Personal Restraint Petition Of Aenoy Phasay

• Court: Court of Appeals of Washington
• Decided: May 14, 2018
• Docket: 76082-3
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

IN THE MATTER OF THE No. 76082-3-1 PERSONAL RESTRAINT OF: DIVISION ONE AENOY PHASAY, UNPUBLISHED OPINION Petitioner. FILED: MAY 1 4 2018 PER CURIAM — Aenoy Phasay seeks relief from his convictions for second

degree intentional murder and second degree felony murder. He contends, and the

State concedes, that the convictions violate double jeopardy and that the matter must

be remanded with directions "to vacate the lesser offense." State v. Hughes, 166

Wn.2d 675,686 n.13, 212 P.3d 558(2009)(discussing factors for determining lesser

offense). Although the trial court merged the two convictions for sentencing purposes

and expressly sentenced Phasay for only one conviction, a conviction carries an onus

that, in and of itself, constitutes punishment for purposes of double jeopardy analysis.

State v. Womac, 160 Wn.2d 643, 656-61, 160 P.3d 40(2007); State v. Turner, 169

Wn.2d 448, 455, 238 P.3d 461 (2010). Accordingly, we accept the concession of error

and remand for vacation of the lesser offense.

Remanded for further proceedings consistent with this opinion.

FOR THE COURT:

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