FILED JUNE 12, 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STATE OF WASHINGTON, ) No. 35146-7-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) SCOTT M. ELLIS, ) ) Appellant. )
PENNELL, A.C.J. — Scott Ellis appeals his convictions and sentence for second
degree burglary, first degree vehicle prowling, obstructing a law enforcement officer, and
third degree malicious mischief. We affirm Mr. Ellis’s convictions but remand for
resentencing.
FACTS
In the middle of a summer night in 2016, police were called to the Valleyway Self
Storage facility in Spokane Valley, Washington. The call was prompted by unusual
sounds and light emanating from a motor home stored at the facility.
Several officers responded to the scene. The officers approached the motor home
and made contact with the person inside, who identified himself as Scott Ellis. Mr. Ellis
told the police he had blocked the door and would not come out unless his Department of No. 35146-7-III State v. Ellis
Corrections officer was present. The police told Mr. Ellis he was under arrest and
ordered him outside. Mr. Ellis refused to comply. The police deployed pepper spray
through the motor home’s vents. That did not work. The officers attempted to breach the
motor home’s door, but could not get through Mr. Ellis’s barricade. Eventually, the
police were able to get inside the motor home by breaking through a window. Mr. Ellis
was found hiding in a rear bedroom. He still refused to leave. Finally, a combination of a
police dog bite and more pepper spray led Mr. Ellis to come out and surrender.
Mr. Ellis was charged with second degree burglary (for entering/remaining in the
storage facility), first degree vehicle prowling (for entering/remaining in the motor home),
third degree theft (cash alleged to be missing from the motor home), obstructing a law
enforcement officer, and third degree malicious mischief (for damage caused to the motor
home).
Mr. Ellis testified at trial and offered an explanation for his actions. Mr. Ellis said
he had gotten into an argument with his ex-wife at her home earlier that evening. The ex-
wife’s boyfriend allegedly threatened Mr. Ellis, so he left. After walking approximately
four blocks, Mr. Ellis saw the boyfriend and another man 1 following him in a truck so he
1 Mr. Ellis was able to name his ex-wife at trial, but he could not name the ex- wife’s boyfriend or the other man.
2 No. 35146-7-III State v. Ellis
began running and tried to lose them by cutting across nearby fields, parking lots, front
yards, etc. Mr. Ellis testified he did not enter one of the nearby restaurants or
supermarkets (at least some of which were open) because he did not want to get anyone
else involved. Mr. Ellis eventually came across Valleyway Self Storage. Believing it was
a safe area, he walked through the front gate and into the storage facility behind a truck
towing a large trailer. Mr. Ellis then entered the second motor home he came across. He
wrapped a seatbelt around the door to keep anyone from entering, and built a barricade
for the same reason. Mr. Ellis then waited to make sure he was no longer being pursued.
While waiting, he noticed some movies and started watching one on a television inside
the motor home.
Mr. Ellis then testified about what happened when the police arrived. He
explained the police arrived shortly after he turned on the television and immediately
threatened him with a police dog. Mr. Ellis said he was frightened and started reinforcing
his barricade. He testified his goal was to “stay safe.” 2 Report of Proceedings (RP)
(Jan. 24, 2017) at 233. Mr. Ellis testified he “didn’t have any intention of fighting the
police, by any means.” Id. at 235. He further testified he only entered the storage facility
and the motor home to find a safe place, and he built the barricade for the same reason.
On cross-examination, Mr. Ellis agreed he had no lawful reason to be in the storage
3 No. 35146-7-III State v. Ellis
facility or the motor home. He also testified his decisions were the result of “quick action
and thought.” Id. at 245. Mr. Ellis described “quick action” as doing something “without
thought” while acting on “instinct or stupidity.” Id. at 261.
Prior to the close of evidence, defense counsel indicated there was one more
witness she hoped to call, and the court agreed to recess to give counsel time to find the
witness. The defense rested the following day without calling this witness. There is no
explanation in the record for why the witness was not called, and defense counsel never
identified the witness. During closing, defense counsel argued Mr. Ellis never entered the
storage facility or the motor home with the intent to commit a crime. She acknowledged
Mr. Ellis was at the storage facility unlawfully. However, counsel argued the jury should
convict Mr. Ellis of the lesser included offenses of criminal trespass in the first and
second degree.
The jury found Mr. Ellis guilty of all charges except third degree theft.
