IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE STATE OF WASHINGTON, ) No. 72410-0-1 ) Respondent, ) ) v. ) ) YEMANE TEKLAIWELDESELASE, ) UNPUBLISHED OPINION ) r-7 CUT*

V.WAppellant. ) FILED: November23,2015 ^ ) Verellen, A.C.J.

— Yemane Weldeselase claims his counsel was ineffective for failing to argue at sentencing that his first degree burglary, second degree assault, and felony violation of a court orderconvictions constituted the same criminal conduct. We conclude counsel's failure to argue same criminal conduct at sentencing constituted deficient performance. A reasonable probability exists that, had counsel so argued, the sentencing courtwould have determined that his second degree assault and felony violation of a no-contact orderconvictions constituted the
same criminal conductfor purposes ofcalculating Weldeselase's offender score. The State concedes thatWeldeselase's sentence for felony violation of a court orderexceeds the trial court's sentencing authority underthe Sentencing Reform Act, chapter 9.94A RCW. We acceptthe State's concession. We affirm Weldeselase's convictions, but remand for a new sentencing hearing.No. 72410-0-1/2
FACTS 

### Weldeselase and his wifeLuulaAraya have three children together. In February 2012, Weldeselase and Araya separated when Araya obtained a nocontact order againstWeldeselase. 

### In October2013, Araya returned home late one evening afterwork. As Araya exited her car, Weldeselase grabbed her. Weldeselase told Araya that he had a gun and ordered her to open the front door ofthe house. Araya refused. Weldeselase choked Araya and pushed her into the door. Araya's niece heard noise outside and 

### opened the front door. Weldeselase held Araya's wrist as they entered the home. Once inside, Weldeselase tookAraya into theirdaughter's bedroom. 

### Weldeselase pushed Araya onto their daughter's bed. Theirdaughter stood in the
corner ofthe bedroom. Weldeselase grabbed Araya and began punching her inthe face. Weldeselase broke Araya's nose and leftbruises on herface. When their daughter attempted to intervene, Weldeselase hither. 

### The State charged Weldeselase withone count of firstdegree burglary, two counts ofsecond degree assault, one count offelony violation of a court order, and
one count offourth degree assault. The State alleged Weldeselase committed these offenses against a family or household member and within sight or sound ofthe victim's minor child. Ajury convicted Weldeselase of first degree burglary, two counts offourth degree assault, felony violation of a court order, and one count ofsecond degree assault. Thejury found by special verdict thatWeldeselase's convictions for firstNo. 72410-0-1/3 

### degree burglary, felonyviolation of a court order, and second degree assault constituted an aggravated domestic violence offense. At sentencing, the court accepted the State's offender score calculation of 

### eight points, whichwas the same foreach ofWeldeselase's threefelonyconvictions.1 Defense counsel did not argue thatthe three felonies constituted the same criminal 

### conduct under RCW 9.94A.589. The court imposed concurrent sentences at the top ofthe standard range: 102 months for firstdegree burglary, 82 months for felony violation of a court order, and 70 months for second degree assault. Weldeselase appeals. ANALYSIS Ineffective Assistance Weldeselase contends his counsel was ineffective for failing to argue at sentencing that his first degree burglary, second degree assault, and felony violation of a court orderconvictions constituted the same criminal conductfor purposes of calculating his offender score. We agree as to the second degree assault and felony violation of a no-contact order convictions. We review ineffective assistance claims de novo.2 Both the state and federal constitutions guarantee criminal defendants the right to effective assistance of



### 1Foreach felony conviction, four points were assessed forthe othertwo felony convictions. Weldeselase's convictions for fourth degree assault counted two points, and his two prior domestic violence convictions counted two points. 2State v. Sutherbv. 165 Wn.2d 870, 883, 204 P.3d 916 (2009).No. 72410-0-1/4 

### counsel.3 To establish an ineffective assistance claim, a defendant must show deficient performance and resulting prejudice.4 Counsel's performance is deficient if it falls "below an objective standard of 

### reasonableness."5 To establish deficient performance, the defendant must showthe absence of any conceivable legitimate tactic supporting counsel's action.6 We 

### strongly presume thatcounsel's performancewas reasonable.7 But failure to argue that several crimes encompass the same criminal conduct can constitute deficient 

