FILED AUGUST 14, 2018 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 DIVISION THREE
STATE OF WASHINGTON, ) ) No. 35295-1-III Respondent, ) ) v. ) ) BRYAN JACOB STORMS, ) UNPUBLISHED OPINION ) Appellant. )
FEARING, J. — This appeal requires us to address the prerogatives of the trial court
when resentencing an offender on directions from the Court of Appeals when an error
occurred in the initial sentence. We hold that the trial court did not engage in
vindictiveness when resentencing appellant Bryan Storms and that Storms’ sentencing
counsel did not engage in ineffective assistance of counsel when advocating during
resentencing. Therefore, we affirm the sentence imposed by the trial court during
remand.
FACTS
On February 10, 2013, Bryan Storms sped from a pursuing police officer. State v.
Storms, No. 32653-5-III (Wash. Ct. App. Jan. 31, 2017) (unpublished),
http://www.courts.wa.gov/opinions/pdf/326535_unp.pdf. Storms ran through a stop sign
in his Honda Civic, smashed into a pickup truck, and sent the truck into the air before it No. 35295-1-III State v. Storms
struck a telephone pole. The driver of the pickup truck died at the scene. Storms’ two
passengers, Ron Martel and Lynn Blumer, suffered injuries. Storms fled the collision
scene on foot.
PROCEDURE
The State of Washington charged Bryan Storms with vehicular homicide, two
counts of vehicular assault, failure to remain at the scene of an accident-fatality (hit and
run) and third degree driving while license suspended. Vehicular homicide, under RCW
46.61.520, constitutes a three alternative means crime. The State alleged all three
methods of violating the statute: the vehicular homicide occurred (1) while under the
influence of intoxicating liquor or a drug, (2) while recklessly driving, or (3) while
driving in disregard for the safety of others.
The seriousness level of the offense of vehicular homicide, for purposes of
sentencing, depends on the means by which the offender committed the offense. RCW
9.94A.515 ranks crimes in order of seriousness with the higher the Roman numeral
assigned the more serious the offense. The highest level is XVI. The statute assigns the
following seriousness levels to vehicular homicide:
XI .... Vehicular Homicide, by being under the influence of intoxicating liquor or any drug (RCW 46.61.520) .... VIII ....
2 No. 35295-1-III State v. Storms
Vehicular Homicide, by the operation of any vehicle in a reckless manner (RCW 46.61.520) VII .... Vehicular Homicide, by disregard for the safety of others (RCW 46.61.520)
Former RCW 9.94A.515 (2012). Note that driving while under the influence warrants
the highest seriousness level for sentencing.
RCW 46.61.522 also classifies vehicular assaults into the same three means of
driving while under the influence, driving recklessly, and driving with disregard for the
safety of others. In turn, the seriousness of the offense, for purposes of sentencing,
depends on which of the three methods by which the offender committed the crime.
IV .... Vehicular Assault, by being under the influence of intoxicating liquor or any drug, or by the operation or driving of a vehicle in a reckless manner (RCW 46.61.522) .... III .... Vehicular Assault, by the operation or driving of a vehicle with disregard for the safety of others (RCW 46.61.522).
Former RCW 9.94A.515. The State alleged that Bryan Storms committed each vehicular
assault count in all three ways.
The State also alleged an aggravating factor for each charge based on Storms’
multiple current offenses and a high offender score resulting from numerous earlier
convictions. Storms suffered twenty-nine prior convictions. Finally, the State alleged the
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aggravator that the victim in the second count of vehicular assault, Lynn Blumer, suffered
injuries more substantial than required to establish the crime.
Before trial on the other charges, Bryan Storms pled guilty to driving while license
suspended. The jury convicted Storms on all remaining charges. Jury interrogatories for
the vehicular homicide count and the two vehicular assault counts indicated the jury’s
unanimous agreement that Storms committed each crime by all three methods alleged in
the charging documents: driving while under the influence of intoxicants, driving in a
reckless manner, and driving with disregard for the safety of others. The jury also found,
in a special verdict, that Lynn Blumer’s injuries for the second count of vehicular assault
substantially exceeded the level of bodily harm necessary to establish the crime.
