FILED 


JULY 21, 2015 


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. 32324-2-III 

) 

Respondent, ) 

) Division Three 

v. ) 

) 

DREW ANTHONY ZISSEL, ) UNPUBLISHED OPINION 

) 

Appellant. ) 

FEARING, J. - The burglary antimerger statute, RCW 9A.52.050, grants a 

sentencing court discretion to punish for burglary even when the burglary and a 

concurrent offense encompass the same criminal conduct. State v. Lessley, 118 Wn.2d 

773, 781, 827 P .2d 996 (1992). A jury convicted Drew Anthony Zissel of frrst degree 

robbery and first degree burglary. The trial court applied the antimerger statute and 

sentenced Zissel to concurrent sentences totaling 54 months. At sentencing, Zisse1 did 

not object to the application ofthe statute. 

On appeal, Drew Anthony Zissel contends the trial court erred when failing to 
No. 32324-2-111 

State v. Zissel 

count the two offenses as one crime when calculating his offender score. Zissel also 

contends he suffered ineffective assistance of trial counsel because his defense counsel 

failed to correct the trial court's sentencing error and the prosecutor's misstatement of the 

law. We hold that Zissel did not preserve the challenge of his offender score and does not 

show ineffective assistance of counsel. We affirm his sentence. 

FACTS 

Drew Anthony Zissel crawled through the window of a Yakima County drivethrough coffee stand, assaulted the barista, and stole money from the safe. 

PROCEDURE 

A jury convicted Drew Zissel of first degree robbery and first degree burglary. 

Because first degree robbery and first degree burglary are violent offenses, each counts as 

two points in the offender score. RCW 9.94A.030(54)(a)(i); RCW 9.94A.525(8); RCW 

9.94A.589(l)(a). Zissel had no prior criminal convictions. 

At Drew Anthony Zissel's sentencing hearing, the trial court used an offender 

score of two for each conviction, resulting in a presumptive sentence range of 41 to 54 

months for the robbery and 26 to 34 months for the burglary. RCW 9.94A.510; RCW 

9.94A.515. The State requested the high end of the range on each count. Zissel's counsel 

addressed the trial court and showed confusion regarding the sentences for violent crimes: 

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No. 32324-2-111 

State v. Zissel 

The Court is probably aware that there's an anti-merger statute there 

that is [inaudible on tape-muffled]. These are consecutive sentences and 

this-in addition to that the burglary charge is a class A felony and there is 

a very small amount oftime for good behavior on that, ten percent. 

Ifyou think that a forty-one month sentence on the burglary and 

twenty-six month sentence consecutive is a substantial and very, very, very 

huge amount oftime. Obviously Mr. Zissel will have a great deal of time to 

think but 1­

THE COURT: Well, I-I don't think that they run consecutively. I 

mean, they run concurrently but they count against each other even though 

they are the same criminal conduct. Am I correct in that regard [deputy 

prosecutor] Ramm? 

MR. RAMM: You are correct Your Honor. 


THE COURT: Okay. 


MR. RAMM: And they're violent offenses as opposed to serious 


violent and I don't think they have the same good time limitation of--often 

percent that serious violent has. 

Report of Proceedings (RP) at 582-83. 

During sentencing, the trial court noted the violent nature of the crimes and applied 

the burglary antimerger statute: 

I am going to impose the top ofthe range here. As to Count I-fiftyfour months and as to Count II-thirty-four months for a total sentence of 

fifty-four months. The burglary anti-merger statute operates in this 

particular instance to--although the-under the Sentencing Reform Act 

these two convictions would normally be considered the same criminal 

conduct and would not count one against the other[,] the burglary antimerger statute causes them to count one against the other and consequently 

Mr. Zissel's offender score is-is elevated by that-by that arithmetic. 

RP at 585. 