### performance.8 To establish prejudice, the defendant must show there is a reasonable probability that, butfor the deficient performance, the outcome would have been 

### different.9 "A reasonable probability is a probability sufficient to undermine confidence in the outcome."10 The trial court generally counts multiple current offenses separately for offender score purposes unless the offenses encompass the same criminal


### 3State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260(2011). 4Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Nichols, 161 Wn.2d 1, 8, 162 P.3d 1122 (2007). 5State v. Townsend. 142 Wn.2d 838, 843-44, 15 P.3d 145 (2001). 6 Grier, 171 Wn.2d at 33. 7Strickland, 466 U.S. at 690; State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). 

### 8State v. Saunders, 120 Wn. App. 800, 824-25, 86 P.3d 232 (2004) (defense counsel's decision not to argue same criminal conduct as to the defendant's rape and kidnapping offenses constituted ineffective assistance). 9 Nichols, 161 Wn.2dat8. 10 Strickland, 466 U.S. at 694; State v. Jones, 183 Wn.2d 327, 339, 352 P.3d 

### 776 (2015) ("'reasonable probability'"means "byless than a more likelythan not standard").No. 72410-0-1/5 conduct.11 Offenses that are considered the same criminal conduct are scored as 

### one offense.12 Current offenses involvethe same criminal conduct when they "require the same criminal intent, are committed at the same time and place, and 

### involve the same victim."13 "Ifany element is missing, the crimes do notconstitute 

### the same criminal conduct."14 We construe same criminal conduct "narrowlyto disallow most claims that multiple offenses constitute the same criminal act."15 Weldeselase's offenses occurred within a limited time period and atthe same place. InState v. Davis, the defendantwas convicted ofattempted first degree 

### murder and firstdegree assault.16 The assault occurred on a cabin's deck and along
an adjacent beach. The attempted murder occurred inside the cabin and on the beach. The Davis court determined that where "the different physical locations are adjacent and within a short distance ofeach other," the offenses involve the same 

### place forsame criminalconduct purposes.17 As in Davis, Weldeselase's offenses occurred within a shortdistance ofeach other. The felony violation of a court order initiallyoccurred inthe driveway as Araya exited her car, the burglary initially occurred as Weldeselase pulled Araya through the front door ofthe home while holding herwrist, and the second degree assault occurred inthe daughter's bedroom. 

### 11 RCW9.94A.589(1)(a). 12 id, 13 id 14 State v. Wright. 183 Wn. App. 719, 732-33, 334 P.3d 22 (2014). 15 State v. Graciano. 176Wn.2d 531, 540, 295 P.3d 219 (2013). 

### 16 174 Wn. App. 623, 628, 300 P.3d 465 (2013). 17 Id. at 644.No. 72410-0-1/6 

### The second degree assault and felonyviolation of a court order offenses 

### involved the same victim, Araya, butWeldeselase's burglary offense didnot. In State


### v. Lesslev. the defendant was convicted of, among other crimes,first degree burglary andfirst degree kidnapping.18 On appeal, Lessley argued hisburglary and kidnapping offenses were the same criminal conduct.19 The Lesslev court 

### determined the offenses did notinvolvethe samevictim.20 Although the kidnapping conviction involved one victim,the burglary "victimized" several victims who "were 

### asleep in their home when Lessley pounded on the doorin the middle of the night, and
. . .were presentwhen he barged inbrandishing a revolver."21 Becausethe burglary involved more than one victim, the Lesslev court concluded the offenses did
not constitute the same criminal conduct.22 

### As in Lesslev, the burglary victimized both Araya and her daughter. Araya's 

### daughterwas awake in the home when Weldeselase pulled Araya through the front door by the wrist. She was also present inthe bedroom when Weldeselase 

### assaulted Araya. Because the burglary involved more than one victim, itwas notthe

same criminal conduct as the other offenses. 

### Weldeselase committed the second degree assault and the felony violation of
a court orderat the same time and place and againstthe same victim. The only



### 18 118 Wn.2d 773, 776, 827 P.2d 996 (1992). 19 id, 20 Id, at 779. 21 id 22 Id.No. 72410-0-1/7 issue is whetherWeldeselase committed these offenses with the same criminal intent. 