At the initial sentencing, the trial court ran the vehicular homicide and the two
vehicular assault convictions consecutive to each other because the Sentencing Reform
Act of 1981, chapter 9.94A RCW, deems each crime a violent crime. The trial court,
however, ordered the hit and run conviction to run concurrent with the other offenses.
The court found substantial and compelling reasons to impose an exceptional sentence
upward of 448 months.
Bryan Storms appealed his convictions and sentence. He argued that the trial
court should have suppressed as evidence the results of his blood draw and that
insufficient evidence supported the basis for the exceptional sentence. On appeal, this
court concluded that sufficient evidence supported the exceptional sentence but agreed
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with Storms that the trial court should have suppressed the blood draw because exigent
circumstances did not excuse the requirement of obtaining a warrant. Therefore, while
this court ruled that sufficient evidence supported the alternative “reckless manner” and
“driving in disregard for the safety of others” prongs of vehicular homicide, this court
ruled that insufficient evidence supported the “under the influence of alcohol or any
drug” prong. Because the seriousness levels of convictions for vehicular homicide and
vehicular assault increase if one drives while intoxicated, this court remanded the case to
the trial court for resentencing on the other two prongs of the two crimes. Former RCW
9.94A.515. The vacation of the convictions based on driving while intoxicated reduced
Storms’ standard range resentence for the vehicular homicide conviction from 210 to 280
months to 108 to 144 months.
Resentencing proceeded before the original sentencing court. At the resentencing
hearing, defense counsel noted:
I think we can kind of cut to the chase here. Everything was affirmed in this case by the Court of Appeals except that the under the influence prong was stricken. You don’t get to ask for the same sentence. They didn’t say you can ask for additional time on your aggravators. .... So what I did I thought was just this is what the Court said. We have — we take the sentence that was before. We subtract the difference between the vehicular homicide under the influence and reckless driving, and there we have our sentencing range. If you look at the low end of the reckless driving prong, it’s 144 months. The 84 months on each of the vehicular assault charges, you get 312 months. If you use the low end of the sentencing range, 63 months for
5 No. 35295-1-III State v. Storms
each of the vehicular assault and 108 for the vehicular homicide reckless driving. I think that’s what the Court said. That’s period. The Court said the aggravators are affirmed. The other issues were affirmed. The exceptional sentence was affirmed.
Report of Proceedings (RP) at 6-7.
During resentencing, Bryan Storms spoke to the sentencing court, during which
allocution he took responsibility for his past actions, listed the changes in his behavior,
and touted his ability to beneficially contribute to society if given the chance. Numerous
family members spoke on Storms’ behalf.
The resentencing court sentenced Bryan Storms to the high end of the range on
each conviction, while finding substantial and compelling reasons to impose an
exceptional sentence. Although the court, at the first sentencing, ran the hit and run
conviction concurrent to the other convictions, on remand the court ran the conviction
consecutive to the other counts, resulting in a total sentence of 432 months, or 36 years,
instead of the original 448 months, or 37.33 years. The sentencing court commented:
So the Court does stand on its earlier sentence. I lowered the sentence because the standard range is lower, but I do believe they should all run consecutive based on both of those aggravating factors.
RP at 15.
LAW AND ANALYSIS
In this second appeal, Bryan Storms attacks his recent sentence on two grounds.
First, his trial counsel performed ineffectively during the resentencing. Second, the trial
6 No. 35295-1-III State v. Storms
court acted vindictively during resentencing. We reject both arguments.
