Considered May 5, 1998. Decided June 11, 1998.
THE STATE OF WASHINGTON, Respondent, v. GEORGE WILLIAMS, Petitioner
[1] Criminal Law - Punishment - Sentence - Criminal History - "Same Criminal Conduct" - Statutory Elements. Two or more crimes constitute the "same criminal conduct" for sentencing purposes under RCW 9.94A.400(1)(a) if they (1) are the product of the same criminal intent, (2) are committed at the same time and place, and (3) are perpetrated against the same victim.
[2] Criminal Law - Punishment - Sentence - Criminal History - "Same Criminal Conduct" - Central Victim Delivery of a Controlled Substance - Controlled Buy. For purposes of determining if two or more deliveries of a controlled substance constitute the "same criminal conduct" for sentencing purposes under RCW 9.94A.400(1)(a), the "victim" of a controlled buy of a controlled substance by a police informant is the public at large.
[3] Criminal Law - Punishment - Sentence - Criminal History - "Same Criminal Conduct" - Objective Intent Test. For purposes of determining if two or more crimes constitute the "same criminal conduct" for sentencing purposes under RCW 9.94A.400(1)(a), the crimes are the product of the same criminal intent if the intent of the offender, viewed objectively, did not change from one crime to the next (as measured by whether one crime furthered the other).
[4] Criminal Law - Punishment - Sentence - Criminal History - "Same Criminal Conduct" - Same Crime, Same Victim, Same Time. Two or more crimes constitute the "Same criminal conduct" for sentencing purposes under RCW 9.94A.400(1)(a), if the crimes are the same and are committed against the same victim in an unbroken sequence one after the other.
[5] Criminal Law - Punishment - Sentence - Criminal History - "Same Criminal Conduct" - Delivery of a Con
366 STATE v. WILLLAMS June 1998
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trolled Substance - Police Informants - Single Scheme. Two separate sales of a controlled substance to two separate police informants at the same place, one immediately after the other, constitute the "same criminal conduct" for sentencing purposes under RCW 9.94A.400(1)(a), if the crimes were committed in the course of a continuing, uninterrupted sequence of conduct as part of a recognizable scheme to sell drugs.
Nature of Action: Prosecution for six counts of unlawful delivery of a controlled substance. A judgment was entered on a verdict of guilty to two of the counts, the judgment was affirmed by the Court of Appeals at 85 Wn. App. 508 (1997), but the court's decision was reversed by the Supreme Court and remanded for reconsideration in light of State v. Porter, 133 Wn.2d 177 (1997).
Court of Appeals: By an order dated October 27, 1997, the court adhered to its original decision.
Supreme Court: Holding that the defendant's sale of cocaine to two informants in controlled buys in an uninterrupted sequence constituted the same criminal conduct for sentencing purposes, the court reverses the judgment and remands the case for resentencing.
Pattie Mhoon, for petitioner.
John W Ladenburg, Prosecuting Attorney, and Donna Y Masumoto, Deputy, for respondent.
PER CURUM. - This is the second time this case has been before this court. In October 1997, we granted George Williams' petition for review and remanded for reconsideration in light of State v. Porter, 133 Wn.2d 177, 942 P.2d 974 (1997). On remand, the Court of Appeals entered a brief order adhering to its original decision affirming Williams' sentence. Porter is controlling. Accordingly, we reverse the
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Court of Appeals and remand the case to the superior court for resentencing.
FACTS
Williams sold rock cocaine to two police informants in a controlled buy arranged by the Pierce County narcotics squad. After one of the informants contacted Williams to arrange the sale, both informants met Williams at a residence where Williams sold 10 rocks to each. The informants then left the residence and returned to the police, who promptly arrested Williams.
Williams was subsequently convicted of two counts of unlawful delivery. He argued at sentencing that the counts encompassed the same criminal conduct. The State argued that the deliveries were separate because they occurred consecutively and involved two people. The sentencing court agreed with the State and sentenced Williams to 60 months.
ISSUE
Did the sentencing court abuse its discretion by concluding that charges arising from the sale of cocaine to two informants did not constitute the same criminal conduct?«1»
ANALYSIS
[1, 2] Multiple crimes encompass the same criminal conduct for sentencing purposes if they require the same criminal intent, are committed at the same place and time, and involve the same victim. RCW 9.94A.400(1)(a), State v. Vike, 125 Wn.2d 407, 410, 885 P.2d 824 (1994). The two crimes occurred at the same time and place, and the "victim" of both drug sales was the public at large, not the purchasers. State v. Porter, 133 Wn.2d at 181; State v. Rodriguez, 61 Wn. App. 812, 816, 812 P.2d 868, review denied,
«1» Williams also challenges a deadly weapon enhancement. His argument on that issue does not merit review under RAP 13.4(b).
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118 Wn.2d 1006 (1991). The dispositive question, then, is whether the counts required the same criminal intent.
[3] The relevant inquiry is "the extent to which the criminal intent, objectively viewed, changed from one crime to the next. . . . This, in turn, can be measured in part by whether one crime furthered the other." State v. Vike, 125 Wn.2d at 411 (citations omitted). Williams relies on our holding in State v. Garza-Villarreal«2» that charges based on the simultaneous delivery of two different drugs constituted the same criminal conduct. The Court of Appeals found that case to be distinguishable and relied instead on State v. Burns,«3» which involved one charge based on the defendant's sale of cocaine to an undercover officer and a second charge arising from the subsequent discovery of more cocaine in the defendant's van.
[4, 5] The Court of Appeals reliance on Burns is misplaced and conflicts with Porter. The crimes in Burns had different statutory mental elements. The delivery count required an intent to deliver currently, whereas the possession count involved an intent to deliver in the future. By contrast the defendant in Porter, like Williams, was convicted of two counts of delivery, both of which required the same intent-to deliver currently. In Porter the defendant delivered methamphetamine and, immediately thereafter, marijuana, to the same undercover officer. The defendant's intent, objectively viewed, "was to sell both drugs in the present as part of an ongoing transaction." State v. Porter, 133 Wn.2d at 184-85. The sequential nature of the sales did not necessarily indicate different criminal intents, because the sales "occurred in a continuing, uninterrupted sequence of conduct as part of a recognizable scheme to sell drugs." Id. at 185-86.
Similarly, Williams made two deliveries in an uninterrupted sequence as part of a single scheme to sell drugs. The offenses are as much part of "the same criminal
«2» 123 Wn.2d 42, 864 P.2d 1378 (1993).
«3» 114 Wn.2d 314, 788 P.2d 531 (1990).
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conduct" as the deliveries in Porter The only difference between this case and Porter is that Williams sold the drugs to two different buyers. But as indicated above, the buyers are not the victims; the public is. State v. Porter, 133 Wn.2d at 181. If delivery of two different drugs encompasses the same criminal conduct, the same is equally true of simultaneous deliveries of the same drug to two buyers.
CONCLUSION
Williams' crimes encompassed the same criminal conduct and should be counted as one in his offender score. The judgment is therefore reversed, and the case is remanded to the superior court for resentencing.