State v. Winston

135 Wash. App. 400
CourtCourt of Appeals of Washington
DecidedOctober 10, 2006
DocketNos. 32854-2-II; 32989-1-II
StatusPublished
Cited by6 cases

This text of 135 Wash. App. 400 (State v. Winston) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Winston, 135 Wash. App. 400 (Wash. Ct. App. 2006).

Opinion

Penoyar, J.

¶1 Allen L. Winston appeals his convictions for violating a protection order, attempted second degree assault, and first degree burglary. He argues that because the jury was never asked to find whether his crimes involved domestic violence, the trial court violated Blakely1 by imposing a domestic violence protection order, ordering a domestic violence evaluation, and imposing a domestic violence fine. He further claims that he received ineffective assistance of counsel, that the evidence was not sufficient, that the trial court did not properly address a jury question, and that the trial court miscalculated his offender score. We affirm the convictions and deny the consolidated personal restraint petition (PRP).

FACTS

I. Background

¶2 In July 2003, Winston moved into the house his girl friend, Melissa Mattingly, was renting. The couple had been [403]*403dating for several years and had two young children in common. Winston’s name was never put on the lease; he did not contribute to the rental or maintenance costs, nor did he own any of the furniture.

¶3 Following an altercation in August 2003, a no-contact order was issued prohibiting Winston from contacting Mattingly or going near her home or work. Despite the order, Mattingly continued to allow Winston to live with her.

¶4 In October 2003, following a heated argument, Mat-tingly told Winston to leave because she did not want to see him anymore. Mattingly took his keys, and Winston left with his belongings.

¶5 On October 10, Mattingly heard glass breaking and saw Winston crawling in through a bedroom window with help from his cousin. When Mattingly asked what he was doing, Winston responded, “You must have another guy here.” 1 Report of Proceedings (RP) at 85. Winston then went to the front door and let in his cousins, Marlon and Bobby Winston.

¶6 Winston started searching the house. He took Mat-tingly’s cell phone and then wrestled her to the floor to try to take her keys from her pocket. Mattingly started screaming and asked Bobby2 to help, but he said he did not have anything to do with the incident. Marlon left to avoid becoming further involved.

¶7 Mattingly got up and ran into the kitchen, trying to escape to the outside. Winston followed her and shut the door to prevent her from leaving. He then picked up a knife and chased her with it. She asked, “What are you going to do with that?” 1 RP at 90. He responded that he was not going to do anything and put the knife on top of the refrigerator.

[404]*404¶8 Winston then took Mattingly into their daughter’s bedroom and pinned her on her back by straddling her with his knees on her arms and chest. Mattingly was screaming, and Winston told her to be quiet or the police would come. Mattingly later testified:

Got strangled a couple times. One time — I remember him stuffing blankets in my mouth where I was close to my throat, I told him I couldn’t breathe. He said, “Yeah, you can breathe because you are talking.”
I remember just getting strangled and choked and I remember him — I remember him shaking me and telling me, “Please wake up. What’s wrong with you,” . . . And I remember [him] slapping me a couple times to make sure I was all right and after that, he just said, “I got to go.”

1 RP at 94-95. After Winston left, Mattingly called the police.

II. Procedural History

¶9 The State charged Winston with violating a protection order, attempted second degree assault, and first degree burglary. The jury convicted Winston as charged. By special verdicts, the jury found that the conduct constituting a violation of the no-contact order was an assault but that Winston was not armed with a deadly weapon when he committed the first degree burglary.

¶10 The trial court sentenced Winston to a standard range sentence of 36 months, issued a domestic violence protection order forbidding contact with Mattingly, ordered a domestic violence evaluation and follow-up, and ordered Winston to pay a $100 “DV [domestic violence] fine” along with other fees and court costs. Although no argument was presented on the subject at sentencing, the court checked the box on the judgment and sentence saying that the crime involved domestic violence.

¶11 Winston appeals his conviction and sentence. We consolidated the appeal with his PRP.

[405]*405ANALYSIS

Judicial Finding op Domestic Violence

¶12 Winston argues that to be convicted of a domestic violence offense, the State had to prove beyond a reasonable doubt that he and Mattingly were “family or household members.” Appellant’s Br. at 5. He claims that because the jury was never asked to determine this, any enhanced penalties for domestic violence are improper because the penalties are not based on facts a jury found. For this reason, he claims that his sentence violates Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

¶13 The specific enhancements he challenges are: (1) a requirement that he receive a domestic violence evaluation and follow-up treatment, (2) an additional $100 fine to cover the cost of the evaluation, and (3) a no-contact order that results in reduced earned early release time.3 He asks us to vacate the domestic violence finding and the three penalty enhancements he identifies.

A. Washington’s Domestic Violence Statute

¶14 In the domestic violence act, chapter 10.99 RCW, the legislature “ ‘recognize [d] the importance of domestic violence as a serious crime against society5 ” and resolved to ensure that domestic violence victims receive the maximum protection authorized by law. State v. O.P., 103 Wn. App. 889, 891-92, 13 P.3d 1111 (2000) (quoting RCW 10.99.010). Finding that “ ‘the existing criminal statutes are adequate to provide protection for victims of domestic violence,’ ” the legislature focused instead on implementing procedural requirements designed to enhance enforcement of existing laws. O.P., 103 Wn. App. at 892 (quoting RCW 10.99.010).

[406]*406¶15 The act therefore “created no new crimes but rather emphasized the need to enforce existing criminal statutes in an evenhanded manner to protect the victim regardless of whether the victim was involved in a relationship with the aggressor.” Roy v. City of Everett, 118 Wn.2d 352, 358, 823 P.2d 1084 (1992). This was to combat the problem of crimes occurring between cohabitants being treated differently from the same crimes occurring between strangers. See RCW 10.99.010.

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Cite This Page — Counsel Stack

Bluebook (online)
135 Wash. App. 400, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-winston-washctapp-2006.