Insufficiency of Trial Counsel Representation
On appeal, Bryan Storms argues his trial counsel performed ineffectively when
failing to oppose the resentencing court’s running of the sentence for the conviction for
hit and run consecutively with his convictions for vehicular homicide and the vehicular
assaults. He also relatedly contends that his trial counsel failed in his representation by
omitting to reference, for the court, In re Personal Restraint of Mulholland, 161 Wn.2d
322, 166 P.3d 677 (2007) in order to inform the court of its ability to exercise discretion
in imposing an exceptional downward sentence. To review Storms’ claims of ineffective
assistance of counsel, we must first review the relevant sentencing law.
Under RCW 9.94A.535(2) the sentencing court may impose an exceptional
sentence upward, even without a jury finding, under certain listed circumstances,
including an offender score above the grid, such as the score of Bryan Storms. That
subsection reads:
Aggravating Circumstances—Considered and Imposed by the Court The trial court may impose an aggravated exceptional sentence without a finding of fact by a jury under the following circumstances: .... (c) The defendant has committed multiple current offenses and the defendant’s high offender score results in some of the current offenses going unpunished.
7 No. 35295-1-III State v. Storms
Under RCW 9.94A.535 the sentencing court may impose an exceptional sentence
upward, with a jury finding, under certain listed circumstances, including excessive
injury to a victim. That statutory provision declares:
(3) Aggravating Circumstances—Considered by a Jury—Imposed by the Court Except for circumstances listed in subsection (2) of this section, the following circumstances are an exclusive list of factors that can support a sentence above the standard range. Such facts should be determined by procedures specified in RCW 9.94A.537. .... (y) The victim’s injuries substantially exceed the level of bodily harm necessary to satisfy the elements of the offense. This aggravator is not an exception to RCW 9.94A.530(2).
RCW 9.94A.589, a section of the Sentencing Reform Act, addresses consecutive
and concurrent sentences when the sentencing court sentences the offender to more than
one conviction.
Consecutive or concurrent sentences. (1)(a) Except as provided in (b), (c), or (d) of this subsection, whenever a person is to be sentenced for two or more current offenses, the sentence range for each current offense shall be determined by using all other current and prior convictions as if they were prior convictions for the purpose of the offender score. . . . .... (b) Whenever a person is convicted of two or more serious violent offenses arising from separate and distinct criminal conduct, the standard sentence range for the offense with the highest seriousness level under RCW 9.94A.515 shall be determined using the offender’s prior convictions and other current convictions that are not serious violent offenses in the offender score and the standard sentence range for other serious violent offenses shall be determined by using an offender score of zero. The standard sentence range for any offenses that are not serious violent offenses shall be determined according to (a) of this subsection. All
8 No. 35295-1-III State v. Storms
sentences imposed under this subsection (1)(b) shall be served consecutively to each other and concurrently with sentences imposed under (a) of this subsection.
Bryan Storms first contends that trial counsel was ineffective in not opposing the
trial court’s act of running the hit and run conviction sentence consecutive to the sentence
on the other convictions. Remember that the sentencing court ran the hit and run
sentence concurrent with the vehicular homicide and vehicular assault convictions during
the initial sentencing, but then changed its mind on resentencing.
We disagree that trial counsel failed to argue that the hit and run sentence should
continue to run concurrent with the other convictions. Counsel told the resentencing
court to take the same sentence as initially meted and subtract the difference between the
vehicular homicide seriousness level for the under the influence prong from the reckless
driving prong. Although counsel did not expressly tell the court to run the hit and run
sentence concurrently, counsel strongly implied such with her comments. The trial court
knew that Bryan Storms wanted a concurrent sentence. The trial court obviously knew it
could impose a concurrent sentence because it did so before and this appellate court never
reversed that part of the sentencing.
Bryan Storms next argues that trial counsel at resentencing performed
ineffectively when failing to inform the sentencing court that it held discretion to
consider imposing concurrent sentences. In making this argument, Storms relies on In re
Personal Restraint of Mulholland, 161 Wn.2d 322 (2007). In Mulholland, the jury
9 No. 35295-1-III State v. Storms
convicted Daniel Mulholland of six counts of first degree assault and one count of drive-
by shooting, all “serious violent offenses” under RCW 9.94A.589(1)(b). The statutory
subsection states that sentences for multiple serious violent offenses shall be served
consecutively. The sentencing court concluded it lacked discretion to run any of the
sentences concurrently and so the court ran all of the sentences on the convictions
consecutively. The state high court held the trial court committed error when refusing to
consider running serious violent offenses sentences concurrently as an exceptional
sentence if it found mitigating factors justify such a downward sentence.
This appeal differs from In re Personal Restraint of Mulholland. Most notably,
Bryan Storms’ hit and run charge is not a serious violent offense. Storms’ vehicular
homicide and vehicular assault charges are violent offenses. RCW 9.94A.030(55)(xiii),
(xiv). Hit and run, death resulting, is a nonviolent offense. RCW 9.94A.030(34).
Whereas in Mulholland, the statutory presumption ran charges consecutively, here, the
statutory presumption runs violent and nonviolent offenses concurrently. RCW
9.94A.589(1)(a) provides in part, “[s]entences imposed under this subsection shall be
served concurrently. Consecutive sentences may only be imposed under the exceptional
sentence provisions of RCW 9.94A.535.” Thus, counsel did not need to rely on
Mulholland to advise the court that it had discretion to impose a concurrent sentence
because the statute already dictated such a result. Furthermore, the sentencing judge
originally ordered the hit and run count four to run concurrently which shows the court
10 No. 35295-1-III State v. Storms
was aware of its ability to impose such a sentence. On remand, the court simply chose
not to do so. Counsel cannot be faulted for this change.
The Sixth Amendment to the United States Constitution guarantees an accused the
right to legal counsel in criminal trials. Strickland v. Washington, 466 U.S. 668, 685-86,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Washington’s Constitution also grants an
accused in a criminal prosecution the right to appear by counsel. WASH. CONST. art. I, §
22. To meaningfully protect an accused’s right to counsel, an accused is entitled to
effective assistance of counsel. Strickland v. Washington, 466 U.S. at 686.
To establish ineffective assistance of counsel on resentencing, Storms must show
that (1) his counsel’s performance was deficient, and (2) the deficient performance
prejudiced him. State v. Calhoun, 163 Wn. App. 153, 168, 257 P.3d 693 (2011);
Strickland v. Washington, 466 U.S. at 687. Deficient performance is performance falling
below an objective standard of reasonableness based on consideration of all the
circumstances. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
Reasonable conduct for an attorney includes carrying out the duty to research the relevant
law. Strickland v. Washington, 466 U.S. at 690-91. Prejudice occurs when, but for
counsel’s deficient performance, there is a reasonable probability that the sentence would
have differed. State v. Calhoun, 163 Wn. App. at 168. An accused’s failure to establish
either prong defeats an ineffective assistance of counsel claim. Strickland v. Washington,
466 U.S. at 687.
11 No. 35295-1-III State v. Storms
We conclude that Bryan Storms’ trial counsel did not perform ineffectively. We
also conclude that the trial court’s decision would not have changed had counsel taken
the steps suggested by Storms. Therefore, Storms shows no prejudice.
Bryan Storms also states the trial court’s sentencing violated the provisions of
RCW 9.94A.589. Storms fails to explain, however, how the court ran afoul of the statute.
As noted above, the statute provides that multiple sentences for violent and nonviolent
offenses are to be served concurrently unless the sentence is an exceptional one pursuant
to RCW 9.94A.535. RCW 9.94A.589(1)(a). In this case, the State of Washington
alleged multiple aggravating factors that support an exceptional sentence. The sentencing
court relied on the presence of those factors when rendering its resentencing decision.
The court declared: “I do believe they should all run consecutive based on both of those
aggravating factors.” RP at 15. Thus, the court used RCW 9.94A.535 to impose an
exceptional sentence as RCW 9.94A.589 acknowledges.
