State of Washington v. Veniamin (Majority)

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FILED SEPTEMBER 28, 2017 In the Office of the Clerk of Court WA State Court of Appeals, Division III IN THE COURT OF APPEALS OF TH* STATE OF WASHINGTON DIVISION T~E STATE OF WASHINGTON, Respondent, v. VENIAMIN "BEN" GLUSHCHENKO, Appellant. SIDDOWAY, ) ) ) ) ) ) ) ) ) No. 33770-7-111 UNPUBLISHED OPINION J. -Veniamin Glushchenko ~peals his convictions for first degree I burglary, first degree assault, residential burglary,! and first degree robbery arising out of back to back crimes committed at two homes in a lresidential neighborhood. He I challenges (1) the sufficiency of the evidence to sppport the jury's verdict finding him ! guilty of first degree assault, (2) the trial court's srntencing determination that his first I degree burglary was not the same criminal condutt as the robbery and assault into which it escalated, and (3) the trial court's failure to conruct a Blazina 1 inquiry into his ability to pay legal financial obligations. We are unpers4aded by those three challenges or by additional errors alleged in a pro se statement of ~dditional grounds. We affirm. 1 i State v. Blazina, 182 Wn.2d 827, 344 P .3~ 680 (2015). No. 33770-7-111 State v. Glushchenko FACTSANDPROCEDURA~BACKGROUND On a late afternoon in December 2014, Ven amin Glushchenko broke into a home on 32nd Avenue in Spokane. He was in the proces of taking a laptop computer from a coffee table near where the homeowner, Ugur Erol was sleeping, when Mr. Erol woke up. Upon seeing Mr. Erol awake, Mr. Glushchenko tol him to "tum around" but Mr. Erol did not-he saw that Mr. Glushchenko was holdin what appeared to be two steak knives, and he feared that ifhe turned around, Mr. lushchenko would stab him in the back. Report of Proceedings (RP) 2 at 74. When h failed to tum away, an angered Mr. Glushchenko began swinging the knives at Mr. Er 1, slashing him several times. Hurt, bleeding, and fearing additional injury, Mr. Erol fl d out his front door. He called 911 from a neighbor's home. Not long thereafter, Brenda Eberhart was ta ing a nap at her 32nd Avenue home when she was awakened by the sound of shattering glass. When she entered her kitchen and turned on the light, she saw Mr. Glushchenko tanding outside her broken kitchen window. He tried to grab her and demanded that s e give him her money. When she said she did not have any and then began screamin , Mr. Glushchenko left. 2 All citations to the verbatim report of proc edings are to the two consecutivelypaginated volumes containing trial proceedings tak ng place from August 10 through 13, 2015, and Mr. Glushchenko's sentencing on Augu t 27, 2015. 2 No. 33770-7-111 State v. Glushchenko Officer Nathan Gobble responded to Mr. Er l's 911 call and obtained his description of the intruder. Lieutenant Rex Olson pprehended Mr. Glushchenko, who fit the description, a few blocks from Mr. Erol's horn , in a parking lot near the Off Regal Bar. Mr. Glushchenko drew the lieutenant's attent on because he appeared to have been hiding between cars, but got up and approached th door of the bar when the lieutenant pulled into the lot. The lieutenant noticed blood o the back of Mr. Glushchenko's hands as he was handcuffing him. Officers responding to Ms. Eberhart's home took her to where Mr. Glushchenko was being held following his apprehension and she identified him as the man who broke the window at her home. Later that evening, Mr. rol, who had been taken to the hospital for treatment of his wounds, identified Mr Glushchenko froin a photo array. Officers who had been given permission by Mr. Er 1 to search his home found what Mr. Erol would identify as Mr. Glushchenko's weapon : two of the household's steak knives, with blades between four and a half and five inche in length. As crimes against Mr. Erol, the State event lly charged Mr. Glushchenko with first degree burglary, first degree robbery, and first degree assault, all with deadly weapon enhancements. It charged him with reside tial burglary for his crime against Ms. Eberhart. The challenges made on appeal focus on the convictions for the crimes against Mr. Erol. 3 No. 33770-7-111 State v. Glushchenko At trial, evidence was presented that when o ficers responded to Mr. Erol's 911 call, he was bleeding from his neck, his knee, and ad wounds on his