At sentencing, defense counsel asked for an exceptional sentence downward on the
burglary charge due to the unique circumstances of the offense and Mr. Ellis’s chemical
addiction and posttraumatic stress disorder (PTSD). In the alternative, counsel asked for
a prison-based drug offender sentencing alternative. In support of Mr. Ellis’s request for
leniency, defense counsel presented a testimonial from one of Mr. Ellis’s friends, Jessica
4 No. 35146-7-III State v. Ellis
Johnson, who spoke to Mr. Ellis’s addiction, mental health problems, and conflicts with
his ex-wife.
The sentencing judge addressed several of Mr. Ellis’s concerns. The judge found
chemical dependency likely contributed to Mr. Ellis’s offenses. The judge also
questioned defense counsel about facts surrounding Mr. Ellis’s purported PTSD diagnosis
and military service. Defense counsel explained she had not been able to obtain
applicable documentation. The judge ultimately stated she lacked sufficient evidence to
impose a treatment-based sentence or an exceptional sentence downward. The judge
noted that if additional information had been available, the outcome might have been
different. The judge thereafter imposed a standard range sentence.
ANALYSIS
Jury unanimity—burglary and vehicle prowling
Mr. Ellis argues his right to a unanimous jury verdict was violated because no
unanimity instruction was given for the second degree burglary and first degree vehicle
prowling charges. He asserts there is insufficient evidence he unlawfully entered the
storage facility or the motor home with intent to commit a crime.
The Washington Constitution guarantees criminal defendants the right to a
unanimous jury verdict. State v. Woodlyn, 188 Wn.2d 157, 162, 392 P.3d 1062 (2017);
5 No. 35146-7-III State v. Ellis
see also WASH. CONST. art. I, § 21. But a particular analysis is called for when the
charged offense is an alternative means crime. Woodlyn, 188 Wn.2d at 163-64. A
defendant does not have an absolute right to express unanimity in the context of an
alternative means crime. Id. at 164. So long as all of a crime’s alternative means are
supported by sufficient evidence, a general guilty verdict is constitutionally sufficient. Id.
Mr. Ellis claims second degree burglary and vehicle prowling are both alternative
means crimes. Specifically, both offenses require the State to prove the defendant entered
or remained in a specified location with intent to commit a crime. Mr. Ellis concedes the
State presented sufficient evidence that he illegally remained in both a building (the
storage facility) and a vehicle (the motor home). However, because Mr. Ellis was fleeing
perceived danger from his ex-wife’s boyfriend at the time of entry, Mr. Ellis claims the
State has failed to present sufficient evidence of illegal entry. Because the jury was never
asked to make a unanimous finding as to illegal entry versus illegally remaining, Mr. Ellis
argues both his burglary and vehicle prowling convictions must be reversed.
Mr. Ellis’s argument fails because sufficient evidence supports finding Mr. Ellis
illegally entered and remained on the premises. Contrary to the defense position, the jury
was not required to believe Mr. Ellis’s explanation that he sought refuge in the storage
facility and motor home in order to escape a violent pursuit. The test for sufficiency
6 No. 35146-7-III State v. Ellis
requires the evidence be reviewed in the light most favorable to the State, not the defense.
State v. Owens, 180 Wn.2d 90, 99, 323 P.3d 1030 (2014). The jury easily could have
rejected Mr. Ellis’s claim about trying to escape a violent pursuit given his refusal to seek
help from alternate sources such as the nearby restaurants and stores. Mr. Ellis’s conduct,
including his surreptitious entry and destruction of property, provided the jury sufficient
evidence from which to conclude Mr. Ellis harbored criminal intent both when he entered
the storage facility and motor home and over the course of time that he remained on the
premises.
Ineffective assistance of counsel
Mr. Ellis argues defense counsel was ineffective for: (1) failing to request jury
instructions on a necessity defense, (2) not calling Ms. Johnson as a defense witness
during trial, (3) not investigating a diminished capacity defense, and (4) not requesting a
bill of particulars to specify the underlying crimes on the burglary and vehicle prowling
charges.
A claim of ineffective assistance of counsel implicates a defendant’s constitutional
rights and may be considered for the first time on appeal. State v. Kyllo, 166 Wn.2d 856,
862, 215 P.3d 177 (2009). To establish ineffective assistance, a defendant must show
both deficient performance and prejudice. State v. McFarland, 127 Wn.2d 322, 334-35,
7 No. 35146-7-III State v. Ellis
899 P.2d 1251 (1995). Counsel’s performance will not be considered deficient if it can
be characterized as legitimate trial strategy. Kyllo, 166 Wn.2d at 863. With respect to
prejudice, a defendant must show “there is a reasonable probability that, but for counsel’s
deficient performance, the outcome of the proceedings would have been different.” Id. at
862.