Vindictiveness
Bryan Storms next argues that the trial court engaged in vindictiveness when
resentencing him. According to Storms, the change by the resentencing court of the
concurrent to consecutive sentence deprived him of the reduction of the standard range
imprisonment term for his vehicular homicide sentence and thereby robbed him of the
benefit of his successful appeal. Because the aggregate resentence fell lower than the
original sentence, we disagree.
12 No. 35295-1-III State v. Storms
When the same trial judge presides over two or more trials and the last sentence is
more severe than the earlier one, a rebuttable presumption of trial court vindictiveness
applies. State v. Ameline, 118 Wn. App. 128, 133, 75 P.3d 589 (2003). The due process
clause of the Fourteenth Amendment prohibits a judge from vindictively imposing an
increased sentence to punish a defendant for successfully exercising his constitutional
right to appeal. State v. Ameline, 118 Wn. App. at 132-33. Thus, the presumption guards
against vindictiveness in the resentencing process. Alabama v. Smith, 490 U.S. 794, 799,
109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989); Chaffin v. Stynchcombe, 412 U.S. 17, 25, 93
S. Ct. 1977, 36 L. Ed. 2d 714 (1973). Application of the presumption is limited to
circumstances when there is a reasonable likelihood that an unexplained increase in
sentencing is the product of actual vindictiveness on the part of the sentencing authority.
Alabama v. Smith, 490 U.S. at 799. When no such reasonable likelihood exists, a
defendant has the burden of proving actual vindictiveness without aid of the presumption.
Alabama v. Smith, 490 U.S. at 799-800.
We deem State v. Larson, 56 Wn. App. 323, 324, 783 P.2d 1093 (1989)
controlling. A jury convicted Lawrence Larson of first degree murder, second degree
rape, and first degree arson. The court sentenced Larson to consecutive sentences of 281
months for the murder, 41 months for the rape, and 41 months for the arson, all within the
standard range for the crimes. The total aggregate sentence was 363 months, or thirty
years and three months. The court, however, made the sentence exceptional by ordering
13 No. 35295-1-III State v. Storms
the sentences to be served consecutively. The sentencing court failed to enter findings to
support an exceptional sentence so the appellate court remanded for resentencing.
On remand, in State v. Larson, the trial court stated that it originally intended to
sentence Larson to a thirty-year sentence and that the consecutive sentences achieved that
end. Ultimately, the court resentenced Larson to 360 months for the murder with the
other two charges concurrent for an aggregate sentence of 360 months or thirty years.
Lawrence Larson appealed again and argued that the trial court wrought vindictiveness
when the court increased his murder sentence from 281 months to 360 months. This
court rejected the argument on two grounds. First, Larson was not entitled to the
presumption of vindictiveness because, even though the court increased the murder
sentence, Laron’s revised aggregate sentence was less severe than the original sentence.
Second, the trial court explained the increase in the murder sentence when annunciating
its original sentencing intent. This court cited numerous federal decisions for the
proposition that the presumption of trial court vindictiveness never arises when the
aggregate period of incarceration remains the same or is reduced on remand. See United
States v. Cochran, 883 F.2d 1012 (11th Cir. 1989); United States v. Pimienta-Redondo,
874 F.2d 9 (1st Cir. 1989); United States v. Gray, 852 F.2d 136 (4th Cir. 1988); United
States v. Bentley, 850 F.2d 327 (7th Cir. 1988); United States v. Diaz, 834 F.2d 287 (2d
Cir. 1987); United States v. Cataldo, 832 F.2d 869 (5th Cir. 1987); United States v.
Hagler, 709 F.2d 578 (9th Cir. 1983).
14 No. 35295-1-111 State v. Storms
Bryan Storms' original sentence was 448 months' confinement. Storms' sentence
on resentencing is 432 months. Since the revised sentence is lower than the first, the
presumption of trial court vindictiveness does not apply. Storms does not point to any
other indicia of vindictiveness.
CONCLUSION
We affirm the trial court's resentencing of Bryan Storms.
A majority of the panel has determined 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.
Fearing, J.
WE CONCUR:
Siddoway, J.