shin, shoulder, head, and ear. In addition to offering photographs f his wounds as evidence, the State called Dr. Rana Ahmad, who treated Mr. Erol at th emergency room. Dr. Ahmad testified that Mr. Erol's 11-centimeter neck wound and thigh wound were the most prominent of his wounds. He testified that Mr. Er1l's neck wound would have been life threatening if he had not received treatment, becau~e he could have bled to death or the wound could have become infected. Dr. Ahmad cl ssified the wound as "deep" even though neither the esophagus nor any of the large eries or veins were injured, because the slash wound passed through both the fat layer d a muscle layer. RP at 136. Mr. Erol testified that when he ran out of th front door of his house, he believed he was escaping a life-threatening assault by Mr. lushchenko. At the conclusion of trial, the jury found Mr Glushchenko guilty of all charges. It returned special verdicts finding that he was armed with a deadly weapon when committing the first degree burglary, first degree r bbery, and first degree assault. At sentencing, the trial court heard argumen about whether the burglary, robbery, and assault involving Mr. Erol constituted the sam i criminal conduct for sentencing purposes. It determined that only the robbery and ssault constituted the same criminal conduct, based on its finding that Mr. Glushchenk 's original intent, before Mr. Erol awoke and the situation escalated, had been only t steal. It sentenced Mr. Glushchenko 4 No. 33770-7-III State v. Glushchenko to a midrange sentence of 243 months' confineme and an additional 48 months' confinement for two deadly weapon enhancements for a total of 291 months. It also imposed $800 in legal financial obligations, to whi h Mr. Glushchenko did not object. Mr. Glushchenko appeals. ANALYSIS Evidence suffici ncy "A person is guilty of assault in the first deg ee if he or she, with intent to inflict great bodily harm ... [a]ssaults another with ... a y deadly weapon." RCW 9A.36.01 l(l)(a). Mr. Glushchenko first argues tha the State's evidence was insufficient to support the essential element of first degree assa It that the defendant intended to inflict great bodily harm. The jury was properly in tructed that for purposes of that element, "Great bodily harm means bodily injury t at creates a probability of death, or that causes significant serious permanent disfigure ent, or that causes a significant permanent loss or impairment of the function of an bodily part or organ." Clerk's Papers (CP) at 164; RCW 9A.04.l 10(4)(c). Evidence is sufficient if, viewed in a light ost favorable to the State, it permits any rational trier of fact to find the essential eleme ts of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 .2d 1068 (1992). "A claim of insufficiency admits the truth of the State's eviden e and all inferences that reasonably can be drawn therefrom." Id. We defer to the fact finder on issues of witness credibility 5 No. 33770-7-III State v. Glushchenko and persuasiveness of the evidence. State v. Thom1s, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004). First degree assault requires proof of specifit intent, which is intent to produce a I specific result: in the case of first degree assault, to inflict great bodily harm. State v. I Elmi, 166 Wn.2d 209, 215, 207 P.3d 439 (2009). Ii determining intent, the 'jury may consider the manner in which the defendant exerte~ the force and the nature of the I victim's injuries to the extent that it reflects the am unt or degree of force necessary to cause the injury." State v. Pierre, 108 Wn. App. 3 8,385, 31 P.3d 1207 (2001). While specific intent may not be presumed, the jury may i fer it "as a logical probability from all the facts and circumstances." State v. Wilson, 1 5 Wn.2d 212, 217, 883 P.2d 320 (1994). Mr. Glushchenko argues that the State prese ted no evidence that Mr. Erol's wounds presented a risk of probable death, or any s ·gnificant permanent disfigurement, or any impairment of the function of any body part or organ. But RCW 9A.36.01 l(l)(a) does not require proof that the defendant inflicted g eat bodily harm; it requires that the defendant intended to inflict great bodily harm. St te v. Alcantar-Maldonado, 184 Wn. App. 215, 225, 340 P.3d 859 (2014). Mr. Glushchenko also argues that his intent evidence from which jurors could find