We reject Mr. Ellis’s claim that defense counsel unreasonably failed to pursue a
necessity defense. This is not a case where the defense failed to pursue a coherent
strategy. The defense reasonably attempted to obtain convictions for the lesser included
crime of trespass based on Mr. Ellis’s denial of criminal intent. It was not unreasonable
for defense counsel to focus on this approach instead of simultaneously pursuing a
necessity defense. Necessity requires the defense to proffer facts tending to show the
defendant did not have any reasonable alternative to breaking the law. State v. Kurtz,
178 Wn.2d 466, 478, 309 P.3d 472 (2013); State v. Jeffrey, 77 Wn. App. 222, 225,
889 P.2d 956 (1995). Here, Mr. Ellis admitted that he opted not to seek refuge from
nearby restaurants and stores because he did not want to get anyone else involved. While
Mr. Ellis’s admission did not preclude defense counsel from arguing Mr. Ellis lacked
criminal intent (and therefore should be convicted of trespass), his testimony was
inconsistent with a defense of necessity. Given this circumstance, counsel’s defense
8 No. 35146-7-III State v. Ellis
strategy to focus on a credible trespass defense, as opposed to a problematic defense of
necessity, was entirely reasonable.
With respect to Mr. Ellis’s second and third claims, pertaining to defense counsel’s
failure to present and investigate trial evidence, the record is insufficient to establish
deficient representation. We lack any evidence about what steps defense counsel took to
procure Ms. Johnson’s trial testimony or information regarding Mr. Ellis’s PTSD. In
addition, the record does not establish that Ms. Johnson’s testimony or further PTSD
investigation would have been helpful to Mr. Ellis. Although Ms. Johnson’s statements at
sentencing suggest she was aware of conflict between Mr. Ellis and his ex-wife, it is not
clear that Ms. Johnson had admissible testimony regarding the conflict between Mr. Ellis
and his ex-wife on the date of the offense conduct. In addition, because many facts
regarding Mr. Ellis’s alleged PTSD are unknown, we cannot assess whether additional
evidence could have supported a diminished capacity defense or altered the outcome of
Mr. Ellis’s case. Accordingly, Mr. Ellis’s claims regarding counsel’s failure to present
evidence and witnesses cannot be resolved on direct appeal. Instead, Mr. Ellis’s recourse
is a personal restraint petition. McFarland, 127 Wn.2d at 335.
Mr. Ellis last argues counsel was ineffective for not requesting a bill of particulars
to specify what crime the State alleged he intended to commit in the storage facility or the
9 No. 35146-7-III State v. Ellis
motor home. This claim fails for lack of prejudice. The purpose of a bill of particulars is
to “amplify or clarify particular matters essential to the defense.” State v. Holt, 104
Wn.2d 315, 321, 704 P.2d 1189 (1985). The ultimate decision about whether to grant a
bill of particulars lies in the sound discretion of the trial court. State v. Noltie, 116 Wn.2d
831, 844-45, 809 P.2d 190 (1991). Mr. Ellis fails to show the trial court would have
exercised its discretion to grant a bill of particulars had a motion been filed. The criminal
information disclosed the State’s theory that Mr. Ellis committed the crimes of theft and
malicious mischief. Given this circumstance, defense counsel would have been hard
pressed to establish further clarification was warranted. Mr. Ellis has therefore failed to
show defense counsel provided ineffective assistance by failing to file a pretrial motion
for a bill of particulars.
Sentencing errors
Mr. Ellis alleges several errors occurred during sentencing. Because we agree with
Mr. Ellis that the sentencing court erroneously failed to order a chemical dependency
screening and presentence report, we limit our review to those contentions.
While a standard range sentence is generally not appealable, an exception exists if
the appellant can show the trial court failed to consider information mandated by
RCW 9.94A.500. See State v. Watson, 120 Wn. App. 521, 527, 86 P.3d 158 (2004).
10 No. 35146-7-III State v. Ellis
Relevant here, the statute provides:
Unless specifically waived by the court, the court shall order the department to complete a chemical dependency screening report before imposing a sentence upon a defendant who has been convicted of . . . any felony where the court finds that the offender has a chemical dependency that has contributed to his or her offense. . . . If the court determines that the defendant may be a mentally ill person as defined in RCW 71.24.025, although the defendant has not established that at the time of the crime he or she lacked the capacity to commit the crime, was incompetent to commit the crime, or was insane at the time of the crime, the court shall order the department to complete a presentence report before imposing a sentence.”