### To determine whether multiple offenses share the same criminal intent, we consider "how intimately related the crimes committed are,"23whether "the criminal 

### intent, when viewed objectively, changed fromone crime to the next,"24 and "'whether


### one crime furthered the other.'"25 We may also considerwhetherthe crimes were part of the same scheme or plan and whetherthe defendant's criminalobjectives 

### changed.26 Crimes may also involve the same criminal intentifthey were part of a continuing, uninterrupted sequence of conduct.27 We conclude there is a reasonable probability thatthe sentencing courtwould determine the offenses were committed withthe same criminal intent. Thefelony violation of a court order and the second degree assaultwere part of a continuing, 

### uninterrupted sequence ofconduct.28 Areasonable probabilityexists that the court would conclude Weldeselase's objective criminal purpose was to assaultAraya: he grabbed herthe moment she exited the car, pulled her by the wrist into the home, 

### and struck her several times in the face.29 There is a reasonable probabilitythat the

23 State v. Burns, 114Wn.2d 314, 318, 788 P.2d 531 (1990). 24Wright, 183 Wn. App. at 734. 25 id, (quoting State v.Vike. 125 Wn.2d 407, 411, 885 P.2d 824 (1994)). 26 State v. Calvert. 79 Wn. App. 569, 578, 903 P.2d 1003 (1995). 27 State v. Porter, 133 Wn.2d 177, 186, 942 P.2d 974 (1997). 

### 28 See id, at 185-86 (defendant's drug sales "occurred in a continuing, uninterrupted sequence ofconduct as part of a recognizable scheme to sell drugs"). 

### 29 See State v. Adame, 56 Wn. App. 803, 810-11, 785 P.2d 1144 (1990).No. 72410-0-1/8 

### court would determine the felony violation of a court orderfurthered the offense of second degree assault.30 

### We conclude counsel's failure to argue same criminal conduct at sentencing constituted deficient performance. There is a reasonable probability that, had 

### counsel so argued, the court would have found that the second degree assault and felony violation of a court orderoffenses encompassed the same criminal conduct. 

### Therefore, we must remand for a new sentencing hearing. On remand, the trial court has full discretion to determine ifWeldeselase's offenses constitute the same criminal conduct. Sentence forFelony ViolationofCourt Order 

### Weldeselase contends, and the State concedes, that his sentence for felony violation of a court orderexceeds the statutory maximum. We agree thatthe trial court exceeded its sentencing authority and acceptthe State's concession. We review whether a "trialcourt has exceeded its statutory authority" under 

### the Sentencing Reform Act de novo.31 "Atrial court may only impose a statutorily authorized sentence."32 "Ifthe trial courtexceeds itssentencing authority, its actions

are void."33



### 30 See State v. Phuong, 174 Wn. App. 494, 548, 299 P.3d 37 (2013) (where defendant dragged the victim from her car, through the garage, and upstairs to his bedroom, the court could determine that defendant's convictions for unlawful imprisonment and attempted rape constituted the same criminal intent). 

### 31 State v. Murray, 118 Wn. App. 518, 521, 77 P.2d 1188 (2003). 32 State v. Paulson, 131 Wn. App. 579, 588, 128 P.3d 133 (2006). 33 Id.No. 72410-0-1/9 

### Felonyviolation of a court order carries a statutory maximumsentence offive 

### years' imprisonment.34 Weldeselase's sentencefor hisfelony violation of a court orderconviction was 82 months, exceeding the statutory maximum by more than two
years. CONCLUSION 

### We concludeWeldeselase's counsel rendered ineffective assistance byfailing to argue same criminal conduct at sentencing. BecauseWeldeselase received 

### ineffective assistance, we remand for resentencing, where counsel can argue that the second degree assault and felony violation of a court orderoffenses encompass the
same criminal conduct. On remand, the sentence forfelony violation of a court order 

### shall be corrected to not exceed the statutory maximum. 

### We affirm Weldeselase's convictions, but remand for a new sentencing hearing.

WE CONCUR: 

# "j7\cAev/y ^J

34 RCW 26.50.110(4); RCW 9A.20.021 (1)(c).