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No. 32324-2-III 

State v. Zissel 

LAW AND ANALYSIS 

Offender Score 

F or the first time on appeal, Drew Anthony Zissel argues that the trial court erred 

in counting the robbery in the offender score after allegedly finding that the robbery and 

burglary encompassed the same criminal conduct. Generally an issue that was not raised 

at trial may not be raised for the first time on appeal. State v. Nitsch, 100 Wn. App. 512, 

519,997 P.2d 1000 (2000); RAP 2.5(a). Because a sentencing court acts without 

statutory authority when it bases a sentence on a miscalculated offender score, however, a 

challenge of the offender score calculation may be allowable for the first time on appeal. 

In re Pers. Restraint ofGoodwin, 146 Wn.2d 861, 873-74, 50 P.3d 618 (2002); State v. 

Ross, 152 Wn.2d 220, 229, 95 P.3d 1225 (2004). The critical question is whether the 

alleged error is a legal error or whether it involves disputed facts or a matter of trial court 

discretion. Goodwin, 146 Wn.2d at 874. 

When an offender has multiple current offenses, the sentence range for each 

current offense generally is determined by counting all other current and prior convictions 

as if they were prior convictions. RCW 9.94A.52S(S)(a); RCW 9.94A.589(1)(a). Under 

RCW 9.94A.S89(1)(a), if, however, some or all of the current offenses encompass the 

same criminal conduct, those offenses are counted as one crime in the offender score. 

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No. 32324-2-111 

State v. Zissel 

RCW 9.94A.589(1)(a), in tum, yields to the burglary antimerger statute, which states that 

"[e ] very 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." RCW 9A.52.050; State v. Williams, 181 Wn.2d 795,799,336 P.3d 1152 

(2014). 

A trial court's decision whether or not to apply the burglary anti merger statute 

involves an exercise of discretion. State v. Lessley, 118 Wn.2d at 781 (1992). Likewise, 

application of the same criminal conduct statute involves factual determinations and the 

exercise ofjudicial discretion. Nitsch, 100 Wn. App. at 523. Here, defense counsel 

apparently accepted the fact that the burglary antimerger statute applied and did not object 

to the trial court's decision to treat the two crimes separately under the antimerger statute 

even though they encompassed the same criminal conduct. Because the trial court's 

decision involved factual determinations and the exercise of discretion, defense counsel's 

failure to object did not preserve the alleged error for appeal. Goodwin, 146 Wn.2d at 

874-75; Nitsch, 100 Wn. App. at 523. 

EFFECTIVENESS OF COUNSEL 


Drew Anthony Zissel next contends his trial counsel was ineffective because 


counsel did not correct the trial court's alleged sentencing error and did not challenge the 


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No. 32324-2-111 

State v. Zissel 

prosecutor's agreement with the trial court's alleged misstatement of the law. 

To prevail on a claim of ineffective assistance of counsel, Drew Zissel must show 

that his counsel's performance was deficient and that the deficiency prejudiced him. 

State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3 d 177 (2009); Strickland v. Washington, 466 

U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). We presume counsel is 

effective, and Zissel must show there was no legitimate reason for his attorney's actions. 

State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). He proves neither deficient 

performance nor prejudice. 

According to Drew Zissel, the trial court erred in treating the burglary and robbery 

separately after finding that they encompassed the same criminal conduct. Zissel also 

contends the prosecutor erroneously agreed with the judge that the current convictions 

would count against each other. These assertions are incorrect. The trial court exercised 

its discretion within the law when he applied the burglary antimerger statute to punish 

each crime separately even though the offenses encompassed the same criminal conduct. 

RCW 9A.52.050; Lessley, 118 Wn.2d at 781. Defense counsel had no legitimate reason 

to challenge the trial court or the prosecutor, and any challenge would have failed. Thus, 

Zissel's claim of ineffective assistance of counsel fails. 

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No. 32324-2-111 

State v. Zissel 

CONCLUSION 

We affinn Drew Anthony Zissel' s sentence. 

A majority of the panel has detennined that 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. 

WE CONCUR: 


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Lawrence-Berrey, 1. 

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