RCW 9.94A.500(1) (emphasis added).
The language of this statute is “mandatory and unambiguous.” State v. Brown,
178 Wn. App. 70, 79, 312 P.3d 1017 (2013). It therefore controls our assessment of
Mr. Ellis’s case. In her oral ruling, the sentencing judge specifically found that “chemical
dependency likely contributed to” Mr. Ellis’s offenses. 3 RP (Feb. 17, 2017) at 412.
Given this finding, a chemical dependency screening report was required. In addition,
the judge expressed concern that Mr. Ellis may well have suffered from mental illness
due to his military service. The judge lamented the absence of additional information.
Based on the judge’s reasonable concern that Mr. Ellis might be a mentally ill person, the
judge was required to order a presentence report.
Although the information regarding Mr. Ellis’s chemical dependency and mental
illness did not come to the judge’s attention until the time of sentencing, this does not
11 No. 35146-7-III State v. Ellis
alter our analysis. RCW 9.94A.500(1) requires the court order a chemical dependency
screening report and presentence report if the relevant information comes to light
“[b]efore imposing a sentence.” A sentence is not imposed until it is ordered by
the court at a sentencing hearing. Thus, contrary to what is urged by the dissent,
RCW 9.94A.500(1) is not limited to the presentencing context. Instead, the statute
creates a continuing obligation on the sentencing court to order reports, if factually
appropriate, up until the moment a sentence is announced. Given the mandatory language
used in the statute, a court cannot proceed with imposing a sentence if a report is required.
Instead, the court’s only option is to continue the sentencing hearing pursuant to
RCW 9.94A.500(1) (permitting a court to continue a sentencing hearing on its own
motion for good cause).
Because Mr. Ellis’s sentence was imposed without the benefit of a chemical
dependency screening report or presentence report as required by RCW 9.94A.500(1),
Mr. Ellis’s sentence must be reversed and this matter must be remanded for resentencing
after preparation and consideration of the two reports. The court on remand is free to
select a sentence different from the one originally imposed, if factually and legally
warranted. We do not prejudge whether the information contained in a chemical
dependency screening report or presentence report might justify a different sentence.
12 No. 35146-7-111 State v. Ellis
CONCLUSION
We affirm Mr. Ellis's convictions, but remand for resentencing. As there was no
substantially prevailing party on review, no action is necessary on Mr. Ellis's motion to
deny appellate costs.
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.
Pennell, A.CJ. I CONCUR:
Fearing,~\
13 No. 35146-7-III
KORSMO, J. (dissenting) — The majority reads RCW 9.94A.500 out of context.
This is a presentencing procedural statute, telling trial judges when they can order
presentence investigations (PSI) or chemical dependency evaluations. It stands the
purpose of the statute on its head to order an evaluation after sentencing, since the
purpose of the evaluation is to help inform the sentencing decision. The trial judge
correctly understood the purpose of the statute and declined to continue sentencing for
the purpose of obtaining more mental health records because it was time to conclude the
case. 3 Report of Proceedings (RP) (Feb. 17, 2017) at 411. Moreover, the defense did
not seek an exceptional sentence for any of the reasons mentioned by the majority since
they are not legally available reasons for a mitigated sentence and was not prejudiced by
the alleged error. For both reasons, I dissent.
The title of the statute is: “Sentencing hearing—Presentencing procedures—
Disclosure of mental health services information.” This indicates the purpose of the
statute is to govern the sentencing hearing and the procedures leading up to it. The first
paragraph of § 500(1) tells the court when to conduct a sentencing hearing and empowers
the court to continue the hearing. The decision whether or not to continue a sentencing
hearing is within the discretion of the trial judge. E.g., State v. Roberts, 77 Wn. App. No. 35146-7-III State v. Ellis—Dissent
678, 685, 894 P.2d 1340 (1995). The remaining provisions of § 500 address procedures
prior to the hearing and what is done with the assembled information at and after
sentencing.
Some of the procedures specified in the statute expressly indicate that the actions
authorized by § 500 are conducted prior to sentencing—or not at all. For instance, the
second paragraph of § 500(1) directs trial courts to order risk assessments in some
situations, prohibits them in others, and grants discretionary authority to order them in the
remaining cases. The paragraph then concludes with the following sentence: “If
available before sentencing, the report shall be provided to the court.” Thus, if the
mandatory risk assessment is not timely reported to the trial court, it will not be
considered at sentencing. Similarly, the third paragraph expressly states that “at the time
of plea or conviction,” the court shall order a PSI for a convicted sex offender.
