounds that his trial counsel fa iled to call McIntosh to testify about her conversation with Sadowski, that claim would also fail because Sadowski has not shown prejudice

. Sadowski testified that he contacted p retrial services on the day of the hearing to explain that he had no transpor tation to court. The State did not dispute that this conversation occurred. There is no reasonable possibility that the outcome of this trial would have been different if McIntosh also testified to the same conversation , thus, this claim fails

. In re Per

s. Restraint of Lui , 188 Wn.2d 525, 538 , 397 P.3d 90 (2017 ).
CONCLUSION We hold that the trial court did not err in ruling that none of the 2009 offenses constituted same criminal conduct , and Sadowski’s SAG presents no issues that merit reversal . However, Sadowski’s offender score must be recalculated under Blake , thus, we affirm Sadowski’s conviction, but remand to the trial court for resentencing.No. 54424

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A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.

______________________________ Worswick, J.
We concur:

________________________________ Lee, C.J.

_______________________________ _ Sutton, J.