State Of Washington v. Kevin Robert Bryson

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, DIVISION ONE Respondent, No. 79653-4-I v. UNPUBLISHED OPINION KEVIN ROBERT BRYSON,

Appellant.

DWYER, J. — Following his conviction of 11 counts of violation of a no-

contact order, three counts of residential burglary, one count of harassment, and

one count of stalking (with domestic violence pleaded and proved for all

convictions), Kevin Bryson appeals. On appeal, he avers that the sentencing

court erroneously included three prior felony convictions in the calculation of his

offender score as “9 or more.” Bryson also asserts entitlement to further relief in

a statement of additional grounds. Because the sentencing court properly

calculated the offender score by omitting the three prior felony convictions, his

sentence falls within the appropriate standard range. Bryson’s asserted

additional grounds for relief are without merit.

Accordingly, we affirm. No. 79653-4-I/2

I

Kevin Bryson and Kellie Hickok were married and had four children

together. By July 5, 2018, Hickok had obtained a no-contact order and a civil

protection order against Bryson. The following day, at around 2:21 a.m., Bryson

entered Hickok’s home. Hickok telephoned police. However, Bryson left before

police arrived.

On September 10, 2018, at 2:54 a.m., Bryson removed Hickok’s bedroom

window screen, reached into her bedroom, and moved a fan that was on the

windowsill. Later that day, at 8:30 p.m., Bryson returned to Hickok’s home. Sue

Bryson1, Bryson’s mother who lived in a separate home on the same property,

telephoned 911 and reported that Bryson was in Hickok’s home and had

threatened to kill her. Bryson was subsequently arrested.

On September 11, Sue obtained a protection order against Bryson. From

September 18 through September 30, Bryson made multiple attempts through a

third party to contact Sue in violation of this protection order.

Bryson was charged with three counts of residential burglary, one count of

stalking, one count of harassment, and 12 counts of violation of a no-contact

order, with domestic violence alleged as an aggravating factor for each. One

charge of violation of a no-contact order was later dismissed. On January 25,

2019, a jury convicted Bryson on all other counts.

At the sentencing hearing, the State presented sentence ranges based on

an offender score of “9 or more” for the felony convictions of stalking,

1 Because Kevin and Sue Bryson share a surname, we refer to Sue by her first name to avoid confusion. No disrespect is intended.

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harassment, and residential burglary. Although the State mentioned that Bryson

had three prior felony convictions, it did not rely on these convictions in

calculating its standard range recommendations. The sentencing court noted

that all three prior felony convictions were more than 10 years old. Ultimately,

the trial court imposed upon Bryson a total of 96 months of confinement, the high

end of the standard range for the stalking conviction. All other sentences were

ordered to be served concurrently with this sentence.

Bryson appeals.

II

Bryson avers that the trial court erroneously included the three prior felony

convictions in calculating his offender scores on the various felony convictions.

This was wrong, Bryson contends, because the prior felony convictions were

more than 10 years old and, thus, had washed out. We disagree. His argument

is based on a false premise. There is no evidence in the record to indicate that

the sentencing court included the prior felony convictions in its offender score

calculations. Rather, the sentencing court correctly calculated Bryson’s offender

scores based solely on his other current convictions.

We review a disputed calculation of an offender score de novo. State v.

Rodriguez, 183 Wn. App. 947, 953, 335 P.3d 448 (2014).

Pursuant to the Sentencing Reform Act of 1981, chapter 9.94A RCW,

standard sentence ranges are set forth in a sentencing grid, the inputs for which

are an offender score and the seriousness level of the offense. See RCW

9.94A.510. The standard sentencing range increases as the seriousness level

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and offender score increase. See RCW 9.94A.510. The seriousness level is a

numerical value representing the legislature’s determination of the gravity of the

convicted offense.2 See RCW 9.94A.520. The offender score is a numeric

representation of previous and current criminal history and is calculated

according to a point accrual system devised by the legislature. See RCW

9.94A.525. For the purposes of calculating the offender score for one offense,

other current offenses are treated as prior offenses. RCW 9.94A.589(1)(a).

When more than 8 points count toward the offender score, the legislature

categorizes the offender score as “9 or more.” RCW 9.94A.510.

The sentencing court correctly calculated Bryson’s offender score as “9 or

more” as to each felony conviction being sentenced. Domestic violence was

pleaded and proved for each conviction.3 As such, Bryson’s offender score as

computed for the current offense of residential burglary included: 11 convictions

of violation of a no-contact order, accruing one point per conviction (11 points); a

single conviction for stalking, accruing two points (2 points); a single conviction

for harassment, accruing two points (2 points); and two other concurrent

residential burglary convictions, accruing two additional points each (4 points) —

for a total of 19 points. See RCW 9.94A.525. His score was thus “19,” which the

legislature deems to be “9 or more.” See RCW 9.94A.510.