The remainder of the statute implicitly stands for the same proposition—the
powers granted trial courts (or the directives to them) are to be exercised at the time of
conviction, not at the time of sentencing. The “finding” that the trial court entered at
sentencing was simply an acknowledgement that Mr. Ellis used methamphetamine and
that it was a contributing factor to his crime. 1 It should not operate to undo the
1 I understand based on anecdotal evidence that this finding is useful during intake screening at the Department of Corrections, but I have been unable to locate any regulations or policies that address the topic.
2 No. 35146-7-III State v. Ellis—Dissent
sentencing and require that the process be done over. If it was intended to have that
effect, the legislature would have prohibited the court from acting without the report.
The second reason I dissent is that a remand for the reasons stated by the majority
is absolutely useless because the trial court would be unable to act on the theories offered.
Neither a mental health condition nor a drug dependency are bases for an exceptional
sentence, with the latter having been prohibited by the legislature since the very
enactment of the SRA (Sentencing Reform Act of 1981, ch. 9.94A RCW). 2 RCW
9.94A.535(1)(e) (voluntary use of drugs or alcohol not a mitigating factor); LAWS OF
1983, ch. 115, §10 (same); State v. Hutsell, 120 Wn.2d 913, 845 P.2d 1325 (1993)
(cocaine dependence); State v. Allert, 117 Wn.2d 156, 815 P.2d 752 (1991) (alcoholism);
State v. Pennington, 112 Wn.2d 606, 772 P.2d 1009 (1989) (need for treatment not
mitigating factor). 3 The only basis for imposing a mitigated exceptional sentence is if the
facts of the case demonstrate that the crime is less egregious than typical for the offense;
the offender’s personal characteristics are not relevant. 4 See State v. Law, 154 Wn.2d 85,
2 This is consistent with the longstanding legislative policy that alcohol or drug use do not constitute a defense to criminal activity. RCW 9A.16.090. 3 The opinion concluded: “we hold, as a matter of law, that a drug or alcohol problem in and of itself is not a substantial or compelling reason justifying imposition of an exceptional sentence.” Pennington, 112 Wn.2d at 611. 4 A constitutionally required exception to this policy involves youthful offenders whose crimes demonstrate the hallmarks of immaturity. State v. Houston-Sconiers, 188 Wn.2d 1, 391 P.3d 409 (2017).
3 No. 35146-7-III State v. Ellis—Dissent
89, 101-104, 110 P.3d 717 (2005); State v. Fowler, 145 Wn.2d 400, 411, 38 P.3d 335
(2002).
Indeed, defense counsel correctly understood that her client’s mental health and
addiction problems were not valid bases for an exceptional sentence and told the judge
that at sentencing and in her presentence briefing. RP at 397-398; Clerk’s Papers at 86-
87. She, instead, quite properly directed her argument to a contention that the facts of
this crime were less egregious than typical. That is the only basis on which an
exceptional sentence can be based. Law, 154 Wn.2d at 89. However, given that few
burglars barricade themselves inside someone else’s home and then help destroy it, the
trial court understandably rejected this argument. RP at 411-412. While the majority
notes that the trial judge expressed sympathy for the defendant and indicated an interest
in having his problems addressed, that does not mean the trial judge could have acted
along the lines suggested by the majority, even if Mr. Ellis had asked the court to do so. 5
5 Indeed, this court has previously reversed the same trial judge for imposing an exceptional sentence on those same grounds. See State v. Galindo, noted at 160 Wn. App. 1033 (2011). On remand, the trial court imposed a standard range sentence. State v. Galindo, No. 30547-3-III (Wash. Ct. App. Mar. 19, 2013) (unpublished), http://www .courts.wa.gov/opinions/pdf/305473.pdf.
4 No. 35146-7-III State v. Ellis-Dissent
If the trial court on remand imposes an exceptional sentence 6 based on either of
these grounds, this court would be forced to reverse the sentence under Pennington and
its many progeny. Remanding this case for an evaluation of an uncontested fact and
possible imposition of an improper exceptional sentence is a waste of resources. The
legislature intended the evaluation to assist in sentencing, not as a basis for overturning a
sentence. The only lesson of this case is that sentencing judges should not make
gratuitous findings. They only result is additional work for everyone involved in the
case.
I would affirm.
6 Nor would the missing evaluation have assisted with the decision whether or not to impose a prison-based DOSA sentence. RCW 9.94A.660, .662. The trial court expressly rejected the DOSA proposal as being insufficient under the facts of the case and because the defendant had recently failed to take advantage of another inpatient treatment program. RP at 411-413.