otherwise. as only to steal, but there was r. Erol testified that Mr. Glushchenko assaulted him angrily, repeated;y tellilg him, "[T]urn around bitch," and No. 33770-7-111 State v. Glushchenko continued the assault even after Mr. Erol tried to c nvince Mr. Glushchenko to take what he wanted and leave. RP at 76. Mr. Erol told juro that he "realized that my life was in danger," and he thought he was "going to bleed ou "unless he made a run for the front door and escaped. RP at 78. Dr. Ahmad affirmed hat the wounds inflicted by Mr. Glushchenko were deep. And since Mr. Erol did ake a run for it, rational jurors could infer that Mr. Glushchenko had intended to inflict ven more harm had Mr. Erol not escaped. The evidence was sufficient. Same criminal co duct Mr. Glushchenko argues next that the trial c urt abused its discretion in finding, for purposes of calculating his offender score, that he first degree burglary of Mr. Erol's home was not the same criminal conduct as the rob ery and assault. If concurrent offenses encompass the same riminal conduct, they are treated as one crime for the purpose of calculating the defend nt's sentence. RCW 9.94A.589(1)(a). The Sentencing Reform Act of 1 81 (SRA), chapter 9.94A RCW, defines "same criminal conduct" as "two or more c imes that require the same criminal intent, are committed at the same time and place, a d involve the same victim." RCW 9.94A.589(1)(a). All three criteria must be present for a finding of same criminal conduct. State v. Lessley, 118 Wn.2d 773, 778, 82 P.2d 996 (1992). For purposes of the "same criminal intent" criterion, intent can be mea ured by whether one crime furthered 7 No. 33770-7-111 State v. Glushchenko another. Id. Although this issue would be moot if he trial court applied the burglary antimerger statute, Mr. Glushchenko insists that th court did not consider that statute in his case. Br. of Appellant at 12. 3 To avoid the nee to remand we will assume he is correct. 4 This court will not disturb a trial court's <let rmination of whether two crimes involve the same criminal conduct unless there is c ear abuse of discretion or a misapplication of the law. State v. Elliott, 114 Wn. d 6, 17, 785 P.2d 440 (1990). "Under this standard, when the record supports onl one conclusion on whether crimes constitute 'same criminal conduct,' a sentencing c rt abuses its discretion in arriving at a contrary result." State v. Aldana Graciano, 176 n.2d 531, 537-38, 295 P.3d 219 (2013). "[W]here the record adequately supports ether conclusion," however, the matter lies within the trial court's discretion. Id. at 538. I Mr. Glushchenko argues that the only criterirn about which there could be any doubt is whether his criminal intent remained the sfme during his three crimes against I 3 RCW 9A.52.050 provides, "Every person ho, in the commission of a burglary shall commit any other crime, may be punished the efor as well as for the burglary." A sentencing court may exercise discretion to impose separate punishments for burglary and crimes committed during the burglary even if t e crimes encompass the same criminal conduct. Lessley, 118 Wn.2d at 781. 4 The trial court mentioned the antimerger s tute in explaining and announcing its sentence. See RP at 315. But it also discussed the 'same criminal conduct" criteria and found that Mr. Glushchenko did not have the same criminal intent in committing the burglary as he did in committing the robbery and a sault. 8 No. 33770-7-III State v. Glushchenko Mr. Erol, and there could be no reasonable doubt t at it did. He appears to contend that he entered the home intending to steal and to do w atever was necessary to accomplish that aim. The State, on the other hand, argues that lthough Mr. Glushchenko entered I Mr. Erol's home with the intent to steal, he did not intend to encounter anyone-and once he did, he could have abandoned the effort and left It contends that stabbing Mr. Erol could not possibly have been Mr. Glushchenko's i tent when he entered the home. Either conclusion could be drawn from the vidence. The trial court did not abuse its discretion. Legal financial oblz ations For the first time on appeal, Mr. Glushchen o argues that the trial court imposed legal financial obligations (LFOs) without conduct ng the individualized on the record inquiry into ability to pay required by Blazina. He asks that we remand so that the required inquiry can be made. Mr. Glushchenko overlooks the fact that the trial court imposed only mandatory LFOs 5 and restitution. A Blazina inquiry is requir d only for discretionary LFOs. State I V. Clark, 191 Wn. App. 369,373,362 P.3d 309 c2q15) (citing State V. Lundy, 176 Wn. I I 5 A $500 victim assessment fee, a $100 DNt (Deoxyribonucleic acid) collection fee, and a $200 filing fee, none of which is subject o RCW 10.01.160(3). State v. Clark, 191 Wn. App. 369, 374, 362 P.3d 309 (2015). 9 No. 33770-7-III State v. Glushchenko App. 96, 102, 308 P.3d 755 (2013)), review granter in part, 187 Wn.2d 1009 (2007). No remand is required. I STATEMENT OF ADDITIO AL GROUNDS In a pro se statement of additional grounds ( AG), Mr. Glushchenko asserts his innocence, claiming he had an alibi for the night th crimes were committed and that DNA testing would exonerate him. He complains bout the criminal justice system in general and about the investigation, trial, and crimi al justice system participants in his case in particular. Only four errors are sufficiently identified for review. See RAP 10.lO(c) (A SAG must "inform the court of the nat re and occurrence of alleged errors"; we will not search the record in support of claims.) Prosecutorial vindictiveness. Mr. Glushche ko argues his due process rights were violated because the prosecutor acted vindictively then he amended the charges to include first degree robbery after Mr. Glushchenko refused the offer of a plea deal. Prosecutorial vindictiveness as a basis for appeal e ists "when 'the government acts against a defendant in response to the defendant's rior exercise of constitutional or statutory rights."' State v. Korum, 157 Wn.2d 614 627, 141 P.3d 13 (2006) (quoting United States v. Meyer, 810 F.2d 1242, 1245 (D.C.iCir. 1987)). "' [A] prosecutorial action is "vindictive" only if designed to penalize : defendant for invoking legally protected rights."' Id. (quoting Meyer, 810 F.2d a 1245). I I 10 I I No. 33770-7-III State v. Glushchenko When a prosecutor adds charges following a defendant's exercise of legally protected rights, it does not amount to vindictivene s or even give rise to presumption of vindictiveness unless "a defendant can prove that ' 11 of the circumstances, when taken together, support a realistic likelihood of vindi ctiv+ess. "' Id. (quoting Meyer, 810 F.2d at 1246). Courts have "emphatically rejected then tion that filing additional charges after a defendant refuses a guilty plea gives rise to presumption of vindictiveness." Korum, 157 Wn.2d at 629. In this case, the State agreed not to charge c rtain counts in exchange for a plea agreement, a practice explicitly permitted by RCW 9.94A.421(5). When plea negotiations failed, it moved to amend the informa,ion to add the count of first degree robbery. The court granted its request. Mr. Glush1henko provides no support for his claim of prosecutorial vindictiveness aside from hiJ bald assertion, which is insufficient. Ineffective assistance of counsel. Mr. Glush henko complains that his trial lawyer failed to present evidence of his alibi and "threaten d [him] to not testify," implicitly asserting ineffective assistance of counsel. SAG ( ttachment) at 3. The Sixth Amendment to the United States onstitution guarantees a criminal defendant the right to effective assistance of counstl. Strickland v. Washington, 466 U.S. I 668,686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)) To establish ineffective assistance of I counsel, a defendant must demonstrate both that derense counsel's representation was I deficient and that the deficient representation preju~iced the defendant. State v. ! 11 I No. 33770-7-III State v. Glushchenko McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 125! (1995). When, as here, ineffective assistance of counsel is raised on direct appeal, the ~urden is on a defendant to show deficient representation based on the record establi,hed in the proceedings below. Id. at 335. If a defendant wishes to raise issues on appeal that require evidence or facts not in the existing trial record, the appropriate means of dping so is through a personal restraint ! petition. Id. I I The record on appeal does not demonstrate trat Mr. Glushchenko had an alibi I witness whom his trial lawyer unreasonably failed io call to testify. It does not demonstrate that Mr. Glushchenko's failure to testi~ was the result of a threat by his lawyer. 