Likewise, Bryson’s offender score as computed for the current offense of

stalking included: 11 convictions of violation of a no-contact order, accruing one

2 The seriousness levels for the felony offenses of conviction herein are as follows:

Stalking – DV, level 5; Residential Burglary – DV, level 4; and Harassment – DV, level 3. 3 This is significant because pleaded and proved domestic violence can change point

allocation, as it did herein, pursuant to RCW 9.94A.525(21).

4 No. 79653-4-I/5

point per conviction (11 points); a single conviction for harassment, accruing two

points (2 points); and three convictions for residential burglary, accruing one

point for each conviction (3 points) — for a total of 16 points. See RCW

9.94A.525. His score was thus “16,” which the legislature deems to be “9 or

more.” See RCW 9.94A.510.

Similarly, Bryson’s offender score as computed for the current offense of

harassment included: 11 convictions of violation of a no-contact order, accruing

one point each (11 points); a single conviction for stalking, accruing two points (2

points); and three convictions for residential burglary, accruing one point for each

conviction (3 points) — for a total of 16 points. See RCW 9.94A.525. His score

was thus “16,” which the legislature deems to be “9 or more.”

See RCW 9.94A.510.

Thus, as to each felony conviction for which he was being sentenced,

Bryson’s offender score was properly “9 or more.”

Indeed, Bryson’s current offenses properly accrue an offender score of “9

or more” without the inclusion of the three prior felony convictions that Bryson

avers were erroneously included therein. This is significant because an offender

score “reaches its maximum limit” when it exceeds 9 points. State v. France, 176

Wn. App. 463, 468, 308 P.3d 812 (2013). Any further increases in an offender

score greater than 9 “do not increase the standard sentence range.” France, 176

Wn. App. at 468. Because Bryson’s current convictions alone result in his

earning an offender score of “9 or more,” the standard ranges as determined by

the sentencing court were correct. The record does not support Bryson’s

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contention that any prior, “washed out” convictions were included in the

sentencing court’s computations.

III

In a statement of additional grounds, Bryson avers that he received

ineffective assistance of counsel because his attorney told him “that nothing [he]

could be convicted of was more than a misdemeanor and [he was] reassured

[that he] could not be found guilty of [a] felony.”

Our analysis of a claim of ineffective assistance of counsel begins with a

strong presumption that counsel was effective. Strickland v. Washington, 466

U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127

Wn.2d 322, 335, 899 P.2d 1251 (1995). To sustain a claim of ineffective

assistance of counsel, Bryson must demonstrate (1) that his counsel’s

representation was deficient and (2) that there is a reasonable probability that,

but for the counsel’s deficient representation, the result of the proceeding would

have been different. McFarland, 127 Wn.2d at 334-35. Both prongs of the

Strickland test must be satisfied or the claim is not sustained. Strickland, 466

U.S. at 687.

First, there is nothing in the record supporting Bryson’s contention that his

attorney had reassured him that he would not be convicted of a felony. Even

assuming the validity of his contention, however, Bryson still fails to demonstrate

how such a statement from his attorney negatively affected the outcome of the

proceeding. Bryson’s failure to substantiate a reasonable probability that, but for

his attorney’s errors, the result of the proceeding would have been altered, fails

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to overcome the presumption that his “counsel’s conduct falls within the wide

range of reasonable professional assistance.” Strickland, 466 U.S. at 689. Thus,

Bryson has not demonstrated that his convictions were the product of “a

breakdown in the adversary process caused by deficiencies in counsel’s

assistance.” Strickland, 466 U.S. at 700.

Moreover, there is no evidence in the record demonstrating that, but for

the alleged errors of Bryson’s counsel, Bryson would have enjoyed a more

favorable outcome than that which occurred. Because Bryson points us to

nothing that would show that his attorney’s performance negatively affected the

outcome of the proceeding, and in light of the abundant evidence against him, he

fails to satisfy the Strickland test. Strickland, 466 U.S. at 687. Accordingly, he

does not demonstrate an entitlement to relief on this claim.

Lastly, Bryson directs our attention to efforts he has made, while

incarcerated, to reform his behavior. Assuming the sincerity of these efforts, he

is commended. However, these efforts, while noteworthy, do not impact the

validity of his judgment and sentence.

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Affirmed.

WE CONCUR: