Superior Court County: King. Superior Court Cause No: 94-1-040187-4. Date filed in Superior Court: November 10, 1994. Superior Court Judge Signing: Judge Richard Jones.
Written by: Judge Agid. Concurred by: Judge Coleman; Judge Cox
AGID, J. -- Dale Eaton appeals his convictions for first degree rape, second degree robbery and felony harassment contending that we must reverse his convictions because the trial court failed to enter written CrR 3.5 findings of fact and conclusions of law. He also contends the trial court should have merged the felony harassment conviction with the rape conviction for sentencing purposes. Because the findings and conclusions are now part of the record and Eaton was not prejudiced by their delayed entry, they do not provide a basis for reversing his convictions. We further conclude that the trial court properly refused to merge the felony harassment and first degree rape convictions because felony harassment is not a crime the State must prove to elevate rape to a first degree felony. Eaton also challenges the trial court's requirement that as a condition of community placement he enter into and make reasonable progress in a mental health or sexual deviancy treatment program. We disagree with his contention that the trial court lacked statutory authority to order him to make reasonable progress in a treatment program and conclude that, in any event, the issue is not ripe for review. We therefore affirm both the conviction and conditions of community placement.
On June 27, 1994, Eaton left a tavern and got into the front seat of a taxi cab driven by G, an acquaintance of his. G explained the cab company's policy of driving people home from the tavern for a flat fee of $5. Eaton gave her $5 and directed her to a bank parking lot. Once there, he asked her to make out with him. When she refused, he told her to take him to his house. While she was driving, he grabbed her around the neck and choked her. He told her he was "going to fuck" her and then kill her. Eaton directed G to a driveway in front of a duplex. When she parked the car, Eaton pulled her into the back seat and raped her. Throughout the incident, Eaton choked G and threatened to kill her. He repeated his threat to kill her after he raped her. After the rape, Eaton took the $5 he had given G earlier for cab fare.
By amended information, the State charged Eaton with first degree rape, second degree robbery, felony harassment and first degree kidnapping. The court held a CrR 3.5 hearing to determine the admissibility of statements Eaton made following his arrest. It ruled the statements admissible and stated its reasons on the record. At the time Eaton filed his opening brief, the court had not entered written CrR 3.5 findings and conclusions. The trial court has since done so, and that document is now part of the record.
The jury found Eaton guilty as charged. At sentencing, Eaton argued that his felony harassment and kidnapping charges should both merge into the rape charge. The trial court agreed that the kidnapping charge merged with the rape charge and ordered the kidnapping charge stricken. But it held that the felony harassment charge did not merge with the rape because the two offenses did not have the same elements and the threats that constituted the harassment continued after the rape was completed. The court sentenced Eaton to a standard range sentence of 136 months for the first degree rape, 13 months for the robbery and 5 months for the felony harassment, to be served concurrently. It also imposed 24 months of community placement and ordered Eaton to "enter into and make reasonable progress in mental health counseling, and/or sexual deviancy therapy, with a therapist approved by" his community corrections officer within 30 days of his release from confinement. Eaton appeals.
I. CrR 3.5 Findings and Conclusions
Because the trial court's written CrR 3.5 findings and conclusions are now part of the record, the issue is whether the delay in entering them, rather than their absence, warrants reversal. Absent a showing of prejudice or some indication that they have been tailored to address issues on appeal, the late entry of findings of fact and conclusions of law is not a ground for reversal. State v. Litts, 64 Wash. App. 831, 836-37, 827 P.2d 304 (1992). See also State v. Portomene, 79 Wash. App. 863, 865, 905 P.2d 1234 (1995) (delayed entry of CrR 6.1(d) findings and conclusions does not require reversal unless the delay prejudiced the defendant or prevented effective appellate review), review denied, Wash. 2d (1996). Eaton does not claim the trial court's oral findings and conclusions following the CrR 3.5 hearing were inadequate or that the written findings differ from the oral opinion. Nor has he argued that the delay in entering the written document has prejudiced him. We cannot reverse his conviction on this basis.*fn1
Eaton contends the trial court violated the merger doctrine by imposing multiple sentences for his felony harassment and first degree rape convictions. As a threshold matter, we address the State's contention that the Supreme Court recently abrogated the merger doctrine in State v. Calle, 125 Wash. 2d 769, 888 P.2d 155 (1995), and that a double jeopardy claim is now the only avenue available to challenge multiple punishments arising out of a single criminal episode. Calle received concurrent sentences for first degree incest and second degree rape based on a single act of intercourse with his stepdaughter. He appealed, contending he should have received a single sentence for the two offenses because he committed both by one criminal act. The legal basis for Calle's challenge is not entirely clear from the court's opinion. However, it categorically rejected his argument that "grounds other than double jeopardy prohibit his convictions," and resolved his appeal exclusively on double jeopardy grounds. 125 Wash. 2d at 775.
Calle apparently argued that under State v. Birgen, 33 Wash. App. 1, 651 P.2d 240 (1982), review denied, 98 Wash. 2d 1013 (1983), multiple punishments based on the same act could be challenged on grounds other than double jeopardy. The Supreme Court disagreed and rejected the portion of Birgen Calle relied on to make this argument. When Birgen was decided, Washington followed the concurrent sentence rule. Under that rule, when the State brings several charges against a defendant for the same act or transaction and obtains convictions on all counts, no double jeopardy issue arises if the defendant receives concurrent sentences that do not exceed the penalty for any of the offenses because he is being punished but once for his unlawful act. Calle, 125 Wash. 2d at 772. Because the defendant in Birgen received concurrent sentences for his multiple convictions, the concurrent sentence rule required the court to reject his double jeopardy claim. It nonetheless reversed, concluding that concurrent sentences could be reviewed "for non-double jeopardy reasons." 33 Wash. App. at 5.
In Calle, the Supreme Court criticized Birgen stating that the court there "did not enumerate its non-double jeopardy reasons nor do we believe any exist." 125 Wash. 2d at 775. In the Calle court's view, the Birgen court "was attempting to reach a double jeopardy analysis despite the concurrent sentence rule." 125 Wash. 2d at 775. The Calle court specifically rejected the Birgen court's assertion that there are non-double jeopardy reasons for reviewing multiple punishments ...