6 If Mr. Glushchenko wishes to pursue thesf claims, he will need to file a i personal restraint petition supported by evidence. I Offender score. Mr. Glushchenko argues fot the first time on appeal that his offender score was a "two" prior to trial. At sentef ing, he agreed that his pretrial offender score was four: 6 In fact, the record tends to undercut that as~ertion. At the close of the State's case, Mr. Glushchenko's trial lawyer asked for a b1ef recess to confer with his client, after which he reported to the court: ! I don't have any defense witnesses tol present. I did tell Mr. Glushchenko that whether he testified or no~, despite whatever my advice is, it's totally his decision. His decision at tfis point is not to testify. I RP at 241. 12 No. 33770-7-III State v. Glushchenko THE COURT: ... he's a four. Are ytu stipulating that he's a four? [DEFENSE COUNSEL]: Your Hono, my calculations he's a four on the residential burglary, five on the other., [PROSECUTOR]: That's correct. 1 I THE COURT: Okay. So the crimina~ history that I have in front of me other than the second one, which has the (lorida conviction which isn't countable at this point, do you have any issufs with this prior criminal history? ' [DEFENSE COUNSEL]: No. I revieked that with Mr. G~us?che~ko before, and he doesn't have a 4ispute as to the countable cnmmal history. :' THE COURT: Okay. And he did not sign this. [DEFENSE COUNSEL]: He did sig it. I think he signed it with an X. THE COURT: So, Mr. Glushchenko, is that your signature, that X on there? [MR. GLUSHCHENKO]: (Defendanrnods head.) THE COURT: You don't have an act al signature? [MR. GLUSHCHENKO]: (Defendan shakes head.) I I I ! RP at 306-07. I "At sentencing, the State bears the burden tiprove the existence of prior tate v. Mendoza, 165 Wn.2d 913, convictions by a preponderance of the evidence." 920,205 P.3d 113, (2009). While due process imp}ses the burden of providing an adequate record on the State, "This is not to say thait a defendant cannot affirmatively ! acknowledge his criminal history and thereby obvitte the need for the State to produce evidence." Id. Affirmative acknowledgment requites more than the mere failure to I object to a prosecutor's recitation of criminal histotjY or the mere agreement with the i ultimate sentencing recommendation. Id. at 928. ijere, Mr. Glushchenko affirmatively 13 No. 33770-7-111 State v. Glushchenko acknowledged the correctness of the criminal histol(Y and pretrial offender score provided I I I by the State, so he cannot object to the adequacy o~ the record. ! In addition, while a defendant cannot agree ,o a sentence in excess of statutory authority, "waiver can be found where the alleged ,rror involves an agreement to facts, later disputed, or where the alleged error involves~ matter of trial court discretion." In re I Pers. Restraint of Goodwin, 146 Wn.2d 861, 874, 0 P.3d 618 (2002). Before we even reach a Goodwin analysis of waiver, however, a de endant must show that a sentencing error was made, not merely that one might have be n made. State v. Ross, 152 Wn.2d 220, 231-32, 95 P.3d 1225 (2004). Mr. Glushchento does not make a threshold showing that an error was made. i I Excessive sentence. Finally, Mr. Glushchen~o argues that the trial court's I imposition of two deadly weapon enhancements caµsed his sentence to exceed the I statutory maximum. The total sentence for a givenloffense, including enhancements to I the sentence for that offense, cannot exceed the sta~utory maximum. RCW I 9.94A.533(4)(g); State v. DeSantiago, 149 Wn.2d 402, 421, 68 P.3d 1065 (2003). I Mr. Glushchenko's crimes to which the dea1ly weapon enhancements applied I I were all class A felonies. RCW 9A.52.020(2) (first degree burglary); RCW 9A.36.011(2) i ! (first degree assault); RCW 9A.56.200(2) (first deg~ee robbery). The maximum ! ' allowable sentence for a class A felony is life imprisonment. RCW 9A.20.021(1)(a). I 14 No. 33770-7-III State v. Glushchenko i I Even with the. enhancements, Mr. Glushchenko's stntence does not come close to the statutory maximum. Affirmed. I A majority of the panel has determined this opinion will not be printed in the I i Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040. WE CONCUR: j 15

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